“This, today, is not the end”

10 September 2025: Confirmation of Charges Hearing for an Absent Kony, Day 2

Time is a funny thing. Today was scheduled as the second of three days of ICC hearings in the Prosecutor v. Joseph Kony. It quickly became apparent that the second day would be the final day. Earlier in the day, Prosecutor Henderson had brought the Court back 11 years before the charged period (2002-2005), to tell us how one of Kony’s forced ‘wives’ – referred to as ‘Victim 1’, had been abducted at 10 years old, in 1991. Paul Bradfield, of the Common Legal Representatives for Victims (CLRV) had discussed the Lord’s Resistance Army (LRA)’s “modus operandi” of attack institutes of learning, by referring to the 1996 attack on Mary’s College Secondary School in Aboke: 7 years before the attack on Lwala Girls School contained within the charges. From the past in the morning, we were brought into the future in the afternoon. For Peter Haynes, defence counsel, it was a future in limbo: containing a “cryogenically frozen case” – should the charges be confirmed – that could waste resources ad infinitum. Prosecutor Leonie von Braun used the prosecution’s last words to insist that it was in fact “not the end”: for the prosecution, for the Court, for the case, and, primarily, for victims. Indeed, she wished that these hearings would serve as “a new beginning” in the quest to bring Joseph Kony to justice. Can all these timelines, these pasts, presents, and futures, align? Do the three ICC judges: Alexis-Windsor, Motoc, and Ben Mahfoudh even have to make that decision? Can any trial even answer such a question? These were the questions I had today, while watching submissions on the merits, and closing observations, from all three parties.

Beginnings, Ends, and In-Betweens

Time was omnipotent. Almost every speaker spoke about the problems of time, either in terms of how it impacted victims, or how it impacted the Court itself.

In terms of the problem of time for victims, we heard from both the prosecution and CLRV about the “prolonged” nature of both the violence, and the suffering it created. Today began with the tail-end of the prosecution’s submission on the merits. Prosecutor Henderson talked about the pasts that were stolen from young people who were abducted and forcibly integrated into the LRA: “children were deprived of their chance to be children”. Paolina Massidda, speaking for the victims, reiterated the never-ending impact of Uganda’s violent past on her clients. She said that “horrific” violence had repercussions “over generations”: a violent past projected itself into their future. Her colleague Paul Bradfield quoted one victim who told the CLRV that “by taking me into the bush, the rebels took my past, my present, and my future”. He also referenced “a saying in Northern Uganda: the guns may be silent, but the fighting continues”. For both the prosecution and victims’ representatives, then, LRA violence has almost collapsed time for those it had touched, who are now, 20 years later, relying on the ICC judges to metabolise their experiences into a legally delineated story, with an endpoint of justice. It was Francisco Cox (CLRV) who made his team’s closing observations that “you [the judges] have the power…to characterise…what is real in the legal world”. If the phrase ‘transitional justice’ implies some sense of movement through time, from violence to non-violence, peace, reconciliation, or justice, the OTP and CLRV appeared to argue that an ICC judicial characterisation of a violent past would begin that shift.

Time was not just a problem for the victims, however. Every presentation seemed to be grappling with the question of where these hearings should fit within the larger story of violence in, and justice for, Northern Uganda. Peter Haynes’s presentation on the merits was occupied in large part by a concern that if the judges handed down a confirmation of charges decision, the entire Court might “sleepwalk blindly into the trial process”. Haynes made what he acknowledged might be a surprising request: for a stay in proceedings before a decision was handed down. By making a decision on the confirmation of charges without Kony’s wishes being respected – an impossibility considering his absence – Haynes argued that the judges risked condemning the ICC as an institution to a “costly…indefinite, pre-trial purgatory”.

