ICC Responds to Questions About the Confirmation of Charges Hearing for Fugitive Joseph Kony

The Hague – Joseph Kony, a Ugandan national born in September 1961, is a member of the Acholi ethnic group.

He is the alleged founder and leader of the Lord’s Resistance Army (LRA), a rebel group that surfaced in 1987 in northern Uganda, predominantly within the Acholi community.

Is Kony in ICC custody?

No, Kony continues to evade capture nearly twenty years after an arrest warrant was issued against him.

Since the International Criminal Court (ICC) issued its arrest warrant in 2005, it has consistently sought the cooperation of national authorities to capture and transfer Kony to the Court.

What are the charges against Kony?

Kony faces 36 counts of war crimes and crimes against humanity, which he allegedly carried out from at least July 1, 2002, to December 31, 2005, in northern Uganda.

The charges against Kony include collaborating with fellow LRA members to carry out acts such as:

Intentionally attacking civilians; murdering and attempting to murder; torturing, mistreating, and inhumanely treating civilians; enslaving abducted individuals; plundering and destroying property; and persecuting individuals based on their political views, age, and gender (counts 1-14).

These alleged offenses occurred during the LRA’s assaults on the Lwala Girls School on or around June 24, 2003, and subsequent attacks on internally displaced persons’ (IDP) camps: (i) Pajule IDP camp on or around October 10, 2003; (ii) Abia IDP camp on or around February 4, 2004; (iii) Barlonyo IDP camp on or around February 21, 2004; (iv) Odek IDP camp on or about April 29, 2004; (v) Pagak IDP camp on or around May 16, 2004; (vi) Lukondi IDP camp on or around May 19, 2004; and (vii) Abok IDP camp on or around June 8, 2004.

The Prosecution also argues that Kony committed similar offenses against many women and children, who were allegedly forcibly incorporated into the LRA between July 1, 2002, and December 31, 2005, including: enslaving women and children; subjecting women and girls to sexual slavery; coercing women into marriage; raping women and girls; enforcing forced pregnancies; and torturing or severely mistreating women and children.

This conduct also constitutes persecution based on gender and/or age.

Furthermore, the Prosecution charges Kony with forcibly conscripting children into the LRA and utilizing them in combat (counts 15-29).

Lastly, Kony is accused of personally committing crimes of enslavement, forced marriage, torture, and sexual slavery involving a young woman between July 2003 and September 2004 in northern Uganda and/or Sudan (counts 30-36).

The Prosecution’s Document Containing the Charges against Kony is available in English (https://apo-opa.co/3WpnVvL) and Acholi (https://apo-opa.co/3Ceep7W) on the International Criminal Court’s website www.ICC-CPI.int.

What is the latest development at the ICC regarding the Kony case?

On December 12, 2024, ICC judges scheduled the confirmation of charges hearing to commence on September 9, 2025, in Kony’s absence.

The Chamber established this timetable to ensure sufficient time is given for: (i) the Prosecution to adhere to directives for evidence disclosure and resubmitting the document containing the charges; and (ii) the Defence to adequately prepare for the confirmation hearing.

On March 4, 2024, ICC judges approved the Prosecutor’s request (https://apo-opa.co/40jWQeH) to conduct a confirmation of charges hearing regarding Kony in his absence if he fails to appear, with that hearing set for October 15, 2024.

On September 12, 2024, Pre-Trial Chamber III postponed (https://apo-opa.co/4g5g3Xt) the confirmation hearing after considering the views of the Defence, Prosecution, and Office of the Public Counsel for Victims.

On October 29, 2024, Pre-Trial Chamber III ruled (https://apo-opa.co/42dGdUA) that all criteria necessary to proceed with a confirmation of charges hearing in Kony’s absence had been met.

The Chamber also directed the Registry to complete notification and outreach efforts regarding the new confirmation hearing date within 30 days starting January 6, 2025, and to report on these efforts to the Chamber no later than February 14, 2025.

What justification did the ICC judges provide for holding a confirmation of charges hearing in Kony’s absence?

The Rome Statute, which establishes the ICC, allows for hearings on the confirmation of charges in a suspect’s absence under specific conditions. In this case, the judges determined that:

  1. Kony is untraceable;
  2. All reasonable measures have been taken to ensure his presence and inform him of the charges and date of the confirmation hearing;
  3. There is valid reason to conduct the hearing without him present.

If the charges are confirmed, the trial can only proceed with the accused present before the Trial Chamber.

Conducting proceedings in absentia may expedite the case against a suspect who cannot be located, though as previously noted by the Chamber, this approach is reserved for exceptional circumstances.

What is a confirmation of charges hearing?

The confirmation of charges hearing is NOT A TRIAL.

This serves as a public preliminary examination where judges assess and decide whether to confirm any or all charges presented by the Prosecutor against Kony.

If any charges are confirmed, the case may advance to trial before different ICC judges, but only with the accused in attendance.

Typically, the Judges will hear oral arguments, beginning with the Prosecution, followed by the Legal Representatives of the Victims and then the Defence.

