ICC Upholds Decision to Hold Kony Confirmation of Charges Hearing In Absentia

The International Criminal Court’s (ICC) Appeals Chamber has upheld a landmark decision to proceed with the confirmation of charges hearing against fugitive Lord’s Resistance Army (LRA) leader Joseph Kony in his absence. This ruling marks a significant first for the global court, potentially expediting the path towards justice for victims of the LRA’s brutal campaign.

The Pre-Trial Chamber III had, on October 29, 2024, determined that all prerequisites for an in absentia hearing were met. The confirmation of charges hearing is now scheduled for September 9 of this year at the Hague-based court.

Kony’s defence team, led by Peter Haynes KC, had appealed the decision on April 3, arguing that holding proceedings without Kony’s physical presence would neither encourage his surrender nor positively impact ongoing repatriation and reconciliation efforts in Northern Uganda.

However, in a majority decision delivered in open court on Tuesday, the Appeals Chamber, presided over by Judge Erdenebalsuren Damdin, affirmed the Pre-Trial Chamber III’s ruling. The judges concluded that the ICC Rome Statute permits confirmation of charges hearings to proceed without a suspect’s prior initial appearance when the suspect “cannot be found.”

“The Appeals Chamber found that this interpretation is consistent with the object and purpose of the Statute and that it is not incompatible with the rights of the defence,” the judges stated. They further added that the “ICC Rome Statute provides adequately robust safeguards to protect the suspect’s fair trial rights even in cases where such an initial appearance has not taken place.”

Other judges on the Appeals Chamber included Ugandan Judge Solomy Balungi Bossa, Kimberly Prost, Joanna Korner, and Gocha Lordkipanidze.

This decision sets a precedent, marking the ICC’s first time holding a confirmation of charges hearing against a suspect in absentia. The prosecution anticipates this move will streamline the case against Kony should he eventually be apprehended and transferred to the court.

It is important to note that a confirmation of charges hearing is not a trial. Its sole purpose is to determine if there is sufficient evidence for a case to proceed to trial. Should any charges be confirmed against Kony, the case would then be committed for trial before ICC judges, provided the suspect is physically present in court.

Kony, who founded the LRA in 1986, is a notorious warlord whose group ravaged Northern Uganda for over two decades. He faces 33 counts of war crimes and crimes against humanity allegedly committed in Northern Uganda between 2003 and 2004. These charges include 12 counts of crimes against humanity, encompassing murder, enslavement, sexual enslavement, rape, and inhumane acts causing serious bodily injury and suffering. The 21 counts of war crimes include murder, cruel treatment of civilians, intentionally directing attacks against civilian populations, pillaging, inducing rape, and forced enlistment of children.

Kony has eluded capture for nearly two decades since the World Court issued an arrest warrant against him and four other senior LRA commanders in 2005.  In a separate case, former LRA commander Dominic Ongwen was sentenced by the ICC to 25 years in jail in 2021 and is serving his sentence in a Norwegian prison. In February 2024, the court awarded victims of Ongwen’s atrocities in Northern Uganda a record €52 million in reparations.