The Prosecutor v. Dominic Ongwen

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Original: No.: ICC-02/04-01/15 Date: 4 February 2021

TRIAL CHAMBER IX

Before: Judge Bertram Schmitt, Presiding Judge Judge Péter Kovács Judge Raul C. Pangalangan

SITUATION IN UGANDA

IN THE CASE OF THE PROSECUTOR v. DOMINIC ONGWEN

Public Redacted

Trial Judgment

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To be notified, in accordance with Regulation 31 of the Regulations of the Court, to:

The Office of the Prosecutor Counsel for the Defence

Fatou Bensouda Krispus Ayena Odongo James Stewart

Legal Representatives of Victims Legal Representatives of Applicants

Joseph Akwenyu Manoba Francisco Cox Paolina Massidda

Unrepresented Victims Unrepresented Applicants for Participation/Reparation

The Office of Public Counsel for The Office of Public Counsel for the Defence Victims

States Representatives Amicus Curiae

REGISTRY

Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Others Section

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Trial Chamber IX (‘Chamber’) of the International Criminal Court (‘Court’) hereby renders its judgment pursuant to Article 74 of the Rome Statute in the case of The 1 Prosecutor v. Dominic Ongwen .

I. OVERVIEW

A. Historical background

The charges in this case concern events which took place in Northern Uganda between 1 July 2002 and 31 December 2005. Correspondingly, the evidence taken during the trial and the factual findings in this judgment focus on that period. However, the Lord’s Resistance Army (LRA) has been active since the 1980s, and the related conflict in Northern Uganda has spanned four decades. The Chamber therefore deems it necessary to include in this judgment a brief background to the case, with a view to placing the case in a historical context and establishing the point of departure for the factual findings which are made as part of the adjudication of the case. In this regard, the Chamber notes the evidence provided by Professor Tim Allen, professor of international development at 2 the London School of Economics, who prepared a report submitted into evidence and 3 testified before the Chamber as an expert witness. The basic lines of this historical background were not disputed between the parties in the course of the trial. Thus, the following overview is derived from Professor Allen’s report as well as his testimony. 4

In 1986, following a guerrilla campaign directed against the government of Milton Obote and its Uganda National Liberation Army (UNLA), the National Resistance Army (NRA) under Yoweri Museveni seized power in Uganda and established the National Resistance Movement (NRM) government, taking over from the brief presidency of Tito Okello who had seized power from Obote in 1985. Regional identity played a role, as

1 In the present judgment, and to the extent that this is required by its duty to provide a full and reasoned statement of its findings and conclusions under Article 74(5) of the Statute, the Chamber refers to some information, including identifying information of a number of protected witnesses, the confidentiality of which is still considered proportionate and justified. This demands that the present judgment, in the version that is made available to the parties and participants, be classified as ‘confidential’. In its public version, which is filed simultaneously, the confidential information is redacted. 2 P-0422’s report, UGA-OTP-0270-0004. 3 P-0422: T-28 ; T-29 . 4 See P-0422’s report, UGA-OTP-0270-0004, at 0008-14, 0020-28; P-0422: T-28 , p. 16, line 19 – p. 17, line 4, p. 21, line 24 – p. 22, line 15, p. 22, lines 17-20, p. 23, line 24 – p. 24, line 24, p. 25, lines 18-22, p. 29, lines 1-17, p. 30, lines 13-15, p. 53, lines 7-22, p. 54, line 21 – p. 55, line 9, p. 55, line 22 – p. 56, line 4, p. 58, lines 7-10, p. 59, lines 12-19, p. 65, line 1 – p. 66, line 5, p. 66, lines 10-21, p. 67, lines 19-22; T-29 , p. 95, line 14 – p. 9, line 4.

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Yoweri Museveni waged his guerilla campaign with support from his own region in the southwest, and also from the central south of the country, where there was widespread aversion to what was perceived as northern domination. Following Yoweri Museveni’s assertion of control over the Acholi areas of Uganda, resistance sprung up, and initially the most important group resisting the NRA was the Uganda People’s Democratic Army (UPDA), largely made up of former UNLA soldiers.

In the upheavals that followed the victory of Yoweri Museveni in 1986, the cult of Alice Auma appeared and rapidly grew in importance. Alice Auma was one of numerous healers mixing Christian and local ideas, called ajwaki or nebi among the Acholi. Alice Auma was reported to be possessed by various spirits, including one usually known as lakwena – the messenger. She performed healing rituals for returning UNLA soldiers, and offered an interpretation of the UNLA defeat by the NRA that seemed compelling to many, claiming that war was a form of healing through which people could be purified.

Soon Alice Auma began recruiting soldiers and started a campaign against President Museveni’s government, as well as against alleged witches, other nebi and ajwaki , and ‘bad people’, such as impure soldiers or individuals who did not obey certain rules. Her movement came to be known as the Holy Spirit Movement or the Holy Spirit Mobile Forces. At the end of 1986, Alice Auma claimed to have 18,000 ‘soldiers’. In October 1987, she marched her followers south, overwhelming opposition along the way, before finally being defeated before reaching Kampala. Alice Auma fled and subsequently lived in a refugee camp in Kenya until her death in 2007.

A number of groups continuing to oppose the Ugandan government appeared in the Acholi homelands, associated with individuals who were inspired by the example of Alice Auma. One such group was led by a young man called Joseph Kony. Born in the early 1960s, Joseph Kony dropped out of school after six years of primary education, and trained as an ajwaka . In late 1986 or early 1987, it is reported that he tried to form an alliance with Alice Auma, but she rejected him. Joseph Kony’s campaign was initially mostly limited to the vicinity of his home area around Odek and the environs of Opit, but this changed in 1988 when President Museveni’s government signed a peace agreement with the UPDA, and many of those unwilling to surrender turned to Joseph Kony. This included one of UPDA’s most

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effective commanders, Odong Latek. From this point onwards, Joseph Kony reportedly specialised in healing and divining, while Odong Latek organised the armed forces. Odong Latek’s influence on the movement was considerable, and Joseph Kony seems to have learnt considerably about guerilla tactics from him. Odong Latek was killed in battle, but by 1990 Joseph Kony’s force was the only significant armed unit still fighting in the Acholi homelands. Soon after Odong Latek’s death, Joseph Kony changed the name of the movement to ‘Lord’s Resistance Army’ (LRA). Joseph Kony’s forces maintained a guerilla campaign against the government and, increasingly, against those who collaborated with it. They mostly avoided pitched battles with government forces, but used terror tactics to maximum effect. The LRA also became associated with forced recruitment or abductions. The objectives of the LRA, and the activities put in place to realise them, will be discussed by the Chamber in the evidentiary assessment below as they are directly relevant to the charges.

In 1991, the Ugandan government mounted an intensive four-month military operation against the insurgency, called Operation North, but its main effect seems to have been to antagonise and alienate non-combatants. Thereafter, Betty Bigombe, Minister of State for Pacification of Northern Uganda, attempted to walk a middle ground, trying to keep the door open for negotiations, but also introducing some vigorous anti-insurgency measures, such as arming community defence groups called ‘arrow brigades’. The LRA responded with violence against people thought to be government collaborators.

Nevertheless, in 1994 Betty Bigombe managed to engage the LRA in peace talks and arranged an uneasy ceasefire. However, following President Museveni’s ultimatum to the LRA in February 1994, the killing resumed. President Museveni claimed that he had received military intelligence showing that the LRA was only involved in peace negotiations in order to build up their military capacity, but it has also been noted that, although expensive, the war in the north had certain political advantages for the Ugandan government. In the mid-1990s, Yoweri Museveni’s NRA became the Ugandan People’s Defence Force (UPDF).

An anti-insurgency strategy adopted by the Ugandan government was to remove the population from rural areas where it might assist the rebels, either out of choice or due to fear of what would happen to them if they did not. In some instances, such removals are

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claimed to have been violently enforced. This initially resulted in a concentration of the population near towns and trading centers, but from the mid-1990s a more systematic policy was adopted of moving people into internally displaced person (IDP) camps. The camps were supposed to be protected by small groups of UPDF soldiers and ‘local defence units’ under UPDF command. Cultivation was very difficult and movement outside the camps strictly limited. Food and other commodities were provided by aid agencies, such as the World Food Programme. By the end of the 1990s, about half a million people were living in the camps. At the peak, around 2004, there were hundreds of IDP camps, and while there were still some people living around the towns, almost the entire population of the region was in IDP camps, amounting to 1.5 million people.

The LRA hostility towards people living in IDP camps is at the core of the present case; a significant number of charges brought against the accused relate to attacks carried out against some of these camps. Relevant aspects concerning the establishment of, and the living conditions in such IDP camps will thus be addressed below, as appropriate, as part of the Chamber’s assessment of the evidence related to the charges.

Although there was little overt enthusiasm for the LRA among the Acholi population in Uganda, the LRA never depended on such support. On the contrary, from the failed peace negotiations in the mid-1990s onwards, assistance was offered from Sudan. The LRA had base camps in South Sudan, received weapons and military training from the Sudanese government and with this support became a more substantial military force. It fought on the Sudanese government’s behalf against the Sudan Peoples’ Liberation Army, while also launching attacks into Uganda against the Ugandan army and civilians in a continuation of its own conflict with the Ugandan government. One of the worst single incidents in Uganda occurred in May 1995, when the LRA burned scores of homes and killed some 300 people in Atiak.

During the late 1990s, international pressure on the Sudanese government increased, and further intensified following the attacks on the United States of America on 11 September 2001. As a consequence, the Sudanese government was persuaded to give permission for the so called ‘Iron Fist’ incursions from Uganda, which officially started in 2002. The Iron Fist campaign involved an estimated 10,000 Ugandan troops, logistical support from the United States of America, and the use of helicopter gunships. LRA bases in Sudan were destroyed and hundreds of people killed. Joseph Kony and almost all of his senior

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commanders evaded capture, and as fast as abducted people were captured, killed, freed

or escaped, others were taken. The LRA also broke up into smaller units which were able

to outflank the Ugandan forces.

Shortly before the entry into force of the Rome Statute on 1 July 2002, which corresponds

to the beginning of the period of the charges, and as a result of Iron Fist, a number of

LRA units crossed from Sudan back into Uganda. A number of events which unfolded

therefrom led to the referral of the situation to the Court by Uganda on 16 December

5

2003 and ultimately to the present case.

B. Procedural history

On 8 July 2005, Pre-Trial Chamber II issued warrants of arrest under Article 58 of the

Rome Statute (the ‘Statute’) against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot

6

Odhiambo and Dominic Ongwen.

7

The present case, which was severed from the Kony et al. case on 6 February 2015,

concerns exclusively Dominic Ongwen. He was surrendered to the Court by the Central

8

African Republic on 16 January 2015, and made his initial appearance before Pre-Trial

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Chamber II on 26 January 2015.

On 23 March 2016, Pre-Trial Chamber II issued its decision confirming the charges

10

against Dominic Ongwen and committing him for trial on the charges as confirmed.

5 See Confidential Annex A to Prosecutor’s Amended Application for Warrants of Arrest Under Article 58, 18 May 2005, ICC-02/04-01/15-3-Conf-Red3. 6 As concerns Dominic Ongwen, see Warrant of Arrest for Dominic Ongwen , 8 July 2005, ICC-02/04-01/15-6. Since then, a waiver of the requirement of the rule of speciality was received to proceed against Dominic Ongwen with respect to further conduct. Registry’s submission on the “Order to the Registrar to transmit a request for cooperation under article 101 of the Rome Statute to the Central African Republic” (ICC-02/04-01/15-319-Conf) , 27 November 2015, ICC-02/04-01/15-359. Pre-Trial Chamber II also terminated proceedings with respect to Okot Odhiambo and Raska Lukwiya due to their deaths. Pre-Trial Chamber II, The Prosecutor v. Joseph Kony et al., Decision terminating proceedings against Okot Odhiambo , 10 September 2015, ICC-02/04-01/05-431; Pre-Trial Chamber II, The Prosecutor v. Joseph Kony et al., Decision to terminate the proceedings against Raska Lukwiya , 11 July 2007, ICC-02/04-01/05-248. 7 Pre-Trial Chamber II, The Prosecutor v. Joseph Kony et al. , Decision Severing the Case Against Dominic Ongwen , 6 February 2015, ICC-02/04-01/05-424 (with one annex). 8 Report of the Registry on the voluntary surrender of Dominic Ongwen and his transfer to the Court , 22 January 2015, ICC-02/04-01/15-189 (with ten annexes) (reclassified on 7 July 2015) (hereinafter: ‘ Report of the Registry on the voluntary surrender of Dominic Ongwen and his transfer to the Court ’). 9 Transcript of hearing , ICC-02/04-01/15-T-4-ENG. 10 Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04/01/15-422-Conf (public redacted version available: ICC-02/04-01/15-422-Red ; hereinafter: ‘ Confirmation Decision ’).

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Thereafter, on 2 May 2016, the case against Dominic Ongwen was referred to this

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Chamber.

The present trial commenced on 6 and 7 December 2016, with the opening statements of

the Office of the Prosecutor (the ‘Prosecution’), the Legal Representatives of Victims

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and Common Legal Representatives of Victims. The Prosecution called its first witness

13

on 16 January 2017 and completed its evidence presentation on 13 April 2018. The

Prosecution brought forward 116 witnesses in total (69 appeared before the Chamber –

either at the seat of the Court or via video-link – and a further 47 had their testimony

introduced in writing).

15

From 1 May to 23 May 2018, and after receiving Chamber permission to do so, the two

teams of legal representatives of the participating victims called a total of seven witnesses.

Between 5 and 7 June 2018, the Chamber conducted a judicial site visit to the Republic

of Uganda, visiting the four crime scenes relevant to the charges in the present case,

namely Pajule, Odek, Abok and Lukodi in Northern Uganda, in the presence of

16

representatives of the parties and participants but without the presence of the accused.

17

A report of this visit is included in the record of the case.

18

On 18 September 2018, the Defence gave its opening statements. The Defence called

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its first witness on 1 October 2018 and completed its presentation of evidence on 6

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December 2019. The Defence brought forward 63 witnesses in total (54 appeared

11 Presidency, Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen , 2 May 2016, ICC-02/04-01/15-430. 12 T-26 ; T-27 . Notice of the Prosecution’s completion of evidence presentation 13 T-28 ; , 13 April 2018, ICC-02/04-01/15-1225. One witness – P-0447 – appeared a second time as a rebuttal witness. 15 Decision on the Legal Representatives for Victims Requests to Present Evidence and Views and Concerns and related requests, 6 March 2018, ICC-02/04-01/15-1199-Conf (public redacted version available: ICC-02/04- 01/15-1199-Red ). 16 Annex to the Registration into the Record of the Case of the Site Visit Report pursuant to Trial Chamber Decision ICC-02/04-01/15-1211 of 27 March 2018 , 27 June 2018, ICC-02/04-01/15-1292-Anx; Decision on Judicial Site Visit to the Republic of Uganda , 13 October 2017, ICC-02/04-01/15-1020 (reclassified on 12 June 2018). 17 Annex to the Registration into the Record of the Case of the Site Visit Report pursuant to Trial Chamber Decision ICC-02/04-01/15-1211 of 27 March 2018 , 27 June 2018, ICC-02/04-01/15-1292-Anx. 18 T-179 . 19 T-180 . 20 Defence Announcement of the Closure of its Presentation of Evidence , 6 December 2019, ICC-02/04-01/15- 1694.

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21

before the Chamber – either at the seat of the Court or via video-link – and a further

nine had their testimony introduced in writing).

22

On 12 December 2019, the Presiding Judge declared the submission of evidence closed.

23

The parties and participants filed their closing briefs on 24 February 2020 and presented

24

their closing statements on 10-12 March 2020.

In the course of the trial, 5149 items were recognised as formally submitted into evidence

by the Chamber. 4095 victims currently participate in the proceedings through two teams

25

of legal representatives. In the course of the proceedings, and excluding the present

decision, the Chamber rendered 190 written decisions by way of a formal filing and 70

oral decisions. It also rendered 403 decisions by email, which have then been published in the record of the case as part of periodic reports filed by the Registry’.

26

21 One witness – D-0042 – appeared a second time as a rejoinder witness. 22 Declaration on the Closure of the Submission of Evidence , 12 December 2019, ICC-02/04-01/15-1699. 23 Prosecution Closing Brief, 24 February 2020, ICC-02/04-01/15-1719-Conf (public redacted version available: ICC-02/04-01/15-1719-Red ; hereinafter: ‘ Prosecution Closing Brief ’); Common Legal Representative of Victims’ Closing Brief, 28 February 2020, ICC-02/04-01/15-1720-Conf (public redacted version available: ICC- 02/04-01/15-1720-Red ); Corrected version of the “Victims’ Closing Brief” filed on 24 February 2020, ICC-02/04- 01/15-1721-Conf, 31 March 2019, ICC-02/04-01/15-1721-Conf-Corr (public redacted version available: ICC- 02/04-01/15-1721-Corr-Red ); Corrected Version of “Defence Closing Brief”, filed on 24 February 2020, 13 March 2020, ICC-02/04-01/15-1722-Conf-Corr (public redacted version available: ICC-02/04-01/15-1722-Corr- Red ; hereinafter: ‘ Defence Closing Brief ’). 24 T-256 , T-257 and T-258 . 25 See Updated Consolidated List of Participating Victims , 29 June 2020, ICC-02/04-01/15-1746, para. 4. 26 For an overview of the decisions issued by the Chamber via email, see the reports filed by the Registry and their corresponding annexes: Registry’s Report filing in the Record of the Case Decisions issued by way of Email in April 2017 , 13 June 2017, ICC-02/04-01/15-875; Registry’s Report filing in the record of the case decisions issued by way of email in May 2017 , 15 June 2017, ICC-02/04-01/15-876; Registry’s Report filing in the Record of the Case Decisions issued by way of email in June 2017 , 13 July 2017, ICC-02/04-01/15-914; Registry’s monthly Report filing in the Record of the Case Decisions issued by way of email in September 2017 , 17 October 2017, ICC-02/04-01/15-1022; Registry’s Report filing in the Record of the Case Decisions issued by way of email from October 2017 to March 2018 , 23 July 2018, ICC-02/04-01/15-1312; Registry’s Report filing in the Record of the Case Decisions issued by way of email from January 2018 to January 2019 , 15 March 2019, ICC-02/04-01/15- 1483; Registry’s Report Filing in the Record of the Case Decisions issued by way of email from January 2019 to June 2019 , 31 October 2019, ICC-02/04-01/15-1651; Registry’s Report Filing in the Record of the Case Decisions issued by way of email from June 2019 to January 2020 , 4 February 2020, ICC-02/04-01/15-1714; Registry’s Report Filing in the Record of the Case Decisions issued by way of email from January 2020 to July 2020 , 2 October 2020, ICC-02/04-01/15-1749; Registry’s Report Filing in the Record of the Case Decisions issued by way of email from July 2020 to December 2020 , 26 January 2021, ICC-02/04-01/15-1761.

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C. The accused

27 Dominic Ongwen was born in Uganda and hails from Coorom in Northern Uganda. He

is known by other names or radio call signs, including Odomi, Wai Wai, Lima Charlie,

28 Wanyama and Tem Wek Ibong.

Dominic Ongwen was abducted by the LRA as a child. His exact age at the time and the

time when the abduction took place are not as such relevant to the charges, but because

the parties, in particular the Defence, invoked Dominic Ongwen’s age at the time of his

abduction in various contexts, the Chamber deems it warranted to examine the underlying

evidence.

As to the positions of the parties, the Chamber notes that in its closing submissions, the

Defence stated that Dominic Ongwen was eight or nine years old at the time of his

29 abduction. On the year of the abduction, the Defence position appears to be that it took

30 place in 1987 or 1988. The Prosecution did not make any submission on the matter at

the closing of the trial. It is also noted that Dominic Ongwen himself stated at the initial

31 appearance that he was born in 1975 and abducted in 1988.

Johnson Odong, who is Dominic Ongwen’s uncle, 32 testified that Dominic Ongwen was

born at the family home in Coorom in May 1978, and was abducted in 1987, when he

33 was in P-3. In addition, Joe Kakanyero, who grew up in Coorom, knew Dominic

34 Ongwen as a child and was abducted with him, testified that the abduction happened in

35 1987 when he was 17 and Dominic Ongwen not more than 11 years old. Further,

P’Atwoga Okello was a teacher at Dominic Ongwen’s school, 36 and testified that

Dominic Ongwen was abducted when he was ‘about 10, maybe 11 years old’ and was in

27 Annex A to the Joint Prosecution and Defence submission on agreed facts, 1 July 2016, ICC-02/04-01/15-487- Conf-AnxA (public redacted version available: ICC-02/04-01/15-487-AnxA-Red ; hereinafter: ‘ Agreed Facts ’), p. 5 (B1), considered as proven by virtue of Decision on Joint Agreed Facts Submission , 19 July 2016, ICC-02/04- 01/15-500; D-0007: T-193 , p. 5, line 23 – p. 6, line 6, p. 21, lines 2-12. 28 Agreed Facts , p. 5 (B3); P-0138: T-120 , p. 18, line 19 – p. 19, line 5; P-0016: T-32 , p. 23, lines 10-16 and T- 33 , p. 45, lines 1-4; D-0032: T-200 , p. 21, line 20 – p. 22, line 3; P-0440: T-40 , p. 4, lines 15-16, p. 11, lines 4-9. , paras 487 (‘around 8-9 years’), 569, 671 (‘age 8 or 9’), 697 (‘age of 9’). 29 Defence Closing Brief , paras 547 (‘in 1987’), 618 (‘in 1987 or 1988’). 30 Defence Closing Brief 31 T-4 , p. 4, lines 4-13. 32 D-0008 Statement, UGA-D26-0010-0307, at para. 2. 33 D-0008 Statement, UGA-D26-0010-0307, at paras 1, 4. 34 D-0007: T-193 , p. 4, line 21 – p. 9, lines 6-23. 35 D-0007: T-193 , p. 9, lines 6-23. 36 D-0012 Statement, UGA-D26-0010-0336, at para. 5.

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37 the third year of primary school. It appears that his estimate of Dominic Ongwen’s age at the time of abduction is based on his knowledge that ‘[t]hat was the general age of that class around 1987’. 38 In addition, D-0032 testifed that he met Dominic Ongwen in the 39 LRA in 1991, and that at the time Dominic Ongwen was 13 or 14 years old. The Chamber also notes the evidence of 40 .

Johnson Odong’s is the only evidence which goes directly to Dominic Ongwen’s birthdate. The Chamber accepts this evidence as reliable, based on Johnson Odong’s family relationship with Dominic Ongwen and the fact that his evidence indicates a good knowledge of the family history. The estimates of Joe Kakanyero and P’Atwoga Okello point to a birthday earlier by approximately one or two years, but they are less precise and less solid, as they are merely estimates, based on their own observation and, in the case of P’Atwoga Okello, on the witness’s general knowledge about the ages of children at Dominic Ongwen’s school. As to Dominic Ongwen’s own statement, the Chamber notes that the Defence itself does not refer to it, and indeed considers it less reliable than the evidence of Johnson Odong, as just explained. Finally, the Chamber notes that D- 0032’s evidence is compatible with that of Johnson Odong. Accordingly, the Chamber concludes that Dominic Ongwen was born in or around 1978. As to the year of abduction, the pertinent evidence is compatible, indicating 1987 as the year that Dominic Ongwen was abducted.

Dominic Ongwen spent the entire period between his abduction and the beginning of the period relevant for the charges, i.e. 1 July 2002, in the LRA. In the period relevant to the charges Dominic Ongwen was approximately 24 – 27 years old. His position at that time 41 is discussed below as a relevant fact of the case.

D. The charges

The text of the charges brought by the Prosecution against Dominic Ongwen in the present case is contained in the operative part of the decision, issued by Pre-Trial

37 D-0012 Statement, UGA-D26-0010-0336, at para. 8. 38 D-0012 Statement, UGA-D26-0010-0336, at para. 8. 39 D-0032: T-201 , p. 3, line 11 – p. 4, line 4. 40 41 See section IV.C.3 below.

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Chamber II, confirming the charges and committing Dominic Ongwen to trial before the 42 Chamber on the charges as confirmed. It includes the specification of the facts and circumstances underlying the charges as well as the corresponding legal characterisation alleged by the Prosecution and confirmed by the Pre-Trial Chamber. The confirmed charges cover 70 counts and concern both war crimes and crimes against humanity all allegedly committed, with the appropriate specifications provided in each of them, against civilians in Northern Uganda in the time frame between 1 July 2002 – the time of the Statute’s entry into force – and 31 December 2005.

As recalled, the full text of the charges brought against Dominic Ongwen is included in a separate section of the decision confirming those charges under Article 61(7)(a) of the Statute. While that is the authoritative version of the charges that is binding on this Chamber both in terms of the facts and circumstances described therein and their proposed legal characterisation, the Chamber finds it appropriate to provide here – for ease of reference only – a brief overview of these charges. To this purpose, the Chamber observes that the charges can be sub-divided into three main categories: (i) charges of crimes committed within the context of four specific attacks against four IDP camps; (ii) charges concerning sexual and gender based violence crimes directly perpetrated by Dominic Ongwen against seven women, specifically identified in the charges themselves, who were in his household at any time between 1 July 2002 and 31 December 2005; and (iii) charges – which are systemic in nature – concerning other sexual and gender based violence and conscription and use in hostilities of children under the age of fifteen committed in Northern Uganda between 1 July 2002 and 31 December 2005.

In relation to the charges falling into the first category, the four attacks are as follows:

Attack on Pajule Camp of Internally Displaced Persons (‘IDP camp’), on or

43 about 10 October 2003 . Dominic Ongwen is charged under various modes of 44 liability for crimes against humanity and war crimes. Specifically, these crimes are: attacking civilians, murder, torture, cruel treatment, other inhumane acts,

42 Confirmation Decision , pp. 71-104. The Chamber notes in this regard that the self-contained text of the charges as confirmed by the Pre-Trial Chamber contained within the operative part is clearly distinguishable, also following separate numbering of paragraphs. 43 Paras 14-25 and counts 1 to 10 of the charges ( Confirmation Decision , pp. 73-77). 44 Article 25(3)(a) (indirect co-perpetration) or, in the alternative, 25(3)(b) (ordering, charged only for enslavement, pillaging and persecution), (c) (charged for all except persecution), (d) and 28(a) of the Statute.

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45 enslavement and pillaging. Dominic Ongwen is further charged with political persecution on grounds that the other alleged crimes were committed against civilians perceived by the LRA as being affiliated with, or supporting the Ugandan 46 government.

47 Attack on Odek IDP Camp, on or about 29 April 2004 . Dominic Ongwen is 48 charged under various modes of liability for crimes against humanity and war crimes. Specifically, these crimes are: attacking civilians, murder, attempted murder, torture, cruel treatment, other inhumane acts, enslavement, pillaging and 49 outrages upon personal dignity. Dominic Ongwen is further charged with political persecution on grounds that the other alleged crimes were committed against civilians perceived by the LRA as being affiliated with, or supporting the 50 Ugandan government.

51 Attack on Lukodi IDP Camp, on or about 19 May 2004 . Dominic Ongwen is 52 charged under various modes of liability for crimes against humanity and war crimes. Specifically, these crimes are: attacking civilians, murder, attempted murder, torture, cruel treatment, other inhumane acts, enslavement, pillaging and 53 destruction of property. Dominic Ongwen is further charged with political persecution on grounds that the other alleged crimes were committed against civilians perceived by the LRA as being affiliated with, or supporting the Ugandan 54 government.

55 Attack on Abok IDP Camp, on or about 8 June 2004 . Dominic Ongwen is 56 charged under various modes of liability for crimes against humanity and war crimes. Specifically, these crimes are: attacking civilians, murder, attempted murder, torture, cruel treatment, other inhumane acts, enslavement, pillaging and 57 destruction of property. Dominic Ongwen is further charged with political persecution on grounds that the other alleged crimes were committed against civilians perceived by the LRA as being affiliated with, or supporting the Ugandan 58 government.

45 Respectively, Articles 8(2)(e)(i), 7(1)(a)/8(2)(c)(i)-1, 7(1)(f)/8(2)(c)(i)-4, 8(2)(c)(i)-3, 7(1)(k), 7(1)(c) and 8(2)(e)(v) of the Statute. 46 Article 7(1)(h) of the Statute. 47 Paras 26-39 and counts 11 to 23 of the charges ( Confirmation Decision , pp. 77-81). 48 Article 25(3)(a) (indirect co-perpetration) or, in the alternative, 25(3)(b) (ordering), (d) or 28(a) of the Statute. 49 Respectively, Articles 8(2)(e)(i), 7(1)(a)/8(2)(c)(i)-1 (in conjunction with Article 25(3)(f) for attempted murder), 7(1)(f)/8(2)(c)(i)-4, 7(1)(k), 8(2)(c)(i)-3, 7(1)(c), 8(2)(e)(v) and 8(2)(c)(ii) of the Statute. 50 Article 7(1)(h) of the Statute. 51 Paras 40-52 and counts 24 to 36 of the charges ( Confirmation Decision , pp. 81-85). 52 Article 25(3)(a) (indirect perpetration) or, in the alternative, 25(3)(b) (ordering), (d) or 28(a) of the Statute. 53 Respectively, Articles 8(2)(e)(i), 7(1)(a)/8(2)(c)(i)-1 (in conjunction with Article 25(3)(f) for attempted murder), 7(1)(f)/8(2)(c)(i)-4, 7(1)(k), 8(2)(c)(i)-3, 7(1)(c), 8(2)(e)(v) and 8(2)(e)(xii) of the Statute. 54 Article 7(1)(h) of the Statute. 55 Paras 53-25 and counts 37 to 49 of the charges ( Confirmation Decision , pp. 86-89). 56 Article 25(3)(a) (indirect perpetration) or, in the alternative, 25(3)(b) (ordering), (d) or 28(a) of the Statute. 57 Respectively, Articles 8(2)(e)(i), 7(1)(a)/8(2)(c)(i)-1 (in conjunction with Article 25(3)(f) for attempted murder), 7(1)(f)/8(2)(c)(i)-4, 7(1)(k), 8(2)(c)(i)-3, 7(1)(c), 8(2)(e)(v) and 8(2)(e)(xii) of the Statute. 58 Article 7(1)(h) of the Statute.

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As concerns the charges of sexual and gender based violence crimes directly perpetrated 59 by Dominic Ongwen, the relevant counts are as follows:

60 Forced marriage , as an inhumane act constituting a crime against humanity, of: (P-0099) between 1 July 2002 and September 2002; (P-0101) between 1 July 2002 and July 2004; (P-0214) between September 2002 and 31 December 2005; (P-0226) between 1 July 2002 and sometime in 2003; and (P-0227) between approximately April 2005 and 31 December 2005.

61 Torture , as a crime against humanity and war crime, of: (P- 0101) between 1 July 2002 and July 2004; (P-0214) between September 2002 and 31 December 2005; (P-0226) between 1 July 2002 and sometime in 2003; and (P-0227) between approximately April 2005 and 31 December 2005.

62 Rape , as a crime against humanity and war crime, of: (P- 0101) between 1 July 2002 and July 2004; (P-0214) between September 2002 and 31 December 2005; (P-0226) between 1 July 2002 and sometime in 2003; and (P-0227) between approximately April 2005 and 31 December 2005.

63 Sexual slavery , as a crime against humanity and war crime, of: (P-0101) between 1 July 2002 and July 2004; (P-0214) between September 2002 and 31 December 2005; (P-0226) between 1 July 2002 and sometime in 2003; and (P-0227) between approximately April 2005 and 31 December 2005.

64 Enslavement , as a crime against humanity, of: (P-0099) between 1 July 2002 and September 2002; (P-0101) between 1 July 2002 and July 2004; (P-0214) between September 2002 and 31 December 2005; (P-0226) between 1 July 2002 and sometime in 2003; (P-0227) between approximately April 2005 and 31 December 2005; (P-0235) between September 2002 and 31 December 2005; (P-0236) between September 2002 and 31 December 2005.

65 Forced pregnancy , as a crime against humanity and war crime, of two persons: (P-0101, two pregnancies) between 1 July 2002 and July 2004); and (P-0214) sometime in 2005.

59 Paras 66-117 and counts 50 to 60 of the charges ( Confirmation Decision , pp. 90-99). 60 Article 7(1)(k) of the Statute. 61 Articles 7(1)(f) and 8(2)(c)(i)-4 of the Statute. 62 Articles 7(1)(g)-1 and 8(2)(e)(vi)-1 of the Statute. 63 Articles 7(1)(g)-2 and 8(2)(e)(vi)-2 of the Statute. 64 Article 7(1)(c) of the Statute. 65 Articles 7(1)(g)-4 and 8(2)(e)(vi)-4 of the Statute.

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66 Outrages upon personal dignity , as a war crime, of: (P-0226) sometime in 2002 or early 2003 close to Patongo, northern Uganda; and (P-0235) sometime in late 2002 or early 2003 at an unspecified location in northern Uganda.

Finally, in relation to the charges concerning the other sexual and gender based violence

and the conscription and use in hostilities of children under the age of fifteen committed

67 in Northern Uganda from at least 1 July 2002 until 31 December 2005, Dominic

68 Ongwen is charged – under various modes of liability – with the crimes as follows:

69 Forced marriage , as an inhumane act constituting a crime against humanity.

70 Torture , as a crime against humanity and war crime.

71 Rape , as a crime against humanity and war crime.

72 Sexual slavery , as a crime against humanity and war crime.

73 Enslavement , as a crime against humanity.

Conscription of children under the age of 15 into an armed group , as a war 74 crime.

Using children under the age of 15 to participate actively in hostilities , as a war 75 crime.

In its closing brief, the Defence argues that ‘[t]he defective Confirmation of Charges

Decision violates the right to notice’ in respect of the charges under Article 25(3)(a) of

the Statute, and ‘incorporates’ into its closing brief submissions presented to the Chamber

76 before. The Defence argues that ‘Mr Ongwen’s right to notice was violated because, in

respect to the forms of liability confirmed, the elements under Article 25(3)(a) of the

Statute were incomplete, and unsubstantiated in respect to subjective elements and the

66 Article 8(2)(c)(ii) of the Statute. 67 Paras 118-124 and counts 61-68 of the charges ( Confirmation Decision , pp. 99-102) and paras 125-131 and counts 69-70 of the charges ( Confirmation Decision , pp. 102-104), respectively. 68 Article 25(3)(a) (indirect perpetration) or, in the alternative, 25(3)(b) (ordering), (d) or 28(a) of the Statute. 69 Article 7(1)(k) of the Statute. 70 Articles 7(1)(f) and 8(2)(c)(i)-4 of the Statute. 71 Articles 7(1)(g)-1 and 8(2)(e)(vi)-1 of the Statute. 72 Articles 7(1)(g)-2 and 8(2)(e)(vi)-2 of the Statute. 73 Article 7(1)(c) of the Statute. 74 Article 8(2)(e)(vii) of the Statute. 75 Article 8(2)(e)(vii) of the Statute. 76 Defence Closing Brief , para. 184, referring to Defence Motion on Defects in the Confirmation of Charges Decision: Defects in the Modes of Liability (Part II of the Defects Series) , 1 February 2019, ICC-02/04-01/15- 1431, paras 32-49.

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Pre-Trial Chamber only confirmed part of the legal elements of subjective elements for

most of the modes of liability under Article 25(3)(a) of the Statute, and then failed to

connect factual support to these elements’. 77 In addition, the Defence argues that ‘the

pleading failure, and related disclosure issues, mean that the lack of notice renders the

indirect co-perpetration charges defective in such a way that they must be dismissed for

inadequate notice’. 78

The Defence also submits that ‘the charges of conscription and use of child soldiers under

Counts 69 and 70 are fatally defective in so far as they do not specifically describe the

alleged crimes’. 79 Also on this point, the Defence refers to a previous written

80 submission.

The Defence does not develop its submissions in any detail other than by claiming that it

‘incorporates all submissions’ or ‘reiterates’ previous filings. 81 Those previous filings,

dated 1 February 2019, were dismissed in limine by the Chamber on 7 March 2019 for

82 untimeliness, under Rule 134(2) of the Rules. The Chamber’s decision was confirmed

83 on appeal. The decision of the Chamber and the judgment of the Appeals Chamber on

interlocutory appeal forming part of the record of the case, it is unnecessary to rehearse

in this judgment the reasons underpinning them.

Taking into account the applicable legal framework, in particular Rule 134(2) of the

Rules, the Chamber does not identify at the present stage of issuance of the judgment any

circumstance that would justify consideration of the same belated submissions as

concerns the formulation of the charges. The arguments of the Defence are thus dismissed

in limine .

77 Defence Closing Brief , para. 185. 78 Defence Closing Brief , para. 188. 79 Defence Closing Brief , para. 490. 80 Defence Closing Brief , paras 490-491, referring to Defence Motion on Defects in the Confirmation of Charges Decision: Defects in the Charged Crimes (Part IV of the Defects Series) , 1 February 2019, ICC-02/04-01/15-1433, paras 62-70. 81 See Defence Closing Brief , paras 184, 491. 82 See Decision on Defence Motions Alleging Defects in the Confirmation Decision , 7 March 2019, ICC-02/04- 01/15-1476. 83 See Appeals Chambers, Judgment on the appeal of Mr Dominic Ongwen against Trial Chamber IX’s ‘Decision on Defence Motions Alleging Defects in the Confirmation Decision’ , 17 July 2019, ICC-02/04-01/15-1562.

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The Defence also complains that the confirmation of charges decision ‘failed to define the contextual elements of the crimes against humanity, and contains extremely vague references to evidence and facts in paragraphs 60 to 64’. 84 It makes an identical argument 85 as concerns the contextual elements of war crimes. In addition to the fact that this complaint about the formulation of charges is also submitted late in the proceedings without a valid reason and thus dismissed in limine , the Chamber emphasises that the charges in the case are contained in a separate section in the operative part of the confirmation of charges decision, and that the degree of detail and depth of the Pre-Trial Chamber’s reasoning in the decision confirming the charges are unrelated to the question whether the charges are properly formulated.

84 Defence Closing Brief , para. 301. See also para. 303. 85 Defence Closing Brief , para. 304.

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II. DEFENCE ALLEGATIONS CONCERNING THE ACCUSED’S RIGHT TO A FAIR TRIAL AND ‘OTHER HUMAN RIGHTS VIOLATIONS’

In its Closing Brief and during the closing statements the Defence raised a number of

allegations concerning the accused’s right to a fair trial and ‘other human rights violations’.

86

The Defence submits that any single violation would ‘cast serious doubts upon the fairness and reliability’ of the proceedings and, because of their cumulative

87

effect, they justify the declaration of a permanent stay of the proceedings.

The Prosecution responded to part of the Defence’s arguments in its oral closing

88

statement.

While the statutory framework does not explicitly provide for a permanent stay of

89

proceedings, the jurisprudence of the Court confirms the availability of this remedy.

Interpreting the application of Article 21(3) of the Statute where breaches in the rights of the accused has been alleged, the Appeals Chamber held that ‘[w]here fair trial becomes

impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial’, and

that ‘[i]f no fair trial can be held, the object of the judicial process is frustrated and the

process must be stopped’.

90

Not every infraction of the statutory framework justifies the

granting of a request for stay of proceedings: the violation must be of such importance

91

as to make a fair trial permanently impossible. The unfairness in the treatment of the

86 Defence Closing Brief , paras 31-158; Defence Closing Statement: T-258 . 87 Defence Closing Brief , para. 33. 88 Prosecution Closing Statement: T-256, p. 24, line 22 – p. 35, line 21. 89 See Trial Chamber X, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Public redacted version of ‘Decision on the Defence request to terminate the proceedings and related requests’ , 29 October 2020, ICC-01/12-01/18-1009-Red, para. 50; Trial Chamber VI, The Prosecutor v. Bosco Ntaganda, Decision on Defence request for stay of proceedings with prejudice to the Prosecution , 28 April 2017, ICC-01/04-02/06-1883, para. 20, citing to Trial Chamber V(B); Trial Chamber V(B), The Prosecutor v. Uhuru Muigai Kenyatta , Public redacted version of Decision on Defence application for a permanent stay of the proceedings due to abuse of process , 5 December 2013, ICC-01/09-02/11-868-Red, para. 14. See also Article 21(3) of the Statute. 90 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 14 December 2006, ICC-01/04-01/06-772, para. 37. See also Trial Chamber X, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Public redacted version of ‘Decision on the Defence request to terminate the proceedings and related requests’ , 29 October 2020, ICC-01/12-01/18- 1009-Red, para. 50; Trial Chamber V(B), The Prosecutor v. Uhuru Muigai Kenyatta , Public redacted version of Decision on Defence application for a permanent stay of the proceedings due to abuse of process , 5 December 2013, ICC-01/09-02/11-868-Red, para. 14 (i). 91 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 14 December 2006, ICC-01/04-01/06-772, para. 39. See also Appeals Chamber,

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accused must be of such a nature that it ‘rupture[s] the process to an extent making it

impossible to piece together the constituent elements of a fair trial’.

92

As such, a stay of

93

proceedings is a remedy of an exceptional nature.

Accordingly, the Chamber has considered each of the asserted violations of Dominic

Ongwen’s rights and assessed whether they, individually or in accumulation, warrant a

permanent stay of the proceedings. As explained in detail below, the Chamber finds that

the Defence submissions are entirely unfounded.

A. Allegations concerning the arrest of Dominic Ongwen and his surrender to the Court

The Defence argues that the Pre-Trial Chamber ‘failed to protect Mr Ongwen’s human rights prior to his appearance before the Court’.

94

It argues that it was the role and duty

of the Pre-Trial Chamber, pursuant to Articles 21(3), 55(2) and 59(2) of the Statute, to verify that Dominic Ongwen ‘was not subject to any violation of his fundamental rights

in the process of his arrest and transfer to the Court’.

95

According to the Defence, it was

The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised in the Status Conference on 10 June 2008” , 21 October 2008, ICC-01/04-01/06-1486, paras 77-78; Pre- Trial Chamber I, The Prosecutor v. Laurent Gbagbo, Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)” , 15 August 2012, ICC-02/11-01/11- 212, para. 91; Trial Chamber V(B), The Prosecutor v. Uhuru Muigai Kenyatta , Public redacted version of Decision on Defence application for a permanent stay of the proceedings due to abuse of process , 5 December 2013, ICC-01/09-02/11-868-Red, para. 14 (i), (iii); Trial Chamber VI, The Prosecutor v. Bosco Ntaganda, Decision on Defence request for stay of proceedings with prejudice to the Prosecution , 28 April 2017, ICC-01/04- 02/06-1883, para. 22; Trial Chamber X, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Public redacted version of ‘Decision on the Defence request to terminate the proceedings and related requests’ , 29 October 2020, ICC-01/12-01/18-1009-Red, paras 51, 54. 92 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 14 December 2006, ICC-01/04-01/06-772, para. 39. Decision on the “Corrigendum of the challenge 93 See Pre-Trial Chamber I, The Prosecutor v. Laurent Gbagbo, to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)” , 15 August 2012, ICC-02/11- 01/11-212, para. 91; Trial Chamber V(B), The Prosecutor v. Uhuru Muigai Kenyatta , Public redacted version of Decision on Defence application for a permanent stay of the proceedings due to abuse of process , 5 December 2013, ICC-01/09-02/11-868-Red, para. 14(iii); Trial Chamber X, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Public redacted version of ‘Decision on the Defence request to terminate the proceedings and related requests’ , 29 October 2020, ICC-01/12-01/18-1009-Red, para. 51. 94 Defence Closing Brief , para. 43. 95 Defence Closing Brief , para. 43.

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in this process that breaches of Dominic Ongwen’s rights to legal assistance and to 96 remain silent occurred and were ‘ignored by the Pre-Trial Chamber’.

The Defence argues that the Court obtained the custody of Dominic Ongwen ‘through the actions of the authorities of Uganda and Central African Republic’, and that because their conduct in respect of Dominic Ongwen was ‘based on the issuance of the warrant of arrest by the Pre-Trial Chamber’, Articles 55(2) and 59 of the Statute were 97 applicable.

The Defence argues that ‘[t]he illegality of the process and the breach of Mr Ongwen’s rights’ are documented in a video showing Dominic Ongwen in UPDF custody. 98 According to the Defence, the video ‘shows that on 16 January 2015, UPDF informed Mr Ongwen that he is an “ICC indictee” and that he “is being held and released on charges of war crimes”’, after which Dominic Ongwen is ‘given several documents to sign’, and an ‘interview’ takes place at the UPDF headquarters. 99 It is on this basis that the Defence alleges that Dominic Ongwen’s right to counsel and right to remain silent 100 and not be forced to self-incriminate were violated.

In its closing submissions, the Prosecution points out that the accused was assigned a 101 duty counsel as soon as he was in the custody of the Court and argues that even if procedural irregularities occurred before Dominic Ongwen came into custody of the Court and even if those irregularities can be attributed to the Court, ‘Mr Ongwen still had 102 an obligation to mitigate any ensuing prejudice by pursuing a timely remedy’.

The Chamber notes that Article 55(2) of the Statute and the rights enumerated therein only apply when the person concerned is questioned in the context of an investigation by the Court. Specifically, the provision envisages that a person against whom there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court is about to be questioned either by the Prosecutor or by national authorities pursuant to a cooperation request made by the Court under Part 9 of the Statute.

96 Defence Closing Brief , para. 43. 97 Defence Closing Brief , paras 44-48. 98 Defence Closing Brief , para. 52. See Video Material, UGA-OTP-0283-1449. 99 Defence Closing Brief , para. 53. 100 Defence Closing Brief , paras 54-55. 101 Prosecution Closing Statement: T-256 , p. 33, lines 18-23. 102 Prosecution Closing Statement: T-256 , p. 33, line 24 – p. 34, line 3.

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In the case at hand, the Defence assertion that the Ugandan or CAR authorities acted ‘based on the issuance of the warrant of arrest by the Pre-Trial Chamber’ is not completely accurate. In fact, Ugandan authorities did not question Dominic Ongwen pursuant to a request for cooperation under Part 9 of the Statute. At the relevant time, even though Uganda had received a request for arrest and surrender in respect of Dominic Ongwen, there is no request on the record which could serve as a basis for Uganda to question him under Article 55(2) of the Statute. In the same vein, no such request for cooperation to the Central African authorities to question the accused at the behest of the Court can be found. Accordingly, Article 55(2) of the Statute did not apply at the time at issue, i.e. during Dominic Ongwen’s stay in the custody of Ugandan or Central African authorities prior to his surrender to the Court. Irrespective of these considerations, the Chamber furthermore notes that the Court provided Dominic Ongwen with a duty 103 counsel as soon as he was in the custody of the Court.

Turning to Article 59 of the Statute, the Defence in its submissions makes reference to Ugandan national law, the CAR constitution, as well as Article 14(3) of the International 104 Covenant on Civil and Political Rights. The Chamber notes that Article 59 of the Statute regulates arrest proceedings in the custodial State leading up to the surrender of the person for whose arrest the Court has issued a warrant. In the present case, the State which surrendered the accused to the Court is CAR. All specific arguments of the Defence relate to events while Dominic Ongwen was in the custody of UPDF, before custody was handed over to the CAR. In fact, there is no link between the allegations of 105 the Defence and the Article 59 proceedings as they are reflected on the record. The Defence also alleges a procedural violation claiming that ‘[p]rior to the appearance of Mr Ongwen before the Court, the Pre-Trial Chamber was required to verify the efficacy of the process leading to Mr Ongwen’s arrest and handover to the Court, including that his rights were respected’, but that ‘based on the record, nothing indicates that the Pre-Trial Chamber recognised the violations by Uganda and CAR in the 106 impugned process’. As explained just above, Articles 55(2) and 59 were not applicable at the time when the alleged violations occurred, i.e. at the time Dominic Ongwen was in

103 Report of the Registry on the voluntary surrender of Dominic Ongwen and his transfer to the Court , paras 4-5. 104 Defence Closing Brief , para. 49. 105 See Annex 3 to Report of the Registry on the voluntary surrender of Dominic Ongwen and his transfer to the Court . 106 Defence Closing Brief , para. 56.

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custody of the UPDF. Consequently, a failure of the Court to protect Dominic Ongwen’s enjoyment of rights under the cited provisions of the Statute could not have occurred.

The Chamber notes that the Court’s powers vis-à-vis States are limited under Article 59 of the Statute. As stated by the Appeals Chamber, ‘[t]he Court does not sit in the process […] on judgment as a court of appeal on the identificatory decision of the [national] judicial authority’. 107 Furthermore, Article 59(2) of the Statute states, and by doing so also limits, the competence of national authorities of the custodial State in the relevant arrest proceedings. Article 59(2) does not in itself create a duty for the surrendering State to undertake any particular proceeding in order for the competent national authorities to transfer custody to the Court, upon the surrendering State obtaining custody over a person 108 subject to a warrant of arrest issued by the Court. As said above, and as reflected in the record of the case, CAR duly executed domestic proceedings before surrendering 109 Dominic Ongwen to the Court.

Accordingly, the Chamber does not find that the Defence allegations pertain to any rights protected under Articles 55 and 59 of the Statute. In addition, in the view of the Chamber, the facts as brought forward by the Defence and the resulting allegations would not constitute ‘breaches of the fundamental rights [of Dominic Ongwen] by his accusers’ that 110 would make a fair trial impossible, and thus would not justify a permanent stay of proceedings.

Additionally, the Defence makes submissions concerning the use of the concerned video by one of the Prosecution experts, Professor Mezey, and requests that the video should be excluded and Professor Mezey’s conclusions be disregarded, since the video was one 111 of the materials she relied on the video in her report. Without mentioning the provision explicitly, the Defence argues that the item should be declared inadmissible pursuant to

107 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 14 December 2006, ICC-01/04-01/06-772, para. 41. 108 Decision on the applicability of article 101 of the Rome Statute in the proceedings against Dominic Ongwen , 7 July 2015, ICC-02/04-01/15-260, para. 10. 109 See Annexes 1, 2 and 3 to Report of the Registry on the voluntary surrender of Dominic Ongwen and his transfer to the Court . 110 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 14 December 2006, ICC-01/04-01/06-772, para. 37. 111 Defence Closing Brief , paras 57-60.

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Article 69(7) of the Statute. The Prosecution argues in its closing statement that, even if arguendo there had been any procedural irregularity attributable to the Court, the accused ‘had an obligation to […] pursu[e] a timely remedy’, but ‘[h]e didn’t do so’ and ‘[t]he 112 Defence made no mention of this issue at any time till it appeared in the closing brief’. In this regard, the Prosecution submits that ‘[i]t’s true that they sought to oppose the Prosecution's submission of the video evidence, but they did so on entirely separate 113 grounds from those they now advance.’

Article 69(7) of the Statute provides that evidence obtained by means of a violation of the Statute or internationally recognised human rights shall not be admissible if: (a) the violation casts substantial doubt on the reliability of this evidence; or (b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

The Defence argues that the evidence in question was obtained in violation of the Statute, in particular Articles 21(3), 55(2), 59(2) and 67(1)(g). As to Article 21(3) of the Statute, the Defence does not allege any particular infringement of Dominic Ongwen’s rights other than that alleged under Articles 55(2), 59(2) and 67(1)(g). As found above, Articles 55(2) and 59(2) did not apply at the time. 114 Further, as stated by the Prosecution, the Defence itself used video footage from the same interview during its questioning of witness Professor Allen and then requested it to be recognised as formally submitted. It played a statement made by the accused and asked Professor Allen to interpret its meaning, specifically asking whether the statement says anything about the state of mind of the accused, whether he showed expression of regret 115 or defiance. The Defence cannot claim that the admission of a video should be precluded because of Article 69(7) of the Statute and at the same time also request that another video recording the same event be recognised as formally submitted. When arguing that the accused’s right pursuant to Article 67(1)(g) of the Statute is 116 infringed, the Defence misconstrues this right. The right to remain silent, pursuant to

112 Prosecution Closing Statement: T-256 , p. 33, line 24 – p. 34, line 3. 113 Prosecution Closing Statement: T-256 , p. 34, lines 3-5. 114 Prosecution Closing Statement: T-256 , p. 34, lines 6-21. 115 P-0422: T-29 , p. 107, line 3 – p. 110, line 9. 116 Defence Closing Brief , para. 59.

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Article 67(1)(g) of the Rome Statute, guarantees that, in the context of an investigation and subsequent proceedings, an accused does not have to answer when being questioned, and that this silence cannot be considered against him or her. As stated above, the accused was not questioned pursuant to Article 55(2) of the Statute. More generally, even though the video does show UPDF posing questions to Dominic Ongwen, there is no nexus between this exchange and any criminal proceedings, let alone proceedings before the Court.

Accordingly, the Chamber finds that the requirements for the application of Article 69(7) of the Statute have not been established, and considers that the request of the Defence is without merit.

B. Submissions concerning the taking of evidence under Article 56 of the Statute

The Defence indicates a number of issues which, in its view, violate the accused’s fair trial rights in relation to the evidence emanating from the procedure for the collection of evidence under Article 56 of the Statute. Specifically, it submits that Article 67(1)(a) of the Statute was violated because, at the time of the taking of this evidence, the precise 117 charges were not known, the Single Judge of the Pre-Trial Chamber which decided on 118 the confirmation of charges took the evidence pursuant to Article 56 of the Statute, the Single Judge ‘refus[ed]’ to consider procedural challenges, 119 and the witnesses were not 120 asked for whom they wish to testify. This, according to the Defence, violated the accused’s rights pursuant to Article 67(1)(a) and (e) of the Statute. 121

In its closing statement, the Prosecution responded to these arguments. It submits that the Defence’s interpretation of Article 67(1)(a) of the Statute would render the procedure of Article 56 de facto ineffectual, since it could only apply between the confirmation of the 122 charges pursuant to Article 61 of Statute and the start of the trial. Further, it submits that the Defence had notice of what the witnesses were going to testify about and had an

117 Defence Closing Brief , paras 62-63. 118 Defence Closing Brief , para. 64. 119 Defence Closing Brief , para. 65. 120 Defence Closing Brief , para. 66. 121 Defence Closing Brief , para. 71. 122 Prosecution Closing Statement: T-256 , p. 20, lines 13-18.

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123 opportunity to challenge their accounts. Regarding the issue that the witnesses have been confused as to their role in the proceedings, it submits that the Defence previously had a contrary position on this matter, having stated – correctly – that the role of a witness 124 is about the truth and not by whom he or she is called.

With regard to the Defence submissions under Article 67(1)(a) of the Statute, the Chamber notes that said provision establishes the right of the accused to be informed of the charges against him, which are presented by the Prosecutor in advance of the 125 confirmation of charges hearing. Article 56 of the Statute, dealing with ‘unique investigative opportunity’ and placed within Part 5 of the Statute, is not limited to certain procedural stages. In fact, evidence may be preserved under that provision even before the surrender or voluntary appearance of the person concerned. Accordingly, the Defence interpretation which seeks to require the submission of charges before action in relation to a unique investigative opportunity is taken is without merit.

As regards the submissions concerning the fact that the Single Judge of the Pre-Trial Chamber presided over the taking of the evidence pursuant to Article 56 of the Statute and ruled on this evidence in the decision on the confirmation of the charges, the Chamber finds that the Defence’s arguments are equally without merit. The Defence fails to explain wherein the purported conflict lies, and in fact acknowledges that the situation 126 is compatible with the text of the Statute.

The assertion that the Single Judge ‘precluded the Defence from raising objections to the nature, scope and purpose of the Article 56 Proceedings’ is based on a false interpretation 127 of the statement of the Single Judge. In fact, before the Pre-Trial Chamber’s decisions on whether to take evidence pursuant to Article 56 of the Statute, the Defence made 128 submissions on these points. There is simply no indication on the record, and neither

123 Prosecution Closing Statement: T-256 , p. 20, line 23 – p. 21, line 4. 124 Prosecution Closing Statement: T-256 , p. 22, line 5 – p. 23, line 24, referring to the Defence submissions in T-12 , p. 14, lines 19-24 and p. 22, lines 5-10. 125 See Rule 121(3) of the Rules of Procedure and Evidence. 126 Defence Closing Brief , para. 64. 127 Defence Closing Brief , para. 65. See also T-8 , p. 4, lines 5-8. 128 Defence Response to the Prosecution’s Request for an Article 56 Unique Investigative Opportunity, 3 July 2015, ICC-02/04-01/15-259-Conf (public redacted version available: ICC-02/04-01/15-259-Red ); Confidential Redacted Response to “Second Prosecution Application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”', 8 October 2015, ICC-02/04-01/15-314-Conf-Red (public redacted version available: ICC-02/04-01/15-314-Red2 ).

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does the Defence purport, that the Defence was actually prevented from making specific submissions in relation to the proceedings under Article 56 of the Statute. Further, the Chamber does not find that the accused’s rights pursuant Article 67(1)(e) of the Statute were violated because the witnesses testifying pursuant to Article 56 of the Statute were not asked ‘for whom’ they intended to testify. 129 The Defence submits in this regard that it had contacted the witnesses concerned and ‘obtained witness statements from them to testify for Mr Ongwen’ and that ‘proof that some of these witnesses wanted to testify for Mr Ongwen […] was available to the Prosecutor and the Single Judge’. 130 The Defence specifically argues that the failure to determine the ‘status of the witnesses’ prejudiced Dominic Ongwen in that it resulted in the restrictions on his contact with his 131 family, and in violations of his right to call witnesses on his behalf. However, these allegations are entirely unexplained and unsupported. While noting that it was clear to the Defence during the proceedings under Article 56 of the Statute that the witnesses concerned were heard following a request by the Prosecutor, the Chamber in any case emphasises that a witness testifies in order to establish the truth. The Chamber notes that at the beginning of each testimony, the Single Judge of the Pre-Trial Chamber asked the witness to make an undertaking to tell the truth. Further, the Defence had every opportunity to pose questions to the witnesses – a possibility it availed itself of – and was not in a different position as it would have been, had it called the witnesses. Accordingly, the Chamber does not find any violation of Dominic Ongwen’s rights.

Lastly, the Defence submits that the Single Judge of the Pre-Trial Chamber failed to carry out his role properly in the Article 56 proceedings, since he assessed the witnesses collectively when ruling on the basis for the proceedings and did not request 132 corroboration in relation to certain inconsistencies in their testimonies. Again, these arguments are without merit.

With regard to the first argument, the Single Judge of the Pre-Trial Chamber ruled on the application of Article 56 of the Statute in two decisions, but assessed every witness

129 Defence Closing Brief , para. 66. 130 Defence Closing Brief , para. 67. 131 Defence Closing Brief , para. 68. 132 Defence Closing Brief , paras 69-70.

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133 separately. The fact that the reasons for taking measures under Article 56 of the Statute were based on similar grounds – due to the similar circumstances the witnesses were in – does not mean that the decision for each witness was not made individually.

Concerning the second argument, the legal basis for the Defence request is entirely absent. The object and purpose of Article 56 of the Statute is to preserve evidence which may otherwise become unavailable. There is nothing in the applicable law that would require or enable the Pre-Trial Chamber, at that point in the proceedings, to ‘request corroboration’ from the Prosecution. For this reason, the Chamber rejects the argument.

In conclusion, the Chamber finds that none of the allegations brought forward by the Defence with regard to the Article 56 proceedings violated the accused’s rights and 134 therefore does not warrant the exceptional remedy of a permanent stay of proceedings.

Further, in this context the Defence made an unrelated complaint that it was denied to call an expert on sexual and gender based crimes, which, it argues, prejudiced the accused’s fair trial rights. 135 The Chamber repeats the reasons advanced in an earlier decision on this matter: the – belated – addition in the list of witnesses of the concerned expert was not considered necessary since ‘the terms of reference instructing D-158 [the prospected witness] to produce [an expert] report indicate that much of the expected report – and anticipated testimony of D-158 – has already been discussed by other 136 witnesses called by the Defence.’ Therefore, the proposed witness’s evidence ‘would merely be additional evidence for topics for which direct evidence has already been elicited by the Defence’. 137 Accordingly, the Chamber does not find any violation of the accused’s rights and subsequently no justification for a permanent stay of proceedings.

133 See Decision on the “Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, 27 July 2015, ICC-02/04-01/15-277-Conf (public redacted version available: ICC-02/04-01/15-277-Red ), paras 5-10; Decision on the “Second Prosecution application to the Pre- Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, 12 October 2015, ICC-02/04-01/15-316-Conf (public redacted version available: ICC-02/04-01/15-316-Red ), paras 2-12. 134 For matters of completeness, the Chamber made a similar finding previously in Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute , 10 August 2016, ICC-02/04-01/15-520. 135 Defence Closing Brief , para. 72. 136 Decision on Defence Request to Add Two Witnesses to its List of Witnesses and Accompanying Documents to its List of Evidence , 13 August 2019, ICC-02/04-01/15-1565, para. 16. 137 Decision on Defence Request to Add Two Witnesses to its List of Witnesses and Accompanying Documents to its List of Evidence , 13 August 2019, ICC-02/04-01/15-1565, para. 21.

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C. Submissions regarding Article 64(8)(a)

The Defence submits that Dominic Ongwen’s plea was ‘illegal’, as it was not ‘voluntary, knowing or informed, and unequivocal’. 138

Article 64(8)(a) of the Statute required the Chamber, at the commencement of the trial, to ‘afford [to the accused] the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty’. Dominic Ongwen did not admit guilt, and the procedure of Article 65 of the Statute was not triggered. In this regard, while the Chamber considers the Defence’s interpretation of Dominic Ongwen’s plea erroneous, it notes that 139 contrary to the Defence’s suggestions, the standards for a not guilty plea are not equivalent to the standards required for an admission of guilt under Article 65 of the Statute. A non-unequivocal ‘not guilty’ plea results simply in the proceeding with the trial. In any event, any submissions of the Defence arguing that Dominic Ongwen was prejudiced by his plea are unsubstantiated.

It is noted, however, that the arguments of the Defence under this heading contain other grievances in relation to ‘Mr Ongwen’s mental disability’ and the translation of the 140 decision on the confirmation of charges. On this basis, the Defence argues that 141 Dominic Ongwen did not understand the charges against him at the time of his plea.

During its closing statements, the Prosecution submitted that the Defence presented no evidence that the accused was not able to understand the charges and that the report 142 produced by the Court-appointed expert also does not support this assumption. Further, it submits that even if a person has a mental illness, this does not automatically mean that 143 he or she cannot understand the charges. In respect of the statements made by the accused during the opening of the trial and their interpretation as to his understanding of the charges, the Prosecution agrees with the Chamber’s interpretation of an earlier

138 Defence Closing Brief , paras 73-77. 139 Defence Closing Brief , paras 73-77. 140 Defence Closing Brief , paras 78-79. 141 Defence Closing Brief , para. 76. 142 Prosecution Closing Statement: T-256 , p. 27, line 9 – p. 28, line 2. 143 Prosecution Closing Statement: T-256 , p. 28, lines 2-6.

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decision that the accused disputed his responsibility and denied the charges which is 144 different from not understanding them.

At the opening of the trial, the Chamber issued an oral decision finding that Dominic 145 Ongwen understood the nature of the charges. The Defence quotes a statement made by the accused before this decision that, while he understood the document containing the charges, ‘the charges I [Dominic Ongwen] do understand as being brought against LRA but not me, because I’m not the LRA. The LRA is Joseph Kony who is the leader of the LRA.’ 146 The Defence ‘interprets this statement to mean that Mr Ongwen did not understand the charges against him’. 147

The argumentation of the Defence is untenable. The fact that an accused provides an answer which contains more than a simple ‘yes’ or ‘no’ – as shown by the response of

148 the accused during the hearing of the confirmation of the charges – does not mean that he has no clear understanding of the question put to him. As the Chamber stated in its oral decision ‘Mr Ongwen’s remarks that the LRA is not him and that the LRA

committed these acts demonstrate an understanding of the confirmed charges. Mr Ongwen’s remarks are rather a dispute as to Mr Ongwen’s responsibility for these alleged 149 acts’. Further, when asked by the Presiding Judge whether he made ‘an admission of guilt with respect to any charge’, Dominic Ongwen responded ‘[i]n the name of God, I

150 deny all these charges in respect to the war in northern Uganda’. This is not, as alleged 151 by the Defence, a further sign that Dominic Ongwen did not understand the charges as being brought against him but simply that he refuses to take any responsibility for them. The Chamber repeats its finding that Dominic Ongwen understood the charges as being brought against him.

144 Prosecution Closing Statement: T-256 , p. 28, line 7 – p. 29, line 1. 145 T-26 , p. 17, line 11 – p. 19, line 15. 146 Defence Closing Brief , para. 75, citing to T-26 , p. 16, lines 18-20. 147 Defence Closing Brief , para. 76. 148 The Chamber notes in this regard that in response to the question by the Pre-Trial Chamber whether he understood the charges presented by the Prosecution, Dominic Ongwen responded in a similar manner, without replying with ‘yes’ or ‘no’, before unequivocally stating that had he read and understood the charges. See T-20 , p. 6, lines 5-14. 149 T-26 , p. 19, lines 8-11. 150 T-26 , p. 20, lines 10-13. 151 Defence Closing Brief , para. 76.

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The Defence’s submits that ‘in light of the information before [the Chamber] about Mr

Ongwen’s disability, a postponement of the 6 December proceedings should have been

taken.’ 152 This misstates the facts. The only information available to the Chamber was a

filing by the Defence, the day before the opening statement, stating, inter alia, that

experts hired by the Defence made a finding pursuant to Article 64(8)(a) of the Statute

and determined that Dominic Ongwen did not understand the charges and that he was not

153 fit to stand trial. No supporting material was provided, and in particular not any expert

154 report.

The Chamber did not ignore any information when making its determination pursuant to

Article 64(8)(a) of the Statute that Dominic Ongwen understood the charges. Any

reference by the Defence to reports by medical experts made after the decision is

155 misplaced.

Lastly, concerning translation of the decision on the confirmation of the charges, the

Chamber recalls that, as previously stated in a decision on the matter, at the opening of

156 the trial Dominic Ongwen had available to him the full text of the charges in Acholi.

The document containing the charges on which the Prosecutor requested that Dominic

157 Ongwen be brought to trial was translated into Acholi in its entirety. Dominic Ongwen

confirmed that he received this translation and understood the charges during the hearing

158 of the confirmation of the charges. The decision on the confirmation of the charges

confirmed all counts contained in this document and copied it verbatim into its decision,

159 including as concerns the facts and circumstances described in the charges. Because

152 Defence Closing Brief , para. 81. 153 Defence Request for a Stay of the Proceedings and Examinations Pursuant to Rule 135 of the Rules of Procedure and Evidence, 5 December 2016, ICC-02/04-01/15-620-Conf (public redacted version available: ICC- 02/04-01/15-620-Red2 ), para. 76. 154 See Defence Request for a Stay of the Proceedings and Examinations Pursuant to Rule 135 of the Rules of Procedure and Evidence, 5 December 2016, ICC-02/04-01/15-620-Conf (public redacted version available: ICC- 02/04-01/15-620-Red2 ), paras 41-42. 155 See Defence Closing Brief , para. 80. 156 See Decision on Defence Request for Findings on Fair Trial Violations Related to the Acholi Translation of the Confirmation Decision , 24 January 2018, ICC-02/04-01/15-1147. 157 Annex A to Document Containing the Charges, 22 December 2015, ICC-02/04-01/15-375-Conf-AnxA (public redacted version available: ICC-02/04-01/15-375-AnxA-Red ); Acholi translation at Annex B to Document Containing the Charges, 22 December 2015, ICC-02/04-01/15-375-Conf-AnxB (public redacted version available: ICC-02/04-01/15-375-AnxB-Red ). 158 T-20 , p. 6, lines 13-14. 159 See Confirmation Decision , pp. 71-104. The limited modifications made by the Pre-Trial Chamber to the text of the charges as presented (also in Acholi) by the Prosecution are precisely identified at para. 158 of the Confirmation Decision and consist exclusively in the removal of one section and of a few words and the insertion of some pseudonyms to refer to some witnesses whose identity was confidential vis-à-vis the public.

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of the clear separation between the text of the charges brought against Dominic Ongwen and the other parts of the decision on the confirmation of charges containing the reasoning of the Pre-Trial Chamber, the lack of a full translation of the entire decision containing the charges at the opening of the trial was immaterial. In this regard, the Chamber observes that in accordance with Article 67(1)(a) of the Statute an accused has the right to be informed, in a language which he or she fully understands and speaks, of the ‘nature, cause and content’ of the charges. Finally, the Chamber recalls that at the opening of trial the numbered counts without references to the statutory provisions – which were contained in the operative part of the confirmation decision under the subheadings ‘legal characterisation of facts’ – were read out and, in that context, again made available to Dominic Ongwen in Acholi by virtue of the interpretation in the 160 courtroom.

In conclusion, the Chamber rejects the argument of the Defence that Dominic Ongwen did not understand the nature of the charges against him at the time of his plea. Accordingly, there is no prejudice which would justify the exceptional remedy of a permanent stay of the proceedings.

D. Submissions regarding the accused’s right to notice and his right to prepare a defence

The Defence submits that ‘[f]rom the inception of this case, the Defence has litigated the 161 breaches of the right to notice.’ It cites to several motions and briefs which have all 162 been addressed by either the Chamber or the Appeals Chamber. The Defence does not provide any new argument going beyond its prior submissions.

The Defence does not request a new resolution of its requests but submits that because of the allegations contained in these motions the accused ‘has been placed in a position of not knowing the specifics against which he must defend the alleged crimes and his

160 T-26 , p. 8, line 20 – p. 15, line 25. 161 Defence Closing Brief , para. 84. 162 Decision on Defence Request for Leave to File a No Case to Answer Motion , 18 July 2018, ICC-02/04-01/15- 1309; Decision on Defence Motions Alleging Defects in the Confirmation Decision , 7 March 2019, ICC-02/04- 01/15-1476; Decision on Further Defence Motion Alleging Defects in the Confirmation Decision , 8 October 2019, ICC-02/04-01/15-1630; Decision on Defence Request for Ruling on Request to Dismiss the Charge of Enslavement , 11 February 2020, ICC-02/04-01/15-1717; Appeals Chambers, Judgment on the appeal of Mr Dominic Ongwen against Trial Chamber IX’s ‘Decision on Defence Motions Alleging Defects in the Confirmation Decision’ , 17 July 2019, ICC-02/04-01/15-1562.

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163 alleged participation’ which prejudiced the Defence’s planning and ‘made the fair trial impossible’. 164 Since the Chamber ruled on these motions, the Defence’s argument is, in essence, that the decisions of the Chamber violated the accused’s right to a fair trial.

When ruling on the various requests, the Chamber considered all these allegations and

dismissed the arguments by the Defence. Since no new arguments are presented by the

Defence, the Chamber finds that its prior decisions did not violate the accused’s right to

notice and right to prepare a defence. Accordingly, the Defence’s allegations do not

justify the exceptional remedy of a permanent stay of the proceedings.

E. Submissions with regard to the standard for burden of proof in relation to the alleged grounds excluding criminal responsibility

The Defence submits that the fact that the Chamber ‘erred by failing to articulate the

burden of proof standard for affirmative defences prior to the presentation of the Defence

evidence’ violated the accused’s right under Article 67(1)(e) of the Statute to ‘present

defences’. 165 It argues that, since the Chamber did not pronounce itself on the legal

interpretation of Article 31(1)(a) and (d) of the Statute prior to the presentation of

evidence by the Defence, it did not know what evidence it must adduce and ‘it cannot

fully address all issues which may be necessary for the […] Article 74 judgment.’ 166 Thus,

167 the Defence alleges violation of Articles 67(1)(a) and (e) and 64(2) of the Statute.

168 Indeed, the Chamber, in disposing of a motion filed by the Defence, previously

explained that the burden and standard of proof are laid out in Article 66 of the Statute

and that no further explanation was warranted at that point in the proceedings as the Chamber’s interpretations of the applicable law would be set in the judgment. 169

Naturally, this judgment applies this burden and standard of proof to the evidence

presented.

163 Defence Closing Brief , para. 85. 164 Defence Closing Brief , para. 85. 165 Defence Closing Brief , para. 91. 166 Defence Closing Brief , para. 95. 167 Defence Closing Brief , para. 96. 168 Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute , 28 January 2019, ICC-02/04-01/15-1423 (with two public annexes, A and B). 169 Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute , 5 April 2019, ICC-02/04-01/15- 1494, paras 13-14.

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All outstanding issues in relation to the applicable law, including as concerns the burden and standard of proof, are fully dealt with in the present judgment. The issue within the present context is therefore whether prejudice arose to the Defence by way of the fact that this was not provided by the Chamber in advance. With regard to the presentation of evidence, the Defence explains further that ‘it cannot fully address all issues which may be necessary for the Trial Chamber’s Article 74 170 judgment if it does not know the standard which will be applied.’ This is not true, since the Defence can fully address all issues, but it will only know the Chamber’s legal interpretation on these matters at a later point. The Defence has a right to the former pursuant to Article 67(1) of the Statute, but it has no right to receive a full legal interpretation by the Chambers on the law at a specific point in the proceedings.

The Defence argues that it was prejudiced because, had it known the burden of proof 171 during the proceedings, it ‘may [have chosen] other evidence’. This argument is speculative. The Defence called numerous witnesses on the matter and submitted numerous items of evidence. The Defence does not even seek to explain how its evidence would have been different. In fact, the Chamber considers that in this case where grounds excluding criminal responsibility were alleged by the Defence since the confirmation proceedings and where they form one of the crucial issues in the trial, the possibility of the Defence choosing a path different than the one it chose is purely theoretical.

It further needs to be noted that the Defence had every opportunity to present its evidence or legal submissions on any point of the law. It submitted expert reports and called experts in relation to Article 31(1)(a) of the Statute and it systematically explored matters related to Article 31(1)(d) of the Statute with witnesses who appeared before the court. In this context, the Chamber also recalls that it previously encouraged the Defence ‘to put forward all the evidence it has in support of the grounds for excluding criminal responsibility it has raised.’ 172

170 Defence Closing Brief , para. 95. 171 Defence Closing Statement: T-258 , p. 67, lines 19-24. 172 Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute , 5 April 2019, ICC-02/04-01/15- 1494, para. 15.

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As concerns Article 31(1)(a) of the Statute, the Chamber has specifically taken care that both parties had the opportunity to elicit all necessary evidence: it allowed the Prosecution to present evidence in rebuttal after the Defence had questioned D-0041 and , after taking ‘into account the principles of a 173 D-0042. It also determined proprio motu fair trial and the rights of the accused pursuant to Article 67 of the Statute’, that the 174 Defence was allowed to present evidence in rejoinder of the rebuttal evidence – an opportunity which the Defence availed itself of.

In a more general manner, it must be noted that no accused before this Court was allowed 175 to call more witnesses in his or her defence or had a greater number of hearing days at 176 his or her disposal. The accused had all means to fully present its defence and evidence in accordance with Articles 64(2) and 67(1) of the Statute.

In conclusion on this point, Dominic Ongwen did not suffer any prejudice and accordingly, the allegations do not justify the exceptional remedy of a permanent stay of the proceedings.

F. Submissions concerning the ‘prejudicial evidentiary regime’

The Defence argues that the fact that the Chamber, consistent with the procedure for 177 submission of evidence it adopted in the present trial, made no ruling on the relevance, probative value or potential prejudice of an item of documentary evidence in the course of the trial is ‘prejudicial, erroneous as a matter of law and undermines the fairness of the proceedings’. 178

The Defence makes several arguments concerning the procedure for submission of documentary evidence at trial as set out by the Chamber in the present case, notably the fact that no ruling on the relevance or admissibility of items of evidence within the meaning of Article 69(4) of the Statute was conducted prior to the recognition of such

173 Decision on Requests related to the Testimony of Defence Expert Witnesses D-0041 and D-0042 , 1 October 2019, ICC-02/04-01/15-1623, para. 16. 174 Decision on Requests related to the Testimony of Defence Expert Witnesses D-0041 and D-0042 , 1 October 2019, ICC-02/04-01/15-1623, para. 17. 175 The Defence called 54 witnesses as live witnesses and submitted the prior recorded testimony of nine further witnesses pursuant to Rule 68(2) of the Rules. 176 The Defence called its first witness on 1 October 2018 and the last one 29 November 2019 over 73 hearing days. 177 Initial Directions on the Conduct of the Proceedings , 13 July 2016, ICC-02/04-01/15-497 (hereinafter: ‘ Directions on the Conduct of Proceedings ’), paras 24-31. 178 Defence Closing Brief , para. 97.

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evidence as ‘submitted’ for the purpose of Article 74 of the Statute. Some of these arguments concern the alleged ‘illegality’ of this procedure, while others purportedly

relate to certain concrete aspects of its application during the present trial allegedly causing prejudice to Dominic Ongwen’s right to a fair trial.

In relation to the first set of arguments raised by the Defence alleging that the Chamber’s procedure for the submission of documentary evidence at trial is, as such, incompatible with the legal framework of the Court and is per se prejudicial to the rights of the 179 accused, the Chamber refers to its considerations below to the effect that such

procedure is in accordance with the relevant legal instruments and with the jurisprudence 180 of the Court.

This alone suffices to reject the Defence’s claim of prejudice. Nevertheless, in order to

fully respond to the arguments invoked by the Defence with respect to the specificities of this case, the Chamber proceeds to address at this juncture the purported concrete prejudice to the rights of the accused that, according to the Defence, have been caused as a result of the application in the present case of the procedure for submission of documentary evidence as set out by this Chamber. In this regard, the Defence argues that this procedure had a ‘prejudicial impact’ on the fairness of the proceedings, 181 in that, as a result of such procedure: (i) ‘selective and inconsistent rulings on evidence’ were

182 183 made; (ii) the evidentiary recorded is ‘overcrowded’ with ‘prejudicial items’; and (iii) no safeguard exists to ensure ‘the quality of the evidentiary process, i.e. permissible means of obtaining evidence’. 184 The Chamber will address these three allegations in turn.

With respect to the first allegation (i.e. that ‘selective and inconsistent rulings on evidence’ were made 185 ), the Defence cites to two instances in particular. The first one

179 This concerns the arguments made by the Defence to the effect that: it was unfair for it to be ‘required to work on the assumption that all the items submitted into evidence by the Prosecution may be used against Mr Ongwen’, also considering that ‘there are over 4200 items formally submitted into evidence’ ( Defence Closing Brief , para. 98); the procedure established by the Chamber is ‘in violation with [its] duty to apply the safeguards embodied in Article 69(4) of the Statute’ ( Defence Closing Brief , para. 99); and the relevant applicable law ‘unequivocally obligate the Trial Chamber to provide evidentiary rulings on all items submitted into evidence in the judgment’ ( Defence Closing Brief , paras 104-06). 180 See section IV.B.1 below. 181 Defence Closing Brief , para. 101. 182 Defence Closing Brief , para. 101 i). 183 Defence Closing Brief , para 101 ii). 184 Defence Closing Brief , para. 101 iii). 185 Defence Closing Brief , para. 101 i).

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concerns the Chamber’s rejection of a Defence request for disclosure. 186 This matter, however, concerns the relevance of certain information sought by the Defence within the meaning of Rule 77 of the Statute, and is unrelated to the procedure for submission of evidence in this case. It is thus irrelevant in the present context.

The second example concerns the rebuttal expert report by Prosecution witness P-0477, Professor Weierstall-Pust. The Defence argues that in relation to this document the Chamber, ‘[c]ontrary to its prior rulings’, ‘prematurely dismissed the Defence admissibility objections, without deferring its ruling until the deliberation of the judgment.’ 187 First, it is not clear how such a ruling at that point in the proceedings can prejudice one of the parties. Second, the possibility of making rulings, as appropriate, on challenges to the admissibility of individual items of evidence is clearly envisaged by the applicable law and, since before the opening of the trial, has been foreshadowed by the 188 Chamber as part of the general procedure for submission of documentary evidence. It remains entirely unexplained how the fact that the Chamber ruled on the objections raised by the Defence to the admissibility of a specific item of evidence upon its submission could prejudice the accused’s rights. The same holds true with regard to the general allegation that the Chamber applied the procedure for the submission of evidence in a ‘selective’ and ‘inconsistent’ manner. Besides the fact that this allegation completely unfounded, the Defence does not even make any submission as to what the alleged prejudice consists of.

With respect to the second allegation by the Defence (i.e. that the evidentiary record is ‘overcrowded’ with ‘prejudicial items’ 189 ), the Defence cites to a decision rejecting its 190 request to exclude, as inadmissible, parts of a report from a Victims expert, PCV-1. In this decision, the Chamber addressed and rejected the Defence’s arguments that parts of the report at issue were inadmissible as falling outside the scope of procedural rights 191 vested in the participating victims, and clarified that, like for any other evidence, it

186 Decision in Response to an Article 72(4) Intervention , 26 June 2018, ICC-02/04-01/15-1267-Corr2. 187 Defence Closing Brief , para. 101 i). 188 See Directions on the Conduct of Proceedings , para. 26 (‘The Chamber always retains the discretion to rule on admissibility related issues upfront when appropriate, particularly when procedural bars are raised which may foreclose consideration of the standard admissibility criteria.’). 189 Defence Closing Brief , para. 101 ii). 190 Defence Closing Brief , para. 101 ii), referring to T-175, p. 11, line 14 – p. 13, line 1. 191 T-175, p. 12, lines 4-23.

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would conduct a full assessment of the report at the time of the issuance of its final 192 judgment. While the Defence might disagree with the decision to reject its objections to the admissibility of parts of the report, the Chamber would have made the exact same finding applying a different procedure for the submission of evidence – any purported prejudice in this regard is thus unrelated to the general procedure set out by the Chamber for the submission of documentary evidence at trial. The Defence has not pointed to any other item in the evidentiary record which would allegedly be prejudicial to the accused’s fair trial rights; nor has the Chamber identified any such material.

Finally, as concerns its third allegation (i.e. that no safeguard exists ensuring ‘the quality 193 of the evidentiary process, i.e. permissible means of obtaining evidence’ ), the Defence refers to ‘the involvement of the Prosecution’s potential witness and intermediary, P-78’, whom it distrusts, and states that ‘[t]his example compromises the proceedings, because 194 of the lack of integrity in the evidence collection process’. The Defence brought forward, in a previous request, the exact same submissions, which were considered and 195 196 rejected by the Chamber. As observed by the Chamber on that occasion, the Defence appears once again to submit a generic list of grievances which – irrespective of the fact that they are unfounded and not supported by any concrete indicia in the record of the case – are in no manner related to the procedure by which documentary evidence has been submitted in the present case. In any case, and more generally, the Chamber considers that the Defence’s general argument that the procedure for submission of documentary evidence in the present case does not envisage safeguards to the ‘quality of the evidentiary process’ is without merit. In this regard, the Chamber refers to its analysis 197 below concerning the essential features of, and safeguards in such procedure.

198 In conclusion, and also in light of the considerations further expressed below, the Chamber finds that the Defence has failed to demonstrate that the procedure for

192 T-175, p. 12, line 24 – p. 13, line 1. 193 Defence Closing Brief , para. 101 iii). 194 Defence Closing Brief , para. 101 iii). 195 Decision on Defence Request regarding the Evidentiary Regime , 19 June 2019, ICC-02/04-01/15-1546, para. 31. 196 Decision on Defence Request regarding the Evidentiary Regime , 19 June 2019, ICC-02/04-01/15-1546, para. 31. 197 See section IV.B.1 below. 198 See section IV.B.1 below.

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submission of documentary evidence applied by in this case caused any prejudice to Dominic Ongwen’s fair trial rights.

G. Submissions on the Prosecution’s disclosure practices

The Defence asserts that the ‘disclosure practices of the Prosecution […] have

individually and in sum amounted to an unfair trial.’ 199 It repeats submissions previously

made and includes a list of alleged failures by the Prosecution in relation to its disclosure

200 obligation. The Chamber notes that each of the instances referred to by the Defence in

201 its Closing Brief had been specifically considered and ruled upon by the Chamber.

Further, the Chamber notes the Defence’s submission that it filed a request in relation to

further disclosure violations in February 2020 which had not been ruled upon at the time

of the writing of the Defence Closing Brief, which ‘leads to prejudice’. 202 The Chamber

has previously found that the Defence was aware, when filing this request that the

statutory response deadline fell on the same day as the deadline for the submission of the

203 closing briefs. The Chamber further repeats its finding that issues brought forward by

the Defence relate to matters which occurred months or years before the filing of the

204 Defence request. The Defence cannot make submissions and requests at such a belated

point of the proceedings and then claim it suffered prejudice from the timing of its own

request, when it had the chance to file the request at an earlier point in time.

The Chamber previously ruled on all alleged disclosure violations cited by the Defence,

taking into account the rights of the accused and the fairness and expeditiousness of the

199 Defence Closing Brief , para. 108. 200 Defence Closing Brief , paras 109-15. 201 Defence Closing Brief , para. 115 a.: Decision on Defence Request for Disclosure and Remedy for Late Disclosure , 28 September 2018, ICC-02/04-01/15-1351, rejecting the request for leave to appeal Decision on Defence Request for Leave to Appeal the Decision on Disclosure and Remedy for Late Disclosure , 12 October 2018, ICC-02/04-01/15-1364. Para. 115 b. makes reference to para. 227 of the Closing Brief. The Defence made a request for disclosure for certain material in the run-up of the testimony of a Prosecution Expert. The Prosecution was not in possession of the information but requested authorisation of the Chamber to contact the witness in order to obtain the material, which was granted. Para. 115 c. and 115 d. refer both to issues which were resolved in Decision on Defence Request for Remedies in Light of Disclosure Violations , 22 April 2020, ICC-02/04-01/15- 1734. 202 Defence Closing Brief , para. 116. 203 Email from the Chamber to the parties and participants and the Registry, Decision on Prosecution Request for Extension of Deadline to File Responses to ICC-02/04-01/15-1718-Conf, 14 February 2020, at 14:19. See also Annex III to Registry’s Report Filing in the Record of the Case Decisions issued by way of email from January 2020 to July 2020 , 2 October 2020, ICC-02/04-01/15-1749. 204 Decision on Defence Request for Remedies in Light of Disclosure Violations , 22 April 2020, ICC-02/04-01/15- 1734, para. 38.

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proceedings. Accordingly, the Defence did not suffer any prejudice which would warrant the exceptional remedy of a permanent stay of the proceedings.

H. Submissions concerning ‘Other Human Rights Violations and Discriminations’

Finally, the Defence asserts that the trial proceedings have been conducted in a ‘discriminatory manner’ which was ‘unprecedented in international courts’. 205 The Defence raises two issues which, in its view, constitute human rights violations: discrimination against the accused as a ‘mentally disabled defendant’ and violations to his right to family and private life.

With regard to the first issue the Defence submits that ‘[t]he Chamber has treated Dominic Ongwen as an accused and a detained person who does not suffer from any mental health disability.’ 206 The Defence argues that the Chamber ‘discriminated against Mr Ongwen by assessing his participation and exercise of his minimum Article 67(1) 207 guarantees as if he were not a defendant with mental disabilities’.

During its closing statements, the Prosecution submitted on this issue that, irrespective of the existence of any mental illness, the Defence has failed to show how this caused a 208 concrete prejudice to the accused. It argues that a person suffering from mental illnesses can also be put on trial and that the Chamber made all necessary accommodation 209 for the accused.

The Chamber considers the Defence allegation to be entirely untenable. It recalls that in all its decisions, the Chamber assessed the specific situation of Dominic Ongwen, including his health, and in particular his mental health. Throughout the proceedings the Chamber has ensured that the accused received all the medical attention and care necessary. In December 2016, while rejecting a request by the Defence to order a medical examination in order to assess whether the accused is fit to stand trial, the Chamber

205 Defence Closing Brief , para. 119. 206 Defence Closing Brief , para. 121. The Defence repeats its submissions in its closing statement, T-258 , p. 62, line 13 – p. 67, line 1. 207 Defence Closing Brief , para. 124. 208 Prosecution Closing Statement: T-256 , p. 26, lines 9-11. 209 Prosecution Closing Statement: T-256 , p. 26, lines 11-19.

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ordered an examination ‘making a diagnosis as to any mental condition or disorder that

210 [the accused] may suffer’.

In the report provided upon this order, the examiner stated that, while the accused suffered from various mental illnesses, ‘he is oriented in time, oriented vis-à-vis his environment and himself. He has a good attention span and maintains his concentration after hours of interviewing.’ 211 Concerning his treatment by the responsible sections of the Court, the examiner stated that ‘[t]he current intervention strategy by the Detention Centre is more than adequate in the perception of [him]’. 212 The Chamber did not go

against any advice or finding provided by this neutral examination.

Further, each time the health condition of the accused warranted a break in the proceedings, this was immediately facilitated by the Chamber. For instance, when there had to be an interruption of the proceedings, the Chamber instructed the Registry to 213 provide a medical report on whether the accused can attend hearings. Only after receiving confirmation by the medical experts from the Registry that Dominic Ongwen’s

state of health allowed for continuation did the Chamber resume hearings. This was explained in court by the Presiding Judge:

But continuing, the Chamber wishes to address the fact that many hearings this year have needed to be cancelled. The Chamber wishes to give a brief explanation for the benefit of the public as to these cancellations. The Chamber was initially scheduled to continue with the Defence presentation of evidence on 14 January 2019. In the early morning of 7 January 2019 Mr Ongwen was involved in what will be described generally as a medical incident. He was briefly hospitalised but returned to the detention centre later that same day. Ever since, there has been an ongoing discussion between all concerned on Mr Ongwen’s current mental health and his necessary medical treatment. In particular, the Registry has been actively involved in making whatever further arrangement it considers appropriate to protect the health and the safety of the accused, as it is its obligation under Regulation 103(1) of the Regulations of the Court. The Chamber cancelled the hearing dates during the weeks of 14 and 21 January to ensure that Mr Ongwen received proper medical treatment. This postponement was done upon the request of the Defence and the reasons for this decision can be found in the public redacted version of decision 1412. Without going further into details, for similar reasons, the hearings of 28 and 29 January and 18 February were cancelled. On 18 February

210 Decision on the Defence Request to Order a Medical Examination of Dominic Ongwen, 16 December 2016, ICC-02/04-01/15-637-Conf (public redacted version available: ICC-02/04-01/15-637-Red ), p. 18. 211 Report, UGA-D26-0015-0046-R01, at 0049. 212 Report, UGA-D26-0015-0046-R01, at 0053. 213 Decision on Defence Request to Order an Adjournment and a Medical Examination, 16 January 2019, ICC- 02/04-01/15-1412-Conf (public redacted version available: ICC-02/04-01/15-1412-Red ), para. 12.

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the Chamber was given an indication from the medical officer that the hearing could proceed today. The Chamber wishes to stress that it does not cancel these hearings lightly. These cancellations have been compelled by considerations of the health and well-being of the accused, noting that the accused has a right under Article 67(1)(d) of the Statute to be present at his trial. We will always keep this in mind, but the Chamber emphasises its continued determination to proceed to an 214 expeditious resolution of this trial.

On three occasions, the Defence requested a medical examination of the accused, twice

215 combined with arguing that this warrants a stay of the proceedings. The Chamber has

216 ruled on each request. In these decisions, it based its assessments and rulings on

information provided by independent medical experts, taking into account Dominic

Ongwen’s specific situation. The Defence asserts that ‘we concluded that sometimes

when the Trial Chamber appears to us to not be looking at the disabilities of the client

and not accommodating them fast enough or not believing there is merit to them, they

were saying there may be, they may not be seeing the whole picture. It’s as simple as

that.’ 217 The fact that the Chamber has not ruled in favour of the Defence does not mean

that it has not fully considered the situation of the accused when ruling on the Defence’s

request.

Lastly, the Defence erroneously submits that the Chamber ‘did not implement the ICC-

DC Medical Officer’s recommendations for the span of eight months’. 218 The

Prosecution submits on this matter that there was no discrimination against the accused

and that the Chamber acted within the scope of its discretion and took into account the

219 recommendation received by the medical officer as well as other pertinent factors.

214 T-199 , p. 2, line 19 – p. 3, line 18. 215 Defence Request for a Stay of the Proceedings and Examinations Pursuant to Rule 135 of the Rules of Procedure and Evidence, 5 December 2016, ICC-02/04-01/15-620-Conf (public redacted version available: ICC- 02/04-01/15-620-Red2 ); Defence Request for a Stay of the Proceedings and for Trial Chamber IX, pursuant to Rule 135 of the Rules of Procedure and Evidence, to Order a Medical Examination of Mr Ongwen, 10 January 2019, ICC-02/04-01/15-1405-Conf-Exp (confidential redacted version available: ICC-02/04-01/15-1405-Conf- Red; public redacted version available: ICC-02/04-01/15-1405-Red2 ); Defence Urgent Request to Order a Medical Examination of Mr. Ongwen, 16 September 2019, ICC-02/04-01/15-1595-Conf (public redacted version available: ICC-02/04-01/15-1595-Red ). 216 Decision on the Defence Request to Order a Medical Examination of Dominic Ongwen, 16 December 2016, ICC-02/04-01/15-637-Conf (public redacted version available: ICC-02/04-01/15-637-Red ); Decision on Defence Request to Order an Adjournment and a Medical Examination, 16 January 2019, ICC-02/04-01/15-1412-Conf (public redacted version available: ICC-02/04-01/15-1412-Red ); Decision on Further Defence Request for a Medical Examination , 1 October 2019, ICC-02/04-01/15-1622. 217 Defence Closing Statement: T-258 , p. 66, lines 19-22. 218 Defence Closing Brief , para. 137. 219 Prosecution Closing Statement: T-256 , p. 29, lines 8-11

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Further it submits that the accused did not suffer any concrete harm to prepare or conduct

220 his defence from the sitting schedule.

