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Harder, Justin --- "A Future Perspective on the Disposition of the Insane and the Unfit to Stand Trial in the International Criminal Court" [2010] NZYbkIntLaw 5; (2010) 8 New Zealand Yearbook of International Law 145

Last Updated: 10 August 2015

A FUTURE PERSPECTIVE ON THE DISPOSITION OF THE INSANE AND THE UNFIT TO STAND TRIAL IN THE INTERNATIONAL CRIMINAL COURT

Justin Harder*

I. Introduction

As the International Criminal Court (‘ICC’) begins to build a prosecuting momentum, concerns have been raised as to the approach the Rome Statute of the International Criminal Court (‘ICC Statute’ or ‘Rome Statute’) takes to seriously mentally impaired defendants.1 The Statute sets a remarkably high threshold for the insanity defence such that only the most mentally impaired defendants could ever satisfy its criteria. Counter-intuitively, the Statute then goes on to provide a full acquittal and unconditional release when the defence succeeds. Likewise, defendants who are unfit to stand trial must also be released when it becomes plain that they are unlikely to regain the competence necessary to ever be tried for serious international crimes. This may be perfectly adequate where a defendant no longer poses any risk to themselves or others but domestic experience tells us that will not always be so.

Insanity and unfitness to stand trial are undoubtedly controversial facets of domestic criminal justice systems. Infamous examples of the insanity defence – like Daniel M’Naghten’s shooting of the British Prime Minister’s Private Secretary and John Hinckley’s shooting of Ronald Reagan – have unearthed deep public feeling and evoked sometimes knee-jerk reactions. Similar experiences mark the history of unfitness to plead. Those controversies have disproportionately fuelled negative prejudices that see the mental condition defences as affronts to the attainment of justice and redress for serious violations of international humanitarian law. The pressure of those controversies and prejudices has been managed domestically by the development of legal and extra-legal frameworks including rules of procedure, commitment thresholds and options for institutional medical disposition of criminal defendants.2

Leading international criminal law writers have tentatively identified some of the myriad of complex policy challenges the mental health of defendants will pose for the ICC but the issue of disposition has not yet been treated with any real scholarly depth. Schabas has suggested the Dutch mental health authorities might step in.3 Freckelton and Karaggiannakis agree this might be so but see any implicit authorisation to detain as limited only to those who are unfit to stand trial.4 Cryer et al note the lack of a “special verdict” of not guilty by reason of insanity and suggest the negotiation of agreements for delivery of psychiatric services with co-operative ICC member states;5 by contrast, Freckelton and Karaggiannakis and Tobin suggest that an international preventive psychiatric scheme ought to be developed in either a third state or the defendant’s country of origin.6

This article broadly examines the challenges of developing appropriate disposition options for ICC defendants who are insane or unfit to stand trial and makes some observations on factors that might bear on the viability of a preventive psychiatric detention scheme. This first section sketches an overview of the ICC’s first decade in the context of issues reflecting on insanity and fitness to stand trial in the ICC Statute. The second section sets out some conceptual and practical obstacles to an appropriate and effective forensic psychiatric treatment scheme with a particular focus on the potential phenomenon of ICC acquittees having to remain indefinitely in United Nations (UN) safehouses because they cannot be repatriated and no third state will grant them asylum. The third section evaluates some of the lessons the ICC can learn from domestic applications of the experiences of cross- cultural psychiatry and therapeutic jurisprudence and identifies aspects of the ICC prosecution process that might irrevocably harm psychologically vulnerable defendants. The fourth section briefly examines how key human rights instruments and declarations might bear on the development of an international forensic mental health system before the last section concludes with a tentative prescription of a rights-consistent model that could potentially be adopted by the international community. Having identified a potential model, the article suggests that ICC member States might have a positive obligation grounded in the International Covenant on Civil and Political Rights (‘ICCPR’) and the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’) to implement a model of that nature using the amendment provisions of the ICC Statute.

II. An Overview of Fitness to Stand Trial and Insanity in the ICC Statute

A. Fitness to Stand Trial

The rationale that underpins the requirement that an accused be fit to stand trial serves to protect the institution of the criminal process as much as it seeks to protect the rights of the individual involved in the process. The trial and punishment of incompetents would bring the process into such serious disrepute that it would no longer have any legitimate claim to credibility. The New Zealand Court of Appeal has said that “[t]he requirement that an accused has the capacity to participate meaningfully in the trial rests on considerations such as trial fairness, humanity, and the need for public appreciation of and respect for the dignity of the criminal process.”7 The English authorities have long held it to be a ‘cardinal principle’ of criminal law that “no man can be tried for a crime unless he is in a mental condition to defend himself ”.8

If those dicta are correct (and this article does not suggest otherwise), it is somewhat perplexing to observe the Draft ICC Statute of the International Law Commission that suggested the ICC be permitted to continue proceedings against an accused who was unfit to stand trial. That notion was clearly rejected by the Diplomatic Conference. Therefore, from that unequivocal rejection of the trial of incompetents, it follows that the ICC Statute provides no power for the Trial Chamber to proceed where a defendant is unfit to stand trial.

The hesitation in adopting a competency requirement reflects a common prejudice that can operate to make jurists reluctant to exculpate perpetrators for mental or physical conditions because disproportionately vivid stereotypes portray mental illness as easily feigned.9 Tobin writes that the Pinochet case is an example “supporting” fears that psychiatric conditions can be utilised to escape long prison sentences.10 Professor Perlin critically examines the extent to which such cases can actually “support” such “fears” in considerably more detail.11 He attributes the proliferation of prejudices against the use of mental condition defences in courts to the “vividity heuristic”. In simple terms, the heuristic operates on the human mind to give much stronger weighting to highly memorable events and less weighting to unremarkable events. Perlin argues that mental health policy-making is disproportionately affected by exceptionally rare and memorable cases like John Hinckley’s shooting of Ronald Reagan.

