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Original: English

No.: ICC-01/20 Date: 20 March 2013

TRIAL CHAMBER I

Before:

Judge Rene Blattmann Judge Chile Eboe-Osuji Judge Robert Fremr Judge Elizabeth Odio Benito Judge Bruno Cotte Judge Howard Morrison Judge Anthony Carmona Judge Kuniko Ozaki Judge Joyce Alouch

SITUATION IN UGANDA IN THE CASE OF THE PROSECUTOR v JOSEPH RAO KONY

Decision on Trial of Mr Joseph Kony of 19-20 March 2013

Source:

The International Criminal Court, The Hague

TABLE OF CONTENTS A. JURISDICTION ................................................................................ Error! Bookmark not defined. B. ADMISSIBILITY .............................................................................. Error! Bookmark not defined. C. CRIMES AGAINST HUMANITY ............................................................................................. 4-8 (i) Widespread or systematic attack ................................................................................................... 4 (ii) Organisational policy ..................................................................................................................... 4 (iii) Knowledge of the perpetrator ................................................................................................... 4-5 (iv) Chain of command ........................................................................................................................ 5 Murder .................................................................................................................................................. 5 Deportation and forcible transfer .................................................................................................... 5-7 Enslavement .......................................................................................................................................... 7 Torture ............................................................................................................................................... 7-8 Rape ....................................................................................................................................................... 8 Sexual violence...................................................................................................................................... 8 D. WAR CRIMES ................................................................................................................................ 8 E. SENTENCING................................................................................................................................. 8 F. CONCLUDING REMARKS ................................................................................................... 10-11

The Full Court of Trial Chamber I of the International Criminal Court, on the matter of the Prosecutor v Joseph Kony, finds: A. JURISDICTION
Art 19 of the Rome Statute requires the Court to satisfy itself that it has jurisdiction. Pre -Trial Chamber II has found reasonable grounds to believe the following key jurisdictional r equirements have been satisfied and this Trial Chamber concurs with this opinion. 1. Temporal Jurisdiction: Although Mr Kony has been active since 1988, Art 11(2) states that the Court can only consider crimes committed after the Rome Statute entered into force for Uganda on 21 January 2009. 2. Personal Jurisdiction: Since Mr Kony is a national of Uganda (a State Party), there is jurisdiction regardless of where the alleged crimes were committed, this is pertinent because this Chamber has considered evidence from the Central African Republic (CAR) and the Democratic Republic of the Congo (DRC), but not Sudan or South Sudan. 3. Territorial Jurisdiction: Uganda is a State Party and, according to Art 12(2)(a), the Court has jurisdiction over crimes committed on the territory of such States Parties, and the CAR and DRC, as mentioned above. 4. Subject Matter Jurisdiction: Mr Konys arrest warrant indicts him for 33 counts of war crimes and crimes against humanity under Art 5, and defined under Arts 7-8. B. ADMISSIBILITY The Trial Chamber must find the case against Mr Kony to be admissib le beyond reasonable doubt, a higher standard of proof than that of the Pre-Trial Chamber. This Chamber finds the following three grounds of admissibility to be satisfied: 1. Complementarity: In Art 17(1)(a)(b), the case is only admissible if the State (Uganda) is unable or unwilling genuinely to carry out the investigation or prosecution. Even if local justice measures are considered to be national judicial systems, there is a State discretionary element to complementarity. Since Uganda referred the case to the ICC, and given its continued struggle to bring Lords Resistance Army (LRA) members to justice, this Chamber finds these local justice measures to be insufficient in severing the cases admissibility. 2. Gravity: In deciding if a case is of sufficient gravity to justify further action. As the gravity threshold has been satisfied by Pre-Trial Chamber II, and not contested during Trial, we find this case to be of satisfactory gravity. 3. Double Jeopardy: In accordance with Art 14(7), Mr Kony has not been tried for, convicted or acquitted of the subject matter of this case. In fact, Mr Kony appears before the ICC for the first time.