The Chamber finds that the Defence’s allegations on this point are without any

reasonable justification and fundamentally misrepresent the facts. The Chamber first

received information that the accused ‘would significantly benefit from not being present

in Court on Wednesdays, during the weeks that he is normally scheduled for a full five

day court schedule’ in March 2018. 221 Understanding the recommendation to guide

against the accused sitting a full five day court schedule, the Chamber adapted the sitting

schedule mindful of the health of the accused. On the rare occasions a hearing on

Wednesday was scheduled the Chamber always made sure that another day of that week

was off. Consequently the accused never spent five working days of a week in Court. On

two of the five instances in which a hearing was scheduled on Wednesday, Dominic

222 Ongwen attended court only two days in the entire week. On one occasion he attended

223 court only three days in that week. On two occasions the accused attended court for

224 four days in a week. Further, despite claiming that ‘this had a direct effect on Dominic

Ongwen’, 225 the Defence does not cite to any specific issue resulting from the five

Wednesdays the accused attended court.

Accordingly, the submissions that the Chamber ‘discriminated’ against the accused are

baseless. The Defence further fails to show the claimed impact on the fair trial rights of

226 Dominic Ongwen.

The second issue concerns asserted violations by the Defence to the accused’s human

rights because Dominic Ongwen’s family life was affected by restrictions to his

227 communications.

220 Prosecution Closing Statement: T-256 , p. 30, lines 12-15. 221 Registrar Submission of Information Provided by the Medical Officer, 7 March 2018, ICC-02/04-01/15-1200- Conf, para. 8. 222 In the week of 9 April 2018, the Chamber only sat on 10 and 11 April 2020; in the week of 21 May 2020 the Chamber only sat on 23 and 24 May 2020. 223 In the week of 26 March 2018, the Chamber only sat on 26, 27 and 28 March 2020. 224 In the week of 30 April 2018, the Chamber did not sit on 30 April 2020; in the week of 22 October 2020 it did not sit on 26 October 2020. 225 Defence Closing Statement: T-258 , p. 62, line 25. 226 Defence Closing Brief , para. 146. 227 Defence Closing Brief , para. 147.

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228

The Pre-Trial Chamber first installed restrictions to the communication of the accused.

229

These restrictions were maintained and amended by the Chamber and later reviewed

230

and again confirmed. The restrictions consisted in the active monitoring of the accused’s non-privileged communication and a system of prior approval by the Chamber

for the addition of persons, at the accused’s request, to the list of authorised non-

privileged telephone contacts.

The assertion that the conduct giving rise to the restrictions was not ‘proven’ during the

231

proceedings by the Prosecution and that therefore the restrictions are per se unjustified

is misguided. The decisions ordering and confirming these restrictions were based on

specific information concerning the threat of witness interference, in line with Regulation

232

101(2) of the Regulations of the Court.

Further, as explained above, the restrictions did not entail that the accused could not

under any circumstances contact a specific person, but rather that a prior authorisation of

the Chamber was required. Both times that the Defence requested additions to the list of

233

persons Dominic Ongwen was allowed to contact, the Chamber granted such requests

Furthermore, when it considered it appropriate the Chamber, acted on its own initiative

228 Decision on a request by the Prosecutor under article 57 of the Rome Statute and regulation 101(2) of the Regulations of the Court , 24 June 2015, ICC-02/04-01/15-254; Decision concerning the restriction of communications of Dominic Ongwen , 3 August 2015, ICC-02/04-01/15-283-Conf. 229 Decision on issues related to the restriction of communications of Dominic Ongwen, 30 May 2016, ICC-02/04- 01/15-450-Conf-Exp (public redacted version available: ICC-02/04-01/15-450-Red ). Decision on the Review of Dominic Ongwen’s Detention and on the Restriction on Communication 230 , 21 July 2016, ICC-02/04-01/15-503. 231 Defence Closing Brief , para. 149. See also Defence Closing Statement: T-258 , p. 45, line 22 – p. 46, line 4. 232 Pre-Trial Chamber II, Decision on a request by the Prosecutor under article 57 of the Rome Statute and regulation 101(2) of the Regulations of the Court , 24 June 2015, ICC-02/04-01/15-254, para. 6; Decision concerning the restriction of communications of Dominic Ongwen , 3 August 2015, ICC-02/04-01/15-283-Conf, paras 9, 10, 12; Decision on issues related to the restriction of communications of Dominic Ongwen, 30 May 2016, ICC-02/04-01/15-450-Conf-Exp (public redacted version available: ICC-02/04-01/15-450-Red ), para. 4. 233 Decision on Defence Request to Meet with Six Prosecution Witnesses , 13 September 2019, ICC-02/04-01/15- 1593; Decision on Defence Request to Lift Communication Restrictions , 18 October 2019, ICC-02/04-01/15- 1642. The Chamber refused that an expert witness of the Defence, Dr Akena, D-0041, is put on the privileged contact list, but stressed at the same time that he may be added to the non-privileged contact list. Decision on issues related to the restriction of communications of Dominic Ongwen, 30 May 2016, ICC-02/04-01/15-450- Conf-Exp (public redacted version available: ICC-02/04-01/15-450-Red ), para. 8.

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234

and requested submissions from the parties and participants on the contact restrictions

235

and subsequently lifted them.

Accordingly, upon the arguments presented by the Defence, the Chamber does not find

that the rights of the accused to family or private life were violated. Consequently, the

allegations of the Defence do not in any conceivable way warrant the exceptional remedy

of a permanent stay of proceedings.

234 Email from the Chamber to the parties and participants and the Registry, responses for relief requested in para. 731 of the Defence Closing Brief , 26 February 2020, at 18:09. See also Annex VI to Registry’s Report Filing in the Record of the Case Decisions issued by way of email from January 2020 to July 2020, ICC-02/04-01/15-1749- AnxIV. 235 Public Corrected version of Decision on the Defence Request for Immediate Release and the Communication Restrictions Applying to the Accused , 17 April 2020, ICC-02/04-01/15-1733-Corr.

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III. FINDINGS OF FACT

In this section, the Chamber sets outs the material facts and circumstances of this case as they have been established to the requisite threshold upon its assessment of the evidence submitted and discussed before it at trial. They are the facts and circumstances which form the basis for the Chamber’s decision under Article 74 of the Statute. The reasoning for the Chamber’s determination in this regard is provided below, in Section IV.C. (‘Evidentiary analysis for findings of fact’), where the Chamber discusses, also in light of the arguments made at trial, the evidence which, directly or by way of inference (thus, through additional facts of a subsidiary nature), supports each of these findings on the 236 facts and circumstances described in the charges. The legal characterisation of these facts and circumstances, in light of the charges brought against Dominic Ongwen, is made in Section V.B. (‘Legal characterisation of the facts’).

The Chamber clarifies that, pursuant to Article 74(2) of the Statute, it has ensured that its findings of fact do not exceed the facts and circumstances described in the charges against 237 Dominic Ongwen as confirmed by the Pre-Trial Chamber.

A. LRA as an organisation in 2002-2005

At the time relevant for the charges, i.e. from 1 July 2002 to 31 December 2005, the LRA had a hierarchical structure. Joseph Kony was the highest authority in the LRA. During the time period relevant for the charges, his deputy was Vincent Otti, who led a headquarters unit called Control Altar. Further, the LRA was divided into four brigades: Sinia, Stockree, Gilva and Trinkle. From 2003, there was also a division called Jogo. The brigades were divided into battalions and further into companies or ‘coys’. Each of these units was led by a commander.

Orders were generally communicated from Joseph Kony directly or through Vincent Otti to the brigade commanders, who communicated them to the battalion commanders, who in turn passed them to their subordinates. Joseph Kony’s orders were generally complied with. At the same time, in particular when Joseph Kony was geographically removed

236 In the electronic version of the judgment, the text of the finding of fact also functions as hyperlinks to the relevant sections of the evidentiary analysis: clicking on each such finding will direct to the corresponding evidentiary analysis. 237 The Chamber recalls that the text of the charges in the present case is contained at pages 71-104 of the Confirmation Decision , having its own numbering of paragraphs.

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from LRA units, brigade and battalion commanders took their own initiatives. This was regularly the case during the period of the charges, when Joseph Kony was in Sudan while various LRA units operated in Northern Uganda.

The LRA had at its disposal weapons and ammunition for use in military operations. It regularly seized weapons from the UPDF during combat. It also obtained weapons and other supplies from Sudan. The LRA supplied itself with food, medicines and other items of use by looting from civilians in Northern Uganda, in particular from IDP camps. The LRA relied on high-frequency radio as the principal mode of communication between units in various locations in Northern Uganda and Sudan.

B. Organisational features of the Sinia brigade

1 Structure and command

At the time relevant for the charges, i.e. from 1 July 2002 to 31 December 2005, Sinia brigade was led by a brigade commander, who had at his disposal a headquarters unit, which included the brigade intelligence officer, the brigade major, and the support commander.

Sinia brigade was composed of three battalions: Oka, Terwanga and Siba. Each of these battalions was led by a battalion commander, who reported to the brigade commander, and was composed of companies, or ‘coys’.

Altogether, at the time relevant to the charges, between 1 July 2002 and 31 December 2005, Sinia brigade included several hundred soldiers.

2 Ways to ensure capability to undertake military operations

Sinia brigade obtained new fighters through abductions of civilians. These abductions were targeted at civilians deemed capable for fighting, including young children. Following their abduction, recruits generally passed through initiation rituals, most regularly including anointment with shea butter, intended to instil obedience and prevent escape. Beating was also a common feature of such initiation. With some regularity, recruits were forced to brutally kill, or were forced to witness brutal killings, shortly after their abduction.

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Upon abduction into Sinia brigade, recruits were given training in fighting skills, including the use of firearms. Weapons were distributed to recruits. As part of the training, recruits were also taught military discipline. Recruits were not taught, as part of their training, to distinguish between civilians and combatants, or between civilian objects and military objectives.

There were clear rules requiring obedience of LRA soldiers, and a violent disciplinary system that guaranteed adherence to them. LRA soldiers were punished, for example, for not executing orders, losing a gun, or failing to prevent abducted persons from escaping. Penalties ranged from beating to execution. Dominic Ongwen personally ordered disciplinary measures.

Sinia members, and LRA members generally, were threatened with death if they attempted escape. On certain occasions, execution of re-captured escapees in fact took place. Dominic Ongwen personally issued threats to LRA members that they would be killed if they attempted to escape, and ordered killings of abductees in front of LRA members to illustrate this threat. Members were also threatened that their home areas would be attacked by the LRA if they escaped. A further measure taken to discourage escaping was giving soldiers false or negative information about life outside of the LRA, including that they would be killed by government soldiers if they escaped and went home, and preventing them from obtaining information through public radio broadcasts.

Sinia, and more generally LRA members, especially those of lower rank, suffered from hunger and lack of adequate clothing. They regularly slept outside on the ground. There was no or very limited treatment available in case of sickness or injury.

C. Dominic Ongwen’s position within the LRA

At the beginning of the period relevant for the charges, on 1 July 2002, Dominic Ongwen was battalion commander, in charge of the Oka battalion of Sinia brigade. Dominic Ongwen was promoted to the rank of major on 1 July 2002.

In October or November 2002 Dominic Ongwen was injured and placed in sickbay until around mid-2003. From at least December 2002 onwards, he again exercised his authority as battalion commander. In April 2003, Dominic Ongwen was briefly arrested

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by Vincent Otti. The arrest did not interrupt the exercise of his authority for any significant period.

On 17 September 2003, Joseph Kony appointed Dominic Ongwen as second-incommand of the Sinia brigade. On 15 November 2003, Joseph Kony promoted Dominic Ongwen to the rank of lieutenant colonel.

On 4 March 2004, Joseph Kony officially appointed Dominic Ongwen as brigade commander of Sinia brigade.

Dominic Ongwen remained Sinia commander until 31 December 2005, and further. On 30 May 2004, Joseph Kony promoted him to the rank of colonel, and sometime in late 2004 to the rank of brigadier.

D. Objectives and policies of the LRA

The LRA pursued an armed rebellion against the Government of Uganda.

The LRA perceived as associated with the Government of Uganda, and thus as the enemy, the civilians living in Northern Uganda, in particular those who lived in governmentestablished IDP camps in Northern Uganda. LRA commanders routinely declared that civilians were failing to support the LRA in its effort against the government and should be killed by the LRA.

Dominic Ongwen knew that the LRA perceived, and also himself perceived, the civilians living in Northern Uganda as associated with the Government of Uganda – and thus as the enemy.

E. Armed conflict and attack on civilians

Throughout the period of the charges, i.e. between 1 July 2002 and 31 December 2005, the LRA regularly fought the armed forces of the Government of Uganda and associated local armed units in Northern Uganda. Dominic Ongwen knew of this fact.

Throughout the period of the charges, in Northern Uganda, the LRA killed, injured and enslaved a large number of civilians in numerous attacks on individual civilians, IDP camps and other civilian locations. It also abducted and enslaved, and used as sexual

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slaves and so-called ‘wives’, and as domestic servants a large number of civilians. Dominic Ongwen knew of these facts.

F. Attack on Pajule IDP camp

On 10 October 2003, LRA fighters, including Dominic Ongwen, attacked Pajule IDP camp. Pajule and Lapul IDP camps were situated in Aruu County, Pader district. The two camps were across from each other, Pajule on the east side of the Lira-Kitgum road and Lapul on the west. They were commonly referred to as ‘Pajule IDP camp’. At the time of the attack, an estimated 15,000 to 30,000 people lived in the camp.

Several days before the attack on Pajule IDP camp, Vincent Otti summoned a number of LRA units to join him. Around that time, Dominic Ongwen and his group of fighters joined Vincent Otti.

A meeting took place the day before the attack at a location east of Pajule IDP camp, including Vincent Otti, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen and other LRA commanders. Several hundred LRA members were present nearby. After the meeting, on the eve of the attack, the LRA soldiers were selected from the Control Altar, as well as Trinkle and Sinia brigades. Raska Lukwiya was designated as the overall commander for the attack. The attackers were briefed about the attack and instructed to attack the UPDF at the barracks, as well as civilian areas of the camp in order to loot radio equipment, food and other items. The attackers were also told to abduct civilians. The same evening after the briefing, the attackers, including Dominic Ongwen, departed for Pajule IDP camp. Vincent Otti remained behind.

In the early morning of 10 October 2003, several hundreds of LRA fighters, including fighters under the age of 15, entered through the Pajule side of the camp on the east, armed with an assortment of weapons, including SPG-9, AK-47s, a 12.7 mm anti-aircraft gun, RPGs, a PKM machine gun as well as pangas/machetes and knives. The LRA fighters were organised in several units, spreading throughout the camp. One group attacked the military barracks in the Lapul side of the camp, engaging with the Ugandan government forces. Another much smaller group went to the Catholic mission, from where it was repelled by government soldiers. Two small groups set up ambushes on the Pader and Kitgum roads, to prevent government military reinforcements from aiding the

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camp. A final large group of fighters went to attack the civilian camp. Amongst this group of fighters was Raska Lukwiya, the operations commander of the attack.

Government soldiers within the camp fled in the face of the attacking force, while government soldiers in the barracks managed to hold the barracks under heavy fire from the LRA.

Dominic Ongwen led a group of attackers to fight at the barracks, before directing them to attack the trading centre within the camp.

During the attack, LRA attackers, some of them led by Dominic Ongwen, broke into homes and shops and looted food and other property from them in Pajule IDP camp. There was widespread looting throughout the camp. The attackers raided the trading centre in the camp, broke into shops and took food items and supplies. Among the items looted by the LRA attackers were foodstuffs like beans, flour, salt, sugar, cooking oil, maize, sweets, biscuits, groundnuts, soda as well as household goods such as bedding, clothing, a radio set, saucepans and items such as medicine, livestock and money. Dominic Ongwen personally ordered LRA attackers to loot within the trading centre, ordering them to loot items from shops and homes within the camp. The LRA attackers complied with this order.

With the arrival of a government helicopter and reinforcement ground forces, LRA attackers left the camp with abductees and looted goods.

In the course of the attack, LRA fighters killed at least four civilians, most of whom were abductees killed because they tried to escape or refused to carry looted goods. The civilians killed by the LRA in the course of the attack on Pajule IDP camp included: an unnamed woman killed by machete, Kinyera Benson Lacung, Pangarasio Onek and unnamed abductee killed by the RV location.

LRA fighters abducted hundreds of civilians from the camp and forced them to carry looted items, including heavy loads, for long distances while retreating from the camp. Dominic Ongwen ordered a subordinate to abduct civilians. The order was immediately executed. Dominic Ongwen also led a group of abductees and ordered abductees to carry looted goods and instructed them not to drop items. Some abductees were forced to carry injured LRA fighters. The abductees were under armed guard to prevent their escape and

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were under constant threat of beatings or death. Some were tied to each other. Many of the abductees were forced to walk bare foot or not fully clothed through the bush for a long distance. LRA fighters beat abductees to make them walk faster.

Among the persons abducted from Pajule IDP camp were Witness P-0006, her neighbour, her three relatives; Witness P-0081; Richard Otim; Witness P-0249; Witness P-0249’s wife; Benson Ojok; Dick Okot and his family members; Rwot Joseph Oywak; Charles Bongomin, Oryema Kadogo, Sunday Abalo, Charles Ayela, Concy Ayet; Ogen; Opira; Okumu; Santo Oweka; David Okwera; Francis Kitara; George; Ronald Labeja; Christopher; Celestino; Vincent Okot; Ocana; Charles Abonga; David Otti Moyo; Christine; Paska; Oluge; Opira Bosco and Oryema.

Abductees carried the looted items to a meeting place where the LRA met after the attackers left Pajule IDP camp. At this meeting point, the LRA collected the looted goods. Looted items were distributed within the LRA, including within Dominic Ongwen’s group.

At the meeting point, Vincent Otti and other commanders addressed the abductees. Vincent Otti told abductees that the LRA reproached the civilians for settling in IDP camps set up by the government, and that there was a punitive nature to the LRA’s attack on the camp. Dominic Ongwen also spoke to a group of abductees, telling them that anyone who escaped or dropped looted goods would be killed and that abductees would be trained as soldiers.

After the fighters returned from the camp, some abductees remained in the LRA and were distributed to various units, including among Dominic Ongwen’s group.

Vincent Otti, the overall commander for the attack, communicated the results of the attack to Joseph Kony on the LRA radio communication system.

G. Attack on Odek IDP camp

On 29 April 2004, LRA fighters subordinate to Dominic Ongwen, and acting on his orders, attacked Odek IDP camp. Odek IDP camp was situated in Odek sub-county, Omoro County, Gulu district and at the time of the attack between 2000 and 3000 people lived in the camp.

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Shortly before the attack on Odek IDP camp, Joseph Kony ordered that the people of Odek be attacked, to punish their perceived failure to support the LRA. Dominic Ongwen knew of Joseph Kony’s order before the attack.

Dominic Ongwen decided that LRA soldiers under his command would attack Odek IDP camp. He coordinated with subordinate commanders and appointed them to lead the attack on the ground. Dominic Ongwen ordered the fighters to attack the camp in two groups, one focused on the military barracks in the camp and the other focused on the civilian areas. Dominic Ongwen and his subordinate commanders ordered LRA soldiers to target everyone they find at Odek IDP camp, including civilians, and also instructed them to loot food and abduct civilians. Dominic Ongwen ordered the selection of soldiers for the attack, and participated in a ritual and prayer before they set out. He encouraged the soldiers and repeated the orders to target everyone, including civilians, to loot and to abduct civilians. Afterwards, the LRA fighters left for Odek. The LRA fighters who went to attack Odek IDP camp were subordinate to Dominic Ongwen. They included fighters belonging to Sinia brigade, as well as two fighters from the Gilva brigade. The subordinate commanders Dominic Ongwen sent to attack Odek IDP camp included Ben Acellam, Okwer and Kalalang.

Dominic Ongwen moved with the attackers in the direction of Odek IDP camp. He did not enter Odek IDP camp with the fighters sent to attack.

In the late afternoon the day of the attack, Odek IDP camp residents gathered and a government soldier warned them to be vigilant as the LRA were believed to be operating in the area. As the residents and several government soldiers were dispersing from that gathering in the early evening, at least 30 LRA attackers, including children under the age of 15, executed Dominic Ongwen’s orders and, with an assortment of arms including AK guns, a mortar and an RPG, a PK and a ‘B-10’ gun, attacked Odek IDP camp from the northern side of the camp.

The LRA fighters operated in two groups, pursuant to Dominic Ongwen’s orders. One group of fighters attacked the military barracks, situated about a few hundred meters from the camp, killed some soldiers there and burned the barracks down, overwhelming the soldiers at the barracks. The other group of fighters spread into the civilian area, including the trading centre, where they dispelled several government soldiers and proceeded to

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attack the civilian residents, shooting, beating, abducting and forcing them to carry looted goods.

While in the camp, LRA attackers broke into homes and shops and looted food and other items from the camp, both from shops in the trading centre and from civilian homes, including items such as beans, cooking oil, maize, flour, soda and other beverages, biscuits, sugar, salt, posho, soap, clothes, saucepans, bedding, shoes. The food aid which had been recently distributed to the camp was looted by the attackers. The LRA distributed the items looted from Odek IDP camp to the households of different commanders, including Dominic Ongwen.

During the attack in the camp, a female LRA attacker raped , a civilian resident of the camp, with a comb and a stick used for cooking, while the victim’s husband was forced to watch. The rape was committed with such force that started to bleed.

Under orders to shoot civilians in the chest and head to ensure that they died, LRA fighters fired their weapons at civilians during the attack. At least 52 civilians died as a result of the injuries sustained in the camp or in the course of the retreat, while at least ten were the victims of attempted killings. Many civilians were shot as they ran away from the LRA. Among the victims were elderly civilians, children, a pregnant woman as well as women carrying babies tied to their back. The bodies of the dead were scattered everywhere across the camp. Witness P-0264, an LRA fighter, was ordered to spray bullets inside civilian houses. He also shot a civilian man dead. LRA also fighters set at least one hut on fire with civilians inside.

The LRA killed the following persons within the camp during their attack: Adoni Okullu, Agudu’s wife and her grandson, Betty Adong and her daughter Ajok, Catherine Amono, Okeny, Aldo Okello, Ayita Labanya, Charles Obur, Doris Apiyo, Jenaro Ongwen, Jimmy Ojok, Catherine Laker, Kevin Apiyo, Kerobina Acayo, Kejikiya Okec, Veronica Auma, Mary Acayo, Monica Aciro, Wilson Okoya, Okoya, Obangomoko, Pedwang Opio, Thomas Opiyo, Thomas Ojok, Valentino Okot, Walter Ojok, Atikcon, an unnamed camp resident, Mary Agudu, Doreen Ojok, DP, Acayo, Aboni, Witness P-0269’s mother-inlaw and her grandson, a girl found by the river.

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LRA fighters also attempted to kill at least ten civilians. An LRA fighter fired shots through the door of a locked hut, killing the male inhabitant and wounding the female inhabitant in the neck. The LRA attempted to kill the following persons in the course of the attack: Santa Akello, Betty Atenyo, Christopher Moro, David Bua, Witness P-0252, Kengali and his wife, a man by a borassus palm tree, Okot LC’s mother and a woman shot in the mouth.

About an hour after the LRA began their attack on Odek IDP camp, the LRA attackers retreated from the camp in the face of the arrival of government reinforcements.

When they left the camp, the LRA took with them abducted civilians and looted goods. In the course of the attack, LRA fighters abducted at least 40 civilian residents from the camp: men, women and children. Amongst many others Atir, Hilary Kilama, Lalam, Rose Aweko, David Ojok, James Titus Latigo, James Ayella, Kidega, Lagii, Patrick Opap Odong, P’Mala Okot, Ojok, Fabio Otto, Onek, Witness P-0275, Witness P-0269, Witness P-0252, Brian Odokonyero, Hellen Adong, Alice Kidega, Acan, Adaa/Ada, Agnes Adoch, Ajok, Akanyo, Apio, Atenyo, Carolina Lagulu, Dennis Otema, Doreen Aluku, Kadoge, Kala Adong, Joyce Aneno, Ocaka, Paul Ojara, Richard Okello, Santa Oling, Ventorina Akello, and the wife of Olet Okello were abducted and forced to work for the LRA.

Abductees, including children as young as 11 or 12 years old, were forced to carry looted items away from the camp. Abductees were under armed guard to prevent their escape and were under constant threat of beatings or death. Civilians were forced to carry heavy loads for long distances under constant threat of harm; some abductees walked these long distances barefoot. Abductees were forced to carry an injured fighter.

Civilians suffered instances of grave physical abuse at the hands of the LRA fighters, such as beatings with sticks and guns. Abductees were beaten for walking too slowly. One abductee was forced to kill another abductee with a club and forced to inspect corpses. Another abductee was forced to watch someone being killed. Some mothers were forced to abandon their children on the side of the road; one child was left on a rubbish pit.

Some civilians from the camp were killed when they struggled or tried to escape. One deceased was beaten so badly that his brain was exposed. LRA fighters killed a young

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abductee because his feet were too swollen and he was unable to walk any further. Nine adult men were abducted from the camp and forced to carry an LRA fighter who had been wounded during the attack; LRA fighters later killed all nine men when the LRA commander died from his injury.

The LRA killed the following persons in the course of the retreat from Odek IDP camp: Aroja, Atir, Hilary Kilama, Lalam, Rose Aweko, David Ojok, James Ayella, James Titus Latigo, Kidega, Lagii, Patrick Opap Odong, P’Mala Okot, Ojok and Fabio Otto.

Apart from the abductees killed during the retreat, some abductees were released after a few days in the bush, others were integrated into the LRA, including into Dominic Ongwen’s household.

After the attack, the attackers joined the rest of the group commanded by Dominic Ongwen. The subordinate commanders briefed Dominic Ongwen. Dominic Ongwen thanked the fighters. Dominic Ongwen communicated the results of the attack on military radio to other LRA commanders and to Joseph Kony, reporting that his fighters successfully carried out an attack on Odek IDP camp, shooting people, abducting civilians and looting in the camp.

H. Attack on Lukodi IDP camp

On or about 19 May 2004, LRA fighters, sent by Dominic Ongwen, attacked Lukodi IDP camp. Lukodi IDP camp was situated in Bungatira Sub-County, Aswa County, Gulu District and a large contingent of civilians resided in the camp at the time of the attack.

Dominic Ongwen decided to attack Lukodi IDP camp. For the purpose of the attack, he gathered soldiers from Sinia as well as from the nearby Gilva brigade sickbay. At a gathering the morning of the day before the attack, Dominic Ongwen instructed LRA fighters to attack Lukodi IDP camp and everyone present at that location, including civilians, and to take food from the camp. Dominic Ongwen selected his subordinate Ocaka to be commander on the ground. Other commanders on the ground included Ojok Kampala, Oyenga, Kobbi, Ojara and Abonga Won Dano. After receiving the orders given by Dominic Ongwen, the attackers left for Lukodi IDP camp. They arrived at Lukodi in the evening of the following day after setting out. Dominic Ongwen stayed behind at the location of the pre-attack gathering.

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In the evening on the day of the attack, at least 80 LRA fighters, including fighters under the age of 15, executed Dominic Ongwen’s orders and armed with an assortment of weapons, including an RPG, an SMG, a PK, AK-47s, and a ‘12’, as well as machetes/pangas, attacked Lukodi camp from the east.

The LRA fighters went into the civilian areas of the camp and some fighters went to barracks to fight the government soldiers. Government soldiers engaged the LRA fighters and then quickly fled. The remaining civilian population in the camp were left defenceless. LRA fighters targeted civilians within the camp with acts of violence.

LRA fighters killed civilians in Lukodi IDP camp: men, women and children. At least 48 civilians died as a result of injuries sustained in the attack. Civilians were shot, burnt and beaten to death.

The following persons were among those killed by the LRA within the camp: Keneri Okot, Jeneth Lakot, Kilama Aloyo, Kilama Kidega, Jackline Anee, Milly Anek, Akello Acii, Innocent Okello, Ojoko, unnamed man shouting at the LRA, Christine Ajok, Odong Apiyo, David Otim and an unnamed stabbing victim, Agwesa Odoch, Beatrice’s son, Charles Odong, Jasinta Aol, Jojina Angom, Lalobo’s son, Tezira Oroma, Ojara, Okwera, Olwedo, Ocaka’s wife and one unnamed teenage girl, Onencan, Witness P-0024’s mother and , Min Ojoko, Ocii, Atim, Charles Anywar, Danger Joseph Oryem, James Opiro, Jeneth Lalur Akello, Joseph Ojara, Obedi, Rose Kiter, Tabicha Alum, Vincent Ocaya and Santa Oroma.

LRA fighters attempted to kill at least 11 other civilians who managed to survive. The fighters shot at civilians and in some cases wounded them. Civilians were beaten and left for dead. Civilians, including children, were thrown into burning houses. The following persons were among those who survived these LRA acts of violence: Pyerina Ayaa, Florence Adong, Adong Paska, Piloya, Joel Opiyo, Ojoko, an unnamed elderly woman, Nyeko, two unnamed girls who had been shot and an unnamed girl with a burnt leg.

LRA fighters entered civilian homes and shops in Lukodi IDP camp and looted food and other property from them. Among the items stolen by the attackers were beans, maize, cooking oil, soap, cooking utensils, chickens, money and clothes.

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During their attack on the camp, LRA fighters set huts on fire. Approximately 210 civilian huts in the camp were burnt. Civilians’ household goods, including food stocks, were destroyed in these fires. Domestic animals such as goats were also burnt by the LRA.

LRA fighters abducted at least 29 civilians, men, women and children, to carry looted goods from the camp. Among the abductees were Witness P-0024, Olanya, Aleka, Onek, four unnamed male abductees, Witness P-0187, two unnamed female abductees, Joel Opiyo, Lilly Apiyo, Christine Alanyo, Milly Ayaa, Beatrice, Mary Aol, Min Lagum, Min Ojak, Min Ochora, Alora, Okumu, Nancy Akello, an unnamed man stabbed with a bayonet, an unnamed abductee, Justin Omony, Lakwec, Aleka, and Charles Obwoya. Some of the abductees were tied together. Civilians were forced to carry heavy loads, some for long distances, while tied together and under constant threat of harm. The abductees were under armed guard to prevent their escape and were under constant threat of beatings or death. Abductees were also injured by the LRA, Witness P-0187 was wounded by an LRA fighter. She was also raped by an LRA fighter. Witness P-0024 was beaten throughout her abduction. LRA fighters kept slapping her and threatening her. Some abductees were carrying their babies when the LRA took them. Mothers were forced to abandon their children in the bush. LRA fighters threw small children, including babies, into the bush because the children were crying and making it difficult for their mothers to carry looted goods. Many of the women abductees were subsequently released. Some abductees, particularly men, were killed in the bush. Some of the abducted children remained with the LRA.

The killing of civilians was not confined to the area of Lukodi IDP camp. After they left Lukodi, LRA fighters killed persons they had abducted from the camp. Among the civilians killed in the retreat were Nancy Akello, an unnamed man stabbed with a bayonet, an unnamed abductee, Justin Omony, Aleka, and Charles Obwoya.

LRA fighters returned from the attack and reported to Dominic Ongwen about the success of their mission. Dominic Ongwen also reported his soldiers’ attack on Lukodi IDP camp to other LRA commanders, including Joseph Kony and Vincent Otti. Dominic Ongwen took responsibility for the attack on Lukodi IDP camp.

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I. Attack on Abok IDP camp

On 8 June 2004, LRA fighters subordinate to Dominic Ongwen attacked Abok IDP camp. Abok IDP camp was situated in Ngai sub-county, Apac district and contained thousands of civilians displaced by frequent LRA attacks in the region.

In the days and weeks preceding the attack, Joseph Kony and Vincent Otti instructed Dominic Ongwen to continue to attack civilians in IDP camps.

Dominic Ongwen chose to attack Abok IDP camp. Prior to the attack, Dominic Ongwen ordered LRA fighters subordinate to him to attack this camp, including civilians. At a gathering in the foothills of Atoo, Dominic Ongwen addressed the troops before the attack and gave instructions to go and collect food, abduct people, attack the barracks and burn down the camp and the barracks. Dominic Ongwen did not go to Abok as part of the fighting force. He appointed Okello Kalalang to command the attackers on the ground according to his instructions. Kalalang led the LRA fighters in the attack on Abok IDP camp on behalf of Dominic Ongwen.

The day of the attack, Abok IDP camp residents observed LRA troops moving in the western side of the camp. A contingent of Ugandan government soldiers were sent to track the LRA activity. However, the LRA eluded the government soldiers. In the evening of that day, at least 20 LRA fighters, including fighters under the age of 15, executed Dominic Ongwen’s orders and, with an assortment of arms, including guns, attacked Abok IDP camp from the southwest.

The LRA fighters went past the old barracks in the south of the camp and entered the camp, firing their guns. LRA fighters went to the civilian area in the camp and a contingent of the fighters eventually ended up near the new barracks in the north east of the camp. While government soldiers were able to defend the new barracks, the soldiers within the camp itself were not able to stop the LRA’s attack on the camp. These soldiers in the camp fled. The LRA attacked the civilians in the camp.

The LRA fighters looted civilian houses and shops at the trading centre, taking away food items such as sugar, flour, beans, maize, goats, cooking oil, biscuits and salt, as well as a radio, money, clothing, cooking utensils and medicine. At times, while demanding the goods, LRA fighters would use violence.

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LRA fighters set huts on fire in the camp, taking grass from burning thatched roofs to set other huts on fire. Several hundred civilian homes were burnt during the attack. Civilians’ food stocks were also destroyed.

In the course of the attack, LRA fighters killed civilians by shooting, burning and/or beating them. The attackers killed at least 28 civilian residents of the camp. In other instances, killings were not fully carried out by the LRA fighters because of independent circumstances. Survivors returning the next morning found bodies strewn throughout the camp, including children. Some bodies were burnt or had the backs of their heads smashed, others had been shot. Dead bodies were found inside houses, at doorsteps and among the remains of burnt huts. These civilians were killed by LRA fighters. One of Dominic Ongwen’s subordinate commanders intruded into a house with over 10 inhabitants, forced several to carry looted goods and then closed the door and set fire to the house with the remaining inhabitants inside.

The following persons were amongst those killed by the LRA in the course of the attack: Albino Okal, Justina Akullu, Hatari Anyima, D.P. Okello, Simon Okello, Alex Ogweng, Barikia Adonya, Fabio Ogweng and two of Hatari Anyima’s children (Daniel Okite and Monica Ayugi) and Evelyn Akello.

LRA fighters also attempted to kill civilians in the camp. The following persons were amongst those the LRA attempted to kill within the camp: Jacob Opio, Cyprian Ogola and Robson Oper.

Unable to dislodge the government soldiers who remained holed up in the new barracks, the LRA eventually retreated from the camp.

LRA fighters abducted many civilians and forced them to carry heavy looted goods, and an injured fighter, for long distances oftentimes under the threat of beatings or death. Some of the abductees were tied to each other. The abductees were under armed guard to prevent their escape and were under constant threat of beatings or death. LRA fighters beat abductees as a means of punishment for not being able to continue walking and to intimidate other abductees to continue without stopping or resisting. In the course of the retreat, LRA fighters forced an abductee to kill another abductee with a club, as a lesson to others who were thinking of escaping.

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The LRA attempted to kill abductee Gwentorina Akite, an elderly woman. They had abducted her from the camp and forced her to carry heavy loads, including at one point two goats. When she could no longer bear the weight, an LRA fighter beat and strangled her and cut her with a machete. LRA fighters passing her on the road hit her. She was left for dead but managed to crawl back home to the camp.

Among the civilians abducted and forced to work for the LRA were Charles Amodo, Gwentorina Akite, Evelyn Akello, Robson Oper, Witness P-0280, Thomas Okitte’s daughter, Ogweng, Ameny, Lucy Akello, Molly Ayugi, Monica Adur, Nighty Atim, Dilis Awor and Witness V-0002. Some persons abducted by the LRA during the attack were rescued by a UPDF contingent that pursued the LRA fighters as they left Abok IDP camp. Some abductees were killed in captivity, at times for failing to keep up with their captors, others eventually escaped and returned home, some remained with the LRA, including in Dominic Ongwen’s household.

Dominic Ongwen communicated the results of the attack on the LRA military radio to other LRA commanders and to Joseph Kony, reporting that his fighters carried out an attack on Abok IDP camp, directing fire and burning everything that was there, including huts in the camp.

J. Sexual and gender based violence directly perpetrated by Dominic Ongwen

(Witness P-0099) had been abducted by LRA fighters from Purongo, Northern Uganda in February 1998 and from there taken by the LRA to Sudan. By 1 July 2002, while in Sudan, she had been forced to become Dominic Ongwen’s so-called ‘wife’. Dominic Ongwen had personally abducted (Witness P-0101) from Northern Uganda in August 1996. Dominic Ongwen immediately took her into his household, where she stayed until her release in 2004. (Witness P-0214) had been abducted from Laliya, Northern Uganda, by LRA fighters in June 2000 and from there taken to Sudan. In September 2002, she was ‘distributed’ to Dominic Ongwen. (Witness P-0226) had been abducted from her home at Patiko Cetkana, Lukome, Northern Uganda, by LRA fighters under Dominic Ongwen’s command around 1998. By 1 July 2002, she was a ting ting in Dominic Ongwen’s household. (Witness P-0227) was abducted from Pageya, Northern Uganda by LRA fighters under Dominic Ongwen’s command in approximately April 2005. She joined Dominic

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Ongwen’s household. (Witness P-0235) was abducted by the LRA fighters in Kitgum town in September 2002. After her abduction she was placed in Dominic Ongwen’s household. (Witness P-0236) was abducted from Wang’yaa in Ogule, Pajule, Northern Uganda, by LRA fighters in September 2002. She was ‘distributed’ to Dominic Ongwen.

The seven women ‘distributed’ to Dominic Ongwen were not allowed to leave. Dominic Ongwen placed them under heavy guard. They were told or came to understand that if they tried to escape they would be killed. P-0099, P-0101, P-0214, P-0226 and P-0227 were considered Dominic Ongwen’s so-called ‘wives’ and had to maintain an exclusive conjugal relationship with him. Being Dominic Ongwen’s so-called ‘wife’ did not cease until they escaped or were released from the LRA.

During the period relevant to the charges, Dominic Ongwen had sex by force with P-0101 (between 1 July 2002 and July 2004), P-0214 (between September 2002 and 31 December 2005), P-0226 (between 1 July 2002 and sometime in 2003) and P-0227 (between approximately April 2005 and 31 December 2005). This happened on a repeated basis whenever Dominic Ongwen wanted. P-0101 became pregnant and gave birth to a girl fathered by Dominic Ongwen sometime between July 2002 and July 2004. In 2004, P-0101 became pregnant and gave birth to a boy fathered by Dominic Ongwen. In 2005, P-0214 became pregnant and, in December 2005, gave birth to a girl fathered by Dominic Ongwen.

The seven women were subjected to beating at Dominic Ongwen’s command at any time. They were hit with canes and sticks. Some beatings knocked them unconscious, left them unable to walk and left permanent scars. The seven women had to perform different domestic duties, including cooking, working in the garden, doing laundry, fetching and chopping wood, carrying Dominic Ongwen’s dishes, fetching water, washing, nursing Dominic Ongwen when he was injured and taking things to him. Failing to perform these tasks led to punishment by beating.

On 1 July 2002, Dominic Ongwen forced P-0226 to beat to death a captured UPDF soldier near Patongo, Northern Uganda. P-0226 hit him once, as did other girls. She had blood splattered on her clothes. P-0226 had never killed anyone before, and this was part

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of the reason given by Dominic Ongwen on why he selected her to do this. This experience caused her severe anguish.

In late 2002 or early 2003 in Northern Uganda, soon after P-0235’s abduction, Dominic Ongwen ordered her to, along with other abductees, beat people to death until their blood splashed on the abductees. Although she eventually did not have to carry out the killings, this experience caused her severe anguish.

From 1 July 2002 until her escape in September 2002, P-0099 was in Uganda. She was placed by Dominic Ongwen in a sickbay where she continued her life under identical circumstances. P-0101 was released from the LRA in July 2004. P-0214 and P-0227 escaped in 2010 while in the DRC. P-0226 was captured by government soldiers in 2003 in Koch. P-0235 and P-0236 were released from the LRA in April 2015.

K. Sexual and gender based violence not directly perpetrated by Dominic Ongwen

Dominic Ongwen, Joseph Kony and the Sinia brigade leadership engaged in a coordinated and methodical effort, relying on the LRA soldiers under their control, to abduct women and girls in Northern Uganda and force them to serve in Sinia brigade as so-called ‘wives’ of members of Sinia brigade, and as domestic servants.

Dominic Ongwen, Joseph Kony and the Sinia brigade leadership ordered Sinia brigade soldiers to abduct civilian women and girls. Sinia brigade soldiers, in execution of orders of Joseph Kony, Dominic Ongwen and the Sinia brigade leadership, abducted civilian women and girls in Northern Uganda between 1 July 2002 and 31 December 2005. At any time during this period, there were over one hundred abducted women and girls in Sinia brigade. Following their abduction, the abducted women and girls were ‘distributed’ to members of Sinia brigade. The ‘distribution’ of the abducted women and girls was the prerogative of Joseph Kony, or, in his absence, of the Sinia brigade commander or battalion commanders. In the exercise of his authority, Dominic Ongwen also personally decided on the ‘distribution’ of abducted women and girls.

The abducted women and girls were threatened with death if they attempted to escape. In some cases, women and girls were in fact killed for attempted escape. In other cases,

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they were severely beaten. In addition, they were placed under heavy guard. Abducted women and girls were also forced to beat or kill other abductees for attempting escape or breaking rules. Occasionally, abducted women and girls were released.

Joseph Kony, Dominic Ongwen and the Sinia brigade leadership designated abducted women and girls as so-called ‘wives’ of male members of Sinia brigade. Occasionally, ceremonies were performed to mark the so-called ‘marriage’. Frequently no such ceremony occurred, and abducted women and girls were considered so-called ‘wives’ from the time they were first forced to have sex with the man they had been assigned to. The abducted women and girls were not able to refuse. Dominic Ongwen personally assigned women and girls as so-called ‘wives’ and used his authority as LRA commander to enforce the so-called ‘marriage’ in Sinia brigade.

Younger abducted girls were used as household servants, referred to as ting tings , until they were considered mature enough to become so-called ‘wives’.

Sinia brigade members regularly forced abducted women and girls who had been ‘distributed’ to them into sexual intercourse. Sexual intercourse was specifically considered to be part of the role of the so-called ‘wives’. The women and girls were unable to resist, due to the physical force used by the Sinia brigade members and due to the threat of punishment for disobedience and their dependence on the Sinia brigade members for survival.

The abducted women and girls were not allowed to have sexual or romantic relations to any man other than the so-called ‘husband’ assigned to them.

The abducted women and girls were forced to perform work, such as household work and carrying items. Also this rule was strictly enforced by physical punishment.

As a result of the sexual and physical violence, and the living conditions to which they were submitted, the abducted women and girls suffered severe physical and mental pain.

L. Conscription and use of children in armed hostilities

Dominic Ongwen, Joseph Kony and the Sinia brigade leadership engaged in a coordinated and methodical effort, relying on the LRA soldiers under their control, to

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abduct children under 15 years of age in Northern Uganda and force them to serve as Sinia fighters.

Dominic Ongwen, Joseph Kony and the Sinia brigade leadership ordered Sinia soldiers to abduct children to serve as Sinia soldiers. Sinia soldiers, in execution of orders of Joseph Kony, Dominic Ongwen and the Sinia brigade leadership, abducted a large number of children under 15 years of age in Northern Uganda between 1 July 2002 and 31 December 2005. Children under the age of 15 were also abducted during the four attacks relevant to the charges. Dominic Ongwen also abducted children himself.

Following their abduction, children under the age of 15 years were integrated into Sinia with the aim of using them in hostilities. Dominic Ongwen knew that children under 15 years of age were integrated into Sinia as soldiers. The abducted children were trained, in some cases received guns, and were assigned to service in Sinia. In some cases, Dominic Ongwen himself assigned abducted children to service within the Sinia brigade. The children served as escorts in Sinia brigade in general and specifically in Dominic Ongwen’s household.

Children under 15 years of age serving as soldiers in Sinia brigade took part in fighting. They further facilitated LRA attacks by raising alarms, burning and pillaging civilian houses, collecting and carrying pillaged goods from attack sites and serving as scouts. During all four attacks relevant to the charges, children under the age of 15 participated in the hostilities.

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IV. ASSESSMENT OF EVIDENCE

A. The standard of proof of ‘beyond reasonable doubt’

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Everyone is presumed innocent until proved guilty before the Court. The onus is on

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the Prosecution to prove the guilt of the accused.

In accordance with Article 66(3) of the Statute, the Chamber, in order to convict the

accused must be convinced of the guilt of the accused beyond reasonable doubt. The

standard of beyond reasonable doubt is to be applied to any facts indispensable for

entering a conviction, namely those constituting the elements of the crimes or modes of

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liability charged. For this determination, the Chamber must carry out a holistic

evaluation and weighing of all the evidence taken together in relation to the facts at

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issue.

As is clear from its plain meaning, reasonable doubts must be grounded in reason. The

reasonable doubt standard cannot consist of imaginary or frivolous doubt – it must have

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a rational link to the evidence, lack of evidence or inconsistencies in the evidence.

The possibility that unavailable evidence may include exculpatory information is too

hypothetical, without more, to qualify as a reasonable doubt. Accepting such a

proposition is akin to requiring proof beyond all doubt, while what is required is instead

proof beyond reasonable doubt.

238 Article 66(1) of the Statute. 239 Article 66(2) of the Statute. 240 Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo , Public Redacted Version of Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction , 1 December 2014, ICC-01/04-01/06-3121-Red (hereinafter: ‘ Lubanga Appeals Judgment ’), para. 22; Appeals Chamber, The Prosecutor v. Bemba et al. , Public Redacted Version of Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute” , 8 March 2018, ICC-01/05-01/13-2275- Red (hereinafter: ‘ Bemba et al. Appeals Judgment’ ), paras 96, 868; Appeals Chamber, The Prosecutor v. Mathieu Ngudjolo Chui , Public Version of Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute” , 7 April 2015, ICC-01/04-02/12-271-Corr, paras 123-25. 241 Lubanga Appeals Judgment , para. 22; Trial Chamber VI, The Prosecutor v. Bosco Ntaganda , Judgment , 8 July 2019, ICC-01/04-02/06-2359 (with public annexes A, B, C, hereinafter: ‘ Ntaganda Trial Judgment ’), para. 45. Public Version of Judgment on the Prosecutor’s 242 Appeals Chamber, The Prosecutor v. Mathieu Ngudjolo Chui , appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute” , 7 April 2015, ICC-01/04-02/12-271-Corr, para. 109, with reference to ICTR, Appeals Chamber, Georges Anderson Nderubumwe Rutaganda v. The Prosecutor , Judgement , 26 May 2003, ICTR-96-3-A , para . 488.

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The Chamber notes that there has been a considerable amount of litigation on the issue of burden and standard of proof with respect to grounds excluding criminal 243 responsibility. The Defence argues that the burden of proof lies with the Prosecution, and that ‘the Prosecution must disprove each element of 31(a) and (d) beyond a reasonable doubt’. 244 The Prosecution, on the other hand, submits that neither party bears the burden of proof, and that ‘the ultimate responsibility for determining the applicability 245 of article 31 grounds lies with the Chamber’.

The Chamber notes that there is no specific provision in the Statute regulating the burden and standard of proof with respect to grounds excluding criminal responsibility. However, this is not a lacuna in the Statute. According to Article 66(2) and (3), the burden of proof (incumbent on the Prosecution) and the standard of proof (beyond reasonable doubt) relate to the ‘guilt of the accused’. When a finding of the guilt of the accused also depends on a negative finding with respect to the existence of grounds excluding criminal responsibility under Article 31 of the Statute, the general provisions of Article 66(2) and (3) on the burden and standard of proof equally apply, operating (as is always the case for the determination on the guilt or innocence of the accused) solely with respect to the facts ‘indispensable for entering a conviction’, namely, in this case, the absence of any ground excluding criminal responsibility and, thus, the guilt of the accused.

243 See Prosecution Closing Brief , para. 380; Defence Closing Brief , paras 529-34; Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute , 28 January 2019, ICC-02/04-01/15-1423 (with two public annexes, A and B); Prosecution Response to the “Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute (ICC-02/04-01/15- 1423)” , 7 February 2019, ICC-02/04-01/15-1439. 244 Defence Closing Brief , paras 529-34. See also Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute , 28 January 2019, ICC-02/04-01/15-1423 (with two public annexes, A and B), para. 17. 245 Prosecution Closing Brief , paras 380, 476. See also Prosecution Response to the “Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute (ICC-02/04-01/15-1423)” , 7 February 2019, ICC-02/04-01/15-1439, para. 23.

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B. The evidence in the case

1 The basis for the Chamber’s decision under Article 74 of the Statute: evidence ‘submitted’ and ‘discussed’ at trial

Pursuant to Article 74(2) of the Statute, the decision of a trial chamber on the guilt or innocence of the accused shall be based on ‘evidence submitted and discussed before it at trial’.

i. Evidence ‘submitted’ at trial

The Chamber notes that in interpreting the provision of Article 74(2) of the Statute, read in conjunction with the other relevant provisions of the Court’s legal instruments, the Appeals Chamber explained that evidence is properly before a trial chamber for the purpose of its decision under Article 74 of the Statute when it has been ‘submitted’ – i.e. ‘presented to the Trial Chamber by the parties on their own initiative or pursuant to a request by the Trial Chamber for the purpose of proving or disproving the facts in issue before the Chamber’ 246 – in accordance with the procedure set out by the trial chamber (and ‘discussed’) at trial unless it is ruled as irrelevant or inadmissible. 247 Accordingly, ‘[a]ny item of submitted evidence that is not excluded at trial must […] be presumed to be considered by a trial chamber not to be inadmissible under any applicable exclusionary rule’. 248 Importantly, the act of ‘submission’ of evidence is a procedural act performed 249 by the parties.

Evidence may be ‘submitted’ orally when given live by witnesses called to testify before 250 a trial chamber or, when documentary in nature, in writing or in audio or visual form. According to article 64(8)(b) of the Statute ‘the parties may submit evidence in

246 Appeals Chamber, The Prosecutor v. Jean-Pierre Bemba Gombo , Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution's list of evidence” , 3 May 2011, ICC-01/05-01/08-1386, para. 43. See also Bemba et al. Appeals Judgment , para. 576. 247 Bemba et al. Appeals Judgment , paras 9, 105, 599. 248 Bemba et al. Appeals Judgment , paras 9, 599. 249 Bemba et al. Appeals Judgment , para. 576, referring, inter alia , to the provisions of Articles 64(8)(b) and 69(3) of the Statute. The Appeals Chamber concluded in this regard that ‘it is the evidence that is presented (“submitted”) by the parties that – insofar as “discussed” – constitutes the basis of the eventual decision under article 74 (2) of the Statute, rather than evidence “admitted” by the trial chamber’. 250 See also Rule 140(2) of the Rules according which, in specifying how a witness may be questioned, refers, under sub-paragraph (a) to the right of the party that ‘submits evidence […] by way of a witness’ to question that witness.

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accordance with the provisions of th[e] Statute’ and ‘[s]ubject to any directions of the

presiding judge’.

251

Specifically with respect to the procedure for an item of documentary evidence to be considered as ‘submitted’ within the meaning of Article 74(2) of the

Statute, the Appeals Chamber, upon consideration of the relevant legal framework of this

Court, held that a trial chamber has discretion to either: (i) recognise the submission of

such item of evidence by a party without a prior ruling on its relevance and/or

admissibility and consider its relevance and probative value as part of the holistic

assessment of all evidence submitted when deciding on the guilt or innocence of the

accused; or (ii) rule on the relevance and/or admissibility of such item of evidence as a

pre-condition for recognising it as ‘submitted’ within the meaning of Article 74(2) of the

Statute, and assess its weight at the end of the proceedings as part of its holistic

252

assessment of all evidence submitted. The Appeals Chamber clarified in this regard

that, irrespective of the procedure adopted in each individual case, ‘both the procedure

for the submission of evidence at trial and the status of each piece of evidence as “submitted” within the meaning of article 74 (2) of the Statute must be clear’ as ‘[t]his is

a fundamental guarantee for the rights of the parties at trial as well as for the purpose of any subsequent appellate review’.

253

251 Rule 140(1) of the Rules further specifies in this regard that ‘[i]f the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber’. 252 Bemba et al. Appeals Judgment , paras 8, 598. The Defence suggests, in passing and without further elaboration, that these findings by the Appeals Chamber in its judgment in the Bemba et al. case concern only proceedings for offences against the administration of justice under Article 70 of the Statute, and that it is ‘inappropriate’ to employ the procedure for submission of documentary evidence set out in that case (and endorsed by the Appeals Chamber) in the present case which is a case for crimes under Article 5 of the Statute ( Defence Closing Brief , para. 100). This proposition by the Defence is based exclusively on a remark expressed in a minority opinion appended to a judgment rendered by the Appeals Chamber on another appeal. The Chamber considers the Defence submission in this respect untenable. There exists no indication – whether explicit or implicit – in the judgment rendered by the Appeals Chamber in the Bemba et al. case that the analysis and conclusions made therein are specific to proceedings for offences under Article 70 of the Statute and are not equally applicable to proceedings for crimes under Article 5 of the Statute. To the contrary, all relevant provisions in the applicable law cited by the Appeals Chamber (and all considerations made in their regard) are entirely applicable, without any distinction, to proceedings under both types of crimes. There exists not a single instance in the entire analysis made by the Appeals Chamber in this regard (paras 552-628) in which a provision applicable only to proceedings for offences against the administration of justice ( i.e. , at that time, Article 70 of the Statute and Rules 162-169) is even mentioned at all; nor is any consideration concerning the types of offences that were the subject of those proceedings made at any point in the Appeals Chamber’s analysis. To the contrary, all references to the legal framework of the Court, the intentions of their drafters, and any alleged prejudice to the rights of the accused are relevant to any type of criminal proceedings conducted at the Court. Also, the Chamber notes that the amount of documentary evidence submitted in the Bemba et al. case was even larger than in the present case, although remaining within a comparable range, further making any purported distinction in this regard devoid of any merit. 253 Bemba et al. Appeals Judgment , paras 9, 599.

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The two procedures for submission of documentary evidence – while essentially the same

254

with respect to numerous aspects – differ in whether they envisage a distinct

procedural step in the course of the trial consisting in an affirmative determination of the

relevance and probative value of an item of evidence prior to it being considered as ‘submitted’ within the meaning of Article 74(2) of the Statute; an additional procedural

step which is foreseen under the second procedure recalled above, and which is instead

absent in the first one. This difference stems from the fact that in the legal system of the

Court a separate ruling by a trial chamber on the relevance and probative value of an

individual item of documentary evidence under Article 69(4) of the Statute is

255

discretionary in nature, and that no admissibility ‘test’ – beyond that of not being

inadmissible by virtue of the operation of specific exclusionary rules or ‘procedural bars’ – is envisaged as such in the applicable law for an item of evidence to be ‘submitted’ at

256

trial. Chambers may thus determine that separate rulings under Article 69(4) of the

Statute are justified in the specific circumstances of an individual case, but are not

257

mandated to do so.

Under both procedures, evidence which is not excluded by a trial chamber is eligible to

258

be used for the determination on the guilt or innocence of the accused. Each procedure

254 In particular, under both procedures, all material disclosed between the parties could potentially appear on their respective lists of evidence, the production of which, while not being a statutory requirement for trial proceedings, Chamber’s Practice Manual (4 th has been found to be a best practice in all trials at the Court ( Edition) , 29 November 2019, p. 21). Parties submit items on these lists into evidence, either orally or in writing. Generally, under Rule 64(1) of the Rules, issues relating to the relevance or admissibility are raised at the time when the evidence is submitted. Procedural bars which could preclude the submission of an item into evidence are considered, and ruled upon as appropriate, when such item is submitted by a party to the Chamber. All items of evidence which are part of the evidentiary record of the case are considered – and their relevance, reliability and weight assessed holistically in light of all other evidence therein – when determining the guilt or innocence of the accused. Conversely, in accordance with Rule 64(3) of the Rules, evidence which is ruled ‘irrelevant’ or ‘inadmissible’ is not considered by the Chamber for the purpose of its eventual determination on the guilt or innocence of the accused. 255 See, in particular, Article 69(4) of the Statute. See also Bemba et al. Appeals Judgment , paras 583-87, 598. 256 Bemba et al. Appeals Judgment , para. 583 (‘the Appeals Chamber is not persuaded that article 69 (4) of the Statute sets out an additional “test” for evidence to be admissible in the proceedings before the Court (beyond that of not being inadmissible under an exclusionary rule), and that Trial Chambers have therefore the duty to render rulings on the relevance and admissibility of each item of evidence submitted by the parties to determine whether each item meets this general “test”’). See also paras 584-92, 594, 598. 257 Bemba et al. Appeals Judgment , para. 592 (‘[in] the hybrid system [of the Court] consideration by a trial chamber of the relevance and/or probative value of an item of evidence within the context of a possible ruling on its relevance or admissibility rendered separately from its assessment as part of the eventual evaluation of the guilt or innocence of the accused is, in principle, permitted, but is not mandatory.’). See also paras 585, 592. 258 Bemba et al. Appeals Judgment , para. 599 (‘[a]ny item of submitted evidence that is not excluded at trial must therefore be presumed to be considered by a trial chamber not to be inadmissible under any applicable exclusionary rule.’).

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employs different terminology to reflect the scope of the trial chamber’s determination

with respect to items of documentary evidence upon their submission by a party:

generally, they are either ‘recognised as submitted’ within the meaning of Article 74(2) of the Statute, in the first procedure, or are individually ‘admitted’, in the second one.

Notwithstanding the difference as concerns the scope of this determination by a chamber,

the consequence of either determination is the same: both indicate, with equal clarity,

that the item of evidence is part of the collection of evidence that the chamber would

consider for its eventual decision on the guilt or innocence of the accused. So long as

such determination is clear with respect to each item of evidence, parties know with equal

precision, irrespective of the procedure employed in each individual case, which items

will be considered as part of the deliberation of the final judgment.

259

In the present trial, this Chamber adopted the first of the above-mentioned procedures.

It decided, generally, not to exercise its discretion under Article 69(4) of the Statute to

make separate rulings on the relevance or admissibility of items of documentary evidence

260 261

submitted by the parties other than on any ‘procedural bars’, which could preclude

the submission of an item into evidence due to the operation of a specific exclusionary

262

rule, such as those under Article 69(7) of the Statute or those concerning the

procedural requisites for introduction of prior recorded testimony under Rule 68 of the

263

Rules. When no procedural bars to the submission of an item of evidence were found

259 Directions on the Conduct of Proceedings , para. 24; Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute , 10 August 2016, ICC-02/04-01/15-520, para. 7; Decision on Prosecution Request to Submit Interception Related Evidence , 1 December 2016, ICC-02/04-01/15-615 (hereinafter: ‘ Decision on Prosecution’s Submission of Intercept Material ’), para. 4(ii). 260 The Chamber recalls that the parties and participants were permitted to submit evidence (i) through a filing, (ii) by email or (iii) orally during the hearing ( Directions on the Conduct of Proceedings , para. 27). 261 See Directions on the Conduct of Proceedings , para. 26. 262 See Bemba et al. Appeals Judgment , paras 580-82. 263 Rulings relating to Article 69(7) objections: Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute , 10 August 2016, ICC-02/04-01/15-520. Rulings on procedural requisites for introduction of prior recorded testimony under Rule 68 of the Rules: Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony under Rule 68(2)(b) of the Rules, 18 November 2016, ICC-02/04-01/15-596-Conf (public redacted version available: ICC-02/04-01/15-596-Red ; hereinafter: ‘ First Decision on Prosecution Applications under Rule 68(2)(b) ’); Decision on the Prosecution’s Request to Add Items to its List of Evidence, to include a Witness on its List of Witnesses and to Submit Two Prior Recorded Testimonies under Rule 68(2)(b) and (c) , 22 November 2016, ICC-02/04-01/15-600; Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony and Related Document Pursuant to Rule 68(3) of the Rules , 5 December 2016, ICC- 02/04-01/15-621 (hereinafter: ‘ Decision on Prosecution Applications under Rule 68(3) ’); Decision on Defence Request Pursuant to Rule 68(2)(c) of the Rules of Procedure and Evidence , 19 June 2018, ICC-02/04-01/15-1288; Decision on Defence Request to Introduce Previously Recorded Testimony Pursuant to Rule 68(2)(b) of the Rules of Procedure and Evidence , 2 July 2018, ICC-02/04-01/15-1294 (hereinafter: ‘ Decision on the Defence Request under Rule 68(2)(b) ’); Decision on Prosecution Request to Introduce Evidence of Defence Witnesses via Rule

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to exist – or none were raised – the Chamber recognised the formal submission of the

evidence at issue within the meaning of Article 74(2) of the Statute; this was the formal

action taken by the Chamber to indicate that such item of evidence was part of the evidentiary basis on which Dominic Ongwen’s guilt or innocence would eventually be

264

established. Thereafter, the fact that an item of evidence had been ‘submitted’ within

the meaning of Article 74(2) of the Statute was placed on the record, and such status

265

accordingly reflected in the e-Court metadata of each such item of evidence. The assessment of the relevance and probative value of all items of evidence so ‘submitted’

– and any argument in this regard raised by the parties and participants in the course of

the trial – was therefore conducted by the Chamber as part of its deliberation on the guilt

or innocence of Dominic Ongwen and on the basis of a holistic evaluation of all items of

evidence that are part of the evidentiary record in the present case, rather than for the

266

purpose of discrete evidentiary rulings. Such assessment, including in terms of the

disposal of the arguments advanced at trial by the parties and participants, is referred to

in the present judgment as appropriate.

The Chamber reiterates in this regard that this procedure concerns exclusively matters

related to the relevance and probative value of the items of documentary evidence

68(2)(b), 16 August 2018, ICC-02/04-01/15-1322-Conf (public redacted version available: ICC-02/04-01/15- 1322-Red ). 264 The Chamber observes that the same procedural act was made also by Trial Chamber VII in the Bemba et al. case ( see Trial Chamber VII, The Prosecutor v. Bemba et al. , Public Redacted Version of Judgment pursuant to Article 74 of the Statute , 19 October 2016, ICC-01/05-01/13-1989-Red (hereinafter: ‘ Bemba et al. Trial Judgment ’), paras 191-92), and that the Appeals Chamber held in this regard that ‘[it] sees no error in the fact that the Trial Chamber did not “admit” items of evidence, but its formal act was instead that of “recognising” the “submission” of this evidence by the parties. On the contrary, by doing so, and basing its decision on the guilt or innocence of the accused on the evidence which had been so submitted, the Trial Chamber acted in line with the procedure provided in the Statute.’ ( Bemba et al. Appeals Judgment , para. 578). 265 See in this regard Bemba et al. Appeals Judgment , paras 9, 599, emphasising that, in addition to the procedure for the submission of evidence at trial, also the status of each piece of evidence as ‘submitted’ within the meaning of Article 74(2) must be clear. See also para. 600. 266 In this regard, the Defence mischaracterises a decision by the Appeals Chamber – rendered in an interlocutory appeal in another case – when it claims that the Chamber would be in conflict with this decision if the judgment (or an annex to it) does not contain ‘evidential rulings for all items submitted into evidence’ ( Defence Closing Brief , paras 104-05; see also para. 106). The same argument has been raised subsequently before the Appeals Chamber itself, which, in ruling on this matter, concluded that not even the decision referenced by the Defence mandated a trial chamber to render rulings on the relevance or admissibility of each item of evidence, and that consideration of the relevance, probative value and potential prejudice of the evidence submitted and the issues raised by the parties in this respect, may be made part of the trial chamber’s assessment of the evidence when it is evaluating the guilt or innocence of the accused person ( Bemba et al. Appeals Judgment , paras 593-94, referring to Appeals Chamber, The Prosecutor v. Jean-Pierre Bemba Gombo , Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution's list of evidence” , 3 May 2011, ICC-01/05-01/08-1386).

No. ICC-02/04-01/15 77/1077 4 February 2021

submitted in the course of the trial, and not issues related to the potential operation of

specific exclusionary rules which would render a certain item of evidence inadmissible

before the Court and which a trial chamber is mandated to consider separately for the

267 purpose of a distinct evidentiary ruling. Any such issue, as recalled above, has been

duly considered by the Chamber in the course of the trial.

Conversely, the Chamber explained at the beginning of the trial that, in principle, the

relevance and probative value of a given piece of evidence could be assessed more

accurately only after having received all evidence presented at trial in order to conduct

such assessments in light of the entirety of the evidence submitted, rather than

268 undertaking them during trial as the evidentiary record evolved. At the same time, the

Chamber clarifies that under the procedure for submission of evidence as set out in the

present case, it still maintains the discretion, vested in it by the relevant statutory

provisions, to render separate rulings on the relevance and/or probative value of

individual items of evidence as warranted by the specific circumstances at hand, and

exclude at any time from the evidentiary record material which, on its face, is patently

269 irrelevant or is manifestly lacking any probative value. In the Chamber’s view, such

discretion needs however to be exercised with caution and restraint, bearing in mind that

the relevance and probative value of a given piece of evidence may not be evident in the

course of the proceedings, but may become so when all the evidence is received and

270 considered. Indeed, as cautioned by the Appeals Chamber, any such discretion is to be exercised ‘consistently with the boundaries of [a trial chamber’s] statutory competences

267 See Bemba et al. Appeals Judgment , para. 580 (‘[i]n the context of the potential operation of any such exclusionary rule, a distinct determination on the admissibility of certain items of evidence must be conducted – whether in the course of the trial or at the end of the proceedings – separately from the assessment of the evidence for the purpose of establishing the guilt or innocence of the accused.’). See also para. 582. Decision on Prosecution’s Submission of Intercept 268 Directions on the Conduct of Proceedings , para. 25; Material , para. 7. 269 Bemba et al. Appeals Judgment , para. 603 (‘[T]he Appeals Chamber recalls that while rulings on the relevance and/or admissibility of evidence are indeed discretionary, a trial chamber shall balance this discretion with, inter alia , its duty, under article 64 (2) of the Statute, to ensure that the trial is fair and expeditious and is conducted with full respect of the rights of the accused. In particular, this duty, in certain specific circumstances of each individual case, may warrant that a trial chamber, consistently with the boundaries of its statutory competence and, in the final instance, the object and purpose of the trial, exercise its discretion under article 69 (4) of the Statute, and render separate rulings on the relevance and/or admissibility of individual items of evidence.’). See also Directions on the Conduct of Proceedings , para. 26; Decision on Prosecution’s Submission of Intercept Material , para. 11. 270 See also Trial Chamber VII, The Prosecutor v. Jean-Pierre Bemba Gombo et al. , Decision on Prosecution Requests for Admission of Documentary Evidence (ICC-01/05-01/13-1013-Red, ICC-01/0501/13-1113-Red, ICC-01/05-01/13-1170-Conf) , 24 September 2015, ICC-01/05-01/13-1285, para. 10.

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and, in the final instance, the object and purpose of the trial’. 271 There is in fact an

inherent risk, which may be in tension with the ultimate purpose of a trial to establish the

truth, in excluding items of evidence on the basis of a determination of their relevance or

probative value when considered individually – rather than as part of the system of

evidence as a whole – and on the basis of a knowledge on the part of the Chamber which,

until the end of the trial and prior to the rest of the evidence being available to it, is by

definition partial.

Consistent with the considerations above and mindful that the ‘submission’ of evidence 272 is a procedural act performed by the parties as a matter of statutory right, the Chamber,

in the present trial, has been deferential to the parties in terms of the documentary

evidence they submitted for the Chamber’s consideration for the ultimate determination

on the guilt or innocence of the accused. Importantly, upon submission of the different

batches of documentary evidence by the Prosecution and by the Defence, and in the

absence of any indication of an abuse on their part of their statutory right to submit 273 evidence at trial in accordance with the relevant applicable law, the Chamber generally

considered that an intervention on its part in terms of exclusion of material from the

evidentiary record of the case in the course of the trial was unwarranted.

The Chamber observes that this procedure for submission of documentary evidence as

set out in the present case is now firmly established in the practice of the Court. It has 274 been adopted in numerous cases and, as recalled, its foundation in the Statute was

recently confirmed by the Appeals Chamber, which, on the basis of an in-depth analysis,

271 Bemba et al. Appeals Judgment , para. 603. 272 Bemba et al. Appeals Judgment , para. 576. 273 The Chamber recalls in this regard that the Court’s statutory documents do not set limits on the submission of documentary evidence other than ‘through’ a witness. See First Decision on Prosecution Applications under Rule 68(2)(b) , para. 36; Decision on Prosecution’s Submission of Intercept Material , para. 10; Trial Chamber I, The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé , Decision on the Prosecutor’s application to introduce prior recorded testimony under Rules 68(2)(b) and 68(3) , 9 June 2016, ICC-02/11-01/15-573-Red, para. 9; Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo , Judgment pursuant to Article 74 of the Statute , 14 March 2012, ICC-01/04-01/06-2842 (hereinafter: ‘ Lubanga Trial Judgment ’), paras 107-08. 274 See Trial Chamber VII, The Prosecutor v. Jean-Pierre Bemba Gombo et al. , Decision on Prosecution Requests for Admission of Documentary Evidence (ICC-01/05-01/13-1013-Red, ICC-01/0501/13-1113-Red, ICC-01/05- 01/13-1170-Conf) , 24 September 2015, ICC-01/05-01/13-1285; Trial Chamber I, The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé , Decision on the submission and admission of evidence , 29 January 2016, ICC- 02/11-01/15-405; Trial Chamber I, The Prosecutor v. Al Hassan Ag Abdould Aziz Ag Mohamed Ag Mahmoud, Annex A to the Decision on the conduct of the proceedings , ICC-01/12-01/18-789-Anx, paras 27-34; Trial Chamber V, The Prosecutor v Alfred Yekatom and Patrice-Edouard Ngaïssona , Initial Directions on the Conduct of the Proceedings , 26 August 2020, ICC-01/14-01/18-631, paras 52-65.

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concluded that it was consistent with the legal framework of the Court – including the

plain language of Articles 69(4) and 74(2) of the Statute and Rule 64 of the Rules – as

well as with the corresponding exact intentions of the drafters of the relevant legal

275

instruments, as made clear by their drafting history. A series of other documents,

authored by judges or other experts in international criminal law, have also confirmed

276

the legitimacy of such procedure.

The Chamber considers that the procedure set out in the present trial is in conformity with the accused’s right to a fair trial, and recalls the conclusions to the same effect made

by the Appeals Chamber upon consideration of the details and implications of this

277

procedure. This includes the explicit rejection on the part of the Appeals Chamber of

278

an argument which is entirely comparable to the grievance, expressed by the Defence

in the present case, that it was unfair for it to be ‘required to work on the assumption that

all the items submitted into evidence by the Prosecution may be used against Mr Ongwen’.

279

While the Chamber has the responsibility not to rely on (and, correspondingly, to

exclude) evidence which is inadmissible due to the operation of a statutory exclusionary

275 Bemba et al. Appeals Judgment , paras 572-601 (under the heading ‘Whether the Court’s legal framework mandates rulings on the relevance and admissibility of each item of evidence on the basis of a general admissibility test’), 628. See also the Appeals Chamber’s relevant key findings at paras 8 and 9. 276 For example, a recent report by the Independent Expert Review, established by the Assembly of the States Parties to the Rome Statute, recognised ‘the lack of consensus amongst the Judges on the issue of whether evidence should be admitted or submitted’, but considered it not necessary that the difference ‘be resolved in favour of one or the other through a Regulation on the matter’, given the ‘wide-ranging powers to pronounce orders relating to the conduct of the proceedings’ of the trial chamber and in particular the presiding judge, and that ‘[w]hich approach to follow in relation to the bulk of documentary productions has been recognised by the Appeals Chamber as a decision that falls within the discretion of the Trial Chamber Judges’ ( Independent Expert Review of the International Criminal Court and the Rome Statute System, Final Report , 30 September 2020, paras 546- 50). The Chamber also notes the ‘Paris Declaration on the Effectiveness of International Criminal Justice’ of 16 October 2017, endorsed by an array of international judges – including all the Presidents of international tribunals at the time – which recommended continued reflection upon ‘the practice of totally or partially postponing to the deliberation stage the assessment of the admissibility of the evidence presented’ ( Paris Declaration on the Effectiveness of International Criminal Justice , 16 October 2017, para. 21). 277 Bemba et al. Appeals Judgment , paras 602-28 (under the heading ‘Whether the Trial Chamber’s decision not to rule on the relevance and/or admissibility of all items of evidence prejudiced the rights of the accused’). 278 Bemba et al. Appeals Judgment , para. 607 (‘the Appeals Chamber is not persuaded by [the appellant’s] generic proposition that his fair trial rights were violated because he had to conduct his defence in the expectation that all evidence submitted in the proceedings could constitute the basis for the Trial Chamber’s eventual decision on his guilt or innocence.’). 279 Defence Closing Brief , para. 98.

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280 rule, there exists no automatic right to obtain a preliminary determination from the Chamber on the relevance and probative value of each item of evidence submitted in the course of the trial – whether oral or documentary in nature – as a pre-condition for any such item to be considered for the purpose of a determination under Article 74 of the 281 Statute. Rather, as already observed, it is the legal framework of this Court that provides that the evidentiary basis for the final decision on the guilt or innocence of the accused is constituted by the evidence ‘submitted’ by the parties (as well as discussed) at trial that is not otherwise inadmissible due to the operation of an exclusionary rule in 282 the applicable law. This is therefore a statutory effect that does not derive from a trial chamber’s decision not to make discrete intermediate rulings on the relevance and probative value of the items of documentary evidence submitted by the parties as a matter of course. Indeed, as held by the Appeals Chamber, ‘the “expectation” that all evidence submitted could be considered for the purpose of the Trial Chamber’s decision under article 74 (2) arises directly from the Court’s own legal instruments – which, by providing so, accept that there is no inherent incompatibility between fair trial rights and an assessment of the relevance and probative value of the evidence at the end of the 283 proceedings in light of all evidence submitted’.

In this regard, the Chamber further recalls that notwithstanding the procedure for submission of documentary evidence set out by each trial chamber, a determination of the guilt or innocence of the accused requires an assessment on the part of a trial chamber of the relevance and reliability of all evidence submitted that has not been excluded in the course of the trial. This is the case irrespective of whether, as concerns items of documentary evidence, a provisional, prima facie assessment to the same effect has also been made during the trial as a pre-condition for any such item to be considered as ‘submitted’ within the meaning of Article 74 of the Statute. For this reason, and as held

280 Bemba et al. Appeals Judgment , para. 582 (‘a trial chamber is […] required to ensure that evidence which is affected by an exclusionary rule is ruled inadmissible under the applicable ground and is, therefore, disregarded in the decision on the guilt or innocence of the accused. This consideration is mandatory in nature’). 281 See also Trial Chamber VII, The Prosecutor v. Jean-Pierre Bemba Gombo et al. , Decision on Prosecution Requests for Admission of Documentary Evidence (ICC-01/05-01/13-1013-Red, ICC-01/0501/13-1113-Red, ICC-01/05-01/13-1170-Conf) , 24 September 2015, ICC-01/05-01/13-1285, para. 12 (‘[t]he notion of a fair trial does not require that the Chamber rule on the admissibility of each piece of evidence upon submission – Article 69(4) of the Statute clearly gives the Chamber discretion in this respect’), explicitly approved by the Appeals Chamber ( Bemba et al. Appeals Judgment , para. 607). 282 Bemba et al. Appeals Judgment , para. 607. See also paras 9, 599. 283 Bemba et al. Appeals Judgment , para. 607.

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by the Appeals Chamber, neither of the two procedures for submission of documentary evidence that are possible in the legal framework of the Court guarantees that an accused would not be ‘“forced to invest times and resources in responding to” items of evidence 284 that may end up being disregarded by the trial chamber’. This is also no different from what regularly occurs as far as oral testimonial evidence is concerned.

In addition to the considerations expressed above, and with respect to the circumstances of the present case, the Chamber further observes that in the course of the trial items of documentary evidence have not been placed on the record in a disorderly manner leaving the Defence ‘in the dark’ 285 as to their relevance to the facts of the case and their probative value. On the contrary, the Defence has been in a position to understand fully the evidence submitted by the Prosecution in support of the charges brought against the accused, and focus its work accordingly. In this regard, the Chamber recalls, inter alia, that the facts and circumstances described in the charges brought against Dominic Ongwen have been clearly and exhaustively set out as part of the proceedings before the Pre-Trial Chamber; and that, at the beginning of the trial, the Prosecution filed a detailed Trial Brief explaining how it intended to prove its allegations and how each item of (actual and prospective) evidence relates to the corresponding factual allegations described in the charges. In addition, specific indications as to the purported relevance and probative value of evidence were also given in the filings through which each batch of items of documentary evidence has been submitted by the Prosecution in the course of the trial, and to which the Defence has been able to respond throughout the proceedings providing its own views. In this context, and reiterating the absence of any indication of an abuse on the part of the Prosecution of its statutory right to submit documentary evidence at trial ‘flood[ing] the “case file” with items of a prejudicial nature’, 286 the proposition by the Defence that it has been prejudiced by the mere fact that ‘there are over 4200 items formally submitted into evidence’ 287 is without merit.

284 Bemba et al. Appeals Judgment , para. 609 (‘even when a trial chamber decides to exercise its discretion to render a ruling on the relevance or admissibility of an item of evidence in the course of the trial, it will need to consider again the relevance, reliability and weight of all submitted evidence that it has not excluded as irrelevant or inadmissible, when assessing, in light of all evidence before it, the guilt or innocence of the accused. In other words, the accused person may, in any case be “forced to invest time and resources in responding to” items of evidence that may end up being disregarded by the trial chamber.’). 285 See Defence Closing Brief , para. 101. 286 See Defence Closing Brief , para. 98. 287 Defence Closing Brief , para. 98.

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As a final observation, it bears emphasis that a preliminary scrutiny on the relevance, probative value and ‘potential prejudice’ of each item of evidence prior to its entering into the evidentiary record of the case is typically designed in order to screen from ‘inappropriate’ material a – separate – trier of facts, most usually a jury. At this Court, the relevant procedural features are significantly different in that the judges of a trial chamber are themselves the triers of facts responsible for the ultimate fact-finding on the guilt or innocence of the accused (which must also be sufficiently reasoned), and are also professional judges capable of disregarding, for such fact-finding, material which is irrelevant or bears no probative value or is otherwise ‘prejudicial’ within the meaning of 288 Article 69(4) of the Statute. They are thus able to assess all items of evidence before them properly, without the need to render individual intermediate rulings on the relevance and probative value of each of those items to prevent unduly compromising the proceedings. Rather, such assessment – conducted as part of the deliberation of the judgment – emerges from its reasoning, in the context of which ‘a trial chamber must 289 indeed explain with sufficient clarity the basis for its determination’. In fact, the requirement of a reasoned judgment makes it possible for the parties and participants to verify precisely how the Chamber evaluated the evidence before it for its decision on the 290 guilt or innocence of the accused, and enables appellate review as appropriate. This requirement constitutes the primary safeguard against a trial chamber erroneously relying on irrelevant or inadmissible evidence or failing to properly consider all relevant aspects of the evidence available to it, in that it enables proper oversight of the chamber’s ultimate assessment of the evidence submitted and discussed before it at trial.

Importantly in this regard, the procedure adopted for the submission of evidence in each individual case has no impact on the quality required of the chamber’s fact-finding, as the Chamber’s duty under Article 74(5) of the Statute to provide ‘a full and reasoned statement of [its] findings on the evidence and conclusions’ remains unaffected. While not every item of evidence eligible to be used for the determination of the guilt or

288 See also Trial Chamber VII, The Prosecutor v. Jean-Pierre Bemba Gombo et al. , Decision on Prosecution Requests for Admission of Documentary Evidence (ICC-01/05-01/13-1013-Red, ICC-01/0501/13-1113-Red, ICC-01/05-01/13-1170-Conf) , 24 September 2015, ICC-01/05-01/13-1285, para. 12. 289 Bemba et al. Appeals Judgment , para. 597. Decision on Prosecution’s Submission of 290 See also Directions on the Conduct of Proceedings , para. 25; Intercept Material , para. 11.

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291

innocence of the accused must in fact be explicitly addressed in the judgment and trial

292

chambers have a degree of discretion as to what to address explicitly in their reasoning, what is at issue in this context is the chamber’s compliance with its statutory duty to

provide sufficient reasons for its determinations. This duty is unrelated to whether the

procedure for submission of evidence in the course of a trial envisaged preliminary,

prima facie determinations of the relevance and probative value of individual items of

293

evidence as a matter of course.

That said, the Chamber observes that in the present case both parties submitted items of

documentary evidence following the procedure set out by the Chamber, and had equal

opportunity to provide their observations and comments, either orally or in writing, on

any item of evidence submitted in the course of the trial, including in terms of its

relevance and probative value. Such arguments made by the parties and participants in

the course of the trial have been duly considered as part of the Chamber’s determination of Dominic Ongwen’s guilt or innocence, and are addressed and disposed of in the

present judgment as appropriate.

ii. Evidence ‘discussed’ at trial

As observed above, the Chamber, in accordance with Article 74(2) of the Statute, is

required to base its decision only on evidence ‘submitted’ and ‘discussed’ before it at

291 Appeals Chamber, The Prosecutor v. Jean-Pierre Bemba Gombo , Public document Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute , 8 June 2018, ICC-01/05-01/08-3636-Red, para. 53 (‘[t]o fulfil its obligation to provide a reasoned opinion, a trial chamber is not required to address all the arguments raised by the parties, or every item of evidence relevant to a particular factual finding, provided that it indicates with sufficient clarity the basis for its decision’); Bemba et al. Appeals Judgment , paras 105-106. 292 Appeals Chamber, The Prosecutor v. Jean-Pierre Bemba Gombo , Public document Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute , 8 June 2018, ICC-01/05-01/08-3636-Red, paras 54-55; Bemba et al. Appeals Judgment , paras 106, 107, 597. 293 See Bemba et al. Appeals Judgment , para. 597 (‘[W]hen a trial chamber, in its decision under article 74 of the Statute, fails to explain sufficiently why it considers an item of evidence – whether documentary or testimonial – to be relevant and with sufficient probative value to be relied upon for its factual analysis (or vice versa) despite issues raised at trial in that regard, what is at issue is the trial chamber’s compliance with its duty under article 74 (5) of the Statute to provide “a full and reasoned statement of [its] findings on the evidence and conclusion” in support of its decision on the guilt or innocence of the accused. In other words, the safeguard of an accused’s right to a reasoned determination on the charges against him or her does not lie in the fact that a trial chamber exercises its discretion to rule on the relevance or admissibility of documentary evidence or rather considers its relevance and probative value as part of the evaluation of the guilt or innocence of the accused. The appellants may raise on appeal […] errors by the Trial Chamber in its assessment of the evidence, including with respect to insufficient reasoning on its evaluation of the evidence and factual findings, in the same way as they could have done had the Trial Chamber decided to exercise its discretion to rule separately on the relevance and/or admissibility of the evidence.’).

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trial. As specified by the Appeals Chamber, what is required is that there has been the opportunity at trial to make arguments on the evidence concerned, irrespective of whether 294 any such arguments are actually made. The principal consideration is that the evidence upon which the Chamber bases its judgment pursuant to Article 74 of the Statute has been introduced during the trial – and has therefore become part of the case record – in a manner that the parties and participants had an opportunity to make submissions as to 295 each item of evidence to the extent they deemed fit.

In the present case, the parties and participants availed themselves of this statutory right to make arguments in relation to the evidence submitted at trial, and the Chamber duly considered such arguments when evaluating the evidence before it. Of particular significance in this regard are the arguments made by the parties and participants in the context of the submission of individual items of evidence (and responses thereto), as well as their closing briefs and closing statements containing the parties and participants’ consolidated views on the entirety of the evidence presented at trial. As recalled above, all these arguments have been considered by the Chamber for the purpose of the present judgment and are addressed herein to the appropriate extent.

2 Testimonial evidence

i. Introductory remarks The testimonial evidence in the present case consists of: the testimony of a total of 130 witnesses given viva voce before the Chamber; the prior recorded testimony of a number of such witness introduced under Rule 68(3) of the Rules; the testimony preserved for trial under Article 56 of the Statute of seven further witnesses; and the prior recorded testimony of a total of other 49 witnesses which were introduced under Rule 68(2)(b) or (c) of the Rules.

As recalled, a total of 130 witnesses testified live before the Chamber in the present 296 case. On a number of occasions, the Chamber allowed the introduction, under Rule

294 Bemba et al. Appeals Judgment , footnote 1256. 295 See also Bemba et al. Trial Judgment , para. 198; Trial Chamber II, The Prosecutor v. Germain Katanga , Public Document Judgment pursuant to article 74 of the Statute , 7 March 2014, ICC-01/04-01/07-3436-tENG (hereinafter: ‘ Katanga Trial Judgment ’), para. 78; Trial Chamber II, The Prosecutor v. Mathieu Ngudjolo Chui , Judgment pursuant to Article 74 of the Statute , 18 December 2012, ICC-01/04-02/12-4, para. 44. 296 69 of these witnesses were called by the Prosecution, 54 by the Defence and seven by the participating victims through their legal representatives.

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68(3) of the Rules, of the prior recorded testimony of some of these witnesses who testified live before it and did not object to such introduction – with both parties having the opportunity to examine them in court. In these instances, the recorded statement complements and forms an integral part of the witness’s viva voce testimony, and the Chamber has accordingly considered the prior recorded testimony together with and in the light of the witness’s testimony given in court, and vice versa.

297 Further, upon request by the Prosecution, the Chamber allowed the submission into 298 evidence of the live testimony of seven witnesses which had been given before the Single Judge of the Pre-Trial Chamber and which had been preserved for trial pursuant 299 to Article 56 of the Statute. The testimonies of these seven witnesses – who were examined by both the Prosecution and the Defence – were video-recorded, and written 300 transcripts of the proceedings were made. The Chamber has viewed these videorecordings in their entirety and consulted the corresponding transcripts, and assessed the relevance and probative value of such evidence in the same way as any other viva voce testimonial evidence before it.

Finally, the Chamber allowed the introduction, pursuant to Rule 68(2)(b) or (c) of the 301 Rules, of the prior recorded testimony of a total of further 49 witnesses. They have been assessed by the Chamber, for the purpose of the present judgment, together with all the other evidence submitted and discussed at trial. Besides the other relevant considerations generally applicable to the assessment of testimonial evidence as set out below, in its evaluation of the prior recorded testimony introduced under Rule 68(2) of the Rules, the Chamber also took into account that the witnesses concerned did not testify before the court and the non-tendering party did not have the opportunity to examine

Prosecution’s request to admit evidence preserved under article 56 of the Statute 297 , 13 June 2016, ICC-02/04- 01/15-464 (with two public annexes). 298 Decision on Request to Admit Evidence Preserved Under Article 56 of the Statute , 10 August 2016, ICC- 02/04-01/15-520. 299 See Decision on the “Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, 27 July 2015, ICC-02/04-01/15-277-Conf (public redacted version available: ICC-02/04-01/15-277-Red ); Decision on the “Second Prosecution application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, 12 October 2015, ICC-02/04-01/15- 316-Conf (public redacted version available: ICC-02/04-01/15-316-Red ). 300 Transcripts of Hearings, 15 September – 17 November 2015, T-8 ; T-9 ; T-10 ; T-11 ; T-13 ; T-14 ; T-15 ; T-16 ; T-17 ; Registry reports on the article 56 proceedings, 27-30 November 2015, ICC-02/04-01/15-351, -352, -353, - 354, -355, -356, -357, -358 (annexing video recordings). 301 The prior recorded testimony of 39 witnesses were introduced by the Prosecution and nine by the Defence under Rule 68(2)(b) of the Rules. One prior recorded testimony was introduced under Rule 68(2)(c) of the Rules upon request by the Prosecution.

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them. Like with any other type of evidence submitted before the Chamber, arguments made by the parties and participants concerning the relevance and probative value of this testimonial evidence that had been made in the course of the trial have been taken into account for the purpose of the present judgment and are explicitly addressed as appropriate.

For the purpose of its assessment of the reliability of any witness’s testimony, the Chamber considered a number of different factors. Such factors include richness of details and coherence of the narrative provided by the witness, as well as the coherence of the testimony with other evidence before the Chamber.

The Chamber has also considered the coherence between the testimony given by the witness and his or her prior accounts in relation to the same facts given in other contexts as emerging from the evidence presented at trial. In this regard, the Chamber notes that throughout the trial, witnesses who testified live before the Chamber have often been asked questions in relation to prior accounts they gave in other contexts. Prior accounts were typically put to witnesses in two distinct situations: (i) when a witness declared themselves unable to respond to a question, in which case a prior account was used to refresh their memory; and (ii) in cases where there existed, in the assessment of the examining party, a discrepancy between the statement given in court and a prior account. In both cases the witness was then given an opportunity to express him- or herself on the accuracy and truthfulness of the prior account, and the relevant part of the prior account – as prompting in-court testimony in reaction – so became incorporated into the 302 testimony. In case of discrepancy between in-court testimony and prior account, the Chamber has carefully considered the content and all circumstances in which such prior account had been made – including, but not limited to, its context, purpose and the (expected) level of details – as well as any explanation for such discrepancy as provided by the witness during the testimony before the Court.

302 See Bemba et al. Appeals Judgment , para. 307; see also, more generally, paras 305-308. This limitation on the reliance on testimonial accounts previously given by a witness outside in-court testimony does not apply to prior recorded testimony (provided by witnesses who testified live before the Court) introduced under Rule 68(3) of the Rules, thus constituting evidence which, in its totality, ‘can be relied upon by the chamber in its determination of the facts at issue’.

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Amongst the relevant factors in the Chamber’s assessment of testimonial evidence is also the consideration whether and to what extent the witness is (or is not) in a position to provide certain information as well as the basis of knowledge on which a particular statement is made. This is particularly the case in those instances where the Chamber is faced with competing versions of events, and therefore has to determine which evidence 303 it considers more probative.

The Chamber also took into account the individual circumstances of the witness, including his or her relationship to the accused, age, the provision of assurances against self-incrimination, indication of bias against the accused – or the lack of such – and/or 304 motives for telling the truth. Witnesses who suffered trauma or were children at the time of the events may also have had difficulty in providing a coherent and complete account, and the Chamber made appropriate allowance for imprecisions or 305 contradictions. The Chamber was also mindful – and has taken due account – of the fact that, given the significant passage of time in this case, the memory of some witnesses 306 may have faded with regard to certain details.

Further factors which might also have an influence on the Chamber’s assessment of evidence given by witnesses who testified live are its immediate impression of the witness during their testimony, the witness’s demeanour and bearing when testifying in court, willingness to respond to questions and spontaneity when responding.

Finally, the Chamber clarifies that the considerations expressed above can by no means be considered an exhaustive list of factors, or a ‘check-list’ of requirements for a witness to be relied upon. Any assessment of testimonial evidence (like of any other type of evidence) is in fact dependent on the specific circumstances at hand. Each statement

303 ICTR, Appeals Chamber, The Prosecutor v. Yussuf Munyakazi , Judgement , 28 September 2011, ICTR-97- 36A-A , para. 118; ICTR, Appeals Chamber, Tharcisse Muvunyi v. The Prosecutor , Judgement , 1 April 2011, ICTR-2000-55A-A , para. 57; ICTR, Appeals Chamber, Mikaeli Muhimana v. The Prosecutor , Judgement , 21 May 2007, ICTR-95-1B-A , para. 103; ICTR, Appeals Chamber, Sylvestre Gacumbitsi v. The Prosecutor , Judgement , 7 July 2006, ICTR-2001-64-A , para. 81; ICTR, Appeals Chamber, Georges Anderson Nderubumwe Rutaganda v. The Prosecutor , Judgement , 26 May 2003, ICTR-96-3-A , paras 29, 501. 304 Similarly Bemba et al. Trial Judgment , para. 202; Trial Chamber II, The Prosecutor v. Mathieu Ngudjolo Chui , Judgment pursuant to Article 74 of the Statute , 18 December 2012, ICC-01/04-02/12-4, para. 51; Lubanga Trial Judgment , para. 106. 305 Similarly Bemba et al. Trial Judgment , para. 203; Trial Chamber II, The Prosecutor v. Mathieu Ngudjolo Chui , Judgment pursuant to Article 74 of the Statute , 18 December 2012, ICC-01/04-02/12-4, para. 53. 306 Similarly Bemba et al. Trial Judgment , para. 203.

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made by a witness is assessed individually – while, at the same time, taking into account, holistically, the entire system of evidence available to the Chamber –, and, accordingly 307 the same witness may be reliable in one part of their testimony, but not in another.

Below, the Chamber sets forth its general considerations with respect to each of the witnesses who provided evidence in these proceedings. The Chamber emphasises that these assessments – which are based on the totality of the evidence before the Chamber and not only on each witness’s evidence alone – must be read in conjunction with the evidentiary discussion further below in the present judgment. Indeed, certain aspects relating to the credibility of a number of witnesses and the reliability of their evidence, as well as to the relevance of their testimony to the Chamber’s disposal of the charges against Dominic Ongwen, are further addressed, as appropriate, in the relevant evidentiary discussion.

