.png)
(The author would like to acknowledge that this piece was first published on EJIL:Talk! and that the permission required to cross-post on the MSLR Blog has been secured.)
With the deaths of Vincent Otti, Raska Lukwiya, and Okot Odhiambo and the conviction of Dominic Ongwen by the International Criminal Court (ICC), the only remaining leader of the Lord’s Resistance Army (LRA) at large is its founder, Joseph Kony. Long-time followers of the ICC will remember its first-ever arrest warrants were issued against these five in 2005 for crimes against humanity and war crimes committed in Uganda since 2002, including “murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; […] abduct[ing] civilians, including children, [who were] forcibly recruited as fighters, porters and sex slaves and [were forced] to take part in attacks against the Ugandan army (UPDF) and civilian communities”. However, Joseph Kony has since managed to successfully evade prosecution from the ICC, with recent reports suggesting that he has sought refuge in Darfur, Sudan, where he continues to command what remains of the LRA. Though his forces and influence have substantially dwindled, the ICC has not forgotten his crimes, issuing a surprising decision on 23 November 2023 to potentially confirm charges against him in absentia (without his presence), once the Prosecutor has formally presented the charges to be confirmed (See, for example, Kony Decision, para. 51). As noted by ICC Prosecutor Karim Kahn, this is the first time an in absentia confirmation of charges hearing may be held at the ICC.
In this piece, the following issues from the decision will be analyzed: (1) whether prior appearance of the suspect is a prerequisite to holding in absentia confirmation of charges proceedings pursuant to Article 61(2)(b) of the Rome Statute; (2) what conditions must be fulfilled vis-à-vis the suspect to hold in absentia proceedings; and (3) whether there was a “good cause” to hold in absentia proceedings in Joseph Kony’s case, as required by Rule 125(1) of the Rules of Procedure and Evidence.
Is prior appearance of the suspect a prerequisite to holding in absentia confirmation of charges proceedings pursuant to Article 61(2)(b) of the Rome Statute?
Article 61(2)(b) allows for holding a hearing to confirm charges in the absence of the person charged where they have “[f]led or cannot be found”. According to the Office of Public Counsel of the Defence (OPCD), confirmation hearings in the absence of a person who “cannot be found” must be preceded by their appearance before the Court, in accordance with Article 60(1) (OPCD’s Observations, paras. 12-17). This position was rejected by the ICC, who claimed that the use of the word “or” in Article 61(2)(b) meant the meaning of “fled” and “cannot be found” must necessarily be different. Therefore, if “fled” meant a situation where a person who was previously accessible to the Court absconded, then “cannot be found” must refer to situations where the person “was never available to the Court” (Kony Decision, para. 30). Accordingly, the Court held that a person’s prior appearance before the Court is not a prerequisite to holding in absentia proceedings pursuant to Article 61(2)(b).
In my opinion, it seems rather strange that the Court equates “cannot be found” with “was never available to the Court”. The two obviously have different meanings, as it is entirely possible that a person is available to the Court at one point, but afterwards, for whatever reason, cannot be found. Furthermore, it should be noted that the Court does not provide any source for its interpretation of Article 61(2)(b). In fact, the content of the only source the Court cites (Kony Decision, footnote 40), namely the Special Tribunal for Lebanon’s decision to hold an in absentia trial against Salim Jamil Ayyash, takes a different approach altogether (curiously, the Court adds the word “Compare” to the beginning of the footnote, almost as if it were an academic work and not a judicial decision). In that decision, the Special Tribunal was similarly faced with a question of interpreting the terms “absconded or otherwise cannot be found…”. There, it reasoned that “absconded” requires “knowledge of the charges by the accused, and therefore a conscious decision on his part to evade service, arrest and prosecution, whereas the [the term ‘cannot be found’] does not” (Ayyash Decision, para. 45). The difference between “absconded”, which is synonymous to “fled”, and “cannot be found” therefore lies with the knowledge of the person that they are at the mercy of the law and their resulting decision to act upon that knowledge by removing themselves from the Tribunal’s jurisdiction. Although the Special Tribunal did not explain where this definition comes from, it is at least closer to the ordinary meaning of the term as confirmed by Black’s Law Dictionary; conversely, the ICC supplied no source for its definition of “fled or cannot be found”, referring only to the Special Tribunal’s decision.
Of course, the “was never available to the Court” definition is a far more convenient interpretation of the Statute as it bypasses what the Defense construes under Article 60(1) to be a precondition that the suspect appear before the Court prior to their confirmation hearing. In my opinion, common sense would seem to agree with the Court’s final conclusion that the suspect does not need to appear before the Court and then disappear for an in absentia confirmation hearing to be held; however, it is difficult to agree with the interpretative method by which the Court reached that conclusion.
What conditions must be fulfilled vis-à-vis the suspect to hold in absentia proceedings?
For in absentia proceedings to be held pursuant to Article 61(2)(b), not only must the person have fled or be unlocatable, but all reasonable steps must have been taken to secure their appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In its decision, the Court identified three separate obligations under this provision: all reasonable steps must have been taken to (1) secure the person, (2) give them notice of their charges, and (3) inform them that an in absentia hearing will be held (Kony Decision, para. 36).