C. CRIMES AGAINST HUMANITY (i) Widespread or systematic attack 1. For crimes against humanity, under Art 7, the crimes must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. As the Trial Chamber of the ICTY affirmed, a single act committed in the context of a widespread or systematic attack would constitute a crime against humanity.1 2. This Chamber concludes that the crimes were committed on a broad range of territories, including Uganda, the CAR and the DRC. Furthermore, the evidence presented at Trial demonstrates the various regions of LRA attacks and the widespread movement of 1.45 million internally displaced persons (IDPs), which we accept as credible evidence to establish the widespread nature of crimes. 3. Notwithstanding the disjunctive test, and the fact that it is not necessary to prove additionally a systematic attack, this Chamber nonetheless finds the following evidence to support the existence of a systematic attack. Firstly, Mr Kony admitted at Trial that the LRA was a political organisation and he had designated targets for the LRA. In addition to being a military organisation, one of the witnesses (Mr Caesar Acellam Otto) has testified that Mr Kony has targeted villagers and civilians. (ii) Organisational policy: 1. Persuaded by the 1996 ICTY judgment of Tadic, this Chamber finds that evidence of organisational policy is implicit in a systematic attack. There is no proof required that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the LRA, however this Chamber finds that the LRA is a disciplined army and did indeed have an hierarchical structure, with Mr Kony admitting to being the figurehead. (iii) Knowledge of the perpetrator: 1. As leader and self-professed figurehead of the LRA, this Chamber finds that Mr Kony knew, or ought to have known, the commission of the crimes of humanity. No proof is required that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the LRA. Mr Kony has stated that he depends on information given by LRA soldiers, which is sufficient evidence to suggest that there are, ordinarily, channels of communication between Mr Kony and his LRA subordinates. 2. This Chamber finds the existence of a policy to commit such attack[s] in that the LRA actively promoted or encouraged such attacks against the civilian population. Mr Kony deliberately failed to take action, and has consciously encouraged such attacks by according to Mr Konys own testimony taking up arms for the LRAs political cause.

Tadic Judgment, Case No. IT-94-1-T (October 2, 1995), para 650

3. According to Article 30 (2) of the Rome Statute, Mr Kony is found to have intent because Mr Kony has means to cause these consequences or is aware that they will occur in the ordinary course of events. Therefore, given Mr Konys status as leader of the LRA, he was aware of these circumstances. (iv) Chain of command: 1. In order to establish the criminal responsibility of military commanders, art. 28 of the Rome Statute demands that three conditions be fulfilled: a superior-subordinate relationship must exist, the commander must have had knowledge of the acts committed and finally failed to prevent them. 2. A superior-subordinate relationship usually requires a military command structure, i.e. an enforceable hierarchy. According to testimony given at trial, the Lords Resistance Army (LRA) is such an organisation. Mr Otto, former third-in-command of the LRA testified to the fact that there was a chain of command and that explicit orders came from Mr Kony himself. Furthermore Mr Kony described himself as leader and figurehead of the LRA. 3. Next, the military commander needs to have had knowledge of the acts committed by his subordinates. However, this condition is also met if the commander should have known of the acts committed. Given that Mr Otto, a high-ranking former officer, talks of widespread child abductions and torture, not to mention the testimony of victims of the LRA, this chamber finds Mr Kony wilfully ignored the crimes committed by his soldiers. 4. The final condition to establish criminal responsibility under art. 28 is that the military leader failed to punish or prevent the acts committed. This is a negative condition, meaning that lack of action can satisfy this condition. No evidence indicates that Mr Kony tried to prevent or punish his soldiers for the crimes committed. On the contrary, the evidence shows that soldiers were elated and glorified for, e.g., enslaving women and abducting children: thus this condition is also satisfied. 5. Seeing that the three conditions are fulfilled, this chamber establishes the criminal responsibility as military commander of Mr Kony. (v) Crimes: Murder: 1. Multiple attacks by the LRA on multiple cities in 2008 resulted in more than 1,000 recorded deaths. In 17 September 2008, an attack on a local parish killed 100. The affidavit of Mr Oladeja attests to bodies and in camps and the widespread stories of murder. Mr Ottos affidavit also describes indiscriminate killings of parents in family homes. Ms Potoco was a witness to the killing of her parents, husband and sister; simply stating in her affidavit that the LRA were killing us all. This evidence leads to the conclusion that murder was used as part of larger terror tactics by the LRA, that civilians were often the victims, and that the LRA had knowledge of these multiple accounts. At face value, they are both frequent and geographically widespread. Deportation or forcible transfer: 5