The Chamber has structured the overview of testimonial evidence by category of witnesses; it is however understood that this categorisation is only for practical purposes. It does not have a bearing on the Chamber’s assessment of any particular witness, and it is also noted that many witnesses could in fact be included in more than one category.

ii. LRA insiders a. High-level insiders i Kenneth Banya (P-0028) Kenneth Banya’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of 308 the Rules. He is a former LRA member, born in 1945, who served as a senior advisor to Joseph Kony. His statement relates to a wide range of topics in relation to the functioning of the LRA based on his experience in the organisation. The Chamber notes,

Public Version of Judgment on the Prosecutor’s 307 Appeals Chamber, The Prosecutor v. Mathieu Ngudjolo Chui , appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute” , 7 April 2015, ICC-01/04-02/12-271-Corr, para. 168. 308 P-0028 Interview Transcript, UGA-OTP-0217-0054-R01; P-0028 Interview Transcript, UGA-OTP-0217- 0075-R01; P-0028 Interview Transcript, UGA-OTP-0217-0100-R01; P-0028 Interview Transcript, UGA-OTP- 0217-0125-R01; P-0028 Interview Transcript, UGA-OTP-0217-0148-R01; P-0028 Interview Transcript, UGA- OTP-0217-0171-R01; P-0028 Interview Transcript, UGA-OTP-0217-0192-R01; P-0028 Interview Transcript, UGA-OTP-0217-0218-R01; P-0028 Interview Transcript, UGA-OTP-0217-0241-R01; P-0028 Interview Transcript, UGA-OTP-0217-0266-R01; P-0028 Interview Transcript, UGA-OTP-0217-0287-R01; P-0028 Interview Transcript, UGA-OTP-0217-0305-R01; P-0028 Interview Transcript, UGA-OTP-0217-0327-R01. See Decision on the Defence Request under Rule 68(2)(b) , paras 15-17, p. 13.

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however, that Kenneth Banya’s statement that if a man refused to ‘go with a woman’ in

309 310

the LRA, he would be killed, is contradicted by more reliable evidence on the issue. However, the Chamber does not discount the witness’s testimony for this reason and

relies on it where appropriate, as discussed at relevant points of the evidentiary analysis.

ii Hillary Daniel Lagen (P-0040)

Hillary Daniel Lagen’s prior recorded statement was introduced pursuant to Rule

311

68(2)(b) of the Rules. The witness was a former LRA captain; he provided evidence

related to specific individuals and attacks. The witness also commented on the LRA

leadership, specifically the command structure, orders issued by Joseph Kony and the

treatment of abducted women and girls. The Chamber relies on the testimony of Hillary

Daniel Lagen on occasions where it provides corroboration or additional detail in the

discussion of evidence. In a few passages of his testimony, the witness mentioned

Dominic Ongwen and his participation in the attack on Lukodi IDP camp, but as clarified

309 P-0028 Interview Transcript, UGA-OTP-0217-0218-R01, at 0224-26, lines 223-66. 310 See para. 2229 below. 311 P-0040 Interview Transcript, UGA-OTP-0209-0406-R01 (public redacted version available: UGA-OTP-0283- 0114); P-0040 Interview Transcript, UGA-OTP-0209-0436-R01 (public redacted version available: UGA-OTP- 0283-0144); P-0040 Interview Transcript, UGA-OTP-0209-0461-R01 (public redacted version available: UGA- OTP-0283-0169); P-0040 Interview Transcript, UGA-OTP-0209-0497-R01 (public redacted version available: UGA-OTP-0283-0205); P-0040 Interview Transcript, UGA-OTP-0209-0530-R01 (public redacted version available: UGA-OTP-0283-0238); P-0040 Interview Transcript, UGA-OTP-0209-0569-R01 (public redacted version available: UGA-OTP-0283-0277); P-0040 Interview Transcript, UGA-OTP-0209-0602-R01 (public redacted version available: UGA-OTP-0283-0310); P-0040 Interview Transcript, UGA-OTP-0209-0634-R01 (public redacted version available: UGA-OTP-0283-0342); P-0040 Interview Transcript, UGA-OTP-0209-0668- R01 (public redacted version available: UGA-OTP-0283-0376); P-0040 Interview Transcript, UGA-OTP-0209- 0696-R01 (public redacted version available: UGA-OTP-0283-0404); P-0040 Interview Transcript, UGA-OTP- 0209-0732-R01 (public redacted version available: UGA-OTP-0283-0440); P-0040 Interview Transcript, UGA- OTP-0209-0762-R01 (public redacted version available: UGA-OTP-0283-0470); P-0040 Interview Transcript, UGA-OTP-0209-0786-R01 (public redacted version available: UGA-OTP-0283-0494); P-0040 Interview Transcript, UGA-OTP-0209-0813-R01 (public redacted version available: UGA-OTP-0283-0521); P-0040 Interview Transcript, UGA-OTP-0209-0842-R01 (public redacted version available: UGA-OTP-0283-0550); P- 0040 Interview Transcript, UGA-OTP-0209-0877-R01 (public redacted version available: UGA-OTP-0283- 0585); P-0040 Interview Transcript, UGA-OTP-0209-0912-R01 (public redacted version available: UGA-OTP- 0283-0620); P-0040 Interview Transcript, UGA-OTP-0220-0652-R01 (public redacted version available: UGA- OTP-0283-0624); P-0040 Interview Transcript, UGA-OTP-0220-0678-R01 (public redacted version available: UGA-OTP-0283-0651); P-0040 Interview Transcript, UGA-OTP-0220-0704-R01 (public redacted version available: UGA-OTP-0283-0677); P-0040 Interview Transcript, UGA-OTP-0220-0729-R01 (public redacted version available: UGA-OTP-0283-0702); P-0040 Interview Transcript, UGA-OTP-0220-0753-R01 (public redacted version available: UGA-OTP-0283-0726); P-0040 Interview Transcript, UGA-OTP-0220-0779-R01 (public redacted version available: UGA-OTP-0283-0752); P-0040 Interview Transcript, UGA-OTP-0220-0805- R01 (public redacted version available: UGA-OTP-0283-0778); P-0040 Interview Transcript, UGA-OTP-0220- 0833-R01 (public redacted version available: UGA-OTP-0283-0806). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 216-20, p. 109.

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previously, this specific evidence is not relied upon by the Chamber for any 312 determination concerning Dominic Ongwen’s acts and conduct.

In its response to the Prosecution’s request for introduction of Hillary Daniel Lagen’s written testimony, the Defence submitted that he was unreliable, in particular because he claimed at one point to have had the same rank as Vincent Otti but then to have been demoted for his ‘outspoken condemnation of Kony’, because he had issues recalling dates ‘to the point where even the investigators’ questioned the accuracy of the timeline, and because he brought notes to the interview at which his statement was taken which ‘had dates already noted down’. 313 As to the first point, the Chamber observes that Hillary Daniel Lagen stated that he and ‘Otti’ held the same positions as battalion intelligence 314 officers in two battalions at an unspecified time. It is speculative to consider this claim, or the witness’s testimony in relation to his demotion in 2000-2001, 315 as unreliable in the absence of any evidence supporting the assertions of the Defence. On the second point raised by the Defence, the Chamber observes that a witness’s inability to recollect dates of events may make an authoritative dating of those events more difficult, but this does not undermine the reliability of the testimony as a whole. As to the third point, the Chamber notes that the witness explained what the notes were, and that there is no 316 indication of any irregularity. There is no issue with a witness writing down dates or details before his or her testimony. On the contrary, if this facilitates the accuracy of the testimony it is even advisable. In conclusion, the Chamber does not identify any circumstance rendering the evidence provided by Hillary Daniel Lagen unreliable.

iii P-0045 P-0045 testified live before the Chamber with protective measures having received 317 assurances pursuant to Rule 74 of the Rules. P-0045, an LRA fighter who stayed in the organisation between 1990 and 2004, provided testimony about her experiences in the

312 First Decision on Prosecution Applications under Rule 68(2)(b) , para. 216. 313 Corrected Version of “Defence Response to the Prosecution Application to Admit Testimony Pursuant to Rule 68(2)(b) of the Rules of Procedure and Evidence”’, filed on 26 July 2016, 27 July 2016, ICC-02/04-01/15-509- Conf-Exp (confidential redacted version available: ICC-02/04-01/15-509-Conf-Corr-Red; public redacted version available: ICC-02/04-01/15-509-Corr-Red4 ; hereinafter: Defence Response to Prosecution Application under Rule 68(2)(b) ), para. 137. 314 P-0040 Interview Transcript, UGA-OTP-0209-0877-R01, at 0881, lines 99-111. 315 See P-0040 Interview Transcript, UGA-OTP-0209-0436-R01, at 0443, lines 180-89. 316 See P-0040 Interview Transcript, UGA-OTP-0209-0436-R01, at 0458, line 687 – 0459, line 713. 317 P-0045: T-103 ; T-104 ; T-105 .

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LRA, including her participation in the LRA’s attack on Pajule. The witness’s testimony was detailed, candid, comprehensive, and specific. The witness clearly distinguished between events she personally witnessed and information she was given by others. She was very knowledgeable about the LRA, its practices and activities and provided details consistent with what would be expected of a witness who spent many years in the LRA and rose to a position of some power. The Chamber is convinced that the witness testified about her personal experiences and that the witness testified truthfully.

iv P-0070 P-0070 testified live before the Chamber with protective measures and Rule 74 318 assurances. The witness, a former battalion commander of the LRA, testified about his abduction in 1988 at approximately 15 years old, and further gave an account of the general functioning of the LRA, including knowledge expected from an LRA fighter who spent many years in the LRA. He eventually escaped in 2004. The witness recalled in particular names and positions of other LRA fighters. Further, the witness readily admitted when he did not know certain information. There are no issues affecting the credibility of P-0070 and the Chamber accepts his account as truthful.

v P-0085 P-0085 testified live before the Chamber with protective measures, after receiving Rule 319 74 assurances. P-0085, a former LRA commander, testified about his experiences in the LRA, including in relation to the structure and organisation of the LRA, its policy on the abduction and distribution of civilians and the attacks on Pajule and Odek IDP camps relevant to the charges. P-0085’s testimony was coherent, clear and comprehensive. The witness explained how he came to have certain information, distinguishing between events he witnessed himself and events he heard about from others. He offered detailed information in line with what the Chamber would expect of a witness in his position, for example, evidence related to the structure of the LRA and the names and ranks of officers. There are some slight inconsistencies surrounding the date of the witness’s escape from 320 the bush. The Chamber views such inconsistencies as minor and they did not

318 P-0070: T-105 ; T-106 ; T-107 . 319 P-0085: T-158 ; T-159 . 320 P-0085 testified that he escaped from the LRA on 24 May 2004. P-0085: T-158 , p. 44, line 23 – p. 45, line 5. When questioned as to why he told the Prosecution that he escaped on 24 April 2004 during his initial interview,

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undermine its finding that the witness was generally credible. In the Chamber’s view, the

evidence suggests that the witness escaped from the LRA in late May 2004.

vi P-0142

P-0142 testified live before the Chamber with protective measures, after receiving Rule

321 74 assurances. P-0142, a former , testified about his

experiences in the LRA, his knowledge of Dominic Ongwen, the attacks on Odek and

Lukodi IDP camps relevant to the charges and the experiences of women and girls in the

LRA. P-0142 was in the Sinia brigade from 1994 to 2004. P-0142 was a clear and

confident witness. His testimony was comprehensive and the witness offered evidence

with a level of depth that spoke to his first-hand knowledge and personal experiences in

the LRA – for example, P-0142’s testimony about the command structure of the LRA

and the hierarchy within the group was detailed, contextualised and consistent with other

322 evidence, as well as his testimony about the number of so-called ‘wives’ in Sinia

323 brigade. The witness was candid about his close relationship with Dominic Ongwen

while they were in the LRA, calling him his ‘boss’, ‘friend’ and ‘brother’. 324 The

Chamber notes that at times, the witness appeared to be attempting to minimise the

325 implications of the LRA actions as well as his own role in attacks. However, this did

not undermine the Chamber’s view of his general credibility. Indeed, the witness was at

326 times candid about his account of events which incriminated Dominic Ongwen, thus

P-0085 testified that when he escaped he thought it was April but after some time he realised it was May. P-0085: T-159 , p. 17, lines 11-23. The Chamber considers his explanation of the discrepancy reasonable given the circumstances of the years the witness spent in the bush and his escape. The Chamber also notes the Defence’s reference to a intercepted radio communication between Joseph Kony and other LRA commanders discussing P-0085’s escape . P-0085: T-159-CONF, p. 23, line 21 – p. 26, line 25. In the Chamber’s view the exact date of the witness’s escape in May remains unclear. However, the divergent dates concern a period of four days at most. Considering that the other details of the escape are consistent, the fact that the event happened almost 14 years ago at the time of questioning and the witness’s demeanour on that matter (his genuine attempts to try to clear up the inconsistency), the discrepancy does not affect the Chamber’s view of P-0085’s overall credibility. 321 P-0142: T-70 ; T-71 ; T-72 ; T-73 . 322 See P-0142: T-70-CONF, p. 17, line 3 – p. 24, line 23. 323 See para. 2231 below. 324 P-0142: T-73 , p. 8, line 17 – p. 9, line 1. 325 See P-0142: T-70 , p. 34, line 5 – p. 35, line 14. See also section IV.C.8 below. In the Chamber’s view, the witness was reticent about speaking about civilians and the harms they suffered and downplayed his role in the Lukodi IDP camp attack. 326 See P-0142: T-70 , p. 43, lines 13-15, p. 46, line 12 – p. 49, line 6.

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bolstering the Chamber’s view of his credibility given his very positive relationship with Dominic Ongwen.

vii P-0144 P-0144 testified live before the Chamber with protective measures, having received Rule 327 74 assurances. The witness, a former LRA intelligence officer, testified about his abduction and his experiences in the LRA, including his observations of the Pajule IDP camp attack. P-0144’s testimony was detailed and comprehensive. He explained the sources of his information and clearly delineated between events that he personally witnessed and information he came to learn from others. He was clear about events he 328 could no longer recall, even when faced with his previous recollection. The witness provided particularly relevant and credible testimony about Dominic Ongwen as well as about Dominic Ongwen’s role in the Pajule attack.

The witness readily admitted that he had not been entirely forthcoming to the Prosecution 329 about his role in the Pajule IDP camp attack. The witness explained that he had done 330 this out of a desire to avoid further interviews. The Chamber notes that the witness was prompt and unequivocal in his admission and provided an explanation without hesitance or ambiguity. The Chamber does not consider the witness’s initial reticence to the Prosecution to have a broader impact on the credibility of the evidence he provided, under oath, before the Chamber.

viii P-0205 P-0205 testified live before the Chamber with protective measures, after receiving Rule 331 74 assurances. P-0205, a former LRA fighter, testified about his role as an LRA commander, his knowledge of Dominic Ongwen, the attacks on Lukodi and Odek IDP camp relevant to the charges and the treatment of women in the LRA. P-0205 was a calm, restrained and forthcoming witness. His recollection was detailed and precise. His testimony was comprehensive and included the kind of details that the Chamber would

327 P-0144: T-91 ; T-92 . 328 P-0144: T-91 , p. 38, line 14 – p. 39, line 11 (stating that he could no longer recall whether he saw Dominic Ongwen in the centre of Pajule IDP camp during the attack). 329 P-0144: T-91 , p. 57, line 19 – p. 59, line 11 (The witness had initially denied participating in the Pajule attack in his interview with the Prosecution). 330 P-0144: T-91 , p. 57, line 19 – p. 59, line 11. 331 P-0205: T-47 ; T-48 ; T-49 ; T-50 ; T-51 .

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expect from a witness with his rank and time spent in the LRA. For example, the Chamber particularly notes his testimony about the Sinia brigade’s military structure; the officers 332 sent on the Lukodi attack as well the abduction and distribution of women in the LRA. The Chamber is of the view that his testimony was as would be expected from a witness who testified to events he actually experienced. The witness distinguished clearly between information he gained from personal experiences as opposed to events he was informed about.

333 Contrary to the Defence suggestion, and as discussed further in the evidentiary discussion below, the Chamber does not find that the witness contradicted himself by recalling information in his testimony that were not discussed in his earlier interviews 334 with the Prosecution. These aspects of the witness’s testimony did not undermine the Chamber’s view of the general credibility of his accounts.

ix P-0209

P-0209 testified live before the Chamber with protective measures having received Rule 335 74 assurances. The witness, a former , testified about his abduction and his experiences in the LRA, including his role in the attack on Pajule IDP camp relevant to the charges. P-0209 offered his testimony in a calm and confident manner. His demeanour did not change regardless of the identity of the questioning party. His testimony was detailed and contextualised. The witness provided noteworthy evidence regarding the effects of the initiation ceremony and the LRA’s spiritualism on fighters. 336 However, the Chamber is of the view that despite receiving Rule 74 assurances, P-0209 appeared to be attempting to minimise his involvement in the LRA’s activities. 337 However, the Chamber notes that his testimony is generally consistent with other reliable evidence.

332 See P-0205: T-47-CONF, p. 52, line 20 – p. 54, line 22; T-48-CONF, p. 18, line 13 – p. 30, line 14, p. 50, line 25 – p. 55, line 24. 333 Defence Closing Brief , paras 366, 416. 334 See P-0205: T-47 , p. 43, lines 12-21; T-47-CONF, p. 54, line 10-16; T-50 , p. 43, line 5 – p. 46, line 1; T-50- CONF, p. 53, line 1 – p. 56, line 11; T-51-CONF, p. 6, line 18 – p. 17, line 22. The alleged contradictions relate to his testimony about whether Dominic Ongwen ordered an attack on civilians in Odek and Lukodi, and whether the witness reported seeing civilian deaths in Lukodi. 335 P-0209: T-160 ; T-161 . 336 P-0209: T-161 , p. 50, line 8 – p. 52, line 16. 337 See for example P-0209: T-161-CONF, p. 62, line 9 – p. 64, line 23 (the witness’s testimony in relation to his roles and ranks in the LRA and his participation in certain attacks).

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x P-0231 P-0231 testified live before the Chamber with protective measures, having received Rule 338 339 74 assurances. P-0231, a former LRA fighter, who was abducted in 1994, testified about his time as an officer in Sinia brigade’s Oka battalion, his knowledge of Dominic Ongwen and various attacks. P-0231 was a forthright witness, distinguishing between events he witnessed personally and matters he learned about through other means. His testimony was detailed and his accounts are consistent with what would be expected of a witness who personally experienced the events he discussed. He eventually escaped 340 from the LRA in 2007.

The Chamber notes that the witness testified to having a close relationship with Dominic 341 Ongwen while he was in the bush, and believed that Dominic Ongwen saved his life 342 while they were both in the LRA. Perhaps for this reason, there are aspects of the witness’s testimony where he appears to be minimising Dominic Ongwen’s actions. For example, the witness claims that he never saw anyone young in Dominic Ongwen’s 343 house. Such a statement is not credible in light of the testimony of other reliable witnesses. However, the Chamber also notes that much of the witness’s testimony is consistent with other reliable evidence heard in this case.

xi P-0245 P-0245 testified live before the Chamber with protective measures, including voice 344 distortion, after receiving Rule 74 assurances. P-0245, a former LRA fighter, testified about his experiences in the LRA, his knowledge of Dominic Ongwen and several attacks by the LRA, including the attacks on Lukodi and Odek IDP camps that are relevant to the charges.

338 P-0231: T-122 ; T-123 . 339 P-0231: T-122-CONF, p. 27, lines 2-5. 340 P-0231: T-122-CONF, p. 30, lines 16-19. 341 P-0231: T-123 , p. 81, line 22 – p. 82, line 6. 342 P-0231: T-123-CONF, p. 12, line 14 – p. 13, line 9. 343 P-0231: T-122 , p. 72, line 4 – p. 73, line 3. 344 P-0245: T-98 ; T-99 ; T-100 ; T-101 .

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The Chamber found many aspects of this witness’s testimony, particularly after his first 345 defection in 2003, dubious. The witness testified that he returned to the LRA later the same year and participated in the Odek attack and heard the orders for the Lukodi 346 attack. The Chamber is not convinced that the witness was with the LRA during this period. This witness was a prominent member of the LRA. Had he returned to the group, other LRA fighters who knew him would have known and testified accordingly. Yet in these proceedings, and offered credible evidence that the witness returned 347 to the LRA only sometime in . The Chamber notes that two witnesses testified in general terms that P-0245 was present around the time period of the Odek, Lukodi and 348 Abok attacks, however the Chamber places more weight on the testimony of witnesses like and , who provided more specific and contextualised testimony of the timing of P-0245’s return.

The Chamber’s view is further compounded by the divergence between his testimony and that of other witnesses. For example, P-0245 identified Okwonga Alero as one of the leading LRA commanders who issued the commands to attack Odek IDP camp attack 349 along with Dominic Ongwen. No other witness credibly testified to this effect. Further, other aspects of his testimony, such as the evidence he provided about his 350 while with the LRA, appear convoluted and implausible. The witness was 351 evasive, equivocal, and unconvincing when explaining his criminal charges.

345 See P-0245: T-99-CONF, p. 22, lines 5-9; Defence Closing Brief , paras 340-45, 361, 365, 379, 393-95, 403, 412, 432. 346 P-0245: T-99 , p. 49, line 15 – p. 75, line 24; T-100-CONF, p. 8, line 11 – p. 11, line 6 (testifying that he was with the LRA from roughly October 2003 to January 2005). 347 See

348 See

349 See P-0245: T-99 , p. 49, line 15 – p. 52, line 23. 350 See P-0245: T-99-CONF, p. 27, lines 4-19, p. 33, line 14 – p. 38, line 25; T-100-CONF, p. 59, line 23 – p. 60, line 21; T-101-CONF, p. 4, line 15 – p. 9, line 3, p. 13, line 25 – p. 20, line 2. 351 P-0245: T-100-CONF, p. 61, line 17 – p. 65, line 12.

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The Chamber notes the Prosecution contention that the logbooks’ corroboration of P- 0245’s account of the attack at Palaro (Labworomor) in November 2003 indicates the 352 reliability of his account, suggesting that this proves that P-0245 was indeed back in the LRA by late 2003. However, the fact referred to by P-0245, i.e. that Dominic Ongwen used UPDF uniforms to enter a bar and then opened fire on UPDF inside, was well 353 354 known – and there is evidence that it was reported on public radio – so the Chamber 355 does not consider it significant that P-0245 knew this detail. Other witnesses who 356 testified to being present in that same attack did not attest to P-0245’s presence. The Chamber is of the view that the unreliability of the witness’s testimony as to the time of his return to the LRA – coupled with the fact that the witness’s offered false testimony concerning events that he thus could not have witnessed – is so fundamental that the Chamber cannot but doubt the rest of his testimony, including his testimony in relation to the period of time in which the witness was undoubtedly a prominent member of the LRA. Therefore, the Chamber does not rely on the testimony of P-0245.

xii Joseph Okilan (D-0019) 357 Joseph Okilan testified live before the Chamber. He testified about joining the Uganda People’s Army in 1987 and his subsequent stay within the LRA in Sudan and Uganda until his escape in 1999. He was at some point battalion commander, and knew Dominic Ongwen in the bush. It is noted that Joseph Okilan testified, in relation to Joseph Kony’s authority, that ‘if you don’t follow Kony’s commands, that means death is assured for you’. 358 359 In light of all the other evidence, this statement is not credible. In addition, the Chamber considers that a natural explanation for this statement is the fact that the witness occupied a relatively high position in the LRA hierarchy, and was motivated to minimise

352 See Prosecution Closing Brief , para. 56, n. 230. 353 See P-0309: T-61 , p. 17, line 18 – p. 19, line 16, p. 22, lines 5-7; P-0372: T-148 , p. 33, line 13 – p. 35, line 25. See also Enhanced audio recording, UGA-OTP-0239-0101; P-0059: T-37 , p. 42, line 18 – p. 47, line 15; P-0016: T-33 , p. 40, lines 12-23. 354 See Enhanced audio recording, UGA-OTP-0239-0101; P-0059 Tape 721 Transcript, UGA-OTP-0258-0791- R01, at 0795; P-0059: T-37 , p. 43, lines 15-19. 355 P-0245: T-99 , p. 41, lines 14-24. 356 See 357 D-0019: T-236 . 358 D-0019: T-236 , p. 16, line 24 – p. 17, line 8. 359 See paras 866-873 below.

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his own responsibility. With this clarification, the Chamber considers Joseph Okilan generally reliable.

xiii D-0027 D-0027, a former LRA fighter, testified live before the Chamber with protective 360 measures. D-0027, a former LRA commander, testified about his abduction as a child in 1990, his stay in the LRA and his knowledge of Dominic Ongwen as a young abductee and commander. D-0027 provided in particular a detailed and comprehensive narrative of his experiences in the LRA, including spiritual traditions within the organisation and his relationship with Dominic Ongwen. The details provided by the witness indicate that he indeed knew Dominic Ongwen and that the witness testified credibly of events that he personally experienced.

xiv D-0032 D-0032 testified live before the Chamber with protective measures, having received Rule 361 74 assurances. D-0032, a former LRA commander, testified about his experiences in the LRA and about LRA structure, policy and rules. D-0032 offered detailed and comprehensive testimony. His testimony was contextualised and replete with the kind of details that indicated that the witness was indeed in the position to have the information he testified in relation to. The Chamber notes that much of D-0032’s testimony was consistent with other reliable evidence heard in these proceedings.

However, D-0032 was not reliable on certain points, for example, the way ‘courtship’ 362 worked in the LRA. Here, the witness’s testimony stands in stark contrast to other reliable evidence offered in these proceedings. The Chamber does not consider that D- 0032’s testimony was purposely untruthful in relation to this aspect of testimony, rather, the witness attempted to minimise the impact and severity of the LRA’s actions. The Chamber also notes that the witness gave very different statements about the role of 363 Dominic Ongwen in the attack on Odek IDP camp to the Defence and the Prosecution.

360 D-0027: T-202 . 361 D-0032: T-199 ; T-200 ; T-201 . 362 D-0032: T-200 , p. 12, line 3 – p. 15, line 23; T-201 , p. 39, lines 17-23, p. 42, line 10 – p. 47, line 9. 363 See D-0032: T-200 , p. 24, line 6 – p. 26, line 9; T-201 , p. 16, line 25 – p. 26, line 4 (to the Prosecution, the witness stated that he heard Dominic Ongwen speak to Joseph Kony on the radio requesting to attack Odek. To the Defence, the witness stated that it was Okwonga Alero who spoke with Joseph Kony).

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In court, the witness testified that his statement to the Prosecution that Dominic Ongwen requested to go and fight at Odek was incorrect, and that a different commander made 364 that request. When asked why he told the Prosecution’s investigators that Dominic Ongwen made this request, the witness stated:

I told them that it does not necessarily mean that’s what I said, but I said everybody was listening to what Kony was saying and there were other commanders who were supporting what Kony was saying. Because if your commander speaks you have to agree with what he is saying and confirm that you are going to take the relevant 365 action that he wants you to do. The Chamber considers the witness’s explanation of the discrepancy evasive and unpersuasive. Further, his in-court testimony is inconsistent with other available reliable evidence as to the role of Dominic Ongwen in the planning of the attack on Odek IDP 366 camp. The Chamber is convinced that the information the witness offered to the Prosecution was the truthful account.

xv Acama Jackson (D-0074) Acama Jackson is a priest and former LRA member, who testified live before the 367 Chamber. He spent about 17 years in the LRA and provided certain relevant evidence about the organisation, including about the treatment of abducted women and girls and about Joseph Kony’s spiritualism. The Chamber is satisfied that the witness testified credibly about events he personally experienced. He provided details in keeping with what could be expected of a witness who spent a significant time in the LRA.

xvi Alfred Arop (D-0092) 368 Alfred Arop testified live before the Chamber. Alfred Arop, a former LRA fighter, testified about his experiences in the LRA, the LRA’s structure, membership and policies and the attacks on Pajule and Odek IDP camps relevant to the charges. The Chamber finds the testimony of this witness generally credible. Alfred Arop provided clear and detailed testimony. His testimony was comprehensive, chronological and his narrative included the kinds of details that indicate he spoke of his actual personal experiences.

364 D-0032: T-201 , p. 22, lines 1-6. See D-0032: T-201 , p. 20, line 4 – p. 26, line 4, p. 49, line 23 – p. 50, line 17. 365 D-0032: T-201 , p. 25, line 23 – p. 26, line 3. 366 See section IV.C.7.iii. 367 D-0074: T-187 ; T-188 . 368 D-0092: T-208 ; T-209 .

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The witness clearly distinguished between what he witnessed himself and events he was informed of by other persons.

The Chamber is of the view that the press interviews in which the witness spoke of his belief that Dominic Ongwen and LRA fighters such as him should not be prosecuted and 369 should instead be granted amnesty does not undermine his credibility. When questioned about these interviews, Alfred Arop readily admitted that these were his 370 371 views. He also stated that he knew and liked Dominic Ongwen. Witnesses are not blank slates, absent of personal opinions about the proceedings or of the accused. There is no evidence suggesting that this witness’s views of the accused and the proceedings impacted the truthfulness of the evidence he offered to the Court. His testimony was internally consistent, coherent and largely consistent with other reliable evidence on record.

Of greater importance is the recent contact between the witness and former LRA fighters. When questioned about these contacts, Alfred Arop stated that he had been contacted by other former LRA fighters who were attempting to establish whether he had dealings 372 with the Court. Alfred Arop testified that they did not tell him ‘not to say anything bad about Dominic Ongwen’ or other fighters and that he never admitted to the former 373 fighters that he was testifying before the Court. On the face of the evidence before the Chamber, there is no reason to doubt the validity of the witness’s testimony. Absent such evidence and given that his testimony is largely consistent with other reliable evidence on the record, the Chamber finds that this contact with former LRA fighters does not undermine the witness’s credibility.

xvii Charles Lokwiya (D-0134) 374 Charles Lokwiya testified live before the Chamber. Charles Lokwiya, a former LRA fighter, provided testimony in relation to his experiences in the LRA, and in particular

369 See D-0092: T-209 , p. 15, lines 18-25, quoting Aislinn Laing, ‘As Kony’s commander faces trial in The Hague, Ugandans recount tales of horror they endured’, in The Telegraph (21 January 2016), UGA-OTP-0286-0650, at 0655; D-0092: T-209 , p. 16, line 18 – p. 17, line 1, quoting Aislinn Liang, ‘A Lord’s Resistance Army commander goes on trial but Joseph Kony still eludes justice’, in Time (21 January 2016), UGA-OTP-0286-0647, at 0648. 370 D-0092: T-209 , p. 16, lines 1-5, p. 17, lines 21-25. 371 D-0092: T-209 , p. 14, lines 10-11. 372 D-0092: T-209-CONF, p. 18, line 14 – p. 22, line 9, p. 23, lines 1-23. 373 D-0092: T-209-CONF, p. 23, line 24 – p. 24, line 4. 374 D-0134: T-240 ; T-241 .

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his participation in the October 2003 attack on Pajule IDP camp. Charles Lokwiya’s testimony was detailed, comprehensive and specific. His testimony contained details that demonstrate that Charles Lokwiya spoke of his personal experiences and that he spent many years in the LRA. The witness clearly explained the source of the information he provided and delineated between events he experienced personally and information which he learnt from others. The witness was also clear in informing the Chamber when he did not recall an event.

The Chamber notes that Charles Lokwiya denied being under LRA ‘punishment’ at the 375 time of the Pajule IDP camp attack. However, other witnesses credibly testified that Charles Lokwiya was indeed on punishment at the time of the attack. 376 Given the in this regard, the Chamber is of the view that in this instance, Charles Lokwiya was not truthful and that he was indeed on punishment at the time of the attack. However, the Chamber notes that despite this issue, it found the rest of the witness’s testimony credible, noting particularly that it is generally consistent with other reliable evidence heard in these proceedings.

b. Lower-level insiders i P-0015 P-0015’s two prior recorded statements were introduced pursuant to Rule 68(2)(b) of the 377 Rules. P-0015, a former LRA abductee who lived in Vincent Otti’s household, offered testimony about the Pajule IDP camp attack. The witness was abducted in June 2003 at the age of 13 and returned from captivity by March 2004. The witness clearly explained the source of her information and gave details that supported the credibility of the information provided. P-0015 provided evidence that was comprehensive and rich with the type of details that shows that she spoke about her personal experiences. Further, the Chamber considers that the witness’s testimony was generally consistent with other 378 reliable evidence. The Chamber notes that in her prior recorded statement of 2004, P-

375 D-0134: T-241-CONF, p. 12, line 7 – p. 13, line 6. 376 See P-0138: T-121 , p. 37, line 17 – p. 38, line 5 (Lukwiya was punished for failing to carry out an order. He was made to walk barefoot). 377 P-0015 First Statement, UGA-OTP-0043-0131-R01 (public redacted version available: UGA-OTP-0283- 0063); P-0015 Second Statement, UGA-OTP-0191-0254-R01 (public redacted version available: UGA-OTP- 0283-0083). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 43-50, p. 107. 378 See the testimonies of P-0045, P-0138, P-0142, P-0101.

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0015 stated that she had not heard of ‘Dominic Ongwen’, while in the second prior recorded statement, given in 2006, she stated that she had heard of ‘Dominic Ongwen’ but had never seen him and that she had heard of and seen ‘Odomi’ but could not 379 380 remember where. Contrary to a submission by the Defence, the Chamber does not consider this alleged ‘inconsistency’ significant. Noting the short time the witness spent in captivity, her position within Vincent Otti’s household and her young age at the time of her captivity, the Chamber finds it understandable that the witness recalled the name Dominic Ongwen in 2006 but not in 2004 and made no connection between Dominic Ongwen and Odomi.

ii P-0018 381 P-0018 testified live before the Chamber with protective measures. P-0018, a former LRA fighter, testified in relation to her experience as an LRA attacker in the attack on Lukodi camp. P-0018 was a quiet and reserved, somewhat timid, witness. Yet, her testimony was detailed and generally clear. P-0018 had been abducted by the LRA in 2003 and was part of the LRA force that attacked Lukodi IDP camp in 2004. P-0018’s account of events was consistent with what would be expected of a witness in her position and one who only spent a short time in the LRA. For example, the witness was specific and detailed about her participation in the attack on Lukodi IDP camp and the details of her escape from the LRA, but was more vague about matters relating to LRA hierarchy 382 and structure. Noting that the witness was not a trained and armed soldier, and rather 383 was in the household of a low ranking LRA officer, the Chamber ascribes no weight to her lack of knowledge of aspects of the LRA.

The Chamber is of the view that the inconsistencies in the witness’s account of the time 384 of her abduction are insignificant. At the same time, the Chamber notes that the witness’s testimony in relation to the LRA fighters killed in Lukodi IDP camp is confused

379 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 101; P-0015 Second Statement, UGA-OTP-0191- 0254-R01, at para. 40. 380 Defence Response to Prosecution Application under Rule 68(2)(b) , para. 140. 381 P-0018: T-68 ; T-69 . 382 See P-0018: T-68 , p. 38, line 13-25, p. 40, lines 5-8, p. 42, lines 21-24, p. 51, line 24 – p. 52, line 16; T-69 , p. 3, lines 2-7, p. 31, lines 2 – p. 32, line 1. 383 P-0018: T-69 , p. 43, lines 7-9. 384 P-0018: T-69 , p. 26, lines 2-18 (the witness could not recall whether she was abducted on 14 June 2003 or 6 July 2003).

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385 and unclear. In this context, the Chamber notes that the witness did not go to the barracks in the course of the Lukodi attack. The Chamber also notes that her testimony was generally consistent with other reliable evidence heard in these proceedings. 386 Concerning P-0018’s age at the time of her abduction, in June or July 2003 the witness testified that she was ‘about 14’ at the time of her abduction. 387 However, during her 388 testimony in May 2017, she stated that she was 26. Accordingly, the Chamber considers her to have been 12 years old when she was abducted.

iii P-0054 P-0054 testified live before the Chamber with protective measures after receiving Rule 389 74 assurances. P-0054, a former LRA fighter, testified about his experiences in the LRA, including his personal participation in the LRA attacks on Odek and Abok IDP camps. P-0054 was a forthcoming and thoughtful witness. The witness’s narration was comprehensive and generally chronological, filled with the type of detail that showed that the witness spent many years with the LRA. The Chamber especially notes that P- 0054 frequently distinguished between events he had witnessed himself, such as the attack on Abok IDP camp, and events he had heard about, such as the attack on Lukodi IDP camp.

The Chamber also notes that concerning both the Abok and Odek IDP camp attacks, the witness testified that he was amongst the groups that attacked the barracks and did not 390 enter the centre himself. However, the Chamber does not necessarily disregard P- 0054’s evidence as to the occurrences at the centre of the camps during the attacks, for example if the witness gained information in the aftermath of the attack from other LRA fighters who had gone into the centre of the camp. In light of the foregoing, the Chamber considers that it may generally rely on P-0054’s testimony, in particular on the structure

385 P-0018: T-69 , p. 52, line 15 – p. 53, line 10, p. 57, line 19 – p. 59, line 25. 386 The Chamber notes that both dates were put to the witness as her date of abduction, 14 June and 6 July 2003, and that the witness was not able to tell which one was the precise date of her abduction. P-0018: T-69 , p. 26, lines 2-17. However, for the purposes of this discussion, the Chamber notes that the difference between those two dates of her abduction is irrelevant. 387 P-0018: T-68 , p. 32, lines 19-24. 388 P-0018: T-68 , p. 32, lines 10-11. 389 P-0054: T-93 ; T-94 . See P-0054: T-93 , p. 3, lines 21-24. 390 P-0054: T-93 , p. 19, lines 13-14, p. 35, lines 2-5, p. 53, line 24 – p. 54, line 6.

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and membership of the LRA, as well as its disciplinary regime, the use of children in the

LRA and the aspects of the Abok and Odek IDP camp attacks in which he participated.

iv Aldo Odoch (P-0096)

Aldo Odoch’s prior recorded statements were introduced pursuant to Rule 68(2)(c) of the

391 Rules. Aldo Odoch was a Lango man born in 1986, who had been abducted at the age

of 15 years in 2002. He testified about his abduction and his time in the LRA, including

his experiences as an escort of LRA commander Okot Odhiambo and his participation in

the attacks on Abia and Barlonyo. The Chamber notes that his statement was both

internally consistent and consistent with other reliable evidence.

v P-0097

392 P-0097 testified live before the Chamber, with protective measures. The Chamber

found the evidence provided by P-0097, an abductee and former LRA fighter, credible.

When describing the facts contained in his testimony, the witness used detailed language,

readily admitted when he did not know the answer to a question and described events in

a manner which convinces the Chamber that P-0097 was abducted by the LRA and spent

a considerable period of time as an LRA soldier.

Regarding the issue of P-0097’s age at the time of his abduction, the Chamber notes that

393 there is contradicting evidence. P-0097 stated that he was born in 1993,

which would have made him 11 at the time of the abduction in February 2005. He states

391 P-0096 Interview Transcript, UGA-OTP-0228-1698-R01 (public redacted version available: UGA-OTP-0283- 0855); P-0096 Interview Transcript, UGA-OTP-0228-1739-R01 (public redacted version available: UGA-OTP- 0283-0896); P-0096 Interview Transcript, UGA-OTP-0228-1778-R01 (public redacted version available: UGA- OTP-0283-0935); P-0096 Interview Transcript, UGA-OTP-0228-1814-R01 (public redacted version available: UGA-OTP-0283-0971); P-0096 Interview Transcript, UGA-OTP-0228-1851-R01 (public redacted version available: UGA-OTP-0283-1008); P-0096 Interview Transcript, UGA-OTP-0228-1862-R01 (public redacted version available: UGA-OTP-0283-1019); P-0096 Interview Transcript, UGA-OTP-0228-1901-R01 (public redacted version available: UGA-OTP-0283-1058); P-0096 Interview Transcript, UGA-OTP-0228-1938-R01 (public redacted version available: UGA-OTP-0283-1095); P-0096 Interview Transcript, UGA-OTP-0228-1974- R01 (public redacted version available: UGA-OTP-0283-1131); P-0096 Interview Transcript, UGA-OTP-0228- 2014-R01 (public redacted version available: UGA-OTP-0283-1171); P-0096 Interview Transcript, UGA-OTP- 0228-2056-R01 (public redacted version available: UGA-OTP-0283-1213). See Decision on the Prosecution’s Request to Add Items to its List of Evidence, to include a Witness on its List of Witnesses and to Submit Two Prior Recorded Testimonies under Rule 68(2)(b) and (c) , 22 November 2016, ICC-02/04-01/15-600, paras 30-35, p. 15. 392 P-0097: T-108 ; T-109 . 393 P-0097: T-108-CONF, p. 6, lines 2-5.

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394 he knows his birthdate since his parents told him the date. However, there is

395 documentary evidence which indicates slightly different birthdates: his birth certificate

396 and his national ID both indicate 1993, his baptism document states

397 1993. Further, a school identity card states that the witness was 20 years

398 old on 2015, an immunisation card states that the witness was aged 12 on

399 2003, a school progress card from the year 2001 indicates the witness’s

400 age as 10 and a second student identity card, issued on 2011, states the

witness’s age as 16. 401 All those documents are incompatible with the date of birth

provided by the witness, there is no information as to the production of the documents

and the documents do not indicate the same date of birth consistently either. Considering

the contradicting evidence, the Chamber finds it impossible to determine P-0097’s

precise date of birth. However, the Chamber notes the evidence indicates that the witness

402 was born at the earliest on 1990 and was therefore at the most 14 years old

in February 2005. Accordingly, the Chamber finds that P-0097 was under the age of 15

at the time of his abduction.

Regarding the Defence’s submission that there are ‘major contradictions, inconsistencies’

403 which make P-0097’s testimony as a whole unreliable, the Chamber does not find any

reason to disregard the witness’s testimony as a whole. The parts of the witness’s

404 testimony which the Defence references in support of its submission are instances

where the witness answered questions concerning his prior recorded testimony. The fact

that the witness clarifies and further explains his testimony is a matter assessing the

evidence in the concrete instance but does not justify to generally discard his testimony.

The Chamber also notes that P-0097 conceded that it was difficult for him to determine

405 the age of people based only on their appearance when they are not his age and stated

394 P-0097: T-108-CONF, p. 6, lines 6-7. 395 P-0097: T-108 , p. 63, lines 17-22; UGA-OTP-0272-0939. 396 P-0097: T-108 , p. 64, lines 7-9; UGA-OTP-0269-0735. 397 P-0097: T-108 , p. 59, line 24 – p. 60, line 3; UGA-OTP-0258-0509. 398 P-0097: T-108 , p. 61, lines 11-22; UGA-OTP-0263-2470. 399 P-0097: T-108 , p. 61, lines 1-10; UGA-OTP-0269-0737, at 0738. 400 P-0097: T-108 , p. 61, line 25, p. 62, lines 14-16; UGA-OTP-0269-0739. 401 P-0097: T-108 , p. 62, line 18 – p. 63, line 2; UGA-OTP-0269-0740, at 0741. 402 According to the immunisation card stating that he was 12 years old on 2003. 403 Defence Closing Brief , para. 525. 404 Defence Closing Brief , n. 868-74. 405 P-0097: T-109 , p. 13, lines 22-25.

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that one of the factors used to determine how old other abductees were was his own 406 age. The Chamber – also in light of the fact that it is unable to establish the witness’s precise age on the basis of the available evidence – will take this into account in its consideration the age of person whose age was estimated by the witness.

vi P-0130 P-0130’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 407 Rules. P-0130, a former LRA fighter, testified about his abduction and his experiences in the LRA, including his participation in the attack on Pajule IDP camp relevant to the charges. The Chamber notes that the witness was a low level fighter and thus his lack of knowledge or errors about some of the operational aspects of the attack are 408 understandable. The Chamber is of the view that P-0130’s testimony of his specific personal experiences is generally credible.

vii P-0138 P-0138 testified live before the Chamber with protective measures and received Rule 74 409 assurances. The witness testified about his abduction in 1996, when he was 14 years old, about being an escort of one of the commanders of Oka battalion as well as being an escort of Vincent Otti in Control Altar and about his observations of the October 2003 Pajule IDP camp attack. He eventually escaped from the LRA in 2003. P-0138 was a valuable and honest witness. The witness was frank about his experience in the LRA, for example when he spoke in a detailed and clear manner about the extent in which killing and pillaging were part of the LRA attacks. The Defence submission concerning P-0138 410 and stating that his testimony is ‘riddled with contradictions’, concerns factual allegations related to events in Teso which are not part of the charges and are not relied upon by the Chamber for the purposes of the judgment. This has no effect on the Chamber’s assessment of the witness in general. The Chamber notes that the witness

406 P-0097: T-108 , p. 29, lines 8-11. 407 P-0130 Statement, UGA-OTP-0191-0272-R01 (public redacted version available: UGA-OTP-0283-1242). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 64-67, p. 109. 408 See in particular P-0130 Statement, UGA-OTP-0191-0272-R01, at paras 45, 47, 58 (his testimony in relation to Vincent Otti’s and Raska Lukwiya’s participation in the attack and his testimony that Bogi was the overall commander of the three groups that went to attack Pajule, as opposed to Raska Lukwiya as the evidence establishes). 409 P-0138: T-120 ; T-121 ; T-122 . See also T-120 , p. 3, line 3 – p. 4, line 4. 410 Defence Closing Brief , para. 515.

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411 testified that he knew Dominic Ongwen very well. Thus, the Chamber relies on P- 0138 for various findings, as specified below.

viii P-0145 P-0145 testified live before the Chamber with protective measures and having received 412 Rule 74 assurances. P-0145 offered testimony about his experiences as a fighter in the LRA. The witness’s testimony was detailed and he had a good recollection of events. The witness distinguished between events he personally witnessed and information he came to learn from others; his testimony was full of the kind of details that indicate that he spoke from personal experience.

The Chamber is of the view that despite receiving Rule 74 assurances, the witness was not truly forthcoming about his role in the attack on Lukodi IDP camp and understated his participation in the attack. The witness testified that he merely went to collect food in 413 Lukodi IDP camp. However, the way the witness described the attack, and the details 414 he spoke of, suggested to the Chamber that the witness had a more active role in the attack than he admits. Of additional concern, P-0145 was the sole witness to indicate that 415 Dominic Ongwen participated in the Lukodi IDP camp attack. The Chamber notes that the witness testified that he did not see anything in Lukodi with his own eyes, apart from 416 the food he carried. The witness refers to Dominic Ongwen’s participation but never says that he actually saw Dominic Ongwen in Lukodi. In light of these concerns, the Chamber cannot rely on the witness’s testimony in relation to the actual course of the Lukodi IDP camp attack.

However, the Chamber finds other aspects of the witness’s testimony credible, particularly in relation to the planning of the Lukodi attack as well as the LRA’s policy on the treatment of civilians and Dominic Ongwen’s behaviour as an LRA commander.

411 P-0138: T-120 , p. 18, line 19 – p. 19, line 5. 412 P-0145: T-143 ; T-144 . 413 P-0145: T-143 , p. 12, line 3-7; T-144-CONF, p. 46, line 20-22. 414 See for example P-0145: T-143 , p. 22, line 18 – p. 26, line 18 (discussing the course of the attack and mentioning the killing of civilians in their houses). The Chamber also notes that the witness testified both that he had a gun in the attack and then that he was without a gun. Compare P-0145: T-143 , p. 19, lines 7-10 with P-0145: T-143 , p. 24, lines 14-16. 415 P-0145: T-143 , p. 16, line 18 – p. 17, line 9, p. 22, line 18 – p. 24, line 25; T-144 , p. 36, line 14 – p. 45, line 6. 416 P-0145: T-143 , p. 25, lines 1-10.

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The Chamber also notes that much of the witness’s testimony is supported by other reliable evidence heard in these proceedings.

ix Ray Apire (P-0172)

Ray Apire testified live before the Chamber. Ray Apire was an LRA fighter who 417 testified about the LRA and the various attacks he participated in and heard about. Ray Apire’s testimony was generally detailed, consistent and comprehensive. He was forthcoming in responding to questioning by the parties and participants. His account is consistent with what would be expected of someone who experienced the events and also contains the type of details consistent with the expected knowledge of a long-standing LRA officer. The witness also differentiated clearly between his personal experiences 418 and information he came to learn from others.

x P-0200 419 P-0200 testified live before the Chamber with protective measures. He testified that he was abducted in Teso in June 2003 by Dominic Ongwen and that he stayed in the LRA, and under Dominic Ongwen specifically, until March 2004.

The Defence submitted that P-0200’s testimony ‘should be disregarded for being incredible’. 420 It argued that Dominic Ongwen ‘did not go to Teso and therefore it is impossible that he could have been abducted by Dominic’. 421 It also makes reference to the Pre-Trial Chamber’s finding in the decision on the confirmation of charges that ‘the evidence of Witness P-0200 […] is incompatible in several material aspects with the rest of the available evidence, including the testimonies of seven former so-called “wives” of Dominic Ongwen which the Chamber considers fully credible’. 422 Further, the Defence argues that P-0200 was ‘evasive throughout his testimony’, and that he ‘could not answer

417 P-0172: T-113 ; T-114 . 418 See for example P-0172: T-113 , p. 42, line 11 – p. 45, line 4 (a discussion of the history, structure and membership of the LRA). 419 P-0200: T-145 ; T-146 . 420 Defence Closing Brief , para. 514. 421 Defence Closing Brief , para. 514. See also para. 512. 422 Defence Closing Brief , para. 513. See also Confirmation Decision , para. 133.

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some of the basic questions and quite often admitted how he had forgotten certain facts and could not remember’. 423

The witness narrated an account of his movements with Dominic Ongwen during this period: he stated that he moved with Dominic Ongwen to a meeting with Vincent Otti, Banya, and Raska Lukwiya in Abia, then to Lwala, where ‘[Dominic Ongwen] moved with his soldiers to Lwala Girls [School]’ and after a short time, ‘we saw Dominic Ongwen coming with his soldiers with the girls’. 424 According to P-0200’s testimony, he then moved, together with Dominic Ongwen, to Abalang, Idam-Akan, Morungatuny, Obalanga, before crossing the Amoroto River and meeting with Joseph Kony in Adilang, 425 where Joseph Kony distributed the girls abducted from Lwala School. P-0200 testified that subsequently, he participated in the attack on Barlonyo under the direct command of Dominic Ongwen, after which they came back to Adilang, escorted Joseph Kony to 426 Sudan, and came back to Uganda. P-0200 testified that he was pierced with a bayonet by Dominic Ongwen for attempted escape, and then managed to escape when crossing 427 the Pece River, and was taken by a local to Palenga barracks.

P-0200, like many members of the LRA and entirely understandably, was not able to date the events he lived during his time in the LRA. Nevertheless, he provided sufficient detail that, in conjunction with other evidence, allows for a reliable reconstruction of the basic timeline. As noted below, there is reliable evidence that the abduction of a large number 428 of girls by the LRA from Lwala Girls School took place on 23 June 2003. The 429 Barlonyo attack took place in February 2004. Therefore, the events described by P- 0200 would have taken place in mid- and late 2003, and early 2004. This is also compatible with the dates of abduction and escape given by the witness.

Importantly, P-0200’s testified that he spent the entirety of his time in the LRA under the 430 direct command of and in the household of Dominic Ongwen. Yet, the timeline given by P-0200 does not correspond to the timeline of Dominic Ongwen’s activities as

423 Defence Closing Brief , para. 514. 424 P-0200: T-145 , p. 13, lines 6-17. 425 P-0200: T-145 , p. 13, line 18 – p. 14, line 8. 426 P-0200: T-145 , p. 14, lines 8-24. 427 P-0200: T-145 , p. 15, line 10 – p. 16, line 22. 428 See para. 1161 below. 429 See para. 1164 below. 430 See P-0200: T-146 , p. 44, lines 20-22.

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established on the basis of numerous reliable witness testimonies and other sources of evidence.

In particular, there is no other evidence attributing the abduction of the girls from Lwala Girls School to Dominic Ongwen. In addition, the multiple other reliable sources of evidence available as to Dominic Ongwen’s activities and movements at the time do not allow for the conclusion that Dominic Ongwen went to Teso in June 2003, or at any time 431 until after the attack on Pajule IDP camp on 10 October 2003. It is also notable that P- 432 0200 denied having taken part in that attack, whereas there is a reliable body of evidence that Dominic Ongwen, in whose household P-0200 claimed to have been at the 433 time, did participate. Conversely, P-0200’s placing of Dominic Ongwen on the ground for the attack on Barlonyo is entirely unsupported by the other reliable evidence in 434 relation to that attack. On the other hand, the Chamber notes that P-0200’s testimony that at the time, to the effect that Dominic Ongwen limped because of a fracture of his 435 left leg, is compatible with the findings in relation to Dominic Ongwen’s injury in late 436 2002 and recovery lasting into mid-2003. This is, however, inconclusive and without bearing on the other identified issues.

Further, P-0200 testified that on the way to Sudan

437 . In the assessment of the Chamber, this specific detail, in particular the implication of Dominic Ongwen, is so unique in the context of the evidence in the case, so significant, and even so shocking, that it would have to be mentioned during the testimonies of other persons who reliably testified that they were with Dominic Ongwen in 2003-2004. Yet, no such evidence is on the record.

It is also notable that when asked whether he knew the names of any of Dominic Ongwen’s so-called ‘wives’, P-0200 did not give the names of P-0101 or P-0214, who were in Dominic Ongwen’s household as his so-called ‘wives’ during the relevant

431 See paras 1017-1077 below. 432 P-0200: T-146 , p. 50, lines 7-9. 433 See section IV.C.6 below. 434 P-0200: T-145 , p. 14, lines 8-10. 435 P-0200: T-145 , p. 52, lines 15-17. 436 See paras 1017-1049 below. 437 P-0200: T-145-CONF, p. 14, lines 11-14.

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438 time. Rather, he mentioned a person not indicated in the evidence as one of Dominic Ongwen’s so-called ‘wives’, and for whom DNA analysis evidence in fact contradicts 439 the claim that she was a so-called ‘wife’ of Dominic Ongwen.

The incompatibility between the evidence of P-0200 and the rest of the reliable evidence is striking, and it is notable that the Prosecution, while still relying on P-0200 occasionally in its closing submissions, did not seek to furnish an explanation of this remarkable incompatibility.

Finally, when asked to give a physical description of Dominic Ongwen, P-0200 asserted that Dominic Ongwen was ‘a bit bald’ and ‘didn’t have much hair on the head’. 440 This description does not match the physical appearance of Dominic Ongwen. In fact, the Defence directly challenged P-0200 on his identification of Dominic Ongwen as the person who abducted him, and the explanation offered by the witness was weak: he stated that he got to ‘know [Dominic Ongwen] clearly when Otti called him by his names in 441 Abia. So I know him as my commander by the time when I was in the bush.’ A positive identification of the accused in the courtroom by the witness was also not possible due to the partition put in place as a special measure under Rule 88 of the Rules of Procedure 442 and Evidence.

In light of the all of the above, and considering the strong indicia that the person described by P-0200 as Dominic Ongwen is in fact not the accused, the Chamber concludes that there exist unsurmountable obstacles for the reliability of the testimony of P-0200. The Chamber will therefore not rely on his testimony.

xi P-0233 P-0233 testified live before the Chamber with protective measures, having received Rule 443 74 assurances. The witness, a former member of the LRA, testified about his abduction and his experiences in the LRA, in particular about the attacks on Acet and Abia. The

438 P-0200: T-145 , p. 27, lines 13-24. 439 P-0200: T-145 , p. 27, lines 13-24; P-0414 First Report, UGA-OTP-0278-0529, at 0535. 440 P-0200: T-145 , p. 52, line 21 – p. 53, line 15. 441 P-0200: T-146 , p. 55, lines 9-18. 442 See Email from VWS psychologist to TC IX Communications on 18 January 2018 at 14:56, which recommended the partition. 443 P-0233: T-111 ; T-112 .

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witness was very knowledgeable about the LRA and his testimony covered a broad range of issues, which the Chamber deems natural in light of the fact that he spent more than 10 years in the LRA. Further, the witness testified about experiences which incriminated 444 the LRA as well as government forces, and testified that he liked Dominic Ongwen, factors which support the credibility of the incriminatory statements.

xii P-0250 445 P-0250 testified live before the Chamber with protective measures. P-0250, a former LRA abductee and fighter, testified about his experiences in the LRA including about the rules and practices in the LRA and the Pajule attack. Significantly, the witness’s testimony about the Pajule IDP camp attack is manifestly different from the testimony of 446 other credible witnesses. In particular, contrary to other credible evidence, the witness testified that a large number of people were killed in the course of the Pajule IDP camp attack, people’s limbs were chopped off, people were cut in half and people were decapitated. While the evidence shows that several people died in the course of the attack on Pajule IDP camp and that the LRA killed at least one person with a machete, the evidence does not support P-0250’s description of events in the course of the attack. Further, the Chamber notes that the witness’s description of Dominic Ongwen is not 447 credible. In light of the above, in particular the utter unreliability of his testimony about the Pajule attack, the Chamber finds that the witness’s testimony cannot be relied upon.

xiii P-0252 448 P-0252 testified live before the Chamber with protective measures. P-0252, a resident of Odek IDP camp at the time of the attack relevant to the charges, testified about his abduction in that attack as well as his experiences in the LRA in the aftermath, including

444 P-0233: T-112 , p. 39, lines 14-15. 445 P-0250: T-141 ; T-142 . 446 See P-0250: T-141 , p. 27, line 8 – p. 28, line 10, p. 31, line 4 – p. 31, line 22, p. 33, line 17 – p. 34, line 4. The Chamber also notes that the witness testified that the Pajule attack occurred on 9 October 2002. P-0250: T-141 , p. 25, line 17-19. However, it is clear from certain details, for example the abduction of Rwot Oywak, that the witness was referring to the attack on Pajule IDP camp described in the charges in the present case. See P-0250: T-141 , p. 39, lines 2-25. 447 See P-0250: T-142 , p. 7, line 10 – p. 8, line 22, p. 17, line 17 – p. 18, line 1 (the witness described Dominic Ongwen, as an ‘invincible’ runner and as a ‘fat man’ at the time of the witness’s abduction). In light of the ample evidence to the contrary, the Chamber considers that this is not a credible description of Dominic Ongwen at the time the witness allegedly knew him. 448 P-0252: T-87 ; T-88 ; T-89 .

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about the attack on Abok IDP camp relevant to the charges. The Chamber is attentive to

the psychological trauma the witness continues to suffer from as a result of his experience

449 in captivity, as well as his other medical issues. However, such issues had no bearing

on his evidence rendered in Court. The witness gave his testimony over the course of

three days and throughout he was coherent, understood the proceedings, vigilant in

following instructions from the Chamber and the questioning parties and testified in a

450 forthright and consistent manner. Contrary to the argument of the Defence, the

Chamber saw no indication that the witness had a mental disease or defect which impeded

451 his ability to reconstruct memories.

Concerning the witness’s age, P-0252, who was abducted by the LRA during the Odek

452 453 attack, stated that he was 14 at the time of the attack. However, when asked his date

454 of birth, the witness replied that he was born on 1993. The Chamber also

455 notes that there are several official documents, such as a certificate of birth, a voter

456 457 registration slip and a national identity card which indicate that the witness’s date

458 of birth was 1993. Additionally, a ‘grower registration form’ states his age

and the year in which the document was issued and in this manner corroborate his date

459 of birth. A ‘citizen identity card’ indicates that the witness would have to be born

460 between 1993 and 1994.

In this context the Chamber notes the questions by Defence counsel with regard to the

461 procedure of obtaining the birth certificate and the fact that the date ‘ 1993’

462 is probably an estimation. With regard to how the certificate was obtained, P-0252

449 P-0252: T-88 , p. 29, line 18 – p. 30, line 4, p. 38, lines 4-9, p. 38, line 19 – p. 40, line 5; T-88-CONF, p. 61, line 10 – p. 64, line 19. 450 Contrary to the Defence’s submission ( Defence Closing Brief , para. 440), the Chamber saw no indication that he had a mental disease or defect which impeded his ability to reconstruct memories. 451 See Defence Closing Brief , para. 440. 452 See paras 1585-1587 below. 453 P-0252: T-87 , p. 26, lines 19-21. 454 P-0252: T-87-CONF, p. 7, lines 14-15. 455 Birth certificate, UGA-OTP-0272-1018. 456 Voter location slip, UGA-OTP-0269-0732. 457 National ID Card, UGA-OTP-0269-0730. 458 Grower Registration Form, UGA-OTP-0269-0728. 459 By stating his age and the year in which the document was issued. 460 UGA-OTP-0269-0726, at 0727. The document states that P-0252 was 20 at the time of the issuance of the document on 2014. 461 P-0252: T-89 , p. 3, lines 4-11. 462 P-0252: T-89 , p. 3, lines 15-16. See Defence Closing Brief , para. 520, where the Defence also summarises the testimony concerning the witness’s age.

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replied that it was not him who provided the date and the Chamber notes that all 463 464 documents but one consistently indicate 1993 as the year of birth. Accordingly, the Chamber does not doubt the veracity of the document. With regard to the argument that ‘ ’ as a date of birth is probably an estimation, the Chamber agrees that this might be the case. However, this does not apply to the year indicated, 1993. Should P- 0252 have been born later than 1993, this would mean that he would be even 465 younger, which is irrelevant for the charges. The same holds true for the one document indicating that the witness was born either in 1993 or 1994. Accordingly, the Chamber finds that the witness was 11 years old at the time of the attack on Odek IDP camp.

P-0252’s evidence shows that he was abducted during the Odek attack, which occurred 466 on 29 April 2004. The Chamber notes that the witness discussed two Abok attacks, a previous large scale attack that he did not participate in and a second attack that he did 467 participate in. The Chamber also notes that the witness indicated that the Abok attack he participated in happened about two months after his abduction from Odek IDP 468 camp. This timing is consistent with the Chamber’s understanding of the timeline of the Abok IDP camp attack relevant to the charges. Further, the Chamber notes that the evidence provided by P-0252 about the events he witnessed is largely consistent with the testimony of other witnesses who testified about the 8 June 2004 Abok IDP camp 469 attack. Accordingly, the Chamber is satisfied that P-0252’s reference to the second Abok IDP camp attack relates to the 8 June 2004 attack.

The Chamber also notes that P-0252 testified that he did not enter Abok IDP camp with 470 other LRA fighters and stayed instead outside the boundaries of the camp. The Chamber does not disregard P-0252’s evidence as to the occurrences in the camp itself during the attack, for example if the witness gained information in the aftermath of the attack from other LRA fighters who had gone into the centre of the camp.

463 Citizen Identity Card, UGA-OTP-0269-0726. 464 A citizen identity card indicates the date of issuance and the witness’s age at that time. According to this document, the witness would have to be born between 1993 and 1994. 465 UGA-OTP-0269-0726. the Chamber’s discussion of P-0252’s abduction during the Odek attack in paras 1585-1587 below. 466 See 467 P-0252: T-87 , p. 73, line 17 – p. 74, line 2, p. 81, lines 13-15. 468 P-0252: T-89 , p. 41, lines 19-21. 469 See the Chamber’s discussion of Abok IDP camp attack in section Attack on Abok IDP camp IV.C.9 below. 470 P-0252: T-87 , p. 77, line 25 – p. 78, line 7; T-88 , p. 5, lines 4-7.

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The Defence, noting the witness’s testimony about the time he spent in the bush and the available documentary evidence, states that his testimony is inconsistent with the evidence and that the witness’s testimony in relation to the Abok attack should be 471 disregarded. The Chamber notes that there are indeed some irregularities in the witness’s testimony.

472 P-0252 testified that he spent roughly one year and nine months in the bush. However, the certificate of amnesty the witness received from the Ugandan government is dated 473 2004. The Chamber has no reason to doubt the authenticity of the certificate of 474 amnesty. Additionally, the Chamber does not find the witness’s explanation for the 475 inconsistency persuasive. However, noting that the witness’s account of the attacks on Odek and Abok IDP camps is largely consistent with the testimony of other witnesses with knowledge of these events, the Chamber finds that this inconsistency does not undermine P-0252’s testimony about these events. The Chamber is of the view that P- 0252 returned from captivity sometime in June 2004.

The Chamber also notes that given the nature of the armed conflict, the context of abduction and subsequent captivity and the constant movement of the LRA while in the bush, it is understandable that some witnesses struggle to keep track of the time they spent in the bush and to recall it with precision these many years after their escape from the LRA. Indeed, it is reasonable that witnesses in captivity in the bush, particularly those who were children when they were abducted, have lost their attachment to the very concept of time. In light of the foregoing, the Chamber considers that it may rely on core parts of P-0252’s testimony concerning his experience during the Odek IDP camp attack and its aftermath and the Abok IDP camp attack.

471 Defence Closing Brief , paras 441-43. 472 P-0252: T-88 , p. 15, lines 6-8; T-89 : p. 52, line 22 – p. 53, line 8. Indeed, P-0218 testified that the witness had stayed in captivity for about one year, P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 38 . 473 P-0252’s Certificate of amnesty, UGA-OTP-0269-0722, at 0723, indicating that the witness was in the bush for about two months. 474 The witness acknowledges that this was the certificate that he was given when he returned from the bush. P- 0252: T-88 , p. 15, lines 22-24. 475 P-0252: T-88 , p. 16, line 13 – p. 17, line 8; T-89 , p. 51, line 12 – p. 56, line 24 (P-0252 testified that at the rehabilitation centre for former abductees, other former abductees told him to tell the rehabilitation centre officials that he was only with the LRA for a short period of time so that he would not have to remain at the rehabilitation centre for a long period).

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xiv P-0264 P-0264 testified live before the Chamber with protective measures after receiving Rule 476 74 assurances. P-0264, a former LRA fighter, testified about his experiences in the LRA, his knowledge of Dominic Ongwen as well as the abduction of civilians in the LRA, the conscription and use of children as soldiers and women as so-called ‘wives’ and the attack on Odek IDP camp. P-0264 had a remarkable recollection, offering testimony that was very detailed and comprehensive with the kind of specific details that indicated he was speaking from personal experiences. His testimony was rich with the type of facts and knowledge expected from an LRA fighter who spent many years in the 477 LRA and was exposed to the various facets of its operation. P-0264 distinguished between events he personally witnessed as opposed to matters he was informed about and was clear about the source of his knowledge.

478 P-0264 testified that he was abducted in 2002 at the age of 11; however his national ID card indicates that he was born in 1989, which would have made him 12 or 13 at the 479 time of his abduction in 2002. This inconsistency in relation to the witness’s age does not undermine the Chamber’s view of his credibility, contrary to Defence arguments. 480 The witness explained that other records indicating his age were destroyed in the course of the conflict and that government authorities erroneously estimated the age noted in his 481 national ID card after his return from the LRA. The Chamber has no reason to doubt the witness’s explanation and considers it reasonable. The Chamber also finds the witness’s explanation of why he remembers his age at abduction credible. In his explanation of why he recalled that he was 11 years old when he was abducted, P-0264 explained:

‘[t]he reason why I said I was 11, because while I was still in primary 4 […] that’s how I would write my age that I have 11 – I am 11 years old […] And even when

476 P-0264: T-64 ; T-65 ; T-66 . 477 See for example P-0264: T-64 , p. 28, line 9 – p. 32, line 19 (the witness’s description of the training of LRA fighters). 478 P-0264: T-64-CONF, p. 9, line 20 – p. 10, line 9. 479 P-0264’s National ID Card, UGA-OTP-0270-1382. 480 Defence Closing Brief , para. 527. 481 See P-0264: T-65-CONF, p. 46, lines 3-25, p. 47, lines 8-18; P-0264: T-66-CONF, p. 14, lines 13-25 (P-0264’s parents did not recall his exact date of birth and his birth records were destroyed as a result of the conflict and his family’s move to the camps. His school records were also destroyed for the same reason).

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I was captured, the people who captured me asked me “How old are you?” I told them “I am 11 years old”.’ 482 Given the above, the Chamber does not consider that the contradicting evidence on the witness’s age affects his general credibility. It discusses this issue of the actual age of this witness at the time of his abduction and its impact on the charged crimes in greater depth below in its evidentiary analysis on the conscription and use of children in the hostilities.

The Chamber sees no evidence that the witness’s interactions with other former LRA fighters prior to his interviews with the Prosecution in 2016 had 483 any impact on his testimony.

xv P-0307 484 P-0307 testified live before the Chamber, with protective measures, and his prior 485 recorded statement introduced pursuant to Rule 68(3) of the Rules. The witness, an abductee and former LRA fighter, was deemed credible by the Chamber. However, additional explanations are necessary with regard to some aspects of his testimony, namely as concerns an attack on Pajule and the witness’s age. With regard to the first issue, the witness explained in his prior statement and during several occasions in his in- 486 court testimony that the attack on Pajule he was referring to took place in December. In light of the details provided on the attack and the manner in which the witness provided the evidence, the Chamber is of the view that the witness – rather than lying as to the occurrence to the event – merely described a different attack than the 10 October 2003 attack on Pajule which forms the basis of some of the charges in the present case.

Concerning the second issue, the Chamber notes that there is diverging evidence as to the witness’s age. In his prior recorded statement, the witness stated that he was born on

482 P-0264: T-65-CONF, p. 47, line 22 – p. 48, line 6. See P-0264: T-65-CONF, p. 45, lines 18-23. See also T-66- CONF, p. 15, lines 1-5. 483 P-0264: T-66-CONF, p. 16, line 21 – p. 18, line 18, p. 21, line 23 – p. 22, line 6, p. 22, line 13 – p. 23, line 15 (The witness was warned by a former LRA fighter to not speak with the ICC about Dominic Ongwen. ). 484 P-0307: T-152; T-153 . 485 P-0307 Statement, UGA-OTP-0266-0425-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 23, p. 19. See also P-0307: T-152 , p. 62, line 17 – p. 64, line 3. 486 P-0307 Statement, UGA-OTP-0266-0425-R01, at paras 32-44; T-152 , p. 70, lines 8-17; T-153 , p. 33, lines 20- 23.

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487 1989. This matches the birthdate recorded in the witness’s immunisation 488 card. However, P-0307’s national ID card states 1990 as his date of 489 birth. When questioned about this difference, the witness explained that he had not seen the immunisation card before and only found it recently, and that the national ID 490 card states the date that he was told by his mother as his date of birth. A birth certificate 491 indicates 1990 as his date of birth. A document from World Vision, which took care of P-0307 after his escape from the LRA, indicates that the witness was 492 15 years old on 2004, but the field ‘date of birth’ was left blank. Upon suggestion by the Defence, the witness accepted that this might have been the case as he 493 was uncertain about his date of birth.

However, the information above does not present ‘glaring contradictions’ which make the witness’s statement unreliable or even provide an indication that the witness has 494 provided these different birthdates purposefully, as suggested by the Defence. The Chamber notes that none of the parties contests the authenticity of the immunisation 495 card or that this document refers to P-0307, nor are there any indications that this might be the case. The card states that the witness received one immunisation in 1989 and several immunisations during the course of the year 1990, which indicates that the witness could not have been born in 1990. Especially, the card states that the BCG vaccine against tuberculosis should be given at ‘birth’ and the date for that immunisation is marked as ‘ 1989’, one day after the indicated date of birth. Also, the Chamber notes that this document is the most contemporaneous one to the fact at issue (meaning P-0307’s birth).

Regarding the date indicated in the World Vision document, the Chamber notes that, were the information concerning P-0307’s date of birth true, he would have been born before 1989, which is not supported by any other piece of evidence. Further, there is no information how this document was filled out, the circumstances under which

487 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 13. 488 UGA-OTP-0266-0446. 489 National ID Card, UGA-OTP-0266-0448. 490 P-0307: T-152 , p. 71, lines 14-16. 491 UGA-OTP-0272-0951. 492 UGA-OTP-0170-0338, at 0338, 0341. 493 P-0307: T-153 , p. 37, lines 7-21. 494 Defence Closing Brief , paras 521-22. 495 UGA-OTP-0266-0446.

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it was produced and how the person filling out obtained the information that P-0307 was 15 at the time, also considering, as observed above, that the witness himself accepted the possibility that, when filling out the form, he was uncertain of his date of birth (and, for this reason, deliberately left blank the corresponding field). Accordingly, the Chamber considers the World Vision form is of no probative value when it comes to the witness’s date of birth.

496 Regarding the birth certificate, which indicates 1990 as P-0307’s date of birth, the Chamber notes that it is from 2016. This is before the witness’s prior recorded statement in which he explained that he saw the immunisation card just 497 the day before his interview for the first time. As he believed to be born on 1990 prior to receiving this information, this explains why he would have provided this date when requesting his birth certificate. Additionally, P-0307 stated that 498 he did not provide any documentation when applying for the national ID card. Taken this into account, the Chamber finds that system of the issuance of national ID cards or other public documents does not constitute automatic proof of the truthfulness of the 499 information contained therein. Since the card was issued on 2015, it is logical that the witness would indicate 1990 as his year of birth, which he thought to be true at that point in time.

Considering the above, the Chamber concludes that P-0307 was born on 1989. The Chamber also finds that the witness’s explanation regarding the different dates 500 of birth does not undermine his general credibility, as suggested by the Defence. To the contrary, in his prior recorded statement, the witness readily admitted that he did know of the health immunisation card and always indicated 1990 as his year of birth, because he was given this information by his mother. But after he was in possession of 501 the immunisation card, he readily accepted that he was born in 1989 and not 1990.

496 UGA-OTP-0272-0951. 497 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 13. 498 P-0307: T-153 , p. 36, line 23 – p. 37, line 2. 499 The date of issuance can be found in the second data column on the backside of the ID card (‘150524’) after his date of birth and the expiry-date. 500 See para. 335 above. 501 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 13.

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Regarding the dates of the time the witness spent in the bush, the Chamber believes that 502 P-0307 escaped the LRA by 6 June 2004, as indicated in the World Vision document. This corresponds with the witness’s statement that he escaped around April 2004 and 503 stayed roughly three months with World Vision. Whether he had been abducted in 504 September 2002, as stated by the witness, or September 2003, as insinuated by the 505 506 Defence and indicated in the World Vision document is irrelevant, since in both scenarios P-0307 was under the age of 15 for his whole stay in the bush. The manner in which the witness testified as to what he has seen during his time with the LRA does not let the Chamber doubt that he has actually experienced the described events.

The Chamber further finds that this discussion of the witness’s date of birth does not affect the witness’s estimation of the age of other persons. As explained in the prior 507 508 recorded testimony and confirmed during his live testimony before this Chamber, the witness used his own age as a reference point.

xvi P-0309 509 P-0309 testified live before the Chamber with protective measures. P-0309, a former LRA fighter and one time escort of Dominic Ongwen, testified about his experiences in the LRA, his knowledge of the attacks on the Odek and Pajule IDP camp attacks and Dominic Ongwen’s role in those attacks.

P-0309 testified in a simple, honest and quiet manner. The witness was frank about his experience in the LRA and spoke about the events in a detailed and comprehensive manner that convinces the Chamber that he spoke about events he actually experienced. For example, the witness offered detailed information about the structure and composition of Dominic Ongwen’s household. 510 The witness clearly distinguished between events he witnessed and matters he learned of from others.

502 UGA-OTP-0170-0338, at 0338. 503 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 54. 504 P-0307: T-152 , p. 73, lines 2-7. 505 P-0307: T-153 , p. 6, lines 22-25. 506 UGA-OTP-0170-0338, at 0338. 507 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 69. 508 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 14; P-0307: T-152 , p. 64, lines 23-25; T-153 , p. 38, lines 3-7. 509 P-0309: T-60 ; T-61 ; T-62 ; T-63 . 510 See P-0309: T-60-CONF, p. 21, line 11 – p. 30, line 18.

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The Defence suggests that P-0309 lied in his testimony, particularly in relation to the

511 Odek IDP camp attack. The Chamber saw nothing in the witness’s demeanour or

answer pattern to suggest that the Defence’s assertion is true. Indeed, the witness asserted

his lack of knowledge about certain matters, including matters where Dominic Ongwen

512 would have been implicated, indicating to the Chamber that the witness was carefully

to testify within the parameters of his actual experiences and also that the witness was

not motivated to implicate Dominic Ongwen at all cost.

Lastly, the Chamber will discuss the question of P-0309’s age. It notes the Defence’s

arguments regarding the witness’s credibility, stating that P-0309’s testimony is ‘full of

contradictions and inconsistencies especially regarding his true age’ and submits that he

513 should be considered as unreliable. The Defence further suggests ulterior motives ‘in

misrepresenting his date of birth on various documents’ and that P-0309 admitted himself

that he did not know his real age and submits that the documents concerning the witness’s

514 age, as well as his estimates regarding the age of others should be disregarded.

515 The witness testified that his mother told him that his birthday is 1988,

516 which would make him 13 at the time of his abduction in September 2002. He also

517 testified that he told the LRA fighters that he was 14 when he was abducted. There are

518 further four documents concerning the age of the witness. His national identity card

and his driver’s licence 519 indicate 1988 as date of birth. An amnesty

520 521 document states 1989 and, lastly, a voter registration card shows his date

of birth as 1987. When questioned in Court, the witness replied that, when

, para. 360, n. 598. The Defence states that it ‘implores the Trial Chamber to investigate 511 Defence Closing Brief the sheer number of times the witness could not remember something when asked by the Defence versus when asked by the Prosecution. The witness’s demeanour and answer patterns are indicative of someone lying’. 512 See for example P-0309: T-60 , p. 71, lines 7-9, p. 73, lines 1-4 (when asked whether Dominic Ongwen had a role in distributing abducted civilians taken from Pajule IDP camp, the witness stated that he did not know). 513 Defence Closing Brief , para. 517. 514 Defence Closing Brief , para. 518. 515 P-0309: T-60-CONF, p. 12, lines 1-4. 516 P-0309: T-60-CONF, p. 12, lines 17-21. 517 P-0309: T-60-CONF, p. 15, lines 12-16. 518 UGA-OTP-0258-0837-R01. 519 UGA-OTP-0249-1045. 520 UGA-OTP-0248-0974. 521 UGA-OTP-0249-1047.

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providing the dates for the last two documents, he had not been told his exact date of 522 birth by his mother yet.

Unlike what is suggested by the Defence, the Chamber does not find that the different dates of birth indicated make him generally not credible. Rather, the witness readily admitted that he initially did not know his date of birth. This is also the case when he told his age to the LRA fighters at the time of his abduction. It is also not incredible that P- 0309 did not know his exact date of birth, as he explained. Once he was told by his mother that it was 1988, he seems to have consistently indicated this date as his date 523 of birth – as he did during his testimony. This explanation is also consistent with part of the documentary evidence. The two documents indicating divergent dates of birth were issued immediately or relatively shortly after the witness’s return from the bush. 524 The 525 documents indicating 1988 as his date of birth are more recent and were presumably issued after the witness had asked his mother and then put this date as his date of birth. Accordingly, the Chamber finds the explanation provided by the witness believable and does not consider that the different dates of birth, provided at different times by the witness, affect his credibility in general or specifically, when he testified that his date of birth is 1988.

xvii P-0314 526 P-0314 testified live before the Chamber with protective measures. P-0314, an LRA fighter and one time escort , testified about his experiences as an LRA escort, and his knowledge of the Odek IDP camp attack. P-0314 was a diligent and careful witness. He clarified the source of the knowledge of his information and was vigilant in delineating information he gained by his personal experiences from matters he heard of from others. The witness was forthright in explaining the limits of his knowledge, a factor which bolstered the Chamber’s view of his credibility. For example, the witness explained the limits of what an LRA fighter in his position would know about

522 P-0309: T-61-CONF, p. 47, line 9 – p. 49, line 1, p. 66, line 8 – p. 68, line 13. 523 P-0309: T-60 , p. 12, lines 1-4. 524 UGA-OTP-0248-0974 is from 2004 and UGA-OTP-0249-1047 is from 2006. 525 UGA-OTP-0249-1045 was issued in 2013 and UGA-OTP-0258-0837-R01 on 2015. See the numerical information on the image of the back side of the identity card. 526 P-0314: T-74 ; T-75 ; T-76 ; T-77 .

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527 the movements of LRA commanders. The witness offered comprehensive testimony 528 replete with the kind of details that indicate that he spoke from personal experience.

The Chamber notes that the Defence submits that P-0314’s testimony regarding his age should be dismissed, since he did not know his exact age during the time of his 529 abduction. However, the Chamber does not follow the Defence’s argumentation. Rather, it finds that the witness freely admitted that he was only told his precise age after 530 his return from the bush by this mother a sign for the truthfulness for his testimony. Further, the Chamber considers the fact that P-0314 had to ask his mother for his exact date of birth not to be such an unusual fact as to make the witness’s explanation incredible. Accordingly, the Chamber relies on 11 July 1988 as P-0314’s date of birth, as indicated 531 in the official documents and stated by the witness.

xviii P-0330 P-0330 testified live before the Chamber with protective measures and received Rule 74 532 assurances. P-0330, a former LRA fighter, testified about his experiences in the LRA, including his knowledge of the attack on Pajule, Odek and Abok IDP camps relevant to the charges. P-0330 gave detailed testimony, offering unrequested details that increased the credibility of his account. The witness also differentiated between his own personal experience and what he was told by others. Importantly, P-0330 did not attempt to incriminate Dominic Ongwen at all cost and was mindful to offer only details within his scope of knowledge.

However, the Chamber is attentive to the witness’s difficulty in recalling certain events and information. When speaking in narrative form or when questioned in sequence, P- 0330 testified in great detail; however, when asked specific questions out of context, he frequently could not retrieve the information easily and either gave contradictory 533 testimony or required refreshing of his memory. Additionally, when asked if he was already Dominic Ongwen’s escort at the time of the Opit attack, the witness could not

527 P-0314: T-74 , p. 26, lines 1-19. 528 See for example P-0314: T-74 , p. 18, line 8 – p. 19, line 17 (describing the training of LRA ‘recruits’). 529 Defence Closing Brief , para. 523. 530 P-0314: T-75 , p. 36, line 19 – p. 37, line 19. 531 P-0314: T-75 , p. 36, lines 8-18, p. 37, lines 13-19. 532 P-0330: T-51 ; T-52 ; T-53 ; T-54 ; T-55 ; T-51-CONF, p. 41, line 15 – p. 42, line 1, p. 38, lines 18-21. 533 See P-0330: T-51 , p. 74, lines 1-22; T-55 , p. 18, lines 17 – p. 22, line 3.

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534 recall, nor could he recall the sequence of several attacks in which he allegedly

535 participated. Further, despite testifying to having prolonged close personal contact

with Dominic Ongwen, the witness could not name many of the specific individuals in

536 Dominic Ongwen’s close orbit, such as Dominic Ongwen’s ‘wives’, his other

537 538 escorts or his signallers. Indeed, P-0330 testified that he was the only escort working

539 with Dominic Ongwen, a detail which contradicts other evidence heard in this trial. P-

0330 also could not remember any of Dominic Ongwen’s call signs, despite stating that

540 he sat near Dominic Ongwen when Dominic Ongwen communicated on the radio. The

Chamber considers that a person serving as Dominic Ongwen’s close escort for several

541 years, as the witness alleges, should be able to at least recall some such information.

The Chamber notes that P-0314’s testimony bolsters P-0330’s contention that he served

542 as Dominic Ongwen’s escort and that he was in the LRA for several years. The

Chamber also notes that P-0379 testified that P-0330 was not in Dominic Ongwen’s

household while P-0379 was in the LRA but allows that P-0330 may have moved to

543 Dominic Ongwen’s household after P-0379 left the bush in 2003.

Upon being confronted by what appears to be incoherence as to certain dates related to

his abduction (whether he was abducted in 1998, 2002 or 2003, whether he was 9, 12 or

14 at the time of abduction, whether he was in P1, P2 or P3, why he gave different

544 information at different stages and why his mother gave different information), the

witness was unable to explain clearly. However, he stated that he had no concept of

534 P-0330: T-52 , p. 57, lines 13-15. 535 P-0330: T-55 , p. 34, lines 22-24. 536 See P-0330: T-55 , p. 5, lines 4-5. 537 See P-0330: T-51 , p. 70, lines 3-8; T-55 , p. 45, lines 14-20. 538 See P-0330: T-55 , p. 3, lines 9-17. See also P-0330: T-55 , p. 12, lines 13-16. Here, the Chamber notes the Defence’s arguments that the witness’s inability to recall details about Dominic Ongwen’s household, escorts and close commanders means that his evidence cannot be relied upon. Defence Closing Brief , para. 511. 539 P-0330: T-51 , p. 70, lines 3-8. See P-0330: T-55 , p. 45, lines 14-20. 540 P-0330: T-55-CONF, p. 7, line 25 – p. 8, line 24. 541 See P-0330: T-55 , p. 77, line 25 – p. 78, line 7. 542

The Chamber notes that it finds P-0314 to be a credible witness whose testimony may be relied upon. 543 P-0379: T-58-CONF, p. 69, lines 1-11. 544 P-0330: T-54 , p. 29, line 14 – p. 30, line 5, p. 34, lines 7-15, p. 35, line 9 – p. 37, line 4, p. 37, line 25 – p. 38, line 7, p. 58, lines 3-15; T-54-CONF, p. 5, line 15 – p. 6, line 1, p. 7, lines 7-19, p. 20, line 15 – p. 21, line 21, p. 23, line 16 – p. 24, line 22, p. 25, line 5 – p. 26, line 21. See also Application for participation as victim, UGA- D26-0012-0102; Rachele rehabilitation centre file, UGA-OTP-0124-0358, at 0359.

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545 years, an explanation which the Chamber deems to be a sincere and understandable 546 response under the circumstances.

Noting P-0330’s testimony and also noting the incoherence in some of his testimony, the Chamber has some reservations about the reliability of his evidence about how long he was in the LRA and how long he spent in close proximity with Dominic Ongwen. The Chamber notes, however, that it is convinced that the witness did spend some time in proximity to Dominic Ongwen during the witness’s time in the LRA. In light of P-0314’s testimony as well as the fact that much of P-0330’s testimony is consistent with other evidence, as will be discussed further in the evidentiary analysis below, the Chamber is of the view that P-0330 was indeed a low level fighter in the Sinia brigade.

xix P-0340 P-0340 testified live before the Chamber with protective measures, after receiving Rule 547 74 assurances. P-0340, a former LRA abductee and fighter, testified about his experiences in the LRA and the Odek and Abok IDP camp attacks. P-0340’s testimony was detailed and contextualised. The witness explained the source of his information and 548 often offered nuanced explanations of his accounts. His testimony was frequently in a narrative format and P-0340 offered details of a nature that would be expected of a witness speaking from personal experience.

The Defence highlights an 8 February 2004 ISO logbook entry to indicate that Mukwaya, Abola, and Kidega, three LRA fighters mentioned by P-0340 as being his superiors in Sinia’s Siba battalion, 549 550 were in Gilva brigade, and not Sinia. The Defence contends that, in light of the logbook entry, if the Chamber is of the view that P-0340 participated in the Abok IDP camp attack, then the Chamber must accept that at least one battalion of 551 Gilva brigade sent fighters to the Abok attack. The Chamber is satisfied that the

545 P-0330: T-54 , p. 51, lines 2-6. 546 The Chamber recalls its above discussion on the difficulties several witnesses face in keeping track of the time they spent in the bush. 547 P-0340: T-102 ; T-103 . 548 See for example P-0340: T-102 , p. 18, line 9 – p. 19, line 8. 549 P-0340: T-102 , p. 16, lines 7-21; T-103 , p. 19, lines 6-7. 550 See Defence Closing Brief , paras 454, 459, 460, citing ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0056 (the logbook entry notes the promotion of Ogwal Kidega, Okello Mukwaya, Abola from ‘Gilva Bde’, ‘Araka BN’). The Chamber notes that when questioning the witness, the Defence raised the possibility that the three men were intelligence officers in Terwanga battalion. See P-0340: T-103 , p. 20, lines 11-24. 551 See Defence Closing Brief , para. 460.

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evidence shows that P-0340 was subordinate to Dominic Ongwen at the time of the attack on Abok IDP camp. The Chamber is of the view that the logbook mentioned by the Defence does not undermine this finding. The Chamber notes that P-0340 offered clear and detailed testimony in relation to the attacks on Odek and Abok IDP camp. His testimony in relation to these attacks is consistent with other evidence. The Chamber is convinced that P-0340 participated in the attacks on Odek and Abok IDP camps that are relevant to the charges. The Chamber is also convinced that the witness’s detailed and corroborated evidence about the attacks and Dominic Ongwen’s participation shows that the witness was subordinate to Dominic Ongwen at least by the time of the April 2004 attack on Odek IDP camp. Further, absent other evidence, the Chamber is not convinced that the logbook disproves the witness’s testimony that he was abducted by a Sinia battalion in 2002 and participated in the Odek and Abok attack as a member of Sinia in 2004.

The witness testified that he was abducted in an area near Patongo by members of Siba 552 battalion six days after a 1 July 2002 attack on Patongo by the LRA. He identified Mukwaya as one of the persons who abducted him and stated that he saw Dominic Ongwen after his abduction and was told that Dominic Ongwen was in charge of the 553 larger Sinia group. The Chamber notes that evidence supports the witness’s testimony about a 1 July 2002 attack on Patongo and indicates that Dominic Ongwen participated 554 in this attack. Dominic Ongwen and Sinia’s Oka battalion’s presence in the Patongo area around the time of P-0340’s abduction offers support for the witness’s testimony that he saw Dominic Ongwen after his abduction and that he was abducted by Sinia’s Siba battalion. However, contrary to the witness’s contention, the evidence also indicates that at the time of that attack, Dominic Ongwen was in charge of the Oka battalion and 555 had not yet been appointed as commander of Sinia brigade. Notably, the witness did not mention Dominic Ongwen’s injury in late 2002 or the attack on Pajule IDP camp in 2003 relevant to the charges. Further, the Chamber is unconvinced by the witness’s testimony about Dominic Ongwen’s presence in Sudan throughout the duration of the witness’s time in Sudan. 556 However, noting that the witness was a minor at the time of

552 See P-0340: T-102 , p. 11, line 23 – p. 12, line 22, p. 15, line 22 – p. 17, line 5, p. 58, lines 7-9. 553 P-0340: T-102 , p. 16, line 2 – p. 17, line 17. 554 See para. 1159 below. 555 See paras 1013-1016 below. 556 See P-0340: T-103 , p. 26, lines 13-21, p. 31, lines 3-19.

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his abduction and that he expressed some ambiguity about Dominic Ongwen’s position

557 at the time, the Chamber is of the view that any confusion about hierarchy or unit

names is understandable.

558 Noting that the witness had difficulty assessing time and ages, the Chamber does not

rely on his testimony to assess the ages of other captives. The Chamber does not consider

the fact that the witness is a politician to be significant or to have impaired his testimony

559 in any way.

xx P-0372

560 P-0372 testified live before the Chamber with protective measures. P-0372, a former LRA fighter at times under Dominic Ongwen’s command, testified about his experiences

in the LRA, his time in Sinia brigade and his knowledge of LRA rules and practices. P- 0372 was a coherent, clear and concise witness. The Chamber notes that the witness’s

testimony was at times less specific and contextualised than other witnesses who often

spoke in a narrative fashion and would provide additional information and context when answering the questioning party. However, the witness’s manner of speaking did not

undermine the Chamber’s view that the witness testified truthfully. The Chamber notes

that in relation to the attacks in which he participated, particularly the Odek IDP camp 561 attack, the witness’s testimony was more detailed, specific and contextualised.

The Chamber notes that at one point in his testimony, the witness misidentified two of Dominic Ongwen’s so-called ‘wives’. 562 The witness explained that he erroneously indicated that the two women were Dominic Ongwen’s ‘wives’ because of the proximity

563 of the women to Dominic Ongwen. The Chamber is satisfied with the witness’s

557 See P-0340: T-103 , p. 26, lines 13-21. 558 See P-0340: T-103 , p. 31, lines 13-19 (‘while in the bush you lose count of time and days. […] You, you just wait for days to end and you do not know what time it is’); T-102-CONF, p. 9, line 21 – p. 10, line 1; T-102 , p. 24, lines 13-25, p. 64, line 4 – p. 65, line 23 (the witness testified that he assessed others age by comparing it to his own. However, the witness was not clear as to his own age). 559 See P-0340: T-102 , p. 59, line 9 – p. 60, line 3. 560 P-0372: T-148 ; T-149 . 561 See P-0372: T-148 , p. 40, line 7 – p. 48, line 24. 562 See P-0372: T-148 , p. 55, line 19 – p. 56, line 1 (the witness erroneously identified female fighters Alice and Aling as Dominic Ongwen’s ‘wives’). 563 P-0372: T-149 , p. 34, line 14 – p. 37, line 6.

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explanation and also did not consider the discrepancy to have been significant. In view of the Chamber, this does not affect the witness’s credibility.

xxi P-0379

P-0379 testified live before the Chamber with protective measures pursuant to Rule 74 564 of the Rules. P-0379, a former LRA member and resident of Pajule IDP camp, testified about his life in the LRA after his abduction in August 2002, his time in Oka battalion, under Dominic Ongwen’s overall leadership, and the activities of the LRA during the period of August 2002 to May 2003. P-0379 provided detailed, contextualised and comprehensive evidence which the Chamber finds to be credible. The witness had a remarkable recollection, recalling particular details that illustrated his experiences in the LRA and bolstered the Chamber’s view of his credibility. 565 The witness recalled names, locations, and events in great depth, despite being a teenager at the time of his abduction 566 and being in captivity with the LRA for less than a year. P-0379 clearly distinguished between events he witnessed personally and information he was told by others. In questioning the witness, the Defence appeared to indicate that the witness’s testimony 567 was affected by feelings of bitterness towards Dominic Ongwen. The Chamber saw no indication that the witness’s testimony was anything other than his truthful account of his experiences in the LRA. In this context, the Chamber notes that the witness’s testimony is consistent with other reliable evidence.

xxii P-0406

P-0406 testified live before the Chamber with protective measures, having received Rule 568 74 assurances. P-0406, an LRA fighter, testified about his experiences in the LRA and about the attacks on Odek, Lukodi and Abok IDP camps. His testimony was detailed, comprehensive and nuanced. The witness had a remarkable recollection, testifying

564 P-0379: T-56 ; T-57 ; T-58 ; T-59 . 565 See for example P-0379: T-56 , p. 21, line 6 – p. 25, line 10 (describing how the LRA made newly abducted boys, including some as young as 10-12 years old, beat the dead body of a young boy who had tried to escape from the LRA and who the LRA fighters had killed by stabbing him with a bayonet. Around the same time, after being trained to dismantle a gun, LRA fighters made the newly abducted boys dance at Dominic Ongwen’s household. They were told that if they did not dance, they would be beaten. After dancing, the boys were given biscuits). 566 P-0379: T-56 , p. 6, line 23 – p. 14, line 3; T-57-CONF, p. 15, line 16 – p. 18, line 22. See P-0379: T-56 , p. 17, line 1 – p. 33, line 16; T-57 , p. 35, line 8 – p. 50, line 9, p. 67, line 3 – p. 74, line 10. 567 P-0379: T-59 , p. 9, lines 7-12. 568 P-0406: T-154 ; T-155 ; T-156 .

