ICC judges issue a preliminary decision on holding confirmation of charges hearing in the absence of Joseph Kony
On 23 November 2023, Pre-Trial Chamber II of the International Criminal Court (ICC) issued a preliminary decision on the Prosecution’s request to hold a confirmation of charges hearing against Mr Joseph Kony in his absence.
The Chamber, composed of Judge Rosario Salvatore Aitala, Presiding, Judge Tomoko Akane and Judge Sergio Gerardo Ugalde Godínez, ordered the ICC Prosecutor, if he wishes to continue with his request, to file a public “Document containing the charges” within eight weeks from this decision, and the ICC Registrar to submit within four weeks a plan indicating the outreach activities and notification efforts it would pursue to inform Mr Kony of the charges against him.
The Chamber will then evaluate whether “all reasonable steps to inform the suspect of the charges” were taken, which is a condition that must be fulfilled before the Chamber can decide whether it is warranted to hold a confirmation of charges hearing in the absence of the suspect. The Chamber will therefore decide at a later stage whether a confirmation of charges hearing in the Kony case will be held in absentia.
This decision followed the Prosecution’s “Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” filed on 24 November 2022 and subsequent submissions by parties and participants. 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 legal framework required the Chamber to assess whether cause exists to proceed with a confirmation of charges hearing in absentia for Mr Kony. The Chamber found that such cause potentially exist. As part of its assessment, it recalled that holding a confirmation hearing in absentia is exceptional. The Chamber balanced the fair trial rights of the suspect, on the one hand, and the interests of justice on the other hand, including the gravity of the alleged crimes and alleged role of the suspect in their perpetration; the impact of the confirmation hearing on victims; and the prospect of the case further advancing should the charges be confirmed.
The Chamber also recalled that the Rome Statute does not allow proceedings in the suspect’s absence beyond the confirmation of charges hearing at the Pre-Trial Stage. Should the charges be confirmed, the case cannot proceed to trial, because any trial requires Mr Kony to be present before the Court. Notwithstanding the foregoing, in assessing whether to trigger the exceptional procedure envisaged in article 61(2)(b) of the Statute, the Chamber placed substantial weight on the facts that the victims of his alleged crimes have been waiting for justice for over 18 years and that Mr Kony is the only remaining suspect in the Uganda situation.
Background: The Warrant of Arrest for Joseph Kony was issued under seal on 8 July 2005, amended on 27 September 2005 and unsealed on 13 October 2005. He is suspected of 12 counts of crimes against humanity (murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering) and 21 counts of war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, inducing rape, and forced enlistment of children) allegedly committed in 2003 and 2004 in northern Uganda. On 6 February 2015, Pre-Trial Chamber II severed the proceedings against Dominic Ongwen from the Kony et al. case following his surrender to the ICC custody on 16 January 2015. This case also involved Vincent Otti, Raska Lukwiya and Okot Odhiambo, but proceedings against them were terminated due to their passing.
For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: [email protected].