The approach eventually adopted in the ICC Statute is that art 64(8)(a) requires the Trial Chamber to “satisfy” itself that an accused “understands the nature of the charges” before proceeding to trial. For the purpose of discharging that obligation, the Rules of Evidence and Procedure permit the Trial Chamber to obtain a medical, psychiatric or psychological examination but that can occur only after the defendant is transferred to The Hague. Rule 135(4) of the Rules of Procedure and Evidence of the International Criminal Court (‘RPE’) adds that if the Trial Chamber is “satisfied the accused is unfit to stand trial” it must adjourn the trial sine die.12 Periodic reviews are mandated to occur every 120 days. The only outcome apparently contemplated by the Rules is that the “accused becomes fit to stand trial” at which point the trial shall proceed.

A plain reading of the RPE does not seem to concede any possibility that an accused might never be found fit to stand trial. We know from domestic experience, however, that this will occur on occasion. More commonly, a defendant will be unfit to stand trial and unlikely to recover within a period that is consistent with the right to a trial without undue delay.

Sub-rule 4 in Rule 135, which sets out the procedure where the Trial Chamber is satisfied an accused is unfit to plead, was added in the negotiation phase after a proposal by Italy.13 The Italian proposal (not adopted in its exact terms) recommended a stay of proceedings be imposed with six-monthly reviews, but even this proposal did not appear to contemplate a stay of proceedings being made permanent.14

The serious implication of this gap is that where the cause of the defendant’s lack of competence is permanent and caused by a psychiatric or intellectual disability, the ICC has no means by which the defendant can be diverted into a functioning mental health system.

The extent to which there is an actual international community backing the criminal process is discussed later, but it is acknowledged that the ICC has no health system, no police force, nor any post-release probation services. All that exists are 16 dedicated cells within the Dutch prison at Scheveningen to serve the ICC’s pre-trial detention needs. While extensive provision has been made and agreements entered into for member States to enforce sentences of imprisonment in domestic prisons, there are no corresponding agreements for the provision of preventive psychiatric facilities. So it remains far from clear what will happen when the Trial Chamber is eventually faced with a defendant that a domestic criminal justice system would ordinarily detain in a forensic psychiatric facility.

Freckelton and Karagiannakis see some potential for a solution15 in reg 103(6) of the Regulations of the Court (‘the regulations’), which provides:16

Arrangements shall be made by the Registrar for the detention of mentally ill persons and for those who suffer from serious psychiatric conditions. By order of the Chamber, a detained person who is determined to be mentally ill or who suffers from a serious psychiatric condition may be transferred to a specialised institution for appropriate treatment.

An isolated reading of that provision holds out some prospect of a theoretical solution but a purposive reading of the regulation shows it takes significant colour from its surrounding provisions. The Regulations clearly relate to pre-trial detention in the Scheveningen facility. Therefore the provision can only operate while the trial process is underway. Once a trial is terminated because the defendant is semi-permanently unfit to stand trial or a defendant is acquitted under the mental condition defence, the pre- trial detention provisions cease to have effect. Any defendant in hospital or detained by the ICC must be released at that point.

In practice, a defendant who is unfit to stand trial will be arrested, surrendered to the ICC and transferred to the ICC’s pre-trial detention centre. Before transfer, the only very narrow escape route open to an arrestee is to assert that they are not the person named in the arrest warrant or to make a general challenge to either the Court’s jurisdiction or the admissibility of the case. Unfitness or insanity therefore plays no role in the decision to transfer. Once transferred to the ICC, the defendant will be subject to the practical reality that the ICC seems to insist on pre-trial detention as a matter of course.17

At any point prior to trial the Trial Chamber may order an examination under r 135 of the RPE. Amnesty International has argued that the accused should be subject to a mandatory medical examination in order to satisfy the Trial Chamber that the accused understands the nature of the charges.18

However, the order of a medical examination is merely an option for the trial Chamber.

In the event that the r 135 examination identifies a “serious psychiatric condition” reg 103(6) will then require transfer to a “specialised institution”.. If the r 135 examination is insufficient to satisfy the Court that the defendant is fit to stand trial, r 135(4) requires adjournment sine die with 120-day reviews of the defendant’s fitness.

At some point however, a process of seriatim reviews and sine die adjournments will violate the defendant’s right to be tried without undue delay.19 Eventually, the Trial Chamber will be unable to resist an application to terminate the proceedings. Support for that approach can be found in ICTY Prosecutor v Milosevic where the International Criminal Tribunal for the Former Yugoslavia (ICTY) accepted that it had the power to “set free” a defendant who is semi-permanently unfit to stand trial.20 Similarly, in ICTY Prosecutor v Strugar, the ICTY Trial Chamber accepted that “abandonment of the trial” was within the range of remedies available to a defendant who is unfit to stand trial.21 At that point, the defendant must be released irrespective of any need for treatment or any risk to others.. Any further detention by the ICC would be unlawful and trigger the enforceable right to compensation for an ICC defendant whose arrest or detention is unlawful.22 An even greater problem, as will be seen below, is that there may be no State willing or able to accept the transfer of a seriously mentally impaired person when proceedings are terminated.

A further issue the ICC Statute unsatisfactorily leaves to be dealt with another day is the precise scope of the rights that the “unfitness to plead” procedure will protect. The express rights of a defendant are set out in art 67 of the ICC Statute but the Trial Chamber may go beyond the enumerated rights and identify further “implied rights” as the ICTY did in Strugar.23 The rights “implied” in Strugar add requirements that the defendant must have the capacity: to plead; to understand the nature of the charges; to understand the details of the evidence; to instruct counsel; to understand the nature of the proceedings; and to testify.24 The fundamental nature of these rights was expressed in the trial of Josep Nahak before the East Timor Tribunal. The trial judge, Judge Rapoza, observed that:25

A defendant must be substantially able to understand and to exercise at trial the rights to which he is entitled under law. Without such a capacity on the part of a defendant, the rights themselves become meaningless.