The hearing is intended to commence on September 9, 2025, and will generally span several days.

As the hearing date nears, the Judges will issue an order outlining the procedure for the hearing, its anticipated duration, and the format of witness appearances, either in person or via video link.

What decisions can the ICC Chamber make following the confirmation hearing?

After the confirmation of charges hearing, the Pre-Trial Chamber will issue its written decision within 60 days. The judges may:

  • Confirm all or some of the charges against Kony, after which the trial would still require Kony’s presence since there is no trial in absentia under the ICC Rome Statute;
  • Deny all charges and terminate proceedings against Kony if the judges find the evidence insufficient or weak for trial;
  • Postpone the hearing, requiring the Prosecutor to supply additional evidence, conduct further investigations, or amend any charges based on different evidence than originally presented.

If Kony’s legal team or the ICC Prosecutor contests the Pre-Trial Chamber’s decision and seeks to appeal, permission must be requested from the Chamber.

If granted, the appeal will be heard by a different Chamber – the Appeals Chamber, comprising five other judges.

How will Kony be defended before the ICC, and who will finance his defense?

All ICC suspects, including Kony, are presumed innocent until proven guilty and have the right to legal representation when appearing before the Court.

If the suspect does not attend the Court, the judges may appoint a lawyer to represent him.

For Kony, Pre-Trial Chamber III has designated (https://apo-opa.co/4ji5VNM) Peter Haynes, a seasoned defense attorney, to act as Kony’s counsel and protect his rights and interests throughout the confirmation of charges without his presence.

Haynes was officially appointed (https://apo-opa.co/3CdnWMs) as Kony’s counsel on June 21, 2024.

This appointment followed a public call for expressions of interest (https://apo-opa.co/40kQw6P), an evaluation of applicants by a panel, and a conclusive recommendation (https://apo-opa.co/4jmbbQr) from the ICC Registry compiled in a report (https://apo-opa.co/4jkrMEg) to ICC judges.

On August 27, 2024, Kate Gibson was also appointed as associate counsel for Kony.

If Kony is found to be indigent, the Court will finance his defense in line with its legal aid policies.

What is the role of the defense in the confirmation of charges hearing?

Kony is a suspect in the proceedings and is presumed innocent until demonstrated otherwise under applicable law.

The confirmation of charges hearing is not a trial.

Its function is for the Pre-Trial Chamber to determine whether the Prosecutor has provided sufficient evidence to justify a trial.

Judges may also dismiss the charges.

Throughout the confirmation hearing, the Defence will examine the evidence submitted by the Prosecutor and challenge any jurisdiction or admissibility concerns.

The Prosecution must demonstrate to the Pre-Trial Chamber that there are significant grounds to believe that the charges against the defendant justify proceeding to trial.

If the charges are confirmed, the presumption of innocence persists, and the Prosecution must prove the accused’s guilt beyond a reasonable doubt for the Trial Chamber to establish guilt.

Otherwise, the judges would exonerate Kony.

Where will the confirmation hearing take place: at ICC headquarters in The Hague or in Uganda?

Trials are typically held at the Court’s base in The Hague unless judges decide to hold them in another location.

This matter has been deliberated in this case, with both the Prosecution (https://apo-opa.co/4jns2lS) and Defense (https://apo-opa.co/3PDG7xR) providing feedback. However, the Chamber has not yet reached a conclusion on this issue.

What is the role of victims at the confirmation stage?

Victims are allowed to participate in the ICC proceedings, expressing their views and concerns at all procedural phases, including during the confirmation of charges hearing.

This participation occurs through legal representatives appointed by the judges.

Victims may submit applications to the Chamber under specific conditions established by the judges.

Can victims participate in the confirmation of charges in absentia hearing?

Yes. In the Kony case, the Chamber has allowed victims to participate in the confirmation of charges hearing while Kony is not present.

The Chamber further defined the process for victim participation, which includes indirect victims like family members of direct victims or those who attempted to prevent the crimes against them. They can apply for participation if they suffered personal harm as a result of the alleged offenses.

How can victims apply for participation in the proceedings?

Victims in the Kony case who have not yet sought to participate in any ICC proceedings related to the Uganda situation can fill out an application form and submit it to the Victims Participation and Reparations Section.

Depending on their situation, victims can choose between individual or group application forms.

Upon receiving the applications, the VPRS will verify that all required sections of the forms are complete, and that necessary documents are included.

Additionally, the VPRS will conduct a preliminary legal assessment to determine if the claimed crime(s) and damages fall under the scope of the Kony case.

Victims who are already involved in the Ongwen proceedings and wish to join the Kony proceedings do not need to fill out a new application. They should simply inform their counsel in the Ongwen case of their intention, and their additional details will be transferred to the Kony proceedings.

Between 2007 and 2009, ICC judges authorized 41 victims to take part in the Kony et al. case, which originally included multiple suspects; however, the current case now focuses solely on Kony, as detailed in the Document Containing the Charges (DCC).