1. Under article 7(1)(d) of the Rome Statute, deportation or forcible transfer is a crime against humanity. This Chamber will now turn to consider whether it is beyond reasonable doubt that Joseph Kony committed this crime. 2. The first element of this crime is that the perpetrator deported or forcibly transferred, without ground permitted under international law, one of more persons to another State or location, by expulsion or other coercive acts. 3. On the present facts, it is established that the LRA, led by Joseph Kony, directed widespread attacks on a civilian population. Even the defense concedes that there were some attacks on a civilian population at paragraph 31 of their written submissions. 4. This Chamber is satisfied that widespread violent attacks on villages of civilians are tantamount to the use of physical force which has directly resulted in displacement of the population. Civilians were transferred by necessity as they were expelled from their homes owing to a well-founded fear that they would be attacked given the violence that surrounded them. This Chamber is satisfied that the civilians in villages that were attacked were moved to other locations in order to preserve their life and security. It is reasonable to deduce that these people fled to refugee camps such as the one in Gulu where Isaka Oladeja was stationed. In Mr Oladejas affidavit at clause 5, he testifies that the fields around the camp are full of bodies, limbs and blood and attributes those casualties to the LRA stating at clause 7 that I have seen and heard rebel soldiers moving through the growth. There is no ground at international law which would permit such a transferal of the civilian population. 5. Turning to the second element of this crime, that such person or persons were lawfully present in the area from which they were so deported or transferred. This Chamber is willing to assume that most internally displaced persons within Uganda were Ugandan citizens or otherwise had the right to lawfully reside in Uganda though no submissions were made to that effect. 6. The third element of the crime is that the perpetrator was aware of the factual circumstances that established the lawfulness of such presence. This Chamber is willing to impute Joseph Kony with constructive knowledge that the civilians in the villages that the LRA invaded had the lawful right to reside there. 7. The fourth element of the crime is that the conduct was committed as part of a widespread or systematic attack directed against a civilian population. This Chamber accepts the prosecutions submission that there were 1.45 million internally displaced people (IDPs) in Uganda in 2005. This Chamber is satisfied that this constitutes a widespread attack on civilians. Both the LRA and the Ugandan Army are responsible for the displacement, and it would be a futile exercise to attempt to apportion blame between the two parties. Therefore, I find that both parties are jointly liable for the entirety of the IDP and refugee situation in Uganda. 8. The fifth and final element is that the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. This is the mental element. The chain of command has been established, with Kony sitting at the apex of the 6

organisational structure as commander-in-chief of the LRA. In oral evidence before this chamber, Kony attested to the fact that he ordered the attacks, and in its written submissions the defense conceded that some of these attacks were on civilians (paragraph 31). By virtue of his position as leader and his oral testimony, this Chamber is satisfied that Kony had actual or constructive knowledge that the attacks were on civilian villages. 9. It is generally essential for the prosecution to put the charges it seeks to rely upon to the defendant. However, in the present case, the defendant admitted to ordering attacks, and that those attacks were sometimes directed at civilians. The natural and probable consequence of widespread attacks on villages is that civilians will be displaced. Even if the question of expulsion or forcible transfer was put to the defendant, there is no other explanation for such a large scale movement of people that would cause reasonable doubt in my mind to the degree that would exculpate Kony from liability. 10. This Chamber therefore finds that Joseph Kony is guilty of the crime of deportation or forcible transfer. Enslavement: 1. For enslavement, under Art 7(1)(c), the crimes must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The perpetrator must exercise any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. As the Trial Chamber of the ICTY affirmed, a single act committed in the context of a widespread or systematic attack would constitute a crime against humanity. 2. This Chamber concludes that the victims were deprived of liberty. Furthermore, the evidence presented at Trial demonstrates that individuals were under a servile status as proven by witness examination. The affidavit of Mr Otto attests to enslavement of girls namely by keeping them as cleaners and cooks. The witness explicitly says: we commanded enslavement and some girls were kept as cleaners and cooks. This evidence seems to suggest that measures were used to enslave captured individuals. Torture: 1. Article 7(1)(e) defines "Torture" as the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused. The affidavit of the Ugandan soldier Isaka Oladeja attests to refugees who had lost different body parts (missing parts of their bodies, limbs, ears, lips or fingers), and the testimony of Caesar Acellam Otto, who admitted to overseeing and participating in the torture of civilians, the parents of the children they would afterward take (Often their parents were raped, tortured and killed), satisfy this Chamber beyond

