ICC Prosecutor Defends in-absentia Confirmation of Charges Hearing Against Kony

The International Criminal Court Prosecutor has filed a formal submission defending the court’s decision to hold a confirmation of charges hearing against Lord’s Resistance Army (LRA) leader Joseph Kony in his absence. 

The submission comes a month after Kony’s defence lawyer Peter Haynes KC petitioned the Pre-Trial Chamber III to reconsider its decision of holding the confirmation charges hearing, arguing that the proceeding will not renew or sustain efforts to bring Kony to court, and could impact ongoing repatriation and reconciliation efforts in Uganda.

However, in a submission made to the Pre-Trial Chamber III on April 14, the Prosecutor Karim Khan requested the court to dismiss the defence arguments, adding that the confirmation proceedings wouldn’t affect efforts to apprehend Kony.

Khan highlighted that the defence lawyer’s argument is tenuous and misdirected since the Chamber’s original reasoning concerned the renewal of efforts by the international community to apprehend Kony.

“The information presented by the Defence is not new, but at most constitutes further information concerning facts which already existed when the Decision was rendered,” the prosecutor submitted to the court.

The prosecutor maintained that the confirmation proceeding will not affect the return of former LRA fighters anthe d reconciliation process in Northern Uganda. He argued that there is no clear basis that the court’s proceedings to date hinder the return and reconciliation process in the region.

“The returns and repatriations set out by the Defence all occurred while the confirmation proceedings were already ongoing, including after Pre-Trial Chamber II’s decision of 23 November 2023, as well as subsequent decisions by this Chamber”

Adding that “Likewise, the process of return and repatriation continued notwithstanding the continuous and widespread outreach conducted by the Registry on the nature and scope of the proceedings as part of the notification efforts as well as by the Prosecution,”

The Pre-Trial Chamber III has scheduled the confirmation hearing against Kony on September 9 in his absence. This was after the chamber determined that Kony is a person who cannot be found and all reasonable steps to secure his appearance and to inform him of the charges and the date of the confirmation of charges hearing had been taken.

Kony's defence lawyer in his submission on April 3 to the chamber, however, argued that the approximate whereabouts of Kony are known and have been publicly reported in recent months by former LRA returnees.

The submission also cited that the approximate whereabouts of Kony appear to be known by the Registry.

“On February 14 2025, the Registry submitted a report to the Pre-Trial Chamber, which contained an Annexe I, which was redacted on the basis that it contains sensitive and detailed information on possible whereabouts and personal data of Kony”, the defence submitted to the court.

In its rebuttal, the Prosecutor, however, noted that it is no more than speculation whether persons who have returned from being held captive by Kony can provide new and current information to the Ugandan authorities or the Court on Kony’s whereabouts.  He argued that the defence also misconstrued the content of the Registry outreach report of 14 February 2025 as well as the Prosecution’s reply to its related disclosure request.

“As the confidential Annex demonstrates, Kony’s approximate whereabouts cannot be deduced from the latest Registry outreach report. Contrary to its present argument, the Defence was specifically informed that Annex II to that report did not contain any information relevant to Mr Kony’s whereabouts,” Khan submitted to the court. 

The court is yet to fix a date for ruling on the filing by the defence to halt the confirmation of charges hearing proceeding scheduled to take place in The Hague, Netherlands. Initially, the prosecutor had sought for the hearing to be conducted in Northern Uganda with Gulu and Lira cities selected as possible venues before the court in a ruling last month overturned the request, citing financial burden and the potential dangers of transferring parts of the Court’s operation to the field.

.

Kony remains one of the ICC’s longest-standing fugitives, wanted since 2005 for alleged roles in orchestrating a campaign of terror across Northern Uganda and neighbouring countries.

He is suspected of 36 counts of war crimes and crimes against humanity, allegedly committed between July 1 2002, and December 31, 2005, on the civilian population of Northern Uganda.

The confirmation of charges hearing, if allowed to proceed, will determine whether there is sufficient evidence to prove that Kony committed each of the crimes charged. However, according to the ICC, if the charges are confirmed, the case can only proceed to trial if Kony is present before the Trial Chamber.