ESIL Reflection – The Kony Case and the Concept of “Cannot be found”

Camino Yanguas Giménez
(Legal Trainee at the Criminal Law Department in Ontier Law Firm, LLM student to Access the Legal Profession at Carlos III University-UC3M)

Introduction

A deceptively simple question has recently emerged at the forefront of international criminal law: what does it truly mean for a suspect to be someone who “cannot be found”? While the phrase appears self-explanatory, its application by the International Criminal Court (ICC) has been fraught with difficulty. In this regard, this article aims at shedding some light on the interpretation of Art. 61(2)(b) of the Rome Statute (hereinafter, RS or the Statute) and specifically the concept of “cannot be found”, considering the recent developments in the Kony proceedings.

The case of Joseph Kony has caused international commotion as it has been the first time that the ICC has confirmed the charges in the absence of the suspect. Thus, making a great effort to interpret Art. 61(2)(b) RS ex novo. For that reason, there are still some aspects of its application that have remained unclarified or not thoroughly developed i.e., the concept of cannot be found, which we will assess in the forthcoming paragraphs.

Indeed, this term plays a key role in the legal precept as it constitutes one of the cumulative requirements to hold a hearing in absentia before the ICC. Nonetheless, the interpretation given by the chambers has not been pacific. In fact, it turned out to be surprisingly vague and even seemingly contradictory.

This ambiguity, however, underscores wider implications that exceeds the Kony case as it also affects the international community. Clarifying and establishing a common criterion to determine when someone can or cannot be found is not a mere procedural question; it directly impacts resource allocation and strategic decisions in criminal proceedings.

If a suspect truly cannot be found, the international community must rethink its options (perhaps shifting focus to other proceedings in which the suspect is located). Conversely, if a suspect can indeed be located, then efforts should pivot toward finding effective ways to apprehend that individual. For this reason, it could serve as a valuable parameter for international practice, guiding how states and institutions respond to fugitives. In this article, drawing on the interpretation provided in the Kony case, I will propose a possible threshold (a common standard) for applying the concept of “cannot be found”.

1. The concept of “cannot be found” in light of the Kony case.

The recent judgment^[1] of the Appeals Chamber (AC) of the ICC in the Kony case sustained that an in absentia confirmation of charges hearing without the suspect’s initial appearance is not incompatible with the rights enshrined in Art. 67 RS. This, because, in the view of the Court, both the Statute and the Rules of Procedure and Evidence (RoPE) “provide adequately robust safeguards to protect the suspect’s fair trial rights […], even in cases where such an initial appearance has not taken place”.

These safeguards refer to the four cumulative requirements contained within Art. 61(2)(b) RS, namely that: (i) the offender qualifies as someone who has fled or cannot be found and; (ii) that all reasonable steps have been taken to (ii.i) secure his or her appearance before the Court; (ii.ii) inform the person of the charges and; (ii.iii) that a hearing to confirm those charges will be held.

In addition, Rules 123 and 125 of RoPE establish that the PTC may hold consultations with the prosecutor, at the request of the latter or on its own initiative, to assess whether there is cause to hold it. In other words, even if all 4 cumulative requirements announced in the Statute are fulfilled, the Court might exert its discretionary power and issue a negative decision if it deems there is no sufficient cause.

A. Fled or cannot be found

The interpretation of these concepts has caused some controversy between the chambers of the ICC. While the PTC-II and PTC-III were clear that both terms referred to two independent and distinct situations, the AC established that they are not necessarily irreconcilable.

In Kony’s First Decision of 23 November 2023, the PTC-II interpreted that “The use of the conjunction ‘or’ in article 61(2)(b) of the Statute between “[f]led” and “cannot be found” indicates that the provision covers two different and independent situations: one where the suspect has fled, referring to a case where a person who was previously accessible to the Court absconded, and a second where the suspect cannot be found and he or she ‘has never been accessible’.”