reasonable doubt that the LRA committed torture during an armed conflict as part of a widespread or systematic attack on a civilian population. 2. Even though there is no direct evidence that the accused was present or physically participated in the commission of these acts there is proof beyond a reasonable doubt that he was in charge of ordering them; the accused himself testified to be in charge of commanding the LRA and designating their targets. He is, therefore, responsible under Art 28 of the Statute. This Chamber accordingly finds beyond reasonable doubt that the accused is guilty as charged in respect to this crime. Rape: 1. This Chamber considered the affidavit and declarations at the court of Ceasar Acellam Otto (5), who as third in charge of the LRA admitted being guilty of rape Often, their parents were raped, tortured and killed, and also considered the affidavit and statements by Mari Patoco (3) (they were very angry and to punish us they tied our hands, beat us and they all had sex with us), who declared how she and her sister had been forced to have sex with LRA members. All of the elements of the crime were met. 2. The ICC considers Joseph Kony guilty as the leader on the chain of command and responsible for not making efforts to avoid or punish crimes of rape. Sexual violence: 3. On the count of sexual violence, the affidavits and declarations aforementioned also include the knowledge and coercive environment factors that constitute the elements of crimes for the individuals that committed rape and Joseph Kony is guilty on the same grounds as the count of rape. 4. The Prosecution was not able to raise a case regarding sexual slavery, enforced prostitution, forced pregnancy, or enforced sterilization, as there was no argument, evidence or attempt whatsoever to prove them legally or factually.

D. WAR CRIMESE. SENTENCING 1. This Chamber finds Mr Joseph Rao Kony guilty of the crimes against humanity of murder; enslavement; deportation or forcible transfer; torture; rape; and sexual slavery. This Chamber sentences Mr Kony to life imprisonment for these heinous crimes. F. CONCLUDING REMARKS Policy Considerations 2. It has been the policy of the Prosecution to take a complementarity approach towards cases rather than competing with States for jurisdiction, so as to lead to encouragement and facilitation of genuine

national proceedings were possible, and a consensual division of labour between national courts and the ICC where appropriate, and we think it should be rightly so2. 3. The ICC is a product of inter-State cooperation and demand for a permanent international criminal tribunal following the success of ad-hoc courts, namely the ICTR and ICTY. This Chamber has no effective jurisdiction to claim its own, save that ceded by State parties to the Rome Statute, and thus the embodiment of the established jurisdictional principles of territoriality and nationality principle under Art 12. Practical considerations include the reliance by this court on the international community for funding and recognition and enforcement of judgment. It is therefore axiomatic that this court exercises proper power and jurisdiction within the confines of the Rome Statute, while seeking to avoid encroachment on national sovereignty and jurisdiction. 4. Having said that, this Chamber still remains an arbiter of fact and truth and an instrument of justice, and should do well to avoid being unduly politicised. Indeed, the search for the truth should not be overzealous, and should be tempered by the Rules and Procedure, so as to prevent any misgivings. A misconceived quest for the truth and justice would in actual fact undermine the integrity and confidence in the court, and run counterproductive to such efforts. We would like to express my sincere appreciation to Mr Ocampo for his services to the court in his meritorious career as former Chief Prosecutor, despite any misgivings, arguably symptomatic of the fallibility that is only human. 5. The ICC is young in its recent inception, and still developing, although marred by the Lubanga case. Not like the bumps and falls and vicissitudes of life, the Chamber might have successfully survived the predicaments associated with maturation, but we should not be apprehensive to take on controversial cases. In the investigation into Uganda, allegations have surfaced that the Ugandan government itself is responsible for heinous acts. It should bear noting that a referral by a party to the Rome Statute may not limit the scope of any investigation by the Prosecutor of a situation. Article 42 (1) of the Rome Statute requires that "the Prosecutor shall act independently" and that no member of his office shall "seek or act on instructions from any external source". Yet, it is not for this court to question the partiality of the Office of the Prosecution, and no such mechanism for administrative review has been provided under the Rome Statute, and we can only wish the incumbent success and hold faith in her abilities to execute her duties in good faith. 6. Lastly, it will be conceded that this institution is vulnerable to politics regardless of any institutionalisation of safeguards. Be it the manipulation of the Ugandan government to use the arrest warrants as negotiation leverage in the Juba peace talks, or even whispers of the American lobby efforts in the drafting of Rome Statutes and referring of cases from the Security Council to this Chamber, to further its own agenda, this Chamber is certainty not operating in a vacuum, and should not seek to do so. It is said that even angels have their wicked schemes, but this Chamber should