If the ICC is to be universally accepted as an independent and fair tribunal then it must operate in a manner that is scrupulously fair to perpetrators and victims alike, notwithstanding that the ICC’s jurisdiction is reserved for the most inherently heinous of crimes. It follows that it is hard to fathom any logical reason why the ICC lawmakers enacted a trial process (replete with an insanity defence) without advance consideration of the need for psychiatric facilities. Tobin suggests a lack of disposition options for those acquitted by reason of insanity was a moot point given the impossible threshold for pleading insanity, but that point carries less weight in the context of fitness to stand trial, because the threshold is a more attainable outcome for a mentally or physically infirm accused.26

The rise in prevalence of the accused who are unfit to stand trial is a recognised modern phenomenon in domestic law and can be expected to manifest itself within international criminal law too. This reality means that the absence of alternative medical dispositions for ‘unfitness’ is more likely to threaten the credibility of international prosecutions than a lack of dispositions for ‘insane’ acquittees.27 It is important to note, however, that a lack of disposition options may cause judges to fail to give proper consideration to questions of both competence and capacity despite the obligations to do so that arise from arts 31(a) and 64(8).28 If the lack of options does have this effect then we can, in time, expect to see the ignominious spectacle of the ICC prosecuting incompetent defendants and, to a lesser extent, convicting defendants who lack the capacity for criminal responsibility.

B. Insanity

While fitness to plead involves an evaluation of the current mental condition of the defendant, the insanity defence conversely requires an ex post evaluation of the defendant’s mental condition at the time of the offending. The mental condition defence of insanity serves to ensure that someone who has no capacity to form a criminal intent owing to mental illness is not regarded or treated as criminal. The fundamental question for any Court remains a general evaluation of whether the accused “is so irrational as to be non-responsible”.29

The ICC Statute does not refer to insanity per se but provides that a person shall not be criminally responsible if, at the time of the conduct, the person suffers from a mental disease or defect that “destroys the capacity” to appreciate either the unlawfulness or nature of the conduct, or to control their conduct to conform to the requirements of the law.30

It is important to acknowledge at this point that the term ‘insane’ is undoubtedly outmoded, archaic and loaded with unnecessary stigma and pejorative connotations. While there are compelling arguments why the term should be relegated to history in the same way the term ‘lunatic’ has been, this article perseveres with the term despite its anachronistic nature because it still provides the simplest (or least clumsy) means of describing the degree of mental impairment that negates the capacity for legal responsibility.31

Another point that should be made clear is that the ICC Statute’s ‘insanity defence’ is more correctly conceptualised as an ‘exclusion of responsibility’ on the ground of mental incapacity to form a criminal intent, but to avoid excessive clumsiness I will refer to ‘insanity’ as a ‘defence’.

The insanity defence is not expressly provided for in either the ICTR32 or ICTY Statutes,33 but the existence of the defence was acknowledged by the ICTY in ICTY Prosecutor v Delalic albeit in a less stringent formulation than was eventually adopted in the ICC Statute.34 The Delalic formulation required that a mental disease had “impaired” the capacity of the accused to “appreciate the unlawfulness or the nature of his conduct” or to “control his conduct in order to conform to the requirements of the law”.35

The ICC Statute has rejected the ICTY threshold of “impairment” in favour of a more stringent requirement for “destruction” of mental capacity.36

Scaliotti points out that two drafts of the ‘insanity’ defence emerged in the negotiation phase of the drafting of the ICC Statute: one resulted in total exclusion of responsibility while the other entailed acknowledgement of the person as “legally insane”. At this point some delegations expressed a desire not to have any defence of mental incapacity.37 At the end of negotiations the ‘total exclusion of responsibility’ approach was adopted and was not the subject of any further debate during the formal negotiation stages.38 Only Syria raised concerns in the Working Group stages, belatedly and unsuccessfully arguing that the insanity defence should apply only in cases of “obvious and total insanity”.39 Thus it can be seen that, aside from the strong objections of Syria, there was remarkably broad acceptance of this provision once it was adopted in the draft Statute despite the differing legal values and traditions that operate domestically in respect of mental incapacity defences. With the very high threshold for insanity finally adopted, it seems counter-intuitive that the ICC Statute also requires unconditional acquittal (and release) in the event that the defence succeeds. This may represent the decision not to adopt any finding of “legal insanity” in art 31(1)(a) of the ICC Statute. Nevertheless, it can probably be assumed that ICC judges would be alarmed, to say the least, at the prospect of granting a full acquittal to a person whose mental condition had destroyed their capacity to conform their conduct to, for example, the war crimes provisions in the knowledge such a verdict would necessitate the defendant’s release.

Suggestions that the insanity threshold is deliberately unattainable and will rarely or never be met are therefore grounded in a certain degree of reality.40 That view can trace its provenance back to Hadfield’s Case when the great defence counsel, Erskine, declared a “total loss” of faculties to be an insurmountable hurdle for all but defendants who meet the archaic “wild beast” test for insanity.41 Certainly none of the cases tried before the ICTY or the ICTR has successfully raised the insanity defence, although the Celebici case raised the “special defence of diminished responsibility”.42 Nor have any of the four accused presently being tried before the ICC raised issues of fitness to stand trial or mental incapacity. Insanity as a full defence has only been successful in one international prosecution: United States v Peter Back.43

The defence will likely be more difficult to apply in the context of the ICC as a forum to try a relatively small number of international leaders, organisers and planners of genocide, crimes against humanity and serious war crimes.44 More problematic are suggestions that the peculiar gravity and atrocity of the crimes within the ICC’s jurisdiction somehow warrants treating alleged perpetrators as ‘less than human’ and justifies a denial of their human

weaknesses, particularly the reality that they may be the victims of serious mental or physical illness.45

