In June 2024, I was invited to present a series of lectures in The Hague, sponsored by the Asser Institute, Leiden University School of Law, and the International Bar Association on the upcoming in absentia confirmation of charges proceeding in the case of Joseph Kony, scheduled for Oct. 15, 2024. The upcoming in absentia proceeding under Article 61 of the ICC Statute, the first of its kind at the International Criminal Court (ICC), has engendered a great deal of interest because of its potential to serve as precedent in other cases in which charged individuals have long evaded the ICC.
Kony, the indicted leader of the Lord’s Resistance Army (LRA), has eluded capture for nearly 20 years. The ICC issued an arrest warrant for Kony in July 2005, charging him with commission of crimes against humanity and war crimes in Uganda since 2002. During that time, the LRA kidnapped some 60,000 children and transformed them into child soldiers and sex slaves through torture and brainwashing.
Background of Article 61 of the ICC Statute
It may be a coincidence that the Article in the ICC Statute that provides the ICC authority to hold in absentia confirmation of charges proceedings has the same number as the Rule that authorized the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold in absentia review of an indictment. But ICTY Rule 61 is unquestionably where the idea for ICC Article 61 came from.
As Dr. Paul Williams and I documented in our book Peace with Justice (2002, Roman and Littlefield), when the ICTY was established, the U.N. and major players were skeptical that the Yugoslavia Tribunal would ever gain custody over the leading war criminals such as Radovan Karadžić and Ratko Mladić. At the time, none of the States of the former Yugoslavia were supporting the Tribunal, the NATO troops in the territory took the position that they did not have the authority to make arrests, and the international community lacked political will to leverage cooperation.
Like the ICC, the ICTY represented a blending of the civil law inquisitorial approach and the common law adversarial approach. Common law countries do not permit trials in absentia, while civil law countries do. In a compromise that Professor Megan Fairlie (p. 36) decried as “cafeteria inquisitorialism,” the drafters came up with Rule 61, entitled “Procedure in Case of Failure to Execute a Warrant of Arrest.” According to Professor Gregory Gordon (p. 39), its purpose was to “allow the functional equivalent of a trial in absentia” without a binding judgment when an individual indicted by the ICTY was unlikely to be surrendered to the Tribunal. During a Rule 61 hearing, the prosecution would call witnesses and submit evidence in a public, televised proceeding. But the absent accused would have no right to mount a defense through counsel as in a traditional trial in absentia. If, upon conclusion of the proceeding, the Trial Chamber was satisfied that there were reasonable grounds for believing that the accused has committed any of the crimes charged, it would re-confirm the indictment and issue an international arrest warrant and order States to freeze the assets of the accused.
As described by one commentator (p. 112), the purposes of Rule 61 were threefold: First, it would publicly air the evidence against the accused to put pressure on the Security Council to take action against non-cooperating States. Second, it would create a historic record in the event that a proper trial never takes place. In that way, it was designed to function as a mini-truth commission. Third, it was hoped to have a potential cathartic or therapeutic effect on witnesses who would be able to testify in the proceeding or see others similarly aggrieved take the stand.
The ICC’s Article 61 is almost identical to the ICTY’s 61 proceeding. The only difference is that, unlike the ICTY, the ICC approach provides a role for defense counsel in the in absentia confirmation of charges proceeding. In May 2024, the ICC Registrar circulated a call for Defense Counsel to represent Kony at the upcoming in absentia proceeding, and on 21 June 2024 the Registrar notified the ICC that it had appointed British barrister Peter Haynes to do so. Haynes has represented defendants before the ICTY, the Special Tribunal for Lebanon, and the ICC, including Jean-Pierre Bemba, who was acquitted of all charges.
Justifying an In Absentia Proceeding for Kony
ICC Rules 123(2) and 125(1), which implement Article 61, require the prosecution to prove “cause” before the Pre-Trial Chamber will authorize an in absentia confirmation proceeding. This proved a bit awkward for the prosecution in the Kony case because prior to requesting in absentia confirmation in November of 2022, the Prosecution had been “resolutely” opposed to such a proceeding for Kony because of “the enormous expense of … time, money, and effort for no benefit at all” (Transcript from Ongwen Case, p. 26). Nothing had changed in November 2022 except the prosecution’s position.
To justify its change of position, the prosecution stated that the in absentia confirmation proceeding was warranted because Kony has remained at large for almost two decades despite huge money rewards and the deployment of armed forces to apprehend him. The Prosecutor further articulated three “good causes” for the in absentia proceeding: First, it would demonstrate that the ICC “will not be thwarted by attempts to evade justice.” Second, such proceedings would publicly air evidence and thereby galvanize the international community’s efforts to apprehend Kony. Third, it would enable the victims to voice their views, and thereby constitute a meaningful milestone for victims of Kony’s alleged crimes. (Prosecution’s Request, paras. 4-7).
