In absentia ICC proceedings: Kony case likely to set precedent

                For the first time in its history, the International Criminal Court has begun proceedings against a defendant in absentia, without the presence of the defendant in the dock.  Ugandan alleged war criminal Joseph Kony has been under indictment for two decades, but has eluded detention and delivery to The Hague for legal proceedings.  The ICC judges have decided to move ahead without his participation, with a view toward getting evidence on the record before it perishes or spoils, or witnesses are no longer available.  Meaningful proceedings will also increase pressure on regional and international actors to renew their efforts to capture Kony, while bolstering the court’s credibility as an entity not to be ignored or stymied.  The most important effect of the Kony proceedings, however, are the possibility of setting precedent for legal proceedings against defendants unlikely to be captured or detained for delivery to the court, such as fellow indictees Vladimir Putin and Benjamin Netanyahu. 

               The ICC. 

The international community enjoyed years of relative success with international criminal justice, beginning with the Nuremburg and Far East post-WWII criminal tribunals, through the various UN-established criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia.  As a result, nations advocated for the establishment of a standing international criminal court as a creature of treaty, with jurisdiction over crimes associated with mass atrocities. 

The Rome Statute established the ICC, sitting in The Hague, and providing jurisdiction over four categories of international offenses, defined in the treaty with decades of international law informing their definitions:  genocide, crimes against humanity, war crimes and the crime of aggression.  The ICC’s jurisdiction over individuals depends on the accused being a national of a member state or the offense occurring on the territory of a member state, plus the accused’s sovereign demonstrate an unwillingness or inability to pursue the relevant criminal violation.  Non-state parties can also accept jurisdiction or the UN Security Council can make referrals to the court (both options very unlikely particularly for permanent members of the Security Council or their allies). 

The United States signed the treaty, but almost immediately engaged in an international campaign to weaken it by prior to ratification.  Fearful of U.S. military servicemembers being tried by the ICC as a result of the military campaign in Iraq that many international commentators believe violated international law, U.S. diplomats began a drive to negotiate bilateral agreements with other states wherein the states agreed not to cooperate with the ICC by turning over US servicemembers for trial, while the US Congress pass the American Servicemembers Protection Act, further handicapping US cooperation with the court.  The US not only did not ratify the treaty, it withdrew the state’s signature, allowing the US not only not to cooperate with the ICC, but to work actively against it.  By unsigning the treaty, the US indicated it does not intend to be bound by the treaty, but also is free to work against its aims, under Article 18 of the Vienna Convention on the Law of Treaties. 

The ICC has issued 61 arrest warrants resulting in 22 detentions, 33 prosecutions, 11 convictions and 4 acquittals.  Thirty indicted defendants remain at large, including Kony.

               Kony’s alleged activities and indictment.

               Kony is the founder and leader of the Lord’s Resistance Army (LRA), a rebel terror group based in northern Uganda, whose activities have branched out into neighboring states, including the Democratic Republic of Congo, South Sudan and the Central African Republic.  The LRA mixed elements of a spiritual movement with a political one, organized and activated to return political power in Uganda to leaders from the north of the country.  The LRA attacked civilians and fought the Ugandan army with a misguided and unfocused political agenda, motivated primarily by the desire to inflict violence and retain the status of its leaders as cult-like, religious-adjacent warlords.  The LRA employed abductions of young men to serve as child soldiers and young women as targets of rape and forced marriage.  The murders and forced displacement of civilians numbered in the tens of thousands.  The Ugandan military has been an unreliable partner of western powers in pursuing Kony.  Similarly, the state’s judicial system has proved itself unequal to the task of administering justice, rarely prosecuting captured lieutenants and granting amnesty to one key commander in a baffling constitutional ruling.  The failure of domestic justice mechanisms is one essential element in the ICC asserting jurisdiction, on the theory the ICC will and can do that which domestic processes either cannot or will not, for various reasons.

               The ICC issued an arrest warrant for Kony on July 8, 2005, following his indictment by the court.  The prosecution’s charging document details 36 separate counts of war crimes and crimes against humanity from July 1, 2002 to December 31, 2005 in northern Uganda and neighboring regions.  He was indicted with three codefendants, all of whom have had their proceedings terminated due to their deaths.  Kony has steadfastly eluded capture for over 20 years, despite substantial international effort and pressure to capture him, including US advisory and assistance missions in central Africa.

               In absentia proceedings. 

Having evaded capture for so long, on November 23, 2023, the ICC’s pretrial chamber issued a preliminary decision to hold a “confirmation of charges” hearing in Kony’s absence, authorized by Article 61 of the Rome Statute.  The pre-trial chamber acknowledged the exceptional nature of such a hearing, balancing Kony’s due process rights with the interest of justice, including the gravity of the alleged crimes, the impact on victims of delay, and the prospect of moving the case forward.  The court set the hearing for October 15, 2024, then postponed it on defense motion.  On October 29, the pretrial chamber decided that all the requirements for the confirmation of charges hearing had been met.  In April 2025, the Office of the Prosecutor amended the charges, and the court scheduled the hearing for September 9, 2025.  The hearing began today, as planned.  Only the “confirmation of charges” hearing has been approved to be conducted in absentia, and there is no reason to believe proceedings on the merits would be permitted in absentia.  Still, today’s hearing, which may last days or weeks, is both symbolic and practically helpful, announcing the court’s resolve to move the case forward and signaling to states the court welcomes redoubling efforts to detain Kony for trial.

Setting Precedent. 

The Kony case is interesting, and if the allegations against him are true, it begs for justice which should not be delayed longer simply because he has evaded capture and accountability.  The far more impactful effect of the Kony in absentia proceedings is the possibility of setting precedent for other in absentia proceedings where the court determines the probability of detention of the accused is remote.  Vladimir Putin and Benjamin Netanyahu, both indicted heads of state, will never place themselves in a position to be captured.  Moreover, there is likely only a remote possibility of fundamental regime change in Russia and Israel such that either head of state would be detained by a successor government and rendered to the court, as has occurred in the Philippines with former President Rodrigo Duterte.  To wit, Putin’s recent visit to the US occurred in Alaska, where his plane left Russia and almost immediately entered US airspace, where his detention and rendition to the ICC was assuredly precluded by US-Russia ad hoc negotiations and US policy of non-cooperation with the ICC.  Similarly, Netanyahu’s foreign travel is infrequent and carefully planned to minimize the possibility of the plane having to conduct an emergency landing on the territory of a state party to the ICC maintaining an affirmative obligation to detain and render him to the ICC.  Because both defendants are likely never to appear in The Hague, the trial court may be tempted to proceed without them.  This hampers their defense, of course, but also is a product of their own unavailability through avoidance.  The court’s rationale in the Kony case could be equally applied to Putin or Netanyahu, if the judges reason proceedings – against a head of state – in absentia producing finality is more important than the defendant’s self-engineered lack of personal participation in the proceedings.

Conclusion.

The ICC has a long pathway to negotiate before rendering a judgment in the Kony matter, but the journey of 1,000 miles starts with one step.  More importantly, the precedent for heads of state indicted by the court and unlikely to be rendered physically to the court’s jurisdiction is significant.  This step may alter the political calculations within each state regarding their heads of state holds on power and their de facto immunity from the assertion of physical detention long term.