Janssen’s justification for a high threshold argues in a more sophisticated way that the heinous crimes the ICC will prosecute warrant an extreme level of impairment before responsibility is excluded lest the credibility of the ICC suffer.46 Scaliotti adds that “it is hardly conceivable that a person may be put in charge of a strategic military or political role while legally insane”.47 That distinction may have comparative validity in the case of genocide because the requisite degree of systematic planning and implementation that could be assumed to be beyond the capacity of someone who could meet strict requirements of art 31(1)(a) of the Rome Statute. The validity of the justification wanes considerably, however, when it is extended to war crimes and crimes against humanity. In those cases it is far more conceivable that the perpetrators may themselves be survivors of inherently psychogenic horrors in countries that have, in some cases, experienced decades of intergenerational conflict and political upheaval. The 1995 World Mental Health Report identified war, conflict and ethnic strife as key factors contributing to vastly elevated levels of psychiatric disorders in developing nations.48 When looked at globally, the general tenor of arguments supporting a high insanity threshold all manifest some degree of the unfounded prejudice that those found not guilty by reason of insanity have somehow “duped the Court”.49 Tobin suggests this fear of ‘legal embarrassment’ has been a driving factor in the drafting of art 31(1)(a).

For all the criticisms of the international law-makers, it should be noted that they have made art 31(1)(a) of the Rome Statute a model of pluralism: the provision contains the obvious influence of s 4.01 of the United States Model Penal Code and the English M’Naghten Rules but is also consistent with §20 of the German Penal Code and the approach taken in Sharia systems.50 The contribution of the common law to art 31(1)(a) is the focus on the role of mental illness in causing an inability to recognise the significance of conduct while the influence of the civil law is seen in the alternate focus on inability to control behaviour.51

The focus of this article is not on the elements of the defence, but on the status of insanity as a full defence resulting in unqualified acquittal with no provision for a special verdict or involuntary commitment. In this respect, the ICC Statute harks back to a state of law that has not existed in England since the trial of James Hadfield in 1800.52

Modern domestic formulations of the insanity defence now almost invariably contain ‘special verdict’ provisions permitting domestic courts to authorise a regime of supervision, treatment and detention.53 If those domestic regimes comply with international human rights standards, they will provide a range of dispositions from which the court can adopt the least restrictive disposition that is proportionate to the risk posed by the person to themselves or others. By contrast, under the ICC Statute, a person who is excluded from criminal responsibility on the grounds of mental incapacity is in exactly the same position as a person who is excluded from criminal responsibility because they acted out of self-defence or necessity: they have been fully acquitted and are entitled to transfer out of the ICC’s seat in The Hague. It is not possible to conceptualise the omission of any ‘special verdict’ provision as a lacuna because the international lawmakers clearly raised questions about what would happen to the insane and unfit to plead.54 Therefore, it seems fair to conclude that the insanity defence will rarely be successful, but when it is successful the lack of a preventive psychiatric detention scheme will pose a dilemma for the ICC that has the potential to hinder its objectives.

III. Obstacles to an Effective International Forensic Psychiatric Service

The prevailing opinion among scholars is that some manner of psychiatric detention scheme ought to be developed whether it is within the jurisdiction of the ICC, the host State or a member State.. Those opinions, however, are little more than bylines in articles on broader subjects. This article hopes to identify some of the potential obstacles to developing an effective international forensic psychiatric service that meets the needs of its patients.

The provision of mental health services in multicultural societies has followed different models that reflect their specific histories of migration and ideologies of citizenship.55 This raises a conceptual barrier for the ICC because no particular citizenship ideologies or migration histories can be applied outside their societal contexts. Therefore, the experiences of multicultural societies in delivering mental health services are not readily transferable to an international framework. Developing a notion of what is an appropriate and effective delivery model for mental health care to ICC defendants will therefore require a keen awareness of the problems linked with the uncritical importation of psychiatric classification systems and therapy models. Cultural psychiatry tells us that these models are seldom amenable to transplantation into new social contexts.

As the ICC investigations so far have all focused on States embroiled in inter-generational ethno-racial conflict, the interplay between culture and forensic psychiatry will assume much greater currency in the context of the development of a forensic psychiatric scheme for the ICC. If the ICC does not wish to perpetuate the structural disadvantage that purely bio-medical psychiatry has tended to visit on ethnic and minority persons with mental disorder, then a progressive institution needs to be developed alongside enduring and acceptable social arrangements for those leaving the ICC jurisdiction (for third States) with ongoing mental health issues. Progressive delivery models in multicultural societies have also encouraged community control of the design and operation of mental health services. There are, however, real questions about whether the ICC has any ‘actual’ community to back its criminal justice process. Megret suggests this notion may be little more than a utopian aspiration of international lawmakers.56 Clearly, a credible claim to ‘community’ backing for delivery of forensic mental health services by the ICC is even harder to discern. There are equally serious problems with the proposition that the ICC serves the domestic communities on behalf of whose victims it investigates. Those domestic communities (to date) are all essentially war-torn states with dysfunctional infrastructures and no present ability to contribute to developing mental health services, particularly for those popularly seen to have escaped punishment for atrocious acts. This hurdle may prove to be nearly insurmountable because psychiatric services simply cannot operate in a vacuum.

These conceptual hurdles may each be manifestations of a more fundamental theoretical barrier in that the ICC is not a State and therefore does not possess the “parental power” of a domestic State that provides one of the two rationales justifying medical disposition of criminal defendants. The ICC only possesses a ‘police power’ that does not readily lend itself to the effective provision of therapeutic mental health services.

IV. Minimising Harm and Maximising Effectiveness in Psychiatric Care at the ICC

Domestic experiences of the dynamic nature of patient populations and the social context of psychiatry have made “careful consideration of culture in psychiatric diagnosis a clinical issue of compelling importance”.57 Any rights- compliant treatment model should require a multi-disciplinary approach marrying the work of the ICC and international lawmakers with input from mental health professionals and international, comparative and criminal law experts.58 A comprehensive evaluation of what ‘appropriate’ treatment requires should be the starting point for the ICC and its State parties in any reconsideration of its approach to competence and capacity.

