Questions and answers on the confirmation of charges hearing against Joseph Kony at the International Criminal Court

KAMPALA, January 19, 2025 —The International Criminal Court [ICC] is in the process of confirmation of charges hearing against war Joseph Kony, the leader of the Lord’s Resistance Army [LRA] who is suspected of 36 counts of war crimes and crimes against humanity, allegedly committed between at least July 1, 2002, until December 31, 2005, in Northern Uganda. Below are questions and answers on the confirmation of charges hearing against Joseph Kony at the International Criminal Court.

1. WHO IS JOSEPH KONY?

Joseph Kony was born in September 1961 in Uganda. He is of Acholi ethnicity and a national of Uganda. He is the alleged founder and leader of the LRA, a Ugandan rebel group that originated in 1987 in northern Uganda among ethnic Acholi communities.

2. IS MR KONY IN THE ICC CUSTODY?

No, the suspect, Joseph Kony, is still at large, 19 years after his arrest was ordered.

Since the issuance of the arrest warrant against him in 2005, the ICC has been seeking the cooperation of all relevant national authorities to arrest and surrender him to the Court.

3. WHAT ARE THE CHARGES AGAINST JOSEPH KONY? 

Joseph Kony is suspected of 36 counts of war crimes and crimes against humanity, allegedly committed between at least July 1, 2002 until December 31, 2005, in Northern Uganda.

The allegations against Kony concern having a common plan together with other LRA members to commit jointly and through others the following conduct, as well as ordering and inducing LRA fighters to:

Intentionally directing attacks against the civilian population as such; murdering civilians and attempting to do so; torturing, and/or severely abusing and mistreating civilians and treating them cruelly; enslaving abducted civilians; pillaging and destroying property; and persecuting civilians on political grounds as well as based on their age and gender [counts 1-14]. These alleged crimes were committed in the context of the LRA attacks on the Lwala Girls School on or about June 24, 2003 and the following attacks on internally displaced persons’ [IDP] camps: [i] Pajule IDP camp on or about  October 10, 2003; [ii] Abia IDP camp on or about February 4, 2004; [iii] Barlonyo IDP camp on or about February 21, 2004; [iv] Odek IDP camp on or about  April 29, 2004; [v] Pagak IDP camp on or about 16 May 2004; (vi) Lukondi IDP camp on or about May 19, 2004; and [vii] Abok IDP camp on or about June 8, 2004.

The Prosecution also charges Kony with having perpetrated in the same manner crimes against hundreds of women and against hundreds of children allegedly integrated into the LRA, in the period of July 1, 2002 until December 31, 2005 in northern Uganda: enslaving the women and children; sexual slavery of and forcing women and girls into marriage; raping women and girls; forced pregnancy, torturing and/or severely abusing and mistreating and cruelly treating women and children. This conduct is also charged as together amounting to persecution on the grounds of gender and/or age. In addition, the Prosecution charges the conscription of children into the LRA, and using them to participate actively in hostilities [counts 15-29].

Finally, the Prosecution charges Kony with directly, that is himself, perpetrating the crimes of enslavement, forced marriage, torture, and sexual slavery in relation to a young woman in the period from July 2003 until September 2004 in Northern Uganda and/or Sudan [counts 30- 36].

The Prosecution’s Document Containing the Charges against Kony is available in English and Acholi on the website of the International Criminal Court.

4. WHAT IS THE LATEST DEVELOPMENT AT THE ICC IN RELATION TO THE KONY CASE?

On December 12, 2024, ICC judges scheduled the confirmation of charges hearing to start on 9 September 2025, in the absence of the suspect.

The Chamber set this date in light of its duty to ensure that sufficient time is provided to: [i] the Prosecution, to properly implement the instructions given in separate decisions regarding the disclosure of evidence and the resubmission of the document containing the charges; and [ii] the Defence, to adequately prepare for the confirmation of charges hearing.

On March 4, 2024, ICC judges had issued a decision on the Prosecutor’s request to hold a confirmation of charges hearing in the case against Joseph Kony in the suspect’s absence, should he not appear, and set the date for this hearing, to commence on October 15, 2024.

On September 12, 2024, Pre-Trial Chamber III postponed the confirmation hearing, having heard the views of the Defence, Prosecution, and Office of the Public Counsel for Victims. On October 29, 2024, Pre-Trial Chamber III decided that all the requirements to hold a confirmation of charges hearing in the absence of the suspect Joseph Kony, were met.