Paolina Massidda, Principal Counsel, along with Sarah Pellet, Counsel from the Office of Public Counsel for Victims (OPCV), represent these victims. To ensure fair treatment, all applications will be assessed using the same criteria defined in the updated DCC to be submitted by April 17, 2025.

Consequently, the applications of the 41 previous victims will be re-evaluated to ensure compliance with the updated DCC’s criteria, and they will not be required to file new applications.

Who are the victims eligible to participate in the Kony case?

Individuals and indirect victims who experienced harm due to the alleged crimes committed by Kony can request participation in the case.

The forthcoming DCC will be revised by April 17, 2025, and will form the basis for evaluating all applications related to the Kony case.

Based on the current DCC, direct victims include:

1. Individuals who suffered harm due to offenses committed during the assaults on the seven IDP camps and Lwala Girls School:

  • Lwala Girls School – around June 24, 2003;
  • Pajule and Lapul IDP Camp – around October 10, 2003;
  • Abia IDP Camp – around February 4, 2004;
  • Barlonyo IDP Camp – around February 21, 2004;
  • Odek IDP Camp – around April 29, 2004;
  • Pagak IDP Camp – around May 16, 2004;
  • Lukodi IDP Camp – around May 19, 2004;
  • Abok IDP Camp – around June 8, 2004.

2. Organizations or entities that suffered direct property damage related to religious, educational, artistic, scientific, humanitarian endeavors, or their historical sites, hospitals, and similar humanitarian properties during the aforementioned attacks.

3. Children under 18 (including those under 15 and those born in captivity) who were abducted and integrated into the LRA in northern Uganda, including Acholi, Lango, and Teso regions, between July 1, 2002, and December 31, 2005.

4. Female victims who were abducted and assimilated into the LRA in northern Uganda, including Acholi, Lango, and Teso regions, during the specified period.

5. A female victim of crimes directly committed by Mr. Kony between July 2003 and September 2004 in northern Uganda and later Sudan.

Indirect victims include:

Individuals claiming personal harm resulting from crimes against a direct victim. This may include (1) family members of direct victims; (2) anyone who sought to prevent crimes; (3) those who were harmed while assisting direct victims; and (4) any individuals who suffered personal harm due to the crimes.

The Registry is initiating a series of informative sessions across relevant areas in Uganda. If you are interested in this initiative, or need assistance with the application process, please contact the VPRS via email at VPRS.Information@icc-cpi.int or by phone (or WhatsApp) at +256771406331 or +256772532830 (VPRS staff in the Uganda country office).

What is the role of the legal representatives of victims in the confirmation of charges hearing?

A legal representative for victims is a lawyer representing the interests of the victims during the proceedings.

During the confirmation of charges hearing, only the common legal representatives appointed by the judges are allowed to represent the victims and appear in court to monitor the proceedings and communicate victims’ perspectives and concerns regarding the alleged charges and the evidence from both sides.

After consulting with victims, they can advocate for any factual or legal matters that impact the victims’ interests during the confirmation hearing.

Who are the victims’ representatives at the confirmation of charges stage in the Kony case?

In the Kony case, the Chamber has appointed Manoba, Cox, Bradfield, Massidda, and Pellet from the OPCV to form a singular team serving as common legal representatives for any authorized victims in this case.

Their responsibilities will initiate once the judges issue a ruling permitting victims to participate in the Kony case proceedings following the submission of the new DCC.

In the interim, the judges have decided that the OPCV will represent the collective interests of potential victims.

Are victims of Kony’s alleged crimes entitled to seek reparations at the ICC?

Victims have the right to pursue reparations (and to participate in related proceedings) concerning any case falling under the ICC’s jurisdiction, including the Kony case, if they experienced personal harm from the alleged crimes committed by the accused.

Reparations can only be granted following the confirmation of charges and if the accused is convicted after a trial – not simply after the confirmation of charges hearing concludes.

In the Kony case, the trial phase can only begin if the charges are confirmed and Mr. Kony is detained and presented in court. The trial cannot proceed until Mr. Kony is in custody.

Is Joseph Kony’s case connected to that of Dominic Ongwen?

No. On February 6, 2015, the judges at the ICC separated the proceedings against Dominic Ongwen from the case of The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen.

With two suspects confirmed dead and the others remaining fugitives, the judges found it necessary to sever the case to avoid delaying the proceedings against Ongwen, who was already in the Court’s custody.

Consequently, these cases are now handled as distinct and treated in separate proceedings overseen by different ICC judges.

The trial in the Ongwen case commenced on December 6, 2016, and concluded in March 2020 following closing statements from the parties and participants.

On February 4, 2021, Trial Chamber IX found Ongwen guilty of 61 crimes, including both crimes against humanity and war crimes, committed in Northern Uganda from July 1, 2002, to December 31, 2005.

On May 6, 2021, Trial Chamber IX sentenced Ongwen to 25 years in prison, and he was moved to Norway to serve his sentence.

A phase addressing victim reparations in the Ongwen case is currently underway. Trial Chamber IX issued an Order on Reparations to victims on February 28, 2024.

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