While it is clear all reasonable steps have been taken to secure Mr. Kony, the Prosecution averred the other conditions were fulfilled as well, given that reasonable steps had already been taken to inform Mr. Kony of the allegations, including the issuance of the October 2005 Arrest Warrant, which listed the counts against him in considerable detail (Prosecution’s Request, paras. 43-47). In response, the Court differentiated “allegations” from “charges”, and clarified that notice of charges could not be communicated by way of an Arrest Warrant but instead, through a formal document containing the charges (Kony Decision, paras. 47-51). To reach this conclusion, the Court examined its Statute for the word “charges” and only found it in Article 61, which concerns the confirmation of charges stage of proceedings; furthermore, it was unable to find “charges” in Articles 58-60, which refer to the process of issuing an arrest warrant (Kony Decision, para. 47). The Court then held that, given the suspect’s absence, the charges could be communicated through social media, local media outlets, and advertisements in the suspect’s likely area, etc. (Kony Decision, paras. 53 and 57).
In my view, the Court’s reasoning was commendable as it refused to water down the concept of “charges” under Article 61(2)(b) to include “allegations” as listed in arrest warrants, ensuring as far as possible that the Defense is not deprived of the opportunity to be informed of the precise claims made against them, in line with their rights under Article 67(1)(a).
Was there a “good cause” to hold in absentia proceedings in Joseph Kony’s case, as required by Rule 125(1) of the Rules of Procedure and Evidence?
Prior to these proceedings, the Prosecution was “resolutely” opposed to the holding of in absentia proceedings against Mr. Kony and his co-perpetrators given the “enormous expense of […] time, money, [and] effort for no benefit at all” (Transcript from Ongwen case, p. 26). Evidently, the Prosecution has since adopted a different position, now claiming there are three “good causes” to hold in absentia proceedings: first, advancing proceedings against Mr. Kony notwithstanding his fugitive status for 17 years would “demonstrate that judicial proceedings will not be thwarted by attempts to evade justice”; second, such proceedings would galvanize stakeholders’ efforts to apprehend Mr. Kony, publicly air evidence, and would allow Mr. Kony to be taken straight to trial if he were ever to be apprehended; and third, victims would have the opportunity to voice their views and concerns (Prosecution’s Request, paras. 4-7). The Office of Public Counsel for Victims (OPCV) supported these points, “with a view of advancing the proceedings in the present case in preparation for a potential trial, and hope that it will revive the willingness of States to locate and apprehend Mr Kony” (OPCV Views and Concerns, para. 2).
Notwithstanding its view that the interests of justice must be balanced against potential prejudice caused to a suspect (Kony Decision, paras. 61 and 64), the Court only summarily examined the impact on the Defense (in fact, only referring to the lack of prejudice caused to Mr. Kony’s co-perpetrators - Kony Decision, para. 63) and made no reference to the submissions of the OPCD. Instead, the Court was satisfied a good cause existed because a confirmation of charges would remind the international community that Mr. Kony was wanted and could reinvigorate efforts to bring him before the Court as well as give victims a platform to voice views and concerns (Kony Decision, para. 67).
In the first place, I must question what exactly is meant by “good cause”. The Prosecution believed that it could be defined by analogy to ICTY Hearing Rule 61 (Prosecution’s Request, para. 31), but the very ICTY manual it referenced seemed to take a different stance: “The [Rule 61] procedure did not constitute a trial in absentia and was not designed to result in a conviction. Instead, the Chamber issued an international arrest warrant addressed to all UN Member States. The public Rule 61 procedure therefore served a limited purpose, but was discontinued when the Prosecutor adopted the practice of seeking to have indictments sealed and kept out of the public domain” (ICTY Manual, p. 49, para. 9). From the above statement, Rule 61 had the very specific purpose of motivating the international community to act, whereas Article 61(2)(b), as noted by the OPCD, has a different purpose, namely to protect the Defense and the integrity of the trial against frivolous charges (OPCD Observations, paras. 25-27).
Without a definition of “good cause”, I can only assume an in absentia confirmation hearing should be held where there are urgent and/or compelling reasons to do so. However, none of the facts mentioned by the Prosecution, Court, or OPCV strike me as urgent or compelling. Indeed, the OPCD has elaborated in great detail how the length of time Mr. Kony has remained a fugitive does not urgently necessitate a confirmation hearing (OPCD’s Observations, paras. 35-36), how there was no evidence that holding an in absentia hearing might stimulate the international community to act (OPCD’s Observations, 29-30), and moreover, that the presentation of the victim’s views would prejudice Mr. Kony’s rights, including the right to be presumed innocent (OPCD’s Observations, paras. 37-42). As far as I can tell, the only factor militating in favor of continuing proceedings is the fact that Mr. Ongwen, one of the other leaders of the LRA, has recently been convicted, and the evidence of crimes committed by the LRA in that case could be used for this one (Kony Decision, para. 62). Even then, the evidence used in that case would be on the ICC’s permanent record and is not at an immediate risk of disappearing (and even if it was at risk of disappearing, a proceeding under Article 56 of the Rome Statute would be more appropriate than an in absentia confirmation hearing).
Conclusion
In closing, 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. As outlined above, there were a few bright spots in the Court’s decision, such as the requirement that the Prosecution take all reasonable steps to communicate formal, detailed, and well-substantiated charges to Mr. Kony prior to the confirmation hearing instead of merely relying on the allegations publicized in the Arrest Warrant. However, the core of the decision, namely whether there should have been in absentia confirmation of charges proceedings, seems ill-reasoned and failed to take into account the OPCD’s submissions and the Defense’s rights in general. 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 Joseph Kony and a sense of justice for the victims, will manifest.