About the author(s):
Anne-Charlotte Baron is a researcher and PhD candidate in social and military sciences at the Royal Military Academy (Belgium) and in law at the University of Antwerp (Belgium). Her research focuses on lawfare, international criminal law and international humanitarian law.
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On 6 November 2025, Pre-Trial Chamber III of the International Criminal Court (ICC) issued a decision confirming the charges brought by the Prosecutor against Joseph Kony. This decision followed a confirmation of charges hearing held on 9 and 10 September 2025, in the absence of the person. This procedural development at a preliminary stage concerns Joseph Kony, the notorious leader of the Lord’s Resistance Army (LRA), who remains at large despite being under an ICC arrest warrant since 2005. As such, the Kony case represents a landmark moment, offering the Court an opportunity to clarify its approach to confirmation of charge hearings in absentia when the person cannot be found. Before holding this confirmation of charges hearing, Pre-Trial Chamber conducted a meticulous procedural and factual analysis to verify that the relevant conditions were met, which was set out in earlier decisions, especially since 2023.
This blog post analyses the path that the ICC followed since 2023 to authorise the confirmation of charges hearing in absentia in the Kony case and that led to the audience of 9 and 10 September and, finally, to the 6 November decision. In connection to this unprecedented jurisprudence, it also analyses proceedings in absentia and their relationship to fair trial rights.
The Unique Nature of the ICC Pre-Trial Procedure
The Rome Statute establishes a distinct procedural phase between the investigation and the trial: the confirmation of charges hearing, outlined in Article 61. This hearing does not constitute a trial per se, but it is a preliminary step to determine whether there are substantial grounds to believe the person committed the alleged crimes.
While this phase is normally conducted in the presence of the person, Article 61(2) of the Rome Statute permits the hearing to proceed in the absence of the person either (a) if the person has waived his right to be present (Article 61(2)(a)), or (b) if he has fled or cannot be found (Article 61(2)(b)) and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. The person will be represented by a counsel where the Court considers it to be in the interests of justice.
The Kony case provided the first judicial interpretation of Article 61(2)(b) Rome Statute, allowing the ICC to delineate the criteria for proceedings in absentia at the pre-trial stage.
Establishing Jurisprudence with the Kony Case
Joseph Kony is suspected of 39 war crimes and crimes against humanity, allegedly committed between July 2002 to 31 December 2005 in northern Uganda. Although an arrest warrant has been pending since 2005, Kony had remained out of reach since 2006.
In this Kony case, Pre-Trial Chamber II clarified for the first time, in a 2023 decision, the necessary conditions for holding a confirmation of charges hearing in the absence of the person, on the basis of the grounds set out Article 61(2)(b) of the Rome Statute i.e. the person has fled and cannot be located. It found that the respective three cumulative conditions set out in paragraph (b) were met.
Firstly, the person fled or cannot be found. Pre-Trial Chamber II interpreted the first condition as covering a person who is not available to the Court (para. 27) despite substantial efforts by the Registry and other relevant stakeholders to trace him (para. 35). Crucially, it held that “cannot be found” does not cover situations in which the approximate whereabouts of the person are known but the Court is unable to have an arrest warrant executed due to reasons unrelated to the identification of the person’s location, for instance due to lack of cooperation (para. 32). With regard to the Kony case, Pre-Trial Chamber II relied on the classified information provided by the Registry that showed that Mr Kony’s whereabouts remained unknown (para. 35) and did not give further explanations on this condition.
Secondly, the ICC also considered that all reasonable steps have been taken to secure the person’s appearance before the court. According to Rule 123(3) of the Rules of Procedure and Evidence, the Pre-Trial Chamber must ensure that, if the issued warrant of arrest has not been executed, all reasonable steps were taken to locate the person concerned and have them arrested. In the context of the Kony case, those efforts included issuing the arrest warrant to countries where the person was believed to be hiding, cooperation and diplomatic efforts with States, public information campaigns, outreach activities and communication attempts through intermediaries (para. 41, 42 and 43).
Furthermore, all reasonable steps must have been taken to giving notice of the charges. Though the Rome Statute provides the right to be informed of the charges, it remains silent on how to notify a fugitive. Therefore, the Court established that sufficient efforts to inform can be taken by broadcasting or using social media in States where the concerned person is believed to be located (para. 6). Additionally, it noted that the Registry contacted communities and persons close to Kony (para. 7). For instance, in the Kony case, the Registry initiated large-scale media campaigns, both in Uganda and neighbouring countries, broadcasted the summary of the document containing the charges in Acholi and English on different radio stations in Northern Uganda, read it out in Acholi during interactive radio programs conducted on two community radio stations most listened to by rural communities in Northern Uganda and launched a radio campaign on two radio stations in the Central African Republic during which the existing charges against Kony were explained in French and Sango (see para. 6).
The court held that although the Registry must attempt to notify the person of the day of the hearing, it is not necessary to prove that the person actually received this information (para. 70).
Thirdly, there needs to be “cause” to hold a conformation of charges hearing in absentia. The discretionary nature of Article 61(2) Rome Statute follows from the use of the word “may” (para. 58) in the chapeau of this article. The Chamber established various criteria and balanced competing interests at large in order to decide whether to hold a hearing on confirmation of charges in the absence of the person concerned (paras. 60 et seqq.). It must ensure that the person’s right to a fair trial, free from undue delay, was upheld. Moreover, the Chamber highlighted the importance to weigh the expectations of victims if charges were confirmed, as well as the realistic likelihood of the person appearing before the Court for trial. Based on the specifics of the case, including the nature and scale of the alleged crimes and the role of the individual in their perpetration, the Chamber must determine whether a confirmation hearing in absentia would serve the interests of justice (para. 64). Additionally, it must assess the Court’s resources and budgetary implications (para. 61).