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569 credibly as to the dates of events and the details of attacks. The witness was frank about his participation in attacks, thus demonstrating the credibility of his accounts. The witness did not attempt to incriminate Dominic Ongwen at all cost, strengthening the Chamber’s view that the witness was not biased against the accused. The Chamber is satisfied that the witness credibly testified regarding the LRA’s attacks on Odek, Lukodi and Abok IDP camps.

The Defence challenges P-0406’s testimony, stating that his testimony is dubious and 570 that it is doubtful P-0406 ever met Dominic Ongwen, let alone was a part of his group. In particular, the Defence alleges that the witness testified to being in Sudan and seeing Dominic Ongwen and Joseph Kony together, which the Defence contends is implausible 571 and unsupported by credible evidence. The Chamber finds that the Defence’s argument is without merit, noting that P-0205 credibly testified to going with Dominic Ongwen to see Joseph Kony in 2004, several months after the attacks in Odek, Lukodi 572 and Abok IDP camps, consistent with P-0406’s account. In this context, the Chamber also notes that P-0406 testimony is generally consistent with the testimony of other credible witnesses. The difference between his testimony and others is reasonably explained by the nuances to be expected in the testimony of individuals relaying their personal experience. Further, some imprecision is to be expected when witnesses name locations or testify to events that took place in the bush, a place where the nearest landmark is used to reference the location.

xxiii P-0410 573 P-0410 testified live before the Chamber with protective measures. P-0410, a former LRA fighter, testified about his experiences in the LRA and about the attacks on Odek and Lukodi IDP camps. P-0410 was a candid and forthright witness. His narrative account of events was generally chronological and he noted the circumstances under

569 See for example P-0406: T-154 , p. 41, line 21 – p. 77, line 19 (testifying in relation to the Odek, Lukodi, Barlonyo and Abok attacks). 570 See Defence Closing Brief , paras 363, 408-09, 419, 452. 571 The Defence alleges that this is not possible because the witness was abducted on or around 3 September 2002 and returned from the bush in December 2004, that Dominic Ongwen did not travel to Sudan during that time period and that no credible witness places Dominic Ongwen in Sudan in that period. Defence Closing Brief , paras 363, 408. 572 See P-0205: T-48 , p. 7, line 20 – p. 9, line 16. P-0406 testified that Dominic Ongwen and Joseph Kony were both in Sudan in November 2004, shortly before his escape. P-0406: T-154 , p. 34, lines 16-20, p. 80, lines 14-17. 573 P-0410: T-151 ; T-152 .

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which events took place. He was extremely detailed and comprehensive in his recounting

of events, indicating to the Chamber that he personally experienced the events he

described. For this reason, the Chamber does not accept the Defence argument, made in the context of the discussion of the attack on Odek IDP camp, that ‘P-0410 invented a

574 story; he knew about plans, but he did not go to Odek or the RV’.

575 P-0410’s testimony was consistent with his two years’ experience in the LRA. When

describing events, the witness recounted his thought process at the time, further

indicating that he was speaking from personal experience. The witness differentiated

between events he witnessed himself and what he heard of from others. The Chamber

576 also considers it significant that the witness did not incriminate the accused at all cost, indicating a lack of bias and further enhancing the Chamber’s view of his credibility.

While the Chamber is of the view that the witness testified about his own personal

experiences and, in particular, that he participated in the attack on the Odek and Lukodi

IDP camps, there is an aspect of P-0410’s testimony which differs significantly from

other reliable witnesses’ accounts of events. In particular, P-0410 testified that Buk

Abudema and Vincent Otti participated in the planning and in the attacks on Odek and

577 Lukodi IDP camps. As laid out in the respective sections of the Chamber’s evidentiary

578 analysis, this account is not consistent with the testimony of other reliable witnesses.

579 Noting also the Defence submissions, the Chamber has considered whether this discrepancy should have a general effect on the Chamber’s assessment of P-0410’s

credibility.

, para. 379. The Chamber notes that ‘RV’ was an expression frequently used by witnesses 574 Defence Closing Brief to refer to gatherings of LRA groups. 575 See for example P-0410: T-152 , p. 28, line 15 – p. 30, line 3. Although he testified that ‘Okwee’ (Okwer) was a commander in charge of a battalion of Sinia, when asked to describe Okwer’s tasks, the witness accurately described the role of an LRA intelligence officer. Okwer served as Sinia’s brigade intelligence officer. See P- 0205: T-47 , p. 39, lines 5-10. 576 For example, while the witness assumed that Dominic Ongwen participated in the attack on Odek and Lukodi because in his view all the high ranking commanders would be there, he did not testify that he actually saw Dominic Ongwen there. P-0410: T-151 , p. 41, lines 5-11, p. 42, lines 1-11, p. 42, lines 15-20; T-152 , p. 37, line 14 – p. 38, line 3. 577 P-0410: T-151 , p. 33, lines 14-19, p. 42, lines 15-20; T-152 , p. 42, line 9 – p. 43, line 3. 578 See sections IV.C.7.iii, IV.C.8.ii below. 579 Defence Closing Brief , paras 379, 418.

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In relation to the attack on Odek IDP camp, P-0410, asked which commanders were giving instructions at the assembly, responded:

All the commanders, all the senior commanders in the bush were present. Otti Vincent was present. Buk was present. Dominic was also present. Okwee was 580 present. Komakech was also present.

In addition, the witness spontaneously stated that he saw ‘Buk’ during the attack behind

him at the barracks, and insisted on this testimony even when confronted with his prior statement where he had said that he did not see ‘Buk’ during the attack. 581

A little later, asked who was the overall commander of his group when they attacked

Odek, P-0410 responded:

The commanders who were senior, who had authority then and who were fierce, included Buk, Otti and Dominic Ongwen. Those three people were feared by the junior soldiers and all of them were there. I believe that all of them were there 582 because all the commanders went there.

In relation to Lukodi, P-0410 stated the following in relation to who was present at the pre-attack RV:

Most of the commanders who were in Odek were also present there. Those of Dominic were all there. There was Buk. There was Okwee also who was present. All the top commanders were there. Whenever there’s an RV announcing an attack, all the commanders would come together and they contribute their soldiers from 583 their units, then the group that has been selected would go.

When asked by Defence counsel whether ‘Otti and Banya’ were also there, P-0410

reacted as follows:

They were there because all these commanders briefed us on the same issue. Just 584 as we went to Odek, they repeated to us what people should and do in Lukodi.

When it was pointed out to P-0410 that in his prior statement he mentioned ‘Banya, Komakech, Okwee, Ongwen and Buk’, but not Vincent Otti, the witness stated:

580 P-0410: T-151 , p. 33, lines 14-19. The Chamber notes that the witness referred only to ‘Buk’, but that context establishes that this could reasonably only be a reference to Buk Abudema. 581 P-0410: T-151 , p. 41, line 5 – p. 43, line 11. 582 P-0410: T-151 , p. 42, lines 15-20. See also T-152 , p. 37, line 14 – p. 38, line 3. 583 P-0410: T-151 , p. 61, lines 8-15. 584 P-0410: T-152 , p. 41, lines 10-12.

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I could have forgotten, but all these leaders were there. Because I was present in all the RVs that were called, because most times when my commander is going for an operation, I would go with him. And usually when there is an attack which is planned like that, all these other commanders, senior commanders would be there. So it could be an oversight I had forgotten, because sometimes you would forget 585 some things. But that is what I know. On the face of this evidence, with the exception of the statement that he saw ‘Buk’ on the ground at Odek, which the Chamber finds dubious in light of the conflicting prior statement and in light of the following, it appears that the witness when discussing the presence of senior commanders, rather than recounting facts as observed, was stating what he deduced or believed to be the case. In addition to the witness himself saying as much in one instance, this is strongly indicating by the repeated reference to ‘all’ commanders, and to how an attack was usually conducted. Also, beyond mentioning Vincent Otti and Buk Abudema as just laid out, P-0410 did not attribute to them any specific actions during the preparation for the attacks on Odek and Lukodi, or during the attacks themselves. In light of this, and in light of the fact that there is no independent corroboration of Buk Abudema’s and Vincent Otti’s presence on the ground for the Odek 586 or Lukodi attacks, the Chamber concludes that this part of P-0410’s evidence is not reliable.

In any case, P-0410’s placing of Buk Abudema and Vincent Otti at the planning locations of both Odek and Lukodi attacks is a transparent, easily detectable error that is separable from the rest of his testimony. For this reason, and noting that his testimony was generally consistent with that of other witnesses, while the Chamber does not rely on P-0410’s evidence to the extent that it implicates Vincent Otti and Buk Abudema in the attacks on Odek and Lukodi IDP camps, the Chamber finds that this issue has no bearing on P- 0410’s general credibility.

Finally, concerning P-0410’s date of birth, the witness testified that he was born on 587 588 1989, which is also indicated on its birth certificate. Regarding this re-issued birth certificate, P-0410 testified that his initial birth certificate was destroyed in the

585 P-0410: T-152 , p. 42, line 14 – p. 43, line 3. See also P-0410: T-152 , p. 42, lines 9-13. 586 In fact, in relation to the attack on Odek IDP camp, P-0410 is indirectly contradicted by P-0264 and P-0309, who testified that Dominic Ongwen was the most senior person involved; P-0264: T-64 , p. 39, lines 23-24; P- 0309: T-60 , p. 74, lines 13-16. 587 P-0410: T-151-CONF, p. 5, lines 9-10. 588 Birth certificate, UGA-OTP-0272-0931.

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camps, his mother told him the date of his birth and he obtained a birth certificate with 589 that date in August 2016. The Defence submits that ‘it takes strong exception to such evidence’ in order to proof the witness’s age since it was obtained ‘after the commencement of the case’. 590 First, the Chamber does not find that the point in time when the document was requested (after the opening of the case) influences its probative 591 value. Unlike suggested by the Defence, there is no indication that the witness requested the document with the intention to mislead the Chamber. Given the circumstances in which civilians abandoned their dwelling places and lived in camps that were burnt down in the conflict, it is reasonable that they received official government documents, such as birth certificates, that were issued recently and contain information the government obtained from the civilians’ themselves. Further, the Chamber considers the witness’s testimony in relation to his age credible and reliable. Absent other evidence undermining the reliability of the document, the Chamber does not make negative inferences as to the credibility of witnesses and their reliability of their information merely because governmental records such as birth certificates were recently issued.

xxiv John Robert Okodel (D-0020) John Robert Okodel’s prior recorded statement was introduced pursuant to Rule 68(2)(b) 592 of the Rules. John Robert Okodel, a former LRA member, provided testimony about joining the Uganda People’s Army and subsequently staying with the LRA from 1996 until his escape in 2000. The witness provided testimony that was detailed and contextualised. The Chamber does not doubt that the witness testified truthfully of his recollection of events and relationships.

xxv Francis Okot (D-0024) Francis Okot, a former LRA fighter, testified live before the Chamber without protective 593 measures. He testified about his abduction, which he stated took place when he was approximately 17 years old, and his experiences in the LRA, including his knowledge of Joseph Kony and Dominic Ongwen. The witness spent more than 15 years in the LRA

589 P-0410: T-152 , p. 5, line 22 – p. 7, line 6. 590 Defence Closing Brief , para. 519. 591 Defence Closing Brief , para. 519. 592 D-0020 Statement, UGA-D26-0010-0382. See Decision on the Defence Request under Rule 68(2)(b) , paras 9- 10, p. 12. 593 D-0024: T-192 .

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and eventually escaped in 2012. Francis Okot’s testimony was precise and clear and he provided information, detailed and contextualised in a manner that convinced the Chamber that he spoke of his personal experience. The witness also provided evidence of a nature that could be expected of a fighter who had spent considerable time in the LRA.

xxvi Sam Opio (D-0025) 594 Sam Opio testified live before the Chamber. Sam Opio, a former LRA fighter, testified about his experiences in the LRA, his knowledge of Dominic Ongwen and the attack on Pajule IDP camp.

The Chamber agrees with the Prosecution that D-0025’s testimony regarding the Pajule 595 attack cannot be relied upon. The Chamber is not convinced of the witness’s testimony 596 that he did not participate in the attack on Pajule IDP camp relevant to the charges. The details that he provided were so specific that it seems unlikely that he was repeating 597 information he had come to learn from others. Rather, the Chamber considers it probable that the witness was actually present in the attack. Additionally, the witness’s testimony in relation to Dominic Ongwen’s presence near Pajule is not credible. First, the Chamber notes that the evidence demonstrates that Dominic Ongwen was quite 598 mobile at the time of the attack and was not infirm as the witness attests. Indeed a number of witnesses place Dominic Ongwen on the ground at the attack on Pajule IDP 599 camp. The witness denied that the ‘DO’ he marked in a sketch refers to Dominic Ongwen as suggested in his statement and as would be presumable in light of his 600 601 testimony. His explanation for the deviation is unconvincing. The Chamber is of the view that the witness was motivated to minimise Dominic Ongwen’s involvement in the LRA attack on Pajule IDP camp. Therefore, the Chamber cannot rely on his testimony in

594 D-0025: T-226 ; T-227 . 595 See Prosecution Closing Brief , para. 238. 596 D-0025: T-226 , p. 63, lines 7-10, p. 64, lines 11-17. 597 See D-0025: T-227 , p. 18, line 19 – p. 36, line 9. 598 See D-0025: T-226 , p. 63, lines 10-16; T-227 , p. 32, lines 2-6. 599 See paras 1264-1288, 1294-1296, 1330-1331, 1337 below. 600 D-0025: T-227 , p. 29, line 2 – p. 36, line 9; D-0025 sketch of Pajule, UGA-D26-0010-0458. 601 D-0025: T-227 , p. 29, line 2 – p. 36, line 9 (the witness was evasive about Dominic Ongwen’s location and stated that the ‘DO’ represents ‘the direction that the people who left came and re-joined us’).

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relation to the Pajule IDP camp attack. In light of this, his whole evidence is brought in doubt to such an extent that the Chamber sets it aside completely.

xxvii Kenneth Oyet (D-0026) 602 Kenneth Oyet testified live before the Chamber. Kenneth Oyet, a former LRA fighter, offered testimony about his experiences as an LRA fighter from 1997 to 2007. The witness testimony was clear, internally consistent and detailed. He was forthright when 603 he did not recall or was unclear about certain information. The witness’s testimony in relation to the course of the attack on Pajule IDP camp was of limited relevance as the 604 witness did not participate in the attack and only saw people coming back from Pajule. The Chamber notes that the witness was present for parts of the planning of the Pajule 605 IDP camp attack.

xxviii Simon Tabo (D-0034) Simon Tabo’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 606 Rules. He testified about his abduction, which he stated took place in 1998, when he was 11 years old, and his experiences in the LRA until his escape in 2014. The Chamber is satisfied that the witness testified credibly about his lived experience in the LRA.

xxix Daniel Opiyo (D-0056) 607 Daniel Opiyo testified live before the Chamber. Daniel Opiyo, a long term member of 608 the LRA, testified about the LRA and about an attack on Pajule IDP camp and Dominic Ongwen’s role in the attack. The witness’s testimony was detailed, contextualised and the Chamber was satisfied that the witness was telling the truth as he knew it through the course of his testimony.

602 D-0026: T-191 . 603 See for example the witness’s testimony about the ranks of a certain officer. D-0026: T-191 , p. 10, lines 14-17. 604 D-0026: T-191 , p. 29, line 17 – p. 30, line 14. 605 D-0026: T-191 , p. 25, line 25 – p. 27, line 11, p. 28, lines 16-25. 606 D-0034 Statement, UGA-D26-0022-0385. See Decision on the Defence Request under Rule 68(2)(b) , paras 11-13, p. 12. 607 D-0056: T-228 ; T-229 . 608 The Chamber considers that the evidence indicates that this attack on Pajule IDP camp described by this witness is not the same attack at issue in these proceedings. See para. 1287 below.

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xxx Christopher Oloyo (D-0068)

609 Christopher Oloyo testified live before the Chamber. Christopher Oloyo, a former LRA fighter, testified about his experience in the LRA and about an attack on Pajule IDP 610 camp. The witness’s testimony was clear. He differentiated between his personal experiences and what he heard from others. The witness provided details that convinced the Chamber that he spoke from personal experiences.

xxxi Michael Oryem (D-0075)

Michael Oryem, known in the LRA as ‘Abongomek’, testified live before the

611 Chamber. Michael Oryem, an LRA fighter, testified about his experiences in the LRA, including his knowledge of Dominic Ongwen. The Chamber considers Michael Oryem’s testimony at times evasive, particularly in relation to the attack on Odek IDP camp. When the witness was asked by the Defence how he heard of the Odek attack, he spoke for 612 three minutes without answering the question. Such behaviour undermined the Chamber’s view of the witness’s credibility.

Aspects of his testimony are also unreliable. Significantly, Michael Oryem testified that he did not participate in the attack on Odek IDP camp, but rather was east of the Achwa 613 River, in an area called Lapak, with Dominic Ongwen. However, multiple witnesses

credibly testified that Michael Oryem not only participated in the Odek IDP camp attack, 614 but also played a key role. The Chamber is satisfied that the evidence shows that

Michael Oryem participated in the Odek IDP camp attack and his testimony in relation to both his and Dominic Ongwen’s whereabouts at the time of the Odek IDP camp attack

cannot be relied upon. Additionally, the witness offered a confused and convoluted

609 D-0068: T-222 ; T-223 . 610 The Chamber considers that the evidence indicates that this attack on Pajule IDP camp described by this witness is not the same attack at issue in these proceedings. See para. 1287 below. 611 D-0075: T-224 ; T-225 . 612 D-0075: T-224 , p. 74, line 21 – p. 76, line 1. 613 D-0075: T-224 , p. 76, lines 1-23. 614 See P-0406: T-154-CONF, p. 45, line 21 – p. 46, line 1 (a ‘support weapon’ called a ‘12’ was used in the course of the Odek IDP camp attack, fired by a commander known as Abongomek); P-0054: T-93 , p. 15, lines 15-21; T- 94 , p. 22, lines 9-16 (an LRA fighter, Abongomek, fired an RPG and the shot landed on one of the huts in the barracks and burnt that hut during the Odek IDP camp attack); P-0314: T-75 , p. 23, lines 13-19 (during the attack Abongomek fired some bullets, from the big gun with chains, however the gun failed later on). See also P-0264: T-64 , p. 72, lines 15-20 (Abongomek participated in the Odek IDP camp attack); P-0330: T-52 , p. 14, lines 19-22 (he went to Odek under the command of ‘Bomek’). The Chamber understands that ‘Bomek’ is an abbreviation of Abongomek. See D-0068: T-223 , p. 7, lines 4-5.

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explanation of the inconsistencies between his previous statements to the Prosecution and his in-court testimony, indicating that there were multiple attacks in Odek IDP 615 camp. The Chamber is unconvinced by his justification. It does not rely on the evidence D-0075 provided.

xxxii D-0079 D-0079 is an Acholi man born in 1986, who testified live before the Chamber with 616 protective measures, after receiving Rule 74 assurances. The witness testified about his abduction, which he stated took place when he was approximately seven years old. Further, he provided an account of his experiences in the LRA and his knowledge of Joseph Kony and Dominic Ongwen. The witness spent more than 10 years in the LRA and eventually escaped in or around 2005. The Chamber is satisfied that the witness testified credibly about his personal experiences in the LRA.

xxxiii D-0085 617 D-0085 testified live before the Chamber with protective measures. D-0085, a former LRA member, testified about her experiences in the LRA, including about the attack on Abok IDP camp attack relevant to the charges. The witness’s testimony was clear, consistent and she was forthright regardless of the identity of questioning party. She clearly distinguished between events that she personally witnessed as opposed to matters she was informed about. D-0085 provided narration rich in the type of details that showed that the witness spent years in the LRA and spoke from personal experience. When the witness spoke of her forced marriage, it was clear to the Chamber that she was speaking 618 of a personal experience that was deeply affecting.

There are aspects of D-0085’s testimony of which the Chamber is not convinced. For example, D-0085 was the only witness to speak of two gatherings before the attack on 619 Abok IDP camp. D-0085 also indicated that Trinkle brigade participated in the attack

615 See D-0075: T-225 , p. 53, line 4 – p. 62, line 1. The Chamber notes the Prosecution submissions as to the myriad inconsistencies in the witness’s testimony and his previous statements to the parties. See Prosecution Closing Brief , paras 269-71. 616 D-0079: T-189 . 617 D-0085: T-239 . 618 See D-0085: T-239 , p. 42, lines 20-23 (‘[m]y abduction has made my live very difficult. I’m not happy, I cannot be happy like people who were not abducted. I’m constantly sad.’). 619 See D-0085: T-239 , p. 21, lines 19-25.

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620 621 on Abok IDP camp. The only other witness to testify thusly was Kenneth Opiyo, a witness whom, as discussed further below, the Chamber finds not credible. The Chamber notes also that offered 622 testimony which indicated that he knew D-0085 personally in 2017 and also spoke of 623 her with . While the Chamber does not impugn D-0085’s testimony on this basis, it does have increased doubts about the veracity of some aspects of her testimony, such as regarding the participation of the Trinkle brigade in the attack on Abok IDP camp. Despite this, the Chamber notes that much of the evidence she offered was consistent with other reliable evidence.

xxxiv Francis Ocen (D-0100) 624 Francis Ocen is a former LRA fighter, who testified live before the Chamber. The witness testified about his work as an LRA signaller and his knowledge of Dominic Ongwen. Francis Ocen offered testimony that was generally consistent with other reliable evidence.

xxxv Kenneth Opiyo (D-0105) 625 Kenneth Opiyo testified live before the Chamber without protective measures. Kenneth Opiyo, a former LRA fighter, testified about his experiences in the LRA, including his participation in the attack on Abok IDP camp relevant to the charges. The Chamber finds that this witness’s testimony may not be relied upon.

Kenneth Opiyo offered a detailed account of his experience in the LRA, describing his personal experiences in a chronological manner and noting the circumstances in which they took place. Further, the Chamber found Kenneth Opiyo to be forthcoming in answering questions from the parties, participants and Chamber. However, the Chamber is attentive to significant discrepancies between the witness’s accounts and the other evidence heard in the case in relation to the 8 June 2004 Abok

620 See D-0085: T-239 , p. 20, lines 7-9. 621 See D-0105: T-190 , p. 8, lines 21-22, p. 15, lines 3-9, p. 26, lines 17-23. 622 See . 623 . 624 D-0100: T-234 . 625 D-0105: T-190 .

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626 IDP camp attack. For example, contrary to other evidence introduced in these

proceedings, the witness testified that: (i) the Abok attack took place on 6 August

627 2004; (ii) members of the Convoy, under the command of Okot Odhiambo,

participated in the Abok IDP camp attack along with the group commanded by

628 Kalalang; (iii) Okot Odhiambo was the commander that selected persons to attack

629 630 Abok IDP camp; (iv) about 200 LRA fighters from his group were sent to Abok;

(v) upon reaching Abok, the LRA entered without resistance, they proceeded to collect

631 food in the camp for about an hour before Ugandan government soldiers arrived; (vi)

civilians were asleep while the LRA was looting the camp and there was no fire in the

camp until after the gunshots by the Ugandan government soldiers started well into the

LRA’s time in the camp; 632 and, more generally, (vii) only women 25 years old and above

633 could be married in the LRA. This testimony is so at odds with the other evidence on

these points as to cast grave doubts as to its accuracy.

The discrepancies are so substantial that the Chamber is unable to conclude that the attack

the witness discussed is the one at issue in this proceeding. The Chamber notes that the

witness was very young when he was abducted, approximately eight years old, and was

634 approximately 11 years old when he allegedly took part in the Abok IDP camp attack.

The witness’s young age as well as the time elapsed since the attack, and the inherent

chaotic nature of the attack, may explain the inconsistencies and illogicality in his

accounts. However, it is clear to the Chamber that the witness’s evidence cannot be relied

upon in relation to the 8 June 2004 Abok IDP camp attack.

Lastly, the Chamber is of the view that Kenneth Opiyo and Sam Ojede met and discussed

635 their accounts of the Abok attack prior to their testimony. Sam Ojede admitted that he

636 and Kenneth Opiyo discussed details of the Abok attack. Kenneth Opiyo was not

626 In many instances, the witness is the only witness in the proceedings to offer this account of events. 627 D-0105: T-190 , p. 26, lines 6-7. 628 D-0105: T-190 , p. 26, lines 13-19. 629 D-0105: T-190 , p. 26, lines 17-23. 630 D-0105: T-190 , p. 26, line 24 – p. 27, line 1. The Chamber notes that it is unclear from the testimony whether the witness means 200 fighters in total or 200 fighters from Odhiambo’s group. 631 D-0105: T-190 , p. 31, line 7 – p. 33, line 1. 632 D-0105: T-190 , p. 32, line 18 – p. 33, line 21. 633 D-0105: T-190 , p. 38, lines 19-23. 634 D-0105: T-190-CONF, p. 4, lines 17-18; T-190 , p. 5, lines 12-13, p. 49, lines 6-12, p. 50, lines 14-17. 635 See also section IV.B.2.v.b.iv, discussion of Sam Ojede’s testimony below. 636 D-0121: T-213-CONF, p. 49, line 16 – p. 51, line 17.

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questioned about his pre-testimony contact with Sam Ojede. The Chamber notes that Sam Ojede and Kenneth Opiyo, alone among the witnesses, testified that the attack on 637 Abok IDP camp occurred on 6 August 2004. Given Sam Ojede’s admission that he and Kenneth Opiyo spoke about the attack, the Chamber is of the view that this misstatement of the date suggests that they coordinated their testimonies, at least to some degree. This further undermines the credibility and reliability of Kenneth Opiyo’s testimony. The Chamber does not rely on this witness’s testimony.

xxxvi D-0157

638 D-0157’s statement was introduced pursuant to Rule 68(2)(b) of the Rules. D-0157’s evidence is a comprehensive and detailed narrative of his abduction, which he stated took place on , when he was 47 years old. He testified in particular about his escape after three days in the bush. The witness stated that

.

iii. Witnesses of sexual and gender based violence

a. Witnesses of sexual and gender based violence directly perpetrated by Dominic Ongwen (P-0099, P-0101, P-0214, P- 0226, P-0227, P-0235, P-0236 and Florence Ayot (D-0013))

639 640 641 642 The Chamber considers the accounts of P-0099, P-0101, P-0214, P-0226, P- 643 644 645 0227, P-0235 and P-0236 to be remarkable in their detail and consistency. All seven witnesses gave clear, nuanced and compelling accounts about their time with Dominic Ongwen in the LRA. They were generally forthcoming in their answers to both

637 See D-0105: T-190 , p. 26, lines 6-7; D-0121: T-213 , p. 44, lines 14-18. 638 D-0157 Statement, UGA-D26-0026-0757-R01. See Decision on Defence Request to Add D-0157 to its List of Witnesses , 16 October 2019, ICC-02/04-01/15-1639, paras 12-15, p. 7. 639 P-0099: T-14 . 640 P-0101: T-13 ; T-14 . 641 P-0214: T-15 . 642 P-0226: T-8 ; T-9 . 643 P-0227: T-10 ; T-11 . 644 P-0235: T-17 . 645 P-0236: T-16 .

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646 parties, even on sensitive topics. Their narratives were replete with complicating,

647 unnecessary details which are indicators that the testimony is of personal experiences.

The extent to which their accounts overlap is also particularly notable, both in respect of

648 649 commonly witnessed events and the coercive environment they all lived in.

It is notable that the Defence identifies no discrete credibility issues concerning these

seven witnesses in its closing brief. The Defence only challenges the procedure by which

650 this evidence was received. This challenge is considered and rejected above. The

Chamber has no reservation to relying fully on the Article 56 testimonies of these seven

women, considering especially that: (i) the Chamber has watched all the recordings of

their video-link testimony before the Pre-Trial Chamber and (ii) the Defence had a full

opportunity to question these witnesses during the Article 56 proceedings.

The Chamber is mindful that much of the accounts of these women concern events which

occurred over a decade ago. Failing to remember matters like the precise dates of distant

events is understandable, particularly considering that life in the LRA was isolated from

651 the information available in broader society. Noting that these women are all victims

of prolonged enslavement, physical/sexual violence and other suffering, the Chamber has

also not placed much weight on failures to articulate difficult details of their life during

652 initial interviews with the Prosecution or organisations like GUSCO. Rather, the Chamber’s focus has been on what the witnesses testified to under oath in the courtroom,

and the mutual reinforcement which came from other witnesses giving similar testimony.

646 For a rare exception of reticence to answer sensitive questions, see para. 2050 below. 647 To pick one example of many, in the context of P-0226’s first forcible sexual encounter with Dominic Ongwen she testifies to spilling a glass of water on his bed before trying to run away. See para. 2051 below. 648 E.g. para. 2038 below (death of Nyeko). 649 As an example, all women describe the moment they become so-called ‘wives’ in similar coercive terms. Para. 2035 below. 650 See section II.B above. 651 E.g. paras 2015, 2026 below. 652 As an example, the Chamber notes that the Defence confronted P-0226 with why she did not initially discuss her personal involvement in the incident described in para. 2084 below during her first interview with the Prosecution. P-0226 says she forgot to mention it. P-0226: T-9 , p. 60, line 19 – p. 62, line 16, p. 73, line 10 – p. 74, line 8. The Chamber notes the evidence which indicates that in fact she did tell the Prosecution about her personal involvement in such an incident just as her first witness statement was being finalised. 4 June 2015 Investigation Note, UGA-OTP-0237-0230-R01; P-0226 Second Statement, UGA-OTP-0236-0583-R01, at paras 12, 23-24. Noting that P-0226 eventually did acknowledge her role and then gave a detailed, clear and fully credible account of the killing of the captured soldier while testifying, the Chamber considers P-0226’s initial failure to discuss with the Prosecution her personal involvement in this killing to be inconsequential.

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The Chamber turns to the credibility of one of Dominic Ongwen’s so-called ‘wives’

653 called by the Defence – Florence Ayot. That she was also one of the women considered

as Dominic Ongwen’s so-called ‘wife’ in the LRA is clear. 654 The Chamber notes that

Florence Ayot first spent time in the LRA as a so-called ‘wife’ of another LRA fighter

655 who later died. Unlike her initial ‘distribution’ to this LRA fighter, Florence Ayot

previously knew Dominic Ongwen before joining his household; he approached her

656 asking her to go live with him and she agreed. She stated, ‘I was free. It was my own

choice to go live with him’. 657 Further, on multiple occasions in her testimony, Florence

Ayot mentioned how difficult Dominic Ongwen’s incarceration has been on her family

658 and how he should be allowed to come back to Uganda to take care of his kids. Noting

the above context, the Chamber turns to the substance of Florence Ayot’s testimony.

Florence Ayot has as harrowing an LRA abduction story as the other seven women, and

describes similar suffering in the LRA prior to joining the accused’s household. 659

However, Florence Ayot’s account of her experiences and the experiences of other

women in the LRA took on a markedly different tone once she began to describe events

after she joined Dominic Ongwen’s household following the death of the man she was

originally distributed to. Florence Ayot explained how happily those with Dominic

Ongwen lived together and how there were never any beatings. She was not able to recall

660 a single instance describing a negative aspect about her relationship with him. Florence

Ayot discussed why she loved Dominic Ongwen and struggled with conceding any

awareness of atrocities he committed in the bush. When confronted with her prior

statements acknowledging that Dominic Ongwen committed ‘very serious and terrible’

653 D-0013: T-244 ; T-245 . 654 P-0101: T-13-CONF, p. 40, lines 1-11, p. 41, lines 1-12; P-0099: T-14-CONF, p. 36, line 20 – p. 37, line 7. 655 D-0013: T-244 , p. 19, line 23 – p. 22, line 13, p. 35, lines 4-14. 656 D-0013: T-244 , p. 36, lines 5-16. See also T-245 , p. 4, lines 3-11. Her account of joining Dominic Ongwen’s household is different from the personal accounts of the other seven women, but is consistent with other credible and reliable evidence that widows had more agency regarding the next man they lived with. See para. 2228 below. 657 D-0013: T-244 , p. 36, lines 24-25. 658 D-0013: T-245 , p. 9, lines 11-12 (‘Let Ongwen come home and help raise his kids because we are fearful about how we are going to raise our kids’), p. 19, lines 5-10, p. 24, line 20 – p. 25, line 4, p. 27, line 14 – p. 28, line 11. 659 D-0013: T-244 , p. 12, line 11 – p. 14, line 17 (abduction and threats of being killed for not following instructions), p. 19, line 23 – p. 21, line 21 (sexual violence victim of an LRA commander named Kijura), p. 23, line 2 – p. 26, line 11 (punishment for trying to escape, including being beaten for attempting to escape herself), p. 34, lines 4-13 (gave birth to a boy fathered by Kijura), p. 37, lines 1-4 (women were not allowed to live alone in the LRA – they had to live with a man). 660 D-0013: T-244 , p. 38, line 22 – p. 39, line 5, p. 41, line 13 – p. 42, line 24; T-245 , p. 3, line 4 – p. 4, line 6, p. 6, lines 5-22.

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atrocities, Florence Ayot obfuscated and denied having mentioned Dominic Ongwen

661

specifically in referring to atrocities committed. She testified to being a leader in

arranging a meeting with other of the seven so-called ‘wives’, in consort with Dominic

662

Ongwen. Recordings of that meeting were played during Florence Ayot’s testimony

and she confirmed making statements that the Chamber understands as attempts to

663

influence the testimony of the other so-called ‘wives’ of Dominic Ongwen. The Chamber is utterly unpersuaded by the witness’s testimony that her statements were mere

attempts to ensure that the other women get along with one another or facilitate their children’s relationship with their paternal family.

664

This meeting was instrumental to the

accused becoming subject to contact restrictions and the Pre-Trial Chamber receiving the

testimony of the other seven so-called ‘wives’ of Dominic Ongwen under Article 56 of

665

the Statute.

Florence Ayot’s testimony as to the experiences of women in Dominic Ongwen’s

household and in the LRA is clearly disproved by the fully credible and reliable

testimonies of P-0099, P-0101, P-0214, P-0226, P-0227, P-0235 and P-0236, not to

mention the other LRA women and girls – including Florence Ayot prior to being

distributed to Dominic Ongwen – who testified to the same horrific environment the other

so-called ‘wives’ described. But the Chamber considers that Florence Ayot’s denial of

661 D-0013: T-245 , p. 6, line 23 – p. 10, line 8, with reference to D-0013 Interview, UGA-OTP-0233-1427, at 1428. See also p. 29, lines 8-23 (in reference to an interaction with the ICC: ‘But there was a lady who was there who started accusing me, pointing fingers and saying “Don’t you know what Dominic did? You know what he did.” And they asked me to sign something and I told them no, why are you asking me to sign whatever it is that I’m supposed to sign? And they told me that we are people who have accused Dominic of crimes. And I told them, I said I cannot sign this because so many people went through these problems. I was abducted. Other people were abducted, so many people were abducted.’). 662 D-0013: T-244 , p. 62, line 19 – p. 64, line 15; T-245 , p. 11, line 17 – p. 12, line 13, p. 15, lines 9-17, p. 17, line 17 – p. 19, line 10, p. 24, line 20 – p. 25, line 4, p. 26, lines 13-21, p. 27, line 14 – p. 28, line 11, p. 29, line 3 – p. 31, line 22, p. 32, line 20 – p. 34, line 3. D-0013’s consortium with Dominic Ongwen is established by multiple recorded phone conversations between them which are discussed across the transcript excerpts. 2 June 2015 Phone Conversation, UGA-OTP-0286-2623; 2 June 2015 Phone Conversation, UGA-OTP-0286-2579; 2 June 2015 Phone Conversation, UGA-OTP-0286-2421; 3 June 2015 Phone Conversation, UGA-OTP-0286-2526. 663 D-0013: T-245 , p. 15, lines 9-17, p. 17, line 17 – p. 19, line 10, p. 24, line 20 – p. 25, line 4, p. 26, lines 13-21, p. 27, line 14 – p. 28, line 11, p. 29, line 3 – p. 31, line 22, p. 32, line 20 – p. 34, line 3. 664 D-0013: T-245 , p. 19, line 6-10, p. 24, line 20 – p. 25, line 4, p. 27, line 22 – p. 28, line 11, p. 33, line 3-23. 665 See generally Decision concerning the restriction of communications of Dominic Ongwen , 3 August 2015, ICC-02/04-01/15-283-Conf (reclassified 29 September 2015; prior procedural history cited therein); Decision on the “Second Prosecution application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, 12 October 2015, ICC-02/04-01/15-316-Conf (public redacted version available: ICC-02/04-01/15-316-Red ).

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what life with Dominic Ongwen was like is understandable given the complex personal and parental relationship which develops as a result of such crimes.

The closest evidence approximating Florence Ayot’s testimony is an isolated moment when P-0214, soon after testifying that Dominic Ongwen committed repeated sexual violence against her, says that ‘Ongwen was taking care of us properly. He used to treat us equally and he used to treat us well. We were very – he was very caring of us and we 666 also cared a lot about him because he was taking care of us.’ In the totality of her evidence, P-0214 gives a more mixed, nuanced assessment than Florence Ayot, testifying credibly, with detail and context, about her time spent in Dominic Ongwen’s household.

The Chamber ultimately concludes that Florence Ayot’s testimony is of very limited use to establish the life of Dominic Ongwen’s so-called ‘wives’ in the bush. Florence Ayot’s testimony is unreliable with regard to the accounts of the other so-called ‘wives’ about the sexual violence perpetrated against them by Dominic Ongwen. In light of all of the above considerations, the Chamber rejects those aspects of Florence Ayot’s evidence which are contradicted by the consistent accounts of Dominic Ongwen’s other so-called ‘wives’.

b. P-0351

P-0351 is an Acholi woman who testified live before the Chamber with protective 667 measures. Her prior recorded testimony was introduced pursuant to Rule 68(3) of the 668 Rules. P-0351 testified about her abduction by LRA soldiers, which she stated took 669 place in December 2002, when she was approximately 12 years old, and in particular

666 P-0214: T-15 , p. 41, lines 16-23. See similarly P-0233: T-112 , p. 44, line 16 – p. 45, line 8 (former LRA fighter stating – without delving into any specificity – that Dominic Ongwen loved and cared for his ‘wives’); D-0056: T-228 , p. 49, line 25 – p. 50, line 14 (former LRA member who observed that Dominic Ongwen lived very happily with his ‘wives’ and did not issue ‘very tough orders’ for them). It is further noted that P-0214 worked with D- 0013 to organise the meeting with the other ‘wives’ discussed in the previous paragraph. D-0013: T-244 , p. 63, lines 3-6. 667 P-0351: T-129 . 668 P-0351 Statement, UGA-OTP-0263-0002-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 24, p. 19 . See also P-0351: T-129 , p. 6, line 1 – p. 7, line 9. 669 The Chamber notes that the witness statement indicates her age as ’24 yo’ at the time her statement was taken in April and May 2016 ( see P-0351 Statement, UGA-OTP-0263-0002-R01, at 0002), whereas the witness also stated that she was 12 years old when she was abducted in December 2002 ( see P-0351 Statement, UGA-OTP- 0263-0002-R01, at para. 12) and then during her questioning confirmed that she was born in 1989 ( see P-0351: T-129-CONF, p. 15, lines 11-15. See also National ID Card, UGA-OTP-0266-0016 and Form, UGA-OTP-0233- 0159, at 0159). However, the Chamber also notes that the witness clearly stated that she did not recall her date of birth (P-0351: T-129 , p. 4, lines 10-11, p. 14, lines 11-13) and only asked her brother for it for purposes of

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about the time she spent in Dominic Ongwen’s group. P-0351 eventually escaped in 2006.

She provided a detailed account of her own ‘distribution’ to an officer and her experience

as his so-called ‘wife’. She gave detailed and relevant information about the life of

abducted women and girls in the LRA. She provided a detailed account of her own

personal experience which is directly relevant to the charges. In the assessment of the

Chamber, P-0351’s testimony is fully credible and reliable.

c. P-0352

670 P-0352 testified live before the Chamber with protective measures. She provided a 671 statement to the Prosecution, which was submitted under Rule 68(3) of the Rules. P-

0352, a former LRA member and member of Dominic Ongwen’s household, testified

about her experiences in the LRA as well as about the rules concerning the ‘distribution’

of women, boys and girls. P-0352 was a confident, bold and candid witness. She was

forthcoming, knowledgeable and detailed in her recounting of events. The witness’s

testimony was replete with the kind of details which convinced the Chamber that she

testified of events she personally experienced. She was clear in distinguishing between

events she witnessed herself and those she learned of through other means. Further, her

testimony was consistent with other reliable evidence.

The Chamber notes the Defence’s questioning as to alleged inconsistencies between her

amnesty application form and her testimony before the Chamber, suggesting that she was 672 never married in the bush. The Chamber considers reasonable the witness’s

obtaining her ID (P-0351: T-129 , p. 14, lines 17-22). Overall, the Chamber considers more reliable the witness’s account of having been abducted at the age of approximately 12, corresponding to a date of birth in around 1989. The Chamber does not consider this smaller discrepancy to affect the witness’s general credibility. The Chamber also notes that the date of abduction given by the witness is not compatible with her testimony that Dominic Ongwen was injured about eight months after her abduction (P-0351: T-129 , p. 41, lines 6-13), given that Dominic Ongwen was injured in October or November 2002. See section IV.C.3 below. Even though P-0351 gave a specific date for her abduction (12 December 2002), stating that she knew ‘because [she] was still going to school and [she] knew dates very well then’ and that she was in P5 at the time (P-0351 Statement, UGA-OTP-0263-0002- R01, at para. 12), the Chamber considers that her evidence on both the date of abduction and the duration of time between the abduction and Dominic Ongwen’s injury may very understandably have been affected by the witness’s young age, the passage of time and the general difficulty in relation to estimating the duration of time in the bush. Accordingly, the issue does not affect the general reliability of the testimony of P-0351. 670 P-0352: T-67 ; T-68 . 671 P-0352 Statement, UGA-OTP-0260-0315-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 25, p. 19. See also P-0352: T-67 , p. 11, line 7 – p. 14, line 21. 672 P-0352: T-68 , p. 22, line 24 – p. 25, line 20; Amnesty Commission application, UGA-OTP-0270-0166, at 0169 (the Amnesty application checked ‘never had sex’ which suggested, according to the Defence, that the witness was a ‘ting ting’ throughout her time in the bush).

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explanation that the persons filling out the amnesty form on her behalf must have looked 673 at her age and size at the time and chosen an (incorrect) answer. Also, the Chamber is of the view that the discrepancy raised by the Defence is of limited importance. The witness provided compelling and believable testimony as to her experience in the bush and the Chamber places limited value on the information provided in the amnesty application form, which the witness did not fill in herself and in a process about which the Chamber has little to no information. The Chamber’s view of P-0352’s credibility is not undermined because of this discrepancy.

d. P-0366 P-0366 is an Acholi woman born in 1992, who testified live before the Chamber with 674 protective measures. Her prior recorded testimony was introduced pursuant to Rule 675 68(3) of the Rules. P-0366 presented a detailed account of her experience as an LRA 676 abductee at a young age, her time in Dominic Ongwen’s household as a ting ting , and her time as so-called ‘wife’ of an LRA soldier.

Her evidence as to what she observed or otherwise got to know while in the LRA is detailed, specific and individual. The witness understandably was not always able to state the dates of various events, or estimate durations, and, again understandably based on her age and position as a ting ting , not able to describe accurately the organisational features of the LRA. Yet, the Chamber notes that P-0366 was able to place in context and discuss 677 in detail when asked those facts and events which she testified about with confidence. The Chamber therefore accepts that the testimony of P-0366 is truthful, and based on P- 0366’s personal observation and experience.

At the same time, there are several aspects of P-0366’s testimony which merit being addressed. First, in relation to when the witness was abducted by the LRA, the prior recorded testimony of P-0366 contains a contradiction: P-0366 stated that she was born

673 P-0352: T-68 , p. 25, lines 9-16. 674 P-0366: T-147 . 675 P-0366 Statement, UGA-OTP-0260-0289-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 26, p. 19. See also P-0366: T-147 , p. 9, line 20 – p. 11, line 3. 676 See para. 2107 below. Ting tings were young girls used as baby sitters and domestic servants by the LRA. 677 In the courtroom, P-0366 was asked to expand on information contained in the prior statement about a girl who was beaten because she attempted to refuse becoming a so-called ‘wife’ of an LRA soldier, see P-0366: T-147 , p. 12, line 15 – p. 15, line 19. The witness responded naturally and provided further detail, indicating also when she did not know what she was being asked about.

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678 on 1992, but also that she was abducted in December 2000 at the age of

679 11.

The statement of P-0366 to the effect that she was abducted in December 2000 also

presents difficulties when attempting to reconcile it with other evidence. P-0366 states

that when she joined Dominic Ongwen’s household shortly after her abduction,

680 and were there. Yet, there is compelling evidence,

681 . The Chamber

also has before it P-0366’s declaration under the Ugandan Amnesty Act, dated

2003, wherein it is stated that P-0366 ‘join[ed] rebel activity’, i.e. was abducted,

682 on 5 November 2002. Moreover, P-0366’s sponsorship programme application states

683 that she was abducted in October 2002.

These discrepancies were put to P-0366 in court, but the witness maintained her

684 testimony as recorded in her written statement. Moreover, the witness estimated the

685 duration of her stay in the LRA at ‘about two years and a half, coming to three’. Noting

686 that the witness escaped from the LRA around mid-February 2003, this would be

compatible with abduction in December 2000 but not with abduction in 2002.

In light of these discrepancies, the Chamber cannot positively determine at which time

P-0366 was abducted. The issue is of particular significance because it is as a

consequence not possible to determine to what extent the facts described by P-0366 took

place during the period of the charges. To account for this, the Chamber relies on the

testimony of P-0366 for those facts where it can conclusively be established that they

occurred within the period relevant to the charges. In particular, the Chamber notes that

678 P-0366 Statement, UGA-OTP-0260-0289-R01, at 0289; P-0366: T-147-CONF, p. 8, lines 6-7. 679 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 13. This relates to the witness’s second abduction by the LRA, which is relevant under the charges. See for the first abduction P-0366 Statement, UGA-OTP-0260- 0289-R01, at para. 11. 680 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 33; . 681 . 682 Declaration, UGA-OTP-0267-0293, at 0293, 0297. 683 Application, UGA-OTP-0244-1958, at 1958. 684 P-0366: T-147 , p. 54, line 22 – p. 56, line 7. See also P-0366 Statement, UGA-OTP-0260-0289-R01, at paras 130-31. 685 P-0366: T-147 , p. 56, lines 13-21. 686 This is conclusively demonstrated by the documents produced shortly after P-0366’s return from the LRA: UGA-OTP-0267-0293 (declaration dated 2003); UGA-OTP-0265-0077 (certificate of amnesty dated 2003).

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P-0366 stated that after being made the so-called ‘wife’ of , she spent two months

687 at the same sickbay where Dominic Ongwen was at the time. She provides a number

of details which are externally corroborated, such as the fact that Dominic Ongwen was

688 689 injured in one of his thighs, that Odong Cow was in the sickbay for security, and

that Dominic Ongwen’s escort Korea was also present. 690 P-0366 also stated that she

’s so-called ‘wife’ until her escape in early 2003. 691 remained

This leaves no doubt that P-0366 was a so-called ‘wife’ in Sinia during the period

relevant for the charges, and the Chamber relies on her evidence for this purpose.

The Chamber also notes that certain statements by P-0366 are demonstrated to be

inaccurate by other evidence. P-0366 testified that Dominic Ongwen’s so-called ‘wife’

was pregnant and gave birth during P-0366’s stay in the bush, although she could

692 not recall the sex of the child. However,

693 . On this

point, the Chamber does not accept the testimony of P-0366. However, considering that

the events took place a long time ago, when P-0366 was a child, and considering that this

is the kind of fact that may easily be susceptible to shortcomings of memory over time,

the Chamber does not consider the issue to have an impact on P-0366’s general credibility.

Finally, P-0366 testified that during her time with the LRA, Dominic Ongwen had a so-

called ‘wife’ by the name of Acen, whose child P-0366 took care of. 694 There is no other

evidence of this woman, whereas a number of witnesses have testified about the

composition of Dominic Ongwen’s household. The issue was put to P-0366 in court, to

which P-0366 reacted as follows: ‘Acen is currently back at home. She also says herself

that she was Odomi’s wife. But anyway, in the bush people would know she’s actually

back home, and we are close.’ 695 The witness also stated: ‘Acen is close to me. We stay

together with her. Sometimes we would discuss what happened to us while we were in

687 P-0366 Statement, UGA-OTP-0260-0289-R01, at paras 98-99. 688 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 99. See section IV.C.3 below. 689 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 101. See section IV.C.3 below. 690 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 101. This is corroborated by P-0231, see P-0231: T- 122 , p. 56, lines 9-14. 691 P-0366 Statement, UGA-OTP-0260-0289-R01, at paras 121-28. 692 . 693 . 694 P-0366 Statement, UGA-OTP-0260-0289-R01, at paras 38-41; P-0366: T-147 , p. 59, lines 2-8. 695 P-0366: T-147 , p. 59, lines 9-19.

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the bush, just the two of us, not with other people.’ 696 In general terms, the Chamber understands that there may be circumstances in which contacts with a person with a similar personal experience may have an effect on a witness’s recollection of past events; this dynamic, however, seems unlikely in this particular case, given that P-0366 not only stated that Acen was a so-called ‘wife’ of Dominic Ongwen but specifically indicated that the witness herself took care of Acen’s child while in the LRA. The Chamber considers it unnecessary to speculate about possible reasons which may explain P-0366’s mentioning of Acen as Dominic Ongwen’s so-called ‘wife’, nor is it able, in the absence of further details, to determine to what extent the witness is mistaken in this regard. In any case, the Chamber is of the view that this discrete issue does not have a bearing on P-0366’s credibility generally and on the reliability of her statement as concerns her own personal experience while in the LRA.

The Chamber also notes that P-0366’s application for participation in the present proceedings states that P-0366 participated in the attack on Pajule in October 2003, a date incompatible with the date of P-0366’s escape as otherwise transpiring from the 697 evidence. The Defence put the issue to P-0366, who responded that she was unable to 698 confirm the date. The statement of the witness refers to an attack on Pajule, but without 699 specifying the date on which the attack took place. Noting that there is evidence of 700 several attacks on Pajule IDP camp in 2002-2003, and noting that applications for participation in the proceedings as victims were not always compiled in ways which guarantee their accuracy, the Chamber attaches no consequence to this discrepancy. Neither does the Chamber attach any significance for the present purposes to the fact that some details which appear in P-0366’s testimony are not reflected in P-0366’s application 701 for a sponsorship programme.

Overall, on the basis of the above, the Chamber is of the view that it is not possible to conclusively determine when P-0366 was abducted and how much of her account can be said to have taken place in the period of the charges. However, the Chamber also

696 P-0366: T-147 , p. 59, lines 20-25. See also P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 40. 697 UGA-OTP-0267-0293 (declaration dated 2003); UGA-OTP-0265-0077 (certificate of amnesty dated 2003); Application for participation as victim, UGA-D26-0012-0359, at 0361. The Chamber further notes that the document also states that P-0366 escaped in December 2003. 698 P-0366: T-147 , p. 89, line 10 – p. 91, line 13. 699 P-0366 Statement, UGA-OTP-0260-0289-R01, at para. 109. 700 See para. 1173, n. 2394 below. 701 Application, UGA-OTP-0244-1958, at 1961; P-0366: T-147 , p. 79, line 7 – p. 80, line 5.

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considers, bearing in mind the above, that it can generally rely on P-0366’s evidence to

the extent it is possible to otherwise connect it with the period of relevance to the charges

in the present case.

e. P-0374

P-0374 is a Lango woman born in 1993, who testified live before the Chamber with

702 protective measures. The prior recorded testimony of P-0374 was introduced pursuant

703 to Rule 68(3) of the Rules. P-0374’s evidence is a detailed and comprehensive

narrative of her abduction in September 2003 and subsequent experience as a female

704 abductee in Sinia, including as so-called ‘wife’, until her release around Easter 2005.

The Chamber deems her evidence to be entirely credible and reliable.

f. P-0396

P-0396 is a Lango woman born in 1991, who testified live before the Chamber with

705 protective measures. Her prior recorded testimony was introduced pursuant to Rule

706 68(3) of the Rules. P-0396 provided a coherent and detailed account of her abduction

in December 2004, ‘distribution’ by Dominic Ongwen as a so-called ‘wife’ to ,

the rapes by and other personal experiences in the LRA until her escape in April

or May 2005.

During examination by the Defence, P-0396 was shown a picture in which another

707 witness, P-0189, had identified , but testified that she did not recognise

708 the person in the photo. The Prosecution submits in this regard that it is not established

that the person in the photo was indeed P-0396’s so-called ‘husband’, and that there were

702 P-0374: T-150 . 703 P-0374 Statement, UGA-OTP-0263-0023-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 27, p. 19. See also P-0374: T-150 , p. 5, line 3 – p. 7, line 11. 704 It is noted that P-0374 only referred to Dominic Ongwen as Sinia commander, and did not mention Buk Abudema who was Sinia commander at the time P-0374 was abducted, and that the issue was raised with P-0374 by the Defence; see P-0374 Statement, UGA-OTP-0263-0023-R01, at para. 46; P-0374: T-150 , p. 40, line 6 – p. 41, line 3. However, the Chamber deems the matter to be of no consequence, as the witness was not in the position to necessarily correctly observe the specific hierarchical structure within the brigade, during her stay in Sinia as a civilian abductee. She was better placed to observe the organisation of her immediate surroundings. 705 P-0396: T-126 ; T-127 . 706 P-0396 Statement, UGA-OTP-0267-0246-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 28, p. 19. See also P-0396: T-126 , p. 61, line 13 – p. 63, line 4. 707 Photograph, UGA-OTP-0260-0212. See for the identification Annotated Photograph, UGA-OTP-0260-0146. The only record of the identification is P-0189’s annotation on the photograph; the issue was not discussed with P-0189 in court. 708 P-0396: T-127 , p. 4, lines 17-22.

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709 multiple persons called in Sinia brigade. Indeed, as pointed out by the

Prosecutor, there is evidence of several persons called in Sinia. testified

710 about a certain . stated that . 711 there was an escort by the name of

stated that

712 . Records of an intercepted communication

report a message to the effect that one was

713 promoted. There is no link in the evidence demonstrating that P-0396 was ‘distributed’

as a so-called ‘wife’ to one of these men. But the cited evidence leads the Chamber to

not attributing any significance to P-0396 not recognising a man identified by someone

else as as her ‘husband’.

Instead, the Chamber notes that P-0396 provided a detailed description of the man to

whom she was assigned as so-called ‘wife’. P-0396 described as tall and lightskinned, with long hair, and said, notably, that he could not straighten his arms ‘because

they were a bit bent’. 714 715 P-0396 estimated to be about 30 years old. P-0396 stated that she did not know ’s rank, and said that he had told her that he ‘was the

leader of the young soldiers’. 716 She stated that was with in the same ‘group’, of which Dominic Ongwen was the leader. 717 In light of the fact that P-0396

provided detailed evidence about , and more broadly also about her experience as

his so-called ‘wife’, the Chamber deems her evidence reliable.

709 Prosecution Closing Brief , para. 153. 710 711 712 713

714 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 48; P-0396: T-127 , p. 24, line 11 – p. 25, line 4. 715 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 48. 716 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 49; P-0396: T-126 , p. 63, lines 16-17. 717 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 54. It is noted that P-0396 stated that she had been told that the name of the group was ‘Pirminia’, an error with no significance. P-0396 Statement, UGA-OTP-0267- 0246-R01, at para. 54.

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The Chamber notes that P-0396 also did not recognise the photograph of a man identified 718 by and as . Considering that the witness had less contact with this person, the Chamber does not attribute any consequence to the witness’s failure to recognise him on a photograph.

The Defence also questioned P-0396 about certain statements which appear in P-0396’s application for participation in the proceedings as a victim, but are not included in the statement given to the Prosecution introduced as evidence in the trial.

In particular, P-0396’s application for participation as victim contains a detailed claim to the effect that immediately after she was ‘given’ to the latter overpowered her and ‘spent the whole afternoon having sexual intercourse with [her] under a tree as other body guards were watching over and again at night he continued until morning’. 719 In court, questioned about the incident, P-0396 stated that ‘[t]hat encounter was not during the day. It was only during the night’, and specifically that it was not true that had 720 sexual intercourse with her under a tree while everyone was watching. Asked whether she remembered saying this to the people who prepared the document, P-0396 stated that 721 she did not recall what she had said. P-0396’s victim application also contains a claim that after military training, the abductees were each ‘given a human being to remove the 722 liver, heart and swallow it in order to become strong’, that she was given an abducted girl and that in the end she was forced by to cut her open and eat her heart and 723 724 liver. In court, P-0396 confirmed the story.

The Chamber emphasises that applications for participation as victim in proceedings before the Court are not witness statements. They are taken in circumstances where it is not established that the facts narrated by the applicants are accurately recorded, including interpretation and reading back to the applicant before signature. Moreover, the formality and solemnity of the occasion are less pronounced or possibly not present at all, which may have an effect on the way applicants present their story. For this reason, and in light

718 P-0396: T-127 , p. 4, lines 23-25. See also Photograph, UGA-OTP-0260-0214;

719 Application for participation as victim, UGA-D26-0012-0271, at 0274. 720 P-0396: T-127 , p. 47, line 23 – p. 48, line 18. 721 P-0396: T-127 , p. 48, lines 19-21. 722 Application for participation as victim, UGA-D26-0012-0271, at 0274. 723 Application for participation as victim, UGA-D26-0012-0271, at 0275. 724 P-0396: T-127 , p. 42, line 4 – p. 44, line 14.

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of her persuasive testimony at trial, the Chamber will not draw any conclusions on the basis of discrepancies between P-0396’s victim application and P-0396’s evidence to the Chamber.

For the same reasons, the Chamber also attributes no consequence to any discrepancies between P-0396’s evidence to the Chamber and an application for a sponsorship 725 programme that she previously made.

It is also noted that while there exists significant overlap, there are also notable discrepancies between P-0396’s evidence on the women who were in Dominic Ongwen’s household, and other evidence on this issue. P-0396 stated that there was a ‘wife’ called Sarah, and another ‘wife’ called Ageno, with a child called Aciro. 726 She also stated that 727 728 was there, with two children. P-0396 also mentioned and , and stated that there was another ‘wife’, ‘in charge of women and girls at Dominic Ongwen’s home’, and that she was told that that woman had given birth and that her child had been 729 released.

On the one hand, the Chamber notes that P-0396 accurately gave details which are not widely known, i.e. that Dominic Ongwen had a so-called ‘wife’ by the name of , and that two girls called and were present in his household. This is a strong factor of external corroboration. On the other hand, however, the Chamber has received evidence from several witnesses who spent long periods of time with Dominic Ongwen in his household, and they do not refer to any of Dominic Ongwen’s so-called ‘wives’ by the names of Sarah or Ageno. Moreover, 730 . These inconsistencies were 731 discussed with P-0396 in court, and she maintained her prior testimony. In this regard, the Chamber notes that Dominic Ongwen, as found above, had a number of so-called ‘wives’ in the LRA and that no witness was able to name all of them present during a certain period, and also that the witness’s memory may reasonably be affected by the passage of time. Accordingly, while this does not affect the general reliability of the

725 See Application, UGA-OTP-0244-2280; P-0396: T-127-CONF, p. 30, line 25 – p. 32, line 18. 726 P-0396 Statement, UGA-OTP-0267-0246-R01, at paras 54, 73. 727 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 74. 728 P-0396 Statement, UGA-OTP-0267-0246-R01, at paras 75-76. 729 P-0396 Statement, UGA-OTP-0267-0246-R01, at para. 77. 730 731 P-0396: T-127 , p. 65, line 24 – p. 68, line 20.

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witness, the Chamber does not rely on that information in the evidence of P-0396 which is demonstrated inaccurate by evidence which is more reliable on the specific issue. In light of the above, the Chamber considers the evidence of P-0396 to be generally reliable and credible, with exception of the specific aspect discussed in detail above.

g. P-0448 732 P-0448 testified live before the Chamber with protective measures. She had also provided a statement to the Prosecution, which was submitted under Rule 68(3) of the 733 Rules. P-0448, a former LRA abductee, testified about her experiences in the LRA, including working as a ting-ting in Dominic Ongwen’s household. P-0448 testified in a manner which made it clear that she was speaking from personal experience. She provided information of certain events in detail, and was able to compellingly express the effect her experience had on her. However, her testimony also demonstrated a number of unresolvable inconsistencies and a lack of clarity going beyond what could be expected from a witness in P-0448’s situation. Of greatest significance is P-0448’s identification of Dominic Ongwen as the commander in whose household she spent some of her time in the LRA as a ting ting .

P-0448 asserted that Dominic Ongwen had a so-called ‘wife’ by the name of Betty or 734 Christine Adong. In her written statement, P-0448 testified that 735 . P-0448 testified that this 736 person participated with a small firearm in an attack on Pajule in 2003. Whereas in her 737 written statement P-0448 spoke simply of a woman named Adongo, in court she explicitly confirmed that the female soldier was Dominic Ongwen’s so-called ‘wife’ 738 Adong, of whose other name P-0448 was not sure. While many witnesses testified about the composition of Dominic Ongwen’s household at the relevant time, no evidence was elicited which would provide corroboration for P-0448’s account of Betty or Christine Adong being among Dominic Ongwen’s so-called ‘wives’.

732 P-0448: T-156 ; T-157 . 733 P-0448 Statement, UGA-OTP-0236-0557-R01. See also P-0448: T-156 , p. 32, line 4 – p. 33, line 16. 734 P-0448 Statement, UGA-OTP-0236-0557-R01, para. 85; T-156-CONF, p. 37, line 24 – p. 38, line 16. 735 P-0448 Statement, UGA-OTP-0236-0557-R01, para. 85. 736 P-0448: T-157 , p. 15, line 22 – p. 16, line 23. 737 P-0448 Statement, UGA-OTP-0236-0557-R01, para. 35. 738 P-0448: T-157 , p. 16, lines 17-23.

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Additionally, P-0448’s application to participate as a victim in the present proceedings, dated 6 September 2016, states that P-0448 was ‘taken to where Kony stayed to help his very many “wives” with housework’, and that ‘Kony would occasionally meet with Dominic Ongwen’. 739 The application does not contain the assertion that P-0448 stayed in Dominic Ongwen’s household as a ting ting . While the Chamber, in light of the limited 740 value of such applications, does not find the discrepancy in itself dispositive, P-0448 failed in court to confirm one or the other version, or even to explain how they could both 741 be correct, perhaps at different times. As a result, her evidence on this point is confused and inconclusive. Thus, while the Chamber accepts that P-0448’s is based on her experience as a female abductee in the LRA, the Chamber also considers that significant doubts exist as to whether . For this reason, the Chamber relies on the testimony of P-0448 only in those aspects which are not affected by this matter.

Furthermore, the Chamber notes that the Prosecution stated during the examination of P- 0448 that it was ‘not actually relying on this witness with regard to the charged Pajule attack’. 742 Indeed, the Prosecution’s closing submissions only fleetingly refer to the evidence of P-0448, and in particular do not rely on her within the context of the attack on Pajule IDP camp of 10 October 2003. However, in light of the fact that P-0448 confirmed with reasonable confidence that the attack took place in 2003 after her 743 abduction, and in light of the fact that she named Vincent Otti as the ‘overall leader of the group’, 744 the Chamber is at a loss as to why P-0448’s evidence with respect to the attack on Pajule IDP camp would have to be discarded entirely. The very limited reliance on P-0448 by the Prosecution and this unexplained refusal of her evidence with respect to the attack on Pajule IDP camp implies that the Prosecution itself has reservations as to P-0448’s reliability. The Chamber also does not rely on P-0448 for its findings in relation to the attack on Pajule IDP camp.

739 Application for participation as victim, UGA-D26-0012-0302, at 0303. 740 See para. 424 above. 741 P-0448: T-157-CONF, p. 39, line 21 – p. 40, line 13. 742 P-0448: T-157 , p. 15, lines 14-16. 743 P-0448 Statement, UGA-OTP-0236-0557-R01, para. 31; P-0448: T-157 , p. 16, lines 1-8. 744 P-0448 Statement, UGA-OTP-0236-0557-R01, para. 33.

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h. D-0006

D-0006, a woman born in , testified live before the Chamber with protective

745

measures. She testified about her abduction in 1991 and subsequent stay in the LRA,

. In addition,

considering that D-0006 spent a long period in proximity of Joseph Kony, her testimony

is also relevant for certain disputed facts in the context of duress as an alleged ground

excluding criminal responsibility. D-0006’s testimony was detailed and credible.

i. Evelyn Amony (D-0049)

746

Evelyn Amony testified live before the Chamber. She testified about her abduction in

1994 and subsequent experience as one of the so-called ‘wives’ of Joseph Kony. She

offered a detailed account of Joseph Kony, her interactions with Dominic Ongwen, and

her escape in 2004 and subsequent participation in the peace talks in 2006-2008. Evelyn Amony’s testimony was credible and reliable.

j. D-0050

D-0050’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the

747

Rules. D-0050 is a Lango woman born in , who testified about her abduction

and her experience as a so-called ‘wife’ of Joseph

Kony. She eventually escaped in 2004. The Chamber did not identify any issues with D-

745 D-0006: T-194 ; T-195 . 746 D-0049: T-243 . 747 D-0050 Statement, UGA-D26-0025-0097 (public redacted version available: UGA-D26-0025-0097-R01); D- 0050 Statement, UGA-OTP-0131-0002-R01 (public redacted version available: UGA-OTP-0131-0002-R02); D- 0050 Interview Transcript, UGA-OTP-0228-1469-R01 (public redacted version available: UGA-OTP-0228- 1469-R02); D-0050 Interview Transcript, UGA-OTP-0228-1506-R01 (public redacted version available: UGA- OTP-0228-1506-R02); D-0050 Interview Transcript, UGA-OTP-0228-1528-R01 (public redacted version available: UGA-OTP-0228-1528-R02); D-0050 Interview Transcript, UGA-OTP-0228-2452-R01 (public redacted version available: UGA-OTP-0228-2452-R02); D-0050 Interview Transcript, UGA-OTP-0228-2509- R01 (public redacted version available: UGA-OTP-0228-2509-R02); D-0050 Interview Transcript, UGA-OTP- 0228-2545-R01 (public redacted version available: UGA-OTP-0228-2545-R02); D-0050 Interview Transcript, UGA-OTP-0228-2585-R01 (public redacted version available: UGA-OTP-0228-2585-R02); D-0050 Interview Transcript, UGA-OTP-0228-2623-R01 (public redacted version available: UGA-OTP-0228-2623-R02); D-0050 Interview Transcript, UGA-OTP-0228-2660-R01 (public redacted version available: UGA-OTP-0228-2660- R02); D-0050 Interview Transcript, UGA-OTP-0228-2720-R01 (public redacted version available: UGA-OTP- 0228-2720-R02); D-0050 Interview Transcript, UGA-OTP-0228-2783-R01 (public redacted version available: UGA-OTP-0228-2783-R02); D-0050 Interview Transcript, UGA-OTP-0229-0230-R01 (public redacted version available: UGA-OTP-0229-0230-R02); D-0050 Interview Transcript, UGA-OTP-0229-0263-R01 (public redacted version available: UGA-OTP-0229-0263-R02). See Decision on the Defence Request under Rule 68(2)(b) , paras 21-25, p. 13.

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0050’s credibility, but it is noted that she did not spend time in Sinia during her time in the LRA.

k. D-0117 748 D-0117 testified live before the Chamber. She testified about her abduction in 1996 and subsequent experience in the LRA, including as a so-called ‘wife’, until her escape in 2014. Considering that D-0117 was not held captive in Sinia, her personal experience does not directly fall within the charges. This does not exclude, however, that her testimony – which is often detailed and differentiated – may be corroborative of other evidence with more direct relevance to the charges.

l. D-0118 749 D-0118 testified live before the Chamber, with protective measures. D-0118 testified about her experience of abduction in 1994, and the subsequent ten years she spent in the LRA, including about her ‘distribution’ as a so-called ‘wife’ by Joseph Kony at the age of 13 years, and the contacts she had with Dominic Ongwen in 1997 and again in 2003. There are no issues affecting the credibility of D-0118 and the Chamber accepts her account as truthful. It must, however, be noted that her own personal experience does not as such fall within the charges.

m. D-0119 750 D-0119 testified live before the Chamber with protective measures. She testified about her abduction in 1993, and the subsequent years she spent in the LRA, including as a socalled ‘wife’ of until her escape in 2004. D-0119 provided a vivid, credible and reliable account of being distributed as a so-called ‘wife’, her experiences in the LRA and the continued trauma she experienced as a result.

748 D-0117: T-215 . 749 D-0118: T-216 . 750 D-0119: T-196 .

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iv. Residents of Northern Uganda

a. Leaders of IDP camps

i Omona Lokilamoi (P-0001), Okema John Brown (P- 0008) – Pajule IDP camp Omona Alfonse Lokilamoi’s statement was introduced pursuant to Rule 68(2)(b) of the 751 752 Rules. Omona Alfonse Lokilamoi was the Chairman of the Local Council of Pajule sub-county and provided testimony about the attack on Pajule IDP camp relevant to the charges, describing the aftermath of the attack as well as the records he kept from the attack, including lists of persons abducted, items pillaged and persons killed. The Chamber finds that the witness clearly explained the source of his information, gave details that supported the credibility of the information provided and identified his personal experiences.

Okema John Brown’s prior recorded statement was introduced pursuant to Rule 68(2)(b) 753 of the Rules. Okema John Brown, the civilian camp commandant of the Pajule side of 754 Pajule IDP camp, testified about the October 2003 attack on the camp and its aftermath. The witness’s testimony was clear, detailed and comprehensive. The witness clearly explained the source of his information and differentiated between what he saw himself and events he was informed of by others.

The witnesses’ testimonies are internally consistent and consistent with each other as 755 well as other reliable evidence.

751 P-0001 Statement, UGA-OTP-0138-0002-R01 (public redacted version available: UGA-OTP-0283-0025). See Decision on the Prosecution’s Request to Add Items to its List of Evidence, to include a Witness on its List of Witnesses and to Submit Two Prior Recorded Testimonies under Rule 68(2)(b) and (c) , 22 November 2016, ICC- 02/04-01/15-600, paras 20-29, p. 14. 752 A governmental administrative structure, commonly referred to by the abbreviation ‘LC’. 753 P-0008 Statement, UGA-OTP-0137-0002-R01 (public redacted version available: UGA-OTP-0283-0048). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 39-42, p. 107. 754 The camp commandant was charged with dealing with, inter alia , problems with food and outbreak of disease, and compiled records of those killed, abducted, huts burnt and items looted after an attack on the camp. P-0008 Statement, UGA-OTP-0137-0002-R01, at paras 8-9. 755 See the testimonies of Joseph Oywak (P-0009) and Dick Okot (P-0067), whom Okema John Brown names in his testimony as some of the sources of his information as well as the testimonies of P-0007 and P-0047.

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ii Joseph Ywakomoi Oywak (P-0009) – Pajule IDP camp

756 Joseph Ywakomoi Oywak testified live before the Chamber. Joseph Oywak, also

757 commonly known as Rwot Oywak, is a local chief in Acholi land and testified about

the Pajule attack and the LRA’s activities in the region during the period of the charges.

The Defence asserts that Rwot Oywak is not a credible witness and his testimony should

be disregarded in its entirety, arguing that Rwot Oywak: (i) fabricated his story about

what happened to him after having been taken at the trading centre in the course of the

Pajule IDP camp attack, (ii) lied about how he was treated while walking to the RV, (iii)

lied about how he was treated at the RV, and (iv) ‘drastically changed’ his account of the

758 Pajule attack since his first statement was recorded by the Prosecution in July 2005.

759 The Defence also suggests that Rwot Oywak had suspicious interactions with the LRA.

Indeed, there are some differences between the witness’s statements and his in-court

760 testimony, which the Defence explored in detail during its questioning of the witness.

However, the differences do not rise to the level that can be rightfully termed ‘drastic’ or

761 which render his testimony incredible. In any case, the nuances of the witness’s

testimony are addressed in the evidentiary discussion below.

As to the allegations that Rwot Oywak fabricated key parts of his story and lied about his

treatment walking to and at the RV, the Chamber discusses this evidence in greater depth

762 in its evidentiary discussion below. For the purposes of this general assessment of

Rwot Oywak’s credibility, it is sufficient to note that many other witnesses, particularly

763 observing Rwot Oywak at the RV, testified that he did not seem under threat. However,

756 P-0009: T-81 ; T-82 ; T-83 . 757 P-0009: T-81 , p. 4, lines 10-20. As the witnesses refer to Joseph Oywak as Rwot Oywak, the Chamber will also refer to him with his most common title. 758 Defence Closing Brief , paras 309-12. 759 Defence Closing Brief , para. 311 ( ). 760 See P-0009: T-83, p. 3, line 16 – p. 8, line 7. 761 On the contrary, the Chamber is of the view that the witness’s statements to the Prosecution are largely consistent with his in-court testimony, as the witness placed Dominic Ongwen at the attack also in his written statements. See P-0009 Statement to the Prosecution (July 2005), UGA-OTP-0151-0167-R01, at paras 41, 45, 53 (however, in his July 2005 statement, the witness stated that he was beaten, but did not mention being beaten by Dominic Ongwen); P-0009 Statement to the Prosecution (September 2015), UGA-OTP-0241-0546-R01, at paras 22-29. 762 See paras 1347-1349 below. 763 P-0081: T-118 , p. 40, line 14 – p. 41, line 16 (stating that Rwot Oywak and Vincent Otti exchanged greetings and hugged and that Rwot Oywak was smiling with Vincent Otti); D-0077 Statement, UGA-D26-0022-0316, at

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the Chamber also recalls P-0006’s testimony that in the course of the retreat from the camp after the Pajule attack, she saw Rwot Oywak and he had been given rice to carry, 764 corroborating a key aspect of his story. Thus, it is clear to the Chamber that he was abducted by the LRA.

Further, the Chamber also notes that Rwot Oywak’s testimony is in large part consistent with other reliable evidence about the course of the attack. The witness was not alone in placing Dominic Ongwen at the attack, nor is his description of the movement of the abductees or the arrival of the helicopter gunship inconsistent with other reliable 765 evidence.

When questioned by the Defence as to whether he had a conversation with Vincent Otti the night before the attack during which he told Vincent Otti that Pajule would best be attacked around Uhuru time, Rwot Oywak denied the accusation, saying ‘[t]hat is a 766 blatant lie, that is a concocted – is a concocted story’. In this regard, the Chamber recalls that P-0081 testified that he heard from a camp resident that Rwot Oywak spoke 767 to Vincent Otti the night before the attack on Pajule IDP camp. Given the fact that Rwot Oywak denied the accusation under oath, P-0081 does not have direct knowledge and also taking into account that the fact is not directly relevant to the charges, the Chamber does not consider that the issue undermines the general credibility of the witness.

The Defence also raised with the witness the discrepancy between his prior statements 768 as to when he first met Dominic Ongwen. In the view of the Chamber, this discrepancy is insignificant and Rwot Oywak has satisfactorily explained that he had such previous contact with the LRA that he was in a position to recognise Dominic Ongwen when he

para. 25 (Rwot Oywak did not seem worried or scared like the other abductees); P-0084 Statement, UGA-OTP- 0139-0149-R01, at paras 127, 130 (P-0084 was also told by other abductees that Rwot Oywak was not treated like other captives but was able to move freely with the rebel commanders and had meetings with them that the abductees could not hear). 764 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 35. 765 See s ection IV.C.6.iii. 766 P-0009: T-82 , p. 79, lines 15-21. 767 P-0081: T-118-CONF, p. 42, lines 5-10; P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 44-45. 768 See P-0009: T-83 , p. 3, line 7 – p. 8, line 7 (the Defence raises the witness 2005 statement to the Prosecution in which he stated that he had met Dominic Ongwen at meetings between 2002 and 2003, as well as his 2015 statement to the Prosecution in which he indicates that he met Dominic Ongwen for the first time at the Pajule attack).

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769

saw him at Pajule IDP camp on 10 October 2003. There is also other independent evidence corroborating Rwot Oywak’s testimony that he met Dominic Ongwen before

770

10 October 2003.

Regarding the suggestion that Rwot Oywak was a ‘collaborator’, worked for the LRA,

771

or had financial dealings with some LRA commanders, including Dominic Ongwen,

772

the Chamber notes his strenuous denials of the claims, as well as the numerous

773

witnesses who testified about Rwot Oywak and his relationship with the LRA. It is

clear to the Chamber from Rwot Oywak’s and other testimonies that Rwot Oywak

communicated with the LRA as an intermediary between the LRA and the government.

However, the evidence does not demonstrate that Rwot Oywak was a part of the LRA or

worked for the LRA. More importantly, there is no indication in this evidence that the

769 P-0009: T-81 , p. 18, lines 6-15, p. 20, line 13 – p. 21, line 12, p. 49, line 4 – p. 50, line 23, p. 51, line 21 – p. 52, line 6. 770 July 2002 report on Peace Initiative, UGA-OTP-0195-0105, at 0106 (a report on peace initiative activities notes that Dominic Ongwen met Rwot Oywak in August 2002); ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0072 (a 15 October 2002 logbook entry stating that Joseph Oywak gave Dominic a letter). Regarding the July 2002 report on Peace Initiative, UGA-OTP-0195-0105, the Defence argued at the time of its submission that the document has low probative value as it did not have a section outlining its methodology and the authors, although apparently authors of ARLPI, were unknown. The report contains detailed notes on various events related to meetings with the LRA and the conflict in Uganda. The report has probative value, in the context of other evidence the Chamber relies upon in relation to the conflict in Uganda and the meetings of various people with the LRA. 771 Defence Closing Brief , para. 311; P-0009: T-82 , p. 45, line 21 – p. 55, line 15; T-83 , p. 8, line 20 – p. 9, line 13. 772 P-0009: T-82 , p. 45, line 21 – p. 55, line 15 (testifying that he was not a collaborator but rather was delegated by his community to work for peace); T-83 , p. 8, line 20 – p. 9, line 13 (denying that he had financial dealings with the LRA and particularly that Dominic Ongwen gave him money). 773 D-0134: T-240 , p. 54, lines 20-25 (Charles Lokwiya testified that he knew Rwot Oywak personally and Rwot Oywak was not a collaborator); P-0249: T-80 , p. 30, lines 8-14, p. 34, line 22 – p. 35, line 22 and p. 44, line 19 – p. 45, line 12 (testifying to hearing rumours that Rwot Oywak was collaborating with the LRA but P-0249 did not personally have knowledge of any collaboration); P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 122, 124 (testifying that Rwot Oywak was authorised by the Ugandan government to meet and speak with the rebels. P-0084 testified that he had a satellite phone with which he communicated with the rebels and would at times bring small items to them, such as food. P-0084 stated that there were some allegations that Rwot Oywak was collaborating with the rebels however he was monitored and there were no confirmed reports. According to P- 0084, Rwot Oywak was helping rebel defectors come out of the bush and was seen by the government as one of the chiefs helping in peace negotiations); P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 121; P-0047: T- 114 , p. 34, lines 16-25, p. 35, line 10 – p. 36, line 8 (testifying that many people said that Rwot Oywak was a collaborator and that the LRA took him to get information. Rwot Oywak was accused because he had a satellite phone and people said that he received it from the enemy camp and used it to speak with the rebels. John Lubwama stated that because of the allegations, Rwot Oywak was arrested but was soon released because there was no evidence. The satellite phone was received from the religious committee working on the Acholi peace initiative and was used because of Rwot Oywak’s role in the peace initiative. John Lubwama testified that Rwot Oywak was arrested before the attack on Pajule and was detained for about an hour before he was released because there was no evidence that he was a collaborator).

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testimony of Rwot Oywak before the Chamber was unreliable on account of his contacts with the LRA.

iii Mario Ottober (P-0274), Zakeo Odora (P-0325) – Odek IDP camp Mario Ottober’s two prior recorded statements were introduced pursuant to Rule 68(2)(b) 774 of the Rules. Mario Ottober, the camp leader of Odek IDP camp at the time of the attack, testified about the attack on the camp and its aftermath. Mario Ottober gave comprehensive and detailed testimony that supported his credibility and the reliability of the information provided. He provided evidence that was comprehensive and rich with the type of details that indicated that he spoke from personal experience and stated when he did not know certain information.

Zakeo Odora’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 775 Rules. Zakeo Odora, one of the Odek IDP camp’s leaders at the time of the attack relevant to the charges, testified about his experiences in the course of the attack and its aftermath. Zakeo Odora offered comprehensive and detailed testimony that supported his credibility and the reliability of the information he provided. His testimony was rich with the type of details that indicated that he spoke from personal experience.

The witnesses’ testimonies are generally mutually consistent as well as consistent with 776 the testimony of other reliable evidence.

iv Santo Ojera (P-0060), Gipson Okulu (V-0004) – Lukodi IDP camp Santo Ojera’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 777 Rules. Santo Ojera offered testimony about his experiences as a Lukodi camp resident and one of the camp’s leaders. Santo Ojera gave comprehensive and detailed testimony that supported his credibility and the reliability of the information he offered. He

774 P-0274 First Statement, UGA-OTP-0244-3375-R01 (public redacted version available: UGA-OTP-0283- 1307); P-0274 Second Statement, UGA-OTP-0267-0174-R01 (public redacted version available: UGA-OTP- 0283-1320). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 74-78, p. 109. 775 P-0325 Statement, UGA-OTP-0264-0242-R01 (public redacted version available: UGA-OTP-0283-1374). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 82-85, p. 110. the testimonies of Hellen Acan and P’Oyoo Lakoch. 776 See 777 P-0060 Statement, UGA-OTP-0069-0034-R01 (public redacted version available: UGA-OTP-0283-0826). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 118-22, p. 109.

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provided evidence that was comprehensive and rich with the type of details that indicate

that he spoke from personal experience. His testimony is also in line with what would be

778 expected from a person with a position of leadership within the IDP camp structure.

For example, he provided detailed lists related to the civilians killed, injured, or abducted

779 in the course of the attack on Lukodi IDP camp.

780 Gipson Okulu testified live before the Chamber. Gipson Okulu, a local councillor

781 (LC) in Lukodi at the time of the attack relevant to the charges, testified about his

experiences in the course of the attack. The witness’s testimony was detailed and

comprehensive. The Chamber is convinced that he spoke of his personal experiences.

The witnesses’ testimonies are internally consistent and consistent with each other as

782 well as other reliable evidence.

v Cyprian Ogola (P-0284), Cyprian Ayoo (P-0293) and Douglas Obwor (P-0306) – Abok IDP camp

Cyprian Ogola’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of

783 784 the Rules. Cyprian Ayoo testified live before the Chamber. Douglas Obwor also

785 testified live before the Chamber, and his prior recorded testimony introduced under

786 Rule 68(3) of the Rules. Cyprian Ogola, camp leader in Abok IDP camp at the time of

the attack on the camp that is relevant to the charges in present case, testified about the attack and its aftermath. The witnesses’ testimonies were credible and reliable.

Regarding the statement provided by Cyprian Ogola, the Chamber finds that the witness

clearly explained the source of his information, gave details that supported the credibility

of the information provided and clearly identified his personal experiences. Further, the

778 See P-0060 Statement, UGA-OTP-0069-0034-R01, at para. 31. See also P-0024: T-78-CONF, p. 13, line 24 – p. 14, line 3 (Santo Ojera was in a leadership position in the camp). 779 P-0060 Statement, UGA-OTP-0069-0034-R01, at paras 71-79. 780 V-0004: T-173 . 781 Gipson Okulu serves as LC1 in the community, a formally elected position charged to ensure good sanitation and the general well-being of the community. 782 See the testimonies of P-0017, P-0024, P-0036 and P-0187. 783 P-0284 Statement, UGA-OTP-0244-1180-R01 (public redacted version available: UGA-OTP-0283-1355). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 138-40, p. 110. 784 P-0293: T-138 ; T-139 . 785 P-0306: T-130 . 786 Decision on Prosecution Applications under Rule 68(3) , para. 22, p. 19. See also P-0306: T-130 , p. 3, line 11 – p. 5, line 17.

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Chamber considers that the witness’s testimony was both internally consistent and 787 consistent with other evidence.

Regarding Cyprian Ayoo’s testimony, the Chamber considers that the witness provided a clear narrative of events and the circumstances under which they took place even when he was questioned out of chronological order, thus demonstrating that he provided firsthand information based on his personal experience as an eyewitness. Throughout his testimony, the witness clearly distinguished between events he witnessed himself and what he heard from other persons. The witness provided details in a manner that indicates that he spoke from personal experience.

The Chamber observed that the witness was at times defensive or appeared agitated 788 during Defence questioning. However, the witness was responsive to the Chamber’s explanation of the role of the Defence and the need to cooperate in answering Defence questions and his testimony did not change during examination by the Defence, remaining consistent and coherent.

Regarding Douglas Obwor’s testimony, the Chamber finds that Douglas Obwor was a forthcoming witness. He provided evidence rich in detail and grounded in a personal narrative of what he witnessed. His testimony was structured, coherent and detailed. The witness distinguished between what he witnessed and what he was told by others. The Chamber considers that Douglas Obwor had a rational and sensible manner throughout his testimony and notes that he did not change his testimony when questioned by the Defence.

The Chamber is attentive to the question of the exact titles of Cyprian Ayoo and Douglas 789 Obwor at the time of the 8 June 2004 attack on Abok IDP camp. However, the Chamber does not place much emphasis on the matter. Given the particularly specific and detailed nature of both witnesses’ testimony, and the evidence of other witnesses, the Chamber considers that whatever official position each of these witnesses held at the

787 Particularly, the evidence provided by Cyprian Ayoo is consistent with and corroborative of the evidence provided by the other leaders of Abok IDP camp, Cyprian Ayoo and Douglas Obwor. 788 See for example P-0293: T-138 , p. 85, lines 8-22. 789 The evidence is not entirely clear as to whether P-0293 or P-0306 was the official ‘Camp Leader’ of Abok IDP camp. P-0306: T-130 , p. 34, lines 3-8; P-0306 Statement, UGA-OTP-0261-0277-R01, at paras 17-18; P-0293: T- 138 , p. 12, line 24 – p. 13, line 3. See P-0286: T-131 , p. 32, line 24 – p. 33, line 2; P-0293: T-138 , p. 79, lines 4- 14; P-0304: T-133 , p. 50, line 22 – p. 51, line 1. See also List of names of Abok camp leaders, UGA-OTP-0247- 1270-R01 (undated); P-0280: T-84 , p. 21, line 13 – p. 22, line 1.

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time of the attack, the witnesses clearly experienced the events first-hand, were in the position to engage with other camp officials and other camp residents in the manner that they described during their testimony and offered accounts consistent with what could be expected from witnesses with leadership roles in the community.

As to the issue of whether Cyprian Ayoo was relieved of duty and replaced with Douglas Obwor because of an alleged misappropriation of funds while Cyprian Ayoo served as 790 the official Camp Leader, the Chamber notes Cyprian Ayoo denied being relieved of 791 duty and stated he resigned so that he could work with an aid organisation. Further, the Chamber notes the paucity of the available evidence about this alleged incident, particularly Douglas Obwor’s testimony, does not undercut the reasoning underpinning the Chamber’s finding that Cyprian Ayoo was in a position to offer the type of information that he provided to the Chamber. Further, the Chamber notes that Cyprian Ayoo’s testimony about the 8 June 2004 Abok IDP camp attack is generally consistent with the evidence provided by other witnesses, including Douglas Obwor. The Chamber also does not consider the alleged incident to have a bearing on the witness’s credibility as a witness before this court.

b. Residents of Pajule IDP camp i P-0006 792 P-0006 testified live before the Chamber with protective measures. She had also provided a statement to the Prosecution, which was submitted under Rule 68(3) of the 793 Rules. P-0006, a resident of the Lapul side of the Pajule IDP camp at the time of the attack on the camp and then 16 years old, provided testimony about her experience during the attack in 2003 and her subsequent experience in the LRA after her abduction in the course of the attack, including being ‘distributed’ as a so-called ‘wife’. P-0006’s testimony was clear, internally consistent and generally consistent with other evidence. The witness distinguished between events she personally experienced and information that she was told by others, was forthcoming with her testimony, regardless of the

790 P-0293: T-138 , p. 79, lines 4-7, p. 85, lines 8-11. See also P-0306: T-130 , p. 35, line 7 – p. 36, line 7. 791 P-0293: T-138 , p. 85, lines 16-20. 792 P-0006: T-140 . 793 P-0006 Statement, UGA-OTP-0144-0072-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 14, p. 19. See also P-0006: T-140 , p. 6, line 9 – p. 8, line 7.

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questioning party. The witness’s evidence in this regard was detailed and rich in the kind

of the detail that demonstrates that she spoke from personal experience.

During their questioning, the Defence raised an alleged inconsistency between her

statement to the Prosecution introduced under Rule 68(3) and a statement she had

794 previously given to the Ugandan police. The Chamber is satisfied with the witness’s

795 explanation of the discrepancy. The Chamber also notes that the witness’s testimony

796 is at times unclear as to specific locations. These issues do not undermine the

Chamber’s view of the credibility of her testimony. In this context, the Chamber notes

797 that the witness stayed with the LRA for about seven months and as such her knowledge of certain details about the LRA’s movements is limited. The Chamber is also

satisfied with the witness’s explanation that her statement made initially to the

Prosecution that she had never heard of Dominic Ongwen and certain other commanders

798 was an omission and that she had briefly seen Dominic Ongwen during her captivity.

ii Terrence Otika (P-0007)

Terrence Kanyum Otika’s prior recorded statement was introduced pursuant to Rule

799 68(2)(b) of the Rules. Terrence Kanyum Otika, a civilian resident of the Lapul part of

Pajule IDP camp at the time of the attack relevant to the charges and camp commandant

after the attack, provided testimony about the course of the attack as well as its

consequences. The Chamber finds that the witness’s testimony was detailed and clear;

explaining the source of his information and offering details that supported the credibility

794 The witness stated to the Prosecution that her so-called ‘husband’ in the bush had three ‘wives’, while she informed the police that he had 11 ‘wives’. See P-0006: T-140 , p. 64, line 4 – p. 65, line 17. 795 The witness explained that her so-called ‘husband’ had 11 ‘wives’, excluding her and that she told the Prosecution that there were ‘three’ ‘wives’ because in the time she was with him in the Sudan, he only had three ‘wives’ with him and the other ‘wives’ had been left behind with other commanders. See P-0006: T-140 , p. 64, line 4 – p. 65, line 17. 796 For example, the witness’s testimony in relation to where she stayed in Sudan with the LRA or whether she saw Dominic Ongwen in Sudan or in Uganda. P-0006: T-140 , p. 67, line 24 – p. 68, line 17, p. 76, line 19 – p. 77, line 5. 797 The witness was abducted during the Pajule IDP camp attack on 10 October 2003 and escaped around 28 April 2004. P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 22-51, 60. 798 P-0006: T-140 , p. 77, line 11 – p. 81, line 12. 799 P-0007 Statement, UGA-OTP-0147-0214-R01 (public redacted version available: UGA-OTP-0283-0037). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 34-38, p. 107.

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of the information provided. Further, the Chamber considers that the witness’s testimony 800 was both internally consistent and consistent with other reliable evidence.

iii Benson Ojok (P-0061) Benson Ojok’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 801 Rules. Benson Ojok, a civilian resident of the Pajule side of the Pajule IDP camp at the time of the attack on the camp relevant to the charges, offered testimony about his abduction along with other residents in the course of the attack as well as his time spent in captivity with the LRA. Benson Ojok provided detailed and comprehensive testimony. He explained the source of his information and clearly distinguished between events he witnessed himself and those he was told about.

The Chamber notes the Defence’s contention that Benson Ojok’s testimony is only partly 802 corroborative and that his reliability comes into question. The Chamber is of the view that the issues raised are minor and do not undermine the credibility of the witness. 803 Benson Ojok was 15 years old at the time of his abduction, and only stayed with the 804 LRA for a short time. It is unexceptional that his information about the structure and membership of the LRA may not be as detailed and authoritative as would be expected of a longstanding member of the LRA. The Chamber notes also that Benson Ojok’s evidence is internally consistent and also generally consistent with the testimony of other witnesses heard in these proceedings.

iv Dick Okot (P-0067) 805 Dick Okot testified live before the Chamber. Dick Okot, a civilian living in the Pajule trading centre at the time of the attack on Pajule IDP camp relevant to the charges,

800 See the testimonies of P-0001, P-0006, P-0081. 801 P-0061 Statement, UGA-OTP-0144-0043-R01 (public redacted version available: UGA-OTP-0283-0840). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 55-58, p. 109. 802 Defence Response to Prosecution Application under Rule 68(2)(b) , para. 153, with reference to UGA-OTP- 0144-0043-R01, at paras 29, 31, 71 (arguing that the witness spoke about Charles Tabuley being present at Latanya Hill, and that one of the LRA’s leaders was Otti Lagony. The Defence notes that Otti Lagony died in the late 1990s). The Chamber notes that the witness never testified that he ever saw Otti Lagony himself. 803 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 9. 804 P-0061 Statement, UGA-OTP-0144-0043-R01, at paras 34-61. The witness does not offer a specific date of his escape but his testimony suggests that he was not in the bush for a long time and the witness indicated that he escaped after an attack in Abia. The Chamber notes that the LRA attacked Abia in February 2004. See paras 1164- 1165. 805 P-0067: T-125 ; T-126 .