However, the AC noticed there was an error in the definitions given to the terms and clarified them in light of the Vienna Convention on the Law of Treaties (VCLT) of 1969. In this sense, the judgment reads that “the phrase “cannot be found” does not only concern persons who have not had an initial appearance. Rather, it applies to persons regardless of whether they have had an initial appearance.”^[2] Hence, it is the AC’s conclusion that a person may qualify as someone who both fled and cannot be found without incurring in contradictions i.e., a suspect might have absconded and at the same time be untraceable.

But how is it determined when someone “cannot be found”? The Court’s position appears to be blurry. The PTC-II concluded that this term involved a situation in which the suspect’s precise whereabouts remain unknown despite the efforts made to locate and arrest him or her. Conversely, the same Chamber adds that this concept “does not cover a situation 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 suspect’s location, for instance due to lack of cooperation from relevant States”.^[3]

The difference of terms used might prima facie seem contradictory. Although there is no definition given to these words by the jurisprudence yet, one can reasonably conclude that the term “approximate” covers a much wider extension than “precise” whereabouts.

In light of the Court’s reasoning, the interpretation of the terms is intimately related to the reason for the unsuccessfulness of the execution of the arrest warrant. In other words, why was the arrest warrant unsuccessful? Was it because of the lack of information regarding the suspect’s approximate whereabouts despite the Court’s efforts? Or was it because his/her approximate whereabouts are known, but there is a lack of cooperation from relevant states?

In the first scenario we would be in a situation where the execution of the arrest warrant is unsuccessful because the suspect remains untraceable despite the Court’s efforts (and state cooperation) to locate him and find his precise whereabouts. In this case, the suspect would qualify as someone who cannot be found, and the requirement would be deemed fulfilled.

In the second scenario, the unsuccessfulness of the arrest warrant execution is due to reasons unrelated to the identification of the suspect’s location (especially lack of cooperation issues). In this case, the suspect would qualify as someone who can indeed be found because his or her approximate whereabouts are known, but due to external reasons, will not be surrendered. Thus, no confirmation of charges hearing in absentia could take place and the ICC would have to resort to cooperation mechanisms provided for in Art. 87 RS such as ad hoc arrangements with non-state parties to request assistance. From these premises, one can infer two conclusions.

Firstly, the concept of “precise whereabouts”, could be seen as redundant. In the first scenario depicted, it goes without saying that if the Court cannot find the approximate whereabouts of the suspect, the precise whereabouts will not be known either. Therefore, if after cooperating with relevant states and deploying all the measures to locate him, his approximate whereabouts remain unknown, then the suspect cannot be found.

Moreover, in the second scenario illustrated, the arrest warrant will not be executed regardless of the Court knowing the suspect’s approximate or precise whereabouts since there are issues unrelated to the identification of the suspect’s location. Ergo, the suspect will qualify as someone who can be found and no confirmation hearing in absentia will be held.

Secondly, the concept of “precise whereabouts” could be rather linked to the idea of securing the suspect’s appearance before the Court. If we are dealing with a case in which the Court has developed measures to locate the suspect and relevant states have cooperated as well, the approximate whereabouts of the suspect would still not be enough in order to successfully execute the arrest warrant. The Court would therefore require more concrete information on his or her location in order to actually ensure the suspect’s appearance before the Court. Thus, a more precise location would be needed. With this in mind, the next doubt arises. What is the geographical extension needed to determine the suspect’s approximate/precise whereabouts? Could a city be considered “precise”? Is a single country an “approximate” location?

For now, what the Court has subtly established is that, in order to assess whether someone can be found, there needs to be at least certainty of the country in which the suspect is.^[4] Consequently, if the person is known to be within a region that comprises two or more countries it would not equate to knowing the approximate whereabouts. This was precisely the situation in the Kony case, where the suspect was believed to be located in the tri-border region of Central African Republic (CAR), South Sudan and the Democratic Republic of Congo (DRC).