The Chamber also directed the Registry to complete notification and outreach activities about the new date for the confirmation of charges hearing within 30 days starting from January 6, 2025, and to report on it to the Chamber no later than February 14, 2025.

5. ON WHAT BASIS DID THE ICC JUDGES DECIDE TO HOLD A CONFIRMATION OF CHARGES HEARING IN THE ABSENCE OF MR KONY?

The Rome Statute [the treaty establishing the ICC allows for a hearing on the confirmation of the charges in the absence of a suspect, under specific conditions. In this case, the judges found that

1. Kony is a person who ‘cannot be found;
2. all reasonable steps to secure his appearance and to inform him of the charges and the date of the confirmation of charges hearing have been taken, and
3. there is cause to hold the confirmation of charges hearing in his absence.

If the charges are confirmed, the case can only proceed to trial if the accused is present before the Trial Chamber. The existence of confirmation proceedings in absentia would serve to expedite the case against a suspect who cannot be found. However, as held previously by the same Chamber, this proceeding is only applicable in exceptional circumstances.

6. WHAT IS A CONFIRMATION OF CHARGES HEARING?

The confirmation of charges hearing is NOT A TRIAL. It is a public preliminary hearing where judges assess and decide whether or not to confirm all or any of the charges brought by the Prosecutor against a suspect – Joseph Kony, in this case. If any of the charges are confirmed, the case can be submitted for trial before other ICC judges, but only in the presence of the accused.

The Judges will hear oral submissions usually starting from the Prosecution, followed by the Legal Representatives of the Victims and the Defence. The hearing is scheduled from 9 September 2025 and it usually lasts a few days. Closer to the hearing date, the Judges will issue an order with more information about how it will be conducted, its duration, and whether or not witnesses will appear in person or via video link.

7. WHAT KIND OF DECISIONS CAN THE ICC CHAMBER MAKE AT THE END OF CONFIRMATION OF CHARGES HEARING?

After the Confirmation of Charges hearing concludes, the Pre-Trial Chamber shall deliver its written decision within 60 days. The Judges of the Pre-Trial Chamber may:

• confirm all or only some of the charges against Kony, but, in this case a trial would still require Kony to be present before the ICC as there is no trial in absentia according to the ICC Rome Statute;
• decline all the charges and stop the proceedings against Kony [this happens if the Judges decide that the available evidence is not sufficient or strong enough to go to trial]; or,
• adjourn the hearing and request the Prosecutor to provide more evidence, conduct additional investigations or change any charge for which the evidence establishes a different crime than the one charged.

If the lawyers of Kony or the ICC Prosecutor disagree with the Pre-Trial Chamber’s decision and want to appeal it, they need to ask the Chamber for permission to do so. If the appeal is authorised, it will be decided by another Chamber – the Appeals Chamber, which consists of five other Judges.

8. HOW WILL MR KONY BE DEFENDED BEFORE THE ICC, AND WHO WILL PAY FOR HIS DEFENCE?

All ICC suspects, including Mr. Kony, are presumed innocent until proven guilty, and they are entitled to legal representation when appearing before the Court. In case the suspect does not appear before the Court, the judges can appoint a lawyer to act on the suspect’s behalf.

Regarding Kony’s legal representation, the Pre-Trial Chamber III ordered the appointment of Peter Haynes, an experienced defence lawyer, as Counsel for Kony to represent his rights and interests in his absence during the confirmation of charges proceedings.

On June 21, 2024, Haynes was formally appointed as Counsel for Mr Kony. The appointment followed an open call for expression of interest, an assessment of Counsels applications by a panel and the final recommendation submitted by the ICC Registry in a Report to ICC judges. On August 27, 2024, Kate Gibson was appointed as associate counsel for Kony.

In case Kony is declared indigent, the Court will bear the cost of the suspect’s defence in accordance with the legal aid scheme.

9. WHAT IS THE ROLE OF THE DEFENCE IN THE CONFIRMATION OF CHARGES HEARING?

Kony is a suspect in the proceedings and, like all ICC suspects, is presumed innocent unless and until proved guilty before the Court in accordance with the applicable law.

The confirmation of charges hearing is not a trial. The purpose of the confirmation of charges is for the Pre-Trial Chamber to confirm whether the Prosecutor has demonstrated sufficient evidence to proceed to trial. The Judges may also decline the charges.