What emerges from the studies of cross-cultural psychiatry so far is that it is not going to be appropriate to impose, on what is (so far) an exclusively African cohort of defendants, a psychiatric model based on American and Euro-centric classifications that presently reduce cultural considerations to ‘minor qualifications’ to what are wrongly presumed to be culture-free diagnostic categories.59 Any ‘appropriate’ model of psychiatric service delivery to the ICC should therefore be concerned with understanding the impact of social and cultural difference on mental illness and its treatment.60 The discipline of cross-cultural psychiatry tells us that the confrontation and intermixing of different cultural worlds that has always been part of human experience through travel and economic trade has now reached a new level of intensity that makes culture increasingly important for psychiatry.61 If an international forensic psychiatric service is to be developed or provided within existing domestic frameworks, then the limitations on the application of the bio-medical psychiatric model in a highly ethnicised demographic must be squarely acknowledged.

Without a tangible recognition that treatment of mental illness in ethnic populations is seriously impacted by understandings of social and cultural difference, the ICC risks being unnecessarily burdened by the hidden prejudices inherent in the regnant bio-medical practice models. International policy and lawmakers will need to confront the legacy of ‘colonialist blinkers’ that reduces the treatment of culture by the Diagnostic and Statistical Manual of Mental Disorders (‘DSM-IV’) to “minor considerations [in] what are presumed to be culture-free diagnostic categories”.62

The courts in domestic systems have been somewhat alert to this issue and the DSM-IV criteria have never been exclusively determinative of the existence of the ‘mental defect’ or ‘mental disorder’ in the sense that they remain legal terms of art. The international diagnostic tools have, however, remained key indicators of the presence of the qualifying conditions for the insanity defence. Diagnostic tools play a lesser role in the context of fitness to stand trial as the analysis there is directed at pure functionality or impairment rather than any pre-requisite status implied by the terms ‘defect’ or ‘disorder’ in the ICC Statute.

People are constituted, not by the physiology of their brains, but by their ways of life, values and beliefs. There is no ‘universal template’ for mental illness to which local or cultural variations can simply be added like “decorations”.63 Psychiatric care cannot be reduced to the “tweaking of neurotransmitters”.64 Culture must be utilised to identify and acknowledge ethnic characteristics and therefore the specialised needs and concerns of dynamic populations. In this respect, the social dimension of psychiatric practice comes to the fore. Nuanced understandings of relative power, community structures and social positions will serve an international psychiatric scheme far better than “colorful caricatures of patients’ ethnic heritages”.65 In short, confronting the deficiencies in its approach to defendants’ mental conditions will require the ICC to squarely commit to the fact of cultural pluralism or suffer the consequences.

The discipline of cross-cultural psychiatry has developed as a direct response to the assumption of the universal applicability of Western psychiatric diagnostic categories. Cultural psychiatrists operating in any ICC psychiatric detention scheme will need to integrate the implications of cross-cultural comparative studies of psychiatric disorders and traditional healing into better efforts to respond to the mental health needs of mentally impaired defendants.66 Those studies reflect the impact of globalisation on the socio-economic factors that determine the prevalence and course of mental disorder. A well-informed cultural perspective means that clinicians will be more aware of hidden assumptions and prejudices that limit current psychiatric theory and practice. In this way, cross-cultural psychiatry suggests that new approaches can be developed for more effective treatment of the diverse populations seen in psychiatric services the world over.67

Cultural psychiatry has developed alongside the discourse on therapeutic jurisprudence: an interdisciplinary approach examining the potential of the law to heal and rehabilitate. The authors who introduced the term sought to assess ways to maximise the therapeutic and minimise the counter-therapeutic consequences of the criminal prosecution process.68

Turning to the potentially counter-therapeutic aspects of the ICC process, Heller identifies a factor that could potentially affect all ICC acquittees, but which will have more serious ramifications for those who have been found insane or unfit to stand trial. Describing “the nightmare of being free with nowhere to go”, Heller identifies two very significant categories of prisoners who may be unable to return home or to find a third State willing to grant them asylum: soldiers and government officials on the losing side of internal conflicts.69 Three situations being investigated by the ICC meet those criteria: Uganda, the Democratic Republic of Congo and the Central African Republic. These categories of prisoners most often arise when referring States ask the Prosecutor to investigate crimes by rebels fighting the Government.70

Ideally, an acquittee will either be repatriated or find a third State to grant them asylum. In reality however, the experience of the ICTR is that some acquittees will have neither option and are currently “virtual prisoners” in UN safehouses at the ICTR’s seat in Arusha.71

Moreover, the Convention Relating to the Status of Refugees (‘the Refugee Convention’) permits a state to exclude a person from asylum if there are “serious reasons for considering” that the asylum seeker has committed a war crime or crime against humanity.72 Critically, the ‘serious reasons’ standard corresponds with the test required for laying charges in the ICC.73 That means that any State could potentially invoke art 1F(a) of the Refugee Convention to exclude an acquittee simply because of the fact that he was once charged by the ICC. The only restriction on réfoulement would be human rights protections such as the prohibition on exposure to the risk of torture.

Heller concludes that it will seem likely that a number of these acquittees will seek to remain in ICC safehouses in the Hague, but clearly this will not suffice where they require effective psychiatric treatment. The Headquarters Agreement between the ICC and the Netherlands makes no express provision for dealing with psychiatric dispositions from the ICC and it remains to be seen how satisfactory the status quo is from the perspective of the Netherlands government.

Certainly, from a therapeutic jurisprudence viewpoint, there are serious concerns about a prosecutorial process by which potentially seriously mentally ill defendants are transferred from their countries of domicile to the Hague where, even if acquitted or their proceedings are terminated, they may have to remain permanently in safe-houses with no provision for effective and culturally appropriate psychiatric treatment.