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testified about the attack on the camp as well as his abduction and time spent in captivity with the LRA for several weeks after the attack. Dick Okot provided detailed, graphic and contextualised evidence. While the Chamber is unable to rely on aspects of Dick Okot’s testimony in relation to Vincent Otti’s presence at the murder of Pangarasio Onek 806 and Lacung, discussed in detail below, the Chamber has no doubts that Dick Okot testified about his personal experiences in the course of the charged attack on Pajule IDP camp and considers him a credible witness. His narration about his experiences in the course of the attack was clear, detailed, contextualised, and generally consistent with other reliable evidence. The witness testified about events which incriminated the LRA 807 as well as events which incriminated government forces, indicating that his testimony was not biased.

In the course of his questioning,

808 .

809 . In this context, the Chamber notes that it saw no issues in relation to his mental acuity. The witness was coherent, engaged with the questioning and forthcoming in answering the questioning party.

v P-0081 P-0081 testified live before the Chamber with protective measures pursuant to Rule 74 810 of the Rules. P-0081 also provided a statement to the Prosecution, which was 811 submitted under Rule 68(3) of the Rules. P-0081, a resident living in the Lapul side of the Pajule IDP camp at the time of the attack, testified about his abduction and experience in captivity with the LRA until he escaped in April 2004. The witness clearly delineated between his personal experiences and what he heard from others. He frequently spoke in

806 See paras 1315-1323 below, the Chamber’s discussion of the murders of Pangarasio Onek and Lacung during the course of the Pajule IDP camp attack. 807 See P-0067: T-125-CONF, p. 58, line 3 – p. 65, line 11 (the witness testified that he was tortured by the UPDF and was forced, under said torture, to name innocent persons as LRA collaborators). 808 P-0067: T-126-CONF, p. 31, line 23 – p. 33, line 12. 809 P-0067: T-126-CONF, p. 32, lines 12-17, p. 33, lines 5-12. 810 P-0081: T-118 . 811 P-0081 Statement, UGA-OTP-0070-0029-R01; Decision on Prosecution Applications under Rule 68(3) , paras 15-17, p. 19. See also P-0081: T-118 , p. 6, line 2 – p. 8, line 14.

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a narrative manner and provided details that convince the Chamber that he was indeed

abducted from Pajule IDP camp and spent time in captivity in the bush with the LRA.

As explored further below in the evidentiary discussion of the attack on Pajule IDP camp,

the Chamber notes that there were some discrepancies between this witness’s testimony

and the testimony of several other witnesses in relation to the movements of Charles

812 Lokwiya, the injured commander P-0081 testified he carried from Pajule IDP camp.

However, the Chamber notes that other aspects of P-0081’s testimony are consistent with

other reliable evidence heard in these proceedings.

vi P-0249

813 P-0249 testified live before the Chamber. P-0249, a former resident of Pajule IDP

camp, testified about his experience in the course of the 10 October 2003 attack on the

camp, and in the LRA for a brief period of captivity.

The Defence asserts that the witness’s testimony cannot be relied upon because he was

814 intoxicated at the time of the attack in the morning of 10 October 2003. Indeed, P-

815 0249 testified that he had been celebrating and drinking the night before the attack. In

describing his state of mind at the time of the attack, the witness described himself as

816 being ‘personally drunk, but the gunshots made me become sober again’.

The Chamber notes that the witness testified that he was drinking until around 21:00 on

817 9 October 2003 when he went to sleep. He stated that he then woke up to the gunshots

818 of the LRA between 5:00 and 6:00. The Chamber also notes the witness’s testimony

that at the attack, ‘I was very sober. And I, I was sweating a lot and I could not feel tipsy

anymore’. 819 It is clear to the Chamber, even noting the witness’s stated difficulty telling

812 See paras 1315, 1341-1342 below. 813 P-0249: T-79 ; T-80 . 814 Defence Closing Brief , para. 328. 815 P-0249: T-80 , p. 13, line 9 – p. 16, line 7. 816 P-0249: T-79 , p. 36, lines 12-20; T-80 , p. 14, line 21 – p. 16, line 7. 817 P-0249: T-80 , p. 14, lines 6-9. the Chamber’s discussion of the timing of the 818 P-0249: T-79 , p. 10, lines 10-13; T-80 , p. 19, lines 1-3. See Pajule IDP attack, at paras 1233, 1248 below, where the Chamber finds that the attack began at dawn, between 5:00 and 6:00. 819 P-0249: T-80 , p. 15, lines 2-4.

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820 precise time, that a significant amount of time had passed from when the witness was inebriated to when the LRA attacked. In this context, the Chamber notes that the witness’s descriptions of his experiences during the attack were clear and very comprehensive. He recalled details about his movement, LRA activity, his thoughts and reactions at the time and what was happening to others around him. His testimony was replete with the kind of details that indicate that he spoke about his personal experiences. He was clear when he was uncertain about 821 specific information and was not led by suggestive questioning. His testimony was internally consistent and also consistent with other reliable evidence. In the Chamber’s view the witness clearly distinguished between his own personal experiences and what he learned from others. The Chamber is convinced that the witness was clearheaded enough to have been fully aware of his experiences in Pajule IDP camp during the attack and to recall them accurately in his testimony before the Court.

The Chamber also notes that the witness gave his testimony over the course of two days and throughout he was coherent, understood the proceedings, vigilant in following instructions from the Chamber and the questioning parties and testified in a forthright and consistent manner.

vii Richard Otim (D-0076) Richard Otim testified live before the Chamber. Richard Otim, a resident of the Pajule 822 side of Pajule IDP camp at the time of the attack, testified about the October 2003 attack by the LRA and his brief time spent in captivity with the LRA. The witness’s testimony was detailed, forthcoming and candid. He offered details contextualised in a manner that convinces the Chamber that he spoke truthfully. Richard Otim delineated between events he personally experienced and matters he heard from others. The Chamber also notes that his testimony was both internally consistent and generally consistent with other reliable evidence.

820 P-0249: T-80 , p. 20, lines 17-25. 821 See P-0249: T-80 , p. 19, line 8 – p. 21, line 8 (the witness’s testimony in relation to the difficulty of telling precise time and his estimation of time). 822 D-0076: T-219 .

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viii David Okwera (D-0077) David Okwera’s statement was introduced pursuant to Rule 68(2)(b) of the Rules. 823 David Okwera, a civilian resident of the Pajule side of Pajule IDP camp at the time of the attack, offered testimony about his abduction in the course of the attack and about the movements of the LRA following the attack. David Okwera provided detailed and comprehensive testimony. The Chamber notes also that David Okwera’s evidence is internally consistent. He explained the source of his information and clearly distinguished between events he witnessed himself and those he was told about. The Chamber notes that David Okwera’s testimony about the timing of the attack is somewhat confusing and also contrary to the other evidence on record, as such the Chamber does 824 not rely on this aspect of his testimony .

ix Santo Oweka (D-0081) 825 Santo Oweka testified live before the Chamber. Santo Oweka, a resident of the Pajule side of Pajule IDP camp at the time of the attack relevant to the charges, testified about the October 2003 Pajule IDP camp attack as well as his experiences in the LRA after being abducted in that attack. The witness was forthcoming and straight-forward. He delineated the source of his information, provided context in his description of events, and frequently responded in a narrative manner, all indicia that positively impacted the Chamber’s view of the witness’s testimony.

However, one aspect of his testimony offered the Chamber pause: the witness’s testimony in relation to the statement he gave to the Ugandan police after returning from captivity about his experiences during the attack on Pajule IDP camp. Despite the fact that the statement is titled ‘[s]tatement of an abductee’, on its face appears to be the account of Santo Oweka, is written in first person narrative and is consistent with Santo Oweka’s narrative of his abduction, Santo Oweka testified that the statement is a 826 compilation of the narrative of multiple witnesses. This, according to him, explains

823 D-0077 Statement, UGA-D26-0022-0316 (public redacted version available: UGA-D26-0022-0316-R01). See Decision on the Defence Request under Rule 68(2)(b) , para. 14, p. 13. 824 D-0077 Statement, UGA-D26-0022-0316, at paras 10-12, 14 (the witness testified that the attack began around 2:00 or 3:00 in the morning. The witness also described ‘the end of the attack around 12 am’. The witness also testified that the attack lasted for over three to four hours). 825 D-0081: T-220 ; T-221 . 826 See D-0081: T-221 , p. 62, line 18 – p. 63, line 1, referring to Handwritten statement, UGA-OTP-0137-0275. At the time of submission of the document by the Prosecution, the Defence argued that it is ‘irrelevant except for

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why the statement mentions Dominic Ongwen as being present in the gathering after the Pajule IDP camp attack contrary to Santo Oweka’s in-court testimony. 827 This aspect of Santo Oweka’s testimony is untenable and casts significant doubt on the witness’s

testimony regarding the presence of Dominic Ongwen in Pajule. This discrepancy does

not disqualify the entirety of Santo Oweka’s testimony however. The Chamber notes that

in large part, his testimony is generally consistent with other reliable evidence.

c. Residents of Odek IDP camp

i P’Oyoo Lakoch (P-0218)

P’Oyoo Lakoch testified live before the Chamber. 828 His prior recorded statement was

829 also submitted under Rule 68(3) of the Rules. P’Oyoo Lakoch, a local teacher living

in Odek IDP camp at the time of the attack relevant to the charges, testified in relation to

his observations about the attack and its aftermath. P’Oyoo Lakoch was a calm,

thoughtful and forthcoming witness. He offered testimony that the Chamber considers

completely credible and truthful. He offered comprehensive testimony concerning what

he witnessed from the perspective of a victim of the attack on Odek, giving details that

830 convince the Chamber that he spoke from personal experience. P’Oyoo Lakoch’s

testimony is generally consistent with the testimony of other credible witnesses heard by

831 the Chamber.

the explicit areas which the witness confirmed correct during his testimony’. Annex VII to the Registry’s Sixth Report on the Evidence recognised as formally submitted to the Chamber , 15 November 2019, ICC-02/04-01/15- 1671-AnxVII, p. 4-6. The item in its entirety is relevant to the Chamber’s understanding of Santo Oweka’s testimony. 827 D-0081: T-220 , p. 30, line 25 – p. 31, line 15, p. 33, lines 4-7, p. 34, lines 3-6; T-221 , p. 53, line 25 – p. 63, line 1. The Chamber is unconvinced by the Defence’s arguments that circumstantial evidence supports Santo Oweka’s testimony. The Defence notes various statements allegedly taken within a short time frame and argues that this shows that multiple persons were around the officers discussing their stories in groups, consistent with Santo Oweka’s testimony. Annex VII to the Registry’s Sixth Report on the Evidence recognised as formally submitted to the Chamber , 15 November 2019, ICC-02/04-01/15-1671-AnxVII, p. 4-5. The Chamber, while observing that these other statements are not in the record, notes that the very presence of other individualised accounts of experiences of the attack undermines the contention that Santo Oweka’s statement was a group account. 828 P-0218: T-90 . 829 P-0218 Statement, UGA-OTP-0238-0720-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 20, p. 19. See also P-0218: T-90 , p. 6, line 12 – p. 8, line 20. 830 See for example P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 20-24 (P’Oyoo Lakoch describes his own experience of hiding himself from LRA fighters shooting and looting in the camp). 831 See the testimonies of Mario Ottober and Zakeo Odora.

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ii Hellen Adong (P-0268) Hellen Adong’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 832 Rules. Hellen Adong, a civilian resident of Odek IDP camp at the time of the attack relevant to the charges, testified about her experiences during and in the aftermath of the attack, including her experience as an abductee. Hellen Adong’s testimony was comprehensive and rich with details that indicated that she spoke from personal experience. She provided a detailed and contextualised account of the Odek IDP camp attack and her experiences in captivity in the bush. Her accounts were internally consistent and consistent with other evidence.

iii P-0269 P-0269 testified live before the Chamber with protective measures, after receiving Rule 833 74 assurances. P-0269, a civilian resident of Odek IDP camp at the time of the attack relevant to the charges, testified about her two abductions by the LRA, her experience in captivity and about the Odek attack and its aftermath. P-0269 was a forthcoming and candid witness. She provided testimony in a narrative and generally logical manner. The Chamber is convinced that she personally experienced the events she described. Contrary to the Defence’s suggestion, 834 the Chamber is of the view that the witness was indeed abducted the first time she was taken by an LRA group headed by Dominic Ongwen. The Chamber finds the witness’s accounts of her knowledge of Dominic Ongwen compelling and credible. The witness’s testimony is also largely consistent with other reliable evidence heard in these proceedings. The Chamber is satisfied with the witness’s explanation that she failed to mention what she knew of Dominic Ongwen during her 835 first interview with the Prosecution because she was afraid. The Chamber also does not consider this issue material. The witness subsequently mentioned Dominic Ongwen in her following interview with the Prosecution and provided testimony in these proceedings about her observations of him.

832 P-0268 Statement, UGA-OTP-0248-0013-R01 (public redacted version available: UGA-OTP-0283-1285). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 79-81, p. 109. 833 P-0269: T-85 ; T-86 . 834 T-86 , p. 19, line 19 – p. 21, line 15. 835 See P-0269: T-86 , p. 7, line 12 – p. 8, line 9.

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iv Helen Opoka Acan (P-0270) Helen Opoka Acan’s prior recorded statement was introduced pursuant to Rule 68(2)(b) 836 of the Rules. Helen Opoka Acan, a civilian resident of Odek IDP camp at the time of the attack relevant to the charges, testified about the attack on Odek camp and its aftermath. Helen Opoka Acan’s testimony was comprehensive. She provided a detailed narrative that left the Chamber convinced that she speaks from personal experience. The Chamber notes that there are some inconsistencies in Helen Opoka Acan’s account. Helen Opoka Acan indicated that she saw the bodies of her children David Ojok and 837 James Latigo in the aftermath of the attack. The Chamber notes its finding below in the discussion of the Odek IDP camp attack, that these two men were killed in the bush and their bodies never recovered. There are further discrepancies about her testimony in 838 relation to . The Chamber is mindful of Helen Opoka Acan’s age as well as the particularly traumatic impact of the Odek IDP camp attack on her life. Helen Opoka Acan endured, among other suffering, the abduction of four of her children, two of whom were killed in the bush. The Chamber also notes that much of what Helen Opoka Acan testified to is consistent with other reliable evidence.

v P-0275 839 P-0275 testified live before the Chamber with protective measures. He also provided 840 a prior recorded statement, which was submitted under Rule 68(3) of the Rules. P- 0275, a civilian resident of Odek IDP camp at the time of the attack on the camp, testified about his experiences during the attack and the aftermath, including his abduction and time in captivity. The Chamber found that the witness offered graphic and detailed evidence, providing details indicating a personal experience of events.

836 P-0270 Statement, UGA-OTP-0241-0168-R01 (public redacted version available: UGA-OTP-0283-1297). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 71-73, p. 109. 837 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 40. The Chamber does not find her reference to James Latigo as her son, rather than as her nephew, significant. As aptly explained, Acholi cultural practices allow for a woman to refer to all children born into her husband’s family as her children, similarly children born into the same extended family may refer to each other as siblings. See . 838

839 P-0275: T-124 . 840 P-0275 Statement, UGA-OTP-0244-3398-R01. See Decision on Prosecution Applications under Rule 68(3) , para. 21, p. 19. See also P-0275: T-124 , p. 5, line 7 – p. 8, line 14.

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The Chamber notes the Defence’s suggestion that the witness’s young age at the time of 841 the attack affects the reliability of his memories. The Chamber does note some confusion and discrepancies in his testimony. The Chamber notes that when viewing 842 discrepancies between documents such as a GUSCO intake form or victim applications and in-court testimony, in general the testimony is more important given the Chamber’s lack of knowledge about the circumstances of how other accounts are derived and the witness’s oath before the Chamber. However, in relation to the lack of clarity as 843 to when the witness came back from the bush, the Chamber is of the view that the witness spent around a week in the bush and his testimony about the timing of his return is not reliable. However, this does not mean that the witness’s testimony in general cannot be trusted. The discrepancy can be explained by the difficulties of telling time/distance while in the bush, as well as the witness’s young age at the time of the attack and the traumatic circumstances of the events. As the witness himself explained, ‘when you are in the bush sometimes you lose track of time, you do not think of days, you do not think of time. Your only concern is that you are alive’. 844

The Chamber also notes that, given the nature of the armed conflict, the context of abduction and subsequent captivity and the constant movement of the LRA while in the bush, it is understandable that some witnesses struggle to keep track of the time they spent in the bush and to recall it with precision many years after their escape from the LRA. Indeed, it is reasonable that witnesses in captivity in the bush, particular those who were children when they were abducted, have lost their attachment to the very concept of time for this period.

841 Defence Response to the Prosecution’s Rule 68(3) Request, 14 November 2016, ICC-02/04-01/15-592-CONF, para. 34. The Chamber notes that the witness was 12 years old or younger at the relevant time. P-0275: T-124 , p. 26, lines 4-13. 842 Gulu Support the Children Organisation. 843 In his in-court testimony, the witness testified that he returned from the bush in July 2004. P-0275: T-124 , p. 74, lines 3-8. However in the GUSCO intake form, the witness is listed as arriving in the GUSCO centre on 9 May 2004 and being signed out of the centre on 8 June 2004. See UGA-OTP-0097-0452 at 0455.

844 P-0275: T-124 , p. 50, lines 23-24. See also P-0275: T-124 , p. 64, lines 17-22.

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As to the witness’s age, testified that he was 845 12 at the time of the attack. The Chamber notes however that there exists ample documentation, including the witness’s Ugandan national ID card, 846 school and health 847 848 records, as well as voter information, that support the witness’s testimony that he was nine years old at the time of the attack. In light of the documentation and the general credibility of the witness’s testimony, the Chamber finds that the witness was indeed nine years old at the time of the Odek IDP camp attack.

d. Residents of Lukodi IDP camp i P-0024 849 P-0024 testified live before the Chamber with protective measures. P-0024, a former Lukodi camp resident, offered testimony in relation to her experience during the attack on Lukodi IDP camp relevant to the charges, including about her abduction in the course of the attack. She provided testimony that was detailed and consistent throughout the questioning. P-0024’s testimony was offered simply and without artifice in a narrative manner. She contextualised her testimony with details that indicated to the Chamber that she spoke of events she personally experienced. The witness was a stoic witness yet her testimony laid bare the depth of the trauma she suffered and continues to suffer as a result of the attack. P-0024 distinguished clearly between events she witnessed herself and those that she heard from others. Her testimony is also consistent with other reliable evidence.

In her questioning, the Defence raised the issue that

845 846 Application for participation as victim, UGA-D26-0012-0266, at 0270 (National ID card listing the witness’s date of birth as 1994). 847 1999 Ministry of Education and Sports Terminal Report, UGA-OTP-0269-0719 (stating that P-0275 was then five years old and in class 1); 2006 School Report, UGA-OTP-0269-0710 (stating that P-0275 was then 12 years old and the ‘P6’); 2007 Ministry of Education and Sports Progressive Report, UGA-OTP-0269-0714 (stating that P-0275 was then 13 years old and in ‘P6’); 2012 Examination for the Uganda Certificate of Education, UGA- OTP-0269-0712 (stating that P-0275 was then 18 years old); Child Health Card, UGA-OTP-0269-0711 (listing 1994 as the witness’s date of birth). 848 2016 Voter Location Slip, UGA-OTP-0269-0720 (listing 1994 as the witness’s date of birth). 849 P-0024: T-77 ; T-78 .

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850 . The witness explained that

. The Chamber finds that none of the issues raised affect its view of the credibility of P-0024’s testimony either generally or specifically as concerns .

ii Pyerina Ayaa (P-0026) Pyerina Ayaa’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 851 Rules. Pyerina Ayaa was a civilian resident of Lukodi IDP camp who described her personal experiences of the attack, during which she and one of her daughters were injured and another daughter was killed. It was clear to the Chamber what the witness testified to seeing herself and what she heard from others. The Chamber considers that the witness’s testimony is generally consistent with other reliable evidence. 852

iii David Komakech (P-0185) and Lilly Apiyo (P-0195) David Komakech’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of 853 the Rules. David Komakech was a Lukodi camp resident who testified about his escape from the LRA’s attempt to shoot him during the May 2004 attack. David Komakech’s recollection was specific and detailed, convincing the Chamber that he spoke of events he personally experienced. Lilly Apiyo’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 854 Rules. Lilly Apiyo, a former Lukodi camp resident testified about her abduction in the course of the Lukodi IDP camp attack and about being forced to carry looted goods for the LRA. Lilly Apiyo’s testimony was detailed and comprehensive. It was rich with the kind of details that convinces the Chamber of the veracity of her account. The witness

850

851 P-0026 Statement, UGA-OTP-0069-0018-R01 (public redacted version available: UGA-OTP-0283-0093). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 102-04, p. 107. 852 See for example the testimonies of P-0024 and P-0187. 853 P-0185 Statement, UGA-OTP-0233-1020-R01 (public redacted version available: UGA-OTP-0283-1253). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 89-93, p. 109. 854 P-0195 Statement, UGA-OTP-0233-1046-R01 (public redacted version available: UGA-OTP-0283-1263). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 94-97, p. 109.

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855 testified with particular detail as to her experience during her abduction, recalling specific information that further convinces the Chamber of her credibility.

David Komakech and Lilly Apiyo are spouses. David Komakech and Lilly Apiyo’s accounts are individualised, contextualised and singular. The witnesses testified to their specific perspective during the attack and the Chamber sees nothing in their accounts that suggests collusion or an agreement on a common narrative.

Further, the Chamber considers that the witnesses’ testimonies were consistent with other 856 reliable evidence.

iv Joel Opiyo (P-0196) Joel Opiyo’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 857 Rules. Joel Opiyo, a Lukodi camp resident and about seven years old at the time of the 858 attack, testified about his experiences during the attack. Contrary to the Defence’s 859 argument, the Chamber does not find that the witness’s age at the time of the attack made his testimony unreliable. On the contrary, the witness’s recollection of events was quite good. Further, Joel Opiyo remembered details of his experience with a specificity that convinces the Chamber that he spoke of events he personally experienced and that remained seared in his mind. The Chamber’s view of the witness’s credibility was 860 enhanced by the fact that he stated when he did not remember particular details. The witness also clearly distinguished between what he knew from his own experiences and what he was told by others. Lastly, the witness’s testimony was consistent with other 861 reliable evidence.

855 See P-0195 Statement, UGA-OTP-0233-1046-R01, at paras 31-42. 856 See the testimonies of P-0024, P-0187. 857 P-0196 Statement, UGA-OTP-0233-1061-R01 (public redacted version available: UGA-OTP-0283-1277). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 98-101, p. 109. 858 See P-0196 Statement, UGA-OTP-0233-1061-R01, at 1061. 859 Defence Response to Prosecution Application under Rule 68(2)(b) , para. 177. 860 See P-0196 Statement, UGA-OTP-0233-1061-R01, at para. 24 (the witness was clear that he did not remember exactly what happened to his sister in the course of the attack). 861 See the testimonies of P-0024, P-0185 and P-0187.

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v Vincent Oyet (V-0003) 862 Vincent Oyet testified live before the Chamber. Vincent Oyet, a resident of Lukodi IDP camp at the time of the attack relevant to the charges, testified about what he witnessed in the aftermath of the attack. The witness provided straight-forward evidence. The Chamber considers Vincent Oyet a credible witness. However, his testimony is only indirectly related to the issues relevant to the disposal of the charges.

vi P-0187 863 P-0187 testified live before the Chamber with protective measures. P-0187, a camp resident of Lukodi IDP camp at the time of the attack relevant to the charges, testified about the Lukodi IDP camp attack and her abduction by the LRA. The witness was forthcoming and candid about what she experienced in the course of her abduction with the LRA. She also had an excellent recollection of events. P-0187 spoke frequently in a narrative mode and was able to contextualise her accounts with credible details that convince the Chamber of her truthfulness. The witness offered a detailed and comprehensive account of her experience, describing events in a manner and offering information which indicated that she spoke of her personal experiences. Further, the Chamber considers that P-0187’s testimony was consistent with other reliable evidence. In questioning the witness, the Defence noted an inconsistency between her victim’s 864 application form and her testimony. The Chamber accepts the witness’s clarification that her victim’s application form did not reflect what she stated when the form was filled 865 out for her. Further, the Chamber notes that information provided on a victim application form is unsworn and intended for another purpose. The discrepancy does not undermine the Chamber’s view of the witness’s credibility.

862 V-0003: T-172 . 863 P-0187: T-164 ; T-165 . 864 See P-0187: T-165 , p. 6, lines 1-19 (the witness’s victim application form indicated that she was in her hut at the start of the attack, while the witness testified that she was on her way home). 865 P-0187: T-165 , p. 6, lines 5-11, p. 7, lines 18-23.

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e. Residents of Abok IDP camp i Gwentorina Akite (P-0279) Gwentorina Akite’s prior recorded statement was introduced pursuant to Rule 68(2)(b) 866 of the Rules. Gwentorina Akite, a resident of Abok IDP camp at the time of the attack relevant to the charges, testified about her experiences in the course of the attack, including her abduction by the LRA. The witness clearly explained the source of her information and gave details that supported the credibility of the information provided. Gwentorina Akite provided evidence that was comprehensive and rich with the type of details that shows that she spoke about deeply affecting personal experiences. Further, the Chamber considers that the witness’s testimony was both internally consistent and 867 consistent with other reliable evidence.

ii V-0002 868 V-0002 testified live before the Chamber. V-0002, a former resident of Abok IDP camp at the time of the attack relevant to the charges, testified about his experiences in the course of the attack including his abduction by the LRA. The witness was forthcoming and candid. Further, the Chamber considers that the witness’s testimony was 869 both internally consistent and consistent with other reliable evidence.

iii P-0280 P-0280 testified live before the Chamber with protective measures and received Rule 74 870 assurances. P-0280, a former resident of Abok IDP camp at the time of the attack relevant to the charges, testified about his experiences in the course of the attack and its aftermath. P-0280’s testimony was clear and consistent. He was forthcoming in his responses to questioning by the parties and participants and did not become recalcitrant nor did he change his account when questioned by the Defence. The Chamber considers that the level of detail in P-0280’s account is consistent with someone who personally

866 P-0279 Statement, UGA-OTP-0258-0478-R01 (public redacted version available: UGA-OTP-0283-1326). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 126-28, p. 110. 867 Particularly the testimony of P-0304 and P-0286. 868 V-0002: T-171 . 869 See the testimonies of P-0286 and P-0304. 870 P-0280: T-83 ; T-84 ; T-83 , p. 39, lines 21-25.

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871

experienced the events. Importantly, P-0280 also distinguished between events that he

personally witnessed as opposed to matters he was informed about, and openly

acknowledged when his testimony may have been impacted by an erroneous belief.

872

P-0280 testified that he was born in 1986, but also stated that he was 15 or 16 years

873

old at the time of attack on Abok IDP camp in 2004 which was disputed by the Defence

874

on the basis of an application form for a sponsorship programme. The Chamber attributes little significance to this discrepancy in the witness’s testimony and evidence.

The witness explained that at the time of the sponsorship programme application he

believed his year of birth to be 1990 and he was only later informed by other adults that

875

he was born in 1986. Despite the contradiction in his testimony and the fact that his

876

birth certificate was lost during the Abok attack, the Chamber sees no reason to doubt the witness’s explanation. In any event, this marginal issue does not cast doubt on the

truthfulness of the witness’s account of the Abok attack.

The Chamber also notes that there is inconsistency between P-0280’s testimony and other

evidence about the length of time he spent with the LRA in the bush after having been

877

abducted. While P-0280 testified that he came out of the bush in October 2004,

Douglas Obwor testified that P-0280 stayed in the bush for only one month after the 8

878

June 2004 Abok attack. Additionally, a UPDF report, dated August 2004, lists P-0280

879

amongst the witnesses to the Abok attack present within Abok IDP camp. When

questioned about this discrepancy, P-0280 conceded that he may have ‘forgot[ten] one

871 For example the witness’s account of: the death of his family members in Abok, expressions used within the LRA (‘lapwony’), and the ‘initiation’ rituals performed on newly recruited LRA fighters. 872 P-0280: T-84 , p. 50, line 25 – p. 51, line 3. This would make him 18 years old at the time of the 2004 Abok attack. 873 P-0280: T-84 , p. 9, lines 16-17, p. 51, lines 16-19. 874 P-0280: T-84 , p. 51, lines 6-8; Sponsoring Children Uganda Application, UGA-OTP-0244-2184. 875 P-0280: T-84 , p. 51, line 9 – p. 53, line 15. See also T-83-CONF, p. 43, line 6. 876 P-0280: T-84 , p. 52, lines 10-16. 877 P-0280: T-84 , p. 59, lines 8-10, thus implying that he spent around four months in the bush. 878 P-0306 Statement, UGA-OTP-0261-0277-R01, at para. 32. 879 Thus, indicating that P-0280 was at home 2-3 months after the attacks. The Chamber notes that there are actually two UPDF Reports containing much of the same information. UPDF Report, atrocities committed by LRA rebels in Northern and Eastern Uganda, UGA-OTP-0037-0153, at 0178 and UPDF Report, some selected cases of atrocities committed by LRA rebels, UGA-OTP-0032-0038-R01, at 0059. Regarding the latter report, the Chamber notes that while pages 0052-91 contain information identical to the first UPDF Report (UGA-OTP- 0037-0153), UGA-OTP-0032-0038-R01, at 0038-51 also contains a chart, Tabulation of some atrocities committed by LRA, status of investigations into things. Where the reports are identical, the Chamber will reference UGA-OTP-0037-0153. The Reports were provided to the Prosecutor by P-0038 on 14 December 2004. The Reports, dated August 2004, appear to have been created soon after the attacks discussed within. The Chamber finds that the two reports bear indicia of authenticity.

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or two things’, may have been ‘confused’ or ‘lost count of time’ after returning from the 880 bush. Such forthcoming admissions reflect positively on the witness’s credibility and also explain the inaccuracy of his recollection of the time he spent in captivity. The Chamber considers it significant that although the witness is mistaken about how long he spent in the bush with the LRA, the witness did spend some time in captivity, at least one month, and thus personally experienced life in the LRA.

As noted above, the nature of the armed conflict, the context of abduction and subsequent captivity and the constant movement of the LRA while in the bush, make it understandable that some witnesses struggle to keep track of the time they spent in the bush and to recall it with precision years after their escape from the LRA. It is reasonable that witnesses in captivity in the bush, particularly those who were children when they were abducted, have lost their attachment to the very concept of time.

The Chamber is attentive to the traumatic nature of the events experienced by this witness. Additionally, P-0280’s testimony is consistent with someone who personally experienced the events. Further, considering that the witness’s account of events is largely consistent with the testimony of other witnesses with knowledge of those events, the Chamber does not consider the above discussed inconsistencies to undermine the reliability of P-0280’s testimony.

iv Dorcas Ayo (P-0281); Jacob Opio (P-0282) Dorcas Ayo and Jacob Opio’s prior recorded statements were introduced pursuant to Rule 881 68(2)(b) of the Rules. The witnesses, civilian residents of Abok IDP camp at the time of the attack relevant to the charges, testified about their experience during the attack and in its aftermath. The witnesses’ testimonies were comprehensive and rich with details that indicated that they spoke from personal experience. They provided detailed and contextualised accounts of the Abok IDP camp attack and the events they witnessed.

880 P-0280: T-84 , p. 60, lines 17-22. 881 P-0281 Statement, UGA-OTP-0261-0257-R01 (public redacted version available: UGA-OTP-0283-1336); First Decision on Prosecution Applications under Rule 68(2)(b) , paras 129-33, p. 110; P-0282 Statement, UGA- OTP-0261-0246-R01 (public redacted version available: UGA-OTP-0283-1346); First Decision on Prosecution Applications under Rule 68(2)(b) , paras 134-37, p. 110.

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Further, the Chamber considers that their testimonies were both internally consistent and 882 generally consistent with other reliable evidence.

v Robson Oper (P-0286) 883 Robson Oper testified live before the Chamber. Robson Oper, a resident of Abok IDP camp at the time of the attack relevant to the charges, testified about his experiences in the attack and in the aftermath. Robson Oper’s testimony, provided in a narrative manner, was rich in detail, graphic, and narrated with a depth of emotion. The witness intervened at times to ensure that his account was being properly understood, indicating his attempt at accuracy. Robson Oper was generally forthcoming in answering questions and did not alter his testimony during examination by the Defence. In particular, the Chamber notes that he remained calm during Defence questioning, even when confronted with questions that attacked his credibility. The Chamber is also receptive to the fact that Robson Oper did not implicate Dominic Ongwen beyond what the witness personally experienced.

The Chamber notes that Robson Oper readily admitted that he lied on his victim’s 884 application form for his own benefit. The witness was forthright and prompt with his admission and provided an explanation without hesitance or equivocation. Thus, and given that the information provided on a victim application form is unsworn and intended for another purpose, the Chamber does not consider the witness’s untruthfulness on the form to have a broader impact on the credibility of the evidence he provided, under oath, before the Chamber.

Of greater significance is that Robson Oper testified about attacks he participated in during his time in the bush – for example, he testified about participating in several 885 886 attacks in Opit in the 5-6 months he alleges to have spent with the LRA. However,

882 With regard to the testimony of Dorcas Ayo, see in particular the testimonies of Charles Amodo and Gwentorina Akite; regarding the testimony of Jacob Opio, see in particular the testimonies of P-0280, Robson Oper, Cyprian Ayoo, Charles Amodo and Douglas Obwor. 883 P-0286: T-131 ; T-132 . 884 See Application for participation as victim, UGA-D26-0012-0349, at 0351 (‘[o]n my return home I found out that my shop was broken by the rebels and all the merchandise were looted and others were burnt. My houses were also burned with all the properties in it, the goats also and other goats were looted’) as opposed to the witness’s in court testimony P-0286: T-131 , p. 70, line 13 – p. 71, line 16 (‘mine too was supposed to be compensated…if people are getting compensation I would also benefit because I needed to say that so I could also be part of the people who would get compensations in case that ever happens’). See also p. 71, lines 17-20. 885 P-0286: T-131 , p. 39, line 18 – p. 41, line 7. 886 P-0286: T-131 , p. 48, lines 4-5. The witness recollects that he returned from captivity in November 2004.

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the Chamber observes that several witnesses testified that Robson Oper returned to the

887 camp right after the attack on Abok IDP camp. Further, a UPDF report, dated August 2004, titled ‘Atrocities committed by LRA rebels in Northern and Eastern Uganda’ lists

‘Oper, Robert’ 888 (Robson Oper) amongst the witnesses to the attack on Abok IDP camp

889 who were all ‘within Abok IDP Camp’ at the time of the report. The Chamber also

observes that when pushed by the Defence about the inconsistency in this aspect of his

890 testimony, Robson Oper’s responses were somewhat evasive. Given the evidence with

regards to when the witness returned from captivity, the Chamber does not rely on his

testimony on his experiences with the LRA beyond the aftermath of the 8 June 2004

Abok IDP camp attack.

vi P-0287

P-0287’s prior recorded testimony was introduced pursuant to Rule 68(2)(b) of the

891 Rules. P-0287, a civilian resident of Abok IDP camp, offered evidence about his

experience in the course of the attack. The Defence argues that as the witness was only

during the attack, it has ‘serious doubt as to the witness’s ability to recall the event with such specificity…one can easily reason why there is great

circumspect as to whether the witness truly remembers the incidents at hand, or if it is a story made of hearsay’. 892 The Chamber agrees with the Defence that in light of the witness’s very young age at the time of the attack and the subsequent time that had

elapsed since the attack, it is unlikely that the evidence is his first-hand account of events.

As there is better, credible and reliable, evidence about the events of Abok IDP camp on

the record, the Chamber does not rely on P-0287’s testimony.

887 P-0284 credibly testified that P-0286 had managed to escape ‘that day’ and had returned to the camp. P-0284 stated that he had spoken to P-0286 after P-0286’s return to the camp and P-0286 had said that he managed to escape because the mamba was chasing the rebels and some abductees were able to escape during the confusion. P-0284 Statement, UGA-OTP-0244-1180-R01, at paras 44-46. Similarly, P-0306 credibly testified that P-0286 had been among the abductees rescued by UPDF soldier Engola Okello during the LRA’s retreat from Abok. P- 0306 Statement, UGA-OTP-0261-0277-R01, at para. 32. 888 P-0286 testified that while his given name was Robson Oper, some people called him Robert. P-0286: T-131 , p. 66, lines 21-23. 889 Thus indicating that he was in Abok 2-3 months after the attack. UPDF Report, atrocities committed by LRA rebels in Northern and Eastern Uganda, UGA-OTP-0037-0153, at 0178. 890 P-0286: T-132 , p. 41, line 6 – p. 43, line 18, p. 45, lines 12-18. 891 P-0287 Statement, UGA-OTP-0261-0268-R01 (public redacted version available: UGA-OTP-0283-1367); First Decision on Prosecution Applications under Rule 68(2)(b) , paras 142-45, p. 110. 892 Defence Response to Prosecution Application under Rule 68(2)(b) , para. 183.

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vii Charles Amodo (P-0304) 893 Charles Amodo testified live before the Chamber. Charles Amodo, a resident of Abok IDP camp at the time of the attack relevant to the charges, testified about his experiences in the attack and in its aftermath. Importantly, the witness’s testimony was consistent throughout the questioning and the witness delineated between when he was testifying to facts within his personal knowledge – e.g. what he witnessed during the Abok attack – and when he was relaying information that he gained from other persons – e.g. information gained from Oringa James about the commanders responsible for the 8 June 2004 Abok attack. Additionally, when the witness described his personal experiences, he talked about events in a chronological manner and described the circumstances under which they took place.

Nonetheless, Charles Amodo offered a detailed and coherent account of his own experiences during the 8 June 2004 Abok attack.

The Chamber notes that, when referencing a group that briefly abducted him in 2002, 894 Charles Amodo referred to ‘Bookec’ or ‘Bojokech’ as another name for the LRA. The Defence raised this issue during their questioning of the witness and Charles Amodo explained that he came to know this name because any armed group other than the government soldiers were referred to by children as ‘Bojokech’. 895 The Chamber is satisfied with the witness’s explanation and considers that Charles Amodo’s testimony on ‘Bookec’/‘Bojokech’ has no bearing on the identity of the group that abducted the witness during the 8 June 2004 attack on Abok nor does it have any bearing on the credibility and reliability of his account of his experiences during and after the 8 June 2004 attack on Abok IDP camp. Yet, the Chamber is attentive to the fact that there are some discrepancies between the witness’s account, at times based on information he was told by others rather than personally observed, and other evidence heard in this case, for example in relation to the movements of the LRA during the attack and the burning of huts.

893 P-0304: T-133 . 894 See P-0304: T-133 , p. 5, line 22 – p. 7, line 2. 895 P-0304: T-133 , p. 39, lines 12-17.

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f. Other civilians i Rwot Yusef Adek (D-0028) Rwot Yusef Adek, a cultural chief of the Pageya clan, testified live before the 896 Chamber. He offered information on Acholi people’s cultural, spiritual and religious practices. In addition, he testified about his knowledge of Joseph Kony and Dominic Ongwen as well as his personal role in the peace talks with the LRA. Rwot Adek’s testimony was very general in nature and consisted of his overall views and interpretation rather than recounting personal observation of specific facts. Thus, while not deeming Rwot Adek not credible, in the presence of more direct evidence, the Chamber does not rely on his testimony.

ii Ishaa Otto (D-0083) Ishaa Otto, a member and activist of a Ugandan NGO, testified live before the 897 Chamber. He offered information about the establishment of IDP camps in Northern Uganda and the living conditions in such camps. Further, his testimony is also relevant regarding the formation of auxiliary forces as self-defence against the LRA, including the Arrow Boys in Teso. The Chamber is satisfied that the witness testified credibly about his experiences.

iii Ojwiya James Okot (D-0087) 898 Ojwiya James Okot testified live before the Chamber. He is a conflict resolution expert working on clan and inter-clan disputes. He was abducted by the LRA in 1989 and briefly stayed in the organisation. However, he primarily offered background information as concerns Acholi cultural norms, including clan and inter-clan disputes. As this topic does not have a bearing on the case, the Chamber does not rely on the evidence of Ojwiya James Okot for its conclusions in relation to the charges.

iv Adong Harriet Ojwiya (D-0111) Adong Harriet Ojwiya, an ajwaka , or spiritual healer, testified live before the Chamber 899 without protective measures. The witness testified about her work as a traditional

896 D-0028: T-180 ; T-181 ; T-182 . 897 D-0083: T-217 . 898 D-0087: T-184 . 899 D-0111: T-183 .

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herbalist in Northern Uganda. The Chamber, however, considers her testimony not to be of direct relevance to the charges.

v Joseph Bua Okol (D-0113) Joseph Bua Okol, a local politician and clan chief in Lango, testified live before the 900 Chamber. He testified about his role as a clan chief during the period relevant to the charges, and provided information which contextualised the establishment of IDP camps and the recruitment of auxiliary forces, in particular the Amuka. The Chamber is satisfied that the witness testified truthfully about his experiences and knowledge of the region and its peoples.

vi John Mawa Okello (D-0123) 901 John Mawa Okello, an Itesot man born in 1957, testified live before the Chamber. He testified about his abduction and short stay with the LRA in Teso in 2003, as well as about the establishment of IDP camps, the living conditions in the camps as well as the Arrow Boys. The Chamber is satisfied that the witness testified credibly about events he personally experienced.

vii Michael Okwir (D-0124) 902 Michael Okwir, an Itesot man born in 1959, testified live before the Chamber. He testified about the structure and functioning of the Arrow Boys in Teso and in particular about the relationship of the Arrow Boys with the civilian population at the time of the LRA operations in Teso. He further gave evidence about how the attacks affected him and his family, having lost three brothers during the conflict and taking care of the children of his brothers. His testimony was simple and candid. The Chamber is satisfied that the witness testified credibly about events he personally experienced.

viii Michael Opiro (D-0132) Michael Opiro’s statement was introduced pursuant to Rule 68(2)(b) of the Rules. 903 The witness, a former aid worker at a Caritas Reception Centre in Pajule, testified about his

900 D-0113: T-221 . 901 D-0123: T-238 . 902 D-0124: T-238 . 903 D-0132 Statement, UGA-D26-0025-0021 (public redacted version available: UGA-D26-0025-0021-R01). See Decision on Prosecution Request to Introduce Evidence of Defence Witnesses via Rule 68(2)(b), 16 August 2018, ICC-02/04-01/15-1322-Conf (public redacted version available: ICC-02/04-01/15-1322-Red ), paras 20-21, p. 12.

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work in the IDP camps, including his experiences as a counsellor of returnees from the bush. In addition, he testified about providing assistance for the Juba Peace Talks as a Caritas staff member in 2007 and 2008, about meeting Joseph Kony and witnessing the killing of LRA members. While the Chamber did not identify any issue affecting the credibility of the witness, the Chamber notes that his testimony is not directly relevant to the charges.

ix Julius Ochen (D-0136) 904 Julius Ochen testified live before the Chamber. As a politician from Teso and member of the Ugandan parliament he offered a historical account on LRA and LDU activities in Teso at the time of the charges. In particular, he provided information on the formation and functioning of the Arrow Boys. In the Chamber’s view, the witness’s testimony about the LRA’s initial behaviour in Teso is contradictory. The witness stated that the LRA members behaved initially in a friendly manner towards the population in Teso, but then went on to say that the local population mobilised and set up the Arrow Boys against the ‘rebel group’ which was coming in. 905 In addition, the Chamber finds Julius Ochen’s account of the treatment of former abductees by the community unconvincing, in particular the statement that ‘[w]hatever they did when they returned, there was a celebration for their return.’ 906 The Chamber is of the view that the witness was motivated to give a positive account of the reception of former LRA members, as the witness especially highlighted his role as a chairman in 907 receiving them. In light of the above, considering the limited relevance of the testimony of Julius Ochen and the availability of other more reliable evidence on the pertinent issues, the Chamber does not rely on Julius Ochen.

v. Government officers and agents a. UPDF The Defence alleges that the Prosecution did not carry out an impartial investigation, partly because ‘the choice and management of witnesses was done by Major Patrick

904 D-0136: T-207 . 905 D-0136: T-207 , p. 34, line 7 – p. 35, line 4. 906 D-0136: T-207 , p. 54, line 5 – p. 55, line 23. 907 D-0136: T-207 , p. 56, line 1 – p. 60, line 1.

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908 Ocira (P-0078), a UPDF officer who acted as resource person for the Prosecution’.

First, the Chamber notes that the Defence does not make any specific allegation of

wrong-doing. Rather, it asserts merely that the involvement of Patrick Ocira in allegedly facilitating the Prosecution’s investigation is proof that the Prosecution did not carry out

an impartial investigation. Further, the Chamber notes that neither the Defence nor the

Prosecution called Patrick Ocira as a witness to these proceedings. Absent specific

allegations and proof, the Chamber considers the Defence’s assertion unsubstantiated and

irrelevant.

i P-0035

909 P-0035’s statement was introduced pursuant to Rule 68(2)(b) of the Rules. P-0035

testified about his personal experience as of the military

detachment stationed in Lukodi IDP camp, he described the way the attack unfolded and

910 the actions of the Ugandan government soldiers. The Chamber notes that the witness

only served

911 . This likely explains the lack of specificity of some of his information about

912 Lukodi IDP camp. The Chamber considers that most aspects of the witness’s

913 testimony are consistent with other reliable evidence.

ii John Lubwama (P-0047)

914 John Lubwama testified live before the Chamber. He also provided a statement to the

915 Prosecution, which was submitted under Rule 68(3) of the Rules. John Lubwama, the

UPDF commanding officer stationed at the army barracks of Pajule IDP camp at the time

of the attack on the camp relevant to the charges, testified about the camp and his

908 Defence Closing Brief , para. 10. The Defence further states that according to available records, approximately 40 Prosecution witnesses, of which 20 were on the Prosecution List of Witnesses, are attributed to this UPDF officer. The Defence makes further allegations in relation to Prosecution’s collection of evidence which is discussed further below. See the Chamber’s discussion of other documentary evidence at paras 848-849 below. 909 P-0035 Statement, UGA-OTP-0036-0082-R01 (public redacted version available: UGA-OTP-0283-0102). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 105-08, p. 108. 910 P-0035 Statement, UGA-OTP-0036-0082-R01, at paras 12, 34-54. 911 P-0035 Statement, UGA-OTP-0036-0082-R01, at para. 10. 912 For example, P-0035 did not know the number of people living in Lukodi IDP camp and could only offer a rough estimate. P-0035 Statement, UGA-OTP-0036-0082-R01, at para. 19. 913 See the testimonies of P-0018, P-0024, P-0060. 914 P-0047: T-114 ; T-115 . 915 P-0047 Statement, UGA-OTP-0027-0177-R01. See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 51-54, p. 111. See also P-0047: T-114 , p. 26, line 6 – p. 29, line 9.

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experience during the attack and in its aftermath. The witness’s testimony was clear, detailed and credible. He clearly identified the source of his information, clarified what he experienced and what he heard from others and describes events in a manner and with such detail that the Chamber is convinced he testified truthfully about his personal experiences. The Chamber also notes that his testimony was consistent with the 916 testimony of other credible witnesses.

iii P-0084 P-0084’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 917 918 Rules. P-0084, an officer with the UPDF during the Pajule IDP camp attack, testified about what he witnessed during the attack and his experience as part of a factfinding team that visited Pajule immediately after the attack had ended on 10 October 2003. P-0084’s testimony was detailed, comprehensive and supported by the related 919 report, which was created just days after the October 2003 Pajule IDP camp attack. He clearly stated the sources of his information and distinguished between what he witnessed personally and what he heard from others. The Chamber considers that the witness’s 920 testimony was both internally consistent and consistent with other reliable evidence.

iv Irumba Omero Tingira (P-0189) 921 Irumba Omero Tingira is a UDPF colonel, who testified live before the Chamber. Irumba Tingira testified about his meetings with different LRA groups in his capacity as UPDF division intelligence officer in September 2006 during the ceasefire with the LRA. He gave in particular a detailed testimony about his meeting with Dominic Ongwen on 4 September 2006. This meeting does not fall within the period of the charges. However,

916 See the testimonies of P-0008 and P-0084. The Chamber notes in particular that as John Lubwama and P-0084 testified to their personal knowledge and perspective, the Chamber does not find their testimonies inconsistent. Contrary to the Defence’s arguments at the time of the submission of documents related to the witness’s testimony, the Chamber does not consider that other witnesses’ testimonies about the existence of a letter from the LRA or rumours of an impending attack preceding the Pajule IDP camp attack at issue undermine John Lubwama’s credibility. See P-0047: T-115, p. 22, line 19 – p. 24, line 5; Annex XI to the Registry’s Second Report on the Evidence recognised as formally submitted to the Chamber , 12 October 2017, ICC-02/04-01/15-1178-Anx-XI. 917 P-0084 Statement, UGA-OTP-0139-0149-R01 (public redacted version available: UGA-OTP-0280-0982). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 59-63, p. 109. 918 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 11. 919 See P-0084’s report on the Pajule attack, UGA-OTP-0069-0416. 920 See the testimonies of Rwot Joseph Oywak, P-0008 and P-0047. 921 P-0189: T-95 ; T-96 .

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as also explained below, the Chamber considers that it is nevertheless of relevance for the Chamber’s conclusions in relation to the charges. 922

v Joseph Balikudembe (P-0359) 923 Joseph Balikudembe testified live before the Chamber. Joseph Balikudembe, a UPDF colonel at the time of the attacks relevant to the charges, testified about his role as a UPDF commander during the relevant time period and about his knowledge of the attacks on Pajule, Odek and Abok IDP camps. Joseph Balikudembe was a calm, knowledgeable, forthright and forthcoming witness. His testimony was clear, logical, internally consistent and consistent with other reliable evidence before the Chamber. The witness clearly explained the source of his information, offering details that supported the credibility of the information provided. Joseph Balikudembe offered evidence that was clearly based on first-hand experience and of a nature that would be expected of a person is his position. For example, the witness’s explanation of his role in the UPDF and his work with military intelligence demonstrates to the Chamber that he provided information based on his 924 personal experience.

vi Emmanuel Ewicho (D-0122) 925 Emmanuel Ewicho testified live before the Chamber. He testified about joining the UPDF in 1992 and subsequently fighting against the LRA in Teso in 2003. He further offered evidence on Charles Tabuley’s death. The Chamber is satisfied that the witness testified credibly about his experiences.

b. LDU/Arrow boys/Amuka i Bosco Ogwang (D-0065) 926 Bosco Ogwang testified live before the Chamber. The witness testified about his experiences in the local defence unit (‘LDU’) and provided an account of the attack on Abok IDP camp, which he witnessed as a member of the LDU. His testimony was internally consistent and consistent with other reliable evidence heard in these

922 P-0189: T-95 , p. 8, line 16 – p. 9, line 3. 923 P-0359: T-109 ; T-110 . 924 P-0359: T-109 , p. 54, line 13 – p. 55, line 16. 925 D-0122: T-237 . 926 D-0065: T-211 .

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proceedings. He clearly distinguished between events he witnessed himself and what he

927 heard from others. Importantly, the witness did not incriminate the accused at all cost, indicating a lack of bias and further enhancing the Chamber’s view of his credibility.

ii Julius Nyeko (D-0066)

928 Julius Nyeko testified live before the Chamber. Julius Nyeko, an LDU soldier at the

time of the attack on Odek IDP camp relevant to the charges, testified about the attack

on the camp. The Chamber found Julius Nyeko to have been a forthcoming witness. The

witness frequently testified in a narrative format, providing a narration of what he knew

of the LRA attack on Odek IDP camp. However, despite his testimony that he fled and

929 hid far away from the camp, the witness at times testifies as though he personally

930 witnessed things he could not have personally seen. The Chamber takes this into

account as part of the assessment of evidence provided by the witness.

iii Okello Michael Tookwaro (D-0072)

931 Okello Michael Tookwaro testified live before the Chamber. Okello Tookwaro

testified about his experiences as an LDU soldier stationed in Lukodi IDP camp at the

time of the May 2004 attack.

Several aspects of Okello Michael Tookwaro’s testimony bring into question its

reliability. The witness testified that the LDU barracks was being dismantled before the

932 attack and that at the time of the attack the UPDF had a barrack on top of the hill. The

witness is the only one to offer such testimony. Other witnesses are consistent that there

was only one barracks in Lukodi at the time of the attack and that the barracks on the hill

933 was erected after the attack. Further, no other witness apart from Okello Michael

927 D-0065: T-211 , p. 22, lines 15-20, p. 24, lines 1-13, p. 29, lines 4-12 (stating that he did not see any commander and did not know which LRA commander commanded the attack on Abok IDP camp and that he never heard Dominic Ongwen mentioned with respect to Abok IDP camp until Dominic Ongwen was arrested). 928 D-0066: T-214 . 929 D-0066: T-214 , p. 23, lines 4-5, p. 24, lines 11-19. 930 See D-0066: T-214 , p. 23, line 25 – p. 24, line 6 (testifying about the behaviour of the LRA forces towards civilians in the camp) or p. 23, lines 8-19, p. 28, lines 11-13, p. 29, lines 14-18 (testifying about the movement and actions of the mobile forces during the attack). 931 D-0072: T-212 . 932 D-0072: T-212 , p. 12, line 20 – p. 15, line 18; D-0072’s sketch of Lukodi IDP camp, UGA-D26-0021-0226. 933 See P-0145: T-144 , p. 43, lines 8-24 (at the time of the attack, there was only one government military barracks. The second barracks was created following the May 2004 attack); P-0060 Statement, UGA-OTP-0069-0034-R01, at para. 17 (the second military barracks on the hills was built after the attack on Lukodi IDP camp). P-0035 made no mention of a separate UPDF force present in the camp. See P-0035 Statement, UGA-OTP-0036-0082-R01.

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Tookwaro testified that the UPDF soldiers were on the top of the hill the day of the 934 attack. Such a discrepancy is significant, particularly given Okello Michael Tookwaro’s position as a soldier in the LDU.

Most importantly, the Chamber is of the view that Okello Michael Tookwaro’s testimony regarding about what happened during the Lukodi attack is unreliable. Okello Michael Tookwaro testified that he and other government soldiers present in Lukodi quickly fled in the heat of the initial exchange with the LRA and could not see what was happening 935 within the camp. Contrary to other credible and reliable testimony demonstrating that 936 the attack lasted one to two hours, the witness also testified that the attack took quite 937 a long time, almost six hours. The Chamber is unable to rely on his testimony in regard to the conduct of the attack.

iv Sam Ojede (D-0121) 938 Sam Ojede testified live before the Chamber. Sam Ojede, an LDU soldier, offered an account of the attack on Abok IDP camp. The Chamber finds that this witness’s testimony cannot be relied upon.

Sam Ojede’s testimony was at times unclear, inconsistent or incredible. The Chamber finds that several issues completely undermined the credibility and reliability of his evidence.

First, the witness gave the Chamber the impression that he was not testifying in a natural, spontaneous way. When the witness was asked whether he had ever met Dominic Ongwen or heard about him being within the Lango sub-region, he gave a convoluted and somewhat tangential response about an unnamed commander who had met Dominic

934 D-0072: T-212 , p. 16, lines 15-18. See also D-0072: T-212 , p. 19, lines 17-19 (indicating that the camp had not received its scheduled monthly distribution yet at the time of the attack). 935 D-0072: T-212 , p. 38, line 9 – p. 43, line 19, p. 44, line 21 – p. 45, line 15, p. 47, lines 1-9, p. 47, line 17 – p. 48, line 2. The Chamber notes that the witness testifies about re-enforcements forces, including a mamba , coming to repel the LRA. However, the Chamber notes that his testimony about his location in relation to these reinforcement forces is unclear and inconclusive. It also contradicts other reliable evidence that the re-enforcement troops did not engage with the LRA within the camp as they arrived after the LRA had already fled. What is clear is that he was not at the camp after the initial gunfire from the LRA and cannot reliably testify about what happened within the camp. the Chamber’s discussion of the course of the Lukodi IDP camp attack in para. 1796 below. 936 See 937 D-0072: T-212 , p. 39, lines 13-14. 938 D-0121: T-213 .

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939 Ongwen and had reported Dominic Ongwen’s specific orders. The Chamber finds it incredible that Sam Ojede, who before his memory was refreshed could not remember 940 the name of his commander in the months he was captured by the LRA, would remember in such detail what he was told about the commands of Dominic Ongwen, 941 whom he testified he never met or saw. This aspect of the witness’s testimony appeared overly deliberate, like a line memorised in advance.

The Chamber is further unconvinced by the witness’s explanation of why he did not 942 mention these commands of Dominic Ongwen in his interview with the Defence. It is clear to the Chamber that had the witness truly heard the orders he claimed to have heard from Dominic Ongwen, he would have mentioned them in the course of his interviews with the Defence and/or the Prosecution.

Second, in his testimony about the 8 June 2004 Abok IDP camp attack, the witness was 943 unclear in relation to the number of soldiers present within the camp during the attack. The Chamber does not find the confusion in the testimony in itself dispositive or particularly significant, given the time that has elapsed. However, given the importance the witness places on the behaviour of the government soldiers, the lack of clarity is important to note.

Third, the Chamber found the witness’s accounts of the Abok IDP camp attack improbable. As regards his testimony that no one was abducted from Abok and nothing 944 was looted, the Chamber notes that this witness’s testimony is significantly at odds with the evidence offered by other witnesses in the proceedings, who testified credibly 945 that persons were abducted and property was looted. Further, the Chamber found the witness’s explanation of the returned abductees odd. Sam Ojede testified that the morning after the attack, Colonel Engola returned to the camp with injured civilians and children

939 D-0121: T-213 , p. 14, lines 5-21. 940 D-0121: T-213 , p. 9, lines 8-12, line 23 – p. 10, line 5. 941 D-0121: T-213 , p. 14, lines 5-21. 942 See D-0121: T-213 , p. 62, line 23 – p. 64, line 7, p. 66, lines 14-25. 943 D-0121 testified that there were about 300 soldiers around the camp and about 30 of the soldiers were taken to the camp to protect the camp. D-0121 placed himself among the soldiers who were taken to defend the camp. D- 0121: T-213 , p. 24, line 21 – p. 25, line 4. But he also testified that there were 270 government soldiers remaining in the camp. T-213 , p. 28, lines 8-13, p. 65, lines 2-6. 944 D-0121: T-213 , p. 46, lines 9-20. 945 See paras 1901-1910, 1973-2000, the Chamber’s evidentiary discussion of looting and abduction committed at Abok IDP camp.

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946 whom the Colonel said were rescued from LRA rebels. Sam Ojede contends that these

civilians were not abducted from Abok but were abducted from a different location and

947 rescued from the rebels. The Chamber does not understand why Colonel Engola would

948 have returned abductees who were not from Abok to Abok under the circumstances.

The Chamber also notes that in reference to these same abductees, the witness

subsequently testified that the people who were abducted from Abok were abducted on

949 a different day, not on the day of the attack. Given the ample evidence showing that

the abductees rescued by Captain Engola and the government soldiers had been abducted

from Abok the day of the attack, the Chamber finds the witness’s account unreliable.

As regards his testimony that government soldiers were responsible for the crimes

committed in Abok, the Chamber notes particularly that Sam Ojede testified that soldiers and ‘most of the people’ in Abok were aware that it was government soldiers who killed

950 civilians and burnt houses. Were this testimony true, it would be peculiar that

numerous camp residents who testified about the Abok IDP camp attack in these

proceedings failed to mention such happenings. Further, the Chamber is unconvinced by the witness’s explanation of why he did not mention that commanders had told

government soldiers to keep quiet about the Abok attack during his earlier interviews

951 with the parties.

Fourth, the witness was inconsistent with regards to the date of his abduction in his

952 testimony as opposed to his statement to the Prosecution. The Chamber generally finds an inconsistency of this nature unexceptional. However, the witness’s response to the

inconsistency undermined his credibility. Only after lengthy questioning, and after being

confronted with his previous interview, did the witness admit that he gave a different date

953 of abduction to the Prosecution. The Chamber is unconvinced by the witness’s

946 D-0121: T-213 , p. 37, line 12 – p. 38, line 3. The Chamber notes that D-0121, in offering his idea of how people came into UPDF custody, stated ‘I believe that these people went to the forest and they stayed. They spent the night there, and in the morning he went and fought against them and he brought back these people.’ T-213 , p. 37, lines 20-22. It is not clear to the Chamber who D-0121 testified fought against the LRA, civilians or the UPDF. 947 D-0121: T-213 , p. 45, lines 7-13. the Chamber’s discussion of the course of the Abok IDP camp attack. 948 See section IV.C.9, 949 D-0121: T-213 , p. 46, lines 1-8. 950 D-0121: T-213 , p. 41, line 16 – p. 42, line 3. 951 D-0121: T-213 , p. 61, line 24 – p. 62, line 4. 952 When questioned in court, the witness testified that he was abducted on 20 December 2001. D-0121: T-213 , p. 9, lines 13-16. During his interview with the Prosecution before his testimony the witness stated that he had been abducted in 2003. See D-0121: T-213 , p. 52, line 15 – p. 53, line 4. 953 D-0121: T-213 , p. 52, line 15 – p. 55, line 8.

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954 explanation of the inconsistency. Further, the witness’s obstinacy undermined his credibility in the Chamber’s view.

955 Fifth, the witness was wrong about the date of the attack on Abok IDP camp. Again, the witness’s response when the inconsistency was identified undermined his credibility. 956 He was adamant that the attack occurred on 6 August 2004, the same date advanced by Kenneth Opiyo. Only after repeated questioning did the witness allow he might have 957 been mistaken about the date of the attack on Abok IDP camp.

958 Lastly, regarding Sam Ojede and Kenneth Opiyo’s discussion of the Abok attack, Sam Ojede’s testimony regarding this contact further undermines his credibility. He first denied speaking with Kenneth Opiyo and only admitted to it when confronted by 959 evidence that made continued denial untenable. The Chamber finds that both the witness’s denial of the discussion with Kenneth Opiyo and the discussion itself undermine the credibility and reliability of the witness’s testimony.

In light of the foregoing, the Chamber found the witness’s evidence not credible and not reliable. The Chamber does not rely on his evidence.

v Charles Opio (D-0125) 960 Charles Opio testified live before the Chamber. He testified about joining the Arrow Boys in 2003 in Teso as a former member of the UPDF. He provided information about the establishment of the Arrow Boys, his encounters with the LRA and about witnessing Charles Tabuley’s death. The Chamber is satisfied that Charles Opio testified credibly about his experiences.

vi Justine Edeku Ooja (D-0138)

Justine Edeku Ooja is a former Arrow Boys commander, who testified live before the 961 Chamber. He provided a comprehensive narrative of the LRA operation in Teso between 2003 and 2004, the establishment and functioning of the Arrow Boys and his

954 See D-0121: T-213 , p. 52, line 15 – p. 55, line 8. 955 D-0121: T-213 , p. 44, lines 14-18. 956 D-0121: T-213 , p. 44, lines 14-18, p. 58, lines 9-23. 957 D-0121: T-213 , p. 67, line 5 – p. 68, line 5. discussion of Kenneth Opiyo’s testimony in section IV.B.2.ii.b.xxxv above. 958 See 959 D-0121: T-213-CONF, p. 49, line 16 – p. 50, line 11. 960 D-0125: T-242 . 961 D-0138: T-246 .

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role as a commander. The Chamber is satisfied that Justine Edeku Ooja testified credibly about his experiences.

vii Richard Ebuju (D-0140) Richard Ebuju, a former member of the Uganda People’s Army and commander of the 962 Arrow Boys, testified live before the Chamber. He testified about his experiences in the Uganda People’s Army, the attempted alliance between the latter and the LRA and his knowledge of Joseph Kony. Further, the witness provided an account on the functioning of the Arrow Boys in Teso, including detailed information on their command structure. The Chamber is satisfied that the witness testified credibly about his experiences in the Arrow Boys.

c. Elected official i Lapolo Santos Okot (P-0355) 963 Lapolo Santos Okot testified live before the Chamber. He is a Resident District 964 Commissioner in Northern Uganda since 2001. Lapolo Santos Okot testified about the security situation in Kitgum during the period relevant to the charges in the present case and his participation in various peace talks during the period relevant to the charges and in 2006, where the accused was also present. He further testified about the presence of children in the LRA. The Defence questioned Lapolo Santos Okot concerning charges of 965 alleged abuse of office against him, with the apparent aim to impugn his credibility in general and specifically with regard to his testimony on the conditions in the IDP 966 camps. The Chamber notes that the witness’s answers on this matter where not always 967 straightforward and forthcoming, which can be explained by the content of the subject. The Defence referenced allegations of improper behaviour during the exercise of the witness’s public functions. It is not unusual for a witness to try to avoid talking about events that are potentially embarrassing for him- or herself or might affect his or her reputation. However, the Chamber finds that this does not limit the reliability of Lapolo Santos Okot’s testimony as a whole. Taking into account the manner of testimony, as

962 D-0140: T-206 . 963 P-0355: T-96 ; T-97 . 964 P-0355: T-96 , p. 67, line 24 – p. 68, line 1. 965 P-0355: T-97 , p. 23, line 13 – p. 25, line 21. 966 P-0355: T-97 , p. 25, line 23 – p. 26, line 3. 967 P-0355: T-97 , p. 25, lines 8-21.

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well as additional evidence, such as photos, on which the witness commented during his testimony, the Chamber finds the witness believable and credible when Lapolo Santos Okot testified about the various peace talk meetings he attended, as well as seeing the accused and several children in with the LRA on these occasions. Furthermore, there is corroborating evidence concerning the peace talks, which was provided by other 968 witnesses.

d. Other government officers or agents i P-0017 P-0017’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 969 Rules. P-0017, a police investigator, offered testimony about his experience examining the crime scene of Lukodi IDP camp several days after the May 2004 attack on the camp. The evidence provided by P-0017 was detailed and comprehensive. The witness clearly explained the source of the information provided and his evidence is supported by documentary evidence. P-0017 described what he saw at Lukodi IDP camp when he arrived there the day after the attack, as well as the investigation into the attack, the 970 conclusions reached and the exhumation of 25 bodies. P-0017 elaborated on the methodology and conclusions of the investigations he participated in, providing 971 commentary that indicated a deep knowledge of the events he discussed. In addition, his evidence is internally consistent and also consistent with the testimony of other 972 credible witnesses who testified in these proceedings about the same events.

ii Martin Kalyemenya (P-0036) Martin Kalyemenya’s prior recorded statement was introduced pursuant to Rule 68(2)(b) 973 of the Rules. Martin Kalyemenya offered testimony about his experience as a 974 government pathologist examining the persons deceased at Lukodi IDP camp after the May 2004 attack on the camp. The evidence provided by Martin Kalyemenya was

968 See P-0009 and P-0372. 969 P-0017 Statement, UGA-OTP-0036-0007-R01 (public redacted version available: UGA-OTP-0280-0857). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 114-17, p. 107. 970 P-0017 Statement, UGA-OTP-0036-0007-R01, at paras 201-16. 971 P-0017 Statement, UGA-OTP-0036-0007-R01, at paras 204-16. 972 See the testimonies of P-0036, P-0024, P-0187. 973 P-0036 Statement, UGA-OTP-0036-0042-R01 (public redacted version available: UGA-OTP-0280-0961). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 109-13, p. 108. 974 P-0036 Statement, UGA-OTP-0036-0042-R01, at paras 9, 18.

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comprehensive and detailed. The witness explained that he arrived in Lukodi the day after the attack, and that he identified graves and carried out post-mortem exhumation 975 and examination on 25 bodies of persons deceased in Lukodi IDP camp. The witness explained the source of the information he offers and the documentary evidence provided 976 supports his evidence. Martin Kalyemenya also clearly explained the methodology and procedures observed and gave commentary which left the Chamber convinced as to the 977 veracity of his account and the authenticity of the documents he provided. In addition, his evidence is internally consistent and also consistent with the testimony of other 978 credible witnesses heard in these proceedings.

iii Timothy Nabaasa Kanyogonya (P-0038) 979 Timothy Nabaasa Kanyogonya testified live before the Chamber. He testified publicly, without protective measures. Timothy Kanyogonya provided two prior recorded 980 statements which were introduced pursuant to Rule 68(3) of the Rules. The witness testified mainly as to his role as liaison between the Ugandan Ministry of Defence and the UPDF on one side, and the Prosecution on the other, for purposes of providing material collected by Ugandan authorities during the period relevant to the charges to the Prosecution. He described the procedures followed and the nature of the material handed over to the Prosecution. Timothy Kanyogonya’s testimony was comprehensive and clear and he offered details that supported the credibility of the information provided.

vi. Intercept witnesses a. Core intercept witnesses: P-0003, P-0016, P-0059 and P-0440 The Chamber understands the Prosecution’s core intercept witnesses to be the two veteran LRA signallers (P-0016 and P-0440) and the two primary government interceptors (P-0003 and P-0059). All four set out their training and experience at length

975 P-0036 Statement, UGA-OTP-0036-0042-R01, at paras 15-18, 127-42. 976 P-0036 Statement, UGA-OTP-0036-0042-R01, at paras 127-42. 977 P-0036 Statement, UGA-OTP-0036-0042-R01, at paras 15-18, 127-42. 978 See the testimonies of P-0017, P-0024, P-0187. 979 P-0038: T-116 ; T-117 . 980 P-0038 First Statement, UGA-OTP-0069-0784-R01; P-0038 Second Statement, UGA-OTP-0244-0912-R01. See P-0038: T-116 , p. 5, line 24 – p. 7, line 17. See also First Decision on Prosecution Applications under Rule 68(2)(b) , paras 210-13, p. 111.

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981

in their testimonies. All four had the job of understanding how the LRA communicated,

982

and each is very well placed to recognise LRA voices on the radio. The Chamber does

not accept the fact that some of these witnesses were engaged in clandestine operations

983

to have any impact in their credibility.

The Chamber considers each witness to have testified truthfully on their essential

testimony. None of them attempted to incriminate Dominic Ongwen at all costs – all

differentiated between communications when Dominic Ongwen spoke and did not speak,

none claimed to know everything spoken in every communication, and all qualified their

984

answers to varying degrees when they were uncertain about particular details. This is

true even of P-0003, who was demonstrably more aggressive towards (and less

985

forthcoming with) the Defence than the Prosecution.

The most important aspect of these witnesses’ testimonies is when they discussed specific

intercepted communications. The general procedure for a given communication was the

following. Prior to testifying, and independently from any other witness: (i) the

Prosecution played the recording to each witness and provided a draft transcript it

prepared; and (ii) at particular points in the recording identified by the Prosecution, the

witness identified the speakers of the lines and made any corrections to the transcript as

986

necessary. Then, during the witness’s in-court testimony, the procedure continued: (iii)

the Prosecution played the recording to the witness, normally the enhanced audio version;

(iv) the witness gave a summary of the recording played without recourse to a transcript;

981 P-0003: T-42-CONF, p. 8, line 15 – p. 11, line 17; P-0016: T-32-CONF, p. 14, line 1 – p. 16, line 18; P-0059: T-36 , p. 7, line 1 – p. 9, line 9; T-38-CONF, p. 15, line 3 – p. 16, line 11; P-0440: T-39-CONF, p. 66, line 5 – p. 70, line 1; T-39 , p. 74, line 11 – p. 75, line 1. 982 P-0003: T-42 , p. 12, lines 2-25, p. 47, lines 2-17, p. 72, lines 1-18; P-0016: T-32 , p. 19, line 21 – p. 30, line 20, p. 43, lines 4-6; T-35 , p. 8, line 21 – p. 11, line 20, p. 25, lines 1-18; P-0059: T-36 , p. 57, lines 1-25; T-38-CONF, p. 16, line 12 – p. 22, line 9; T-38 , p. 26, line 12 – p. 27, line 6; P-0440: T-40 , p. 7, line 10 – p. 14, line 3. On this basis, the Chamber finds the concerns expressed by the Defence unfounded. See Defence Closing Brief , paras 266-298. 983 See Defence Closing Brief , para. 291. 984 E.g. P-0003: T-42 , p. 86, lines 4-25; T-43 , p. 14, lines 11-17, p. 31, lines 8-16; P-0059: T-37 , p. 3, lines 5-10, p. 13, lines 12-14, p. 50, lines 16-18; T-38 , p. 4, lines 14-16; P-0016: T-32 , p. 52, line 22 – p. 53, line 4, p. 61, line 19 – p. 62, line 10, p. 68, lines 11-16; T-33 , p. 35, line 21 – p. 36, line 13, p. 45, lines 5-8, p. 55, lines 2-9; P- 0440: T-40 , p. 21, line 21 – p. 22, line 2, p. 34, line 21 – p. 35, line 1. On this basis, the Chamber does not accept the related argument of the Defence that in particular P-0003 and P-0059 were biased against Dominic Ongwen. See Defence Closing Brief , paras 279, 284-87. 985 E.g. compare P-0003: T-42 , p. 78, line 11 – p. 88, line 17 (identifying voices speaking in recording UGA-OTP- 0239-0123 for the Prosecution) with P-0003: T-46 , p. 26, line 13 – p. 30, line 2 (refusing to identify the speakers on this same recording during the Defence’s examination). 986 P-0003: T-42 : p. 76, line 13 – p. 78, line 10; P-0016: T-32 , p. 36, line 12 – p. 39, line 12; T-34 , p. 50, lines 2- 17; P-0059: T-36 , p. 70, line 15 – p. 73, line 4; T-38 , p. 23, line 15 – p. 24, line 7.

No. ICC-02/04-01/15 201/1077 4 February 2021

(v) the Prosecution then showed the witness his annotated transcript, discussing certain lines or annotations; and (vi) the witness confirmed in court whether the recording played 987 matched what appeared in his annotated transcript. A similar in-court procedure 988 unfolded on certain occasions when the Defence played recordings to witnesses.

The Chamber considers this procedure to be well-suited to elicit reliable testimony on particular communications. When multiple witnesses commented on a given recording, the extent to which they corroborated each other and the formal logbooks is remarkable. The level of corroboration is such that these witnesses mutually reinforce each other, confirming that all of them are indeed capable of understanding the complex phrasing of LRA communications. This occurred even with those recordings discussed by both government and former LRA witnesses, which is particularly notable. There is no reasonable possibility of the Ugandan government systematically misunderstanding LRA communications when both government and former LRA witnesses understand what is said in the same way. This corroboration further confirms that the formal logbook entries in evidence have a high degree of accuracy.

This said, the Chamber notes that none of these witnesses gave indisputably clear evidence on all points. The intercepted communications use so much unusual phrasing that they are difficult to understand without additional evidence. In some instances 989 witnesses contradicted themselves or each other about particular lines or speakers. There were other occasions when a witness could identify information in a recording that 990 another witness was unsure about. The Chamber recognises that struggling to identify certain voices could be due to many factors, including the poor quality of certain recordings, the complexity of LRA communication, and the nearly 15 years which elapsed between an intercepted communication and the testimony about it. It also cannot be excluded that witnesses attempted to identify speakers from context in limited instances, such as hearing a call-sign or signaller and then inconsistently deducing who is speaking.

987 See P-0016: T-32 , p. 39, line 13 – p. 41, line 25, p. 71, lines 3-12 (explanation of approach); P-0059: T-36 , p. 73, line 9 – p. 77, line 2. 988 E.g ., P-0138: T-121 , p. 57, line 13 – p. 67, line 4; T-122 , p. 5, line 4 – p. 13, line 10; P-0339: T-134 , p. 47, line 21 – p. 49, line 6; T-135 , p. 15, line 4 – p. 25, line 23. 989 See e.g. paras 707, 751 and 765 below. 990 See e.g. para. 758 below.

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In principle, the Chamber considers that any such issues can be appropriately accounted for by relying only on those parts of the intercepted communications when the witnesses have a consistent understanding on who is speaking and what they are saying. Issues with understanding the recordings have been sufficiently rare that the Chamber is convinced of these witnesses’ overall capabilities. Evidence on particular recordings overlapped far more often than they did not, especially on conversation portions of consequence. The divergences themselves speak to the witnesses’ credibility – it would be suspicious if every witness had a perfectly mirrored understanding of coded LRA conversations from over a decade ago.

None of this is it to say that the Chamber believed what the witnesses said at all times on all points. Some of these points concern such inconsequential matters that may simply have been misunderstandings, such as when P-0059 claimed to have drawn a sketch of the Gulu intercept house when he really had only confirmed the accuracy of another’s 991 drawing. The Chamber places similarly little weight on P-0016’s confusing 992 explanation as to whether or not he received money for witness related expenses.

Not every such issue can be explained as a misunderstanding. The Chamber notes P- 0003’s refusal to acknowledge that another officer raised a personnel complaint against 993 994 him, despite there being clear evidence this occurred. The Chamber considers this 995 to be P-0003 evading a potentially embarrassing matter he must have been aware of. But this complaint is unrelated to P-0003’s primary testimony on interpreting intercepted LRA radio communications. The Chamber believes this primary testimony, noting in particular that other witnesses corroborate P-0003’s assessments of discrete communications in nearly all aspects. The Chamber considers this to be a situation where P-0003’s testimony is credible and reliable on matters beyond this particular issue.

Similar considerations apply to discrepancies as to how much P-0003, P-0059 and other government interceptors discussed communications across agencies. The UPDF and ISO

991 P-0059: T-38-CONF, p. 32, line 14 – p. 38, line 13; T-39 , p. 54, line 20 – p. 58, line 12 (commenting on UGA- OTP-0258-0721-R01). The Chamber notes the Defence submission in this regard, but considers that the Defence overstated the importance of the discrepancy. See Defence Closing Brief , para. 281. 992 P-0016: T-34-CONF, p. 25, line 9 – p. 30, line 15. 993 P-0003: T-44-CONF, p. 61, line 4 – p. 78, line 22. 994 Letter, UGA-OTP-0242-0219. See also P-0059: T-36 , p. 43, lines 10-24; T-38-CONF, p. 39, line 17 – p. 43, line 13. 995 Consistent with Defence Closing Brief , para. 288.

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in Gulu worked in the same building, and were under orders not to discuss their intercept

996 operations with each other. P-0003 and P-0059 testified that no such UPDF-ISO

997 contacts occurred. Despite this, many witnesses believably said that the UPDF and

ISO personnel – including P-0003 and P-0059 – would sometimes help each other to

998 understand the meaning of certain parts of communications. The Chamber considers

the desire to compare findings to be a natural impulse in these circumstances, noting

further that these other witnesses have no reason to lie on this point. This said, the

Chamber again considers that this kind of issue does not detract from the fact that both

P-0003 and P-0059 demonstrated their independent ability to understand LRA

999 communications during their testimony.

The Chamber also considers that other witnesses who testified about intercepted

communications gave credible and reliable testimony which reinforced the testimony of

the core witnesses. These witnesses include Patrick Lumumba Nyero, P-0138, P-0339

and the various witnesses whose prior recorded testimony were introduced under Rule

68(2)(b) of the Rules.

Patrick Lumumba Nyero gave a detailed account of the more limited intercept operation

1000 executed from the Kamdini Police Station. His police logbook is not prepared as

systematically as those of the UPDF and ISO, but the overlap between these entries and

those of the other interceptors again confirms the ability of this witness to understand

LRA radio communications.

996 P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 27; P-0029 First Statement, UGA-OTP-0027- 0231-R01, at para. 27; P-0339: T-134 , p. 21, line 7 – p. 22, line 2; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 35; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 18. 997 P-0003: T-42 , p. 17, line 24 – p. 18, line 5 (‘Q. Did you ever have any interaction with personnel from the Internal Security Organisation? A. No. We were not allowed to. We were prohibited. You know, the intelligence prohibits us from sharing information. If we send the information to the superiors, I suppose that there is a way that they analyse the information, but at the moment – but in the performance of our jobs we are not allowed to share information.’); T-44-CONF, p. 34, lines 1-22; P-0059: T-36 , p. 41, line 25 – p. 42, line 23. 998 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 50; P-0032 First Statement, UGA-OTP-0069-0796- R01, at paras 18, 26; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 40; P-0291 Statement, UGA- OTP-0246-0061-R01, at paras 55-56; P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 23; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 44-46; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 18. See also P-0126 First Statement, UGA-OTP-0253-0764-R01, at paras 51-52 (police in Gulu would sometimes compare interception notes with UPDF/ISO as well). 999 See also para. 661 below. 1000 See para. 631 below. See also para. 582 below.

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P-0138 and Francis Ocen (D-0100) are other former LRA soldiers with knowledge about

1001 signalling. The Chamber considers both to have a sound basis for knowledge about

LRA radio communication, and found their testimony on such matters to be truthful and

reliable. This extends to P-0138’s testimony discussing certain intercepted recordings at

the behest of both parties in court, following a procedure similar to the one used for the

1002 core intercept witnesses.

b. ISO interception operation: P-0027, P-0032, P-0291, P-0301, P-0303, P-0384, P-0385 and P-0386

P-0027’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of the

1003 Rules. During the period of the charges, P-0027 worked as an officer for the Ugandan

Internal Security Organisation (the ‘ISO’) and, based in Kampala, was the superior to the

ISO interception operation in Gulu. He gave evidence on the ISO operation concerned

with intercepting LRA radio communications, which he set up in the 1990s, and also

provided ISO intercept materials to the Prosecution. The Chamber notes that P-0027

testified that the tape recorder used by the ISO intercepting staff in Gulu was voice-

1004 operated, while some of the ISO intercepting staff themselves indicated that they

1005 manually operated the tape recorder. However, in particular, and bearing in mind that

he was based in Kampala and did not listen to and intercept LRA radio communications

himself, the Chamber finds that this minor difference in the testimonies does not affect

1006 the reliability of P-0027’s account. The Chamber considers that P-0027’s testimony

was comprehensive and clear, offering details that supported the credibility of the

information provided.

1001 P-0138: T-120-CONF, p. 15, line 7 – p. 16, line 21; T-121-CONF, p. 42, line 7 – p. 44, line 12; D-0100: T- 234 , p. 16, line 21 – p. 20, line 14, p. 26, line 21 – p. 31, line 12, p. 45, line 6 – p. 46, line 13. 1002 P-0138: T-120 , p. 54, line 8 – p. 68, line 14; T-121 , p. 57, line 11 – p. 60, line 25; T-122 , p. 5, line 4 – p. 15, line 3. 1003 P-0027 First Statement, UGA-OTP-0207-0256-R01 (public redacted version available: UGA-OTP-0280- 0890); P-0027 Second Statement, UGA-OTP-0249-0444-R01 (public redacted version available: UGA-OTP- 0280-0895). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 154-58, p. 108. 1004 P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 10. See also Defence Response to Prosecution Application under Rule 68(2)(b) , para. 114. 1005 P-0032 First Statement, UGA-OTP-0069-0796-R01, at para. 12; P-0059: T-36 , p. 37, lines 17-20; P-0291 Statement, UGA-OTP-0246-0061-R01, at para. 38; P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 42. 1006 The Chamber also notes in this regard that the tape recorder which P-0301 – who stated that he operated the tape recorder manually – identified as being the recorder which he used to tape LRA radio communications ( see P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 32(d); Photo, UGA-OTP-0244-3336) bears a print reading ‘voice-operated recording’, but at the same time clearly has a ‘record’-button, in addition to the ‘pause’, ‘play’, ‘stop’, ‘fast forward’, and ‘rewind’-buttons.

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P-0032’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of the

1007

Rules. P-0032 supervised the ISO interception staff in Gulu and provided details on

this operation, as well as some general information on the LRA from his perspective as

intelligence officer. He further made some ISO interception material available to the

Prosecution. The Chamber finds P-0032’s testimony clear and comprehensive, offering details that supported the credibility of the information provided. The witness’s

testimony is credible and reliable.

P-0291’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the

1008

Rules. For a significant part of the period of the charges, P-0291 was involved in the

ISO operation in Gulu intercepting LRA radio communications, and he testified about

the details of the interception process. He also provided some limited evidence regarding

the UPDF direction-finding operation. While it is not entirely clear until when P-0291

1009

stayed in Gulu, the Chamber finds that overall P-0291’s testimony was clear and

comprehensive. The witness offered details supporting the information provided.

P-0301’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the

1010

Rules. He was involved in the ISO interception operation in Gulu mostly before the

1007 P-0032 First Statement, UGA-OTP-0069-0796-R01 (public redacted version available: UGA-OTP-0280- 0933); P-0032 Second Statement, UGA-OTP-0150-0030-R01 (public redacted version available: UGA-OTP- 0280-0939); P-0032 Third Statement, UGA-OTP-0246-0003-R01 (public redacted version available: UGA-OTP- 0280-0945). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 163-67, p. 108. The Chamber clarifies that, as anticipated in its decision allowing introduction of the witness’s statements pursuant to Rule 68(2)(b) of the Rules, it has not considered for purposes of the present judgment the discrete part of the second statement in which the witness refers to Dominic Ongwen’s role and actions at the time the statement was taken ( see First Decision on Prosecution Applications under Rule 68(2)(b) , para. 163, n. 291 referring to P-0032 Second Statement, UGA-OTP-0150-0030-R01, at para. 8 (first sentence)). 1008 P-0291 Statement, UGA-OTP-0246-0061-R01 (public redacted version available: UGA-OTP-0280-1038). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 171-74, p. 110. 1009 See also para. 574 below. The Chamber further notes in this context that P-0291 testified that the UPDF did not intercept from the same house as ISO while he was still working in Gulu (P-0291 Statement, UGA-OTP-0246- 0061-R01, at para. 55), while other evidence suggests that the staff working on the UPDF interception operation moved to the same facility as ISO either in 2003 (P-0032 Third Statement, UGA-OTP-0246-0003-R01, at paras 21(d), 40; P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 25 (stating that when the UPDF directionfinding team in about 2003 moved into the building from which P-0003 used to intercept, P-0003 with the interception team moved to the intercept building)) or in about 2004-05 (P-0003: T-42 , p. 18, line 24 – p. 19, line 2; P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 7 (indicating that at the time of the statement, February 2005, the ISO and UPDF interception operations were housed in the same building); P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 20). 1010 P-0301 Statement, UGA-OTP-0249-0423-R01 (public redacted version available: UGA-OTP-0280-1051). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 175-77, p. 110. The Chamber clarifies that, as anticipated in its decision allowing introduction of the witness’s statement pursuant to Rule 68(2)(b) of the Rules, it has not considered for purposes of the present judgment the discrete part of the statement in which the witness refers to Dominic Ongwen’s alleged responsibility for the attacks on Lukodi and Odek IDP camps ( see First Decision on Prosecution Applications under Rule 68(2)(b) , paras 175-76).

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period relevant to the charges, as he left Gulu in August 2002. P-0301 provided testimony concerning the ISO interception procedure and also testified about his investigation of the attacks on Lukodi and Odek IDP camps. The Chamber finds the witness’s testimony detailed, clear and supported by the related documents.

P-0303’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 1011 Rules. P-0303 supervised the ISO staff in Gulu intercepting LRA radio communications between 2000 and 2003, after which he transferred to Kampala where he received the information faxed from Gulu. He did not personally listen to LRA radio communications. P-0303 also provided some intercept material to the Prosecution. The Chamber finds that P-0303’s testimony was clear and comprehensive, offering details that supported the credibility of the information provided.

P-0384’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 1012 Rules. P-0384 was an ISO radio operator who was, during the period relevant to the charges, briefly involved in the interception operation in Gulu and then in Kampala, although not directly participating in the actual interception of radio communications. P- 0384 was also involved in direction-finding activities, but did not provide specific information in this regard. The Chamber notes that P-0384 indicated that P-0301 joined 1013 the interception team in Gulu after 1997, which does not accord with the evidence 1014 1015 provided by either P-0301 himself or his superiors. However, aside from this minor detail, the Chamber finds that P-0384’s testimony was clear and internally consistent.

P-0385’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 1016 Rules. Throughout the period of the charges, P-0385 was stationed in Kampala and

1011 P-0303 Statement, UGA-OTP-0258-0723-R01 (public redacted version available: UGA-OTP-0280-1065). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 178-81, p. 110. 1012 P-0384 Statement, UGA-OTP-0260-0491-R01 (public redacted version available: UGA-OTP-0280-1105). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 190-92, p. 110. 1013 P-0384 Statement, UGA-OTP-0260-0491-R01, at paras 17, 19. 1014 P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 19 (testifying that he transferred from Kampala, where he had been since 1995, to Gulu in 1996). 1015 P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 18(b) (testifying that he recruited P-0301 in about 1995); P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 23(e) (testifying that P-0301 started intercepting in about 1994 or 1995). 1016 P-0385 Statement, UGA-OTP-0260-0498-R01 (public redacted version available: UGA-OTP-0280-1111). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 193-95, p. 110.

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tasked with receiving and recording the information sent by the ISO interception team based in Gulu. The witness’s testimony was detailed and clear and offered details that

supported the credibility of the information provided.

P-0386’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the

1017

Rules. P-0386 worked with the ISO interception team in Gulu and described his

involvement in and the details of the operation intercepting LRA radio communications.

The Chamber notes that P-0386 stated that he went to Gulu in order to replace P-0291 who transferred to Kampala, but that it appears from the witnesses’ evidence that the

1018

time during which they worked in Gulu may have overlapped. Having examined

entries in ISO logbooks regarding which P-0386 identified his own handwriting, the

Chamber concludes that it is indeed likely that the stay in Gulu of P-0386 and P-0291,

1019

respectively, may indeed have partially overlapped. In any event, this does not

otherwise affect the substance of P-0386’s testimony or his general credibility.

Furthermore, the Chamber takes note of

1020

.

1021

. The Chamber finds that this does not affect the

1017 P-0386 Statement, UGA-OTP-0260-0508-R01 (public redacted version available: UGA-OTP-0280-1119). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 196-99, p. 110. 1018 Compare P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 17 (stating that he transferred to Gulu in about September 2003 to replace P-0291 who went to Kampala, and that he is certain about the date because he recalls being in Gulu when hearing about the death of Tabuley) with P-0291 Statement, UGA-OTP-0246-0061- R01, at para. 19 (stating that he worked at Gulu station for about one year after Tabuley’s death). See also P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 23(c) (stating that P-0386 joined the operation in Gulu in about 2002). 1019 See, for example , ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0024 (entry of 5 November 2003); ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0007 (entry of 19 January 2004); ISO Logbook (Gulu), UGA-OTP- 0061-0206, at 0237 (entry of 19 April 2004); ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0020 (entry of 7 June 2004); ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0149 (entry of 30 July 2004); ISO Logbook (Gulu), UGA-OTP-0152-0002, at 0005-06, 0012-13 (entries of 24, 27 October 2004). At the same time, P-0386 reviewed ISO Logbook (Gulu), UGA-OTP-0232-0234 and indicated that it does not include his handwriting ( see P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(k)). This logbook covers the period from 2 August to 26 October 2003. The Chamber further notes in this context that P-0291 was not shown any logbook entries on which to identify his handwriting, but does not attach further consequence to this, in particular bearing in mind that both th P-0291 himself and P-0032 testified that he stopped making entries in the logbooks when the UPDF 4 Division commander complained about his poor handwriting; P-0032 instead transferred P-0291’s intercepts to the logbook ( see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 31; P-0291 Statement, UGA-OTP-0246-0061- R01, at para. 46). 1020 P-0386 Statement, UGA-OTP-0260-0508-R01, at paras 35-36. 1021

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witness’s general credibility. Overall, and in any event as concerns the subject matter of his testimony – namely the details of the ISO interception operation – the Chamber finds that the witness’s testimony was clear, comprehensive, and offered details that supported the credibility of the information provided.

The Chamber considers that the witnesses’ testimonies were clear and internally consistent and also were generally mutually consistent as well as consistent with other 1022 reliable evidence.

c. UPDF interception operation: P-0029, P-0337, P-0339, P- 0400 and P-0404 P-0029’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of the 1023 Rules. P-0029 was part of the UPDF technical intelligence department and oversaw the UPDF interception of LRA radio communications, which he described in detail. He also gave evidence on the UPDF direction-finding operation. The Chamber finds that P- 0029’s testimony was clear and comprehensive, offering details that supported the credibility of the information provided.

P-0337’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of the 1024 Rules. P-0337 headed the UPDF direction-finding team in Gulu until it was disbanded in June 2005 and provided details on this process. As of 2003, P-0337 also took control of the static interception team in Gulu, as well as administrative control over all UPDF interception operations in Northern Uganda. The Chamber notes that certain smaller aspects of P-0337’s testimony are somewhat unclear, specifically when P-0337 started

1022 See the testimony of P-0059. 1023 P-0029 First Statement, UGA-OTP-0027-0231-R01 (public redacted version available: UGA-OTP-0280- 0907); P-0029 Second Statement, UGA-OTP-0267-0455 (public redacted version available: UGA-OTP-0280- 0919). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 159-62, p. 108. 1024 P-0337 First Statement, UGA-OTP-0256-0201-R01 (public redacted version available: UGA-OTP-0280- 1073); P-0337 Second Statement, UGA-OTP-0267-0445-R01 (public redacted version available: UGA-OTP- 0280-1085). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 182-85, p. 110.

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1025 1026 working in Gulu and which role he recalled P-0400 to have, but considers that these points do not affect the reliability of the witness’s evidence as they are easily explained by divergences in the personal memories of different witnesses, in particular bearing in mind the passage of time. In any event, this does not impact on the substance of P-0337’s testimony, which was detailed and comprehensive. He offered details to be expected from a witness in his position, supporting the credibility of the information provided.