Throughout the hearing of the confirmation of charges, the Defence will test the evidence presented by the Prosecutor and present any jurisdiction or admissibility challenges.

At the confirmation of charges stage, the Prosecution must demonstrate to the Pre-Trial Chamber that substantial grounds to believe that the charges against the defendant exist such that the case can continue to a trial. If charges are confirmed, the presumption of innocence persists and the burden on the Prosecution becomes one of demonstrating guilt of the charges beyond any reasonable doubt for a Trial Chamber to declare an accused person guilty of these charges. If not, the Judges would then declare him innocent.

10. WHERE WILL THE CONFIRMATION HEARING BE HELD: AT ICC HEADQUARTERS IN THE HAGUE OR IN UGANDA?

Trials takes place at the seat of the Court in The Hague, unless the judges decide to hold the trial elsewhere.

This issue has been raised in this case. Both the Prosecution and Defence have made observations on this matter. But the Chamber has not yet rendered a decision on this possibility.

11. WHAT IS THE ROLE OF VICTIMS AT THE CONFIRMATION STAGE? 

Victims can participate in the proceedings before the ICC, presenting their views and concerns at all stages of the proceedings, including during the confirmation of charges hearing. This participation is done through one or more common legal representatives appointed by the Judges. The right to participate may entail, amongst other things, to make submissions to the Chamber, depending on certain conditions to be decided by the judges.

12. ARE VICTIMS ABLE TO PARTICIPATE IN THE CONFIRMATION OF CHARGES IN ABSENTIA HEARING? 

Yes. In the Kony case, the Chamber has authorised victims to participate in the proceedings for the confirmation of charges hearing in absentia of Kony. The Chamber also outlined the process for their participation. Victims, including indirect victims such as family members of direct victims or persons who tried to prevent the commission of crimes on direct victims, can apply to participate in the Kony case if they suffered personal harm as a result of the crimes alleged against Kony.

13. HOW CAN VICTIMS APPLY FOR PARTICIPATION IN THE PROCEEDINGS?

Victims in the Kony case who have not yet applied to participate in any ICC proceedings in the Uganda Situation before can fill in an application form for participation and send it to the Victims Participation and Reparations Section [VPRS]. Depending on their situation, they can choose between individual or group forms.

Upon receiving the applications from the victims, the VPRS will review them to ensure all required sections of the form are completed, and all necessary supporting documents are attached. Additionally, the VPRS will conduct a preliminary legal assessment to determine whether the crime[s] and harm [s] described fall within the scope of the Kony case.

Victims that are already participating in the Ongwen proceedings before the ICC and that also wish to participate in the Kony proceedings do not have to fill in any new application form. They simply need to notify their counsel in the Ongwen proceedings of their wish and their data, including any additions victims with to make to their forms, will be transferred to the Kony proceedings.

Between 2007 and 2009, the Judges of the ICC have authorised 41 victims to participate in the Kony et al. case, which initially had a broader scope involving multiple suspects, whereas the present case is only against Kony as defined in the Document Containing the Charges [DCC]. Paolina Massidda, Principal Counsel and Sarah Pellet, Counsel from the Office of Public Counsel for the Victims [OPCV], were appointed as their legal representatives.  To ensure fair treatment for all victims, the Judges in the current proceedings have decided that all applications must be assessed based on the same criteria, which will be defined in the updated DCC to be submitted by the Prosecutor by April 17, 2025. Consequently, the applications of the 41 victims previously admitted to participate in the Kony et al. case will be reassessed to ensure they meet the updated DCC’s scope. These previously authorised 41 victims, likewise, are not required to fill in a new application form.

14. WHO ARE THE VICTIMS WHO CAN PARTICIPATE IN THE KONY CASE? 

Direct and indirect victims who suffered harm as a result of the crimes alleged against Kony can apply to participate in the Kony case. The current DCC will be updated by April 17, 2025, and it will be the basis to assess all applications in the Kony case.

Based on the current DCC, direct victims are:

1. Individuals who suffered harm as a result of the crimes committed in the context of the attacks on seven IDP camps and the Lwala Girls School:

• Lwala Girls School – on or about June 24, 2003;
• Pajule and Lapul IDP Camp – on or about October 10, 2003;
• Abia IDP Camp – on or about February 4, 2004;
• Barlonyo IDP Camp – on or about February 21, 2004;
• Odek IDP Camp – on or about April 29, 2004;
• Pagak IDP Camp – on or about May 16, 2004;
• Lukodi IDP Camp – on or about May 1, 2004;
• Abok IDP Camp – on or about June , 2004.

