HAGUE-The International Criminal Court (ICC) seating at Hague in Netherlands, has appointed Peter Haynes , from United Kingdom as the defense lawyer to represent War lord Joseph Kony during the confirmation of charges session in October this year.
Peter’s appointment follows the decision of the ICC panel of justices which sat on 2nd May 2024 which resolved that a suitable candidate to represent Kony during the confirmation of charges (in absensure) will be the one who will attain the highest scores among all the applicants.
Before this appointment, Haynes is a member of the List of Counsel before the ICC. He led cases before the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court and the Special Tribunal for Lebanon. At the ICC, Mr Haynes represented Jean-Pierre Bemba Gombo. He was also president of the ICC Bar Association.
Background
Joseph Kony is accused of 36 counts of war crimes and crimes against humanity, allegedly committed between at least 1st July 2002 and 31st December 2005 in northern Uganda.
The ICC on 8th July 2005 issued an arrest warrant against Joseph Kony but up to now he is still at large since no state has ever come out to declare that they have arrested him.
On 4 March 2024, Pre-Trial Chamber II issued a decision on the Prosecutor’s request to hold a confirmation of charges hearing (“confirmation hearing”) in the case against Mr. Joseph Kony in the suspect’s absence, should he not appear, and set the date for this hearing, to commence on 15th October 2024 (“Decision”).
In the Decision, the Chamber instructed the ICC Registry to make its best efforts to inform Mr. Kony that a confirmation hearing in absentia will take place on 15 October 2024, and to commence the process of selection of counsel to represent the rights and interests of Mr. Kony during the confirmation process and the confirmation hearing, should this take place in his absence.
In setting this date, the Chamber took into consideration that the Defence counsel will require sufficient time for his or her preparation in the suspect’s absence, due to the scope of the Prosecution’s allegations, and the potential voluminous amount of material that the Prosecution is likely to disclose in this case.
An announcement was passed as the Registry was seeking for expressions of interest from counsels interested in seeking to be appointed as lawyers representing Joseph Kony. Over 72 counsels applied and Peter emerged the suitable candidate.
Counsel’s role
A lawyer appointed as Defence counsel during pre-trial phase is expected to undertake all work required to represent a defendant in accordance with the ICC’s legal texts, as per rule 22(3) of the rules of Procedure and Evidence (“Rules”). This work includes leading a legal team, composed as per the Legal Aid Policy (ICC-ASP/22/9), which makes Court appearances and files written submissions.
The confirmation hearing, conducted in accordance with the provisions of article 61 of the Statute, is part of the pre-trial phase of the proceedings. The purpose of the confirmation of charges is to determine if, pursuant to article 61(7) of the Statute, “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”.
The confirmation of charges proceedings aim to ensure that only persons facing sufficiently compelling charges, which extend beyond mere theory or suspicion, are committed for trial. This mechanism protects the suspect from wrongful and unfounded charges and “[ensures] judicial economy by distinguishing those cases that should go to trial from those that should not.”
When deciding to hold a hearing in the absence of Mr. Kony, the ICC Judges have instructed the Registry to commence the process of selecting a lawyer to represent his rights and interests during the confirmation process and the confirmation of charges hearing, should this take place in his
Absence.
In the Decision to hold the confirmation hearing against Mr. Kony in his absence, the Pre -Trial chamber set the hearing for 15 October 2024 to ensure that Defence counsel will have sufficient time for his or her preparation in the suspect’s absence, due to the scope of the Prosecution’s allegations, and the potential voluminous amount of material that the Prosecution is likely to disclose in this case.
During the confirmation hearing, in accordance with article 61(6) of the Statute, the Defence counsel may object to the charges, challenge the evidence as submitted by the Prosecution, and present
Evidence.
Appointment Period
The Rome Statute allows for the confirmation of charges proceedings at the Pre-Trial stage in the absence of the suspect. The existence of confirmation proceedings in absentia would serve to expedite the case against a suspect that cannot be found.
Pursuant to article 61(2) of the Statute, “when the person [charged] cannot be found, [ ] the person shall be represented by counsel where the Pretrial Chamber determines that it is in the interests of justice.” Therefore, and as held previously by the same Chamber, this proceeding is only applicable in exceptional circumstances.
After the confirmation hearing concludes, Pre-Trial Chamber shall deliver its written decision within 60 days. The Judges of Pre-Trial Chamber in accordance with article 61(7) of the Statute, may: Confirm all or only some of the charges against Mr. Kony, but in this case a trial would still require Mr. Kony to be present before the ICC as there is no trial in absentia according to the Rome Statute;
Decline all the charges and stop the proceedings against Mr. Kony (this happens if the Judges decide that the available evidence is not sufficient to proceed to trial); or, adjourn the hearing and request the Prosecution to provide more evidence, to conduct additional investigations, or to change any charge for which the evidence establishes a different crime than the one charged.
In accordance with article 61 of the Statute, where the Pre-Trial Chamber declines to confirm a charge, the Prosecution may still request its confirmation if the request is supported by additional evidence.
The Chamber will hear oral submissions usually starting from the Prosecution, followed by the Legal Representatives of victims and the Defence. The hearing is currently scheduled from 15th October 2024 at the seat of the Court in The Hague, The Netherlands, and it usually lasts a few days.
Closer to the date of the hearing, the Judges will issue an order with more information about how it will be conducted and how many days it will last, and whether or not witnesses will appear in person or via video link.
Payments
Legal aid is available for persons entitled to legal representation and who have insufficient means to pay for it. In specific circumstances of the present case, where the unavailability of Mr. Kony poses serious challenges as to his indigence determination, given the exceptional nature of the confirmation proceedings in absentia, the Court will bear the cost of the suspect’s defence in accordance with the Legal Aid Policy (ICC-ASP/22/9).
As indicated in the Registry’s report on the implementation of the Decision (ICC-02/04-01/05-488, dated 25 March 2024), “the Registry has made a provisional assessment of the complexity level taking into account all applicable parameters as stipulated in the (Reformed) Legal Aid Policy” and “assessed the defence team at a complexity level 1 at the pre-trial stage”.