In these proceedings, the Court determined that “It cannot even be said for certain in which country Mr Kony is presently located. The Chamber is therefore satisfied that Mr Kony is a person who cannot be found within the meaning of article 61(2)(b) of the Statute.” ^[5] Yet, this seems to be a restrictive approach for the logic behind it. Would this mean that if the suspect is known to be in a large country like Brazil (~8.5 million km²) the requirement would be deemed fulfilled, but if the person is known to be in a certain region comprising two smaller countries such as Belgium and Luxembourg (~33,275 km²) it would not?

One could reasonably conclude that it is far more probable to locate someone in those two regions rather than in the former one. For that, since all countries differ in size, it would seem to be more practical to apply a unique threshold based on the extension of land rather than on the concept of “country”. A method that uses geographical extension as an objective parameter to decide when someone can or cannot be found. For instance, if the suspect is believed to be in an area larger than X km², then his or her whereabouts could be deemed indeterminate; conversely, if the area is smaller, he or she would qualify as someone who can be found.

While this method could certainly be refined, what is clear is the urgent need for a uniform criterion. Without it, inconsistencies (such as considering a village “precise” in one case and a city “precise” in another) will only perpetuate ambiguity and confusion.

2. Conclusion

Perhaps the most challenging aspect in the legal field (both nationally and internationally) is not deciding which law to apply but determining how to interpret it. This challenge has become particularly evident in the Kony case, which has brought to the forefront a term that, despite its apparent simplicity, hides significant complexity in criminal proceedings.

Far from being a mere technicality in this specific case, one could argue that the debate over the meaning of “cannot be found” extends well beyond the confines of the Kony proceedings. It has implications for the international community, since establishing a clear and uniform threshold -such as the one proposed in this article based on the geographical extension-, could foster a more efficient international system, where actors know when to stop searching and when to redirect efforts.

In the case at hand, it seems reasonable to infer that the notion of “precise whereabouts” was intended to align with the goal of securing the suspect’s appearance before the Court. From this perspective, the Court likely sought to narrow the location of the offender as much as possible, using the term “precise” to emphasize that concrete information is ultimately required to execute an arrest warrant successfully and ensure compliance with judicial obligations.

Nevertheless, whether we choose to speak of “approximate,” “precise,” or both, the reality is that these concepts demand a more refined criterion (one that is geographically neutral) to determine when someone “cannot be found.” After all, there will almost always be an approximate location to consider: the suspect’s country of origin, the region where they were last seen, or areas where they have family ties. The real challenge lies in defining the specific area that will serve as the threshold for concluding that a person can or cannot be located. Hence, perhaps the “objective test” suggested could prove useful.

All in all, although these questions remain unresolved, this first interpretation of Article 61(2)(b) of the Statute will undoubtedly stand as a significant precedent for future cases. It is now a matter of time before these interpretive challenges are fully addressed, and the chambers develop a common standard that can hopefully serve as guidance for other cases. One that balances legal obligations with operational realities and ensures that justice does not become an endless pursuit without clear parameters in International Criminal Law.

^[1] ICC, Prosecutor v. Joseph Kony, ICC-02/04-01/05 OA4, Judgment on the appeal of Mr Joseph Kony against the decision of Pre-Trial Chamber III of 29 October 2024 entitled “Decision on the criteria for holding confirmation of charges proceedings in absentia”, 3 June 2025, para. 75.

^[2] ICC, Prosecutor v. Joseph Kony, ICC-02/04-01/05 OA4, Judgment on the appeal of Mr Joseph Kony against the decision of Pre-Trial Chamber III of 29 October 2024 entitled “Decision on the criteria for holding confirmation of charges proceedings in absentia”, 3 June 2025, para. 51.

^[3] ibid para. 32.

^[4] ICC, Prosecutor v. Joseph Kony, ICC-02/04-01/05, Decision on the Prosecution’s request to hold a confirmation of charges hearing in the Kony case in the suspect’s absence, 23 November 2023, para. 35.

^[5] ibid.

Cite as: Camino Yanguas Giménez, The Kony Case and the concept of “cannot be found”, ESIL Reflections 14:3 (2025).
© 2025. This work is licensed under a CC BY-NC-ND 4.0 licence.