Kasese killings not justifiable, but not war crimes – ICC report

In 2016 and 2017, the Office of Prosecutor of The Hague-based International Criminal Court (ICC) received several petitions relating to the killings in Kasese in western Uganda, which the petitioners said amount to genocide, war crimes and crimes against humanity.

Here is an abridged version of the report. It appears that, on November 26, soldiers under the command of the then Brig Gen Peter Elwelu entered into the kingdom’s administration offices in Kasese town, killing eight members of the volunteer Royal Guards.

That afternoon, it appears that civilians, including some royal guards, attacked six small police posts with machetes, several kilometres from Kasese town. This resulted in at least 14 police constables being killed by the assailants and 32 civilians being shot dead by security forces in response.

Towards the evening of the same day, soldiers and police surrounded the kingdom’s palace compound in Kasese town. It appears that at around 1pm on November 27, following attempts to negotiate a disbandment of the Royal Guards, King Mumbere was taken into custody, and security forces stormed the palace compound.

More than 100 people were killed while another 150 to 200 people were arrested and kept in detention pending trial.

The Office found that there was credible information that multiple killings were committed by Ugandan security forces in Kasese on 26 and 27 November 2016.

The Office notes that there were incidents of violence, including violent clashes, between the Uganda security forces and various militants groups immediately before the events in question as well as in the sub-region.

Nonetheless, in the absence of the required threshold of intensity and organisation, the Office has concluded that the alleged acts could not be appropriately considered within the framework of Article 8 of the Statute as a non-international armed conflict. The alleged conduct also did not satisfy the contextual elements of the crime of genocide, under Article 6 of the Rome Statute.

Accordingly, even if members of the Royal Guards were deemed a security threat, the actions of the security forces had to be conducted within a law enforcement paradigm, which requires that the use of lethal force be restricted to those situations where it is “strictly unavoidable” to protect life.

Additionally, the information available indicates that a large number of other civilians were present in the kingdom’s administration offices and/or palace compound at the time of the operation, including palace domestic staff, local business enterprises, women, children and various other visitors.

As such, the Office has assessed that the persons inside the kingdom’s administration offices and the palace compound were entitled to be treated according to the applicable regime that regulates law enforcement operations, and accordingly should be deemed civilians for the purpose of the Rome Statute.

While members of the Ugandan security forces appear to have come under attack and sustained fatalities in localised incidents in the sub-region, more generally in the preceding period, the level of force that was used in the operation does not appear to have been justifiable in terms of self-defence or the defence of other persons, in the sense of an imminent threat of death or serious injury.

Nor does the use of force appear to have been reasonably necessary in the circumstances in effecting the lawful arrest of offenders or suspected offenders within the palace compound. Rather, the information available indicates that the operation was carried out in an indiscriminate and disproportionate manner.

In this regard, the office notes with concern the types of means used, including live ammunition and rocket propelled grenades (RPGs); the anticipated knowledge that, beyond the member of the Royal Guards, a large number of civilians would have been present inside the palace compound at the time; information indicating that after the palace compound was stormed, some members of the Ugandan security forces appear to have shot at and/or beaten captured persons with hands tied behind their backs; and consideration that, in the circumstances, other means would appear to have been reasonably available to accomplish the objective of securing the surrender of the persons inside, whether by less lethal means or by, for example, disconnecting the palace’s water and electricity supply.

Taking into account the foregoing, the office, therefore, concluded that members of the Ugandan security forces appear to have committed in Kasese on November 26 and 27, 2016, underlying acts constituting the crime of murder, under Article 7(1)(a) of the Rome Statute.

Nonetheless, the office was ultimately unable to determine that the said acts occurred pursuant to or in furtherance of a State or organisational policy, as required by Article 7(2)(a) of the Rome Statute.  

The fact that the alleged crimes occurred in the context of the implementation of a State-approved operation, or that high-ranking State officials had knowledge of or were involved in its authorisation, does not demonstrate, in and of itself, that the operation necessarily required or entailed the commission of crimes.

Having assessed the information available, notwithstanding the office’s concern that the use of force in the circumstances appears to have been both indiscriminate and disproportionate, it has been unable to satisfy itself that the underlying acts were committed pursuant to or in furtherance of a State policy. Accordingly, based on the information available at the time, the office determined that the alleged acts do not amount to crimes against humanity under Article 7, or any other crimes under the Rome Statute.

Extracted from ICC Report on Preliminary Examination Activities 2020