V. A Rights-Consistent Perspective for the Future

In their approach to sentenced prisoners, the ad hoc international criminal tribunals have developed a generally progressive approach to international detention standards because as UN institutions, it is difficult to ignore international human rights standards notwithstanding that the ad hoc Tribunals are not strictly bound by the international instruments.74 Some indication of what approach the ICC might take to international human rights standards can be seen in the ICTY Trial Chamber’s statement in ICTY Prosecutor v Erdemovic that dispositions “must always conform to the minimum principles of humanity and dignity which constitute the inspiration for the international standards” governing protection of the rights of detained persons.75

Whether the ICC will adopt the highest standards of protection for

detainees is not entirely clear as the text of the ICC Statute only partially incorporates explicit references to UN instruments in the statutes of the ad hoc tribunals. This may reflect a concern among the member States that many of them could offer only sub-optimal conditions of detention. It is fair to assume that member states that cannot meet the international standards for detention of convicted prisoners will struggle to reach such standards for detaining the mentally ill. The present approach (found in art 106 of the ICC Statute) is that the standard of treatment includes “widely accepted international Treaty standards” but does not incorporate UN General Assembly resolutions and general comments. This means that the UN General Assembly Resolution on “The Protection of Persons with Mental Illness and the Improvement of Mental Health Care”76 has no legal effect on the ICC per se but conditions of detention or treatment that are incompatible with the resolution may indicate violations of the international instruments.77

The most significant substantive difference between the UN General Assembly Resolution and the rights protected by the International Covenant on Civil and Political Rights (‘ICCPR’)78 and the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’)79 is that the resolution requires the “best” treatment for the mentally ill while the international instruments mandate only a lesser standard of “appropriate” care. Ideally, the ICC should adopt the higher standard and, in turn, lead other human rights courts to adopt more progressive interpretations of these international instruments.80 There is precedent for the ICC to take that course in the approach of the Inter-American Court of Human Rights (‘ IACHR’). The IACHR has recognised that persons with mental illness need the highest standards of care because they are particularly vulnerable to any health treatment and “such vulnerability is greater when they are admitted to mental health institutions” because of the “imbalance of power” and the “high degree of intimacy” inherent in the treatment of psychiatric illnesses.81

Moreover, the transfer of potentially mentally ill persons to The Hague in full knowledge that they may have no alternative but to remain indefinitely in a UN safe house if acquitted may be incompatible with the prohibition on inhuman and degrading treatment contained in art 7 of the ICCPR. More importantly in the present context, persons with mental illness also have the protections of art 15 of the UNCRPD. That article reaffirms the prohibition on cruel, inhuman or degrading treatment and further requires State parties to the UNCRPD to “take all effective legislative, administrative, judicial or other means to prevent” such treatment (emphasis added). On that basis it is arguable that States who are parties to both the ICC Statute and the UNCRPD may have a super-added obligation to utilise any effective measures to prevent any incompatibilities between the ICC process and the UNCRPD rights.

The most obvious way that a dual State party to both instruments could discharge their obligation under art 15(2) of the UNCRPD is by proposing an amendment to the ICC Statute under the provisions of art 121 of the ICC Statute. Further, when the majority vote is taken on the proposition, such dual State parties may have a positive obligation to vote in support of an amendment that removed an incompatibility with the ICCPR and UNCRPD.

The question then becomes what kind of amendment would remove the incompatibility this article identifies. From the analysis of what is required for an ‘effective’, ‘appropriate’ or ‘best’ treatment for mentally ill persons who have been acquitted or had their trials terminated, it is hard to resist the conclusion that treatment compatible with those standards may be unattainable from a safe house in the Hague. On that basis, this paper proposes that an amendment that would best remove the rights incompatibility would require the court to satisfy itself of fitness to stand trial and sanity at the time of the offending before transfer to the ICC.. That end could be achieved by having an expert from the ICC’s panel vet the mental condition of arrestees before transfer. The issue of competence and capacity of an accused would then be considered as issues going to the admissibility or jurisdiction to undertake prosecution.82 By assessing mental capacity prior to transfer to the ICC, the Court is able to mitigate the serious psychogenic consequences that can be expected if incompetence or incapacity issues arise only after repatriation and asylum have become practical impossibilities. This model would also accord with the laudable principles of therapeutic jurisprudence that urge legislators to consider tailoring institutional processes in a way that causes the least harm to those who must involuntarily participate in those processes.

Nevertheless, the model outlined above will not suffice where the

initial enquiry fails to identify an incompetence or incapacity. Therefore it is imperative that the ICC develop a sophisticated, culturally appropriate setting for psychiatric treatment of seriously mentally ill defendants who are not identified as such before surrender and transfer.

VI. Conclusion

If the insanity defence and the unfitness to stand trial procedure are construed as acknowledgements that “the prosecution process and criminal jurisdiction are inappropriate to deal with this class of defendant”83 then it makes sense for the ICC to seek to avoid the serious risk of irrevocable downstream harm that can ensue when a defendant of this class is surrendered to the ICC.

The ICC Statute’s present disposal provisions in cases of unfitness to stand trial or mental incapacity create real potential for significant harm at the point where a person with mental or intellectual disabilities is transferred from their place of domicile to the seat of the ICC. At that point the ICC becomes responsible for treatment obligations under the ICCPR that it may be unable to meet. On that basis, it is argued that the right not to be subjected to cruel, inhuman or degrading treatment requires member States of the ICC, who are also signatories to the UNCRPD, to recommend and promote amendments to the ICC Statute designed to ensure that no person is transferred from their place of domicile under an ICC warrant where there are grounds to believe that person may have a disability affecting their fitness to stand trial or mental capacity for criminal responsibility.