Paper on some policy issues before the Office of the Prosecution, retrieved from the official ICC website.
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nonetheless maintain its integrity and execute its duty and powers conscientiously and independently as a tribunal of justice. 7. Descending from the ivory tower of legal debate, we must be cognisant of the political and social impact of its decisions. Academics and political observers have speculated that the involvement of the ICC in Uganda have actually exacerbated the situation in Uganda, and delayed peace further by driving the rebels deeper underground for fear of prosecution. Some have said that the imposition of Western justice undermines local tradition, and national efforts to unify the already fragmented and tribalistic country. Indeed, the natural conclusion for many is that this Chamber should withdraw its efforts in the name of greater peace. To this, there is a convenient analogy, of the plea bargain offered to offenders to turn Prosecution witness for other criminals. While both undermine the accountability aspect of criminal law, they are done in the pursuit of arguably greater objectives. Procedurally and institutionally, they also share the common trait that such decisions should be taken by the Office of the Prosecution, not this Chamber. 8. The fact that Uganda is currently undergoing reform and transition lends further support that this court should allow the Ugandan national Courts to run its due course. It is relevant then to return to a discussion of issues of inadmissibility under Art 17. 9. The ritual of Mato Oput is a traditional ritual performed by local chiefs where offenders and the victims families drink from the same extract of the bitter mato plant, to symbolise acceptance and forgiveness. Such a tribal tradition certainly differs from the general Western understanding of dispute resolution, but this Chamber will not precursorily dismiss such esoteric traditional processes, but should look towards the substance and effect of such rituals and construe them in accordance with Art 17. 10. An application of the rules of interpretation in Art 31 and 32 of the Vienna Convention on the Law of Treaties to Art 17 of the Rome Statute would yield a negative answer in finding that Mato Oput is a valid investigation or decision to preclude admissibility. Firstly, it should be recognised that mato oput is has been increasingly institutionalised by the government, such as by providing funding and proper appointment of traditional chiefs, rwodi. Also, while used in the loose sense as a convenient label or reference, I think it would suffice that Mato Oput is officially acknowledged, recognised and enforced by the government, such as to constitute national proceedings, even though it may not be homogenously taken up, and tends to be more popular in the Acholi concentrated regions of Northern Uganda. 11. However, Mato Oput should be viewed as a form of alternative dispute mechanism, namely conciliation, which is incongruous with the form of national proceedings envisioned under Art 17(1). In Lubanga, an investigation was found to be the taking of steps to ascertain responsibility for wrongful conduct. While it is perhaps arguable that this may apply in Mato Oput since there may be some inquiry as to the identity and culpability of the offender, the requirement of a decision to prosecute or convict under Art 17(1)(b) lies squarely tangential to Mato Oput. As a form of 10

conciliation, there is certainly no element of accountability in terms of punishment, and there can be no decision to prosecute or convict in Mato Oput. 12. The Ugandan national court has recently tried one member of the LRA recently, and a review of that proceeding will provide a litmus test on whether this Chamber should reserve judgment on the case. 13. In 2012, one Thomas Kwoyelo, member of the LRa was apprehended and detained for trial, but had applied for amnesty under the Amnesty Act, which was ignored by the Directorate of Public Prosecutions. At Kwoyelos trial, arguments were raised in respect of being unfairly treated under the Amnesty Act, amongst other constitutional issues, including the constitutionality of the Amnesty Act. The dispute reached final appeals at the Supreme Court, where both the High Court and Supreme Court of Uganda held that the Amnesty Act is constitutional and should apply to Kwoyelo. 14. While this Chamber applauds the legal rigours and legitimate due process of the Ugandan judicial system, it should be pointed out that the existence of the Amnesty Act would effectively negate the ability of the Ugandan judiciary to prosecute any offenders. Until further reforms are carried out either to the Ugandan laws, or the proviso of Art 17 of the Rome Statute, this Chamber regrettable cannot give due regard to the Ugandan courts. Therefore, this Chamber has no preclusions to admissibility, and has satisfied itself earlier of its jurisdiction on this case. 15. The Chamber still remains true to its nature as a tribunal, determining questions of fact and law presented before it, and should remain to be so in this case. I do not seek to prescribe that the Chamber decide cases in vacuum without due regard to its decisions, and indeed there have been instances where public policy have compelled courts both national and international, to come to a different conclusion. However, this Chamber is bound by its Rules and Procedure, and must allow the case to run its course unless the Prosecution drops its charges. While this Chamber has the power under Art 19(1) to determine the admissibility of the case on its own motion, this power should only be exercised on recognised grounds of inadmissibility, namely, in an infringement of policy of complementarity. 16. Absent of which, there are no public policy considerations to bar this Court from exercising its jurisdiction and powers of decision. The accused, Joseph Rao Kony will therefore be convicted to the full extent of his culpability and be sentenced accordingly. --- END ---

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