Part 2: What is the latest at ICC on Kony case?

Key Points

• If the charges are confirmed, the case can only proceed to trial if the accused is present before the Trial Chamber
• 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.

By Editor

On 12 December 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 4 March 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 15 October 2024.

On 12 September 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 29 October 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 6 January 2025, and to report on it to the Chamber no later than 14 February 2025.

What basis did ICC Judges decide to hold a confirmation case?

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. Mr 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.

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.

Also Read: Part 1: What you need to know about Joseph Kony’s trial – West Nile Press

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.

How will Kony be defended before the ICC and who will pay for his defence?

All ICC suspects, including 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 Mr 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 21 June 2024, Haynes was formally appointed as Counsel for 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 27 August 2024, Kate Gibson was appointed as associate counsel for Joseph 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.

Editor: In the next issue, we will look at where the hearing will be held, confirmation of the charges against Kony