Trial in Absentia under the Rome Statute
Article 61(2)(b) of the Rome Statute provides that a Pre-Trial Chamber
may conduct a confirmation of charges hearing in the absence of the suspect if
he or she has absconded or cannot be located, provided that reasonable steps
have been taken to secure their appearance and to notify them of the charges.
The Chamber retains discretion to authorize such proceedings where justice
demands that accountability not be indefinitely stalled by the accused’s
flight.
The October 2024 and June 2025 decisions confirm that Kony’s case meets these conditions. The Court
emphasized that while the presence of the accused remains the default,
exceptions are permissible under carefully defined safeguards, including:
- Notification: all reasonable measures to inform the accused of
the charges;
- Representation: appointment of qualified defence counsel to
safeguard the accused’s rights;
- Participation
of victims:
recognition of victims’ rights to participate and present views; and
- Future
review: the accused’s right, if
apprehended, to challenge charges confirmed in his absence.
This jurisprudence strengthens the Rome Statute’s dual commitment to fairness and
victims’ rights, underscoring
that the administration of justice cannot be indefinitely paralyzed by a
suspect’s refusal to submit to jurisdiction.
Procedural History of the Kony Case
- Referral and Investigation: Uganda ratified the Rome Statute on 14 June 2002 and referred the situation in Northern Uganda to the ICC Prosecutor on 16 December 2003. An investigation was formally opened on 29 July 2004.
- Warrants of Arrest: Warrants for Kony and four other senior LRA commanders were issued between May and September 2005. These were unsealed on 13 October 2005. To date, Kony remains at large.
- Status of Co-Accused: Proceedings against Raska Lukwiya (2007), Okot Odhiambo (2015), and Vincent Otti (2023) were terminated upon confirmation of their deaths. Only Dominic Ongwen was apprehended; his case was severed in February 2015, leading to his trial and subsequent conviction and sentencing to 25 years in prison.
- Engagement with Uganda: Between 2007 and 2008, the Court examined Uganda’s proposed accountability mechanisms under the Juba peace process but reaffirmed that the ICC’s jurisdiction remained intact. Although Uganda referred the situation to the ICC in line with the principle of complementarity enshrined in Article 17 of the Rome Statute—which places primary responsibility on States to investigate and prosecute serious crimes, with the ICC intervening only where national efforts are inadequate or unavailable—it has also undertaken several domestic initiatives to address accountability and redress for atrocities committed during the LRA conflict. Following the 2007–2008 Juba Peace Talks, the government committed to establishing a Special Division of the High Court of Uganda, later formalized as the International Crimes Division (ICD), mandated to prosecute war crimes and crimes against humanity. The ICD has since initiated proceedings, most prominently the case of Thomas Kwoyelo, who in 2024 was convicted on 44 counts of war crimes and crimes against humanity. In addition, Uganda adopted the National Transitional Justice Policy in 2019, which, among other pillars, provides for reparations and reconciliation. However, domestic progress has been slow with the policy yet to be passed into law.
- Admissibility
Challenges: In
2008–2009, the admissibility of the case was contested, but both Pre-Trial
Chamber II and the Appeals Chamber confirmed that the case was admissible
under Article 17 of the Statute.
Key Recent Decisions
October 2024: Pre-Trial Chamber II
The Chamber ruled that confirmation of charges proceedings against Kony
could lawfully proceed in absentia. It held that the Prosecutor’s notification
efforts, the appointment of independent defence counsel, and victim
participation mechanisms provided sufficient guarantees of fairness.
June 2025: Appeals Chamber
Building upon the 2024 ruling, the Chamber determined that the statutory
requirements had been conclusively satisfied in Kony’s case, noting:
- his
deliberate evasion of justice for over two decades;
- the
failure of extensive international and regional arrest efforts; and
- the
imperative to preserve evidence and advance victims’ right to justice.
The Chamber stressed that in absentia proceedings safeguard the
integrity of the historical record and recognize victims’ suffering, preventing
impunity through attrition.
Next Procedural Milestone
The ICC has scheduled the confirmation of charges hearing against Joseph
Kony to begin on 9 September 2025. This hearing will assess whether sufficient evidence
exists to commit the case to trial. Although Kony will not be physically
present, he will be represented by appointed counsels led by Mr Peter Haynes who was appointed in June 2024. His appointment followed an open call for expression
of interest, an assessment of Counsels applications by a panel and the final
recommendation submitted by the ICC Registry in a Report to ICC judges. While
victims will continue to participate through their legal representatives led by
Ms. Paolina Massidda. Pre-Trial
Chamber II has granted 41 persons the status of victim authorised to
participate in the case.
Significance for Victims and Communities in Northern Uganda
For more than twenty years, survivors of LRA atrocities have endured
repeated delays in the quest for justice. The confirmation of charges
proceedings in absentia represents a watershed moment: justice is advancing
despite the accused’s continued evasion. These decisions reaffirm that
accountability is not contingent upon the cooperation of perpetrators but
remains anchored in the rights of victims to truth, justice, and recognition.
In fact, Richard Okwera (not real names), a former abducted asserts that,
“I
was abducted as a child and forced to fight in a war I did not choose. For
years, I carried the weight of fear, loss, and silence. Seeing the ICC finally
move forward reminds me that our suffering is not forgotten and that justice,
even delayed, is still possible. But we still wait to see how this will go on.”
FJDI’s Role and Commitment
The Foundation for Justice and Development Initiatives (FJDI) remains
committed to monitoring developments at the ICC and to ensuring that victims’
perspectives and concerns reach concerned
stakeholders. Through outreach, documentation,
and advocacy, FJDI will continue to inform survivors and affected communities
of each step in the proceedings. FJDI will partner with the ICC outreach team
to livestream proceedings in Gulu city starting on September 9.
“As FJDI, we want to walk with victims and survivors
all steps of the way. We have already worked together since 2016 pushing for
accountability and redress and this step by the ICC gives us hope that justice
will come, eventually.” – FJDI program officer
Justice delayed must not become justice denied. The forthcoming hearing
marks a crucial step in ensuring that the voices of victims in Northern Uganda
are heard.
______________________________________________________________
FJDI works with children, youth, women and communities to promote
justice, development and economic recovery in Uganda. FJDI seeks solutions to
the long-term impacts of conflict by advocating for redress. FJDI has played a
pivotal role in documenting atrocities, profiles and evolution of victims’
reparations needs, victims’ groups and associations, implementing transitional
justice processes, and advocating for reparations for families since 2016.
Further Readings:
1. Taking Stock of Victims' Associations in Northern Uganda, August 2023
2. FJDI Policy Brief No. 2019-001
3. Community Members call for an Expeditious Process to pass the NTJP Policy into law, October 2020
5. Victims Groups and their challenges in Northern Uganda, September, 2019
6. FJDI Blog: https://fjdiorg.blogspot.com/
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