The First in Absentia Confirmation at the ICC

Last week, the International Criminal Court (ICC) held its first-ever confirmation of charges hearing in absentia, in the case of The Prosecutor v. Joseph Kony. Twenty years after the Court issued its first arrest warrants against the leadership of the Lord’s Resistance Army, Kony remains at large. Yet, thanks to the initiative of the Office of the Prosecutor (OTP) and a series of decisions by the Pre-Trial and Appeals Chambers, the case is (finally) moving forward but… without Joseph Kony in the courtroom.

The move raises fundamental questions about the place of in absentia proceedings at the ICC. Proceedings in absentia are a divided issue in international criminal law. The phenomenon of in absentia trials has led to diverse approaches in international criminal law in general. Domestic practice is similarly split: common law systems generally prohibit trials in absentia, while certain civil law jurisdictions allow them (sometimes in limited form). The ICC now appears to be charting a middle path: permitting not a trial, but a confirmation of charges hearing in the suspect’s absence.

This development forces us to reconsider the object and purpose of the confirmation procedure. Is it simply a procedural filter, as the Court insisted in its first confirmation decision in Katanga and Chui? Or is the OTP using it as a substitute forum to lay out, in public, the full case against a fugitive who may never appear before the Court and, if so, who then is its audience?

The Role of ICC Confirmation of Charges Hearings

The confirmation of charges hearing is a unique feature of the Rome Statute and the ICC has an elaborate confirmation procedure, which normally takes place after the person’s initial appearance (regulated in Article 60). The confirmation of the charges stage before trial is regulated in Article 61, with Article 61(1) stating that “The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.” Yet, Article 61(2) further provides that:

The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has:

(a) Waived his or her right to be present; or

(b) Fled or cannot be found 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. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice.

In other words, only if the person has fled or cannot be found is it possible to hold a confirmation of charges hearing in absentia. The role of confirmation of charges at the ICC were defined early in the Court’s jurisprudence. In its first such decision, the Pre-Trial Chamber stressed that the procedure of a “confirmation hearing has a limited scope and purpose and should not be seen as a ‘mini-trial’ or a ‘trial before the trial’” (para. 64). Rather, confirmation serves as a filtering mechanism; it tests whether the prosecution has presented sufficient evidence to establish “substantial grounds to believe” the suspect committed the crimes charged, before committing the case to trial.

This filtering function has both institutional and rights-protective dimensions. Institutionally, it prevents the Court from embarking on trials where the evidentiary basis is too weak. For the suspect, it offers a layer of protection against weak or speculative charges moving forward. There has been much debate about the nature and strength of evidence that needs to be provided at the confirmation stage, thereby making the confirmation stage and the procedural purpose a continuing topic of debate.

Nevertheless, the limited scope of the confirmation stage as opposed to the trial stage has profound implications for the present debate. If confirmation is not a trial, then holding it in absentia arguably does less violence to fair trial rights than a full conviction in absentia would, considering that this option is not allowed under the Rome Statute in any case. Yet, the Appeals Chamber made precisely this point in June 2025, when it upheld the Pre-Trial Chamber’s reading of Article 61(2)(b) of the Statute. In its view, allowing in absentia confirmation serves the Statute’s overarching purpose of combating impunity, while avoiding premature adjudication (paras. 71 and 74). Moreover, a confirmation hearing in absentia does not pronounce guilt, nor does it result in a conviction. Instead, it establishes whether the Prosecutor’s charges against Kony are sufficiently grounded to merit trial. It also serves important expressive and procedural purposes, namely creating a public record of the charges laid out in a courtroom, enabling victims to participate, and maintaining momentum in proceedings that have been stalled for two decades.

In Absentia Hearings at the ICC: Legal Innovation?

Therefore, the Office of the Prosecutor’s request to proceed with a confirmation hearing in absentia is not simply a matter of procedural housekeeping. It is, in substance, an effort to break the deadlock that has defined the Kony case since 2005. For nearly two decades, the arrest warrant issued against the Lord’s Resistance Army leader has remained unenforced, leaving the charges in legal limbo.

By requesting to proceed with the confirmation of charges hearing, the Prosecution made clear the ambition to do more than meet the Statute’s filtering function. In this respect, the OTP appears to be leveraging the confirmation stage as a truth-telling exercise. If the trial cannot proceed because the accused remains at large, the confirmation hearing still allows the Court to hear evidence, record allegations, and acknowledge victims’ suffering. As Irene Victoria Massimino has pointed out in her ESIL Reflection, in absentia procedures can serve to “document and preserve evidence, give voice to victims, and keep international attention focused on atrocity crimes” even when fugitives evade capture.

There is also a forward-looking dimension. A confirmed case may exert symbolic and political pressure on states to execute arrest warrants by demonstrating that the Court is unwilling to let proceedings remain frozen indefinitely.