2. Organisations or institutions that, in the attacks listed above, sustained direct harm to their property dedicated to religion, education, art or science or charitable purposes, or their historic monuments, hospitals and other places and objects for humanitarian purposes.

3. Children under the age of 18 [including children under the age of 15 and children born in captivity] abducted and integrated into the LRA in northern Uganda, including Acholi, Lango and Teso areas, between July 1, 2002 and December 31, 2005.

4. Female victims abducted and integrated into the LRA in northern Uganda, including Acholi, Lango and Teso areas, between July 1, 2002 and December 31, 2005.

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

Indirect victims are: individuals who suffered personal harm as a result of crime[s] committed against a direct victim. Indirect victims may include: [1] the family members of direct victims; [2] anyone who attempted to prevent the commission of the crimes; [3] individuals who suffered harm when helping or intervening on behalf of direct victims; and [4] other persons who have suffered personal harm as a result of the crimes.

15. WHAT IS THE ROLE OF THE LEGAL REPRESENTATIVES OF VICTIMS IN THE CONFIRMATION OF CHARGES HEARING?

A legal representative of victims is a lawyer who represents the interests of the victims in the proceedings. During the confirmation of charges, only the common legal representatives of victims appointed by the Judges will be allowed to represent the victims and appear in the courtroom to follow the proceedings and to express the victims’ views and concerns regarding the charges alleged and the evidence presented by both parties. After consulting with the victims, they will be able to speak during the confirmation hearing on behalf of the victims and intervene on any issue of fact or law arising from the hearing that affects the interests of the victims.

16. WHO ARE THE VICTIMS’ REPRESENTATIVES AT THE CONFIRMATION OF CHARGES STAGE IN THE KONY CASE?

In the Kony case, the Chamber appointed Manoba, Cox, Bradfield, as well as Ms Massidda and Pellet of the OPCV, together as a single team of common legal representatives of any admitted victims in the present case.

Their mandate will take effect as soon as the Judges issue a decision admitting victims to participate in the Kony case proceedings. This will occur after the new DCC will be submitted. In the meantime, the Judges decided that the OPCV will represent the collective interests of potential victims.

17. ARE VICTIMS OF ALLEGED CRIMES COMMITTED BY MR KONY ENTITLED TO ASK FOR REPARATIONS AT THE ICC?

Victims have the right to request reparations [and the right to participate in proceedings] in relation to any case within the jurisdiction of the ICC, including the Kony case, if they suffered personal harm as a result of the crimes alleged against the suspect/accused. Before the ICC, reparations can be awarded only if the charges against the suspect have been confirmed and if the accused person has been convicted following a trial – and therefore not just after the conclusion of the confirmation of charges proceedings.  In the Kony case, the trial phase can start only if the charges are confirmed, and Kony is arrested and brought to court. The trial cannot move forward until Kony is in custody.

18. IS THE CASE OF JOSEPH KONY RELATED TO THAT OF DOMINIC ONGWEN? 

No. On February 6, 2015, the ICC Judges severed the proceedings against Dominic Ongwen from the case of The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. As the Judges by then had confirmed the deaths of two of the suspects and terminated proceedings against them, and the others remained at large, the Judges deemed it necessary to separate the case so as not to delay the proceedings against Ongwen who was already in the custody of the Court. With the separation of these cases, they are now handled as different cases, separate proceedings and handled by different ICC judges.

The trial in the case of Ongwen opened on December 6, 2016 and concluded in March 2020 after the submission of closing statements by the parties and participants. On February 4, 2021, Trial Chamber IX found Dominic Ongwen guilty for a total of 61 crimes comprising crimes against humanity and war crimes, committed in Northern Uganda between July 1, 2002 and December 31, 2005. On May 6, 2021, Trial Chamber IX sentenced Dominic Ongwen to 25 years of imprisonment, and he has been transferred to Norway to serve his sentence. A phase dedicated to the reparations to victims in the Ongwen case is ongoing. On February 2, 2024, Trial Chamber IX delivered its Order on Reparations to victims.

https://thecooperator.news/atiak-massacre-survivors-move-on-with-self-help-initiatives/

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