Adopting a ‘we’ll cross that bridge when we come to it’ approach is not only risky and irresponsible, but in time, it may seriously undermine the Court’s credibility and set back the important advances that international human rights law has brought to the treatment of the mentally ill. Certainly, it seems intractably difficult for the Court to achieve its stated aim of achieving “peace with justice and justice with peace”, especially in cases where those brought before the Court are so seriously mentally ill or intellectually impaired that they must be diverted from a punitive pathway to a therapeutic one.84

It is likely that the process envisaged by the ICC Statute will violate international human rights standards when it eventually has to deal with a defendant who is permanently unfit to stand trial or is acquitted by reason of mental incapacity, particularly if those defendants pose a risk to themselves or others. The experience of the ICTR illustrates the unacceptable plights of ICC acquittees who can neither return home nor find a third State willing to grant them asylum. Those consequences are likely to be all the more traumatic on acquittees who are seriously mentally ill. In that respect, the failure of the ICC Statute to provide for safe medical and non-medical dispositions for the insane and the unfit to stand trial goes beyond a general disrespect for the doctrines of insanity and unfitness to plead and represents a regressive approach to persons with disabilities that permeates the highest levels of international law-making.

However, the regressive approach of the ICC Statute may have met its match in the powerful rights affirming provisions of the UNCRPD. As noted, it is arguable that the UNCRPD imposes a positive obligation on its State parties to vote in support of an amendment removing an incompatibility with the ICCPR and UNCRPD. In any event, more sophistication is required particularly in the approach to fitness to stand trial. Certainly, some international forensic psychiatric facility should be developed to accommodate those who are unfit to stand trial but still require psychiatric care. Such a scheme should be heavily informed by the principles of cross- cultural psychiatry.

The development of a framework for medical disposition is, however, a ‘back-end’ mechanism that should operate as a last resort. The first line of protection for those lacking competence or capacity should be an amendment to the admissibility provisions in arts 17 and 18 of the Rome Statute in order to require the ICC to be satisfied as to the competence and capacity of a prospective defendant before that defendant is transferred out of their country of origin. If the ICC cannot satisfy itself as to the competence and capacity of the prospective defendant, then the defendant should remain subject to their domestic mental health laws where applicable. The best protection of the rights of persons with disabilities is achieved by treating competence and capacity as matters going to admissibility considered at the front end of the ICC prosecution process and before the prospective defendant becomes semi- permanently trapped in The Hague with little hope of repatriation or asylum. The possibility of States party to UNCRPD accepting a positive obligation to lead rights-consistent legislative reform of the insanity and unfitness to stand trial provisions of the ICC Statute therefore holds out a tantalising opportunity for the ICC to become an institutional standard bearer for the progressive interpretation of international criminal justice.

* LLB (Hons) student at the University of Auckland and winner of the 2011 Desmond Lewis Memorial Prize in International Law. The author wishes to acknowledge the comments of Treasa Dunworth and Kris Gledhill, Senior Lecturers in the Faculty of Law at the University of Auckland on ideas expressed in writing this paper. The comments made by an anonymous reviewer were also usefully received. All opinions expressed and any errors made in expressing them remain entirely the author’s own.
1 Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) (“ICC Statute”).
2 Peter Krug “The Emerging Mental Incapacity Defense in International Criminal Law: SomeInitial Questions of Implementation” (2000) 94 Am J Intl L 317 at 335.
3 William Schabas Genocide in International Law (CUP, Cambridge, 2000) at 344.
4 Ian Freckelton and Magda Karagiannakis “Fitness to Stand Trial under International Criminal Law”, paper on file with author.
5 Robert Cryer, et al An Introduction to International Criminal Law and Procedure (CUP, Cambridge, 2010) at 406.
6 Freckelton and Karaggiannakis, above n 4, at 4; John Tobin “The Psychiatric Defence and International Criminal Law” (2007) 23 Medicine, Conflict and Survival 111 at 122.
7 R v Cumming [2005] NZCA 260; [2006] 2 NZLR 597 (CA) at [37].
8 R v Dashwood [1943] KB 1 at 4.
9 Fitness to stand trial can be imperilled by mental or physical impairments: R v Sexton [2000] SASC 276; (2000) 77 SASR 405 (SA CA) at 416. While the scope of this article is directed at mental impairment, much of what is said on the topic can therefore be applied mutatis mutandis to physical impairment.
10 Tobin, above n 6, at 122.
11 Michael Perlin The Hidden Prejudice: Mental Health on Trial (American PsychologicalAssociation, Washington DC, 2000) at 10.
12 Rules of Procedure and Evidence of the International Criminal Court (adopted 9 September 2002, entered into force 9 September 2002).
13 Prepatory Commission “Proposal of Italy on Evidence, Investigation and the Rights of the Accused” PCNICC/1999/WGRPE/DP.18, r 6.13 (26 July 1999).
14 Ibid at D1
15 Freckelton and Karagiannakis, above n 4, at 6.
16 Regulations of the Court (adopted 14 November 2007, entered in to force 18 December 2007).
17 See Alexander Zahar and Goran Sluiter International Criminal Law (OUP, Oxford, 2008) at 322.
18 Amnesty International The International Criminal Court: Drafting Effective Rules of Procedure and Evidence Concerning Trial, Appeal and Review (Amnesty International, London, 1999), Memorandum for Participants at the Siracusa Inter-Sessional Meeting, AI Index IOR 40/09/99.
19 ICC Statute, art 67(1)(c).
20 ICTY Prosecutor v Milosevic IT-02-54-AR73.7 Appeals Chamber, The Hague, 1 November 2004 at [13] (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel).
21 ICTY Prosecutor v Strugar IT-01-42-T Trial Chamber, The Hague, 26 May 2004 (Decision re the Defence Motion to Terminate Proceedings).
22 See ICC Statute, art 85(1); see also Krug, above n 2 at 334.
23 ICTY Prosecutor v Strugar, above n 21.
24 For a domestic exposition of the rights see R v Friend [1997] 2 All ER 1011 at 1018.