1027 P-0339 testified live before the Chamber with protective measures. P-0339, as member of the UPDF, worked on intercepting LRA radio communications as of 1996 in Gulu, Achol Pii, Soroti and Lira. He described the process of listening to, recording of and reporting on LRA radio communications, and identified his handwriting in some logbook entries. The Chamber notes some discrepancies pointed out between the witness’s prior statement and his testimony in court, specifically as concerns his relation 1028 1029 with P-0003, as well as the identification of his handwriting in a UPDF logbook. In relation to the first matter, the Chamber considers that even if there may have been personal animosities at times, there is no indication that this would have impacted either witness’s interception activities. With regard to the second point, the Chamber refers to 1030 its discussion in the general intercepts section. The Chamber finds that, bearing in mind the testimony of the witness in court, these differences do not affect the general reliability of the information provided by the witness or his overall credibility. While the witness may, at times during his testimony, have been slightly less responsive to some questions than others, he clearly did answer questions of both parties to the best of his abilities and knowledge. In general, especially as regards the substance of his testimony

1025 See P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 16 (testifying that he came to Gulu at some point after August 2001); P-0029 Second Statement, UGA-OTP-0267-0455, at para. 55 (stating that the directionfinding operation was set up in about December 1999); P-0339: T-134 , p. 20, lines 18-20 (indicating that P-0337 came to Gulu in 2000). 1026 Compare P-0337 Second Statement, UGA-OTP-0267-0445-R01, at para. 36(f) (testifying that P-0400 came to Gulu to support P-0003 after P-0339 moved to Achol Pii, and that before coming to Gulu, P-0400 did interception work at the brigade level) with P-0400 Statement, UGA-OTP-0264-0015-R01, at paras 27-29, 32-34 (testifying that while he also worked for several months in Gulu, he was part of a mobile interception team which intercepted in Kitgum, Achol Pii and Lira). 1027 P-0339: T-134 ; T-135 . 1028 See P-0339: T-135-CONF, p. 5, line 21 – p. 6, line 3, p. 8, line 2 – p. 9, line 18. 1029 See P-0339: T-135 , p. 13, line 11 – p. 14, line 6. 1030 See para. 659 (iv), n. 1209 below.

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on the UPDF interception efforts, P-0339’s testimony was clear and comprehensive, offering details that supported the credibility of the information provided.

P-0400’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 1031 Rules. P-0400 was part of a mobile UPDF interception team which intercepted LRA radio communications from Kitgum, Achol Pii and Lira. He briefly also assisted the UPDF interception in Gulu and intercepted LRA communications while being deployed to southern Sudan for several months in 2004-05. The Chamber finds that the witness’s testimony was clear, detailed and comprehensive.

P-0404’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the 1032 Rules. P-0404 was mainly involved in the UPDF direction-finding activities, but also worked for some time on the UPDF interception team in Gulu. The witness’s testimony was detailed and clear, with details which supported the credibility of the information provided. The Chamber considers that the witnesses’ testimonies were clear and internally consistent and also were generally mutually consistent as well as consistent with other 1033 reliable evidence.

d. Police interception operation: Patrick Lumumba Nyero (P- 0125), P-0126 and P-0370 1034 Patrick Lumumba Nyero testified live before the Chamber. Between July 2003 and 2010, Patrick Nyero was stationed at Kamdini police station, where he worked, between September 2003 and some point in 2007, on intercepting LRA radio communications. He described listening to LRA radio communications, identified handwritten notes prepared by him in the process, and reporting the communications to his superiors. Patrick Nyero was a calm, knowledgeable and direct witness. His testimony was to the point, logical and internally consistent. The Chamber notes a small discrepancy between the evidence provided by Patrick Lumumba Nyero and P-0370 as concerns how the

1031 P-0400 Statement, UGA-OTP-0264-0015-R01 (public redacted version available: UGA-OTP-0280-1129). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 200-02, p. 110. 1032 P-0404 Statement, UGA-OTP-0267-0470-R01 (public redacted version available: UGA-OTP-0280-1139). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 203-05, p. 110. 1033 See the testimony of P-0003. 1034 P-0125: T-135 ; T-136 .

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1035 police interception operation in Kamdini initially started. However, considering that

the remainder of their testimonies are consistent with regard to the details of the police

interception operation in Kamdini, the Chamber attaches no further importance to this discrepancy and considers this not to affect the reliability of either witness’s testimony.

P-0126’s prior recorded statements were introduced pursuant to Rule 68(2)(b) of the

1036 Rules. During the period of the charges, P-0126 was a member of the Ugandan police,

special branch, and provided evidence on the police interception of LRA radio

communications mainly in Kamdini, which he supervised, as well as on general

intelligence gathering activities of the Ugandan police. Also, P-0126 provided material

from the police interception operation to the Prosecution. The Chamber notes a difference

in the way in which P-0126 described P-0370’s role in Kamdini and P-0370’s own

1037 description thereof. However, in light of the evidence provided by Patrick Nyero, who

1038 worked with P-0370, and considering that it is likely, on the basis of the witnesses’

testimonies, that P-0126 may not have been fully aware of P-0370’s involvement on the

ground, the Chamber relies on P-0370’s own description of his role and does otherwise

not consider this to affect P-0126’s overall credibility. This is further based on the fact

that the general substance of P-0126’s testimony was clear and comprehensive, offering

details that supported the credibility of the information provided.

P-0370’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of the

1039 Rules. P-0370, a police officer, worked between 2002 and 2006 in Kamdini on

1035 Compare P-0125: T-135 , p. 66, lines 2-13, p. 80, lines 14-19; T-136 , p. 6, lines 13-15, p. 7, lines 14-19 (testifying that he learned about the LRA frequency in use upon his arrival to Kamdini from P-0370 and that someone else at Kamdini had been listening to LRA communications before his arrival, without, however, taking any notes) with P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 26 (testifying that he and Patrick Nyero discovered together, by chance, that they could intercept LRA radio communications). The Chamber also notes in this regard that P-0126 stated that he first heard about the possibility to intercept LRA radio communications from Patrick Nyero, but that he did not know how Patrick Nyero had discovered this ( see P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 39). 1036 P-0126 First Statement, UGA-OTP-0253-0764-R01 (public redacted version available: UGA-OTP-0280- 1011); P-0126 Second Statement, UGA-OTP-0264-0002-R01 (public redacted version available: UGA-OTP- 0280-1026). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 168-70, p. 109. 1037 Compare P-0126 First Statement, UGA-OTP-0253-0764-R01, at para.

with P-0370 Statement, UGA-OTP-0258-0687- R01, at paras 22-45 (testifying about working on radio monitoring with Patrick Nyero between 2002 or 2003 and 2006). 1038 See P-0125: T-135 , p. 55, lines 18-22, p. 65, lines 21 – p. 66, line 13; T-136 , p. 10, line 21 – p. 11, line 8. 1039 P-0370 Statement, UGA-OTP-0258-0687-R01 (public redacted version available: UGA-OTP-0280-1094). See First Decision on Prosecution Applications under Rule 68(2)(b) , paras 186-89, p. 110.

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intercepting LRA radio communications, in addition to his general duties as police officer, and provided details on the interception process. With regard to the question of the extent of the witness’s involvement in intercepting LRA radio communications as stated by P- 1040 0126, the Chamber refers to its discussion above. As concerns P-0370, the Chamber finds that his testimony was detailed and clear and offered details which supported the credibility of the information provided.

Furthermore, the Chamber points out that the witnesses’ testimonies were clear and internally consistent and, in addition to the individual assessment, also were generally mutually consistent.

e. Audio enhancement: Alan Robert French (P-0242) and Xavier Laroche (P-0256) 1041 Alan Robert French testified live before the Chamber. The witness also provided a 1042 prior recorded statement, which was submitted under Rule 68(3) of the Rules. He described the process of enhancing a number of audio recordings he was provided with by the Prosecution and talked about the technical details involved with audio enhancement in general, as well as looking at some specific examples related to the audio recordings of LRA radio communications. Alan French was particularly knowledgeable, forthright and forthcoming in his testimony and provided differentiated answers. His testimony was comprehensive and filled with details of a nature that illustrated his expertise in the field of audio enhancement. 1043 Xavier Laroche testified live before the Chamber. He also provided a prior recorded 1044 statement, which was submitted under Rule 68(3) of the Rules. Similar to Alan French, who in fact trained the witness in using the relevant forensic system, Xavier Laroche enhanced, together with another colleague, the audio recordings of some LRA radio communications intercepted by Ugandan authorities and described which procedures were applied. While the witness himself made clear that he is not, as such, an expert in audio enhancement, Xavier Laroche plainly answered all questions to the best of his

1040 See para. 583 above. 1041 P-0242: T-128 . 1042 P-0242 Statement, UGA-OTP-0261-0333-R01. See P-0242: T-128 , p. 4, line 23 – p. 6, line 18. See also First Decision on Prosecution Applications under Rule 68(2)(b) , para. 209, p. 111. 1043 P-0256: T-119 . 1044 P-0256 Statement, UGA-OTP-0269-0015. See P-0256: T-119 , p. 8, line 6 – p. 10, line 2. See also First Decision on Prosecution Applications under Rule 68(2)(b) , para. 209, p. 111.

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knowledge and ability. He was detailed, straightforward and forthcoming in his testimony. The Chamber considers that the witnesses’ testimonies were internally consistent and mutually consistent.

f. Prosecution analysis of intercept materials: P-0403 1045 P-0403 testified live before the Chamber with protective measures. The witness, a member of the Situation Analysis Section within the Prosecution, discussed a report which contains his analysis of the body of evidence collected by the Prosecution in relation to the interception of LRA radio communications by Ugandan authorities, as well as information on how the collection of this evidence took place and the evidence was registered by the Prosecution. P-0403 was forthcoming in his testimony and the information he provided was comprehensive. His evidence, as such, was of limited value to the Chamber’s consideration of the charges. 1046

vii. Witnesses on Dominic Ongwen’s personal background a. Joe Kakanyero (D-0007) Joe Kakanyero, a local councillor in Coorom, Uganda and relative of the accused, 1047 testified live before the Chamber. He testified about being abducted together with Dominic Ongwen, and provided a comprehensive and clear testimony in a narrative manner.

b. Johnson Odong (D-0008) Johnson Odong’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of 1048 the Rules. Johnson Odong, Dominic Ongwen’s uncle, testified about the accused’s childhood and subsequent abduction in 1987. He also gave an account of subsequent events, such as the killings of Dominic Ongwen’s parents. His testimony was simple, without artifice, and credible.

1045 P-0403: T-30 ; T-31 . 1046 See also para. 685 below. 1047 D-0007: T-193 . 1048 D-0008 Statement, UGA-D26-0010-0307 (public redacted version available: UGA-D26-0010-0307-R01). See Decision on the Defence Request under Rule 68(2)(b) , at paras 7-8, p. 12.

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c. P’Atwoga Okello (D-0012) P’Atwoga Okello’s prior recorded statement was introduced pursuant to Rule 68(2)(b) of 1049 the Rules. He was a teacher at Alero Primary School at the time of Dominic Ongwen’s abduction, and testified about his knowledge of Dominic Ongwen before his abduction, as well as about the abduction itself. It is noted that P’Atwoga Okello further testified that he was an uncle of the accused. His testimony was simple and without artifice. The Chamber is satisfied that the witness testified credibly.

viii. Expert witnesses a. Mental health expert witnesses The issue of Dominic Ongwen’s mental health at the time relevant for the charges, and in particular the possible presence of a mental disease or defect, is a live issue in the case. Five expert witnesses prepared reports and gave oral testimonies before the Chamber: Dr Catherine Abbo (P-0445), Professor Gillian Mezey (P-0446), Professor Roland Weierstall-Pust (P-0447), Dr Dickens Akena (D-0041) and Professor Emilio Ovuga (D- 0042). In a dedicated section below, the Chamber lays out its analysis of the evidence provided by the experts, including as concerns the reliability of their reports and 1050 conclusions.

b. Other expert witnesses i Professor Ate Kloosterman (P-0414) Professor Kloosterman is a forensic reporting expert at the Netherlands Forensic Institute, 1051 who testified live before the Chamber. Ate Kloosterman provided expert reports, 1052 which were submitted under Rule 68(3) of the Rules. Professor Kloosterman testified about his analysis of the kinship between Dominic Ongwen and twelve children. Further, he offered detailed information about the DNA testing process and the interpretation of

1049 D-0012 Statement, UGA-D26-0010-0336 (public redacted version available: UGA-D26-0010-0336-R01). See Decision on the Defence Request under Rule 68(2)(b) , at paras 7-8, p. 12. 1050 See section IV.D.1 below. 1051 P-0414: T-137 . 1052 P-0414 First Report, UGA-OTP-0278-0529; P-0414 Second Report, UGA-OTP-0265-0106; P-0414 Third Report, UGA-OTP-0267-0160. See Decision on Prosecution Applications under Rule 68(3) , paras 29-30, p. 19. See also P-0414: T-137 , p. 3, line 23 – p. 6, line 17.

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his findings, which were also not contested by the Defence. His expert testimony is fully reliable, and the Chamber relies on it.

ii Professor Tim Allen (P-0422) Professor Allen testified live before the Chamber and his Independent Background Report on the Situation in Northern Uganda was introduced under Rule 68(3) of the 1053 Rules. Professor Allen is a professor in Development Anthropology and Head of the Department of International Development at the London School of Economics, United Kingdom. He provided general background information on the origins of the LRA, development into a politico-military force and the historic and continuing effect the LRA activities have upon the civilian population in Uganda. His expert testimony, which was not contested, is credible and reliable.

iii Professor Kristof Titeca (D-0060) 1054 Professor Kristof Titeca testified live before the Chamber. He is a Professor for International Development at the Institute of Development and Policy Management at the University of Antwerp, Belgium. He provided an expert report, which was introduced 1055 pursuant to Rule 68(3) of the Rules.

Professor Titeca testified about his previous work on the LRA and elaborated on the concepts, methodology and conclusions of his expert report on the ‘cosmological space of the LRA’. 1056 His testimony was candid, comprehensive and clear. However, the Chamber also notes that Professor Titeca did not question the statements made to him about the spiritual influence on LRA fighters and did not consider it to be his role to make a judgment about the truthfulness or falsity of the statements. As such, his evidence is only of very limited value in the present proceedings, especially given the abundance of direct evidence of witnesses.

1053 P-0422: T-28 ; P-0422’s report, UGA-OTP-0270-0004. See also p. 3, lines 1-14. 1054 D-0060: T-197 . 1055 D-0060 Report, UGA-D26-0018-3901. See also D-0060: T-197 , p. 10, line 20 – p. 12, line 19. 1056 D-0060 Report, UGA-D26-0018-3901.

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iv Professor Adam Branch (D-0139) Professor Adam Branch is a Professor for Politics and International Studies at the 1057 University of Cambridge, United Kingdom, who testified live before the Chamber. He also provided an expert report, which was submitted pursuant to Rule 68(3) of the 1058 Rules. He offered in particular a detailed account on the economic and security situation in IDP camps. However, his evidence is mostly based on indirect sources and literature, and his own personal experience relates primarily to the situation in Pabbo camp, which is not directly relevant to the charges of the present case. For this reason, in the presence of ample more direct evidence on the situation in IDP camps in Northern Uganda at the relevant time generally, and specifically in relation to the Pajule, Odek, Lukodi and Abok IDP camps, the Chamber does not rely on Professor Adam Branch.

v Dr Teddy Atim (V-0001) Dr Teddy Atim, a researcher from Northern Uganda at the Feinstein International Center 1059 at the Tufts University, United States of America, testified live before the Chamber. She provided a joint expert report with Anastasia Marshak, Dyan Mazurana and Jordan 1060 Farrar, which was submitted under Rule 68(3) of the Rules. Dr Atim’s expert report constitutes an assessment of the physical, material and psychosocial effects of the attacks on Odek IDP camp, Lukodi IDP camp and Abok IDP camp on the victims. The report is based on interviews with 396 victims participating in the present case (Victimization Assessment Survey). Findings are compared to a survey on the entire population in Acholi and Lango sub-regions in the same period (Secure Livelihoods Research Consortium Uganda Survey). Dr Atim elaborated on the methods applied in the report as well as on the findings of the report, including relevant information about the victims’ mental and physical well-being before, during and after the attacks. Her testimony was candid, clear and comprehensive. The Chamber notes her evidence, but also observes that it does not directly underlie any part of the Chamber’s analysis as to whether the facts alleged in the charges are established.

1057 D-0139: T-218 . 1058 D-0139 Report, UGA-D26-0015-1172. See also D-0139: T-218 , p. 5, line 22 – p. 6, line 12. 1059 V-0001: T-174 . 1060 V-0001 Report, UGA-V40-0001-0010. See also V-0001: T-174 , p. 7, line 11 – p. 8, line 19.

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vi Professor Daryn Reicherter (PCV-0001) 1061 Daryn Reicherter testified live before the Chamber. He provided an expert report, 1062 which was submitted under Rule 68(3) of the Rules. Professor Reicherter is a clinical professor for psychiatry and behavioural sciences at Stanford University School of Medicine, United States of America. He testified about a report he elaborated together with Ryan Matlow and the Human Rights in Trauma Mental Health Laboratory at Stanford University on mental health outcomes of rape and other forms of sexual violence, forced marriage and forced pregnancy. His testimony offered a detailed account of the methodology and terminology adopted by the report and its outcomes. Professor Reicherter’s testimony was comprehensive, structured, clear and specific. He offered in particular information on the psychological impact of rape and other forms of sexual violence on men and women in the cultural context of the charged crimes. The Chamber notes his evidence, but also observes that it does not directly underlie any part of the Chamber’s analysis as to whether the facts alleged in the charges are established.

vii Professor Michael Wessells (PCV-0002) 1063 Michael Wessells testified live before the Chamber. He provided an expert report, 1064 which was submitted under Rule 68(3) of the Rules. Professor Wessells is a professor of clinical population and family health at Columbia University, United States of America. He testified about his report on the psychological, social, developmental and behavioural consequences of enlistment, conscription and use of children under the age of 15 to participate actively in hostilities. His expert report is based on the testimonies of witnesses and the application forms of the victims represented by the Common Legal Representative of Victims. The Chamber notes his evidence, but also observes that it does not directly underlie any part of the Chamber’s analysis as to whether the facts alleged in the charges are established.

1061 PCV-0001: T-175 . 1062 PCV-0001 Report, UGA-PCV-0001-0020. See also PCV-0001: T-175 , p. 18, line 2 – p. 20, line 20. 1063 PCV-0002: T-176 . 1064 PCV-0002 Report, UGA-PCV-0002-0076. See also PCV-0002: T-176 , p. 6, line 8 – p. 8, line 4.

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viii Professor Seggane Musisi (PCV-0003) 1065 Seggane Musisi testified live before the Chamber. He provided an expert report, 1066 which was submitted under Rule 68(3) of the Rules. Professor Musisi is a professor of psychiatry at Makerere University College of Health Sciences in Kampala, Uganda. He testified about his expert report on the interplay of Acholi culture with traumas and PTSD. He elaborated in particular on the impact of loss of traditions on the individual’s and community’s development as well as on Acholi cultural approaches to crimes and traumas. He described, for example, in detail the role of Acholi rituals in healing processes. The Chamber notes his evidence, but also observes that it does not directly underlie any part of the Chamber’s analysis as to whether the facts alleged in the charges are established.

ix. Other witnesses a. Nathan Iron Emory (D-0018) 1067 Nathan Iron Emory testified live before the Chamber. Nathan Iron Emory, a former consultant to the LRA, testified about his experiences with the LRA and about the history of the LRA. Nathan Iron Emory was a forthcoming witness. His testimony was detailed and comprehensive. The witness provided information which contextualised the conflict 1068 between the LRA and the Ugandan government. The Chamber also notes his evidence in relation to the circumstances of the execution of Otti Lagony, which the Chamber deems reliable based on the witness’s involvement at the time in the negotiations among 1069 the various actors. It is clear that the witness attempts to distance himself from the 1070 LRA and their actions. However, in the Chamber’s view the witness is generally reliable.

1065 PCV-0003: T-177 ; T-178 . 1066 PCV-0003 Report, UGA-PCV-0003-0046. See also PCV-0003: T-177 , p. 6, line 7 – p. 8, line 8. 1067 D-0018: T-185 ; T-186 . 1068 See D-0018: T-185 , p. 34, line 21 – p. 38, line 3. 1069 See D-0018: T-185 , p. 45, lines 6-16. 1070 See for example D-0018: T-185 , p. 41, line 22 – p. 42, line 1 (testifying that he did not have any role and was merely an advisor for the LRA in Sudan). The Chamber notes that within the context of his testimony, as the witness describes his activities with the LRA, it is clear that the witness played an active role.

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b. Tommy Obote (D-0084) 1071 Tommy Obote testified live before the Chamber. Tommy Obote, a local politician, testified about his knowledge of the LRA’s activity in Ngai sub-county, the establishment of IDP camps in the region and what he witnessed in Abok IDP camp in the aftermath of the attack relevant to the charges. Tommy Obote offered considered testimony, credible in its detail and range. The witness was comprehensive, offering a historic perspective that can be expected of a close observer of the conflict in the region during the period 1072 relevant to the charges. The witness clearly distinguished between events he witnessed himself and events he heard about.

The Chamber also notes that concerning the attack on Abok IDP camp, the witness 1073 testified that he did not witness the attack and came to the camp the next morning. However, the Chamber does not necessarily disregard Tommy Obote’s evidence as to the occurrences at the centre of the camps during the attacks, for example if the witness gained information in the aftermath of the attack from persons who had witnessed the attack.

c. Nicolas Ocirowijok (D-0088) Nicolas Ochirowijok, a social consultant and researcher working in Northern Uganda, 1074 provided his testimony live before the Chamber. He testified about his work with World Vision, people who had been forced to be soldiers as children and aspects related to their return from the bush. The witness was responsive and concise when answering questions. The Chamber finds Nicolas Ocirowijok to be a credible and reliable witness. However, since his evidence is related to the treatment of children who returned from the LRA, it is only indirectly related to the issues relevant to the disposal of the charges.

d. Eric Awich Ochen (D-0114) 1075 The witness testified live before the Chamber. Eric Awich Ochen is a lecturer at the Makerere University in Kampala and provided evidence on his work with several non-

1071 D-0084: T-235 . 1072 E.g. D-0084: T-235 , p. 10, lines 12-25 (government forces would cut down trees in the forest so that the LRA would have no cover to hide.). 1073 D-0084: T-235 , p. 29, lines 2-24. 1074 D-0088: T-230 . 1075 P-0114: T-247 .

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governmental organisations such as Save the Children, World Vision and Gusco in the late 1990’s and during the period relevant to the charges. The witness testified in a straight-forward, open and concise manner. The Chamber finds Eric Awich Ochen to be credible and reliable. But while the Chamber did not identify any issue affecting the credibility of the witness, it notes that his testimony is not directly relevant to the disposal of the charges.

e. D-0150 1076 D-0150 testified live before the Chamber with protective measures. D-0150, a farmer in Northern Uganda, testified about Acholi spiritual traditions, including his own possession by spirits and his experience practicing as an ajwaka (spiritual healer). While the witness explained the phenomenon of spirit possession and his beliefs about Joseph Kony’s alleged possession, the witness had no direct knowledge of Joseph Kony’s 1077 alleged spirits or Joseph Kony himself. Nor did the witness express any knowledge of Dominic Ongwen. While the Chamber did not identify any issue affecting the credibility of the witness, the Chamber notes that his testimony goes to facts that are not directly relevant to the disposal of the charges.

f. D-0110 1078 D-0110 testified live before the Chamber with protective measures. D-0110, a child fathered by Joseph Kony and born in the bush, testified about her early childhood in the LRA in Sudan and her subsequent experiences in Uganda after leaving the LRA. She provided a detailed account of her knowledge of Joseph Kony. Her testimony was candid and clear. She described her experiences in a manner which clearly shows that she spoke about her personal experiences. The Chamber, however, found her account not to be directly relevant to the charges.

g. D-0130 D-0130, fathered by Joseph Kony and born in the bush in 1999, testified live 1079 before the Chamber with protective measures, having received Rule 75 assurances. He testified about his childhood in the LRA in Sudan and his subsequent life in Uganda

1076 D-0150: T-182 . 1077 D-0150: T-182 , p. 43, line 25 – p. 44, line 8, line 21 – p. 45, line 4. 1078 D-0110: T-231 . 1079 D-0130: T-198 .

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after his capture by the UPDF in 2002. The Chamber notes, however, that his statements are not of direct relevance to the charges in the present case.

h. D-0131 D-0131, fathered by Joseph Kony and born in the bush in 1991, testified live before the 1080 Chamber with protective measures, having received Rule 75 assurances. D-0131 testified in detail about his childhood after having left the bush with his mother shortly after his birth. He further offered . The Chamber notes, however, that his evidence is not of direct relevance to the charges.

i. Pollar Awich (D-0133) 1081 Pollar Awich testified live before the Chamber. The witness testified about having 1082 been abducted as a child and integrated in the National Resistance Army and about the experiences of persons who were forced to be soldiers as children. He testified about his own experience, provided evidence on children in the LRA and wrote a report on this 1083 issue, which was submitted into evidence. Pollar Awich answered in a clear and structured manner. The Chamber deems his testimony to be credible. However, the Chamber also notes Pollar Awich’s general conclusions concerning the enduring effect 1084 on the mental health of having been a child soldier, the conditions within the LRA on 1085 abductees and the influence on their free will as a grown up and whether they are, 1086 ultimately, responsible for any of their actions undertaken as an adult. First, Pollar Awich is not a mental health expert and, more importantly, the question of whether Article 31(1)(a) or (d) of the Statute are fulfilled can only be determined by the Chamber. Lastly, the Chamber finds Pollar Awich’s statement that ‘there are no cases where children escaped […] voluntary’ 1087 incredible considering the ample evidence received to the contrary. The remainder of Pollar Awich’s testimony does not go to issues of relevance to the disposal of the charged crimes.

1080 D-0131: T-205 . 1081 D-0133: T-203; T-204 . 1082 D-0133: T-203 , p. 20, lines 14-17, p. 21, lines 3-7. 1083 D-0133 Report, UGA-D26-0015-1022. 1084 D-0133: T-203 , p. 31, line 25 – p. 32, line 13. 1085 D-0133: T-203 , p. 63, line 17 – p. 66, line 6. 1086 D-0133: T-203 , p. 33, line 13 – p. 34, line 4. 1087 D-0133: T-203 , p. 81, lines 4-15; T-204 , p. 33, line 22 – p. 34, line 7, p. 35, lines 10-18.

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3 Documentary evidence

In this section, the Chamber lays out some general considerations with respect to the documentary evidence submitted in the case. The analysis, which responds also to the arguments of the parties, must be read in conjunction with the evidentiary discussion further below in the present judgment. Indeed, certain aspects relating to the relevance or reliability of documentary evidence, are further addressed, as appropriate, in the relevant evidentiary discussion.

i. Intercept materials Before assessing the specific intercepted communications the Chamber relies upon, the Chamber will set out its overall understanding of the voluminous intercept evidence submitted in this case. In addition, individual recordings will be discussed in section IV.B.3.ii below.

1088 The Defence raises a variety of arguments against the intercept-related evidence. These arguments are addressed across this section. Ultimately, the Chamber’s general conclusion is that the intercept materials are reliable and the Defence arguments without merit.

a. Interception process During the period relevant to the charges, the LRA would communicate over radio at 1089 regular intervals. Jargon, proverbs and/or codes obscured the meaning of these 1090 communications. The Chamber heard from former LRA members with detailed

1088 Defence Closing Brief , para. 225 (summarising these arguments). 1089 P-0003: T-42 , p. 19, lines 14-19; P-0016: T-32-CONF, p. 35, lines 5-25; P-0029 First Statement, UGA-OTP- 0027-0231-R01, at paras 20-23; P-0125: T-135 , p. 68, lines 3-5; P-0400 Statement, UGA-OTP-0264-0015-R01, at paras 42-43; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 29; P-0440: T-40 , p. 7, line 10 – p. 8, line 9; D-0100: T-234 , p. 46, lines 4-10. 1090 P-0003: T-42 , p. 55, line 11 – p. 65, line 19, p. 67, line 3 – p. 71, line 22; T-44 , p. 56, line 8 – p. 58, line 18; P-0016: T-32 , p. 23, line 17 – p. 27, line 19; T-35 : p. 23, line 1 – p. 24, line 14; P-0029 First Statement, UGA- OTP-0027-0231-R01, at paras 13, 15, 58; P-0440: T-40 , p. 8, line 10 – p. 14, line 3; D-0100: T-234 , p. 26, line 21 – p. 31, line 12.

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knowledge of the group’s communication methods, including P-0016,

1091 1092

P-0138, P-

1093 1094

0440 and Francis Ocen.

Various branches of the Ugandan government intercepted these messages. The primary

purpose of the intercept operation was not criminal prosecution, but rather to gain

1095

military intelligence to further the war effort against the LRA. On the whole, these

agencies conducted their operations independently of each other for purposes of ‘counterintelligence’; i.e . to ensure that no one interceptor was a spy or otherwise

1096

manipulating the intelligence collected.

The agencies responsible for the interception operation were the UPDF (the army), ISO

(the national intelligence agency) and CID (certain local police forces).

i Uganda People’s Defence Force interception

The primary UPDF interceptor during the time period relevant to the charges was

1097 1098

P-0003. Other witnesses involved in the UPDF interception operation are: P-0029;

1099 1100 1101 1102

P-0337; P-0339; P-0400 and P-0404. All these witnesses had training in

1091 P-0016: T-32 ; T-33 ; T-34 ; T-35 . 1092 P-0138: T-120 ; T-121 ; T-122 . 1093 P-0440: T-39 ; T-40 ; T-41 . 1094 D-0100: T-234 . 1095 P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 18, 19; P-0029 Second Statement, UGA-OTP- 0267-0455, at para. 17 (‘[t]he main purpose of the intercept operation was to collect intelligence to support combat operations. We knew there was a lot of information on the sound waves, and our job was to pick up that information, correlate it, and send an intelligence report on to command. It had to be done quickly, so it was actionable’); P-0038: T-116 , p. 38, lines 4-11; P-0059: T-36 , p. 21, line 8 – p. 22, line 4; P-0291 Statement, UGA- OTP-0246-0061-R01, at para. 18; P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 27; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 41. There is some evidence that certain procedures in the intercept operation may have been intended to assist the ICC, but this does not change the primary purpose of the operation. See P- 0003: T-42 , p. 37, line 24 – p. 38, line 12. 1096 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 50; P-0032 First Statement, UGA-OTP-0069- 0796-R01, at para. 18; P-0038: T-117 , p. 62, line 23 – p. 63, line 9, commenting on P-0038 First Statement, UGA- OTP-0069-0784-R01, at para. 19. See also paragraphs 563, 661-663 below. 1097 P-0003: T-42 ; T-43 ; T-44 ; T-45 ; T-46 . See also P-0029 First Statement, UGA-OTP-0027-0231-R01, at para. 11; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 36; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 31. 1098 P-0029 First Statement, UGA-OTP-0027-0231-R01; P-0029 Second Statement, UGA-OTP-0267-0455. 1099 P-0337 First Statement, UGA-OTP-0256-0201-R01; P-0337 Second Statement, UGA-OTP-0267-0445-R01. 1100 P-0339: T-134 ; T-135 . 1101 P-0400 Statement, UGA-OTP-0264-0015-R01 1102 P-0404 Statement, UGA-OTP-0267-0470-R01.

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1103 1104

monitoring radio communications, and/or were the supervisors of these persons.

The UPDF interceptors had sufficient experience that they could understand what the

1105

LRA was saying and recognise the voices of certain LRA members as they spoke.

1106

P-0003 and those working with him in Gulu listened to LRA radio communications.

During the period relevant to the charges, they tape recorded these conversations onto

1107

audio cassettes. The UPDF interceptors prepared shorthand notes of communications

as they unfolded, and then did any necessary work required to understand the contents

afterwards (including breaking any codes or playing back the tape to listen again to what

1108

was said).

As soon as possible after the communication, the interceptor then prepared a logbook

1109

summary of what transpired during the LRA communication. The basis for this

summary was exclusively the information provided over the radio – the interceptors used

no other intelligence in making their summaries except to the extent necessary for code

1110

breaking. Though the LRA communications themselves were predominantly in

Acholi or Luo, the interceptors wrote the summaries in plain English so that commanders

1103 P-0003: T-42 , p. 8, line 15 – p. 11, line 17; P-0339: T-134 , p. 6, line 22 – p. 8, line 8; P-0400 Statement, UGA- OTP-0264-0015-R01, at paras 24-26; P-0404 Statement, UGA-OTP-0267-0470-R01, at paras 13-15. See also P- 0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 36-37. P-0029 indicates that ‘those who intercept the LRA radio communications do not receive formal training’, but this is understood to mean that there was no formal training in relation to LRA communications specifically. This is not inconsistent with those who stated they received technical intelligence training more generally, and P-0029 himself indicates he took such courses. P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 7, 14. 1104 P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 8, 11; P-0029 Second Statement, UGA-OTP- 0267-0455, at para. 38; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 15-16. 1105 P-0003: T-42 , p. 12, lines 2-25, p. 47, lines 2-17, p. 72, lines 1-18; P-0029 First Statement, UGA-OTP-0027- 0231-R01, at para. 17; P-0029 Second Statement, UGA-OTP-0267-0455, at para. 36; P-0339: T-134 , p. 46, line 6 – p. 47, line 8; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 43. 1106 P-0003: T-42 , p. 13, line 20 – p. 15, line 23. 1107 P-0003: T-42 , p. 19, lines 20-24, p. 37, line 24 – p. 41, line 5; P-0029 First Statement, UGA-OTP-0027-0231- R01, at paras 28-34; P-0400 Statement, UGA-OTP-0264-0015-R01, at paras 37-39; P-0404 Statement, UGA- OTP-0267-0470-R01, at paras 35, 39-40. 1108 P-0003: T-42 , p. 19, line 20 – p. 29, line 14; P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 40- 41; P-0339, p. 9, line 12 – p. 10, line 10; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 38; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 35. 1109 P-0003: T-42 , p. 29, line 15 – p. 32, line 12; P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 41, 44-45; P-0339: T-134 , p. 12, line 25 – p. 15, line 19; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 35. 1110 P-0003: T-42 , p. 32, lines 5-12; T-46 , p. 12, lines 8-25, p. 17, line 14 – p. 18, line 12; P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 48-49, 64; P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 29; P-0339: T-134 , p. 14, line 18 – p. 15, line 7.

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1111

could easily understand them. Logbook entries were dated and appeared in

1112

chronological order.

The interceptors then gave their logbook entries to their commanders, who read them and

1113

marked that they had seen them. The intercepted information would then be communicated to Kampala to inform the UPDF’s broader military operations.

1114

All

completed recordings and logbooks were securely stored, either at the sites of

1115

interception or in Kampala.

The UPDF’s intercept operation extended to locations beyond Gulu, most notably Achol

1116

Pii, Soroti and Lira. These locations did not record conversations, but the procedure

1117

for summarising intercepted communications was otherwise about the same.

Communications at each location were summarised independently of on-going intercept

1118

operations at other locations, including Gulu.

1119

P-0400 also kept a personal logbook in Sudan from April-May 2004. Though this

book is P-0400’s personal record, it is apparent that P-0400 wrote it in the same style as

1111 P-0339: T-134 , p. 14, lines 3-17; P-0003: T-42 , p. 29, lines 15-25, p. 46, lines 6-10. 1112 P-0003: T-42 , p. 24, lines 7-14; P-0339: T-134 , p. 10, lines 2-6; P-0404 Statement, UGA-OTP-0267-0470- R01, at para. 40. P-0003 and P-0339 are testifying as to shorthand notes, but the dating procedure described is visibly reproduced in the formal logbooks. 1113 P-0003: T-42 , p. 36, line 2 – p. 37, line 21; P-0029 First Statement, UGA-OTP-0027-0231-R01, at para. 46; P-0339: T-134 , p. 15, line 20 – p. 16, line 4; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 40; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 36. 1114 P-0029 First Statement, UGA-OTP-0027-0231-R01, at paras 46-48; P-0337 Second Statement, UGA-OTP- 0267-0445-R01, at para. 18; P-0339: T-134 , p. 15, line 20 – p. 17, line 13; P-0400 Statement, UGA-OTP-0264- 0015-R01, at para. 41; P-0404 Statement, UGA-OTP-0267-0470-R01, at paras 37, 41. 1115 P-0003: T-42 , p. 32, lines 13-24, p. 40, line 25 – p. 41, line 5; P-0029 Second Statement, UGA-OTP-0267- 0455, at paras 26-28, 46-47; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at para. 41; P-0339: T-134 , p. 17, line 14 – p. 18, line 12; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 40. 1116 P-0029 Second Statement, UGA-OTP-0267-0455, at paras 29-32; P-0337 Second Statement, UGA-OTP- 0267-0445-R01, at paras 25, 28-31, 33; P-0339: T-134 , p. 22, line 23 – p. 32, line 20. 1117 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 32; P-0337 Second Statement, UGA-OTP-0267- 0445-R01, at paras 21-25; P-0339: T-134 , p. 22, line 23 – p. 32, line 20; P-0400 Statement, UGA-OTP-0264- 0015-R01, at para. 37. 1118 P-0003: T-44 , p. 51, line 13 – p. 52, line 4; P-0029 Second Statement, UGA-OTP-0267-0455, at paras 42-45; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 38-40; P-0339: T-134 , p. 26, lines 7-17 (‘Q. Did you ever discuss with [a colleague from Gulu] what you heard in an LRA communication? A. No, it was prohibited. Whenever you finish intercepting, you are not required to discuss what you have recorded.’); P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 29. 1119 UPDF Logbook (Sudan), UGA-OTP-0242-7194; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(i).

No. ICC-02/04-01/15 226/1077 4 February 2021

the official UPDF logbooks. P-0400’s operational commander signed the entries in this

1120

logbook, and P-0400 gave it to P-0003 upon his return to Gulu.

ii Internal Security Organisation interception

The primary ISO interceptor during the time period relevant to the charges was

1121 1122

P-0059. Other witnesses involved in the ISO interception operation are: P-0027;

1123 1124 1125 1126 1127 1128 1129

P-0032; P-0291; P-0301; P-0303; P-0384; P-0385 and P-0386.

1130

All these witnesses had training in monitoring radio communications, and/or were the

1131

supervisors of these persons. The ISO interceptors had sufficient experience that they

could understand what the LRA was saying and recognise the voices of certain LRA

1132

members as they spoke.

The ISO interception process unfolded similarly to the UPDF process – conversations

would be recorded, short hand notes prepared, language de-coded, plain language

logbook summaries written chronologically (in English and based exclusively on the

1120 P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(i). 1121 P-0059: T-36 ; T-37 ; T-39 . See also P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 9; P-0032 First Statement, UGA-OTP-0069-0796-R01, at paras 8-9, 12; P-0386 Statement, UGA-OTP-0260-0508-R01, at paras 17, 24. 1122 P-0027 First Statement, UGA-OTP-0207-0256-R01; P-0027 Second Statement, UGA-OTP-0249-0444-R01. 1123 P-0032 First Statement, UGA-OTP-0069-0796-R01; P-0032 Second Statement, UGA-OTP-0150-0030-R01; P-0032 Third Statement, UGA-OTP-0246-0003-R01. 1124 P-0291 Statement, UGA-OTP-0246-0061-R01. 1125 P-0301 Statement, UGA-OTP-0249-0423-R01. 1126 P-0303 Statement, UGA-OTP-0258-0723-R01. 1127 P-0384 Statement, UGA-OTP-0260-0491-R01. 1128 P-0385 Statement, UGA-OTP-0260-0498-R01. 1129 P-0386 Statement, UGA-OTP-0260-0508-R01. 1130 P-0059: T-36 , p. 7, line 1 – p. 9, line 9; T-38 , p. 15, line 3 – p. 16, line 11; P-0291 Statement, UGA-OTP- 0246-0061-R01, at para. 16; P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 15 (note this witness also had supervisory responsibilities); P-0384 Statement, UGA-OTP-0260-0491-R01, at para. 15; P-0385 Statement, UGA-OTP-0260-0498-R01, at para. 16 (though P-0385 did not personally intercept LRA communications); P- 0386 Statement, UGA-OTP-0260-0508-R01, at para. 16. 1131 P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 5; P-0027 Second Statement, UGA-OTP-0249- 0444-R01, at para. 16; P-0032 First Statement, UGA-OTP-0069-0796-R01, at paras 4, 8; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 14; P-0303 Statement, UGA-OTP-0258-0723-R01, at paras 22, 29. 1132 P-0059: T-36 , p. 56, line 27 – p. 57, line 25; T-38 , p. 16, line 12 – p. 22, line 9, p. 26, line 12 – p. 27, line 6; P-0291 Statement, UGA-OTP-0246-0061-R01, at paras 19, 32; P-0301 Statement, UGA-OTP-0249-0423-R01, at paras 20-21, 25; P-0384 Statement, UGA-OTP-0260-0491-R01, at paras 17-20; P-0386 Statement, UGA-OTP- 0260-0508-R01, at paras 17-19, 24-25.

No. ICC-02/04-01/15 227/1077 4 February 2021

1133

recording), and entries reviewed by commanding officers. The recordings and

1134

logbooks would likewise be securely stored.

One distinguishing feature of the ISO process is that the ISO would sequentially label

1135

each audio cassette, and then use this serial number in their logbooks. This allows a

reader to easily identify which logbook summaries reflect the contents of which tape.

Once the ISO interceptors in Gulu prepared the logbook summary, it was then faxed to

1136

Kampala (often after being re-copied by hand) or communicated by telephone. ISO

1137

staff in Kampala then copied the summary by hand into a kind of duplicate logbook.

1138

The information was further disseminated as necessary for military intelligence.

iii Police interception

Patrick Lumumba Nyero was the primary interceptor for the police interception operation

1139 1140

in Kamdini. Patrick Nyero conducted his work with P-0370 and reported the

1133 P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 11; P-0032 First Statement, UGA-OTP-0069- 0796-R01, at paras 15-20; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 20; P-0059: T-36 , p. 22, line 9 – p. 28, line 12; T-39 : p. 37, line 23 – p. 42, line 6; P-0291 Statement, UGA-OTP-0246-0061-R01, at paras 38-49; P-0301 Statement, UGA-OTP-0249-0423-R01, at paras 28-29; P-0303 Statement, UGA-OTP-0258-0723- R01, at paras 22-30; P-0384 Statement, UGA-OTP-0260-0491-R01, at paras 24-26; P-0386 Statement, UGA- OTP-0260-0508-R01, at paras 18, 23. See also P-0291 Statement, UGA-OTP-0246-0061-R01, at para. 55 (would speak to UPDF direction finding team when making summaries, but only for the limited purpose of code breaking). 1134 P-0027 First Statement, UGA-OTP-0207-0256-R01, at paras 17-20; P-0027 Second Statement, UGA-OTP- 0249-0444-R01, at para. 21; P-0032 First Statement, UGA-OTP-0069-0796-R01, at paras 21-25; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at paras 22(d)-(e), 51; P-0059: T-36 , p. 40, lines 10-23; P-0303 Statement, UGA-OTP-0258-0723-R01, at para. 30. 1135 P-0027 First Statement, UGA-OTP-0207-0256-R01, at paras 18-19; P-0059: T-36 , p. 32, line 16 – p. 33, line 5; P-0291 Statement, UGA-OTP-0246-0061-R01, at para. 40; P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 41; P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 24. 1136 P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 23; P-0032 First Statement, UGA-OTP-0069- 0796-R01, at para. 20; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at paras 27-28; P-0059: T-36 , p. 28, line 22 – p. 30, line 22; P-0291 Statement, UGA-OTP-0246-0061-R01, at paras 46-47; P-0301 Statement, UGA- OTP-0249-0423-R01, at para. 28; P-0303 Statement, UGA-OTP-0258-0723-R01, at paras 26, 31-35; P-0385 Statement, UGA-OTP-0260-0498-R01, at paras 19-24; P-0386 Statement, UGA-OTP-0260-0508-R01, at paras 24, 26. UPDF entries also would sometimes be faxed, but the faxed papers were not retained. P-0029 Second Statement, UGA-OTP-0267-0455, at para. 25 (saying UPDF faxes were ‘exceptional’); P-0337 Second Statement, UGA-OTP-0267-0445-R01, at para. 18. 1137 P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 23; P-0032 Third Statement, UGA-OTP- 0246-0003-R01, at paras 32-33; P-0059: T-36 , p. 28, line 22 – p. 30, line 22; P-0291 Statement, UGA-OTP-0246- 0061-R01, at para. 48; P-0303 Statement, UGA-OTP-0258-0723-R01, at paras 31-35; P-0384 Statement, UGA- OTP-0260-0491-R01, at para. 27; P-0385 Statement, UGA-OTP-0260-0498-R01, at para. 24 (these were formally called RABMINT logbooks); P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 26. 1138 P-0027 First Statement, UGA-OTP-0207-0256-R01, at para. 8; P-0303 Statement, UGA-OTP-0258-0723- R01, at para. 24. See also P-0059: T-36 , p. 30, line 23 – p. 31, line 18. 1139 P-0125: T-135 ; T-136 . See also P-0370 Statement, UGA-OTP-0258-0687-R01, at paras 29, 44-45. 1140 P-0370 Statement, UGA-OTP-0258-0687-R01.

No. ICC-02/04-01/15 228/1077 4 February 2021

1141

results of his work to P-0126. Only Patrick Nyero received significant radio or

1142

signalling training, but both Patrick Nyero and P-0370 intercepted LRA

1143

communications for many years.

Like the other intercepting agencies, the Kamdini police would listen to the LRA, prepare

short hand notes of what was being said, and summarise the conversation in a contemporaneous ‘fair copy’ (aka ‘good note’) of the conversation.

1144

The police wrote

1145

fair copies in English and dated them. But there are gaps in the police entries which

1146

do not appear in the UPDF or ISO logbooks, with evidence suggesting that the police

1147

notes may be an incomplete collection.

The police interception operation was conducted less formally than those of the UPDF

1148

or ISO in Gulu. They did not record communications onto cassettes. They destroyed

1149

all short hand notes. Patrick Nyero also resorted to ‘human intelligence’ in making

1150

his summaries, though he indicated that it was easily detectible when he did so. Also,

the police interceptors did not manage to break the LRA codes and therefore only

1151

recorded what was communicated in clear language.

1141 P-0126 First Statement, UGA-OTP-0253-0764-R01; P-0126 Second Statement, UGA-OTP-0264-0002-R01. 1142 Compare P-0125: T-135 , p. 50, line 10 – p. 51, line 11 with P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 21. 1143 P-0125: T-135-CONF, p. 52, line 16 – p. 54, line 19; P-0370 Statement, UGA-OTP-0258-0687-R01, at paras 25, 51 (noting that, unlike P-0125, he was not able to recognise the voices of the LRA beyond Joseph Kony). 1144 P-0125: T-135 , p. 57, line 3 – p. 59, line 11; P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 37. 1145 E.g. UGA-OTP-0037-0002; P-0125: T-135 , p. 59, line 14 – p. 62, line 9; P-0370 Statement, UGA-OTP-0258- 0687-R01, at para. 55. 1146 The largest such gap is that there are no submitted police entries before 12 April 2004, despite the operation in Kamdini commencing in 2003 and the UPDF/ISO recording a wealth of LRA communications in the year prior to this date. For a gap appearing within a police entry, compare ISO Logbook (Gulu), UGA-OTP-0061-0206, at 0272-74; UPDF Logbook (Gulu), UGA-OTP-0254-2982, 3006-07 (both discussing a conversation from 1 May 2004 at 18:30) with Police Logbook, UGA-OTP-0037-0002, at 0144-46 (entry with a date of ‘1/5/2004’, but no record of any conversations from 18:30 on that day). 1147 See P-0125: T-135 , p. 82, lines 7-25; T-136 , p. 5, lines 12-21 (police interception could not penetrate communications when LRA used coded language); P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 61 (indicating that he destroyed Patrick Nyero’s notes after using them, which, although this cannot have been done in all instances, would explain gaps in the evidence record). 1148 P-0125: T-135 , p. 65, lines 19-20; P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 49. 1149 P-0125: T-135 , p. 58, lines 18-22; P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 37. 1150 P-0125: T-135 , p. 58, line 23 – p. 59, line 11. See also P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 30 (mentioning IDP camp informants as an example of human intelligence). 1151 P-0125: T-135 , p. 82, lines 7-25; T-136 , p. 5, lines 12-21.

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1152 The Kamdini interceptors regularly transferred their fair copies to P-0126 in Gulu.

1153 The intelligence gathered was distributed to other agencies like the UPDF or ISO.

iv Transfer of intercept materials to the Prosecution

Since 2004, the Prosecution was in contact with the Ugandan government authorities to

receive all recordings, short hand notes, logbooks and other information it considered

relevant for its investigation. The Prosecution received certain intercept materials from

others, but the largest batches of materials came from two government contacts: Timothy

Kanyogonya and P-0027.

Timothy Kanyogonya was the Prosecution’s primary focal point for receiving such

1154 materials. Timothy Kanyogonya is the Head of Legal Affairs for the UPDF, but gave

1155 the Prosecution materials emanating from both the UPDF and ISO. Timothy

Kanyogonya was responsible for collecting the materials related to the Prosecution’s

1156 1157 cooperation requests. P-0078, a fellow UPDF officer, assisted him.

P-0027 of the ISO is the other person who gave a significant number of materials to the

1158 Prosecution.

When it received materials from either Timothy Kanyogonya or P-0027, the Prosecution

1159 prepared a pre-registration form memorialising the exchange. The forms vary as to

their completeness, but all contain a date, description of contents, and a name of the

government official providing the materials to the Prosecution. Generally, Timothy

1160 Kanyogonya or P-0027 also signed the form.

1152 P-0125: T-135 , p. 64, line 17 – p. 65, line 18; P-0126 First Statement, UGA-OTP-0253-0764-R01, at paras 47, 57, 60; P-0370 Statement, UGA-OTP-0258-0687-R01, at paras 37-38, 42. 1153 P-0126 First Statement, UGA-OTP-0253-0764-R01, at paras 47-48, 61; P-0370 Statement, UGA-OTP-0258- 0687-R01, at para. 27. 1154 P-0038: T-116 ; T-117 ; P-0038 First Statement, UGA-OTP-0069-0784-R01; P-0038 Second Statement, UGA- OTP-0244-0912-R01. 1155 P-0038: T-116 , p. 4, lines 18-23, p. 8, line 3 – p. 9, line 2; P-0038 CV, UGA-OTP-0279-0294. 1156 P-0038: T-116 , p. 10, lines 7-20, p. 34, line 19 – p. 35, line 1, p. 39, lines 1-20; T-117 , p. 20, line 12 – p. 22, line 2. 1157 P-0038: T-116-CONF, p. 44, line 19 – p. 50, line 15; T-117-CONF, p. 42, line 11 – p. 46, line 21. 1158 P-0027 First Statement, UGA-OTP-0207-0256-R01, at paras 21-25; P-0027 Second Statement, UGA-OTP- 0249-0444-R01, at paras 30 (d)-(e), 34-39. 1159 P-0038 Pre-Registration Forms, UGA-OTP-0244-0920-R01; P-0027 Pre-Registration Forms, UGA-OTP- 0246-0039-R01. 1160 For P-0038, out of 27 pre-registration forms, six do not bear a ‘source signature’, but indicate the witness’s name as source ( see UGA-OTP-0244-0920-R01, at 0926, 0934, 0935, 0936, 0938, 0940); for P-0027, out of 20

No. ICC-02/04-01/15 230/1077 4 February 2021

b. Assessment of intercept evidence

The Chamber will now set out its assessment of the intercept related evidence before it.

Preliminarily, the Defence raised two general objections to these materials when the 1161 Prosecution submitted the bulk of them prior to trial. These are repeated in the Defence Closing Brief.

First, the Defence variously argued before the trial that these materials required witness 1162 testimony prior to being introduced. The Defence subsequently argued that these 1163 materials are insufficiently authenticated.

Although the Chamber disagreed and recognised these items as submitted prior to trial, the Chamber notes that it received testimony from over 20 witnesses on this evidence. The Chamber considers this general objection to be without merit, also bearing in mind that the authenticity of recordings and other intercept material relied upon is further

discussed in this section.

Second, the Defence argues that matters like technical difficulties or improperly destroyed records mean that the evidence before the Chamber is not a complete collection 1164 of all LRA communications during the relevant period.

By definition, all the intercept evidence the Chamber has actually received is unaffected by technical difficulties or improperly destroyed records. As put by P-0059: ‘whatever was brought before court here was not destroyed and that’s why we were able to hear it.’ 1165 While it can be reasonably assumed that the intercept materials available in these proceedings do not cover the totality of LRA radio communications during the relevant

pre-registration forms, only one does not bear a ‘source signature’, but indicates the witness’s name as source (UGA-OTP-0246-0039-R01, at 0042; see also P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(d)). Given the overall content of the forms as well as their similarity with the forms which do bear signatures, the Chamber is satisfied that despite the missing source signatures, the materials mentioned in the forms were indeed provided by the two witnesses respectively. 1161 Defence Response to ”Prosecution’s formal submission of intercept evidence via the ‘bar table’" (ICC-02/04- 01/15-580) , 21 November 2016, ICC-02/04-01/15-599 (hereinafter: ‘ Defence Response to Prosecution’s Submission of Intercept Material ’), summarised in Decision on Prosecution’s Submission of Intercept Material , paras 14-21. 1162 Defence Response to Prosecution’s Submission of Intercept Material , paras 17, 25-29. 1163 Defence Closing Brief , paras 234-40. Defence Response to Prosecution’s Submission of Intercept Material 1164 , paras 18-24, 35-44. 1165 P-0059: T-38-CONF, p. 41, line 21 – p. 42, line 15.

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time period, the Chamber, in light of all the relevant evidence before it, considers that this probability does not have a bearing on the Chamber’s ability to assess what is available. The Chamber therefore considers that such concerns have no impact on the evidence actually before it.

Relatedly, the Defence submits that most of the intercept material lacks relevance and has not been translated or interpreted by witnesses during trial, for which reason also the 1166 related logbooks and rough notes should not be relied upon. As further outlined below, the Chamber has focused in its review of the material on those audio recordings which 1167 could be understood in a working language of the Court. At the same time, the Chamber considers that the discussion of specific audio recordings further below also demonstrates the reliability of the logbook entries in general, irrespective of whether a related audio recording was translated and as such could be independently and in 1168 conjunction assessed by the Chamber. The material which is before the Chamber and could be reviewed in a working language of the Court in itself, and even more so in combination with an abundance of witness evidence which confirms the veracity of the interception procedures, provides sufficient context for the Chamber’s analysis of this material.

The argument that the aim for which the intercepts were taken – for military and not 1169 judicial purposes – impacts their reliability, is rejected. While this could, theoretically, affect the probative value of the material, the Chamber fails to see why the purpose of the intercept operations automatically diminishes the reliability of the obtained items. As to the Defence assertions that there is an intrinsic bias which may not reflect exculpatory 1170 1171 exchanges or that the intercept collection is incomplete, the Chamber’s obligation is to consider only evidence submitted and discussed at trial. It cannot speculate as to 1172 what further evidence there could have been. Contrary to the Defence’s suggestion, whatever interest the Ugandan government has in convicting the accused cannot alone

1166 Defence Closing Brief , paras 232-233. 1167 See paras 648-650 below. 1168 See section IV.B.3.ii below. Defence Response to Prosecution’s Submission of Intercept Material 1169 Defence Closing Brief , paras 243-48; , para. 21. Defence Response to Prosecution’s Submission of Intercept Material 1170 Defence Closing Brief , paras 253-56; , para. 22. 1171 Defence Closing Brief , paras 257-62, 288, 295, 315. 1172 Defence Closing Brief , para. 263.

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justify any inference that the intercepts were tampered with or selectively provided in any way. There is no evidence any such issues occurred, nor did the Defence present any evidence that undermines the reliability or probative value of the intercepted material. There is no indication that any further intercept evidence – if it even exists – would be meaningfully different than the voluminous materials presented. Accordingly, the Defence arguments on these points are dismissed.

i Chain of custody evidence The Chamber considers that Timothy Kanyogonya’s testimony was clear, consistent and reliable. Timothy Kanyogonya explained with care that his provision of material to the Prosecution did not give him any broader expertise as to what these materials could 1173 mean. The Defence challenged that the materials Timothy Kanyogonya provided are 1174 incomplete and why he selected the materials he did in response to the Prosecution’s 1175 assistance requests. The Chamber considers such challenges to be irrelevant to the question of whether the materials Timothy Kanyogonya provided are authentic. The Chamber is fully satisfied that Timothy Kanyogonya provided the items indicated in his pre-registration forms to the Prosecution. The occasions when other witnesses independently verified the provenance of Timothy Kanyogonya’s materials bolsters this 1176 assessment and reinforces the overall accuracy of Timothy Kanyogonya’s preregistration forms.

Similarly, the Chamber is also satisfied from P-0027’s prior recorded testimony that he provided the materials specified in his pre-registration forms to the Prosecution.

For purposes of evaluating the chain of custody of specific recordings, the Chamber has used the dates provided in the e-court metadata to isolate the pre-registration form

1173 P-0038: T-116 , p. 24, line 8 – p. 26, line 18, p. 29, line 7 – p. 30, line 2, p. 73, lines 7-20, p. 79, lines 16-24; T-117 , p. 18, lines 5-23 (‘[w]e have a whole intelligence department with so many different actors. There is an analysis branch of this department, where I belong. I was scanning through basically thousands of documents. I do not think I even had the competence to go through all these letters that I handed over to the ICC. There’s no way. It would have taken me years. Some of these documents I’m just even reading them now, selecting documents because of relevance does not mean I have read them thoroughly’). 1174 P-0038: T-116 , p. 18, line 21 – p. 23, line 1. 1175 P-0038: T-116 , p. 15, line 6 – p. 16, line 25; T-117 , p. 48, line 21 – p. 53, line 12, p. 55, line 11 – p. 56, line 14, p. 60, line 6 – p. 62, line 13. See also T-117 , p. 18, line 24 – p. 19, line 13. 1176 E.g. paragraphs 760, 798 below.

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corresponding to that particular recording. The Chamber has then verified that the preregistration form’s contents are consistent with this metadata.

ii Audio recordings The original audio cassettes prepared by the UPDF and ISO are the initial recordings of intercepted radio communications. Short hand notes were prepared while the original audio cassettes were being recorded, and both served as basis for the logbook summaries. The enhanced audios prepared at a later stage are equally derived from the original audio cassettes. The Chamber notes that not all of these recordings have translated transcripts, and accordingly has focused only on those recordings which could be understood in the 1177 working languages of the Court.

The audio cassettes provide limited information as to when they were recorded. Some cassettes – either on their label or the cassette paper – provide information on the date of 1178 the recording or its contents. Most do not. Tapes coming specifically from ISO 1179 provide the serial tape number, but often nothing else. This necessitates the Chamber having to consult the corresponding ISO logbook in order to date the tape in question.

The contents of the audio recordings are in non-working languages, predominantly Acholi or Luo. They are impossible for the Chamber to understand without translated transcripts, and even then generally require further testimony from witnesses to understand their contents. The Chamber does not consider it has the requisite ability to identify voices on these recordings itself, and has resorted to witness testimony for such identifications. What the Chamber has been able to discern from the original recordings is only the general impression that all intercepts concern men speaking in a non-working language over the radio.

iii Enhanced audio recordings The Prosecution selected certain audio recordings for enhancement. Two witnesses were 1180 1181 primarily responsible for this enhancement: Alan French and Xavier Laroche. In

1177 See Defence Closing Brief , para. 293. 1178 E.g. Audio Cassette, UGA-OTP-0039-0006; Audio Cassette, UGA-OTP-0025-0625. 1179 E.g. Audio Cassette, UGA-OTP-0052-0026. 1180 P-0242: T-128 ; P-0242 Statement, UGA-OTP-0261-0333-R01. 1181 P-0256: T-119 ; P-0256 Statement, UGA-OTP-0269-0015.

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the words of Alan French, the enhancement exercise was ‘striving to enhance the quality

of audio material to enable members of the court to comprehend or interpret the material

to the best possible standard without adding to or detracting from the content of the original’. 1182 The intercept witnesses were primarily played enhanced audios during their

testimony, requiring the Chamber to further assess the probative value of the enhanced

audios.

Alan French is an audio forensic specialist, who set out his detailed experience in

1183 enhancing audio for purposes of criminal proceedings. The audio-enhancement

company where Alan French works sells specialised software to clients who want to

1184 conduct their own audio enhancement. The Prosecution is one such client, and Xavier

Laroche is the Prosecution forensic officer trained by Alan French to conduct this

1185 enhancement. Xavier Laroche enhanced audios with the assistance of one of his

1186 colleagues, also trained by Alan French.

The Chamber found both Alan French and Xavier Laroche to be truthful witnesses, and

takes note of the careful steps taken by each to ensure that no speech would be lost in the

1187 process of audio enhancement. The Chamber considers the Defence’s arguments that

content could have possibly been lost/distorted is speculative and without a clear

1188 evidentiary basis. Xavier Laroche was quite clear in stating his limitations in this field,

and that he was unable to answer specific questions on the science of audio enhancement.

1189 Xavier Laroche often deferred to Alan French’s expertise on these points. Thus, the

Chamber has given more weight to Alan French on matters related to the science or

mechanics of audio enhancement. But, noting Xavier Laroche’s own training and

1182 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 17; P-0242: T-128 , p. 12, line 2 – p. 13, line 2. 1183 P-0242: T-128 , p. 4, lines 11-16, p. 18, line 16 – p. 20, line 17; P-0242 CV, UGA-OTP-0261-0343-R01. 1184 P-0242: T-128 , p. 4, lines 11-16, p. 20, line 18 – p. 21, line 9. 1185 P-0242: T-128 , p. 21, line 16 – p. 23, line 15, p. 57, lines 1-13; P-0256: T-119 , p. 18, line 6 – p. 19, line 1. 1186 P-0256: T-119 , p. 18, line 6 – p. 19, line 1, p. 20, line 6 – p. 24, line 3. 1187 P-0242: T-128 , p. 13, line 3 – p. 16, line 11; P-0256: T-119 , p. 25, lines 1-22, p. 32, lines 12-23, p. 39, line 18 – p. 40, line 18. The Defence argues that the Chamber draw adverse inferences due to it having insufficient time to consider Alan French’s documents outlining his enhancement process. Defence Closing Brief , para. 277. The Defence had this information in 2017 – any time constraints it had to consider these materials cannot still be true. 1188 See Defence Closing Brief , paras 269-74, 276. 1189 P-0256: T-119 , p. 25, lines 19-22, p. 30, lines 2-15, p. 34, lines 2-16, p. 36, line 10 – p. 37, line 21, p. 40, line 25 – p. 41, line 7, p. 44, line 5 – p. 45, line 3.

No. ICC-02/04-01/15 235/1077 4 February 2021

1190 experience, the Chamber is satisfied that Alan French and Xavier Laroche both have

1191 the requisite qualifications to enhance audio recordings.

When evaluating a particular enhanced audio, the Chamber has considered various

indicators to ensure that an enhanced audio is a copy of an original. The Chamber verified

whether the labelling of the enhanced audio matches the original recording it is

purportedly linked to. The Chamber listened to the enhanced audio to ensure it has at

least the same general impression that it contains men speaking in a non-working

language over the radio. In this broad sense, and despite being unable to understand the

non-working languages spoken, the Chamber checked that the enhanced audio contents

are consistent with the original audios. The Chamber also compared the recorded track

times on the original and enhanced tapes to see if they sufficiently correspond. If more

than de minimis discrepancies exist, the Chamber endeavoured to determine why this was

so. The Chamber has also considered these indicators against the full body of evidence,

meaning that there may still be sufficient evidence to conclusively link an enhanced audio

to an original even if – for instance – the original/enhanced audio track times do not align.

The Chamber finds nothing in the evidence to suggest that the enhanced audios are

anything other than faithful reproductions of the originals. It must be emphasised that the

Prosecution always provided the unenhanced and enhanced recordings together, so that

1192 any listener could identify potential discrepancies in the recorded contents. Alan

French and Xavier Laroche also provided technical reports on the exact processes applied

1193 to each audio. The Defence spoke of many possible issues which can come from

1194 enhancing an audio, but generally made no substantiated challenge that any of these

1190 P-0256: T-119 , p. 7, line 25 – p. 8, line 5, p. 14, line 23 – p. 16, line 21; P-0256 CV, UGA-OTP-0269-0034, at 0035. 1191 See Defence Closing Brief , paras 264-68. 1192 See P-0242: T-128 , p. 16, lines 6-11 (‘I mean, one of the things in this particular case that we have done almost as like a safety net is also to supply enhanced versions of the cassette tapes as digital files but also unenhanced versions of the, of the cassette tapes so that if there was any question about whether or not the enhanced material was of poorer quality than the original material, the two could be compared.’). 1193 E.g. Process Manager Chain for UGA-OTP-0039-0006, UGA-OTP-0281-1219; Process Manager Chain for UGA-OTP-0195-0022, UGA-OTP-0247-1199; Processing Chain for UGA-OTP-0053-0046, UGA-OTP-0261- 0349-R01. 1194 P-0242: T-128 , p. 25, line 6 – p. 28, line 21 (possibility of non-Acholi enhancer altering Acholi words), p. 37, lines 3-25, p. 80, line 19 – p. 81, line 21 (possibility of edits being made to the original tape), p. 38, line 1 – p. 40, line 12 (possibility that part of a cassette recorded prior to being re-copied survives on the re-copied version), p. 60, line 13 – p. 62, line 6, p. 64, line 7 – p. 68, line 16 (possibility that adaptive filters unduly affected the quality of the recording, but only directing witness to a recording where an adaptive filter was applied), p. 70, line 25 – p. 71, line 11 (possibility of altering voices when removing frequencies).

No. ICC-02/04-01/15 236/1077 4 February 2021

issues affected the particular recordings in this case. Even when the Defence did 1195 exceptionally do so, its arguments failed to persuade.

The Chamber cannot find reasonable doubt that the intercepted audio recordings (as enhanced) are altered on the basis of abstract possibilities not grounded in the evidentiary record. The Chamber emphasises that no witness played the enhanced audios – including former LRA soldiers – commented on there being anything unusual about the way they sounded. The Chamber is also able to compare the intercept witnesses’ summaries of the enhanced audio to the logbook entries prepared contemporaneously to when the recording occurred. When the summary matches the logbook – as it consistently did – then this further demonstrates that the audio enhancement did not distort the spoken contents of the original tape.

For these reasons, the Chamber considers the enhanced audios to be accurate enhancements of the originals and fully reliable.

iv Interceptor logbooks The primary interceptor logbooks are a contemporaneous written record of the LRA’s intercepted communications. They are written in plain language, and have formed an essential part of the Chamber’s assessment of particular recordings.

The logbooks before the Chamber are written in a systematic manner, have marks indicating that commanding officers read them, and summarise LRA communications. They give every indication of being what the witnesses describe them to be, and the various witnesses who authored or were otherwise familiar with these books identified them in the course of their testimony. The Chamber can confirm the provenance of the following logbooks:

1195 See paras 772-773 below.

No. ICC-02/04-01/15 237/1077 4 February 2021

1196 1197

UPDF (Gulu): UGA-OTP-0254-3399; UGA-OTP-0254-0455; UGA-OTP-

1198 1199 1200

0254-0229; UGA-OTP-0254-0725; UGA-OTP-0254-1077; UGA-OTP-

1201 1202 1203

0254-2982; UGA-OTP-0254-3833; UGA-OTP-0254-4143.

1196 Re-scan of UGA-OTP-0197-2162. The Chamber is satisfied of the authenticity of this logbook, containing entries from 5 January 2003 – 5 April 2003, considering that it shows identical characteristics to all UPDF logbooks the authenticity of which is considered established, that its ecourt metadata indicates that P-0038 of the UPDF provided this re-scanned book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to UPDF 0029’ were provided on this date (UGA-OTP-0244-0920- R01, at 0944), and that ‘UPDF 0024’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA-OTP-0254-3399, at 3400). 1197 Re-scan of UGA-OTP-0197-1224. The Chamber is satisfied of the authenticity of this logbook, containing entries from 8 April 2003 – 25 June 2003, considering that it shows identical characteristics to all UPDF logbooks the authenticity of which is considered established, that its ecourt metadata indicates that P-0038 of the UPDF provided this re-scanned book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to UPDF 0029’ were provided on this date (UGA-OTP-0244-0920-R01, at 0944), that ‘UPDF 0025’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA-OTP-0254-0455, at 0456-0457 – the slip of paper is scanned backwards), and that this book fits in chronological sequence with another Gulu UPDF logbook the authenticity of which is also established (book UGA-OTP-0254-0725’s first entry is 26 June 2003, the day after the book at issue closed). 1198 Re-scan of UGA-OTP-0197-2040. It is noted that there seem to have been errors in scanning this logbook. Both re-scanned and original books clearly start with the same entry (dated 12 October 2003), but the re-scanned book contains additional entries not scanned in the original. These errors make it impossible to determine exactly when this logbook ends. Nevertheless, the authenticity of the overlapping pages is established, as this book shows identical characteristics to all UPDF logbooks the authenticity of which is considered established, the ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 1 August 2015, a preregistration form signed by P-0038 confirms that certain UPDF logbooks (including with the sequence number 23, which can be found on a separate slip of paper scanned in UGA-OTP-0254-0229, at 0258-59) were provided on this date (UGA-OTP-0244-0920-R01, at 0944), and the beginning of this book fits in chronological sequence with another Gulu UPDF logbook the authenticity of which is also established (book UGA-OTP-0254-0725’s last entry is 11 October 2003, the day before this book opens). 1199 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0400 in this regard (P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(k)), and considering that it shows identical characteristics to other UPDF logbooks, that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to UPDF 0029’ were provided on this date (UGA-OTP-0244-0920-R01, at 0944), that ‘UPDF 0028’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration from ( see UGA-OTP-0254-0725, at 0726-27), and that this book fits in chronological sequence with other Gulu UPDF logbooks (book UGA-OTP-0254-0455’s last entry is 25 June 2003 at 11:00, the day before this book opens, while book UGA-OTP-0254-0229’s first entry is 12 October 2003 at 8:00, the day after this book is closed). 1200 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0400 in this regard (P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(l)), and considering that it shows identical characteristics to other UPDF logbooks, that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to 0029’ were provided on this date (UGA-OTP-0244-0920-R01, at 0944), that ‘UPDF 0029’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA-OTP-0254-1077, at 1078-79), and that this book fits in chronological sequence with another Gulu UPDF logbook (book UGA-OTP-0254-3833’s last entry is 3 December 2004, at 11:00, while this logbook starts on 3 December 2004, at 18:30). 1201 Re-scan of UGA-OTP-0197-1670. The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0003, P-0400 and P-0404 in this regard (P-0003: T-42 , p. 32, line 25 – p. 36, line 10; T-44 , p. 34, line 20 – p. 36, line 18; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(b); P- 0404 Statement, UGA-OTP-0267-0470-R01, at para. 49(a)), and considering that it shows identical characteristics to other UPDF logbooks, that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the

No. ICC-02/04-01/15 238/1077 4 February 2021

1204 1205

UPDF (Achol Pii): UGA-OTP-0242-6018; UGA-OTP-0242-7309.

Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0021 to 0023’ were provided on this date (UGA-OTP-0244-0920-R01, at 0944), that ‘UPDF 0022’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA-OTP-0254- 2982, at 2983), and that this book fits in chronological sequence with other UPDF Gulu logbooks (book UGA- OTP-0254-4143’s last entry is 21 April 2004 at 9:00, while this book opens on 21 April 2004 at 18:30, and book UGA-OTP-0254-3833’s first entry is 2 August 2004 at 11:00, while this book closes on 2 August 2004 at 9:00). 1202 Re-scan of UGA-OTP-0197-0308. The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0400 and P-0404 in this regard (P-0400 Statement, UGA-OTP-0264-0015- R01, at para. 44(l); P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 49(b)), and considering that it shows identical characteristics to other UPDF logbooks, that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to UPDF 0029’ were provided on this date (UGA-OTP-0244-0920-R01, at 0944), that ‘UPDF 0026’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration from ( see UGA-OTP-0254-3833, at 3834), and that this book fits in chronological sequence with other Gulu UPDF logbooks (book UGA-OTP-0254-2982’s last entry is 2 August 2004 at 9:00, while this book opens on 2 August 2004 at 11:00, and book UGA-OTP-0254-1077’s first entry is 3 December 2004 at 18:30, while this book closes on 3 December 2004 at 11:00). The Chamber notes that P-0339 also identified as his the handwriting on a number of pages which were identified by P-0404 to be his handwriting ( see P-0339: T-134 , p. 34, line 22 – p. 35, line 17). However, in light of the fact that two other witnesses identified this logbook as having been written in Gulu, and bearing in mind that it concerned a time at which P-0339 no longer worked in Gulu, but rather in Lira (the book contains entries from 2 August 2004 – 3 December 2004), the Chamber disregards the evidence of P-0339 on this point. 1203 Re-scan of UGA-OTP-0197-0697. The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0400 in this regard (P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(a)), and considering that it shows identical characteristics to other UPDF logbooks, that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 1 August 2015, that a pre-registration form signed by P-0038 confirms that logbooks ‘UPDF 0024 to UPDF 0029’ were provided on this date (UGA- OTP-0244-0920-R01, at 0944), that ‘UPDF 0027’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration from ( see UGA-OTP-0254-4143, at 4153), and that this book fits in chronological sequence with other Gulu UPDF logbooks (book UGA-OTP-0254-0229’s last entry is 10 December at 11:00, the day before this book opens, while book UGA-OTP-0254-2982’s first entry is 21 April 2004 at 18:30, and this book closes on 21 April 2004 at 9:00). 1204 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0400 in this regard (P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(f)), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 0015 to 0017’ were provided on this date (UGA-OTP-0244-0920-R01, at 0943), that ‘UPDF 0015’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration form ( see UGA-OTP-0242-6018, at 6019), and that this book fits in chronological sequence with another Achol Pii UPDF logbook (book UGA-OTP-0242-7309’s first entry is 21 November 2003, the day after this book closes). 1205 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0400 in this regard (P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(g)), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 007 to 0010’ were provided on this date (UGA-OTP-0244-0920-R01, at 0942), that ‘UPDF 0008’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration form ( see UGA-OTP-0242-7309, at 7309), and that this book fits in chronological sequence with another Achol Pii UPDF logbook (book UGA-OTP-0242-6018’s last entry is 20 November 2003, the day before this book opens).

No. ICC-02/04-01/15 239/1077 4 February 2021

1206 1207

UPDF (Soroti): UGA-OTP-0254-2284; UGA-OTP-0242-6212; UGA-OTP-

1208

0254-1991.

1209 1210

UPDF (Lira): UGA-OTP-0255-0228; UGA-OTP-0255-0451.

1206 Re-scan of UGA-OTP-0197-1866. The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0339 in this regard (P-0339: T-134 , p. 36, lines 19-24), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 0011 to 0012’ were provided on this date (UGA-OTP-0244-0920-R01, at 0942), that ‘UPDF 0012’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration form ( see UGA-OTP-0254-2284, at 2285), and that this book fits in chronological sequence with another Soroti UPDF logbook (book UGA-OTP-0254-1991’s last entry is 13 November 2003 at 11:00 (also headed ‘Compact No. 4’), while this book opens on 13 November 2003 at 11:00 (equally headed ‘Compact No. 4’). P-0400 identified this book as emanating from Lira, noting that he recognised P-0339’s handwriting within it. P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(d). P-0339 testified to recording some of this book in both Soroti and Lira and therefore, there is no significant inconsistency. P-0339: T-134 , p. 30, lines 15-19; T- 135 , p. 11, line 24 – p. 13, line 10. 1207 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0339 in this regard (P-0339: T-134 , p. 37, lines 2-13), and considering that its ecourt metadata indicates that P- 0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 0015 to 0017’ were provided on this date (UGA-OTP-0244-0920-R01, at 0943), and that ‘UPDF 0016’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA- OTP-0242-6212, at 6213). 1208 Re-scan of UGA-OTP-0197-1078. The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0339 in this regard (P-0339: T-134 , p. 36, lines 9-18), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 0011 to 0012’ were provided on this date (UGA-OTP-0244-0920-R01, at 0942), that ‘UPDF 0011’ appears in a slip of paper in this logbook, matching the identification number range in the preregistration form ( see UGA-OTP-0254-1991, at 1992), and that this book fits in chronological sequence with another Soroti UPDF logbook (book UGA-OTP-0254-2284’s first entry is 13 November 2003 at 11:00 (also headed ‘Compact No. 4’), while this book closes on 13 November 2003 at 11:00 (equally headed ‘Compact No. 4’). 1209 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0339 in this regard (P-0339: T-134 , p. 39, lines 17-23), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 24 August 2015, that a pre-registration form signed by P-0038 on this date indicates that ‘3 message books’ were provided on this date (UGA-OTP-0244-0920-R01, at 0946), and that this book fits in chronological sequence with another Lira UPDF logbook (book UGA-OTP- 0255-0451’s first entry is 8 August 2004 at 11:30, while this book closes on 8 August 2004 at 9:21). The Defence pointed P-0339 to his prior statement whereby he did not recognise his handwriting on page 0231 of this logbook – P-0339 indicated his prior statement is in error on this point. T-135 , p. 13, line 13 to – p. 14, line 6. Whatever confusion occurred here does not affect the authenticity of this logbook, noting that no challenge is raised against P-0339 further identifying his handwriting on page 0409 of this same book. It is also noted that there appear to be two different handwritings on both pages 0231 and 0409 – the writing in black ink on p. 0231 appears to match that found on the top half of p. 0409. 1210 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0339 and P-0400 in this regard (P-0339: T-134 , p. 39, line 24 – p. 40, line 3; P-0400 Statement, UGA-OTP- 0264-0015-R01, at para. 44(e)), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 24 August 2015, that a pre-registration form signed by P-0038 on this date indicates that ‘3 message books’ were provided on this date (UGA-OTP-0244-0920-R01, at 0946), and that this book fits in chronological sequence with another Lira UPDF logbook (book UGA-OTP-0255-0228’s last entry is 8 August 2004 at 9:21, while this book opens on 8 August 2004 at 11:30).

No. ICC-02/04-01/15 240/1077 4 February 2021

1211

UPDF (P-0400 Sudan Logbook): UGA-OTP-0242-7194.

1212 1213

ISO (Gulu): UGA-OTP-0061-0002; UGA-OTP-0061-0206; UGA-OTP-

1214 1215

0062-0002; UGA-OTP-0062-0145;

1211 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0339 and P-0400 in this regard (P-0339: T-134 , p. 38, lines 4-8; P-0400 Statement, UGA-OTP-0264-0015-R01, at para. 44(i)), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 29 May 2015, that a pre-registration form signed by P-0038 on 1 August 2015 (and indicating a ‘collection date’ of 29 May 2015) confirms that logbooks ‘UPDF 007 to 0010’ were provided on this date (UGA- OTP-0244-0920-R01, at 0942), and that ‘UPDF 0007’ appears in a slip of paper in this logbook, matching the identification number range in the pre-registration form ( see UGA-OTP-0242-7194, at 7195). 1212 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(i)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0066-0002-R01’s last entry is 17 January 2004 at 8:00 (with tape 747A), while this book opens on 18 January 2004 at 8:00 (with tape 748A), and book UGA-OTP-0061-0206’s first entry is 2 April 2004 at 9:00 (with tape 791A), while this book closes on 1 April 2004 at 18:30 (with tape 790B+791A)). 1213 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(h)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246- 0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0061-0002’s last entry is 1 April 2004 at 18:30 (with tape 790B+791A), while this book opens on 2 April 2004 at 9:00 (with tape 791A), and book UGA-OTP-0062-0002’s first entry is 30 May 2004 at 18:30 (with tape 830B), while this book closes on 30 May 2004 at 8:00 (with tape 830A)). 1214 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(g)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246- 0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0061-0206’s last entry is 30 May 2004 at 8:00 (with tape 830A), while this book opens on 30 May 2004 at 18:30 (with tape 830B), and book UGA-OTP-0062-0145’s first entry is 30 July 2004 at 9:00 (with tape 874B+875A), while this book closes on 29 July 2004 at 18:30 (with tape 874B)). 1215 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(f)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0062-0002’s last entry is 29 July 2004 at 18:30 (with tape 874B), while this book

No. ICC-02/04-01/15 241/1077 4 February 2021

1216 1217 1218

UGA-OTP-0063-0002; UGA-OTP-0063-0194; UGA-OTP-0064-0002;

1219 1220

UGA-OTP-0064-0093; UGA-OTP-0065-0002; UGA-OTP-0066-0002-

opens on 30 July 2004 at 9:00 (with tape 874B+875A), and book UGA-OTP-0152-0002’s first entry is 22 October 2004 at 9:00 (with tape 922B), while this book closes on 21 October 2004 at 18:30 (with tape 922B)). 1216 This specific book contains entries from 13 March 2003 to 8 May 2003 (0800, Tape 651). The Chamber is satisfied of its authenticity, considering that it shows identical characteristics to all Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP- 0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with another Gulu ISO logbook the authenticity of which is considered established, with an opening entry of 8 May 2003 (11:00 entry, Tape 652. See ISO Logbook (Gulu), UGA-OTP- 0068-0146, at 0147). 1217 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0384 and P-0385 in this regard (P-0384 Statement, UGA-OTP-0260-0491-R01, at para. 28(a); P-0385 Statement, UGA-OTP-0260-0498-R01, at para. 30(a)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a preregistration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre- Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with another Gulu ISO logbook (book UGA- OTP-0064-0002’s first entry is 4 August 2002 at 8:00 (with tape 518B), while this book closes on 3 August 2002 at 8:00 (with tape 517B+518B)). 1218 The Chamber is satisfied of the authenticity of this logbook, containing entries from 4 August 2002 – 2 September 2002, considering that it shows identical characteristics to all Gulu ISO logbooks the authenticity of which is also established (most notably tick marks following many entries, see P-0032 Third Statement, UGA- OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with another Gulu ISO logbook the authenticity of which is also established, with an opening entry of 4 August 2002 (0800, Tape 518B) which follows the last entry in book UGA-OTP-0063-0194, at 0344-47 (on 3 August 2002, at 08:00-11:30, referring to Tape 518A). 1219 This specific book contains entries from 2 September 2002 (1100, Tape 539A) – 23 September 2002 (1100, Tape 553B). The Chamber is satisfied of its authenticity, considering that it this book shows identical characteristics to all Gulu ISO logbooks the authenticity of which is also established (most notably tick marks following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a preregistration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre- Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with another Gulu ISO logbook the authenticity of which is considered established, with an opening entry of 24 September 2002 (0800, also referring to Tape 553B. See ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0003). 1220 The Chamber is satisfied of the authenticity of this logbook, containing entries from 5 November 2002 – 4 January 2003, considering that it shows identical characteristics to all Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039- R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with another Gulu ISO logbook the authenticity of which is considered established, with an opening entry of 5 November 2002 (08:00 entry, Tape 577) which follows the last entry in book UGA-OTP- 0068-0002, at 0144-45 (on 4 November 2002, also referring to Tape 577).

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1221 1222 1223

R01; UGA-OTP-0068-0002; UGA-OTP-0068-0146; UGA-OTP-0152-

1224 1225

0002; UGA-OTP-0232-0234.

1221 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(j)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0232-0234’s last entry is 26 October 2003 at 8:00 (with tape 704B+705A), while this book opens on 27 October 2003 at 8:00 (with tape 705A), and book UGA-OTP-0061-0002’s first entry is 18 January 2004 at 8:00 (with tape 748A), while this book closes on 17 January 2004 at 8:00 (with tape 747A)). 1222 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0032 in this regard (P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 34(e)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246- 0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0064-0093’s last entry is 23 September 2002 at 11:00 (with tape 553B), while this book opens on 24 September 2002 at 8:00 (with tape 553B+554), and book UGA-OTP-0065- 0002’s first entry is 5 November 2002 at 8:00 (with tape 577A+B), while this book closes on 4 November 2002 at 11:00 (with tape 577A)). 1223 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0059, P-0032 and P-0303 in this regard (P-0059: T-36 , p. 31, line 21 – p. 33, line 17; P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 34(a); P-0303 Statement, UGA-OTP-0258-0723-R01, at para. 37(e)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 7 March 2005, that a pre-registration form signed by P-0027 confirms that 18 ‘Books English Transcripts’ were provided on this date (Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0040; P- 0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(b)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0063-0002’s last entry is 8 May 2003 at 8:00 (with tape 651B), while this book opens on 8 May 2003 at 11:00 (with tape 652A), and book UGA-OTP-0232-0234’s first entry is 2 August 2003 at 8:00 (with tape 675A), while this book closes on 1 August 2003 at 18:00 (with tape 675A)). 1224 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witnesses P-0032 and P-0386 in this regard (P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 34(c); P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(b)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 33), that the ecourt metadata indicates that P-0038 of the UPDF provided this book to the Prosecution on 21 July 2005, that a preregistration form signed by P-0038 confirms that an ‘ISO (LRA) book of intercepts from 22 Oct 2004 to 05 April 2005’ was provided on this date (UGA-OTP-0244-0920-R01, at 0933), and that this book fits in chronological sequence with another Gulu ISO logbook (book UGA-OTP-0062-0145’s last entry is 21 October 2004 at 18:30 (with tape 822B), while this book opens on 22 October 2004 at 9:00 (with tape 822B)). 1225 The Chamber is satisfied of the authenticity of this logbook, considering the testimony provided by Witness P-0386 in this regard (P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 29(k)), and considering that it shows identical characteristics to other Gulu ISO logbooks the authenticity of which is also established (most notably tick marks or the word ‘seen’ following many entries, see P-0032 Third Statement, UGA-OTP-0246- 0003-R01, at para. 33), that the ecourt metadata indicates that P-0027 of the ISO provided this book to the Prosecution on 23 April 2015, that a pre-registration form signed by P-0027 confirms that a ‘blue manuscript book opened on 2 Aug 2003, last entry is 26 Oct 2003’ was provided on this date (Pre-Registration Form, UGA-OTP-

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1226

Police: UGA-OTP-0037-0002; UGA-OTP-0151-0002 through UGA-OTP-

1227

0151-0042.

While other logbooks have been submitted into evidence, the logbooks listed above

include content the Chamber considers to be specifically relevant to its evidentiary

discussion. These logbooks have been extensively used during the hearings at trial,

making it quite clear to all involved what parts of them are most relevant.

As discussed previously, there is evidence that, despite orders to the contrary, UPDF and

ISO personnel would sometimes help each other to understand the meaning of certain

1228

parts of communications. However, all those who acknowledged that such

discussions occurred described them in a way which made it clear that each agency was

1229

still working independently from the other. There is, for instance, no evidence

suggesting that the UPDF simply copied the entries in the ISO logbooks, or vice-versa.

The Chamber considers that, despite the possibility that the UPDF and ISO may have

0246-0039-R01, at 0045; P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 35(g)), and that this book fits in chronological sequence with other Gulu ISO logbooks (book UGA-OTP-0068-0146’s last entry is 1 August 2003 at 18:00 (with tape 675A), while this book opens on 2 August 2003 at 8:00 (with tape 675A), and book UGA-OTP-0066-0002-R01’s first entry is 27 October 2003 at 8:00 (with tape 705A), while this book closes on 26 October 2003 at 8:00 (with tape 704B+705A)). 1226 The Chamber is satisfied of the authenticity of this material, considering the testimony provided by Witnesses P-0125 and P-0370 in this regard (P-0125: T-135 , p. 59, line 14 – p. 62, line 9; P-0370 Statement, UGA-OTP- 0258-0687-R01, at para. 55), and considering that its ecourt metadata indicates that P-0038 of the UPDF provided this material to the Prosecution on 14 December 2004, and that a pre-registration form signed by P-0038 on this date confirms that ‘civilian intercept folder/docs 12 Apr – 04 Nov 04’ was provided on this date (UGA-OTP- 0244-0920-R01, at 0929), with a date range matching the entries in these papers. The police themselves described such papers as ‘fair copies’, and they were not written into a single logbook like those of the UPDF and ISO. However, the collection of papers is functionally equivalent to a ‘police logbook’, and for consistency in referencing the Chamber will describe these collected papers as a logbook. 1227 The Chamber is satisfied of the authenticity of this material, considering the testimony provided by Witnesses P-0125, P-0126 and P-0370 in this regard (P-0125: T-135 , p. 62, line 13 – p. 64, line 16; P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 69; P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 56), and considering that its ecourt metadata indicates that P-0126 of the Police provided this material to the Prosecution on 24 June 2005, and that a pre-registration form, although not signed by P-0126, confirms that a ‘set of handwritten transcripts of radio-intercepts’ was provided on this date (Pre-Registration Form, UGA-OTP-0151- 0001-R01; P-0126 First Statement, UGA-OTP-0253-0764-R01, at para. 76), with an ERN range matching this collection of papers (indicated as ‘UGA.00151.001 to UGA.00151.044’, with the end page being the last page of item UGA-OTP-0151-0042). The Chamber notes that these ‘fair copies’ were registered into e-court separately, and will therefore refer to them as ‘police notes’. However, this collection of papers contains notes of the same kind as those included in Police Logbook, UGA-OTP-0037-0002. 1228 See para. 563 above. 1229 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 50; P-0032 Third Statement, UGA-OTP-0246- 0003-R01, at para. 40; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 44-46 (would read both sets of logbooks, and point out to UPDF or ISO if something caught in one logbook was missing in the other); P- 0404 Statement, UGA-OTP-0267-0470-R01, at para. 18 (‘[w]e worked independently from [ISO], but would occasionally compare our findings if there was something we had difficulty with’).

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compared findings about aspects of some communications, the work in their respective logbooks still can be understood to be corroborative when their entries are consistent.

Further, the UPDF operations in Gulu, Achol Pii, Soroti and Lira were conducted 1230 independently. Matching logbook entries from each of these places can likewise be understood as corroborating each other. 1231 The police interception operation was also independent of those of the UPDF/ISO. For those communications where a police logbook entry exists, these logbooks provide a further layer of corroboration as to what the LRA was saying and when.

When considering the corroborative effect of different logbooks, the Chamber is not expecting word-for-word mirroring across the agencies. To the contrary, this would actually suggest the logbook authors did not prepare them independently. It is of particular import in this regard that differences in details are to be expected, noting the diverse experience levels of the interceptors, the potential for varying quality of what could be heard at each interception site, and the inevitability that different people will summarise different parts and focus on varying details of a long conversation. In assessing whether logbooks corroborate each other or witness or documentary evidence (such as transcripts) for a given LRA conversation, the Chamber is only looking for overlapping content sufficient for it to conclude that each logbook is describing the same overall conversation.

As to legibility, the Chamber is able to easily read the police logbook in evidence. The contents of ISO logbooks are generally legible, though sometimes the dates of the entries are written faintly. Noting that ISO logbooks are written in chronological order, the Chamber has occasionally made recourse to more legible dates near cited entries in order to confirm the dates of the cited entries themselves. For UPDF logbooks, the Prosecution also re-scanned a number of them to make them easier to read. The initial scans of the logbooks are also provided, meaning that the Chamber has been able to compare versions of these logbooks. As a general rule, the Chamber will cite to the clearest version of the

1230 See n. 1118 above. 1231 P-0125: T-135 , p. 66, lines 18-23; P-0337 Second Statement, UGA-OTP-0267-0445-R01, at para. 47; P-0370 Statement, UGA-OTP-0258-0687-R01, at para. 46.

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evidence in the record. This means that the Chamber generally cites to the re-scanned UPDF logbook entries in its reasoning (as well as enhanced audios for recordings).

The Defence argues that logbook entries may discuss conversation topics out of order or 1232 may have inaccurately interpreted proverbs or coded messages. But the Chamber considers that much of the value of these logbooks comes precisely from their providing a plain language summary of an otherwise indecipherable conversation. As will be shown in the discussion on specific intercepted communications, it must also be noted that the summaries in these logbooks have been extensively corroborated by witnesses who were played the corresponding recorded conversations in court. In principle in its evidentiary discussion, the Chamber has taken care to verify the meaning of any LRA conversation sourced from a single logbook, relying on available audio recording transcripts, witness testimonies or other logbooks to corroborate their accuracy. That said, the Chamber notes that in certain instances, it has not been possible to match the details of conversations as recorded in specific logbooks to other available evidence. This holds true in particular when looking at the logbooks produced by ISO in 2002, time for which the Chamber was 1233 not provided with logbooks from other intercepting agencies. In such cases, while the Chamber may be referencing the content of LRA communications sourced from a single logbook, the Chamber considers such logbook entries sufficiently reliable in the context of its evidentiary discussion and in light of the evidence received on how the logbooks were produced. This is also the case in particular bearing in mind the discussion of the specific intercepts below which demonstrates that witnesses corroborated summaries in logbooks when played the corresponding sound recordings, as well as that for years subsequent 2002, for which logbooks from other intercepting agencies are available, in many cases the logbook entries across agencies match to an extent which allows the Chamber to conclude sufficiently on the reliability of the ISO logbooks from 2002. To the extent possible, the Chamber has also noted corroboration for the content of such logbooks entries by reference to other material available. Furthermore, throughout the evidentiary discussion, and as regards logbook entries relevant to the entire period of the charges, in cases in which the Chamber found especially variations in the amount of details recorded across different logbook entries which are of significance to the

Defence Response to Prosecution’s Submission of Intercept Material 1232 , paras 30-32. 1233 The Chamber notes the existence of two logbooks which appear to have been produced by the UPDF between January and April as well as May-June 2002, but considers them of no immediate relevance for the current discussion as they concern a period before the time relevant to the charges.

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Chamber’s discussion, additional reasoning has been provided as to why the Chamber may have decided to rely on one specific logbook entry.

v Short hand notes The Chamber has received a large number of short hand notes from the UPDF and ISO 1234 intercept operations. Interceptors wrote these notes as the communications transpired to inform the formal logbook entries made subsequently.

