LRA warlord Joseph Kony. PHOTO/FILE
A recent official visit to Uganda by a team of delegates from the International Criminal Court (ICC) has fortified the court’s determination to try the Lord’s Resistance Army (LRA) leader Joseph Kony in absentia.
In early December last year, the team spent more than a week in Uganda during which they met key government officials and also held visits to interact with LRA war victims, including the cultural, civil and political leaders of the Acholi sub-region.
On December 2, Kony’s defence team, including Mr Peter Haynes (lead counsel), Mr Christopher Gosnell, Assistant to Counsel, and Ms Abigail Bridgman, Legal Consultant, President Museveni, together with the Attorney General, Mr Kiryowa Kiwanuka, at State House, Entebbe.
The ICC, in a statement, admitted that they discussed the forthcoming confirmation of charges proceedings, “the background to this meeting was that (Joseph) Kony is suspected of war crimes and crimes against humanity allegedly committed between July 1 2002 and December 31, 2005 in northern Uganda.”
On September 12, 2024, the ICC’s Pre-Trial Chamber III postponed the commencement of the confirmation hearing in the case of The Prosecutor v. Joseph Kony, initially scheduled for October 15, 2024, after the observations tendered by Kony’s defence and prosecution teams and the victims’ counsel. But on October 29, 2024, Pre-Trial Chamber III concluded that Kony could not be found and decided to hold a confirmation of charges hearing in his absence.
The failure to secure Kony’s ar- rest was documented in a March 30, 2023 report that the prosecution submitted to the court’s registry in response to the February 2023 Pre-Trial Chamber II instruction that the prosecution submit a report on the measures taken to locate and notify him of the allegations against him and to secure his arrest or appearance since the issuance of the arrest warrant. However, on October 29, 2024, the ICC’s Pre-Trial Chamber III concluded that all the requirements to hold a confirmation of charges hearing in the absence of the suspect (Kony) had been met.
The Chamber, comprising judges Althea Violet Alexis-Windsor, Presiding judge, Iulia Antoanella Motoc and Haykel Ben Mahfoudh, found that while he is a person who ‘cannot be found’, all reasonable steps to secure his appearance and to inform him of the charges and the date of the confirmation of charges hearing, initially scheduled for October 15, 2024, had been taken. Kony, the founder and leader of the LRA was born in September 1961, in Odek sub-county in the present-day Omoro District, according to the ICC’s charge sheet, faces 33 counts of war crimes and crimes against humanity. Kony allegedly ordered the insurgency, directed LRA attacks in specific regions, and issued broad orders to kill civilian populations, including those living in camps for internally displaced persons.
The LRA, an organised armed group, comprising several hundred fighters, with a central command known as Control Altar and four brigades: Sinia, Stockree, Gilva, and Trinkle over which Kony had the ultimate powers to decide the fate of all LRA members, including senior commanders.
Legal question
The confirmation of charges is the procedural moment that which the ICC judges determine whether the prosecution’s evidence is sufficient to start the trial against the accused. As a rule, the hearing for this confirmation should be done in the presence of the accused. However, if the confirmation hearing goes to bed, Kony becomes the second suspect from Uganda to be tried by the ICC after his junior Dominic Ongwen, whose trial kicked off at the Hague-based court on December 6, 2016, and climaxed with a 25-year sentence in May 2021.
Legal experts have come to question the irregularities in the ICC’s procedures of determining whether Kony’s confirmation hearing deserved to be held in his (Kony's) absence. For example, Dylan Jesse Andrian, a Law scholar, in his opinion published in the European Journal of International Law believes the decision by the court to try Kony in absentia was rushy and strange.
The (defence) elaborated in great detail how the length of time (Kony) has remained a fugitive does not urgently necessitate a confirmation hearing, how no evidence holding an in absentia hearing might stimulate the international community to act and that the presentation of the victim’s views would prejudice Kony’s rights, including the right to be presumed innocent, Mr Dylan wrote. He argued that the only factor militating in favour of continuing proceedings is the successful trial and conviction of Ongwen, for which case the evidence of crimes committed by the LRA, the ICC could carry forward and apply in Kony’s case.
“The prosecution’s request to revive this case is surprising, but not as surprising as the ICC’s decision to grant the prosecution’s request. For now, we shall have to wait and see whether the effects the prosecution has promised such as the invigoration of the international community to find Kony and a sense of justice for the victims, will manifest.”
Of the five senior LRA commanders against whom the ICC issued arrest warrants, only Kony remains, with the demise of Commanders Vincent Otti, Okot Odhiambo and Raska Lukwiya and the recent conviction of (Dominic) Ongwen. Kony has, for nearly two decades since the warrant was issued, remained elusive and successfully avoided arrest and prosecution by the ICC amid multiple military attempts to smoke him out of his hideouts reportedly between the Central African Republic and Darfur region in Sudan.
Kony’s case is not the first before the ICC in which the arrest warrants have not been executed and the accused has not appeared or been brought to The Hague. Imprisoned former Sudanese President Omar Al-Bashir, whose first arrest warrant the ICC issued in March 2009, followed by a second one, is one key example. On record, the ICC has issued arrest warrants against 40 individuals, of the number, only 21 have been apprehended.
Tough trail
On November 18, 2024, while appearing at a press briefing in Gulu City, the ICC prosecution team expressed difficulties in proceeding with Kony’s case once the charges are confirmed in September this year. The trial of the elusive leader of LRA Kony may not be fully conducted if he is neither arrested nor surrendered, prosecutors at the ICC have said. Ms Leonie Van Braun, a senior trial lawyer in the Office of the Prosecutor, emphasised that the Hague-based court has prioritised Kony’s arrest since it will technically fail the case to kick off trials in his absence after the charges are confirmed. “Having Kony arrested is our main priority, we will not be able to move to a full trial without him present, so we have reinvigorated our effort with our partners, the Ugandan authorities and other partners in the region. She stressed the complexity around bringing Kony into the ICC custody despite his deteriorated military capabilities.
“It is a mobile group, which is moving in difficult terrain in difficult regions, it is a region where we do have member states of the Rome Statute and we are collaborating with them as best we can but those member states also lack certain own capacities.” “We can work together with an effective fighting force, for example, Ugandan authorities, when we have sufficient intelligence, we share that intelligence and we engage, but with the partners in the region and the movability of the LRA, it is difficult to then get to the point where we actually capture him.”
Mr Dahirou Santana, the International Cooperation Advisor in the Office of the Prosecutor, explained, at the same briefing, that it is still mandatory that Kony appears before the court even after the charges against him are confirmed. “If the confirmation of charges takes place, Kony still has to appear before the court before the trial takes place. With the confirmation of charges, it means that immediately after Kony surrenders or is arrested, then the trial will start,” Mr Dahirou stated.
