Absent but Accounted? Rethinking “Fled,” “Cannot Be Found,” and Good Cause in the Kony Confirmation Decision

(Image credit: CNN, 9 Mar 2012, Joseph Kony [Photograph]. https://media.cnn.com/api/v1/images/stellar/prod/120309015105-joseph-kony-file-more.jpg)

Joseph Kony, indicted leader of the Lord's Resistance Army (LRA), has eluded capture for over 20 years since his July 2005 arrest warrant for crimes against humanity and war crimes in Uganda. Kony marks the International Criminal Court’s (ICC) first precedent on in absentia confirmation hearings, definitively interpreting the exceptions of “fled” or “cannot be found” and resolving whether initial appearances are a prerequisite to the said exceptions; through demonstrating the ICC’s evolving capacity to prosecute elusive suspects who have fled or cannot be found despite sustained efforts to secure their appearances. This article argues that the Appeals Chamber’s (AC) interpretation creates problematic contradictions in the statutory framework. We examine first the AC’s interpretation of “fled” and “cannot be found”, and second its justification for confirmation without initial appearance. We critique the AC’s Decision that reversed Pre-Trial Chamber III’s (PTC III) interpretation of “cannot be found” to refer to persons that have never been accessible to the court, arguing that it is inconsistent with the Courts procedural rules-under Article 61(2) of the Rome Statute (RS), and Rules 123-126 of the Rules of Procedure and Evidence (RPE)-, and ignores the Rome Statute’s purpose and the broad aims of international criminal justice.

Interpretation of “fled” or “cannot be found”

Article 61(2)(b) of the RS permits in absentia confirmation of charges where the suspect has “fled or cannot be found.” The Office of Public Counsel for the Defence (OPCD) argues that absentia confirmation hearings can only be held after the suspect has made a prior appearance—a position the PTC III has rejected.

The PTC III found that an initial appearance is not required for persons that qualify as “cannot be found”. The Court's rationale centers on the distinct ordinary meanings of “fled” and “cannot be found.” The latter indicates a person who was never available to the Court, and whose whereabouts are unknown, while the former refers to someone who has absconded, representing two different and independent situations, both distinguishable from cases where the suspect has made an initial appearance.

OPCD’s in the Appeals Chamber contended that PTC III’s distinction constitutes a material error. OPCD argued that, if read together with “subject to” under Article 61(1) of the RS, an initial appearance is mandatory prior to the in absentia confirmation of charges if the suspect has “fled” or “cannot be found.” Based on this, OPCD contends that the prerequisite for an in absentia hearing is not a pro forma exercise but a well-established, distinctive regime that prescribes distinct and successive appearances at the “initial proceedings.” Consequently, the PTC cannot proceed without an initial appearance.

The AC’s responded to OPCD that the question was not whether the constraints of Article 61 of the RS are incompatible with the exceptions under Article 61(2) of the RS, but whether an in absentia hearing without the suspect's initial appearance is incompatible with the accused’s rights enshrined under Article 67 of the RS. The AC concluded in the negative, noting that there are adequate safeguards both under Article 67 of the RS and the Statute's notable exclusion of in absentia trials. The AC reasoned that confirmation hearings determine evidence sufficiency, not guilt. Therefore, requiring an initial appearance before in absentia confirmations would (1) deprive suspects of early evidence review, and do so (2) without providing meaningful additional protections, since all rights and guarantees remain fully available at trial under Article 67 of the RS.

Of particular note was the AC’s determination that constraining trials in absentia to the qualification of an initial appearance is a point of departure from the objects and purpose of the RS—namely, to “put an end to impunity”. We agree with the interpretational method used to arrive at the conclusion that the phrase “subject to” under Article 61(1) of the RS gives Article 61(2) authority to be applied lex specialis to paragraph 1. The logical sequence of the RS’s drafting seems to confirm as much, as the founding drafters, despite much contention around the issue, were informed by Rule 61 proceedings under the International Criminal Tribunal for the former Yugoslavia, that dealt with unexecuted warrants of arrest—and as such, confirmations in absentia would serve the same purpose envisaged, being to advance criminal proceedings that have otherwise stalled through nudging state parties and international actors to seek the suspect's apprehension.

Despite that, we find the AC’s judgment on the phrase "was never accessible to the court" as inconsistent with the ordinary meaning of "cannot be found", i.e. contrary to the logic of the RS. Such an interpretation yields broad discretionary powers to the chamber that may require, or not, initial appearances for persons who have "fled" or "cannot be found," being equally subject to the consultations under Rules 123(2) and 125(1) of the RPE on whether or not an initial appearance is necessary.

The interpretation of the terms “fled” or “cannot be found” in the Kony Appeals Judgment is problematic for two reasons, first because the an interpretation of “fled or cannot be found” does incur an inherent interpretational contradiction second, Article 62 of the RS as informed by its drafting history reasonably suggests an assessment of the accessibility of suspects to the Court.