25 Deputy General Prosecutor for Serious Crimes v Nahak O1A/2004 Dili District Court, Special Panels for Serious Crimes, 1 March 2005 at [38] cited in Freckelton and Karagiannakis, above n 4.
26 Tobin, above n 6, at 122.
27 Freckelton and Karagiannakis, above n 4, at 4.
28 Krug, above n 2, at 334 cited in Freckelton and Karagiannakis, ibid, at fn 19.
29 Michael Moore Law and Psychiatry – Rethinking the Relationship (Cambridge University Press, Cambridge, 1984) at 245.
30 ICC Statute, art 31(1)(a).
31 Black’s Law Dictionary (6th ed, 1990) 794.
32 Statute of the International Criminal Tribunal for Rwanda SC Res 955, S/Res/955 (1994).
33 Statute of the International Criminal Tribunal for the Former Yugoslavia SC Res 827, S/Res/827 (1993).
34 ICTY Prosecutor v Delalic (Celebici case) IT-96-21-T, Trial Chamber, The Hague, 16 November 1998 (Judgment).
35 Geert-Jan Knoops Defenses in Contemporary International Criminal Law (2nd ed, Nijhoff, Leiden, 2008) at 141-142.
36 Ibid.
37 Massimo Scaliotti “Defences before the International Criminal Court” (2002) 2 Intl Crim L Rev 1 at 22 fn 123 and at 26.
38 Ibid at 24.
39 Ibid at 25.
40 In domestic jurisdictions applying a M’Naghten type formulation it is estimated the defence is used in around 1% of serious cases and is successful in about one quarter of those cases: see Perlin, above n 11, at 288.
41 Richard Moran “The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800)” (1985) 19 Law & Society Rev 487.
42 Celebici Case, above n 34.
43 United States v Peter Back (1947) LRTWC 60 (US Military Commission).
44 William Schabas “General Principles of Criminal Law in the International Criminal Court Statute (Part III)” (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 400 at 423 [“Schabas “General Principles””].
45 Tobin, above n 6 at 112.
46 Sander Janssen “Mental Condition Defences in Supranational Criminal Law” (2004) 4 Int Crim L Rev 83 at 85.
47 Scaliotti, above n 37, at 26.
48 Robert Desjarlais, Leon Eisenberg, Byron Good and Arthur Kleinman World Mental Health: problems and Priorities in Low-Income Countries (OUP, New York, 1995) at 148.
49 Tobin, above n 6, at 112.
50 William Schabas An Introduction to the International Criminal Court (3rd ed, Cambridge University Press, Cambridge, 2007) at 227; Janssen, above n 46, at 84 fn 4.
51 Daniel M’Naghtens Case [1843] EngR 875; (1843) 10 Cl & Fin 200, 8 ER 718 (HL); Jean Pradel Droit Penal Compare (Dalloz, Paris, 1995) at 293 - 294 cited by William Schabas in Schabas “General Principles”, above n 44, at 423.
52 Moran, above n 41.
53 See for example Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK); Criminal Procedure (Mentally Impaired Persons) Act 2002 (NZ).
54 Report of the Preparatory Committee on the Establishment of an International Criminal Court during the period 25 March - 12 April 1996 UN Doc A/AC.249/1 at 514 (1996).
55 Laurence Kirmayer and Harry Minas “The future of cultural psychiatry: an international perspective” (2000) 45 Can J Psychiatry 438 at 440.
56 Frederic Megret “In Defense of Hybridity: Towards a Representational Theory of International Criminal Justice” (2005) 38 Cornell Intl LJ 725 at 726.
57 Juan Mezzich, Laurence Kirmayer, Arthur Kleinman and others “The place of culture in DSM-IV” (1999) 187 J Nerv Ment Dis 457 at 460.
58 Krug, above n 2, at 335.
59 Mezzich, Kirmayer, Kleinman and others, above n 57, at 460.
60 Kirmayer and Minas, above n 55, at 438.
61 Ibid at 440.
62 Mezzich, Kirmayer, Kleinman and others, above n 57, at 460.
63 Kirmayer and Minas, above n 55, at 439.
64 Ibid at 444.
65 Ibid at 440.
66 Ibid at 438.
67 Ibid at 440.
68 David Wexler and Bruce Winick “Therapeutic Jurisprudence” in Richard Ries, David Fiellin, Shannon Miller and Richard Saitz (eds) Principles of Addiction Medicine (Wolters Kluwer, Philadelphia, 2009).
69 Kevin Heller “What happens to the acquitted?” (2008) 21 Leiden Journal of International Law 663 at 664.
70 Ibid at 675.
71 Ibid at 663.
72 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954), art 1F(a).
73 Heller, above n 69, at fn 77.
74 Zahar and Sluiter, above n 17, at 319.
75 ICTY Prosecutor v Erdemovic Trial Chamber, The Hague, 29 November 1996 at [74] (Sentencing Judgment) cited in Zahar and Sluiter, ibid at 319.
76 The Protection of Persons with Mental Illness and the Improvement of Mental Health Care GA Res 46/119, A/RES/46/119 (1992).
77 Nigel Rodley The Treatment of Prisoners under International Law (3rd ed, OUP, New York, 2009) at 416.
78 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976).
79 United Nations Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008).
80 Zahar and Sluiter, above n 17, at 322.
81 Ximenes-Lopes v Brazil I/A Court HR, 4 July 2006, Series C No, 149 at [129] cited in Rodley, above n 77.
82 I acknowledge useful comments by an anonymous reviewer on this point.
83 Ronald Mackay Mental Condition Defences in the Criminal Law (Clarendon Press, Oxford, 1995) at 81.
84 Mahmoud Cherif Bassiouni “Preface” in Otto Triffterer Commentary on the Rome Statute of the International Criminal Court (Nomos Verlag, Baden-Baden, 1999).