Comparative Perspectives: Not an Unprecedented Path
Generally speaking, if the charges are confirmed at the preliminary phase, the case may proceed to trial only if the person is present before the Trial Chamber of the ICC (Article 63). Trials in absentia remain largely impermissible under Article 63(1). Nevertheless, there are two exceptions. The first is foreseen in Article 63(2) and concerns the cases when the person disrupts the ongoing trial. The second exception emerged in the jurisprudence of the Ruto and Sang case in the Kenya situation, where the Chamber allowed partial absence under certain procedural safeguards. This was permitted for the person who expressly waived his right to be present because of his high profile (as president or deputy president of a State) in order not to delay the ongoing investigations carried out regarding his possible responsibility. These two exceptions are not relevant to the situation of a fugitive person.
However, when reviewing in 2023 the conditions for holding a confirmation of charges hearing in absentia because the person could not be found, Pre-Trial Chamber II held that, in its view, the Rome Statute should have foreseen the possibility to conduct a trial in absentia, when charges are confirmed pursuant to article 61(2)(b) of the Statute and the interests of justice so demand (para. 70). It added that it would be valuable for States Parties to reconsider the discipline of in absentia trial proceedings before the Court, in this regard for any future instances (para. 70). If this suggestion is taken into consideration, we can directly think that it might have implications for further high-profile against whom there are arrest warrants out (see Just security).
In general, proceedings in absentia are not unknown in international criminal law since international and hybrid tribunals have dealt with absent defendants in various ways.
The Charter of the International Military Tribunal of Nuremberg permitted trials in absentia in its Article 12 if it was in the interests of justice.
On its side, the International Criminal Tribunal for the former Yugoslavia (ICTY) prohibited trials in absentia (see Article 21(4)(d) ICTY Statute). However, Rule 61 of the Rules of Procedure and Evidence allowed for a public hearing before the Trial Chamber if a warrant of arrest has not been executed and personal service of the indictment has consequently not been effected.
Furthermore, the International Criminal Tribunal for Rwanda (ICTR) also prohibited trials in absentia (see Article 20(4)(d) ICTR Statute). We must highlight that the Rules of Procedure and Evidence also have the same Rule 61 as the one in the Rules of Procedure and Evidence of the ICTY
In addition, the Special Tribunal for Lebanon expressly authorised the practice of trial proceedings in absentia. However, in this case, the respect of conditions had to be observed under Article 22 of the Statute of the Special Tribunal for Lebanon.
Besides, the European Court of Human Rights (ECtHR) has recognised that proceedings in absentia are not per se incompatible with Article 6 of the European Convention on Human Rights, provided there are procedural guarantees. Hence, the accused must be duly notified of the proceedings, he must be assisted by a lawyer and he must have the right to a trial from scratch in his presence if he did not waive their rights or did not know about the trial (see Colozza v. Italie of 12 February 1985).
These precedents reveal a broader trend: when crafted carefully and supported by procedural guarantees, proceedings in absentia can be necessary and lawful under certain conditions.
A Step Toward Justice: Balancing Fair Trial Rights and Victims’ Interests
The Kony confirmation hearing presents a delicate balance between two sets of rights that the Pre-trial Chamber has held in its 2023 decision. On the one side, the person’s right to be present and defend himself or herself in a due process and the concerns about the erosion of fair trial guarantees. On the other side, the interests of justice, including the gravity of the alleged crimes and alleged role of the person in their perpetration, the impact of the confirmation hearing on victims, and the prospect of the case further advancing should the charges be confirmed (see the 2023 decision, para. 64).
The Pre-trial Chamber considered that a confirmation hearing against Kony, even in his absence, would be beneficial for the victims of his alleged crimes (para. 65). The holding of a confirmation hearing in absentia may offer an opportunity for the victims to present their views and concerns, given that the Rome Statute prohibits trials in absentia. Accordingly, the pre-trial hearing could constitute the only forum for their participation if Kony fails to appear before the Court.
But more broadly, the Pre-trial Chamber considered that the stagnation of this case is due to the persistent attempts of Kony to evade justice (para. 67). As he remains the only suspect in the Uganda situation, the Court is aware that this confirmation of charges hearing in absentia is a way to show that the absence of the person does not necessarily equate to the absence of justice.
We can see that the Pre-Trial Chamber analysed meaningfully the victim’s rights and gave priority to them. Still, the ICC reiterated on several occasions that a confirmation of charges hearing in absentia remains an exceptional procedure, not a standard practice since the person concerned cannot exercise his rights under the Rome Statute during the confirmation of charges hearing.
Conclusion: A Precedent for Exceptional Circumstances
The Kony case provides the opportunity to examine the conduct of confirmation of charges hearings in absentia before the ICC. By conducting this hearing, the Court reaffirmed its commitment to combating impunity, while balancing procedural rights of the person with the legitimate expectations of the victims. Nonetheless, while such proceedings should remain exceptional at the pre-trial stage, they are currently not possible at the trial stage.