In considering these justifications, the Pre-Trial Chamber is required to balance the interests of justice against potential prejudice to the accused. The efforts to create a historic record, flood the international community with a sense of urgency for the apprehension of Kony, and let victims be heard can degrade the defendant’s interest in a fair trial. The appointment of defense counsel may balance the scale if the counsel will be provided sufficient resources and opportunity to review the prosecution’s witness statements and potentially exculpatory evidence in advance of the Article 61 hearing, and then cross examine the prosecution’s witnesses, present contradictory evidence and witnesses, and make arguments during the hearing. To effectively serve this purpose, the Pre-Trial Chamber will likely have to appoint and provide funding for additional defense counsel and staff.
The Kony proceeding will set the benchmark for the extent of the evidence in future Article 61 proceedings before the ICC. It could end up being a many week mini-trial with testimonial, video, and documentary evidence by both the prosecution and defense. To gauge the extent of the proceeding, on Mar. 4, 2024, the Pre-Trial Chamber ordered the Prosecutor to inform the Court (1) the amount and language of documents it plans to introduce at the hearing; (2) the amount and language of photographic, video, and audio evidence it plans to introduce; (3) the amount and language of exculpatory evidence it plans to disclose in advance; (4) the number of witnesses the Prosecutor plans to call; (5) the protective measures for witnesses the Prosecutor will seek; (6) efforts the Prosecutor has undertaken to obtain the consent to disclose evidence to the defense that was provided under a confidentiality agreement’ and (7) the earliest date that it will be able to make disclosures to the defense. Depending on the volume of these disclosures, it is likely that the Pre-Trial Chamber will have to postpone the date of the Article 61 hearing by several months to give the Defense adequate time to prepare.
Could the Kony Precedent be Used in the Case of Vladimir Putin?
Ever since it was discovered that Nazi leader Martin Bormann was already dead when he was tried in absentia by the Nuremberg Tribunal, there has been widespread skepticism of in absentia trials before international tribunals. In part that is because, even with an effort to provide equality of arms as described above, the defense in an in absentia proceeding will labor under an inherent disadvantage since the defendant is unavailable to instruct defense counsel on strategic decisions such as what defenses to argue and what alibi evidence to raise. Despite the fact that it cannot result in a guilty verdict, the international community’s perception of the legitimacy of the Article 61 procedure, which is very similar to a trial in absentia, will be tested in Kony just as the legitimacy of in absentia trials was tested in the case of the five Hezbollah defendants who were tried in absentia before the Special Tribunal for Lebanon from 2009-2020.
According to a 2021 Atlantic Council Report, the Special Tribunal for Lebanon trial was widely perceived as an expensive failure. The proceedings, which centered primarily on a bombing that killed former Lebanese Prime Minister Rafik Hariri and others, lasted 11 years, cost more than a billion dollars, ended up with a mixed verdict, and closed down for lack of funds. The Trial Chamber specifically found that there was “no evidence that the Hezbollah leadership had any involvement in Mr. Hariri’s murder and that there is no direct evidence of Syrian involvement in it.” And the three convicted defendants remain at large. It remains to be seen whether the in absentia proceedings against Kony engender a better public reception.
If the Kony in absentia confirmation proceeding is seen as a success, the prosecution may be tempted to use the Article 61 process against other high profile accused persons who remain at large, such as Saif Gaddafi of Libya (whereabouts unknown), Omar Al Bashir of Sudan (under house arrest in Khartoum), and especially Vladimir Putin of Russia (serving as president of Russia in the Kremlin).
Putin is the highest profile individual ever to be charged by an international tribunal. As long as he remains in power, there is little chance that he will be turned over to the ICC. Therefore, the prosecution may wish to seek an Article 61 in absentia confirmation proceeding for the same reasons that it relied upon in the Kony case.
But there are two legal obstacles the prosecution would have to overcome. First, Article 61(2) of the ICC Statute allows for holding a hearing to confirm charges in the absence of the accused only where they have “fled or cannot be found.” The Pre-Trial Chamber (para. 30) applied a broad interpretation of this phrase to mean that an accused must have either been previously accessible to the Court and has absconded, or that the accused “was never available to the Court.” The prosecution would have to convince the Pre-Trial chamber that an accused such as Putin, whose whereabouts are known but who is likely to remain beyond the reach of the ICC while he remains in power, would fall within this interpretation.
Second, it has only been two years since the charges were leveled against Putin. Kony had been at large for 18 years before the prosecution felt compelled to request an Article 61 in absentia confirmation proceeding. Gaddafi has been at large for 13 years; Al Bashir for 15 years. Following the Kony precedent for showing “cause,” it is possible that the Pre-Trial Chamber will require the prosecutor to wait several more years before considering the authorization of an in absentia confirmation proceeding for Putin.
Kony opens the door for in absentia confirmation of charges proceedings in other high-profile ICC cases, but it is a fact-specific analysis and so the prosecution would still need to make the case on specific factors for future defendants.