Mark Drumbl Examines Limits of International Criminal Justice in New Article The article argues for new approaches to accountability when international courts cannot bring accused war criminals to trial.

By Law Communications
October 12, 2026

 

Washington and Lee law professor Mark Drumbl has published a new article, “Leaning into Absence: Lessons from Kony,” in the Journal of International Criminal Justice. The article examines the challenges facing international criminal courts when individuals accused of war crimes and other atrocities remain beyond their reach and argues for more creative approaches to achieving accountability and justice for victims.

Drumbl, the Class of 1975 Alumni Professor of Law and director of the Transnational Law Institute, begins with the case of Joseph Kony, the longtime leader of the Lord’s Resistance Army, an armed group responsible for widespread atrocities in northern Uganda, including mass murder, sexual violence, and the recruitment of child soldiers. Kony has evaded arrest since the International Criminal Court (ICC) issued a warrant for him in 2005. In November 2025, the ICC confirmed 39 charges of war crimes and crimes against humanity against Kony despite his absence from the proceedings. However, the court cannot conduct a full trial without the accused present, leaving the case effectively stalled unless Kony is apprehended.

Drumbl argues that Kony’s case illustrates a much larger problem for international criminal justice. Historically, only about half of the individuals subject to ICC arrest warrants have been brought before the court. Many remain free because governments are unwilling or unable to cooperate in their arrest. This persistent absence of defendants, Drumbl suggests, raises fundamental questions about the effectiveness and legitimacy of a system that depends on bringing accused individuals into custody.

“One path forward is to truly and warmly embrace transitional justice mechanisms which are not too tightly wedded to formal liberal legalism. These include people’s tribunals, mock trials, artistic commemorations, holograms, theatre, film, truth commissions, and indigenous justice mechanisms. International justice advocates might break new ground by challenging their own abstemiousness when it comes to radical innovation,” writes Drumbl.

The article examines several examples of these alternative approaches, including people’s tribunals addressing wartime sexual violence, human rights abuses in Afghanistan, and the persecution of Uyghurs. Drumbl also discusses a 1985 mock trial of Nazi physician Josef Mengele, which allowed witnesses to share their experiences despite the defendant’s absence. Such initiatives, he argues, can provide meaningful opportunities for public accountability without the jurisdictional and procedural limitations that constrain international courts.

Ultimately, Drumbl does not advocate abandoning criminal prosecutions. Instead, he argues that international justice advocates should give greater recognition and support to approaches outside traditional courtrooms. These efforts can complement formal trials by preserving historical records, recognizing victims’ experiences, and building public support for accountability.

The article is available through W&L Law’s Scholarly Commons.

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