On some level, these notes should be probative in that they provide an even more contemporaneous record of LRA conversations compared to the logbook summaries. But there are several competing considerations. First, and understandably, the witnesses’ short hand notes are not as complete a record of the conversation as when they can collect 1235 their thoughts for the full logbook entry. Second, many of the notes are so hard to 1236 read as to be illegible. Third, even when the text is clear enough to read, the notes themselves are written in a mixture of Acholi and English and lack full translations. Fourth, full sentences are not always used, making it difficult for someone other than the author to know the import of isolated words or phrases.

All told, this has led to the Chamber placing little reliance on these short hand notes. The Chamber instead uses the logbook summaries for a contemporaneous written record of the intercepted conversation.

vi Copies of ISO logbooks ISO interception operations also generated copies of the logbook entries prepared in Gulu. The ISO operation in Gulu often faxed a copy of their logbook entry to Kampala 1237 (sometimes after being rewritten more legibly in Gulu). The Chamber has received

1234 E.g. UPDF Shorthand Notes, UGA-OTP-0254-2619 (re-scan of UGA-OTP-0197-2319); ISO Shorthand Notes, UGA-OTP-0242-3630; ISO Shorthand Notes, UGA-OTP-0242-5078. 1235 P-0003: T-42 , p. 23, lines 11-21; P-0059: T-36 , p. 27, line 18 – p. 28, line 2 (‘[s]ometimes their speed is high, you have to draft very fast and you do not write everything, you skip some things. And then you start rewriting directly in the logbook. That is what can happen. You may not have it in the rough book, but it can surface in the notebook or on the paper.’). 1236 E.g. UGA-OTP-0254-2619, at 2815 (itself a re-scan of UGA-OTP-0197-2319, at 2513), discussed by P-0003: T-42 , p. 23, line 22 – p. 29, line 25. The Chamber is unable to read the words on this page and is dependent upon P-0003’s description as to what is written. 1237 Footnote 1136 above.

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1238 these faxed copies. ISO staff in Kampala would also copy Gulu logbook entries into

1239 new logbooks, and some of these logbooks are in evidence as well.

These faxed copies and additional logbooks are ‘new evidence’ in the sense that a fax or

handwritten copy is not entirely identical to the original logbook, and some evidence

indicates that the handwritten Kampala copies contain some corrected typos or other

1240 marginal differences. That these copies exist provides further proof that the ISO

logbooks from Gulu are authentic, but the Chamber has ample witness testimony on the

authenticity of these same books. As to the contents of these copied books, the Chamber

considers it self-evident that they cannot be considered as corroborative in any way of

the original logbooks.

As a result, in order to avoid double-counting repetitive evidence, the Chamber will not

use copied logbooks – be they faxes or handwritten duplicates – to prove anything beyond

the originals. The Chamber has referred to copied logbooks in some limited instances in

which the copies assisted with the legibility of an entry in the original logbook.

vii Intercept evidence in intelligence reports

On a regular basis during the period relevant to the charges, the Ugandan army would

1241 prepare intelligence reports. These reports commonly contain exchanges amongst the

1242 LRA in intercepted communications. The police also prepared certain intelligence

1243 reports on the basis of information received from the Kamdini police interceptors.

Other aspects of these intelligence reports will be considered elsewhere in this

1244 judgment. But, for purposes of understanding intercepted communications, the

Chamber considers that the probative value of these reports is minimal. The sources of

1238 E.g. ISO Faxed Copy, UGA-OTP-0163-0007; ISO Faxed Copy, UGA-OTP-0163-0292. 1239 Footnote 1137 above. E.g. ISO Logbook (Kampala), UGA-OTP-0067-0002; ISO Logbook (Kampala), UGA- OTP-0067-0148. 1240 P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 27; P-0385 Statement, UGA-OTP-0260-0498- R01, at para. 24. 1241 P-0003: T-44-CONF, p. 85, line 21 – p. 88, line 25; P-0029 Second Statement, UGA-OTP-0267-0455, at paras 64-81. 1242 P-0029 Second Statement, UGA-OTP-0267-0455, at paras 25, 28, 71, 74. E.g. 27 April 2004 Intelligence Report, UGA-OTP-0017-0130; 30 April 2004 Intelligence Report, UGA-OTP-0017-0150; 21 May 2004 Intelligence Report, UGA-OTP-0017-0268; 9 June 2004 Intelligence Report, UGA-OTP-0017-0353. 1243 E.g. UGA-OTP-0256-0232 to 0233; UGA-OTP-0256-0243, both discussed in P-0126 Second Statement, UGA-OTP-0264-0002-R01, at paras 13-17, 26-27 (discussing other similar reports in subsequent paragraphs). 1244 See section IV.B.3.iii below.

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information used to create the intercept sections of these intelligence reports seem to be 1245 the same logbook entries disseminated from the various intercept operations. As such, these reports do not provide any meaningful information about intercepted communications beyond the logbooks.

1246 Contrary to what the Defence intimates, the Chamber also does not consider intelligence reports to be necessarily more reliable because they incorporate information from sources beyond the intercepted communications. An intelligence report’s recounting of an intercepted communication is derivative on at least two levels – the actual communication is summarised in a logbook entry, whose contents are then communicated and further summarised by the author of the intelligence report. Many details are lost in highly abbreviated summaries, as these intelligence reports are only a handful of pages each and cover various subjects beyond intercepted communications. If the goal is to fully understand the contents of an intercepted communication, the Chamber considers that the recorded conversations (as explained by witnesses) and corresponding logbook summaries more accurately reflect the LRA’s communications than such intelligence reports.

This is not to say that these intelligence reports have not been useful to the Chamber. They assist in providing general context to what was going on in the conflict at any given point in time, such as what other attacks may have been going on (or not) at the time of a particular intercepted communication. This may, for instance, help to date certain 1247 communications. But, for the purpose of interpreting the intercepted communications, the Chamber considers that better evidence is available for establishing who actually said what during a particular LRA communication.

viii Miscellaneous intercept evidence The Chamber will briefly address three miscellaneous kinds of evidence: (i) intercept 1248 operation pictures or sketches; (ii) TONFAS codes and (iii) materials used to

1245 P-0029 Second Statement, UGA-OTP-0267-0455, at paras 25, 28, 71, 74; P-0126 First Statement, UGA-OTP- 0253-0764-R01, at paras 47-48, 61. 1246 See P-0059: T-39 , p. 12, lines 7-10, p. 21, line 17 – p. 22, line 17. 1247 See para. 734 below. 1248 Not all witnesses had a uniform understanding as to why these were called ‘TONFAS’ codes, but P-0301 describes TONFAS as an acronym for ‘Time of opening/closing net, Operator, Nicknames, Frequencies, Address group, and Security’. P-0301 Statement, UGA-OTP-0249-0423-R01, at para. 39.

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understand the intercept collection. The collection of intercept materials contains items

1249

on other subjects – such as LRA command structure lists and information on the

1250

UPDF direction-finding operation – but these are discussed more fully elsewhere in

the judgment to the extent relevant for the evidentiary discussion.

The Prosecution provides various photographs of the ISO/UPDF intercept operations in

1251

Gulu and the police interception operation in Kamdini. Witnesses also commented on

1252

sketches showing which rooms they worked in during intercept operations. These

pictures and sketches – which do not seem to be highly contested – provide a more

complete understanding of the interception equipment and the conditions under which

the operation was undertaken. Beyond this, they are not particularly relevant to the Chamber’s assessment.

The Prosecution provides several documents related to the LRA’s TONFAS codes, most

1253

notably a series of code books designed by the LRA.

The Chamber understands TONFAS codes as being the LRA version of a well-known

classical cryptogram technique, where the letters of a word are defined by indicating their

position in a secret code book, according to page, line and numerical position in a real

1254

word or group of letters. In this system, the encrypting person can choose a different

1255

combination when they have to code the same letter for the second time onwards. By

using the same code book at both ends of the communication, the encrypting party puts

1249 E.g. LRA Commander List, UGA-OTP-0244-3328; LRA Commander List, UGA-OTP-0242-1021; LRA Commander List, UGA-OTP-0242-1008; LRA Commander List, UGA-OTP-0242-1005. 1250 See section IV.B.3.iii below. 1251 E.g. Picture of Gulu Intercept House, UGA-OTP-0244-3348; Picture of P-0003’s Office Location, UGA- OTP-0244-3308; Picture of Gulu Barracks Radio Antenna, UGA-OTP-0244-3352; Picture of Kamdini Police Radio Room, UGA-OTP-0254-1647. 1252 E.g. Gulu Intercept House Sketch, UGA-OTP-0246-0022, discussed by P-0032 Third Statement, UGA-OTP- 0246-0003-R01, at para. 21. 1253 E.g. TONFAS Code, UGA-OTP-0025-0173, discussed by P-0003: T-42 , p. 63, line 20 – p. 71, line 22; P- 0339: T-134 , p. 42, line 5 – p. 44, line 1; T-135 , p. 35, lines 10-17; TONFAS Code, UGA-OTP-0053-0118, discussed by P-0059: T-36 , p. 51, line 12 – p. 53, line 4; P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 34. 1254 P-0003: T-42 , p. 63, line 20 – p. 71, line 22; P-0339: T-134 , p. 42, line 5 – p. 44, line 14; T-135 , p. 35, lines 10-17; P-0059: T-36 , p. 51, line 12 – p. 53, line 4; P-0386 Statement, UGA-OTP-0260-0508-R01, at para. 22 (‘TONFAS code is a pre-agreed written code between LRA commanders and signallers. By following stage-bystage instructions to go to a particular place in the code book, certain letters were picked out which then formed the message’); P-0440: T-39-CONF, p. 69, line 9 – p. 71, line 5; T-40 , p. 8, line 10 – p. 11, line 3, p. 12, line 13 – p. 13, line 13; D-0100: T-234 , p. 30, line 3 – p. 31, line 12. 1255 See P-0003: T-42 , p. 70, line 16 – p. 71, line 18.

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the text into coded format and, upon receipt, the decrypting party transcribes the text into an understandable format.

Following military practice, the LRA code books (or rather code pages) were regularly changed by the LRA leaders in order to render more difficult the understanding of the intercepted communications, especially when they knew or presumed that the current 1256 code book was seised by the Ugandan authorities.

1257 Communicating in TONFAS code was used by the LRA only for select messages. Part of the Ugandan government’s intercept operation was to decode these messages for their plain language logbook entries, relying in large part on seized code books in these 1258 efforts.

None of the specific intercepted communications discussed in the next section required the Chamber to consult TONFAS code books in order to understand. So, despite the importance of these books to the government intercept operation, the evidence related to TONFAS code is of limited relevance to the Chamber.

Finally, the Chamber notes the materials the Prosecution provides to facilitate the Chamber’s understanding of the intercept evidence. Most notably, a Prosecution evidence analyst – P-0403 – prepared a detailed report describing the intercept evidence 1259 1260 collection. He also testified, giving a general overview of the relevant materials. The Prosecution also provides typed summaries of all relevant ISO logbooks, a chart showing the range of dates covered by each logbook and a spread sheet providing all 1261 information corresponding to each recording in evidence.

All these materials have been helpful in guiding the Chamber through the evidence related to the intercepted communications. However, the actual intercept evidence (the

1256 P-0440: T-39-CONF, p. 69, line 17 – p. 70, line 1. 1257 See P-0003: T-42 , p. 63, line 20 – p. 71, line 22 (discussing UGA-OTP-0025-0173); P-0016: T-34 , p. 3, line 1 – p. 5, line 4; P-0339: T-134 , p. 40, line 11 – p. 42, line 2. 1258 P-0003: T-44 , p. 52, line 5 – p. 53, line 12; P-0059: T-38 , p. 27, line 15 – p. 28, line 2 (‘I still repeat that we do not record the TONFAS in the logbook. The person who works on the radio is the one who needs the TONFAS. Whatever is recorded in the logbook is for our superiors.’); P-0337 Second Statement, UGA-OTP-0267-0445- R01, at para. 42; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 32. 1259 P-0403 Report, UGA-OTP-0272-0446. 1260 P-0403: T-30 ; T-31 . 1261 Intercept Analytical Materials, W16/03294 (Records Manager folder).

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recordings, interceptor and LRA witnesses, logbooks, etc.) was the basis for the Chamber’s assessments of particular communications. P-0403’s testimony is useful, but 1262 he only analysed a collection of evidence given to him by the Prosecution. He is not able to say anything about how this evidence was created beyond what other witnesses said. Therefore, the Chamber does not rely upon P-0403 – or any chart/table prepared by the Prosecution – as proof.

ii. Specific intercepted communications All intercepted evidence of LRA’s radio communications has been considered and, overall, the Chamber considers these communications to be highly probative evidence in this case. They reveal the LRA’s contemporaneous communications during the period relevant to the charges, giving a unique window into their conversations. Their importance demands that the Chamber set out a precise foundation for its conclusions on when a recorded conversation occurred and who was communicating.

The Chamber will now set out its foundational assessment for recordings it considers necessary for purposes of its evidentiary discussion. This includes the recordings played by the parties during the trial or referenced in their closing briefs. The present section establishes the following four points with respect to these recordings: That a given recording, as enhanced, contains radio communications intercepted by the Ugandan authorities. The approximate date on which a conversation at issue occurred. Who is speaking. Where available, the accuracy of the transcript reflecting what was said.

As stated previously, LRA communications are often not readily intelligible. They are mostly in non-working languages, and on the basis of other evidence on the record, they are replete with jargon, proverbs and ambiguous phrasing. Here, the Chamber establishes the necessary foundation for an intercepted communication. The Chamber will not discuss the contents of the intercepted communications in this section, including differing interpretations witnesses may give on certain conversations. This will be discussed in the appropriate parts of the evidentiary discussion. To the extent the LRA may not always

1262 Letter of Instruction to P-0403, UGA-OTP-0262-0032.

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have been truthful on the radio, including the possibility of commanders falsely claiming responsibility for certain attacks, this is likewise considered elsewhere when addressing the contents of individual conversations.

Generally, the assessments of the individual witnesses testifying on the contents of the specific intercepts – namely P-0003, P-0016, P-0059, Patrick Lumumba Nyero, P-0138, P-0339, P-0440 and Francis Ocen – can be found in section IV.B.2.v above. For any such witness not covered in that section, the Chamber will briefly explain whether it considers the witness’s testimony about the recordings to be reliable.

a. 31 March 2003 – Tape 638 (UGA-OTP-0241-0303) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘638/G ’. 3RD 1263 Its e-court metadata indicates that P-0027 of the ISO provided this tape on 3 June 2015. A pre-registration form related to P-0027 on this date 1264 memorialises the exchange of this tape. The recording is of men speaking over the radio in a non-working language.

Tape 638 was not audio enhanced.

Tape 638 has no date on its label. The ISO logbook entries for Tape 638 indicate a 1265 specific communication at 11:00 on 31 March 2003. The corresponding UPDF logbooks do not contain the ISO tape numbers, but it is clear from their entries on this 1266 date that the UPDF heard the same overall conversation recorded in the ISO logbook.

The Prosecution played part of this intercepted communication to D-0032, a long-time former LRA member who, despite having significant issues concerning other parts of his 1267 testimony, is well-placed to identify Joseph Kony’s voice. D-0032 confirmed certain

1263 UGA-OTP-0241-0303. 1264 Pre-Registration Form 0155, UGA-OTP-0246-0039-R01, at 0058-59 (item #2). 1265 UGA-OTP-0063-0002, at 0066-67. 1266 UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3544-45. The UPDF logbook from Soroti has entries on 31 March 2003, but does not summarise any communication at 11:00 that day. UPDF Logbook (Soroti), UGA-OTP- 0242-6212, at 6255-56. There are no police logbook entries on these dates. 1267 See paras 283-284 above.

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1268 statements he heard, recognising Joseph Kony as speaking. D-0032’s summary

concerns part of the same conversation recorded in the logbooks.

From the above, the Chamber concludes that Tape 638 contains a recording of Joseph

Kony and others speaking over the radio on 31 March 2003.

b. 20-22 April 2003 – Tape 646 (UGA-OTP-0241-0313)

The Chamber recognised the formal submission of the audio contents of a cassette

identified as ‘646/G ’. 3RD 1269 Its e-court metadata indicates that P-0027 of the ISO

provided this tape on 3 June 2015. A pre-registration form related to P-0027 on this date

1270 memorialises the exchange of this tape. The recording is of men speaking over the

radio in a non-working language.

Tape 646 was not audio enhanced.

Tape 646 has no date on its label. The ISO logbook entries for Tape 646 indicate dates

1271 of 20-22 April 2003. The corresponding UPDF logbooks do not contain the ISO tape

1272 numbers, but it is clear from their entries on these dates that the UPDF heard the same

overall conversations recorded in the ISO logbook.

1273 The Defence produced a partial transcript of side B of this tape. The Defence played

part of this intercepted communication to P-0138. P-0138 recognised certain voices, gave

an overall summary of the recorded conversation, and annotated one section of the

1274 transcript. P-0138’s summary and the Defence’s transcript concern part of the same

conversations recorded in the logbooks. Accordingly, and despite concerns raised by the

1275 Prosecution that parts of the Defence transcript may be inaccurate, the Chamber will

1268 D-0032: T-201 , p. 15, line 22 – p. 16, line 24. See also Transcript Tape 638, UGA-OTP-0286-0165, at 0195- 98. 1269 UGA-OTP-0241-0313. 1270 Pre-Registration Form 0155, UGA-OTP-0246-0039-R01, at 0058-59 (item #3). 1271 UGA-OTP-0063-0002, at 0133-44. 1272 UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0502-16; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6273-76, 6278-79. There are no police logbook entries on these dates. 1273 Tape 646 Transcript, UGA-D26-0026-0001. 1274 P-0138: T-121 , p. 57, line 11 – p. 60, line 25; T-122 , p. 5, line 4 – p. 15, line 3; P-0138 Annotations on Tape 646, UGA-REG-0001-0006, at 0013. 1275 See P-0138: T-121 , p. 61, line 4 – p. 67, line 5; T-122 , p. 2, line 21 – p. 4, line 13; Annex I to the Registration into the Record of the Case of a Document presented during the Trial Hearing held on 1 November 2017 (ICC- 02/04-01/15-HNE-1) , 16 November 2017, ICC-02/04-01/15-1075-AnxI.

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proceed on the understanding that this transcript, as annotated, accurately reflects the conversation. The voices recognised by P-0138 were Joseph Kony and Vincent Otti.

P-0231 was played the same excerpt. P-0231 did not comment on a transcript, but he did 1276 identify the same voices as P-0138. P-0231 is a witness with direct knowledge about the activities of the LRA, and the Chamber considers him well-placed to identify the voices of the LRA senior leadership on the radio.

From the above, the Chamber concludes that: (i) Tape 646 contains a recording of Joseph Kony, Vincent Otti and others speaking over the radio at some point in the period of 20- 22 April 2003; and (ii) the corresponding Defence transcript – as annotated by P-0138 – accurately reflects the speakers and words spoken.

c. 9-10 October 2003 – Tape 693 (enhanced: UGA-OTP-0247- 1102) The Chamber recognised the formal submission of the audio contents of a cassette ’. 3RD 1277 identified as ‘693/G Its e-court metadata indicates that P-0027 of the ISO provided this tape to a Prosecution staff member on 23 February 2005. A pre-registration form related to P-0027 on this date which memorialises the exchange of ‘12 [c]assette tapes containing relevant data’ to this same staff member mentions the ERN range 1278 including this tape. The recording is of men speaking over the radio in a non-working language.

The Prosecution gave this tape to Xavier Laroche and his colleague for audio 1279 enhancement. These persons then performed this enhancement and registered the 1280 enhanced digital copy. An enhanced audio file (UGA-OTP-0247-1102) with a cover page indicating the ERN of Tape 693 is in evidence. The length of the recorded content on Tape 693’s side B corresponds to the length of the track in this enhanced audio. 1281

1276 P-0231: T-123-CONF, p. 54, line 20 – p. 56, line 25. 1277 UGA-OTP-0054-0010 (and copied disc at 0013). 1278 Pre-Registration Form 0155, UGA-OTP-0246-0039-R01, at 0039 (the ERN range including this tape appears on the bottom of the form); P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(a). 1279 Inventory, UGA-OTP-0269-0044, at 0047; P-0256 Statement, UGA-OTP-0269-0015, at paras 22, 51. 1280 P-0256 Statement, UGA-OTP-0269-0015, at paras 37-39; Pre-Registration Form, UGA-OTP-0269-0087, at 0093 (item #19). 1281 Compare UGA-OTP-0054-0010 (31:41) with UGA-OTP-0247-1102 (31:41). For this and all similar determinations subsequently, see para. 654 above.

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The general impression of the enhanced audio’s contents is consistent with that of Tape 693’s side B contents.

Tape 693 has no date on its label. The ISO logbook entries for Tape 693’s side B indicate 1282 dates of 9-10 October 2003. The corresponding UPDF logbooks do not contain the 1283 ISO tape numbers, but it is clear from their entries on these dates that the UPDF heard the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of this intercepted communication to P-0003. He reviewed a draft transcript prepared by the Prosecution, 1284 identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, P-0003 recognised certain voices, gave an overall summary of the recorded conversation, explained certain transcript 1285 annotations and confirmed that his annotated transcript matched what was played. The summary describes part of the same conversations recorded in the logbooks. Although P-0138 did not discuss a transcript of this conversation, he was played part of a recording in court and gave a similar overall summary and some of the same speaker 1286 identifications as P-0003. The voices consistently recognised were those of Joseph Kony and Vincent Otti.

This said, the Chamber notes two significant points where the witnesses diverged in their summaries of the recording.

First, P-0003 testified that the speakers were discussing an attack that the accused was 1287 responsible for. P-0138 did not indicate this information in his testimony, and the transcript P-0003 annotated shows no clear reference to Dominic Ongwen. Noting that P-0003 was unable to indicate where the lines he claimed to hear appeared in this 1288 transcript, the Chamber cannot conclude that there is any reference to Dominic

1282 UGA-OTP-0232-0234, at 0542-48. 1283 UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1065-71; UPDF Logbook (Achol Pii), UGA-OTP-0242- 6018, at 6158-60; UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2111-19. There are no police logbook entries on these dates. 1284 P-0003 Tape 693 Transcript, UGA-OTP-0132-0105-R01, at 0133-36. 1285 P-0003: T-43 , p. 3, line 17 – p. 12, line 21. 1286 P-0138: T-120 , p. 65, line 25 – p. 68, line 14. 1287 P-0003: T-43 , p. 4, lines 6-9, p. 5, lines 4-13. 1288 P-0003: T-43 , p. 10, line 21 – p. 12, line 13.

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Ongwen in this part of the recording. The Chamber does not consider that this warrants any broader concern about P-0003’s abilities or any potential bias on his part against the accused – the witness did not insist on Dominic Ongwen being referenced in every 1289 recording he heard and other recordings where P-0003 actually heard Dominic 1290 Ongwen speaking were independently corroborated by other witnesses. The Chamber considers P-0003 to simply be mistaken on this occasion.

Second, P-0138 indicated that the recording relates to orders to attack Adilang and 1291 Orum. P-0003 did not give these locations in his summary, nor do they appear in his annotated transcript. But it must be noted that P-0138 did not provide this information in 1292 his initial in-court summary of the recording, and he says quite clearly that the speakers ‘did not mention a place’ in their discussion. 1293 P-0138 rather seems to have attempted to speculate on the incidents being discussed based on information beyond what is in the recording itself. The Chamber therefore does not consider P-0138’s discussion of these locations to be part of his overall summary of the recording, and therefore sees no conflict between P-0003 and P-0138 on this point.

From the above, the Chamber concludes that: (i) UGA-OTP-0247-1102 is an enhanced audio copy of Tape 693’s side B; (ii) Tape 693’s side B – as enhanced – contains a recording of Joseph Kony, Vincent Otti and others speaking over the radio at some point in the period of 9-10 October 2003; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcript accurately reflects the speakers and words spoken.

d. 13-14 October 2003 – Tape 695 (enhanced: UGA-OTP-0247- 1110) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘695/G ’. 3RD 1294 Its e-court metadata indicates that P-0027 of the ISO provided this tape to a Prosecution staff member on 23 February 2005. A pre-registration form related to P-0027 on this date which memorialises the exchange of ‘12 [c]assette

1289 E.g. P-0003: T-43 , p. 12, line 22 – p. 17, line 25 (Tape 695). 1290 See as examples, the discussion of Tapes 808, 824 and 837 below. 1291 P-0138: T-120 , p. 67, line 6 – p. 68, line 9. 1292 P-0138: T-120 , p. 66, lines 12-21. 1293 P-0138: T-120 , p. 67, line 25 – p. 68, line 2. 1294 UGA-OTP-0054-0014 (and copied disc at 0017).

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tapes containing relevant data’ to this same staff member mentions the ERN range

1295 including this tape. The recording is of men speaking over the radio in a non-working

language.

The Prosecution gave this tape to Xavier Laroche and his colleague for audio

1296 enhancement. These persons then performed this enhancement and registered the

1297 enhanced digital copy. An enhanced audio file (UGA-OTP-0247-1110) with a cover

page indicating the ERN of Tape 695 is in evidence. The length of the recorded content

on Tape 695’s side A corresponds to the length of the track in this enhanced audio. 1298

The general impression of the enhanced audio’s contents is consistent with that of Tape

695’s side A contents.

Tape 695 has no date on its label. The ISO logbook entries for Tape 695’s side A indicate

1299 dates of 13-14 October 2003. The corresponding UPDF logbooks do not contain the

1300 ISO tape numbers, but it is clear from their entries on these dates that the UPDF heard

the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003 and P-0138. Each reviewed a draft transcript prepared by the

1301 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, both witnesses recognised certain

voices, gave the same overall summary of the recorded conversation, explained certain

transcript annotations and confirmed that their annotated transcript matched what was

1295 Pre-Registration Form 0155, UGA-OTP-0246-0039-R01, at 0039 (the ERN range including this tape appears on the bottom of the form); P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(a). 1296 Inventory, UGA-OTP-0269-0044, at 0047; P-0256 Statement, UGA-OTP-0269-0015, at paras 22, 51. 1297 P-0256 Statement, UGA-OTP-0269-0015, at paras 37-39; Pre-Registration Form, UGA-OTP-0269-0087, at 0093 (item #20). 1298 Compare UGA-OTP-0054-0014 (31:42) with UGA-OTP-0247-1110 (31:42). 1299 UGA-OTP-0232-0234, at 0559-71. Note that some entries across these pages have no ISO tape reference (they are marked ‘not rec’d’ where the reference should be). However, ISO logbooks follow a pattern whereby entries are prepared in chronological order. The first and last entries in this range of pages explicitly refer to Tape 695’s side A, and the ‘unreferenced’ entries are dated in chronological order (13 October at 08:00, then 11:00, then 13:00, and finally 14 October at 08:00). It is therefore understood that all pages in this range are part of the same side of the same ISO tape. 1300 UPDF Logbook (Gulu), UGA-OTP-0254-0229, at 0234-42; UPDF Logbook (Achol Pii), UGA-OTP-0242- 6018, at 6162-64; UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2130-40. There are no police logbook entries on these dates. 1301 P-0003 Tape 695 Transcript, UGA-OTP-0132-0243-R01, at 0263-69 (Tape 695 transcript begins at 0253); P- 0138 Tape 695 Transcript, UGA-OTP-0191-0623-R01, at 0635-39 (each individual page is a separate ERN).

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1302 played. The summaries describe part of the same conversations recorded in the logbooks. Although P-0016 did not review a transcript of this intercept prior to testifying, he was played the recording in court and gave the same overall summary and speaker 1303 identifications as the other witnesses. The voices consistently recognised were those of Joseph Kony and Vincent Otti.

From the above, the Chamber concludes that: (i) UGA-OTP-0247-1110 is an enhanced audio copy of Tape 695’s side A; (ii) Tape 695’s side A – as enhanced – contains a recording of Joseph Kony, Vincent Otti and others speaking over the radio at some point in the period of 13-14 October 2003; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

e. 22-24 November 2003 – Tape UGA-OTP-0037-0314 (enhanced: UGA-OTP-0239-0062) The Chamber recognised the formal submission of the audio contents of an un-numbered cassette with no label other than an ICC ERN (UGA-OTP-0037-0314). Its e-court metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff member on 14 December 2004. A pre-registration form related to Timothy Kanyogonya on this date which memorialises the exchange of, amongst other items, 113 intercept 1304 tapes to this same staff member mentions the ERN range including this tape. The recording is of men speaking over the radio in a non-working language.

The Prosecution gave Tape UGA-OTP-0037-0314 to Alan French for audio 1305 1306 enhancement. Alan French then enhanced the audio and labelled the copy ‘AF/37’. An enhanced audio disc (UGA-OTP-0239-0062) marked with Alan French’s company name, the code ‘AF/37’ and the ERN of the original tape is in evidence. The length of the recorded content on the tapes does not entirely correspond, with over a minute of additional recording on the original tape tracks relative to those on the enhanced

1302 P-0003: T-43 , p. 12, line 22 – p. 17, line 25; P-0138: T-120 , p. 54, line 8 – p. 65, line 24. 1303 P-0016: T-33 , p. 53, line 13 – p. 55, line 10. 1304 Pre-Registration Form 00311, UGA-OTP-0244-0920-R01, at 0929 (the ERN range including this tape appears on the bottom of the form); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 29. 1305 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1306 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 1).

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1307 audio. The Chamber nevertheless notes the number of Alan French’s other enhanced

audios whose provenance the Chamber establishes elsewhere in this section, confirming

the overall accuracy of the purported associations between original and enhanced audios. The general impression of the enhanced audio’s contents is consistent with that of the

original tape’s contents. Overall, the Chamber is satisfied that what is captured on the

enhanced audio derives from Tape UGA-OTP-0037-0314.

Also, in the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003, P-0016 and P-0059. Each reviewed the draft transcript

prepared by the Prosecution, identifying speakers and annotating amendments where

1308 necessary.

Tape UGA-OTP-0037-0314’s cassette paper indicates ‘Recorded Ended 25-11-03’, but

1309 no further information is given as to when the recording began. However, by

comparing the contents of the transcripts reviewed by the witnesses to the ISO logbook entries, it appears that this tape’s recorded contents are dated 22-24 November 2003

1310 (corresponding to ISO tape 720). The overlapping content in the corresponding UPDF

1311 logbook entries on these dates further indicates that the UPDF heard the same

conversations recorded in the relevant part of the ISO logbook.

Upon being played part of the enhanced audio in court, P-0003, P-0016 and P-0059

recognised certain voices, gave the same overall summary of the recorded conversation,

explained certain transcript annotations and confirmed that their annotated transcript

1307 Compare UGA-OTP-0037-0314 (track 1: 32:27; track 2: 32:23) with UGA-OTP-0239-0062 (track 1: 31:33; track 2: 31:37). 1308 P-0003 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP-0248-0224-R01, at 0251-54; P-0016 Tape UGA- OTP-0037-0314 Transcript, UGA-OTP-0259-0128; P-0059 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP- 0248-0342-R01, at 0369-72. 1309 UGA-OTP-0037-0314, at 0315. 1310 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0076-87. Compare, e.g. , UGA-OTP-0066-0002-R01, at 0086-87 (reference to Taban Amin, followed by discussion of overthrowing Yuweri Museveni) with P-0003 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP-0248-0224-R01, at 0250-54 (same); UGA-OTP-0066-0002-R01, at 0085 (‘Kony seriously blamed LC 5 c/man Mahaman Ojwee as being a very bad man’) with P-0003 Tape UGA- OTP-0037-0314 Transcript, UGA-OTP-0248-0224-R01, at 0248 (‘[t]he other day you heard me saying Ojwee is very bad, Ojwee is very bad, Ojwee is someone that among all the Acholi’s should be killed and he should not stay amongst the Acholi’s Over.’); UGA-OTP-0066-0002-R01, at 0077 (‘…one civilian tried to grab the gun from one of his soldiers and what he did was to shoot him dead’) with P-0003 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP-0248-0224-R01, at 0228 (‘[s]ome guy tried to grab my gun Over, then I just started firing, then everybody I captured I hit them all on the back of their head Over.’). 1311 UPDF Logbook (Gulu), UGA-OTP-0254-0229, at 0390-402; UPDF Logbook (Soroti), UGA-OTP-0254- 2284, at 2342-58; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7311-14.

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1312 matched what was played. As already indicated, the summaries describe part of the same conversations recorded in the logbooks. The voices consistently recognised were those of Joseph Kony and Buk Abudema.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0062 is an enhanced audio copy of Tape UGA-OTP-0037-0314; (ii) Tape UGA-OTP-0037-0314 – as enhanced – contains a recording of Joseph Kony, Buk Abudema and others speaking over the radio at some point in the period of 22-24 November 2003; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

f. 25-26 November 2003 – Tape 721 (enhanced: UGA-OTP- 0239-0101)

The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘721 A+B/G 3rd’. 1313 Its e-court metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff member on 15 February 2005. The only pre-registration form related to Timothy Kanoygonya on this date is one memorialising the exchange of, amongst other items, 136 ISO tapes to this same staff 1314 member. The recording is of men speaking over the radio in a non-working language.

1315 The Prosecution gave this tape to Alan French for audio enhancement. Alan French then enhanced the audio and labelled the copy ‘AF/65’. 1316 An enhanced audio disc (UGA-OTP-0239-0101) marked with Alan French’s company name, the code ‘AF/65’ and the ERN of Tape 721 is in evidence. The length of the recorded content on both tapes 1317 corresponds to the length of the audio tracks in Tape 721. The general impression of the enhanced audio’s contents is consistent with that of Tape 721’s contents.

1312 P-0003: T-43 , p. 48, line 22 – p. 51, line 20; P-0016: T-33 , p. 51, line 11 – p. 52, line 23; P-0059: T-37 , p. 29, line 17 – p. 31, line 11. 1313 UGA-OTP-0049-0068. 1314 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1315 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1316 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 15). 1317 Compare UGA-OTP-0049-0068 (track 1: 48:00 re-encoded; track 2: 48:00) with UGA-OTP-0239-0101 (track 1: 32:09; track 2: 32:14). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a

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In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0016 and P-0059. Each reviewed a draft transcript prepared by the

1318

Prosecution, identifying speakers and annotating amendments where necessary.

1319

Tape 721 is undated. The ISO logbook entries for Tape 721 do not follow the standard

sequencing in logbooks, as entries for Tape 721 appear both before and after entries for

1320

Tape 720. This makes it more difficult to precisely date Tape 721, as its contents

1321

could correspond to dates ranging anywhere from 23-26 November 2003. However,

by comparing the contents of the transcripts reviewed by the witnesses to the ISO

logbook entries, it appears that the ISO logbook entries actually corresponding to Tape

1322

721 are only those from 25-26 November 2003. The corresponding UPDF logbooks

do not contain the ISO tape numbers, but it is clear from their entries on 25-26 November

1323

2003 that the UPDF heard the same conversations recorded in the relevant part of the

ISO logbook.

Upon being played the enhanced audio in court, P-0016 and P-0059 recognised certain

voices, gave the same overall summary of the recorded conversation, explained certain

transcript annotations and confirmed that their annotated transcript matched what was

1324

played. As already indicated, the summaries describe part of the same conversation

recorded in the logbooks. The voices consistently recognised were those of Joseph Kony

and Vincent Otti.

fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P- 0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1318 P-0016 Tape 721 Transcript, UGA-OTP-0265-0439, at 0439-68; P-0059 Tape 721 Transcript, UGA-OTP- 0258-0791-R01. 1319 UGA-OTP-0049-0068, at 0068-69. 1320 UGA-OTP-0066-0002-R01, at 0081-93. 1321 UGA-OTP-0066-0002-R01, at 0081-93. The date on the first page is illegible. The date immediately preceding the relevant entries clearly reads ‘22/11/2003’ (p. 0076), meaning that date on p. 0081 should be ‘23/11/2003’. The dates listed around the end of the relevant entries are faint, but legible in the logbook. The last date in the cited entries is ‘26/11/2003’ on p. 0090, and the date just after the cited entries is ‘27/11/2003’ on p. 0094. 1322 UGA-OTP-0066-0002-R01, at 0087-93. Compare UGA-OTP-0066-0002-R01, at 0087 (discussion of an attack at ‘Labwor Omor’ – the only entry in the entire logbook mentioning this exact place), with P-0016 Tape 721 Transcript, UGA-OTP-0265-0439, at 0440-41; P-0059 Tape 721 Transcript, UGA-OTP-0258-0791-R01, at 0792-93 (discussing an attack at this same location at the beginning of the transcript). 1323 UPDF Logbook (Gulu), UGA-OTP-0254-0229, at 0403-08; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2359-71; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7315-16. There are no police logbook entries on these dates. 1324 P-0016: T-33 , p. 36, line 20 – p. 45, line 12; P-0059: T-37 , p. 42, line 18 – p. 47, line 15. Note that P-0016 was played approximately one minute more of this tape than P-0059.

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From the above, the Chamber concludes that: (i) UGA-OTP-0239-0101 is an enhanced audio copy of Tape 721; (ii) Tape 721 – as enhanced – contains a recording of Joseph Kony, Vincent Otti and others speaking over the radio at some point in the period of 25- 26 November 2003; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

g. 6 February 2004 – Tape 757 (UGA-OTP-0141-0005) and Tape UGA-OTP-0025-0625 The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘757/G ’. 3RD 1325

The Chamber further recognised the formal submission of the audio contents of an unnumbered tape (UGA-OTP-0025-0625) whose cassette label only reads ‘Abiya Attack’. 1326

For Tape 757, its e-court metadata indicates that P-0027 provided this tape to a Prosecution staff member on 14 April 2005. A pre-registration form related to P-0027 on this date memorialises the exchange of, amongst other items, Tape 757 to this same staff 1327 member.

For Tape UGA-OTP-0025-0625, its e-court metadata indicate that Timothy Kanyogonya provided this tape to a Prosecution staff member on 17 October 2004. A pre-registration form related to Timothy Kanyogonya on this date memorialises the exchange of, amongst 1328 other items, six audio tapes of intercepts to this same staff member. P-0032 confirms that the writing on this tape as well as the voice which can be heard at the beginning of 1329 side A is his.

1325 UGA-OTP-0141-0005. 1326 The following is written on the cassette paper: ‘LRA attack on Abiya IDP Camp. Odyambo reported to Kony st that he attacked the camp and fought with UPDF 31 Bri, charged weapons, killed civ. indiscriminately whose no, he doesn’t know and burnt all their huts’. 1327 Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0042; P-0027 Second Statement, UGA-OTP-0249- 0444-R01, at para. 34(d). 1328 Pre-Registration Form 00193, UGA-OTP-0244-0920-R01, at 0924 (the ERN range including this tape appears on the bottom of the form); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 24. 1329 P-0032 Third Statement, UGA-OTP-0246-0003-R01, at para. 55(h).

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Both recordings are of men speaking over the radio in a non-working language.

Neither Tape 757 nor Tape UGA-OTP-0025-0625 was audio enhanced.

Tape UGA-OTP-0025-0625 is undated, but a UPDF report states that the Abiya attack

1330 referenced on the tape label took place on 4 February 2004. ISO and UPDF logbook

entries for 6 February 2004 contain detailed discussions about an Abiya attack one or

1331 two days after it occurred. The ISO logbook entry on this date indicates it corresponds

to Tape 757. The intercepted conversation is described similarly in both logbooks,

1332 indicating that both agencies heard the same conversations.

The Defence played part of Tape 757 to P-0339, and arranged for him to annotate a short

1333 transcript extract. P-0339 was also asked to identify voices, give an overall summary

1334 of the recorded conversation, and explain certain transcript annotations. The voice

recognised by P-0339 in the excerpt played was that of Joseph Kony. The Prosecution

did not prepare an annotated transcript for Tape 757.

In the course of its investigation, the Prosecution played part of Tape UGA-OTP-0025-

0625 to P-0016. He reviewed a draft transcript prepared by the Prosecution, identifying

1335 speakers and annotating amendments where necessary.

Upon being played part of Tape UGA-OTP-0025-0625 in court, P-0016 recognised

certain voices, gave an overall summary of the recorded conversation, explained certain

parts of the transcript having listened to the related excerpts of the audio and confirmed

1330 UGA-OTP-0069-0423. See also Pre-Registration Form 00561, UGA-OTP-0244-0920-R01, at 0931 (including this document in the provided ERN range, and indicating in the catalogue of items description that P- 0038 gave a document on ‘witnesses in Abiya/Barlonyo attacks’ to the Prosecution on 17 March 2005); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 31. 1331 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0047-51 (corresponding to Tapes 756-57); UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4227-28; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7364-65. There are no police logbook entries on this date. 1332 The partial transcript for tape UGA-OTP-0025-0625 also includes details equally mentioned in the ISO logbook entry corresponding to Tape 757 on 6 February 2004 and the UPDF logbook entries for 6 February 2004. Compare UGA-OTP-0167-0118, at 0121-0123 with UGA-OTP-0061-0002, at 0047 and UGA-OTP-0254-4143, at 4227; UGA-OTP-0242-7309, at 7364. 1333 Tape 757 Transcript, UGA-D26-0027-0003; P-0339 Annotations to Tape 757 Transcript, UGA-REG-0001- 0021, at 0035-36. 1334 P-0339: T-134 , p. 47, line 21 – p. 49, line 6; T-135 , p. 15, line 4 – p. 26, line 4. 1335 P-0016 Tape UGA-OTP-0025-0625 Transcript, UGA-OTP-0167-0118.

No. ICC-02/04-01/15 264/1077 4 February 2021

1336 that his annotated transcript matched what was played. The voices recognised by P- 0016 in the excerpt played were Joseph Kony and Raska Lukwiya.

P-0016 and P-0339 discuss entirely distinct conversations, and neither was played the 1337 part of the intercepted conversation specifically mentioning Abiya. Both witnesses testified exclusively concerning separate transcript extracts, making it impossible for the Chamber to confirm whether the contents of Tape 757 and Tape UGA-OTP-0025-0625 overlap. But both witnesses describe parts of the same overall conversations recorded in the logbooks for 6 February 2004.

From the above, the Chamber concludes that: (i) Tape 757 contains a recording of Joseph Kony and others speaking over the radio on 6 February 2004; (ii) Tape UGA-OTP-0025- 0625 contains a recording of Joseph Kony, Raska Lukwiya, and others speaking over the radio on this same date; and (iii) the corresponding annotated transcripts accurately reflect the speakers and words spoken.

h. 12 February 2004 – Tape 760 (enhanced: UGA-OTP-0239- 0079) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘760/G ’. 3RD 1338 Its e-court metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff member on 15 February 2005. The only preregistration form related to Timothy Kanyogonya on this date is one memorialising the 1339 exchange of, amongst other items, 136 ISO tapes to this same staff member. The recording is of men speaking over the radio in a non-working language.

1340 The Prosecution gave this tape to Alan French for audio enhancement. Alan French then enhanced the audio and labelled the copy ‘AF/51’. 1341 An enhanced audio disc (UGA-OTP-0239-0079) marked with Alan French’s company name, the code ‘AF/51’

1336 P-0016: T-33 , p. 19, line 7 – p. 24, line 18. 1337 This said, reference to an attack at Abiya can be found in an earlier part of P-0016’s transcript. P-0016 Tape UGA-OTP-0025-0625 Transcript, UGA-OTP-0167-0118, at 0120-23. 1338 UGA-OTP-0046-0063. 1339 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1340 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1341 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 8).

No. ICC-02/04-01/15 265/1077 4 February 2021

and the ERN of Tape 760 is in evidence. The length of the recorded content on Tape 760 1342 corresponds to the length of the audio tracks in this enhanced audio. The general impression of the enhanced audio’s contents is consistent with that of Tape 760’s

contents.

1343 Tape 760 is undated. The ISO logbook entries for Tape 760 indicate dates of 12-14 1344 February 2004. The corresponding UPDF logbooks do not contain the ISO tape 1345 numbers, but it is clear from their entries on 12-14 February 2004 that the UPDF

heard the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0016 and P-0059. Each reviewed a draft transcript prepared by the 1346 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, P-0016 and P-0059 recognised

certain voices, gave the same overall summary of the recorded conversation, explained

certain transcript annotations and confirmed that their annotated transcript matched what 1347 was played. The summaries describe part of the same conversations recorded in the

logbooks. The voices consistently recognised were those of Dominic Ongwen, Vincent

Otti and Labalpiny.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0079 is an enhanced

audio copy of Tape 760; (ii) Tape 760 – as enhanced – contains a recording of Dominic

Ongwen, Vincent Otti, Labalpiny and others speaking over the radio at some point in the

period of 12-14 February 2004; and, (iii) at least for all portions where the reviewing

1342 Compare UGA-OTP-0046-0063 (track 1: 47:44; track 2: 47:04) with UGA-OTP-0239-0079 (track 1: 31:46; track 2: 31:48). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P-0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1343 UGA-OTP-0046-0063, at 0063-64. 1344 UGA-OTP-0061-0002, at 0067-78. The dates in the entries are a little faint, but the entry right before it is ‘11/2/2004’ (p. 0063) and the one just after is ‘15/2/2004’ (p. 0078). 1345 UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4235-40; UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7368-72. There are no police logbook entries on this date. 1346 P-0016 Tape 760 Transcript, UGA-OTP-0259-0106; P-0059 Tape 760 Transcript, UGA-OTP-0258-0772- R01. 1347 P-0016: T-33 , p. 16, line 19 – p. 18, line 21; P-0059: T-37 , p. 37, line 13 – p. 42, line 17.

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witnesses had a consistent understanding, the corresponding annotated transcripts

accurately reflect the speakers and words spoken.

i. 6 March 2004 – Tape 771 (enhanced: UGA-OTP-0239-0085)

The Chamber recognised the formal submission of the audio contents of a cassette

identified as ‘771/G ’. 3RD 1348 Its e-court metadata indicates that Timothy Kanyogonya

provided this tape to a Prosecution staff member on 15 February 2005. The only pre-

registration form related to Timothy Kanyogonya on this date is one memorialising the

1349 exchange of, amongst other items, 136 ISO tapes to this same staff member. The

recording is of men speaking over the radio in a non-working language.

1350 The Prosecution gave this tape to Alan French for audio enhancement. Alan French

then enhanced the audio and labelled the copy ‘AF/55’. 1351 An enhanced audio disc

(UGA-OTP-0239-0085) marked with Alan French’s company name, the code ‘AF/55’

and the ERN of Tape 771 is in evidence. The length of the recorded content on Tape 771

1352 corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 771’s

contents.

1353 Tape 771 is undated. The ISO logbook entries for Tape 771 cover, in relevant part, 6

1354 March 2004. The corresponding UPDF logbooks do not contain the ISO tape numbers,

1355 but it is clear from their entries on 6 March 2004 that the UPDF heard the same overall

conversations recorded in the ISO logbook.

1348 UGA-OTP-0047-0044. 1349 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1350 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1351 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 10). 1352 Compare UGA-OTP-0047-0044 (track 1: 47:37; track 2: 47:39) with UGA-OTP-0239-0085 (track 1: 32:04; track 2: 32:03). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P-0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1353 UGA-OTP-0047-0044, at 0046. 1354 UGA-OTP-0061-0002, at 0128-30. The date ‘6/3/2004’ can be seen within the page range (p. 0128), and the date immediately following the cited entry is ‘7/3/2004’ (p. 0130). 1355 UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4272-73; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2556-58; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7404-06. There are no police logbook entries on this date.

No. ICC-02/04-01/15 267/1077 4 February 2021

In the course of its investigation, the Prosecution played part of an intercepted communication to P-0016 and P-0059. Each reviewed a draft transcript prepared by the 1356 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, P-0016 and P-0059 recognised certain voices, gave the same overall summary of the recorded conversation, explained certain transcript annotations and confirmed that their annotated transcript matched what 1357 was played. The summaries describe part of the same conversations recorded in the logbooks. The voices consistently recognised were those of Dominic Ongwen and Vincent Otti.

Both witnesses also identify a signaller of Joseph Kony speaking, but diverge on which 1358 signaller it is. The Chamber considers this discrepancy immaterial, as both witnesses are consistent in identifying Joseph Kony as the ultimate source behind the words relayed.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0085 is an enhanced audio copy of Tape 771; (ii) Tape 771 – as enhanced – contains a recording of Dominic Ongwen, Vincent Otti, a signaller of Joseph Kony and others speaking over the radio at some point in the period of 5-6 March 2004; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

j. 20 March 2004 – Tape 781 (enhanced: UGA-OTP-0239-0106) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘781/G ’. 3RD 1359 Its e-court metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff member on 15 February 2005. The only preregistration form related to Timothy Kanyogonya on this date is one memorialising the

1356 P-0016 Tape 771 Transcript, UGA-OTP-0259-0094; P-0059 Tape 771 Transcript, UGA-OTP-0258-0782- R01. 1357 P-0016: T-32 , p. 67, line 20 – p. 75, line 13; P-0059: T-37 , p. 26, line 16 – p. 29, line 17. 1358 P-0016: T-32 , p. 67, line 25 – p. 68, line 21 (Okot Odoge); P-0059: T-37 , p. 26, line 19 – p. 27, line 17 (Labalpiny). 1359 UGA-OTP-0051-0020.

No. ICC-02/04-01/15 268/1077 4 February 2021

1360 exchange of, amongst other items, 136 ISO tapes to this same staff member. The

recording is of men speaking over the radio in a non-working language.

1361 The Prosecution gave this tape to Alan French for audio enhancement. Alan French

1362 then enhanced the audio and labelled the copy ‘AF/69’. An enhanced audio disc

(UGA-OTP-0239-0106) marked with Alan French’s company name, the code ‘AF/69’

and the ERN of Tape 781 is in evidence. The length of the recorded content on Tape 781

1363 corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 781’s

contents.

1364 Tape 781 is undated. The ISO logbook entries for Tape 781 cover, in relevant part,

1365 20 March 2004. The corresponding UPDF logbooks do not contain the ISO tape

1366 numbers, but it is clear from their entries on 20 March 2004 that the UPDF heard the

same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0016 and P-0059. Each reviewed a draft transcript prepared by the

1367 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, P-0016 and P-0059 recognised

certain voices, gave the same overall summary of the recorded conversation, explained

certain transcript annotations and confirmed that their annotated transcript matched what

1360 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1361 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1362 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 17). 1363 Compare UGA-OTP-0051-0020 (track 1: 47:22 re-encoded; track 2: 47:27) with UGA-OTP-0239-0106 (track 1: 32:02; track 2: 32:14). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P- 0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1364 UGA-OTP-0051-0020, at 0020-21. 1365 UGA-OTP-0061-0002, at 0165-67. 1366 UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4293-97; UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7415-16 (while this logbook does not include an entry on 19 March 2004 at 13:00 hours, which corresponds to the start of Tape 781, it is clear from the entries for 20 and 21 March 2004 that the same overall conversation was recorded). There are no police logbook entries on these dates. 1367 P-0016 Tape 781 Transcript, UGA-OTP-0265-0402, at 0407-9, 0411-20; P-0059 Tape 781 Transcript, UGA- OTP-0266-0260, at 0265-79.

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1368 was played. The summaries describe part of the same conversations recorded in the

logbooks. The voices consistently recognised were those of Dominic Ongwen, a signaller,

1369 Joseph Kony and Raska Lukwiya.

As to the signaller in the conversation, P-0059 identified him as Lukwiya’s signaller in

1370 his annotated transcript. But, during his testimony, P-0059 only referred to the

signaller as ‘Two Victor’ and could not recognise the voice. 1371 P-0016 testified to being

1372 unsure whether this signaller worked for Lukwiya or Charles Tabuley. The evidence

is unclear, and the Chamber cannot conclude the identity of this signaller’s commander

with certainty.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0106 is an enhanced

audio copy of Tape 781; (ii) Tape 781 – as enhanced – contains a recording of Dominic

Ongwen, Raska Lukwiya, Joseph Kony, a signaller and others speaking over the radio

on 20 March 2004; and, (iii) at least for all portions where the reviewing witnesses had a

consistent understanding, the corresponding annotated transcripts accurately reflect the

speakers and words spoken.

k. 30 April 2004 – Tape 808 (enhanced: UGA-OTP-0235-0038)

The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘808/G ’. 3RD 1373 Its e-court metadata indicates that Timothy Kanyogonya

provided this tape to a Prosecution staff member on 15 February 2005. The only pre-

registration form related to Timothy Kanyogonya on this date is one memorialising the

1374 exchange of, amongst other items, 136 ISO tapes to this same staff member. P-0059

1368 P-0016: T-33 , p. 8, line 22 – p. 16, line 17; P-0059: T-38 , p. 5, line 17 – p. 8, line 14. 1369 P-0059 did not testify to hearing Raska Lukwiya, but he was not played the part of the tape where P-0016 clearly heard Raska Lukwiya speaking. Compare P-0016: T-33 , p. 12, line 9 – p. 13, line 4 (recording played until 15:29), with P-0059: T-38 , p. 5, line 17 – p. 8, line 14 (recording played until 12:03). P-0059’s annotated transcript also indicates Lukwiya (‘LOK’) as a speaker just after timestamp 12:03. P-0059 Tape 781 Transcript, UGA-OTP- 0266-0260, at 0275. 1370 P-0059 Tape 781 Transcript, UGA-OTP-0266-0260, at 0265; P-0059: T-38 , p. 7, lines 14-20. 1371 P-0059: T-38 , p. 5, line 17 – p. 6, line 20. 1372 P-0016: T-33 , p. 11, lines 14-20, p. 14, line 20 – p. 15, line 11. 1373 UGA-OTP-0051-0074. 1374 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30.

No. ICC-02/04-01/15 270/1077 4 February 2021

1375

recognised his handwriting on the tape label. The recording is of men speaking over

the radio in a non-working language.

1376

The Prosecution gave this tape to Alan French for audio enhancement. Alan French then enhanced the audio and labelled the copy ‘AF/23’.

1377

An enhanced audio disc

(UGA-OTP-0235-0038) marked with Alan French’s company name, the code ‘AF/23’

and the ERN of Tape 808 is in evidence. The length of the recorded content on Tape 808

1378

corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 808’s

contents.

1379

Tape 808 is undated. The ISO logbook entries for Tape 808 indicate a date of 30 April

1380

2004 The corresponding UPDF and police logbooks do not contain the ISO tape

1381

numbers, but it is clear from their entries of 30 April 2004 that these agencies heard

the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003, P-0016, P-0059 and P-0440. Each reviewed a draft transcript

prepared by the Prosecution, identifying speakers and annotating amendments where

1382

necessary.

1375 P-0059: T-36 , p. 38, line 25 – p. 39, line 12. 1376 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 20. 1377 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 21; Enhanced Copies Schedule, UGA-OTP-0261- 0347 (line 13; duplicate ERN UGA-OTP-0235-0055). 1378 Compare UGA-OTP-0051-0074 (track 1: 47:20 re-encoded; track 2:47:25) with UGA-OTP-0235-0038 (track 1: 31:35; track 2: 31:34). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P- 0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1379 UGA-OTP-0051-0074, 0074-75. 1380 UGA-OTP-0061-0206, at 0267-70. The date ‘30/04/2004’ can be seen just before the cited entry of the same date (at p. 0266) and the date ‘1/5/2004’ can be seen just after the cited entry associated with the sequentially following tape number (at p, 0271). 1381 th UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3003-05 (the entry with date ‘30 April 2004’ starts at 3002, but the summary for the communication at 11:00 hours can be found at 3003); UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7480-81; UPDF Logbook (Sudan), UGA-OTP-0242-7194, at 7244-46 (the entry with date ‘Friday 30 th Apr 2004’ starts at 7243, but the summary for the communication at 11:00 hours can be found at 7244-45); Police Logbook, UGA-OTP-0037-0002, at 0144-46 (describing conversations from this date). 1382 P-0003 Tape 808 Transcript, UGA-OTP-0248-0263-R01, 0300-04, 0315-24; P-0016 Tape 808 Transcript, UGA-OTP-0259-0065; P-0059 Tape 808 Transcript, UGA-OTP-0248-0462-R01, at 0499-501, 0513-22; P-0440 Tape 808 Transcript, UGA-OTP-0262-0298-R01, at 0336-42, 0352-62.

No. ICC-02/04-01/15 271/1077 4 February 2021

Upon being played part of the enhanced audio in court, all four witnesses recognised certain voices, gave the same overall summary of the recorded conversation, explained certain transcript annotations and confirmed that their annotated transcript matched what 1383 was played. The summaries describe part of the same conversations recorded in the logbooks. The voices consistently recognised were those of Dominic Ongwen, Ocen, Joseph Kony, Vincent Otti and Labalpiny. It is also noted that the Defence played 20 seconds of this tape to Patrick Lumumba Nyero, but only for the limited purpose of asking whether the witness heard a particular person’s call sign and any instructions 1384 given to or from this call sign.

P-0003 and P-0016 further recognised the voice of Labongo (first name Ocen or Ocan) 1385 when summarising this recording while testifying. These witnesses also attributed 1386 certain lines of their annotated transcripts to him. P-0059 did not mention Labongo when summarising this recording in court. His annotated transcript attributed these same lines to an ‘LAB’, but P-0059 is not consistent in whether this is a reference to Labongo 1387 or Labalpiny. P-0440 appears to have identified yet another speaker in his annotated transcript of this recording, but when testifying was not played the part of the recording 1388 where other witnesses heard Labongo. The Chamber is satisfied on the basis of the corroborating testimony of P-0003 and P-0016 that Labongo also speaks on this tape, noting further that neither party appears to contest that this is the case. But these discrepancies do suggest that this portion of the recording may be particularly difficult to follow, even for those with lots of experience in recognising voices on LRA radio communications.

From the above, the Chamber concludes that: (i) UGA-OTP-0235-0038 is an enhanced audio copy of Tape 808; (ii) Tape 808 – as enhanced – contains a recording of Dominic Ongwen, Ocen, Joseph Kony, Labongo (first name Ocen or Ocan), Vincent Otti,

1383 P-0003: T-43 , p. 18, line 1 – p. 31, line 2; T-45 , p. 50, line 14 – p. 52, line 16; P-0016: T-32 , p. 42, line 4 – p. 64, line 9; P-0059: T-37 , p. 2, line 23 – p. 13, line 5; T-39 , p. 25, line 23 – p. 27, line 23; P-0440: T-40 , p. 21, line 17 – p. 27, line 24; T-41 , p. 28, lines 12-25. 1384 P-0125: T-136 , p. 27, line 20 – p. 30, line 8. 1385 P-0003: T-43 , p. 18, line 7 – p. 19, line 18 (appearing to distinguish an ‘Ocen’, also called ‘Madilu’, with ‘Ocen Labongo’); P-0016: T-32 , p. 42, line 21 – p. 43, line 3. 1386 P-0003 Tape 808 Transcript, UGA-OTP-0248-0263-R01, at 0302; P-0016 Tape 808 Transcript, UGA-OTP- 0259-0065, at 0068. 1387 P-0059 Tape 808 Transcript, UGA-OTP-0248-0462-R01, at 0501; Compare P-0059: T-37 , p. 21, line 22 – p. 22, line 3 with P-0059: T-39 : p. 23, lines 4-11. 1388 P-0440 Tape 808 Transcript, UGA-OTP-0262-0298-R01, at 0338-41 (indicating ‘KWO’ as the speaker of these lines); P-0440: T-40 , p. 21, line 17 – p. 22, line 21 (timestamp of recording ends at 07:40).

No. ICC-02/04-01/15 272/1077 4 February 2021

Labalpiny and others speaking over the radio on 30 April 2004; and, (iii) at least for all

portions where the reviewing witnesses had a consistent understanding, the

corresponding annotated transcripts accurately reflect the speakers and words spoken.

l. 1 May 2004 – Tape UGA-OTP-0039-0006 (enhanced: UGA- OTP-0235-0015)

The Chamber recognised the formal submission of the audio contents of an un-numbered

cassette labelled only with a date and an ICC ERN (UGA-OTP-0039-0006). Its e-court

metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff

member on 14 December 2004. The only pre-registration form related to Timothy

Kanyogonya on this date is one memorialising the exchange of, amongst other items, 113

1389 intercept tapes to this same staff member. The recording is of men speaking over the

radio in a non-working language.

1390 The Prosecution gave this tape to Alan French for audio enhancement. Alan French

then enhanced the audio and labelled the copy ‘AF/3’. 1391 An enhanced audio disc (UGA-

OTP-0235-0015) marked with Alan French’s company name, the code ‘AF/3’ and the

ERN of the original tape is in evidence. The length of the recorded content on Tape UGA-

1392 OTP-0039-0006 corresponds to the length of the audio tracks in this enhanced audio.

The general impression of the enhanced audio’s contents is consistent with that of Tape

1393 UGA-OTP-0039-0006’s contents.

1389 Pre-Registration Form 00311, UGA-OTP-0244-0920-R01, at 0929; P-0038 Second Statement, UGA-OTP- 0244-0912-R01, at para. 29. 1390 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 20. 1391 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 21; Enhanced Copies Schedule, UGA-OTP-0261- 0347 (line 2; duplicate ERN UGA-OTP-0235-0055). 1392 Compare UGA-OTP-0039-0006 (track 1: 31:55; track 2: 31:58) with UGA-OTP-0235-0015 (track 1: 31:36; track 2: 31:34). The small discrepancy in track times is due almost entirely to there being unrecorded sections in approximately the first five seconds and last 10 seconds on the original tape’s two tracks. The enhanced audio tracks do not have these small gaps. 1393 The Chamber notes the Defence argument that, having been played excerpts of UGA-OTP-0039-0006 in Court, Alan French would have noted pauses and a possible edit in the recording caused at the source of the recording ( see Defence Closing Brief , para. 387). However, it is clear from Alan French’s testimony that he referred to the possibility of there being pauses or clicks in the relevant excerpts, while at the same time insisting that further investigation in a laboratory setting would be necessary to make any further determinations ( see , in particular, T-218 , p. 42, lines 12-13, p. 43, line 6 – p. 44, line 2, p. 46, line 8-23, p. 48, lines 8-10, p. 49, lines 2- 5), and that he also referred to possible causes of a technical nature ( see T-218 , p. 41, lines 1-11, p. 46, line 24 – p. 47, line 22). Bearing this in mind, the Chamber considers that Alan French’s testimony does not undermine its findings as regards the nature and reliability of tape UGA-OTP-0039-0006 and its related enhanced recording.

No. ICC-02/04-01/15 273/1077 4 February 2021

Tape UGA-OTP-0039-0006’s label reads ‘01 May 2004 1830 HRS’. The ISO logbook

1394 entry for this time corresponds with parts of ISO Tapes 809 and 810. The

1395 corresponding UPDF logbook entries for this date and time show that the UPDF heard

the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0059 and P-0440. Each reviewed a draft transcript prepared by the

1396 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, both witnesses recognised certain

voices, gave the same overall summary of the recorded conversation, explained certain

transcript annotations and confirmed that their annotated transcript matched what was

1397 played. Francis Ocen was also played part of the enhanced audio and gave a similar

1398 overall summary of the recorded conversation. The summaries describe part of the

same conversations recorded in the logbooks. This is further indication that Tape UGA-

OTP-0039-0006 concerns a conversation from the evening of 1 May 2004. The voices

consistently recognised were those of Dominic Ongwen and Joseph Kony.

The Chamber notes that the Defence focused on certain audio discontinuities in the

1399 unenhanced Tape UGA-OTP-0039-0006 when examining Alan French. Alan French

suggested that these discontinuities could be caused by stopping the tape recorder and

1400 then starting it again.

To the extent the Defence suggests that these discontinuities may demonstrate that the

conversation was edited – such as by combining audio from different days to make it

1394 UGA-OTP-0061-0206, at 0272-74. Entries for ‘1/5/2004’ begin on page 0271, and the date ‘2/5/2004’ is clearly visible on the last page of the cited entry. 1395 UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3006-07; UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7481-83; UPDF Logbook (Sudan), UGA-OTP-0242-7194, at 7247-7250. There is a police logbook entry with a date of ‘1/5/2004’, but it does not record any conversations from 18:30 on that day. See Police Logbook, UGA-OTP-0037-0002, at 0144-46. 1396 P-0059 Tape UGA-OTP-0039-0006 Transcript, UGA-OTP-0258-0809-R01; P-0440 Tape UGA-OTP-0039- 0006 Transcript, UGA-OTP-0262-0205-R01. 1397 P-0059: T-37 , p. 47, line 16 – p. 50, line 21; P-0440: T-40 , p. 27, line 25 – p. 30, line 2. 1398 D-0100: T-234 , p. 50, line 13 – p. 52, line 20, p. 54, lines 16-20. 1399 See also Defence Closing Brief , paras 386-87. 1400 Defence Closing Brief , paras 249-52; P-0242: T-128 , p. 41, line 18 – p. 49, line 13.

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sound like a single conversation – the Chamber does not consider this to be a reasonable possibility.

First, and most importantly, none of the testifying witnesses commented about hearing anything abnormal in this recorded conversation.

Second, no evidence indicates that the Ugandan government ever deliberately altered the contents of this or any other intercept tape. To the contrary, such tapes were made as part 1401 of a broader procedure intended to ensure accurate, timely interception.

Third, it is equally unclear what motive the Ugandan government would have had in doing so. This tape was collected and stored for military operations, not the Prosecution’s 1402 investigation. Altering tapes would have risked the accuracy of the intelligence needed for the war effort. To the extent the Defence insinuates that alterations may have been made to overstate Dominic Ongwen’s personal culpability, it must also be noted that this tape was given to the Court before the Prosecution had filed any arrest warrant applications targeting particular LRA commanders.

Fourth, if new audio content was edited into this recording then there would be a large discrepancy between the recording and the logbook summaries contemporaneously prepared by the UPDF and ISO. But there is no such discrepancy.

Whatever issues there may have been in the recording of Tape UGA-OTP-0039-0006, the only reasonable conclusion inferable from the evidence is that this tape is a single conversation.

From the above, the Chamber concludes that: (i) UGA-OTP-0235-0015 is an enhanced audio copy of Tape UGA-OTP-0039-0006; (ii) Tape UGA-OTP-0039-0006 – as enhanced – contains a recording of Dominic Ongwen, Joseph Kony and others speaking over the radio on 1 May 2004; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

1401 See generally section IV.B.3.i.a above. 1402 See n. 1095 above.

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m. 18 May 2004 – Tape 822 (enhanced: UGA-OTP-0235-0043)

The Chamber recognised the formal submission of the audio contents of a cassette

identified as ‘822/G ’. 3RD 1403 Its e-court metadata indicates that Timothy Kanyogonya

provided this tape to a Prosecution staff member on 15 February 2005. The only pre-

registration form related to Timothy Kanyogonya on this date is one memorialising the

1404 exchange of, amongst other items, 136 ISO tapes to this same staff member. The

recording is of men speaking over the radio in a non-working language.

1405 The Prosecution gave this tape to Alan French for audio enhancement. Alan French

then enhanced the audio and labelled the copy ‘AF/27’. 1406 An enhanced audio disc

(UGA-OTP-0235-0043) marked with Alan French’s company name, the code ‘AF/27’

and the ERN of Tape 822 is in evidence. The length of the recorded content on Tape 822

1407 corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 822’s

contents.

Tape 822’s cassette label and paper indicate the date of ‘18/5/2004’. 1408 The ISO logbook

1409 entries for Tape 822 correspond to this same date. The corresponding UPDF and

police logbooks do not contain the ISO tape numbers, but it is clear from their entries of

1410 18 May 2004 that these agencies heard the same overall conversations recorded in the

ISO logbook.

1403 UGA-OTP-0052-0038. 1404 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1405 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 20. 1406 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 21; Enhanced Copies Schedule, UGA-OTP-0261- 0347 (line 15; duplicate ERN UGA-OTP-0235-0055). 1407 Compare UGA-OTP-0052-0038 (track 1: 48:05; track 2: 48:09) with UGA-OTP-0235-0043 (track 1: 31:28; track 2: 31:04). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P-0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. 1408 UGA-OTP-0052-0038, at 0038-39. 1409 UGA-OTP-0061-0206, at 0316-17. The date is a little faint, but the date just prior to the one in the cited entry is ‘17-05-2004’ (on p. 0314). 1410 UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3039-41; UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0250-54; UPDF Logbook (Sudan), UGA-OTP-0242-7194, at 7280-84; Police Logbook, UGA-OTP-0037-0002, at 0127-28.

No. ICC-02/04-01/15 276/1077 4 February 2021

In the course of its investigation, the Prosecution played part of an intercepted communication to P-0003, P-0016, P-0059 and P-0440. Each reviewed a draft transcript prepared by the Prosecution, identifying speakers and annotating amendments where 1411 necessary.

Upon being played part of the enhanced audio in court, all four witnesses recognised certain voices, gave the same overall summary of the recorded conversation, explained certain transcript annotations and confirmed that their annotated transcript matched what 1412 was played. The summaries describe part of the same conversations recorded in the logbooks. The voices consistently recognised were those of Joseph Kony and Vincent 1413 Otti. While he did not comment on any transcript, D-0032, to whom the recording was also played, gave a similar overall summary and equally recognised the voices of 1414 Joseph Kony and Vincent Otti.

From the above, the Chamber concludes that: (i) UGA-OTP-0235-0043 is an enhanced audio copy of Tape 822; (ii) Tape 822 – as enhanced – contains a recording of Joseph Kony, Vincent Otti and others speaking over the radio on 18 May 2004; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

n. 21-22 May 2004 – Tape 824 (enhanced: UGA-OTP-0239- 0123) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘824/G ’. 3RD 1415 Its e-court metadata indicates that P-0027 provided this tape to a Prosecution staff member on 23 February 2005. A pre-registration form related to P- 0027 on this date which memorialises the exchange of ‘12 [c]assette tapes containing

1411 P-0003 Tape 822 Transcript, UGA-OTP-0248-0198-R01, at 0201-06; P-0016 Tape 822 Transcript, UGA- OTP-0259-0044; P-0059 Tape 822 Transcript, UGA-OTP-0248-0436-R01, at 0437-46; P-0440 Tape 822 Transcript, UGA-OTP-0262-0399-R01, at 0400-09. 1412 P-0003: T-43 , p. 31, line 3 – p. 33, line 13; P-0016: T-33 , p. 6, line 16 – p. 8, line 17; P-0059: T-37 , p. 13, line 8 – p. 15, line 24; P-0440: T-40 , p. 40, line 1 – p. 42, line 10. 1413 P-0016 did not address who Joseph Kony was speaking to in his testimony, but identifies Vincent Otti as this person in his annotated transcript. P-0016 Tape 822 Transcript, UGA-OTP-0259-0044, at 0049-50 (‘OT’ and ‘JK’ appearing across the lines corresponding to timestamp played in court, namely from 04:03-06:31). 1414 D-0032: T-201-CONF, p. 26, line 7 – p. 29, line 13. 1415 UGA-OTP-0054-0046. See also UGA-OTP-0052-0044.

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relevant data’ to this same staff member mentions the ERN range including this tape. 1416

The recording is of men speaking over the radio in a non-working language.

1417 The Prosecution gave this tape to Alan French for audio enhancement. Alan French

then enhanced the audio and labelled the copy ‘AF/83’. 1418 An enhanced audio disc

(UGA-OTP-0239-0123) marked with Alan French’s company name, the code ‘AF/83’

and the ERN of Tape 824 is in evidence. The length of the recorded content on Tape 824

1419 corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 824’s

contents.

The cassette paper accompanying Tape 824 indicates that: ‘21/5/04 is partly on 824A

1420 and partly 824B. The text is from 1830-1915Hrs only’ and ‘824/G 3rd 22/5/04’. The

1421 ISO logbook entries for Tape 824 correspond to these same dates. The corresponding

UPDF logbooks do not contain the ISO tape numbers, but it is clear from their entries on

1422 these dates that the UPDF heard the same overall conversations recorded in the ISO

logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003, P-0016, P-0059 and P-0440. Each reviewed a draft transcript

prepared by the Prosecution, identifying speakers and annotating amendments where

1423 necessary.

Upon being played part of the enhanced audio in court, all four witnesses recognised

certain voices, gave the same overall summary of the recorded conversation, explained

1416 Pre-Registration Form 0155, UGA-OTP-0246-0039-R01, at 0039 (the ERN range including this tape appears on the bottom of the form); P-0027 Second Statement, UGA-OTP-0249-0444-R01, at para. 34(a). 1417 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1418 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 24). 1419 Compare UGA-OTP-0054-0046 (track 1: 31:57; track 2: 31:56) with UGA-OTP-0239-0123 (track 1: 31:50; track 2: 31:52). 1420 UGA-OTP-0054-0046, at 0047-48. 1421 UGA-OTP-0061-0206, at 0320-22. 1422 UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3045-47; UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0263-66; UPDF Logbook (Sudan), UGA-OTP-0242-7194, at 7291-92. There are police logbook entries discussing communications on 20 and 23 May 2004, but there appear to be no entries corresponding to these conversations. See Police Logbook, UGA-OTP-0037-0002, at 0121-26. 1423 P-0003 Tape 824 Transcript, UGA-OTP-0132-0093-R01, 0102-03; P-0016 Tape 824 Transcript, UGA-OTP- 0129-0419, 0428-29; P-0059 Tape 824 Transcript, UGA-OTP-0266-0084, at 0113-15, 0137-39; P-0440 Tape 824 Transcript, UGA-OTP-0262-0235-R01, at 0277, 0288-90.

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certain transcript annotations and confirmed that their annotated transcript matched what 1424 was played. The summaries describe part of the same conversations recorded in the

logbooks. The voices consistently recognised were those of Dominic Ongwen and 1425 Vincent Otti.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0123 is an enhanced

audio copy of Tape 824; (ii) Tape 824 – as enhanced – contains a recording of Dominic

Ongwen, Vincent Otti, and others speaking over the radio at some point in the period of

21-22 May 2004; and, (iii) at least for all portions where the reviewing witnesses had a

consistent understanding, the corresponding annotated transcripts accurately reflect the

speakers and words spoken.

o. 30-31 May 2004 – Tape 830 (enhanced: UGA-OTP-0239- 0112)

The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘830/G ’. 3RD 1426 Its e-court metadata indicates that Timothy Kanyogonya

provided this tape to a Prosecution staff member on 15 February 2005. The only pre-

registration form related to Timothy Kanyogonya on this date is one memorialising the

1427 exchange of, amongst other items, 136 ISO tapes to this same staff member. The

recording is of men speaking over the radio in a non-working language.

1428 The Prosecution gave this tape to Alan French for audio enhancement. Alan French then enhanced the audio and labelled the copy ‘AF/73’. 1429 An enhanced audio disc

(UGA-OTP-0239-0112) marked with Alan French’s company name, the code ‘AF/73’

and the ERN of Tape 830 is in evidence. The length of the recorded content on Tape 830

1424 P-0003: T-42 , p. 78, line 11 – p. 88, line 17; T-46 , p. 26, line 14 – p. 30, line 2; P-0016: T-32 , p. 75, line 14 – p. 77, line 17; T-35 , p. 29, line 18 – p. 33, line 13; P-0059: T-36 , p. 73, line 14 – p. 77, line 2; T-38 , p. 60, line 7 – p. 74, line 15; T-39 , p. 3, line 18 – p. 21, line 15; P-0440: T-40 , p. 30, line 3 – p. 36, line 13. 1425 The Chamber notes that while for a small part of the communication, P-0440 also identified Joseph Kony as speaking ( see P-0440: T-40 , p. 34, line 21 – p. 35, line 20), he equally recognised the voice of Vincent Otti in the exchange with Dominic Ongwen, as did the other witnesses. See P-0440: T-40 , p. 30, line 3 – p. 36, line 13. 1426 UGA-OTP-0052-0056. 1427 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1428 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 22. 1429 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 23; Enhanced Copies Schedule, UGA-OTP-0261- 0348 (line 19).

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1430 corresponds to the length of the audio tracks in this enhanced audio. The general

impression of the enhanced audio’s contents is consistent with that of Tape 830’s

contents.

Tape 830’s cassette label and paper indicate that the tape ‘covers 30/5/2004 partly and

31/5/04 partly’. 1431 The ISO logbook entries for Tape 830 correspond – a small part of

the tape seems to have been recorded at the end of 29 May 2004 with the remainder on

1432 the dates indicated on the cassette label. The corresponding UPDF and police

logbooks do not contain the ISO tape numbers, but it is clear from their entries of 29-31

1433 May 2004 that these agencies heard the same overall conversations recorded in the

ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003, P-0016, P-0059 and P-0440. Each reviewed a draft transcript

prepared by the Prosecution, identifying speakers and annotating amendments where

1434 necessary.

Upon being played part of the enhanced audio in court, all four witnesses recognised

certain voices, gave the same overall summary of the recorded conversation, explained

certain transcript annotations and confirmed that their annotated transcript matched what

1435 was played. The summaries describe part of the same conversations recorded in the

logbooks. Vincent Otti’s voice was consistently recognised, 1436 and all witnesses were

1430 Compare UGA-OTP-0052-0056 (track 1: 47:31; track 2: 47:34) with UGA-OTP-0239-0112 (track 1: 31:53; track 2: 32:57). The discrepancy in track times is due almost entirely to there being a long unrecorded section on the original tape’s two tracks. Alan French explains that such gaps are commonly seen when using a fast copier to transfer a 60 minute cassette onto a 90 minute one. P-0242: T-128 , p. 8, line 3 – p. 10, line 14; P-0242 Statement, UGA-OTP-0261-0333-R01, at paras 27-32, 60. Even accounting for this, there is still a gap of about 1 minute and 20 seconds for track 2. But this remaining discrepancy is explained by unrecorded sections at the beginning and end of the enhanced audio’s track 2 being significantly longer than those on the original. 1431 UGA-OTP-0052-0056, at 0056-57. 1432 ISO Logbook (Gulu), UGA-OTP-0061-0206, at 0341-42 (with the ‘29/05/2004’ date indicated on p. 0340); ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0003-06. 1433 UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3060-63; UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0301-07; Police Logbook, UGA-OTP-0037-0002, at 0104-07. 1434 P-0003 Tape 830 Transcript, UGA-OTP-0248-0143-R01, at 0179-82; P-0016 Tape 830 Transcript, UGA- OTP-0259-0116; P-0059 Tape 830 Transcript, UGA-OTP-0248-0381-R01, at 0417-19; P-0440 Tape 830 Transcript, UGA-OTP-0262-0425-R01, at 0438-45. 1435 P-0003: T-43 , p. 40, line 18 – p. 43, line 15; P-0016: T-33 , p. 3, line 2 – p. 6, line 15; P-0059: T-37 , p. 23, line 21 – p. 26, line 13; P-0440: T-40 , p. 42, line 11 – p. 44, line 13. 1436 P-0016 did not address who Joseph Kony was speaking to in his testimony, but identifies Vincent Otti as one of these persons in his annotated transcript. P-0016 Tape 830 Transcript, UGA-OTP-0259-0116, at 0118-23 (‘OT’

No. ICC-02/04-01/15 280/1077 4 February 2021

likewise consistent that he was speaking to either Joseph Kony or a signaller acting on Joseph Kony’s behalf.

From the above, the Chamber concludes that: (i) UGA-OTP-0239-0112 is an enhanced audio copy of Tape 830; (ii) Tape 830 – as enhanced – contains a recording of Joseph Kony (or a signaller acting on his behalf), Vincent Otti and others speaking over the radio at some point in the period of 30-31 May 2004; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

p. 9-10 June 2004 – Tape 837 (enhanced: UGA-OTP-0235- 0049)

The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘837’. 1437 Its e-court metadata indicates that Timothy Kanyogonya provided this tape to a Prosecution staff member on 15 February 2005. The only pre-registration form related to Timothy Kanyogonya on this date is one memorialising the exchange of, 1438 amongst other items, 136 ISO tapes to this same staff member. P-0059 further 1439 confirms that the ISO made Tape 837. The recording is of men speaking over the radio in a non-working language.

1440 The Prosecution gave this tape to Alan French for audio enhancement. Alan French 1441 then enhanced the audio and labelled the copy ‘AF/31’. An enhanced audio disc (UGA-OTP-0235-0049) marked with Alan French’s company name, the code ‘AF/31’ and the ERN of Tape 837 is in evidence. The length of the recorded content on Tape 837 1442 corresponds to the length of the audio tracks in this enhanced audio. The general

and ‘JK’ primary speakers appearing across the lines corresponding to timestamp played in court, namely from 12:25-15:47, starting at p. 0117). 1437 UGA-OTP-0053-0006. 1438 Pre-Registration Form 0153, UGA-OTP-0244-0920-R01, at 0930 (UGA-OTP-0045-0001); P-0038 Second Statement, UGA-OTP-0244-0912-R01, at para. 30. 1439 P-0059: T-36 , p. 39, line 13 – p. 40, line 2. 1440 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 20. 1441 P-0242 Statement, UGA-OTP-0261-0333-R01, at para. 21; Enhanced Copies Schedule, UGA-OTP-0261- 0347 (line 17; duplicate ERN UGA-OTP-0235-0055). 1442 Compare UGA-OTP-0053-0006 (track 1: 31:22; track 2: 31:17) with UGA-OTP-0235-0049 (track 1: 31:27; track 2: 31:26).

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impression of the enhanced audio’s contents is consistent with that of Tape 837’s

contents.

The label on Tape 837 and its cassette shell indicates ‘Tape 837 covers 9/6/04 to

10/6/04’.

1443

The ISO logbook entries for Tape 837 correspond – a small part of the tape

seems to have been recorded at the end of 8 June 2004, with the remainder on the dates

1444

indicated on the cassette label. The corresponding UPDF and police logbooks do not

1445

contain the ISO tape numbers, but it is clear from their entries of 8-10 June 2004 that

these agencies heard the same overall conversations recorded in the ISO logbook.

In the course of its investigation, the Prosecution played part of an intercepted

communication to P-0003, P-0016, P-0059 and P-0440. Each reviewed a draft transcript

prepared by the Prosecution, identifying speakers and annotating amendments where

1446

necessary.

Upon being played part of the enhanced audio in court, all four witnesses recognised

certain voices, gave the same overall summary of the recorded conversation, explained

certain transcript annotations and confirmed that their annotated transcript matched what

1447

was played. The summaries describe part of the same conversations recorded in the

logbooks. The voices consistently recognised were those of Dominic Ongwen, Vincent Otti, Raska Lukwiya, Labalpiny (Joseph Kony’s signaller) and Joseph Kony.

1448

1443 UGA-OTP-0053-0006, at 0006-07. 1444 UGA-OTP-0062-0002, at 0022-26. The date on p. 0022 is not visible, and the dates of the two 09:00 entries on p. 0023 are difficult to see, but ISO logbooks follow a pattern whereby entries are marked in chronological order. Looking before the relevant entries, the most recent visible date is the 09:00 entry for ‘7/6/2004’ on p. 0019. The next entries leading up to p. 0023 are at the following times: 11:00, 18:30, 09:00 (an entry for the next day, i.e. 8 June 2004) and 18:30. This means that the first 09:00 entry on p. 0023 is the entry for 9 June 2004, and the second is an entry for 10 June 2004. The date immediately after the relevant entries clearly reads ‘11/6/2004’ (p. 0026), confirming that the two dates on p. 0023 should be ‘9/6/2004’ and ‘10/6/2004’, respectively. 1445 UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3076-80; UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0324-26; Police Logbook, UGA-OTP-0037-0002, at 0099-101 (describing conversations from 9 and 10 June 2004). 1446 P-0003 Tape 837 Transcript, UGA-OTP-0248-0106-R01, at 0121-34; P-0016 Tape 837 Transcript, UGA- OTP-0259-0086; P-0059 Tape 837 Transcript, UGA-OTP-0248-0524-R01, at 0539-52; P-0440 Tape 837 Transcript, UGA-OTP-0262-0363-R01, at 0378-90. 1447 P-0003: T-43 , p. 33, line 14 – p. 40, line 17; T-45 , p. 61, line 17 – p. 64, line 14; P-0016: T-32 , p. 64, line 10 – p. 67, line 17; P-0059: T-37 , p. 15, line 25 – p. 23, line 18; P-0440: T-40 , p. 36, line 14 – p. 39, line 25. 1448 P-0440 did not testify to hearing Vincent Otti, but he did indicate him as one of the main speakers in the transcript annotated by him and related to the audio excerpt that he was played in court ( see UGA-OTP-0262- 0363-R01, at 0381-5 (approx. lines 399-497)). P-0016 did not testify to hearing Labalpiny or Joseph Kony, but was not played the portion of the tape where the other three witnesses heard them speaking. Compare P-0016: T-

No. ICC-02/04-01/15 282/1077 4 February 2021

From the above, the Chamber concludes that: (i) UGA-OTP-0235-0049 is an enhanced audio copy of Tape 837; (ii) Tape 837 – as enhanced – contains a recording of Dominic Ongwen, Vincent Otti, Raska Lukwiya, Labalpiny, Joseph Kony and others speaking over the radio at some point in the period of 8-10 June 2004; and, (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcripts accurately reflect the speakers and words spoken.

q. 31 July-1 August 2004 – Tape 876 (enhanced: UGA-OTP- 0258-0143) The Chamber recognised the formal submission of the audio contents of a cassette identified as ‘876’. 1449 Its e-court metadata indicates that P-0027 of the ISO provided this tape on 1 June 2015. A pre-registration form related to P-0027 on this date memorialises 1450 the exchange of, amongst other items, Tape 876 to the Prosecution. The recording is of men speaking over the radio in a non-working language.

The Prosecution gave this tape to Xavier Laroche and his colleague for audio 1451 enhancement. These persons then performed this enhancement and registered the 1452 enhanced digital copy. An enhanced audio file (UGA-OTP-0258-0143) with a cover page indicating the ERN of Tape 876’s side B is in evidence.

1453 Tape 876 has no date on its label. A second page of cassette paper reads ‘Tape No 03 th 1454 24 6-97’. This suggests the tape dates back to June 1997, but this is irreconcilable with the other evidence available. First, the reference to ‘Tape No 3’ suggests this 1997 date corresponds to an entirely different tape number than the one listed on the first page of the cassette paper (876). Second, as ISO tapes in the relevant time period were numbered sequentially, other tapes with numbers close to 876 – and which the Chamber has already dated above – suggest that Tape 876 must actually date sometime in mid-

32 , p. 64, line 10 – p. 67, line 17, with P-0003: T-43 , p. 37, line 20 – p. 40, line 17; P-0059: T-37 , p. 20, line 25 – p. 23, line 18; P-0440: T-40 , p. 38, line 17 – p. 39, line 25. 1449 UGA-OTP-0241-0257. 1450 Pre-Registration Form, UGA-OTP-0246-0039-R01, at 0054; P-0027 Second Statement, UGA-OTP-0249- 0444-R01, at para. 37(p). 1451 Inventory, UGA-OTP-0269-0044, at 0053; P-0256 Statement, UGA-OTP-0269-0015, at paras 22, 51. 1452 P-0256 Statement, UGA-OTP-0269-0015, at paras 37-39; Pre-Registration Form, UGA-OTP-0269-0101, at 0101 (item # 2). 1453 UGA-OTP-0241-0257, at 0257. 1454 UGA-OTP-0241-0257, at 0258.

No. ICC-02/04-01/15 283/1077 4 February 2021

2004 The ISO logbook entries for Tape 876 confirm this, as they are dated 31 July-1 1455 August 2004. The corresponding UPDF logbooks do not contain the ISO tape 1456 numbers, but it is clear from their entries on these same dates that the UPDF heard the same overall conversations recorded in the ISO logbook. Considering the above, the Chamber finds that the conversations recorded on Tape 873’s side B, and as reflected in the corresponding logbook entries, took place on 31 July-1 August 2004.

In the course of its investigation, the Prosecution played part of an intercepted communication to P-0016 and P-0059. They reviewed a draft transcript prepared by the 1457 Prosecution, identifying speakers and annotating amendments where necessary.

Upon being played part of the enhanced audio in court, P-0016 and P-0059 recognised certain voices, gave an overall summary of the recorded conversation, explained certain transcript annotations and confirmed that their annotated transcript matched what was 1458 played. The summary describes part of the same conversations recorded in the logbooks, providing further proof that Tape 876 concerns a conversation from mid-2004. The voices consistently recognised were those of Dominic Ongwen and Ocen (identified by P-0059 as a signaller of Abudema).

The Chamber notes a massive discrepancy between the length of the recorded content on the original audio’s side B (05:35) and the enhanced audio’s track 2 (33:17). This discrepancy makes it impossible to hear whether the original and enhanced audio tracks actually sound like each other throughout the tape. But both P-0059 and P-0016 seemed to hear the same conversation on the enhanced audio segment, and this conversation is reflected in the ISO logbook under Tape 876 (i.e. the number on the label of the original tape). The Defence also seems to consider the words said by Dominic Ongwen on this 1459 tape to be exculpatory, suggesting that it does not contest the provenance of this

1455 UGA-OTP-0062-0145, at 0150-54. The dates are hard to read, but the book itself is opened on 30 July 2004 (p. 0146), the date ’31 July’ appears just before the cited entry (p. 0149), and a faint ‘2 Aug 2004’ can be seen in the date just after the cited entry (p. 0156). 1456 st UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3166-68 (the date of ‘31 July 2004’ is visible on p. 3165); UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0427-29. There is a police logbook entry partially corresponding to these dates, but any LRA communications before 1830 on 1 August 2004 were not summarised. See Police Logbook, UGA-OTP-0037-0002, at 0044-45. 1457 P-0016 Tape 876 Transcript, UGA-OTP-0265-0481, at 0490; P-0059 Tape 876 Transcript, UGA-OTP-0266- 0146, at 0154-55. 1458 P-0016: T-33 , p. 24, line 20 – p. 32, line 5; P-0059: T-37 , p. 31, line 12 – p. 37, line 2; T-38 , p. 52, line 23 – p. 55, line 1. 1459 P-0059: T-38 , p. 54, line 9 – p. 55, line 1.

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particular enhanced audio. In these circumstances, the Chamber is satisfied that the parts of the enhanced audios reviewed and discussed by the witnesses are part of the original tapes.

From the above, the Chamber concludes that: (i) UGA-OTP-0258-0143 is an enhanced audio copy of Tape 876’s side B, at least for the part commented upon by the witnesses; (ii) Tape 876 – as enhanced – contains a recording of Dominic Ongwen, Ocen and others speaking over the radio at some point in the period of 31 July-1 August 2004; and (iii) at least for all portions where the reviewing witnesses had a consistent understanding, the corresponding annotated transcript accurately reflects the speakers and words spoken.

iii. Direction-finding evidence The evidence in the case includes a specific category of information produced by the UPDF in the course of its particular operation to determine the location of LRA commanders by intercepting and analysing their radio communications with special equipment. This information, which has been referred to during the trial as ‘directionfinding evidence’, is contained in several UPDF intelligence reports, some of which are 1460 specifically relied upon by the Defence in its closing brief.

In its pre-trial brief, the Prosecution averred that it would not rely on the direction-finding evidence since it was not satisfied as to the reliability of the process by which direction- 1461 finding information was obtained.

Also the Defence initially indicated that it intended to ‘challenge’ the direction-finding process and ‘explain the deficiencies in the UPDF techniques’. 1462

While the Prosecution then submitted the UPDF intelligence reports into evidence, it 1463 reiterated that it would not rely on the direction-finding information. Although the

1460 See 27 April 2004 Intelligence Report, UGA-OTP-0017-0130; 30 April 2004 Intelligence Report, UGA-OTP- 0017-0150; 1 May 2004 Intelligence Report, UGA-OTP-0017-0157; 18 May 2004 Intelligence Report, UGA- OTP-0017-0262; 9 June 2004 Intelligence Report, UGA-OTP-0017-0353. Prosecution’s Pre-Trial Brief 1461 , 6 September 2016, ICC-02/04-01/15-533 (hereinafter: ‘ Prosecution Pre-Trial Brief ’), para. 78. See also Prosecution’s second request for introduction of prior recorded testimony pursuant to rule 68(2)(b) of the Rules, 20 September 2016, ICC-02/04-01/15-538-Conf (public redacted version available: ICC-02/04-01/15-538-Red ), para. 29. 1462 Defence Response to Prosecution’s second Request pursuant to Rule 68(2)(b), 5 October 2016, ICC-02/04- 01/15-555-Conf (public redacted version available: ICC-02/04-01/15-555-Red2 ), para. 17. Prosecution’s formal submission of intercept evidence 1463 via the ‘bar table’ , 28 October 2016, ICC-02/04-01/15- 580, para. 43. See also Confidential Annex D, ICC-02/04-01/15-580-Conf-AnxD.

No. ICC-02/04-01/15 285/1077 4 February 2021

Defence generally opposed the submission of all intercept-related material by the

Prosecution, it did not, in this context, specify its position regarding the direction-finding

1464 data included in the UPDF intelligence reports.

In November 2016, prior to the commencement of the trial, the Chamber decided on

whether certain previously recorded testimonies, some of which partly discussed the

process for the collection of the UPDF direction-finding data and were intended to be

relied upon for other purposes by the Prosecution, could be introduced under Rule

68(2)(b) of the Statute. On the basis of the initial positions expressed by the parties, the

Chamber concluded that the unreliability of the UPDF direction-finding evidence was

not disputed between the parties, neither of which intended to rely on this material in the

1465 trial, and that the information concerning this process was therefore irrelevant to the

1466 case. However, because the Chamber found the conditions of Rule 68(2)(b) of the

Rules to be met, the statements were introduced in their entirety, including the parts in

which the witnesses refer to the direction-finding process. The witness statements

1467 1468 1469 1470 concerned were those of P-0029, P-0337, P-0384, and P-0404.

