ICC Judges Issue Preliminary Decision In The Absence Of Witness


On 23 November 2023, Pre-Trial Chamber II of the International Criminal Court (ICC) issued a preliminary decision on the Prosecution’s request to hold a confirmation of charges hearing against Mr Joseph Kony in his absence.

The Chamber composed of Judge Rosario Salvatore Aitala, Presiding Judge Tomoko Akane and Judge Sergio Gerardo UgaldeGodínez, ordered the ICC Prosecutor to file a public “Document containing the charges” within eight weeks from this decision, if he wishes to continue with his request, and the ICC Registrar to submit within four weeks, a plan indicating the outreach activities and notification efforts it would pursue to inform MrKony of the charges against him. That the Chamber will then evaluate whether “all reasonable steps to inform the suspect of the charges” were taken, which is a condition that must be fulfilled before the Chamber can decide whether it is warranted to hold a confirmation of charges hearing in the absence of the suspect, and will therefore decide at a later stage whether a confirmation of charges hearing in the Kony case will be held in absentia.

This decision followed the Prosecution’s “Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” filed on 24 November 2022 and subsequent submissions by parties and participants. Noting all the efforts made, by the Court and the international community, to locate him, the Chamber considered MrKony  as a “person who cannot be found”.

The legal framework required the Chamber to assess whether cause exists to proceed with a confirmation of charges hearing in absentia for MrKony. The Chamber found that such a cause potentially exists. As part of its assessment, it recalled that holding a confirmation hearing in absentia is exceptional. The Chamber balanced the fair trial rights of the suspect, on the one hand, and the interests of justice on the other hand, including the gravity of the alleged crimes and alleged role of the suspect in their perpetration; the impact of the confirmation hearing on victims; and the prospect of the case further advancing should the charges be confirmed.

The Chamber also recalled that the Rome Statute does not allow proceedings in the suspect’s absence beyond the confirmation of charges hearing at the Pre-Trial Stage. Should the charges be confirmed, the case cannot proceed to trial, because any trial requires MrKony to be present before the Court. Notwithstanding the foregoing, in assessing whether to trigger the exceptional procedure envisaged in article 61(2)(b) of the Statute, the Chamber placed substantial weight on the facts that the victims of his alleged crimes have been waiting for justice for over 18 years and that MrKony is the only remaining suspect in the Uganda situation.