By opting to provide a “list of authorities” rather than punctuate his presentation with references to convoluted evidence codes, as Henderson had done earlier, Haynes deprived me of the numerous pauses I had enjoyed earlier in the day, with which to catch up on my note taking. I was therefore frantically scribbling to keep up, even as Haynes sardonically noted that “I didn’t think I could speak any slower, frankly”, when the Acholi interpreter requested that he ease up. My scribbling prevented me from keeping a tally of the number of times Prosecutor Leonie von Braun’s eyebrows shot up in response to one of his pronouncements, but her discomfort (or perhaps annoyance?) was palpable. Haynes concluded the defence submissions firmly focused on the future, not just of the proceedings against Kony, but of the ICC as an institution. Confirmation of charges proceedings in absentia, he declared, “should not be the future”, as they would only “give fuel to the fire” of the Court’s detractors, “who wish to portray this institution as illegitimate”. Where Leonie von Braun might have implored those listening to help her ensure that these hearings were a “new beginning”, Haynes and his team were concerned with “the line in the sand”: finding an end. The three judges now must decide, it seems, not only whether or not to confirm the charges, but whether or not to even decide to make that decision. The momentum of justice, the parties all seemed to argue, is now in their hands.

Can these three judges iron out the past, present, and future of violence in, and justice for, Uganda?

‘Everybody following this trial’: A Word on Audience

In the middle of his presentation, Paul Bradfield referred to “everybody following this trial” and made a pointed gesture towards the public gallery. Considering yesterday’s references to “self-interest” from the defence, and today’s allusions to “the interests of justice” from von Braun, it seems that the question of audience is critical to understanding these hearings.

In requesting a confirmation of charges hearing in absentia, the prosecution argued that holding such hearings would me a “meaningful milestone” for victims. An audience of victims? The defence argued that they spoke to victims who opposed the hearings. Additionally, Haynes noted that an in absentia proceeding, with no prospect of an arrest, would run the “risk of further raising the expectation of victim communities”, which could only lead to frustration and confusion. He added that “the confusion and frustration is already there [in Northern Uganda], and very loud”. But for Francisco Cox (CLRV), such pronouncements were “paternalistic”. Everyone is quick to say victims are confused, he lamented, “but they are not confused…victims want truth”. If the primary audience are victims who want truth, specifically, what kind of truth can a Court deliver? And within that (already narrow, legalistic) truth, what kind of truth can a pre-trial hearing deliver? Are these three judges now judges, truth commissioners, and historians rolled into one?

But Bradfield’s gesture to the public gallery to signify “everybody following this trial” raises different connotations. The public gallery, over the last two days, was a rotating mix of journalists, observers, and legal professionals. Today at least, the numbers were made up primarily by two massive student groups who visited either side of lunch and packed the back three rows (where I am both too nerdy and too short to sit, so could only sense the immense shuffling of their arrival and departure, and glimpse them in the reflection of the protective glass). An audience of the interested, then? But none of us in that category (not least the two people I saw doze off today), I think, would have the power to answer von Braun, Niang, or Manoba’s please to co-operate with the Court, or contribute meaningfully, in financial terms, to victims.

Is the audience in fact none of the above? Perhaps the true audience for such proceedings are states? States which can give money to the Trust Fund for Victims (TFV)? States which can co-operate to arrest suspects? Haynes was derisive at the idea that the USA might try and help arrest Kony, as it had in the past: “I think it’s fair to say that those days are long gone”. With several members of the OTP and judicial roster already under US sanctions, and other States Parties either slow to condemn such moves, or themselves reluctant to arrest other ICC suspects, the idea that the last two days have been for an audience of states is perhaps the most depressing one of all.

Courtroom Tensions

Interestingly, the impression I got was that during these last two days of hearings, the intended audience of each presenting party has been, above all, each other. This hearing has felt in large part like a sparring match between different ideas and expectations, of the past, and of ‘justice’, within the Court itself. When victims’ representative Manoba used the word “genocidal” to describe the nature of the LRA’s past violence, all 9 members of the defence team present in the courtroom almost spasmed towards their notebooks and laptops in unison. When Haynes bemoaned the fact that the OTP had not believed one of his assertions and said that “I believed we conducted these proceedings with a degree of collegiality”, von Braun whipped around to look at her colleague, as though unable to contain herself. When Cox was adamant that the prosecution had erred in refusing to charge sexual slavery as a crime against humanity, Massidda – sitting behind him – nodded vigorously, as she had done on 8 distinct occasions during Bradfield’s original arguments. Haynes, in his own words, found it “painful” to “sit back” during the overwhelming “imprecision” of the prosecution case. Tensions – be they emotional, narrative, and legal – were palpable across both days, and I am unsure to what extent any decision could reconcile even them. Ironically, perhaps, a proceeding which was almost 8,000 days in the making, and was requested to provide a kind of closure, may have raised more questions than answers.

The Confirmation of Charges decision is pending.