WHY IS JOSEPH KONY WANTED BY THE ICC?
According to the Prosecution’s submission of the Document Containing the Charges, Joseph Kony is suspected of 36 counts of war crimes and crimes against humanity, allegedly committed between at least 1 July 2002 until 31 December 2005 in northern Uganda.
The allegations against Mr. Kony concern having a common plan together with other Lord Resistance Army’s 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 24 June 2003 and the following attacks on internally displaced persons’ (‘IDP’) camps: (i) Pajule IDP camp on or about 10 October 2003; (ii) Abia IDP camp on or about 4 February 2004; (iii) Barlonyo IDP camp on or about 21 February 2004; (iv) Odek IDP camp on or about 29 April 2004; (v) Pagak IDP camp on or about 16 May 2004; (vi) Lukondi IDP camp on or about 19 May 2004; and (vii) Abok IDP camp on or about 8 June 2004.
The Prosecution also charges Mr. 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 1 July 2002 until 31 December 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 Mr. 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 Document Containing the Charges against Mr. Kony is available in English and Acholi on the website of the International Criminal Court.
IS MR. KONY IN ICC CUSTODY?
No, the suspect Joseph Kony is still at large, 19 years after his arrest was ordered.
Since the issuance in 2005 of the arrest warrant against him, the ICC has been seeking the cooperation of all relevant national authorities to arrest and surrender him to the Court.
ON WHAT BASIS DID THE ICC PROSECUTOR REQUEST TO HOLD A CONFIRMATION HEARING IN THE ABSENCE OF MR. KONY?
On 24 November 2022, the ICC Prosecutor, Mr. Karim A. A. Khan, filed a request before the judges of Pre-Trial Chamber II seeking authorisation to hold a hearing on the confirmation of charges against Mr. Kony in his absence.
The Rome Statute allows for a hearing on the confirmation of the charges in the absence of a suspect. This is possible when:
the suspect has fled or cannot be found,
all reasonable steps have been taken to secure his or her appearance before the Court, and
all reasonable steps have been taken to inform the suspect of the charges and to notify the suspect that a hearing to confirm those charges will be held.
The ICC Prosecutor has thus made use of the Rome Statute to request such a hearing in the absence of Joseph Kony who has been evading justice for over 18 years.
It is indeed for the Prosecutor an important step to provide communities and victims of Mr. Kony’s crimes who have waited patiently for justice for almost two decades an opportunity to engage with the Court more fully. This will also hopefully help galvanize support and initiatives towards the arrest or surrender of Joseph Kony.
IS THE ICC STARTING A TRIAL AGAINST MR. KONY?
No, no trial has formally started nor any confirmation hearing for Mr. Kony.
On 23 November 2023, ICC judges issued a preliminary decision (https://apo-opa.co/48nQ0a1) on the Prosecutor’s request to hold confirmation of charges hearing in Mr. Kony’s absence. Noting all the efforts made, by the Court and the international community, to locate him, the Chamber considered Mr. Kony as a “person who cannot be found”. The Chamber will subsequently decide whether a confirmation of charges hearing shall be held in his absence, which is an exceptional proceeding.
A confirmation of charges hearing is NOT A TRIAL. It is a public preliminary hearing during which a Pre-Trial Chamber decides 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 a Trial Chamber but only in the presence of the accused.
In the eventuality that a confirmation hearing is held in the future and that one or more charges are confirmed, any trial would still require Mr. Kony to be present before the ICC. There is no trial in absentia according to the ICC Rome Statute.
HOW WILL MR. KONY BE DEFENDED BEFORE THE ICC AND WHO WILL PAY FOR HIS DEFENCE?
All ICC suspects 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 Counsel to act on Mr. Kony’s behalf. When suspects cannot themselves pay for their legal representation, the defence costs are paid by the Court.
WHAT IS THE ROLE OF VICTIMS AT THE CONFIRMATION STAGE? WOULD VICTIMS BE ABLE TO PARTICIPATE IN SUCH A HEARING?
In general, victims can participate in the preliminary phase of a case represented by a Counsel, according to the scope and modalities of participation decided by the judges. Pre-Trial Chamber II has in the past already granted 41 persons the status of victim authorised to participate in the Kony case and has appointed as their legal representatives Paolina Massidda, Principal Counsel of the Office of Public Counsel for the Victims (OPCV), and Sarah Pellet, Counsel at the OPCV. In the Preliminary Decision issued on 23 November 2023, the Judges also noted that if a confirmation of charges hearing in the absence of Mr. Kony is scheduled in this case, it would be an opportunity for victims to express their views and concerns.