For the Defence, the in absentia confirmation of charges represents not an innovation but a dangerous departure from the Statute’s safeguards. In its Defence Appeal Brief from 7 February 2025, it argued that Article 60(1) makes an initial appearance a prerequisite for becoming a “charged person.” To allow confirmation without such an appearance would render Article 60(1) meaningless. This is further supported by the fact that Article 61 concerning the confirmation of charges follows Article 60 about the initial appearance. The Defence further presented a contextual and drafting history argument, stating that the option of in absentia trials had been explicitly rejected and it emphasised suspects’ rights to be informed of charges, to the presumption of innocence, and to adequate facilities to prepare a defence. In their view, these rights cannot be meaningfully safeguarded if the Court proceeds without actual knowledge of the suspect. Notification efforts, however extensive, do not equate to effective participation. Underlying all these arguments, the Defence presented a broader concern: that confirmation in absentia risks normalizing proceedings without the accused, with potentially corrosive effects on the fairness and legitimacy of ICC practice.

Both the ICC Pre-Trial and Appeals Chambers confronted the Defence’s objections head-on.  In its Decision on the criteria for holding confirmation of charges proceedings in absentia, Pre-Trial Chamber III concluded that Joseph Kony qualified as a person who “cannot be found” under Article 61(2)(b) because his whereabouts had remained unknown despite “substantial efforts by the Registry and other relevant stakeholders to trace him since the issuance of the arrest warrant”. Crucially, the Chamber held that an initial appearance is not required in cases where the suspect has never been accessible to the Court. To insist on such a prerequisite, it reasoned, would instead make Article 61(2)(b) a dead letter. The Appeals Chamber was equally unpersuaded and held that “the holding of a confirmation hearing in absentia without an initial appearance is consistent with the object and purpose of the Statute” (para. 80).

In Absentia Hearings at the ICC: Or Procedural Illusion?

In short, where the Defence saw erosion, the judges saw measured innovation: a pragmatic adaptation to long-standing fugitivity. Yet this strategic use of confirmation raises difficult questions. If the purpose of the hearing is to filter weak cases, it warrants the question what happens when the procedure is potentially  stretched beyond its intended object and purpose. Indeed, the ICC’s decision to proceed with a confirmation hearing in absentia risks obscuring the real problem in spite of the unique elements of the Kony case: the absence of arrests. Acknowledging this risk also allows identifying that the difficulty the Court faces is not evidentiary but operational. For nearly two decades, the international community has been unable, or unwilling, to deliver Joseph Kony to The Hague causing the suspect to flee or the suspect cannot be found. In reality, that is not a problem that can be solved through prosecutorial or judicial creativity. The cause and the cure instead lie outside the courtroom, in the sphere of cooperation and enforcement. By attempting to judicialise this stage, transforming confirmation into a stage-managed hearing without the accused, the Court risks projecting activity without addressing the root cause of paralysis.

In that sense, confirmation in absentia is not a cure but risks being a distraction. It may generate a public record of charges, but it does little to alter the reality that suspects can defy the Court with impunity so long as States do not execute arrest warrants and there is a risk of empty courtrooms. Worse, it risks hollowing out the object and purpose of the confirmation stage itself: a filtering stage designed to protect against weak cases, not a platform for laying out allegations that cannot be tested.

Moreover, if the Prosecution’s aim is to set out the charges, hear evidence, record allegations, and acknowledge victims’ suffering, the question presents itself whether an ICC courtroom in The Hague is the most suitable forum in the absence of the accused and the unlikelihood of the proceedings moving to the trial stage anytime soon. Instead, in order for its proceedings to resonate, the Court could have used the flexibilities already in the Statute to move hearings closer to affected communities. A confirmation staged in northern Uganda would have carried a very different symbolic weight than one held in remote The Hague without the accused. Indeed, this choice has already drawn criticism from affected communities (see for example here: “What we are watching at the moment is no different from watching a movie produced in a foreign country, because inside the courtroom there are no people we know or we can relate to our suffering.”)

Conclusion

The confirmation hearing in absentia against Joseph Kony is undoubtedly historic. It is the first time the ICC has sought to push a case forward without the suspect in the courtroom. For the judges, it appears to be a pragmatic adaptation of Article 61(2)(b). For the Prosecutor, it is a way to keep the case alive, acknowledge victims, and put facts on the record. Yet, it is difficult to escape the sense that this development is a judicial response to a political problem. The Court’s paralysis in the Kony case stems not from interpretive gaps in the Statute about the pre-trial stage, but from the persistent failure of States to execute arrest warrants. Holding a confirmation in absentia does not change that reality. At best, it produces the appearance of progress; at worst, it dilutes the object and purpose of the confirmation stage itself.

Furthermore, one cannot help but wonder whether this step will remain an exceptional tool for fugitives, tethered to Kony’s unique circumstances, or whether it marks the beginning of a broader trend in international criminal procedure in light of the fact that States are not cooperating in the execution of arrest warrants. For now, one needs only to check the current list of outstanding arrest warrants to conceive of a potential next ‘unique’ fugitive.