Neuroscientific Evidence in Trials of Young Perpetrators Involved in Armed Conflict and Mass Atrocity

Abstract

ABSTRACT In many jurisdictions, the criminal responsibility of adults is demarcated from pre-adults (adolescents, pre-adolescents, and children) based on a threshold criterion – one is either an adult or a pre-adult, and different levels of responsibility are accordingly inferred and imputed. But in a world where complexity is growingly acknowledged, and by that token, nuance and variety, there has been a predilection for the spectrum over the binary – or the scalar over the threshold. In the context of juvenile justice, this has manifested in a move away from the binary demarcation between adults and pre-adults through a growing faith in brain developmental science, which in turn, focuses on the developmental stages of the prefrontal cortex (PFC). In pre-adults, especially in adolescents, immature PFCs account for impulsiveness, volatility, and influence by peers, which in turn impact judgment and decision-making. These findings have been introduced in a few state and federal US courts trying juveniles, and recently, in the ICC trial and appeal of Dominic Ongwen, a child soldier. This paper assesses the nature, scope, and treatment of neuroscientific evidence, and lays down guidelines about its anticipated application in international trials involving vulnerable perpetrators such as juveniles.