The terms “fled or cannot be found” incur contradictions

The Appeal Judgment found that the PTC III failed to prescribe the ordinary meaning to 'fled or cannot be found' based on its rationale that 'or' can be interpreted as either inclusive or mutually exclusive. However, both 'fled' and 'cannot be found' cannot be read together without creating logical contradictions because the confirmation of charges procedure inherently requires assessing a suspect’s prior accessibility to distinguish between “fled”—those previously accessible—and “cannot be found”—those never accessible to the court.

First, it contradicts the logic envisaged under Rule 123(3) of the RPE providing that if a warrant is not executed within a reasonable period of time, all reasonable measures must be taken to locate and arrest the person. This we infer as that those who are not “accessible”, do not require an initial appearance. By expressly including the failure to arrest scenario, an interpretation of Rule 123(3) operates expressio unius est exclusio alterius, as the express reference to scenarios where an arrest warrant has not been executed- and the suspect is not and has never been accessible to the court- implies the exclusion scenarios where an arrest warrant has previously been executed- but the person is no longer accessible to the Court as they have fled.

Second, Rule 121(1) of the RPE obliges the PTC to set a date on which it intends to hold a hearing to confirm the charges at the initial appearance. We understand this as referring to cases where the suspect has at least previously been accessible. Both Rules 121(1) and 123(3) of the RPE, ordinarily read and interpreted, in our view call for an assessment of the suspect's previous accessibility to the Court. The Statutory criteria, while lex specialis and discretionary—if read in a holistic manner—intrinsically call for an assessment of previous accessibility. If the accused was previously accessible, it qualifies the Court to conduct in absentia confirmations for persons that have “fled” pursuant to Rule 121(1) of the RPE. If the accused were never accessible, the Court shall remit considerations to Rules 123(2) and 125(1) for an accused who “cannot be found”. This is not to say that an initial appearance is mandatory for in absentia confirmations for persons that have “fled”—given Rule 126 of the RPE being clear on the mutatis mutandis applications of Rules 121 and 122 (which could contemplate an in absentia confirmation where one was apprehended but fled before an initial appearance)—but rather, if interpreted in a manner that gives meaning and effect to all constituent words, it remains at least arguable that an assessment of accessibility is pertinent to qualify a suspect under either of the three categories envisioned under Article 61(1) and (2) of the RS.

Article 62 RS should be interpreted as informed by its drafting history

We find the AC’s exclusion of the accessibility standard to be akin to the Court working against its own logic: while they have empowered the PTC with greater discretionary powers that rise above the obstacle of initial appearances, they have unjustifiably narrowed the scope of in absentia confirmation of charges more than required. PTC III affirmed that even if “cannot be found” includes an assessment of previous accessibility to the Court, the definition does not apply to persons whose approximate whereabouts are known but cannot be accessed by the Court due to non-cooperation of States. The exclusion of the accessibility standard certainly narrows the scope for those who qualify and forecloses the possibility of arguments along that line for suspects such as Netanyahu, Putin, Al Bashir, and Gaddafi.

Such an outcome would be contrary to the objects and purpose of the Statute as envisaged under the Preamble of the RS. It is especially difficult to reconcile this position, given the AC clearly states that the relevance of failure of initial appearance due to the level of State cooperation may be a contextual consideration envisaged under Rules 123(2) and 125(1) of the RPE. It would inextricably relate to an assessment of factors that affect the suspect’s accessibility to the Court. It is further notable that the possibility for in absentia proceedings was initially enshrined in the governing documents of the ICTY as a result of necessity to overcome the barriers of extreme delay to proceedings and the international community’s disapproval of such delays. Rule 61, then provided for a procedure that reconfirmed the indictments when suspects could not be apprehended and served as a procedure to achieve enforcement of a warrant which is focused on the Courts lack of access/presence of the accused. In our view, interpreting “cannot be found” to mean a suspect whose precise whereabouts are unknown, or, alternatively, has never been accessible to the Court would be most appropriate. This accommodates the considerations under the RPE and potentially addresses where known but inaccessible suspects fall within the RS framework.

Additionally, if the above premise—that the drafters were informed by Rule 61 of the ICTY—is correct, it would only seem logical to us that in absentia confirmations for persons that “cannot be found” serve to push the international community to execute the said warrant of arrest and compel apprehension (to the end of an initial appearance at least). The same would not be true for persons who have “fled,” as the assumption (which may be reasonably contended as erroneous) is that the warrant must have been executed, at least initially.

Kitonga Mulandi is a law graduate of Strathmore University, Kenya. He currently works as a Research Assistant for the Strathmore Institute for Advanced Studies in International Criminal Justice and as a Legal Assistant for KSM Advocates, a law firm in Nairobi, Kenya.

Albert Ngigi Macharia is a law graduate from Strathmore University, Kenya. He currently works as a Graduate Assistant for Strathmore Law School and a Research Assistant for the Strathmore Institute for Advanced Studies in International Criminal Justice.