ICC Starts Process to Try LRA’s Joseph Kony in Absentia

The Pre-Trial Chamber II of the International Criminal Court (ICC) has issued a decision on the request of the court’s prosecutor to hold a confirmation of charges hearing in the case against Ugandan warlord Joseph Kony in the suspect’s absence, should he not appear.

The court also set the date for this hearing, to commence on 15 October 2024.

The development comes after ICC closed its investigation into alleged crimes against humanity and war crimes committed by the rebel Lord’s Resistance Army (LRA) in northern Uganda.

The court said Joseph Kony, who has evaded capture for over two decades, will be tried in absentia. 

The Rome Statute allows for the confirmation of charges proceedings at the Pre-Trial stage in the absence of the suspect. 

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

ICC said in a statement on Monday night that the “existence of confirmation proceedings in absentia would serve to expedite the case against a suspect that cannot be found, however, as held previously by the same Chamber, this proceeding is only applicable in exceptional circumstances.”

The Chamber, composed of Judge Rosario Salvatore Aitala, Presiding, Judge Tomoko Akane and Judge Sergio Gerardo Ugalde Godínez, had previously already considered that Mr Kony qualifies as a “person who cannot be found” within the meaning of article 61(2)(b) of the Rome Statute. 

Now, after a targeted Outreach campaign launched by the Registry for this purpose,  the Chamber further concluded that “all reasonable steps to inform Mr Kony of the charges against him as set out in the Document Containing the Charges have been taken”. 

It noted the ICC Registry’s efforts to that effect including large-scale media campaigns in Acholi and in English, both in Uganda and neighbouring countries, activities aiming at engaging with relevant stakeholders and communities, such as religious and cultural leaders, civil society actors, victims groups and local government leaders, as well as meetings attended by clan members and other persons close to the suspect.

In Monday’s decision, the Chamber instructed the ICC Registry to make its best efforts to inform Mr Kony that a confirmation of charges 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.

Background: 

On 29 July 2004, following a referral from the Government of Uganda, ICC opened an investigation concerning crimes committed by LRA between 1 July 2002 and 31 December 2005.

Following an investigation, on 6 May 2005, ICC issued warrants of arrest against five LRA commanders  – Raska Lukwiya, Okot Odhiambo, Vincent Otti, Dominic Ongwen and Joseph Kony.

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.