The Defence subsequently argued that its position on the direction-finding evidence had

1471 been misinterpreted and that it ‘provisionally’ considered the material reliable,

‘hop[ing] to be able to establish through questioning that the material was collected

correctly’. 1472 It sought reconsideration of the decision allowing the introduction of the

statements of P-0029, P-0337, P-0384 and P-0404, and submitted that ‘[i]f the

Prosecution wishe[d] to rely upon these witnesses, they should be called to testify viva

Defence Response to Prosecution’s Submission of Intercept Material 1464 See . See also Decision on Prosecution’s Submission of Intercept Material . 1465 First Decision on Prosecution Applications under Rule 68(2)(b) , para. 160. 1466 First Decision on Prosecution Applications under Rule 68(2)(b) , paras 183, 191. 1467 P-0029 First Statement, UGA-OTP-0027-0231-R01; P-0029 Second Statement, UGA-OTP-0267-0455. 1468 P-0337 First Statement, UGA-OTP-0256-0201-R01; P-0337 Second Statement, UGA-OTP-0267-0445-R01. 1469 P-0384 Statement, UGA-OTP-0260-0491-R01. The Chamber notes that while P-0384 seems to have been involved in ISO direction-finding activities, he did not provide any specific information in this regard. 1470 P-0404 Statement, UGA-OTP-0267-0470-R01. 1471 Defence Request for Re-Consideration of ‘Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony under Rule 68(2)(b) of the Rules’ with Regards to Four Individuals , 19 January 2017, ICC-02/04-01/15-659, para. 13. 1472 Defence Request for Re-Consideration of ‘Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony under Rule 68(2)(b) of the Rules’ with Regards to Four Individuals , 19 January 2017, ICC-02/04-01/15-659, para. 17.

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’. 1473 voce The Defence also specified ‘that in no way ha[d] it waived its rights to rely

upon the direction-finding material, raise questions in cross-examination with

interception-related witnesses, and present expert-testimony or expert-reports in the

Defence case or prior to any ruling upon the reliability of the direction-finding

1474 evidence’.

The Chamber then held that the new interpretation by the Defence of its previous

submissions was untenable, and that in fact the Defence had (legitimately) changed its

strategy. The Chamber further held that, in any case, the Defence could rely on the 1475

evidence of the four witnesses which had been introduced pursuant to Rule 68(2)(b) of

1476 the Rules, as well as attempt to obtain supplementary statements from the same

1477 witnesses or call its own witnesses with respect to the direction-finding operations.

Subsequently, in its closing brief, the Defence relied on material originating from

1478 direction-finding with a view to supporting its submissions that Dominic Ongwen

could not have been in the vicinity of attacks relevant to the charges at the time of their

1479 occurrence.

In consequence, the Prosecution reiterated in its closing statements that it did not rely on

1480 the direction-finding material and did not ask the Chamber to rely on it to convict

1481 Dominic Ongwen. The Prosecution submitted that there was not much evidence about

direction-finding and how precise or reliable it is, and even if reliable, it had

1482 limitations.

1473 Defence Request for Re-Consideration of ‘Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony under Rule 68(2)(b) of the Rules’ with Regards to Four Individuals , 19 January 2017, ICC-02/04-01/15-659, para. 20. 1474 Defence Request for Re-Consideration of ‘Decision on the Prosecution’s Applications for Introduction of Prior Recorded Testimony under Rule 68(2)(b) of the Rules’ with Regards to Four Individuals , 19 January 2017, ICC-02/04-01/15-659, para. 21. 1475 Decision on the Defence Request for Partial Reconsideration of the Decision under Rule 68(2)(b) of the Rules of Procedure and Evidence , 23 February 2017, ICC-02/04-01/15-711, para. 8. 1476 Decision on the Defence Request for Partial Reconsideration of the Decision under Rule 68(2)(b) of the Rules of Procedure and Evidence , 23 February 2017, ICC-02/04-01/15-711, para. 11. 1477 Decision on the Defence Request for Partial Reconsideration of the Decision under Rule 68(2)(b) of the Rules of Procedure and Evidence , 23 February 2017, ICC-02/04-01/15-711, para. 11. 1478 Defence Closing Brief , para. 347. 1479 Defence Closing Brief , paras 346-48, 351, 372-74, 396-98, 405-07, 409-10, 444-45. See also Defence Opening Statement: T-179 , p. 39, lines 12-22. 1480 Prosecution Closing Statement: T-256 , p. 72, lines 19-20. 1481 Prosecution Closing Statement: T-256 , p. 74, lines 13-14, p. 76, lines 23-24. 1482 Prosecution Closing Statement: T-256 , p. 74, lines 15-25.

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The Defence in turn restated its position on the direction-finding evidence in its own

1483

closing statements.

1484

According to the witness evidence before the Chamber, the UPDF direction-finding

1485

operation was set up in Gulu as of 1999 and further developed in 2003-2004. It

1486

developed incrementally until it became part of the UPDF strategy, with information

1487

gathered through direction-finding being used for UPDF operational planning and

1488

included in intelligence reports.

Further witness evidence indicates that while direction-finding – also called radio wave

1489

surveillance – and interception of radio communications formed separate

1490 1491

operations, they were both part of technical intelligence.

According to P-0337, the purpose of the direction-finding operation was to determine the

locations of certain LRA commanders at the time of their radio communications by

intercepting the transmissions and calculating the geographical coordinates of their

1492

whereabouts.

1493

Witnesses stated that the direction-finding operation was commanded by P-0337, who

1494

set up the operation in Gulu. He deployed staff to the field, collected the information

1483 Defence Closing Statement: T-258 , p. 37, lines 10-11, p. 38, lines 7-10. The Chamber notes in this regard that the Defence relied on a statement of P-0027 which, however, has not been submitted into evidence (UGA-D26- 0011-0508. See Defence Closing Statement: T-258 , p. 87, line 15 – p. 88, line 1). Therefore, the Chamber will not consider it further. 1484 The Chamber considered, most importantly, witnesses P-0029, P-0291, P-0337 and P-0404. 1485 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 55. 1486 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 54. 1487 P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 25. 1488 See para. 835 below. See also P-0029 Second Statement, UGA-OTP-0267-0455, at para. 67. 1489 P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 25. 1490 P-0029 First Statement, UGA-OTP-0027-0231-R01, at para. 64. 1491 P-0003: T-44-CONF, p. 23, line 18 – p. 24, line 1; T-44 , p. 29, lines 2-3. 1492 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 36, 40. See also P-0029 Second Statement, UGA-OTP-0267-0455, at para. 54; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 25; P-0003: T-46- CONF, p. 11, lines 15-25. 1493 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 58; P-0291 Statement, UGA-OTP-0246-0061-R01, at para. 55; P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 15. 1494 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 30, 35; P-0339: T-134 , p. 20, lines 22-24.

No. ICC-02/04-01/15 288/1077 4 February 2021

1495

and disseminated it to UPDF military commanders. P-0029 was P-0337’s direct

1496 1497

supervisor and ordered direction-finding equipment and trained the team.

P-0337 specified that in about 2003, he became the commanding officer of both static

interception team and direction-finding team when they were merged, although in

1498

practice nothing changed in terms of reporting. He also took administrative control

1499

over all UPDF interception operations in Northern Uganda.

1500

P-0404 stated that several direction-finding teams worked in different locations,

1501

including Soroti, Masindi and Nebbi. In addition, P-0337 explained that the staff

involved in the direction-finding operation trained on the job and improved the accuracy

1502

of their capabilities and speed of deployment over time.

P-0337 testified that in 2005, the direction-finding operation was disbanded because it

1503

became obsolete in light of technical failures and fewer LRA radio communications.

The witness evidence indicates that direction-finding staff worked in mobile teams of at

1504 1505

least three people with vehicles that carried the technical equipment. A minimum

1506

of two direction-finding staff were assigned to each vehicle. The teams deployed

every day, except if there was equipment failure, which it could take several days to

1507

fix.

1495 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 30; P-0404 Statement, UGA-OTP-0267-0470- R01, at para. 27. 1496 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 34; P-0337 Second Statement, UGA-OTP-0267- 0445-R01, at para. 15; P-0029 Second Statement, UGA-OTP-0267-0455, at para. 38. 1497 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 24. 1498 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 28; P-0337 Second Statement, UGA-OTP-0267- 0445-R01, at para. 15; P-0003: T-44-CONF, p. 35, lines 15-23. 1499 P-0337 Second Statement, UGA-OTP-0267-0445-R01, at paras 16-17. The Chamber notes in this context that P-0339 maintained that P-0337 was only engaged in direction-finding and did not assume any other role ( see P- 0339: T-134 , p. 21, lines 1-6). However, the Chamber is of the view that P-0339 may not have been aware of all organisational details, also bearing in mind that by that time he had left Gulu to intercept at other locations, and that indeed P-0337 is best placed to indicate which roles he assumed in the course of his career, and therefore does not consider this small discrepancy to cast doubt on P-0337’s statement regarding this aspect. 1500 P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 25. 1501 P-0404 Statement, UGA-OTP-0267-0470-R01, at para. 27. 1502 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 31. 1503 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 33. 1504 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 59. 1505 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 31, 37. 1506 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 51. 1507 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 32.

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P-0029 stated that the teams went into the field with their equipment to locate the

1508 strongest signal. P-0337 and P-0029 further specified that a minimum of two

intercepting teams with vehicles were needed to pinpoint the geographical coordinates of

1509 a transmitting LRA commander. Both witnesses also explained that the staff searched

1510 for the right frequency, ensured that both teams were listening to the same

1511 communication and that it was also the same LRA radio signal as the one being

1512 intercepted in Gulu. According to P-0029, one person recorded the geographic

1513 coordinates while the operation was ongoing.

P-0337 and P-0029 elaborated on the steps followed in the field: the mounted

1514 antennae identified the strongest signal from a certain direction relative to the north,

the ‘directional bearing’. 1515 The equipment automatically calculated the direction from

where the signal came and issued the bearings, also called line of sight or line of

1516 bearing. The geographical coordinates of the target (Northings and Eastings) were

1517 calculated by the command station computer in a third vehicle. Liaison officers

stationed in Gulu coordinated between the direction-finding vehicles and the vehicle

1518 carrying the command station computer.

The evidence shows that the accuracy of readings gained through direction-finding

depended on a number of factors. P-0337 explained how distance from the target affected

the accuracy of the results. He stated that most accurate results were obtained if the

direction-finding vehicles were less than 30 kilometres from the target, receiving the so-

called ‘ground wave’. 1519 According to P-0337, direction-finding was entirely impossible

in the so-called ‘skip zone’, at a distance between 30 and 100 kilometres from the target,

due to the fact that the interception devices were receiving the signal as it bounced off

1508 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 58. 1509 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 37; P-0029 Second Statement, UGA-OTP-0267- 0455, at para. 57. 1510 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 39. 1511 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 39; P-0029 Second Statement, UGA-OTP-0267- 0455, at para. 60. 1512 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 59. 1513 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 62. 1514 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 38. 1515 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 56. 1516 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 40. 1517 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 42-43. 1518 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 45. 1519 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 52.

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1520 the sky, at a too steep angle. Beyond 100 kilometres from the target, direction-finding

became possible again, but results were inaccurate, with a range of accuracy around five

1521 kilometres. Even further away from the target, at over 150 kilometres, the results

1522 became more accurate again, with a range of accuracy of about three kilometres.

Significantly, P-0337 stated that the coordinates were transferred as intelligence in the

same way, irrespective of whether they were intercepted from under 30 or over 100

1523 kilometres away from the target.

P-0029 testified that in general the results came with a range of accuracy of around three

kilometres, and also depended on variables such as signal strength, number of readings

1524 and terrain. Further, P-0337 clarified that the direction-finding vehicles and the target

1525 had to form a triangle with the target at the apex. P-0337 stated that if the triangle was

1526 not well formed, the coordinates could not be accurately determined and were

1527 discarded. Even taking these factors into account, P-0029 also testified that the UPDF

direction-finding operation was not able to produce reliable direction-finding intelligence

1528 until after 2004.

P-0337 stated that the direction-finding team was told in advance which LRA commander

1529 to target on any given day or week. Further according to P-0337, the bearings of each

commander were recorded as they transmitted – because usually one person

communicated at a time, there was little chance of making a mistake with the

1530 coordinates.

P-0337 also testified that after an intercepted radio communication, at the end of the

communication time, the liaison officers liaised with the UPDF interception team in Gulu

1520 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 53. 1521 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 54. 1522 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 55. 1523 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 62. 1524 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 67. See also P-0337 First Statement, UGA-OTP- 0256-0201-R01, at para. 55. The Chamber notes that even from this it is unclear whether this was the case throughout, or whether the range of accuracy of three kilometres was an improved result which started being achieved after 2004. 1525 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 41. 1526 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 43. 1527 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 43. 1528 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 55. 1529 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 56. 1530 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 43.

No. ICC-02/04-01/15 291/1077 4 February 2021

1531 which could identify the real names of the targets. Witness evidence indicates that the

data collected by all direction-finding teams was collated and communicated up the

1532 UPDF chain of command. Both P-0337 and P-0029 testified that any notes taken by

1533 the teams in the field were destroyed for security reasons.

According to witnesses, UPDF intelligence reports included the directional data gathered

1534 by the direction-finding operation, in Eastings and Northings, as well as locations. P-

1535 0337 made clear that these reports were not produced by the direction-finding team.

P-0029 testified that the synopses of LRA communications included in the reports were

based on merging the direction-finding intelligence and information received from the

1536 interception team.

P-0337 testified that the direction-finding liaison officers as well as he himself had access

to the UPDF and ISO interception logbooks; P-0337 consulted them on a daily basis to

1537 understand what the LRA commanders were talking about.

Bearing in mind the above, and as further outlined below, the Chamber finds that the

reliability of information gathered through direction-finding cannot sufficiently be

established.

First, the Chamber notes that according to P-0029, the UPDF direction-finding operation

– which was disbanded in mid-2005 1538 inter alia due to technical failures – was not able

1539 to produce reliable intelligence until after 2004. This evidence is significant for two

reasons: first, because it comes from the person who supervised the operation and was

therefore well suited to give an assessment of its reliability, and, second, because the

1531 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 46-47. 1532 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 48-49; P-0029 Second Statement, UGA-OTP- 0267-0455, at para. 62. 1533 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 44; P-0029 Second Statement, UGA-OTP-0267- 0455, at para. 63. 1534 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 67; P-0337 First Statement, UGA-OTP-0256- 0201-R01, at para. 60. 1535 P-0337 First Statement, UGA-OTP-0256-0201-R01, at paras 58-59. 1536 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 73. Additional considerations regarding the probative value of the content of these reports can be found in the section discussing the interception operation, see paras 673-676 above. 1537 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 27; P-0337 Second Statement, UGA-OTP-0267- 0445-R01, at para. 44. 1538 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 33. 1539 P-0029 Second Statement, UGA-OTP-0267-0455, at para. 55.

No. ICC-02/04-01/15 292/1077 4 February 2021

reliability of direction-finding evidence is a live issue with respect to events which occurred in 2004, in particular the attacks on the Odek, Lukodi and Abok IDP camps.

Second, the evidence indicates that, irrespective of how far developed the operation or how skilled the participating staff, direction-finding could only produce accurate results under specific circumstances, as to which it is unclear whether they were present at the 1540 relevant time. By design, precision was limited as the results came with a range of 1541 accuracy, sometimes up to five kilometres. It appears that coordinates were transmitted in the same format, irrespective of whether they were gathered at less than 1542 30 kilometres or more than 100 kilometres from the target. The UPDF intelligence reports including direction-finding results do not specify if a given result was collected at under 30 kilometres distance to the target or any other distance. Yet as explained above, distance from the target was a crucial factor for accuracy.

In fact, it is equally unclear in which way it was determined whether a specific target could be found at a certain distance. While the evidence suggests that the directionfinding teams would attempt to first set up at over 100 kilometres from the target, and then, having determined the coordinates, approach to under 30 kilometres for more 1543 accurate results before the next communication, there is no information in which way the direction-finding teams knew that a specific target was indeed at over 100 kilometres away from their own location to begin with.

While P-0337 claimed that the location of a target would be accurate if the teams set up 1544 well and recorded the coordinates accurately, and that positive feedback was received 1545 about the accuracy of the coordinates, he did not refer to any process of assessment or verification of the accuracy of the coordinates.

Third, additional questions arise when analysing the direction-finding data included in the intelligence reports. P-0337 stated that, based on his experience, a forward slash separating two Eastings and Northings in the reports meant either (i) that the two sets

1540 See paras 831-832 above. 1541 See paras 831-832 above. 1542 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 62. 1543 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 56. 1544 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 65. 1545 P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 64.

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give a general range of transmitting location, or (ii) a target communicated at one time

1546

from a particular location and then moved to another for a later communication. Yet

nowhere in the intelligence reports is it specified which of these two options it would be,

either generally or with respect to particular entries. The Chamber is therefore unable to

determine whether the data in fact provides general areas in which a target could have

been or if a target may have moved. It is also impossible to tell whether the double entries

were intended to take into account the range of accuracy, or whether the range of

accuracy would have to be considered with each entry. This is of particular note insofar

as of all reports analysed, only a minority provides merely one reading

1547

(Easting/Northing) for each LRA commander listed. Indeed, some reports include not

1548

only two Eastings and Northings for a specific commander, but three or even four.

While the format of the reports slightly changed over time, the Chamber notes that some

reports show readings indeed listed by different communication times, and yet still

include several readings for an individual within what appears to be the same

1549

communication time. Even if not explicitly separated into different communication

1546 See P-0337 First Statement, UGA-OTP-0256-0201-R01, at para. 63. 1547 Of the 271 reports analysed, merely 36 (approx. 13%) include not more than one reading for each LRA commander reported (the number of 271 takes into account that the total of 285 intelligence reports submitted to the Chamber includes some duplicates, but at the same time also reports for two or more dates within one ERN; it does not discount those intelligence reports which do not include any direction-finding data at all (either because the first page is blank, or because there is no page for direction-finding data included)). 1548 See , e.g. , 19 December 2003 Intelligence Report, UGA-OTP-0025-0756, at 0756; 23 December 2003 Intelligence Report, UGA-OTP-0025-0772, at 0772; 21 January 2004 Intelligence Report, UGA-OTP-0012-0065, at 0065; 23 January 2004 Intelligence Report, UGA-OTP-0012-0057, at 0057; 24 January 2004 Intelligence Report, UGA-OTP-0012-0052, at 0052; 25 January 2004 Intelligence Report, UGA-OTP-0012-0049, at 0049; 2 February 2004 Intelligence Report, UGA-OTP-0016-0009, at 0009; 12 February 2004 Intelligence Report, UGA- OTP-0016-0053, at 0053; 13 February 2004 Intelligence Report, UGA-OTP-0016-0059, at 0059; 17 February 2004 Intelligence Report, UGA-OTP-0016-0078, at 0078; 20 February 2004 Intelligence Report, UGA-OTP- 0016-0092, at 0092; 23 February 2004 Intelligence Report, UGA-OTP-0016-0107, at 0107; 11 March 2004 Intelligence Report, UGA-OTP-0016-0196, at 0196; 27 March 2004 Intelligence Report, UGA-OTP-0016-0298, at 0298; 15 April 2004 Intelligence Report, UGA-OTP-0017-0065, at 0065; 17 April 2004 Intelligence Report, UGA-OTP-0017-0074, at 0074; 18 April 2004 Intelligence Report, UGA-OTP-0017-0078, at 0078; 21 April 2004 Intelligence Report, UGA-OTP-0017-0093, at 0093. 1549 See , e.g. , 6 November 2003 Intelligence Report, UGA-OTP-0025-0523, at 0523; 8 November 2003 Intelligence Report, UGA-OTP-0025-0514, at 0514; 9 November 2003 Intelligence Report, UGA-OTP-0025- 0509, at 0509; 14 November 2003 Intelligence Report, UGA-OTP-0025-0481, at 0481; 17 November 2003 Intelligence Report, UGA-OTP-0025-0460, at 0460; 8 March 2004 Intelligence Report, UGA-OTP-0016-0181, at 0181; 9 March 2004 Intelligence Report, UGA-OTP-0016-0185, at 0185; 10 March 2004 Intelligence Report, UGA-OTP-0016-0191, at 0191; 16 March 2004 Intelligence Report, UGA-OTP-0016-0228, at 0228; 23 March 2004 Intelligence Report, UGA-OTP-0016-0263, at 0263; 24 March 2004 Intelligence Report, UGA-OTP-0016- 0270, at 0270; 25 March 2004 Intelligence Report, UGA-OTP-0016-0278, at 0278. Similarly, in the 25 May 2004 Intelligence Report, UGA-OTP-0016-0515, at 0515, even though not separated into different communication times, two commanders (Kony and Anum) are listed twice, with an indication of ‘same as above’ for the readings of the second mentioning, which would suggest that the entries are meant for different communication times.

No. ICC-02/04-01/15 294/1077 4 February 2021

1550

times, other intelligence reports mention commanders more than once with several

1551 1552 1553

readings in one, several, or all of the listings. This indicates that the different

readings included for a single commander within the same communication time indeed

related to broader areas of transmission. It could be argued that for a number of reports

which include several readings for the first mention of a commander, but not the

1554

second, that these were instances in which the direction-finding team first established

1550 The Chamber notes that some reports include remarks which relate a second entry for a specific commander in the report to an earlier entry, thereby suggesting that the different listings do indeed relate to different communication times ( see , for example, 15 March 2004 Intelligence Report, UGA-OTP-0016-0218, at 0218; 23 April 2004 Intelligence Report, UGA-OTP-0017-0101, at 0101; 24 April 2004 Intelligence Report, UGA-OTP- 0017-0108, at 0108; 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141; 30 April 2004 Intelligence Report, UGA-OTP-0017-0150, at 0150; 3 May 2004 Intelligence Report, UGA-OTP-0017-0170, at 0170; 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573; 13 May 2004 Intelligence Report, UGA- OTP-0016-0544, at 0544; 13 May 2004 Intelligence Report, UGA-OTP-0017-0232, at 0232; 25 May 2004 Intelligence Report, UGA-OTP-0016-0515, at 0515; 11 June 2004 Intelligence Report, UGA-OTP-0016-0428, at 0428; 12 June 2004 Intelligence Report, UGA-OTP-0016-0424, at 0424; 15 June 2004 Intelligence Report, UGA- OTP-0016-0412, at 0412; 26 June 2004 Intelligence Report, UGA-OTP-0016-0384, at 0384; 26 June 2004 Intelligence Report, UGA-OTP-0016-0384, at 0384 (a duplicate of this report is at UGA-OTP-0017-0411); 28 June 2004 Intelligence Report, UGA-OTP-0017-0423, at 0423; 4 July 2004 Intelligence Report, UGA-OTP-0016- 0366, at 0366). However, this is not the case for all intelligence reports. 1551 See, e.g ., 2 February 2004 Intelligence Report, UGA-OTP-0016-0009, at 0009; 7 February 2004 Intelligence Report, UGA-OTP-0016-0033, at 0033; 8 February 2004 Intelligence Report, UGA-OTP-0016-0038, at 0038; 20 February 2004 Intelligence Report, UGA-OTP-0016-0092, at 0092; 21 February 2004 Intelligence Report, UGA- OTP-0016-0097, at 0097; 26 February 2004 Intelligence Report, UGA-OTP-0016-0125, at 0125; 7 March 2004 Intelligence Report, UGA-OTP-0016-0176, at 0176; 1 April 2004 Intelligence Report, UGA-OTP-0017-0010, at 0010-11; 24 April 2004 Intelligence Report, UGA-OTP-0017-0108, at 0108; 28 April 2004 Intelligence Report, UGA-OTP-0017-0134, at 0134; 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141-42; 30 April 2004 Intelligence Report, UGA-OTP-0017-0150, at 0150; 1 May 2004 Intelligence Report, UGA-OTP-0017- 0157, at 0157; 3 May 2004 Intelligence Report, UGA-OTP-0017-0170, at 0170; 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573; 13 May 2004 Intelligence Report, UGA-OTP-0016-0544, at 0544 (a duplicate of this report is at UGA-OTP-0017-0232); 22 May 2004 Intelligence Report, UGA-OTP-0016-0538, at 0538; 23 May 2004 Intelligence Report, UGA-OTP-0016-0528, at 0528-29; 11 June 2004 Intelligence Report, UGA-OTP- 0016-0428, at 0428; 12 June 2004 Intelligence Report, UGA-OTP-0016-0424, at 0424; 15 June 2004 Intelligence Report, UGA-OTP-0016-0412, at 0412; 16 June 2004 Intelligence Report, UGA-OTP-0016-0405, at 0405; 26 June 2004 Intelligence Report, UGA-OTP-0016-0384, at 0384 (a duplicate of this report is at UGA-OTP-0017- 0411); 28 June 2004 Intelligence Report, UGA-OTP-0017-0423, at 0423; 1 July 2004 Intelligence Report, UGA- OTP-0016-0371, at 0371-72 (a partial duplicate of this report is at UGA-OTP-0017-0433). 1552 See, e.g ., 24 April 2004 Intelligence Report, UGA-OTP-0017-0108, at 0108; 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141-42. 1553 See, e.g ., 25 January 2004 Intelligence Report, UGA-OTP-0012-0049, at 0049; 2 February 2004 Intelligence Report, UGA-OTP-0016-0009, at 0009; 12 February 2004 Intelligence Report, UGA-OTP-0016-0053, at 0053; 24 February 2004 Intelligence Report, UGA-OTP-0016-0113, at 0113; 6 March 2004 Intelligence Report, UGA- OTP-0016-0170, at 0170; 7 March 2004 Intelligence Report, UGA-OTP-0016-0176, at 0176; 11 March 2004 Intelligence Report, UGA-OTP-0016-0196, at 0196; 15 March 2004 Intelligence Report, UGA-OTP-0016-0218, at 0218; 23 April 2004 Intelligence Report, UGA-OTP-0017-0101, at 0101; 24 April 2004 Intelligence Report, UGA-OTP-0017-0108, at 0108; 25 April 2004 Intelligence Report, UGA-OTP-0017-0119, at 0119; 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573; 25 May 2004 Intelligence Report, UGA-OTP-0016-0515, at 0515; 1 July 2004 Intelligence Report, UGA-OTP-0016-0371, at 0371 (a partial duplicate of this report is at UGA- OTP-0017-0433); 4 July 2004 Intelligence Report, UGA-OTP-0016-0366, at 0366. 1554 See, e.g ., 9 November 2003 Intelligence Report, UGA-OTP-0025-0509, at 0509-10; 20 February 2004 Intelligence Report, UGA-OTP-0016-0092, at 0092; 21 February 2004 Intelligence Report, UGA-OTP-0016- 0097, at 0097; 26 February 2004 Intelligence Report, UGA-OTP-0016-0125, at 0125; 8 March 2004 Intelligence Report, UGA-OTP-0016-0181, at 0181; 1 April 2004 Intelligence Report, UGA-OTP-0017-0010, at 0010-11; 29

No. ICC-02/04-01/15 295/1077 4 February 2021

a range of transmission and then was able to further narrow down the location in the

1555

course of the day. However, the Chamber notes that numerous reports either include

1556

several readings for each mentioning of the commander in question, or include several

1557

readings only the second or third time a commander is mentioned in a specific report.

Bearing in mind the discussion above that it is also not clear whether several readings

linked to one commander may refer to general ranges of transmission or a commander

having moved – which further raises questions when considering that a commander being

mentioned several times in a report may already account for a commander having been

targeted by the direction-finding team several times during the day –, this leads to the

conclusion that the multiple entries cannot simply be explained as part of a process of

obtaining more accurate readings.

In this context it is also of note that some reports at times indicate the same location for

the second mention of a commander or also a different commander while, however, at

April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141-42; 1 May 2004 Intelligence Report, UGA-OTP- 0017-0157, at 0157; 3 May 2004 Intelligence Report, UGA-OTP-0017-0170, at 0170; 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573; 13 May 2004 Intelligence Report, UGA-OTP-0016-0544, at 0544 (a duplicate of this report is at UGA-OTP-0017-0232); 22 May 2004 Intelligence Report, UGA-OTP-0016-0538, at 0538; 23 May 2004 Intelligence Report, UGA-OTP-0016-0528, at 0528-29; 12 June 2004 Intelligence Report, UGA-OTP-0016-0424, at 0424; 15 June 2004 Intelligence Report, UGA-OTP-0016-0412, at 0412; 16 June 2004 Intelligence Report, UGA-OTP-0016-0405, at 0405; 1 July 2004 Intelligence Report, UGA-OTP-0016-0371, at 0371-72 (a partial duplicate of this report is at UGA-OTP-0017-0433). 1555 See para. 840 above, suggesting that a team would attempt to set up at a further distance in the beginning and then approach closer to the target before the next communication time. 1556 See, e.g ., 14 November 2003 Intelligence Report, UGA-OTP-0025-0481, at 0481; 25 January 2004 Intelligence Report, UGA-OTP-0012-0049, at 0049; 12 February 2004 Intelligence Report, UGA-OTP-0016- 0053, at 0053; 24 February 2004 Intelligence Report, UGA-OTP-0016-0113, at 0113; 6 March 2004 Intelligence Report, UGA-OTP-0016-0170, at 0170; 7 March 2004 Intelligence Report, UGA-OTP-0016-0176, at 0176; 8 March 2004 Intelligence Report, UGA-OTP-0016-0181, at 0181; 9 March 2004 Intelligence Report, UGA-OTP- 0016-0185, at 0185; 10 March 2004 Intelligence Report, UGA-OTP-0016-0191, at 0191; 11 March 2004 Intelligence Report, UGA-OTP-0016-0196, at 0196; 15 March 2004 Intelligence Report, UGA-OTP-0016-0218, at 0218; 16 March 2004 Intelligence Report, UGA-OTP-0016-0228, at 0228; 23 March 2004 Intelligence Report, UGA-OTP-0016-0263, at 0263; 24 March 2004 Intelligence Report, UGA-OTP-0016-0270, at 0270; 23 April 2004 Intelligence Report, UGA-OTP-0017-0101, at 0101; 24 April 2004 Intelligence Report, UGA-OTP-0017- 0108, at 0108; 3 May 2004 Intelligence Report, UGA-OTP-0017-0170, at 0170; 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573; 25 May 2004 Intelligence Report, UGA-OTP-0016-0515, at 0515; 1 July 2004 Intelligence Report, UGA-OTP-0016-0371, at 0371 (a partial duplicate of this report is at UGA-OTP-0017-0433); 4 July 2004 Intelligence Report, UGA-OTP-0016-0366, at 0366. 1557 See, e.g ., 7 February 2004 Intelligence Report, UGA-OTP-0016-0033, at 0033; 7 March 2004 Intelligence Report, UGA-OTP-0016-0176, at 0176; 25 March 2004 Intelligence Report, UGA-OTP-0016-0278, at 0278; 24 April 2004 Intelligence Report, UGA-OTP-0017-0108, at 0108; 28 April 2004 Intelligence Report, UGA-OTP- 0017-0134, at 0134; 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141; 30 April 2004 Intelligence Report, UGA-OTP-0017-0150, at 0150; 11 June 2004 Intelligence Report, UGA-OTP-0016-0428, at 0428; 26 June 2004 Intelligence Report, UGA-OTP-0016-0384, at 0384 (a duplicate of this report is at UGA- OTP-0017-0411); 28 June 2004 Intelligence Report, UGA-OTP-0017-0423, at 0423.

No. ICC-02/04-01/15 296/1077 4 February 2021

1558

the same time providing slightly different geographical coordinates. This again

supports the assumption that the direction-finding data was reported as accurate and

relating to a specific location even in cases in which the location was in fact not a pinpoint

determination, but rather, as discussed above, concerned a range of transmission. The

Chamber is of the view that this is an indication that direction-finding data in general

related to broader areas of transmission, and that it is therefore not possible to conclude

from the reported data on the accurate location of a specific target (meaning, LRA

commander), at any given communication time. This is of note also insofar as some

intelligence reports provide several readings for a particular listing, yet at the same time

1559

giving pinpoint locations going down to mere hundreds of metres.

1558 See, e.g ., 29 August 2003 Intelligence Report, UGA-OTP-0025-0619, at 0619 (Tabuley is listed at 1°57'18"N and 33°31'11"E, with location ‘Amatikile, Katini county’, while Okulu is listed at 1°55'00"N and 33°33'07"E, with the same location); 8 March 2004 Intelligence Report, UGA-OTP-0016-0181, at 0181 (Odiambo is listed for 09:00 hours, at 2°35'54"/2°36'02"N and 33°17'55"/33°20'56"E, with location ‘3 Km E, of Patongo-Corner Adwari rd, 21Km N of Orum’, and listed for 16:00 hours, at 2°37'11"/2°32'10"N and 33°17'25"/33°18'52"E, with the same location reference); 12 March 2004 Intelligence Report, UGA-OTP-0016-0202, at 0202 (Otti is listed at 4°02'49"/4°03'51"N and 32°38'47"/32°39'47"E, with location ‘Katire Valley’, while Kony is listed at 4°05'32"N and 32°39'49"E, also with location ‘Katire Valley’); 13 April 2004 Intelligence Report, UGA-OTP-0017-0057, at 0057 (Kony is listed at 4°32'37"/4°30'39"N and 31°45'40"/31°45'04"E, with location ‘Lubanga Tek, 5.5 Km S of Jabelin, 9Km E of R. Kit’) compare with 14 April 2004 Intelligence Report, UGA-OTP-0017-0061, at 0061 (Kony is listed at 4°31'51"/4°32'26"N and 31°45'33"/31°46'26"E, with location ‘Lubanga Tek area, 5.5 Km S of Jabelin, 9 Km E of R. Kit as per loc of 130404’); 24 April 2004 Intelligence Report, UGA-OTP-0017-0108, at 0108-09 (Angola is first listed at 2°49'59"/2°48'35"N and 32°39'26"/32°40'37"E, with location ‘At the confluence of R. Chome and Aswa in Lalogi/Atanga boundary. 13 Km Nort of Acet IDP’, and then at 2°48'35"/2°50'16"N and 32°40'37"/32°37'10"E, with indication ‘Same loc as previous at 130 Hrs.’; Abudema appears in a second listing at 2°56'52"/2°53'02"N and 32°59'52"/33°02'38"E, with location ’01 Km North of Pader IDP’, while Lamola is listed at 2°57'14"/2°51'19"N and 33°01'33"/33°04'29"E, with indication ‘Same location with Abudema’); 4 July 2004 Intelligence Report, UGA-OTP-0016-0366, at 0366 (Raska is listed first at 4°07'20"/4°08'27"N and 32°26'59"/32°26'26"E, with location ‘9.8 Km North of Palabek, 18.4 Km East of Magwi, 6.3 Km NW [illegible], 9.5 Km NW of Ngong Peak’, and then at 4°05'11"/4°05'16"/4°07'25"N and 32°27'17"/32°28'47"/32°27'43"E, with indication ‘Same as loc at 1100Hrs’). The Chamber also notes that when reports draw relations between different locations, yet the locations are reported with several different readings per specific commanders, it remains unclear in which way these relations are determined ( see, e.g ., 4 May 2004 Intelligence Report, UGA-OTP-0016-0573, at 0573 (Abudema is first listed at 3°02'23"/3°00'56"N and 33°09'59"/33°09'00"E, with location ‘Along the Eastern bank of R. Kimiya, 13.2 Km Se of Latanya IDP, 15 Km SW of Wol IDP (per yester evening 030405)’, and then listed a second time at 3°00'02"/3°00'20"N and 33°09'00"/33°10'14"E, with location ‘2.7 Km S of his loc. as of 040504 at 0900 hrs’). From these coordinates it appears that the distance between the reported locations could be anywhere between approximately 1.6 and 4.7 kilometres, depending on whether the first or the second readings are related, or the first with the second readings and vice versa . A similar example can be found in 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141. 1559 See, e.g ., 10 March 2004 Intelligence Report, UGA-OTP-0016-0191, at 0191 (for Odiambo, two readings related to specific distances seem to be approximately four kilometres apart; for Dominic, two readings related to specific distances from a trading centre seem to be approximately 10 kilometres apart); 11 March 2004 Intelligence Report, UGA-OTP-0016-0196, at 0196 (for Raska, two readings related to specific distances seem to be approximately eight kilometres apart); 15 March 2004 Intelligence Report, UGA-OTP-0016-0218, at 0218 (for Ochan Bunia, two readings related to specific distances from a trading centre and other landmarks seem to be approximately five and a half kilometres apart); 16 March 2004 Intelligence Report, UGA-OTP-0016-0228, at 0228 (for Ochan Bunia, two readings related to specific distances from a town seem to be approximately ten

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Fourth, even for reports which provide a single reading for a specific commander, and

this reading, to the extent it can be determined, at least approximately corresponds to the

1560

location indicated in the report, the above leaves doubts as to whether the commander

in question was indeed present at that specific location, or in its wider area. The Chamber

recalls in particular in this regard that the direction-finding data were transmitted in the

1561

same format, even if they were in fact collected with varying ranges of accuracy, and

that, in addition, the intelligence reports were not compiled by the direction-finding team

kilometres apart); 4 June 2004 Intelligence Report, UGA-OTP-0016-0462, at 0462 (for Otti, two readings related to specific distances from a number of IDP camps seem to be approximately 10 kilometres apart). 1560 See, e.g ., 10 March 2004 Intelligence Report, UGA-OTP-0016-0191, at 0191 (for c/s Bogi); 19 March 2004 Intelligence Report, UGA-OTP-0016-0239, at 0239 (for Raska); 24 March 2004 Intelligence Report, UGA-OTP- 0016-0270, at 0270 (for Abudema); 25 March 2004 Intelligence Report, UGA-OTP-0016-0278, at 0278 (for Lagulu); 26 March 2004 Intelligence Report, UGA-OTP-0016-0287, at 0287 (for Lapanyikwara); 29 March 2004 Intelligence Report, UGA-OTP-0016-0308, at 0308 (for Lapanyikwara); 10 April 2004 Intelligence Report, UGA- OTP-0017-0042, at 0042 (for Angola) (a partial duplicate of this report is at UGA-OTP-0016-0588); 11 April 2004 Intelligence Report, UGA-OTP-0017-0047, at 0047 (for Abudema); 14 April 2004 Intelligence Report, UGA-OTP-0017-0061, at 0061 (for Angola); 22 April 2004 Intelligence Report, UGA-OTP-0017-0097, at 0097 (for Abudema); 26 April 2004 Intelligence Report, UGA-OTP-0017-0124, at 0124 (for Abudema, Odiambo); 28 April 2004 Intelligence Report, UGA-OTP-0017-0134, at 0134 (for Kapere, Abudema); 29 April 2004 Intelligence Report, UGA-OTP-0017-0141, at 0141 (for Kapere, Otti, Lagulu); 9 May 2004 Intelligence Report, UGA-OTP-0017-0207, at 0207 (for Abudema, Angola, Onen Kamdule); 11 May 2004 Intelligence Report, UGA- OTP-0016-0556, at 0556 (for Otti); 12 May 2004 Intelligence Report, UGA-OTP-0016-0548, at 0548 (for Otti); 14 May 2004 Intelligence Report, UGA-OTP-0017-0236, at 0236 (for Otti); 16 May 2004 Intelligence Report, UGA-OTP-0017-0250, at 0250 (for Wokorach, Abudema); 21 May 2004 Intelligence Report, UGA-OTP-0017- 0268, at 0268 (for Lakati, Kapere); 22 May 2004 Intelligence Report, UGA-OTP-0016-0538, at 0538 (for Kapere); 24 May 2004 Intelligence Report, UGA-OTP-0016-0522, at 0522 (for Dominic, Abudema) (a duplicate of this report is at UGA-OTP-0017-0284); 25 May 2004 Intelligence Report, UGA-OTP-0016-0515, at 0515 (for st Otti (1 ), Angola); 26 May 2004 Intelligence Report, UGA-OTP-0016-0509, at 0509 (for Wokorach, Angola); 28 May 2004 Intelligence Report, UGA-OTP-0016-0500, at 0500 (for RT-Otti) (a duplicate of this report is at UGA- OTP-0017-0309); 29 May 2004 Intelligence Report, UGA-OTP-0016-0493, at 0493 (for Kapere, Otti); 31 May 2004 Intelligence Report, UGA-OTP-0016-0481, at 0481 (for Labong, Dominic); 3 June 2004 Intelligence Report, UGA-OTP-0016-0466, at 0466 (for Labong) (a duplicate of this report is at UGA-OTP-0017-0340); 8 June 2004 Intelligence Report, UGA-OTP-0016-0445, at 0445 (for Abudema, Kapere); 9 June 2004 Intelligence Report, UGA-OTP-0016-0440, at 0440 (for Dominic) (a duplicate of this report is at UGA-OTP-0017-0353); 11 June 2004 Intelligence Report, UGA-OTP-0016-0428, at 0428 (for Bunia, Angola, Otti); 12 June 2004 Intelligence Report, UGA-OTP-0016-0424, at 0424 (for Abudema) (a duplicate of this report is at UGA-OTP-0017-0370); 13 June 2004 Intelligence Report, UGA-OTP-0016-0420, at 0420 (for Otti); 15 June 2004 Intelligence Report, UGA- OTP-0016-0412, at 0412 (for Dominic, Kamdule); 16 June 2004 Intelligence Report, UGA-OTP-0016-0405, at 0405 (for Kapere, Dominic); 20 June 2004 Intelligence Report, UGA-OTP-0016-0395, at 0395 (for Bunia); 26 June 2004 Intelligence Report, UGA-OTP-0016-0384, at 0384 (for c/s Labongo Lworo) (a duplicate of this report is at UGA-OTP-0017-0411); 27 June 2004 Intelligence Report, UGA-OTP-0017-0416, at 0416 (for Abudema, Angola); 28 June 2004 Intelligence Report, UGA-OTP-0017-0423, at 0423 (for Angola); 30 June 2004 Intelligence Report, UGA-OTP-0016-0378, at 0378 (for Otti, Abudema); 1 July 2004 Intelligence Report, UGA- OTP-0016-0371, at 0371-72 (for Otti, Abudema, Angola); 4 July 2004 Intelligence Report, UGA-OTP-0016- 0366, at 0366 (for Otti); 28 July 2004 Intelligence Report, UGA-OTP-0016-0326, at 0326 (for Labong) (a duplicate of this report is at UGA-OTP-0017-0444); 29 July 2004 Intelligence Report, UGA-OTP-0016-0319, at st 0319 (for Kapere 1 listing, Abudema); 31 July 2004 Intelligence Report, UGA-OTP-0016-0314, at 0314 (for Otti, Kapere, Kamdule, Abudema); 1 August 2004 Intelligence Report, UGA-OTP-0017-0453, at 0453 (for Kapere, Ocan Bunia, Labong, Otti); 9 August 2004 Intelligence Report, UGA-OTP-0017-0469, at 0469 (for Labong); 14 August 2004 Intelligence Report, UGA-OTP-0017-0487, at 0487 (for Dominic, Abudema); 21 August 2004 Intelligence Report, UGA-OTP-0017-0499, at 0499 (for Labong). 1561 See paras 831-832 above.

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1562 which only transmitted the geographical data. It is not clear from the evidence if the UPDF staff compiling the intelligence reports merely mapped the geographical coordinates as received, without taking into account that they may involve ranges of 1563 accuracy and areas of transmission.

All of the above are important issues affecting the reliability of information gathered through direction-finding and of its derivative location data in this particular case. Of special note is the fact that, according to the evidence and information available to the Chamber, it is not possible to ultimately determine the range of accuracy and that this range of accuracy may well have been in the range of several kilometres, which renders the direction-finding evidence inconclusive for purposes of the Chamber in the sense that it merely represents another estimate. Further, it must be recalled that according to the supervisor of the operation, it was not possible to produce reliable direction-finding 1564 results until after 2004 and that, at the same time, the commanding officer of that 1565 operation stated that it was disbanded in mid-2005 inter alia due to technical failures. In light of the information before the Chamber, the Chamber does not consider that the reliability of direction-finding evidence has been established to the extent that it would be possible to rely on it, in particular as concerns the whereabouts of Dominic Ongwen at the time of the attacks on the Odek, Lukodi and Abok IDP camps. For this reason, the Chamber does not rely on direction-finding evidence.

iv. Other documentary evidence Apart from the intercept and direction-finding evidence, the parties and the legal representatives of the participating victims have submitted other documentary evidence including, inter alia , photographic material, police investigation reports, forensic reports, official documentation and documents obtained from the LRA. The Chamber has

1562 See paras 834-835 above. 1563 This is supported by the fact that for some reports which provide several readings for a specific commander, any indicated specific location appears to approximately correspond with one of the readings, but not necessarily with the other ( see, e.g ., 16 March 2004 Intelligence Report, UGA-OTP-0016-0228, at 0228 (for Lagulu); 4 June 2004 Intelligence Report, UGA-OTP-0016-0462, at 0462 (for Bunia) (a duplicate of this report is at UGA-OTP- 0017-0346); 14 June 2004 Intelligence Report, UGA-OTP-0016-0416, at 0416 (for Dominic); 1 July 2004 Intelligence Report, UGA-OTP-0016-0371, at 0371 (for Labong) (a partial duplicate of this report is at UGA- OTP-0017-0433)). This suggests that the UPDF staff mapping the coordinates in these instances simply took one of the readings to find a map location, without assessing the possible area of transmission implicated in the reporting of several readings. 1564 See paras 832, 838 above. 1565 See paras 827, 838 above.

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reviewed this evidence, and considered the arguments of the parties made at the time of submission, the use of the evidence in the courtroom, and any further arguments made during closing submissions. The Chamber’s reasoning for the use or non-use of a particular item, as the case may be, is given below in pertinent context in the evidentiary analysis as appropriate.

The Defence argued generally against the reliability of documentary evidence obtained with the assistance of the Government of Uganda. In its closing brief, the Defence submitted that ‘[t]he Court should treat with caution and avoid overly relying on evidence procured from, or with the assistance of investigations carried out by the GoU, one of the 1566 protagonists in the conflict of which the case is a direct consequence’.

Whereas the Defence is factually correct in asserting that the Prosecution obtained large amounts of evidence through requests for assistance made to the Government of Uganda, the Chamber sees no basis to hold that the reliability of the evidence thus obtained is generally impaired for this reason. It is natural that a State may possess evidence in relation to crimes allegedly committed on its territory, and it is the duty of the Prosecution to seek access to such evidence through the appropriate statutory avenues. The Defence does not allege any specific irregularity, and its argument is based exclusively on the mere fact that the Government of Uganda is the LRA’s adversary in the conflict. No irregularity has also become apparent during the trial. As such, the suggestion is speculative and therefore rejected. The Chamber does not see any general impediment to the use of the evidence obtained through the assistance of the Government of Uganda, and, in principle, makes use of such evidence. As stated, the Chamber provides below further specific reasoning, as appropriate, for the use or non-use of a particular item.

4 Agreed Facts

As provided in Rule 69 of the Rules, the Prosecution and Defence submitted 23 agreed facts related to Dominic Ongwen’s background, the parentage of certain children, geographical facts, the meaning of certain acronyms and the occurrence of an attack on 1567 1568 Pajule. These agreed facts are proven for the purposes of the judgment.

1566 Defence Closing Brief , para. 9. See also Defence Closing Statement: T-258 , p. 13, lines 14-22. 1567 Agreed Facts . 1568 Decision on Joint Agreed Facts Submission , 19 July 2016, ICC-02/04-01/15-500.

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C. Evidentiary analysis for findings of fact

The Chamber sets out below its assessment of the evidence submitted and discussed before it at trial with respect to each of the findings of fact identified above in Section III (‘Findings of fact’). In particular, the Chamber details below the evidence which supports each of those findings of fact, and explains how any such finding was reached in light of the available evidence – and the arguments made at trial – both in support of and against that particular finding, as appropriate. This also includes instances when findings on the facts and circumstances described in the charges are reached by way of inference – thus, through facts which are of ‘intermediate’ or ‘subsidiary’ nature – on the basis of circumstantial evidence. At the same time, the Chamber clarifies that while it structures its discussion below delineating its analysis of evidence with respect to each individual finding of fact, evidence may be relevant to more than one factual finding even if not necessarily reiterated in each instance, and all evidence submitted and discussed before it at trial has been considered holistically.

1 LRA as an organisation in 2002-2005

The analysis of the evidence begins with a discussion of the basic features of the LRA as an organisation. Because the charges focus on the Sinia brigade, this brigade is analysed in more detail in section IV.C.2, further below.

The Chamber obtained relevant information in relation to the issues at hand from different witnesses, and mostly from insider witnesses. The value of their evidence, however, differs. In particular, the Chamber considers that certain witnesses are better placed than others to provide reliable information on the issues under consideration. This primarily includes insiders who held a relatively high position in the LRA or spent a long time in the organisation, such as P-0070 and P-0205, . These witnesses were in a position to give reliable descriptions of the structure of the LRA and of the interactions within the LRA leadership. In addition, the Chamber relies on the evidence of lower ranking insiders, or of insiders who spent a comparatively shorter period of time within the organisation, when it relates to facts or events these witnesses directly observed. The records of intercepted radio communications are also of significance in order to establish certain dynamics within the LRA at the relevant time.

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At the time relevant for the charges, i.e. from 1 July 2002 to 31 December 2005, the LRA had a hierarchical structure. Joseph Kony was the highest authority in the LRA. During the time period relevant for the charges, his deputy was Vincent Otti, who led a headquarters unit called Control Altar. Further, the LRA was divided into four brigades: Sinia, Stockree, Gilva and Trinkle. From 2003, there was also a division called Jogo. The brigades were divided into battalions and further into companies or ‘coys’. Each of these

1569

units was led by a commander.

It is agreed between the parties that Joseph Kony was ‘in charge’ of the LRA between 1

1570 July 2002 and 31 December 2005. Witnesses with knowledge of the internal structure

of the LRA refer to his position as ‘overall leader’, 1571 1572 ‘overall commander’, ‘chief

commander’, 1573 1574 1575 ‘chairman’, or to him being ‘like the president of the LRA’.

Insider witnesses testified that Vincent Otti was Joseph Kony’s deputy at the relevant

1576 time. P-0070 further explained that Vincent Otti was in Control Altar, which was ‘the

high command’ with several departments, of which P-0070 could recall the support

department, a ‘Yard’ department, an elders group, a religious affairs group, a medical

1577 group and the group of signallers. P-0144 defined ‘Yard’ as ‘a place to hold

ceremonies, prayers’. 1578 P-0070 further stated that Nyeko Tolbert Yadin was an army

commander in Control Altar, and that Raska Lukwiya was a brigade general, also in

1579 Control Altar.

Other witnesses provided essentially compatible definitions of Control Altar as the

‘overall group’ 1580 1581 and headquarters of the LRA. P-0209 defined Control Altar as ‘the

1582 big group where most senior commanders are’. P-0231 corroborated the fact that

1569 Para. 123 above. For ease of reference, the findings of fact serving as headings in this evidentiary analysis include a footnote directing to the corresponding paragraph of the findings of fact in section III above. 1570 Agreed Fact, A8. 1571 P-0054: T-94 , p. 6, lines 21-23; P-0209: T-161 , p. 20, line 22 – p. 21, line 2; P-0379: T-58 , p. 45, lines 4-8. 1572 P-0070: T-105 , p. 56, lines 6-11; P-0440: T-39 , p. 75, lines 5-8. 1573 P-0264: T-65 , p. 73, lines 3-7. 1574 D-0074: T-187 , p. 40, lines 22-24. 1575 P-0264: T-65 , p. 73, lines 3-7. See also P-0070: T-105 , p. 56, lines 12-15. 1576 P-0070: T-105 , p. 56, line 20 – p. 57, line 2; P-0085: T-158 , p. 27, lines 9-11; P-0138: T-120 , p. 13, lines 18- 21; P-0205: T-48 , p. 20, lines 4-6; P-0209: T-161 , p. 21, lines 5-7. The Chamber notes that evidence indicates that at some point after the period relevant to the charges, Vincent Otti was killed on the orders of Joseph Kony, see para. 2613 below. 1577 P-0070: T-105 , p. 57, line 12 – p. 59, line 3. 1578 P-0144: T-92 , p. 19, lines 8-16. See also P-0054: T-94 , p. 4, lines 12-15; P-0231: T-123 , p. 31, lines 5-9; P- 0264: T-66 , p. 31, lines 11-15. 1579 P-0070: T-105 , p. 59, lines 11-21. 1580 P-0440: T-39 , p. 68, lines 1-4. 1581 P-0138: T-120 , p. 13, lines 22-23; P-0144: T-91-CONF, p. 15, lines 7-8. 1582 P-0209: T-160 , p. 9, lines 7-12.

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during the period relevant to the charges Control Altar was within the domain of Vincent

1583

Otti.

The principal unit in the LRA hierarchy was the brigade, of which there were four,

1584

referred to as Sinia, Stockree, Gilva and Trinkle. It is noted that according to P-0070

and Ray Apire, Trinkle brigade was responsible for providing security to Control Altar

1585

and Joseph Kony.

Brigades were headed by a brigade commander, and there was also a brigade second-in-

1586

command (2IC). According to an intercepted radio message of 20 September 2002,

the brigade commander of Sinia at the time was Buk Abudema, of Stockree Charles

1587

Tabuley, of Gilva Ocan Bunia, and of Trinkle Okot Odhiambo. Changes to the

individuals who held the position of brigade commander in the context of Sinia brigade

1588

are discussed in more detail further below.

P-0070 testified that initially, each brigade had two commanders of equal rank, but that

1589

with the creation of the division, this was reduced to one. At another point in his

testimony, he indicated that Stockree brigade had switched from two commanders to one

1590

already at the time of Iron Fist. Charles Lokwiya testified that at the time when he

1591

went to Soroti in 2003, Stockree brigade had ‘Tabuley as a commander, and Okullu’.

1583 P-0231: T-122 , p. 46, lines 16-17. 1584 P-0070: T-105 , p. 57, lines 3-6, p. 60, lines 6-12; P-0085: T-158 , p. 20, lines 13-18. The four-brigade structure is also revealed in some intercepted radio messages, such as in the list of radio call signs recorded in the ISO logbook on 4 December 2002 (ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0083-84. The Chamber notes that the date for this specific entry in the logbook is not legible. However, the Chamber considers it likely that this conversation was intercepted on 4 December 2002. This is based on the fact that the entries preceding the relevant excerpt are dated 3 December 2002, with tape number 593A and B, recorded at 08:00 and 11:00 (at 0079, 0081), while the following entry still under tape reference 593B is recorded on 5 December 2002 at 09:00 (at 0085). Indeed, the entry with the same tape and time reference, as well as reproducing the same content, in the ISO Logbook (Kampala), UGA-OTP-0066-0201, at 0261, is recorded under the date of 4 December 2002.), and in the schedule of commanders transmitted on 20 September 2002 (ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0166-67). 1585 P-0070: T-105 , p. 60, lines 6-12; P-0172: T-114 , p. 3, lines 17-21. 1586 This structure is clearly visible from an intercepted radio communication dated 20 September 2002; see ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0167. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. See also P-0085: T-158 , p. 24, line 16 – p. 25, line 6; P-0205: T-48 , p. 51, lines 5-10. 1587 ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0167. The same source also gives the names of the brigade 2IC’s: Lapanyikwara (Sinia), Okulu Ben (Stockree), John Lagoga (Gilva) and Opiro Livingstone (Trinkle). 1588 See section IV.C.2.i below. 1589 P-0070: T-105 , p. 62, lines 3-14. 1590 P-0070: T-105 , p. 64, lines 18-25. 1591 D-0134: T-240 , p. 53, line 23 – p. 54, line 7.

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A similar testimony was provided by P-0016, who stated that he was told brigades within

1592 the LRA had two brigade commanders that were working together. On the other hand,

when asked whether each brigade had one or two commanders at the time of the LRA’s

re-entry into Uganda, P-0145 stated that there was one brigade commander in each

1593 brigade. Kenneth Oyet testified that there were two brigade commanders per brigade

1594 at the time of Iron Fist, but added that one was superior to the other. These testimonies,

given by witnesses who were questioned specifically on the matter, are not univocal.

Overall, the Chamber considers that the evidence discussed above, which demonstrates

that each brigade had one commander and one second-in-command, is not undermined

by the evidence of witnesses who testified about the presence of two commanders

simultaneously in each brigade also during the period of the charges. Specifically, the

Chamber also emphasises that as to the period and the events relevant for the charges,

there is no evidence that Dominic Ongwen’s authority as Sinia brigade commander was

1595 shared with another person.

P-0070 testified that a brigade commander had departments, such as the operation room

1596 and intelligence. As the charges in the present case focus on the Sinia brigade, the

organisation of that particular brigade as well as Dominic Ongwen’s positions during the

relevant period first as battalion commander and later as brigade commander in Sinia are

1597 analysed in more detail below.

1598 Brigades were divided into battalions. The evidence indicates that the number of

1599 battalions fluctuated in the range of between two and four per brigade. Battalions were

1600 headed by a commander, commonly referred to as ‘CO’. The evidence also indicates

1592 P-0016: T-34-CONF, p. 71, line 25 – p. 73, line 17. 1593 P-0145: T-144 , p. 11, line 24 – p. 12, line 2. 1594 D-0026: T-191 , p. 35, lines 4-21. 1595 See paras 1075-1083 below. See also para. 890. 1596 P-0070: T-105 , p. 61, line 15 – p. 62, line 2. 1597 See section IV.C.3 below. 1598 P-0070: T-105 , p. 60, lines 13-14; ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0166-67. 1599 P-0070: T-105 , p. 60, line 22 – p. 61, line 1 (indicating that, initially, there were three battalions per brigade, which was increased to four at some point in 2003 and reduced back to three sometime thereafter); ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0167 (radio communication intercept dated 20 September 2002, indicating four battalion commanders per brigade); ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0414-15 (radio communication intercept dated 17 September 2003, indicating two battalion commanders per brigade). The communication of 17 September 2003 can also be found in the UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0992-94. 1600 P-0205: T-48 , p. 20, lines 17-19. See also as examples of specific references to battalion commanders, P- 0054: T-94 , p. 22, lines 5-8; P-0070: T-105 , p. 64, lines 2-10.

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that battalions were still further divided in companies, commonly referred to as ‘coys’,

1601 again under the control of a designated commander.

As to the division, P-0070 explained that it went by the name of ‘Jogo’, and that it was

created in 2003 because ‘it was realised that LRA has many soldiers’ and ‘because in the

army when there is a brigade then there also has to be a division’. 1602 This fact is also

corroborated by the intercepted communication recorded in the ISO logbook on 17

1603 September 2003. According to P-0070, the division commander ‘was in charge of all

the brigades’ and was ‘second-in-command after Control Altar’. 1604 He also stated that

Charles Tabuley was the commander when the division was created, and that after

Charles Tabuley’s death in late 2003, Raska Lukwiya and then Buk Abudema held this

1605 post.

LRA soldiers also carried ranks, as demonstrated by the testimonies of a number of

1606 witnesses.

The Chamber notes that the Defence argued that the LRA was ‘not a conventional

army’ 1607 and had a ‘highly irregular structure’ in which only Joseph Kony exercised

1608 effective control. However, irrespective of what the initial or claimed origin of any

orders within the organisation may have been, the evidence outlined above and below

clearly shows that the LRA exhibited an established functioning structure which operated

across hierarchically built units.

1601 P-0205: T-48 , p. 20, lines 20-21, p. 53, lines 2-23; P-0070: T-105 , p. 61, lines 11-14; P-0379: T-57 , p. 68, line 21 – p. 69, line 9. See also P-0054: T-93 , p. 31, lines 6-8. See also as examples of specific references to coy commanders, P-0205: T-47 , p. 39, line 25 – p. 40, line 3; P-0205: T-47-CONF, p. 59, lines 14-17. 1602 P-0070: T-105 , p. 57, lines 7-11, p. 62, lines 15-17. 1603 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0413. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 0992. 1604 P-0070: T-105 , p. 62, lines 18-20. 1605 P-0070: T-105 , p. 62, line 21 – p. 63, line 20. See also P-0231: T-122-CONF, p. 29, lines 18-20; P-0205: T- 47 , p. 36, lines 13-15; ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0413 (mentioning Tabuley as new division commander); UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0992 (mentioning Tabuley as new division commander); UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6138 (mentioning Tabuley as division commander). In relation to the death of Tabuley, see para. 1076 below. 1606 P-0016: T-34-CONF, p. 18, lines 1-3; P-0054: T-93 , p. 13, lines 4-5; T-94 , p. 7, line 13 – p. 8, line 7; P-0142: T-70 , p. 17, lines 3-6; P-0205: T-47-CONF, p. 11, lines 6-10; P-0440: T-39-CONF, p. 68, line 25 – p. 69, line 1. 1607 Defence Closing Brief , para. 22. See also Defence Closing Brief , para. 23. 1608 Defence Closing Brief , para. 164.

No. ICC-02/04-01/15 305/1077 4 February 2021

Finally in this context, the Chamber notes that witness testimonies have indicated that

movement of people from one unit to another, including between brigades, was a

1609 relatively common occurrence in the LRA.

Orders were generally communicated from Joseph Kony directly or through Vincent Otti to the brigade commanders, who communicated them to the battalion commanders, who in turn passed them to their subordinates. Joseph Kony’s orders were generally complied with. At the same time, in particular when Joseph Kony was geographically removed from LRA units, brigade and battalion commanders took their own initiatives. This was regularly the case during the period of the charges, when Joseph Kony was in Sudan

1610

while various LRA units operated in Northern Uganda.

Insider witnesses agreed that, in principle, orders in the LRA originated from Joseph

1611 Kony. P-0070 stated that Joseph Kony could give orders via radio directly to all units,

1612 or through Vincent Otti, his second-in-command. In such cases, Vincent Otti passed

1613 the orders down to the brigade commanders. P-0205 similarly testified that there were

a number of ways in which Joseph Kony issued orders: on some occasions, he convened

1614 everybody and issued an order directly, otherwise, he only convened the senior

1615 commanders or gave the order to a specific person. The witness described a standard

procedure for military orders, by which Joseph Kony issued the order to his second-in-

command Vincent Otti, from whom the orders were passed down to brigade, battalion

1616 and company commanders.

Daniel Opiyo similarly testified that there were ‘two different ways communication

would move’. 1617 In Sudan, Joseph Kony would summon the brigade commanders and

hold a meeting, after which some of the information would trickle down to the lower

1618 ranking officers. In Uganda, when Vincent Otti was the highest ranking officer,

information would go from Joseph Kony to Vincent Otti, through a signaller or

1609 P-0054: T-93 , p. 9, line 23 – p. 10, line 3, p. 12, line 20 – p. 13, line 3; P-0205: T-47-CONF, p. 10, line 17 – p. 11, line 2; P-0231: T-122-CONF, p. 29, lines 15-17; P-0264: T-65 , p. 78, lines 16-24. 1610 Para. 124 above. 1611 P-0070: T-105 , p. 79, lines 23-25; P-0142: T-71 , p. 28, lines 14-16; P-0205: T-48 , p. 19, lines 3-4; P-0231: T- 123 , p. 28, lines 15-24. 1612 P-0070: T-105 , p. 80, lines 1-7. 1613 P-0070: T-105 , p. 80, lines 8-17. 1614 P-0205: T-48 , p. 19, lines 5-9, 23-25. 1615 P-0205: T-48 , p. 19, lines 9-13. 1616 P-0205: T-48 , p. 19, line 9 – p. 20, line 21. 1617 D-0056: T-229 , p. 37, line 18 – p. 38, line 11. 1618 D-0056: T-229 , p. 38, lines 12-15.

No. ICC-02/04-01/15 306/1077 4 February 2021

1619 directly. However, if Joseph Kony wanted a message to go to a brigade commander directly, he could do that, and the brigade commander would then assign tasks down the 1620 hierarchy.

P-0070 observed generally that in the LRA, ‘there was no strict following of the chain of command’. 1621 More specifically, P-0205 testified that occasionally Joseph Kony would 1622 bypass the hierarchy and issue orders directly to battalion commanders. P-0016 also stated that Joseph Kony could choose to give orders directly to the battalion commanders, and clarified that Joseph Kony could not directly approach platoon commanders because 1623 they did not have radio communication equipment. P-0070’s testimony also indicates 1624 that Joseph Kony did not give orders to persons lower than battalion commanders. Similar testimony was provided by D-0027, who stated that Joseph Kony could issue direct orders to a splinter group if that group had a radio device, but otherwise had to go 1625 through the brigade commander.

The Chamber considers that the terms in which witnesses have spoken of Joseph Kony issuing orders directly to brigade or battalion commanders indicates that these were occasional deviations from an otherwise effective hierarchical organisation. Indeed, these same witnesses are also among the main witnesses who testified about the hierarchical organisation of the LRA. Their testimonies, laid out in appropriate detail above, indicate that the witnesses perceived the LRA hierarchy to be effective. Accordingly, what is at hand is not a contradiction in the evidence, but a precise and nuanced description of the LRA as an organisation.

1626 While this is also an issue explored below in the context of duress, the Chamber notes that several insider witnesses explained how Joseph Kony’s orders were received and implemented.

1619 D-0056: T-229 , p. 38, lines 16-19. 1620 D-0056: T-229 , p. 38, lines 19-22. 1621 P-0070: T-107 , p. 34, lines 11-17. 1622 P-0205: T-49 , p. 54, line 20 – p. 55, line 21. 1623 P-0016: T-34 , p. 86, lines 5-23. 1624 P-0070: T-107 , p. 34, lines 1-4. 1625 D-0027: T-202 , p. 27, lines 3-13. 1626 See section IV.D.2.ii below.

No. ICC-02/04-01/15 307/1077 4 February 2021

In this regard, P-0440 stated, in response to the question whether subordinate

commanders obeyed Joseph Kony’s order to stop abductions, that ‘some people could violate the orders’. 1627 He testified that some commanders ‘like Onen Unita and Odongo’ disobeyed Joseph Kony’s orders, assigning tasks to others rather than going on mission

1628 themselves, and that Joseph Kony complained about them and called them lazy. P-

0440 explained that commanders would also make up excuses not to go on mission, such

1629 as pretending to be ill. Conversely, the witness named Dominic Ongwen and

1630 Odhiambo as commanders who obeyed Joseph Kony’s orders. Whereas this

distinction made by P-0440 between obedient and disobedient commanders appears

based on reputation rather than personal knowledge of facts – in particular noting that,

as discussed just below, Dominic Ongwen would not always execute orders from above –, it is nonetheless indicative of the fact that the high commanders of the LRA had a

considerable degree of choice and independence.

In addition, many of Joseph Kony’s orders were general, such as orders to conduct attacks,

1631 or to abduct. For much of the relevant period of the charges, Joseph Kony was also in

Sudan, while LRA units were in Uganda, communicating mostly by radio and in person

1632 only during occasional visits from the units operating in Uganda. As a result, it fell

upon the commanders closer to the units on the ground to translate these general orders

1633 into concrete acts. This necessitated that the commanders display a considerable degree of initiative. Daniel Opiyo’s testimony is illustrative in this regard. Asked

specifically about Dominic Ongwen, he stated that Dominic Ongwen ‘would not just

engage in something without being sure’, that if there was an order from his senior,

Dominic Ongwen ‘would sit down with his officers and they would assess’, and that

1627 P-0440: T-39 , p. 84, lines 10-14. 1628 P-0440: T-40 , p. 4, line 17 – p. 5, line 12. 1629 P-0440: T-40 , p. 6, line 18 – p. 7, line 9. 1630 P-0440: T-40 , p. 3, line 21 – p. 4, line 13. 1631 See the discussion of Joseph Kony’s orders in section IV.C.4III.D below. See also sections IV.C.11.ii and IV.C.12.ii below. 1632 See P-0070: T-105 , p. 81, line 24 – p. 82, line 1; P-0205: T-48 , p. 5, lines 1-4; P-0233: T-111 , p. 26, lines 6- 14; P-0314: T-75 , p. 56, lines 19-24; P-0372: T-149 , p. 51, lines 16-25. See also P-0138: T-121 , p. 30, line 14 – p. 31, line 7. 1633 P-0205’s testimony indicates that a similar relationship could also exist at brigade and battalion levels. P-0205 testified about a specific gathering at Koyo, during which Dominic Ongwen instructed the LRA soldiers subordinate to him to ‘attack’, but did not give specifics on the targets to be selected, and instead stated that, as reported by P-0205: ‘[W]henever you get the opportunity to make an attack or to stage an ambush, you should do so when you think you can do it, if you feel capable of doing it’, P-0205: T-48-CONF, p. 13, line 17 – p. 14, line 8.

No. ICC-02/04-01/15 308/1077 4 February 2021

1634 Dominic Ongwen would only act if he knew he could accomplish the objective. Intercepted radio communications also demonstrate that attacks were typically reported 1635 to Joseph Kony only after they had already been carried out. In light of this evidence, which is more specific and/or coming largely from well-informed high-level insiders, the Chamber does not accept the general evidence of Simon Tabo to the effect that Joseph Kony did not give blanket authorisations, but only specific instructions to attack specific locations, and that carrying out an operation without authorisation by Joseph Kony would 1636 be punished by execution.

In sum, the Chamber finds that the LRA had a functioning hierarchy, but that it relied also on the independent actions and initiatives of commanders at division, brigade and battalion levels. For the organisation to operate and sustain itself, coordinated action by its leadership, including the brigade and battalion commanders, was necessary. In other words, the LRA was a collective project, and the Chamber does not accept the proposition of the Defence that the LRA should be equated with Joseph Kony alone, and all its actions 1637 attributed only to him.

The LRA had at its disposal weapons and ammunition for use in military operations. It regularly seized weapons from the UPDF during combat. It also obtained weapons and other supplies from Sudan. The LRA supplied itself with food, medicines and other items of use by looting from civilians in Northern Uganda, in particular from IDP camps. The LRA relied on high-frequency radio as the principal mode of communication between

1638

units in various locations in Northern Uganda and Sudan.

The evidence indicates that the LRA possessed personal firearms which it distributed 1639 among its soldiers. It also possessed other kinds of weapons, including heavy

1634 D-0056: T-229 , p. 33, line 17 – p. 34, line 9. 1635 See sections IV.C.5, IV.C.8.v, IV.C.9.v below. 1636 D-0034 Statement, UGA-D26-0022-0385, at para. 34. 1637 Defence Closing Brief , paras 6, 30, 164, 174, 202, 466, 501. See also Defence Closing Statement: T-258 , p. 20, line 20 – p. 22, lines 21. 1638 Para. 125 above. 1639 P-0309: T-60 , p. 53, line 22 – p. 54, line 12, p. 77, lines 10-21. See also paras 942-945 below.

No. ICC-02/04-01/15 309/1077 4 February 2021

weapons, such as PKM machine guns, RPG, recoilless, SPG-9, 12.7 and 60 mm

1640 1641

mortars. Grenades were also available.

There are also numerous references in the evidence before the Chamber to the LRA

1642

obtaining weapons from adversaries during combat. P-0205 testified about a specific

order by Dominic Ongwen, as brigade commander, to engage in attacks on places where

1643

ammunition and weapons could be found. There are numerous reports in records of

intercepted communications of LRA units seizing weapons, as well as uniforms and

1644

boots. Indicative is also the entry in the ISO logbook on 21 September 2003, which

records Joseph Kony instructing Vincent Otti to order that ammunition be replenished by

1645

taking it from the UPDF.

1640 P-0070: T-105-CONF, p. 55, lines 8-16 (identifying a 12.7 and an SPG-9 on a photograph shown in the courtroom: Photo compilation, UGA-OTP-0028-0073, at 0082); P-0142: T-70 , p. 13, lines 6-10 (mentioning grenades, RPG, SPG-9, SMG and B-10); P-0144: T-91 , p. 30, lines 15-18 (mentioning SMG, PKM machine gun, RPG, recoilless, SPG-9, 12.7 and 60 mm mortar); P-0264: T-64 , p. 67, lines 15-18 (referring to ‘PK, RPG, mortar, B10 and SPG9’). 1641 P-0142: T-70 , p. 13, lines 5-8. 1642 P-0205: T-47 , p. 29, lines 19-25; P-0309: T-61 , p. 28, lines 17-20. See also paras 1380, 1382, 1710 below. 1643 P-0205: T-47 , p. 41, lines 9-13. 1644 See , for example, ISO Logbook (Gulu), UGA-OTP-0063-0194 at 0209, 0211, 0213, 0217, 0219, 0230, 0236, 0238, 0249 ( see Chamber’s discussion on the reliability of the 2002 ISO logbooks, para. 666 above); ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0147, 0168, 0175, 0191, 0200, 0209, 0238, 0244, 0299, 0302 ( see also UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0596, 0602-03, 0630, 0641-42, 0675, 0683-84; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6358, 6367-68, 6377, 6405; UPDF Logbook (Achol Pii), UGA-OTP-0242- 6018, at 6022); ISO Logbook (Gulu), UGA-OTP-0152-0002, at 0169-70 ( see also UPDF Logbook (Gulu), UGA- OTP-0254-1077, at 1194; Police Notes, UGA-OTP-0151-0021, at 0021-22). 1645 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0442. The Chamber notes that this detail is not included in the corresponding UPDF logbook entries. However, these entries clearly concern the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0441 (Michael reporting on entering UPDF ambush on Bobi road on 17 September, capturing one UPDF soldier called Okot from Pabo alive, with list of items taken; Kony recorded as being ‘very happy’) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1006 (Michael reporting on clash with UPDF in Bobi on 17 September, capturing one UPDF soldier called Okot from Pabbo alive, with same list of items taken; Kony recorded as being ‘very happy’) and UPDF Logbook (Achol Pii), UGA- OTP-0242-6018, at 6140 (Michael reporting on entering UPDF ambush on Pabo road on 17 September, capturing one UPDF soldier called Okot from Pabbo alive, with same list of items taken; Kony recorded as congratulating Michael ‘with great happiness’) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2030-31 (Michael reporting on clash with UPDF at Bobi on 17 September, capturing one UPDF soldier called Okot from Pabbo alive)); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0441-42 (Kony telling Otti he wants LRA ‘to start killing seriously, right from Soroti up to Atyka (Acholi), mercilessly, as if LRA are going to finish pple’) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1006 (Kony instructing Otti to ‘refragment LRA rebels in all corners for havocs’ and ‘kill very many civs’) and UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6140-41 (Kony telling Otti should ‘begin serious operations starting from Soroti district to Gulu district without mercy’) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2031 (Kony telling Otti to issue orders to all units to start ‘serious heavy atrocities against the civilians starting fm Soroti to Atiak areas’)). Bearing this in mind, as well as the fact that the entries are overall less detailed, the Chamber consider its appropriate to refer to this particular detail of the radio communication as recorded by ISO.

No. ICC-02/04-01/15 310/1077 4 February 2021

In addition, the LRA received significant support from Sudan. The historical context of

this support, which was at its most intense in the mid- to late 1990s, is briefly laid out

1646

above. However, the evidence indicates that even after Operation Iron Fist, there were

1647

LRA units based in Sudan, including an LRA armoury. There is consistent witness

evidence to the effect that the Government of Sudan provided weapons, as well as

1648 1649 1650 1651

ammunition and uniforms, to the LRA. P-0085, P-0144, P-0231, D-0006,

1652 1653 1654 1655 1656

D-0013, Joseph Okilan, Francis Okot, D-0032, Kenneth Oyet, Daniel

1657 1658

Opiyo, and Acama Jackson are among the witnesses who testified to this effect.

P-0410 testified specifically that the heavy weapons brought from Sudan were used in

1659

the attacks on Odek and Lukodi IDP camps. Several witnesses mentioned that the

1660

Government of Sudan also trained LRA fighters in the use of heavy weapons. In

addition to weapons, a number of witnesses stated that the Government of Sudan

1661

provided food and medicine to the LRA. There is also evidence that in some cases

1662

LRA members received medical treatment at hospitals in Juba and Khartoum. Daniel

Opiyo explained that even after Operation Iron Fist assistance to the LRA continued, and

1663

that some LRA remained in Sudan. Finally, the Chamber notes that there is evidence

1646 See section I.A above. 1647 P-0205: T-48 , p. 34, lines 5-13; P-0138: T-121, p. 27, lines 13-18 (stating that they frequently went to Sudan from Uganda to collect ammunition). 1648 P-0085: T-158 , p. 19, lines 5-13. It is noted that P-0085 stated that he saw, on one occasion, how the weapons were brought. 1649 P-0144: T-91 , p. 14, lines 8-14. 1650 P-0231: T-123-CONF, p. 59, line 6 – p. 60, line 3. 1651 D-0006: T-194, p. 39, lines 4-5. 1652 D-0013: T-244, p. 28, lines 22-25. 1653 D-0019: T-236, p. 14, lines 10-21. 1654 D-0024: T-192, p. 9, line 21. 1655 D-0032: T-199, p. 42, lines 12-17. 1656 D-0026: T-191, p. 13, lines 6-10. 1657 D-0056: T-228, p. 28, lines 14-16. 1658 D-0074: T-187, p. 29, lines 20-23. 1659 P-0410: T-151, p. 31, lines 12-15, p. 64, lines 13-17. 1660 D-0019: T-236, p. 25, lines 17-19; D-0056: T-228, p. 27, line 18 – p. 28, line 11; D-0074: T-187, p. 30, lines 5-19. 1661 P-0172: T-114, p. 18, lines 18-19; P-0231: T-123-CONF, p. 59, line 6 – p. 60, line 3; P-0233: T-112, p. 35, line 25 – p. 36, line 12; D-0006: T-194, p. 38, line 22 – p. 39, line 3; D-0019: T-236, p. 25, lines 4-8; D-0056: T- 228, p. 28, lines 12-17; D-0068: T-222, p. 32, lines 8-17; D-0074: T-187, p. 29, line 24 – p. 30, line 1. 1662 D-0026: T-191, p. 17, line 6 – p. 18, line 15; D-0056: T-228, p. 28, lines 17-22. See also D-0006: T-194, p. 39, lines 4-10. This evidence, however, does not indicate that professional medical care was generally available. See also para. 1009 below. 1663 D-0056: T-228, p. 29, lines 15-20.

No. ICC-02/04-01/15 311/1077 4 February 2021

that before the time of the charges, the LRA received some support from the Government

1664 of Kenya.

There is considerable evidence of the LRA engaging, in a systematic manner, in looting

from civilians in order to obtain food, medicines and other items of use. P-0070 stated

generally that the LRA obtained food and livestock from IDP camps, or from the fields

1665 left behind by civilians. P-0379 testified that food, in particular beans, goats, chicken

and cattle, was looted from civilians, and that ‘[t]here was no other way other than getting

the items from the civilians’. 1666 It is also notable that P-0379, when asked about any

instructions before a specific attack, stated that ‘[w]e were instructed that we were going

on a mission to the centre, but we were not told not to abduct, but you knew that when

you go on mission, abduction is part of the mission, looting is part of the mission’. 1667

There is further corroboration of this evidence by P-0406, who testified that the LRA

1668 took food, including goats, chicken and cattle, from civilians. He further stated that

1669 items other than food, such as gumboots or jackets, were also taken from civilians. P-

0314 testified that orders to pillage were given to obtain food for the LRA fighters, and

1670 that for this purpose, camps or vehicles were attacked. P-0307 is another witness who

testified that the LRA used to supply itself with food by looting, in particular from IDP

1671 camps. This topic is explored in further detail in the Chamber’s evidentiary analysis

1672 concerning the four attacks relevant to the charges.

Turning to communications, the Chamber refers to its analysis above of the evidence on

1673 intercepted radio communications. The evidence discussed there conclusively

establishes that high-frequency radio was the principal mode of communication in the

LRA.

As stated by witnesses, and demonstrated by the records of intercepts, in particular

comprehensive series of logbooks, radio communication took place consistently and

1664 D-0032: T-199, p. 42, lines 24-25. 1665 P-0070: T-105 , p. 79, lines 10-19; T-106 , p. 24, lines 4-12. 1666 P-0379: T-56 , p. 25, lines 12-16. 1667 P-0379: T-56 , p. 49, lines 2-6. See also P-0379: T-57 , p. 36, lines 3-12. 1668 P-0406: T-154 , p. 79, lines 15-20. 1669 P-0406: T-154 , p. 79, line 21 – p. 80, line 6. 1670 P-0314: T-74 , p. 59, lines 10-18. 1671 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 25; T-152 , p. 65, line 24 – p. 66, line 10. 1672 See sections IV.C.6.iii, IV.C.7.vi, IV.C.8.iv, IV.C.9.iv below. 1673 See section IV.B.3.i above.

No. ICC-02/04-01/15 312/1077 4 February 2021

1674 methodically several times a day. As explained above, a code system was used to

1675 increase security. Solar energy was used to power the radios, using equipment

1676 obtained through looting. Notably, the radio communications system used by the

LRA made possible the exchange of messages between LRA units around Northern

1677 Uganda and in Sudan.

P-0016 and P-0264 testified that radios were available in the LRA from the battalion

1678 level and upwards. P-0440 stated that radios were only systematically available from

brigade level and upwards, but not usually below brigade level, unless there was a

1679 specific mission for which the commander was given a radio. This evidence is not

necessarily contradictory, and the Chamber in any case considers that it suffices to

conclude, on the basis of the witness testimonies, that access to radio equipment below

brigade level was limited.

1680 There were designated radio operators, or signallers. However, as explained by P-

1681 0205, commanders spoke on the radio in person too. P-0101 testified that she saw

1682 Dominic Ongwen operate the radio by himself to communicate.

In addition to the long-range radio communication system, there is also evidence that the

1683 LRA used walkie-talkies.

1674 P-0070: T-105 , p. 83, line 14 – p. 84, line 1; P-0379: T-57 , p. 64, lines 12-17; P-0440: T-40 , p. 7, line 25 – p. 8, line 5; ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0103. See also generally the logbooks listed at paras 659-660 above. 1675 See para. 616 above. 1676 P-0440: T-39 , p. 75, line 23 – p. 76, line 4. 1677 P-0016: T-32 , p. 21, lines 12-20. See also P-0372: T-149 , p. 51, lines 16-25 (stating that when Joseph Kony was in Sudan, he communicated with the units in Uganda by radio). 1678 P-0016: T-32 , p. 20, lines 11-16; P-0264: T-65 , p. 18, lines 6-8. 1679 P-0440: T-40 , p. 7, lines 16-24. 1680 P-0016: T-32 , p. 20, lines 4-10; P-0070: T-105 , p. 84, lines 2-5; P-0205: T-48 , p. 55, lines 10-20; P-0264: T- 65 , p. 18, lines 9-10. 1681 P-0205: T-48 , p. 55, lines 21-23. 1682 P-0101: T-13-CONF, p. 38, lines 18-24. 1683 P-0016: T-35-CONF, p. 16, line 21 – p. 17, line 14; P-0070: T-105 , p. 83, lines 1-11; P-0252: T-88 , p. 7, lines 17-25; P-0144: T-91 , p. 31, line 19 – p. 32, line 19; P-0045: T-104-CONF, p. 68, line 24 – p. 69, line 8; P-0067: T-126 , p. 11, lines 1-14, p. 46, lines 5-11; P-0264: T-64 , p. 47, lines 10-15.

No. ICC-02/04-01/15 313/1077 4 February 2021

2 Organisational features of the Sinia brigade

The following section explores in detail some organisational features of the Sinia brigade.

It commences with a description of the structure itself, before focusing on the various

mechanisms employed in the Sinia brigade to ensure effectiveness of the organisation

and – in essence – compliance with orders. As laid out further below, Dominic Ongwen

1684 held commanding positions in Sinia during the period relevant to the charges. Indeed,

1685 the charges in this case focus primarily on Sinia. However, on the basis of the

evidence it can be stated that Sinia was a typical LRA brigade, and that the below

conclusions can also be drawn with respect to the LRA generally.

i. Structure and command

At the time relevant for the charges, i.e. from 1 July 2002 to 31 December 2005, Sinia brigade was led by a brigade commander, who had at his disposal a headquarters unit, which included the brigade intelligence officer, the brigade major, and the support

1686

commander.

Witness evidence indicates that from 2002, and until Dominic Ongwen took over the

1687 position, Buk Abudema was Sinia brigade commander. This is confirmed by the ISO

1688 logbook entries of intercepted communications for 20 September 2002, 2 December

1689 1690 2002, and 17 September 2003, which indeed list Buk Abudema as Sinia brigade

commander.

Dominic Ongwen was officially appointed Sinia commander on 4 March 2004, as

discussed in detail below as part of the Chamber’s assessment of Dominic Ongwen’s

1691 position within the LRA.

1684 See section IV.C.3 below. 1685 See also para. 12 of the charges ( Confirmation Decision , p.73). 1686 Para. 126 above. 1687 P-0085: T-158 , p. 24, lines 22-23; P-0138: T-120 , p. 38, lines 9-11; P-0231: T-122-CONF, p. 29, lines 13-14; P-0235: T-17-CONF, p. 5, lines 4-9. It is noted that at some point, P-0205 stated that Buk Abudema replaced Tabuley as brigade commander in 2003 ( see P-0205: T-47 , p. 21, lines 20-25). However, in light of all other evidence, the Chamber considers that this was simply an inaccurate recollection of the year by the witness. 1688 ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0167. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. See also P-0085: T-158 , p. 24, lines 22-24. 1689 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0079. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. See also P-0085: T-158 , p. 24, lines 22-24. 1690 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0414. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. See also P-0085: T-158 , p. 24, lines 22-24. 1691 See paras 1075-1077 below.

No. ICC-02/04-01/15 314/1077 4 February 2021

P-0205, a witness well-placed to describe the internal structure of the Sinia brigade, was

questioned on the matter. He described the Sinia brigade headquarters as including the

brigade commander, the brigade intelligence officer (BIO), the brigade major (BM), the

1692 administrator and the support commander in charge of heavy weapons. These people

1693 were assisted by persons assigned to support them. P-0205 also stated that there was

an operations room, the function of which was to receive orders from the brigade

1694 commander and implement them. The operations room included the BIO, the BM, the

administrator, as well as the ‘RCM’, who was the officer who supervised foot soldiers. 1695

1696 Other witnesses also spoke of the headquarters unit in Sinia.

Sinia brigade was composed of three battalions: Oka, Terwanga and Siba. Each of these battalions was led by a battalion commander, who reported to the brigade commander, and was composed of companies, or ‘coys’.

1697

Insider witnesses stated consistently that Sinia included three battalions, and gave their

1698 names as Oka, Terwanga and Siba. Each battalion was controlled by a battalion

commander, commonly referred to as ‘CO’. 1699

In relation to the hierarchy under the battalion commander, P-0205 testified that

1700 battalions also had a deputy commander (2IC), and that intelligence officers and

support commanders at battalion level reported to the brigade intelligence officer and the

1701 brigade support commander, respectively. He further explained that the equivalent of

1702 an administrator at battalion level was referred to as the adjutant. Similarly, Daniel

Opiyo testified that, at least at battalion level, the deputy commander and the intelligence

1703 officer worked together in the operation room which the battalion had at its disposal.

1692 P-0205: T-48 , p. 51, lines 5-16. See also P-0205: T-47-CONF, p. 11, lines 9-10. The Chamber notes that the witness was specifically asked about the composition of Sinia brigade headquarters in 2004-2005. 1693 P-0205: T-48 , p. 51, lines 17-19. 1694 P-0205: T-48 , p. 51, line 20 – p. 52, line 4. 1695 P-0205: T-48 , p. 52, lines 5-12. See also P-0264: T-64 , p. 69, lines 13-14. 1696 P-0054: T-93 , p. 12, line 23 – p. 13, line 3; P-0231: T-123 , p. 50, lines 2-5; P-0264: T-64 , p. 38, lines 17-19. 1697 Para. 127 above. 1698 P-0054: T-93 , p. 11, lines 8-13; P-0016: T-34 , p. 8, lines 8-17; P-0142: T-70 , p. 17, lines 11-16; P-0264: T- 64 , p. 38, lines 17-19. See also P-0406: T-154 , p. 33, lines 13-16. 1699 See P-0205: T-48 , p. 52, lines 17-21. 1700 P-0205: T-48 , p. 53, lines 13-15. 1701 P-0205: T-48 , p. 53, line 24 – p. 54, line 13. See also P-0379: T-58 , p. 56, line 7 – p. 58, line 1. 1702 P-0205: T-48 , p. 52, line 22 – p. 53, line 1. 1703 D-0056: T-229 , p. 12, lines 3-8.

No. ICC-02/04-01/15 315/1077 4 February 2021

P-0205 stated that the unit below battalion level was the ‘coy’ or company, and that each coy was headed by an ‘OC’.

1704

He also stated that a battalion would typically have three

1705 1706

companies. This evidence is confirmed by other witness testimonies.

In addition to Buk Abudema and Dominic Ongwen, the two successive brigade

commanders during the period of the charges, prominent members of Sinia who held

1707

various positions during the period relevant to the charges were Kalalang, Lapaicho

1708 1709 1710

(also Lapaico, Lapanyikwara or Paicho), Pokot, Celestino Akuri, Loum

1711 1712 1713 1714

Icaya, , Okwer (also Okwee or Okwera), Ocaka, and Ben

1715

Acellam. In light of certain submissions made by the Defence in relation to the attack

1716

on Odek IDP camp on 29 April 2004, the Chamber notes in particular that Ocan

1704 P-0205: T-48 , p. 53, lines 19-23. See also P-0205: T-48 , p. 20, lines 20-21. 1705 P-0205: T-48 , p. 54, lines 24-25. 1706 P-0070: T-105 , p. 61, lines 11-14; P-0379: T-57 , p. 68, line 21 – p. 69, line 2; D-0056: T-229 , p. 11, lines 14- 18. 1707 P-0054: T-93 , p. 11, line 24 – p. 12, line 5 (stating that Kalalang was Terwanga battalion commander at some point). 1708 P-0054: T-93 , p. 11, line 24 – p. 12, line 1 (stating that Lapaicho was Terwanga battalion commander at the time of Operation Iron Fist); P-0264: T-64 , p. 80, line 25 – p. 81, line 5. See also P-0264: T-64 , p. 81, lines 9-25 (stating that at the time of his abduction in 2002, Lapaico was the commander of Terwanga); P-0406: T-154 , p. 33, line 20 – p. 34, line 2 (stating that Paicho was Terwanga battalion commander at the time of Tabuley’s death). 1709 P-0205: T-49-CONF, p. 62, lines 7-10 (stating that Okello Pokot was Terwanga battalion commander at the time Dominic Ongwen was commander of the Sinia brigade). 1710 P-0264: T-64-CONF, p. 15, lines 19-21. See also P-0264: T-64 , p. 82, lines 10-15 (stating that ‘Cele Akuri’ was Oka commander at some point). 1711 P-0205: T-47 , p. 35, lines 11-18 (stating that Loum Icaya was Terwanga commander at the time of Tabuley’s death). 1712

1713 P-0016: T-35 , p. 36, lines 7-10 (stating that Okwer was an intelligence officer in Control Altar who was transferred to Sinia and later also to other brigades); P-0142: T-70-CONF, p. 21, lines 17-19 (referring to Okwee as the brigade intelligence officer of Sinia brigade); P-0205: T-47 , p. 39, lines 5-10 (also stating that Okwer was brigade intelligence officer of Sinia brigade). 1714 P-0054: T-93-CONF, p. 12, line 20 – p. 13, line 20 (stating that Ocaka was a support commander in Sinia brigade); P-0016: T-35 , p. 35, line 7 – p. 36, line 16 (stating that Ocaka was a lieutenant and later a captain in Sinia brigade); P-0142: T-70 , p. 44, lines 19-25 (also stating that Ocaka was a captain in Sinia, specifically at the time of the attack on Lukodi IDP camp). 1715 P-0264: T-64 , p. 83, lines 12-16 (stating that Ben Acellam was Oka commander after Celestino Akuri). 1716 P-0016: T-34 , p. 62, line 2 – p. 63, line 7; P-0059: T-39 , p. 29, lines 8-17; P-0440: T-41 , p. 28, line 12 – p. 13, line 5; P-0003: T-45 , p. 39, line 10 – p. 40, line 9; P-0205: T-51 , p. 5, line 21 – p. 6, line 15; T-51-CONF, p. 30, line 1 – p. 31, line 24; P-0330: T-55 , p. 43, lines 17-20; P-0309: T-63 , p. 17, lines 13-14; P-0264: T-66 , p. 68, line 18 – p. 69, line 18; P-0269: T-86 , p. 64, line 23 – p. 65, line 14; P-0340: T-103 , p. 53, line 17 – p. 54, line 14; P-0359: T-110 , p. 48, line 9 – p. 50, line 7; P-0372: T-149 , p. 77, lines 7-10. However, in its closing brief, it appears the Defence holds the view that at the time of the attack on Odek IDP camp, Dominic Ongwen was as brigade commander superior to Ocan Labongo, see Defence Closing Brief , para. 377.

No. ICC-02/04-01/15 316/1077 4 February 2021

1717

Labongo is attested in the evidence as commander of Siba battalion. There is also an entry in the ISO logbook indicating that at the time of Dominic Ongwen’s appointment

to Sinia brigade commander, Ocan Labongo had been left as caretaker when Buk

1718

Abudema departed for Sudan. P-0205 testified unequivocally that upon his

appointment to brigade commander of Sinia, Dominic Ongwen was hierarchically

1719

superior to Ocan Labongo. There is no evidence that Ocan Labongo was, in particular

at the time of the attack on Odek IDP camp on 29 April 2004, brigade commander of

Sinia individually or jointly with Dominic Ongwen.

Altogether, at the time relevant to the charges, between 1 July 2002 and 31 December

1720

2005, Sinia brigade included several hundred soldiers.

The Chamber received evidence on the approximate size of the Sinia brigade and its

battalions from several witnesses in a position to make informed estimates. P-0231 estimated the number of people in Sinia brigade at ‘about 700 to 800’,

1721

of which ‘approximately 200 and over’ were in Oka battalion when he was there.

1722

P-0205

estimated that there were 120 men in Terwanga in 2004, and about 180 in Siba at the

1723 1724

same time. In relation to Oka, P-0205 testified that there were about 100 men. P-

0379 testified that, at the time he was in Oka battalion in 2002-2003, the battalion had ‘perhaps more than 150 [men]’.

1725

More generally, P-0054 estimated that a brigade in

1717 P-0205: T-47 , p. 35, lines 11-18 (stating that Ocan Labongo was Siba commander at the time of Tabuley’s death); P-0264: T-64 , p. 83, line 25 – p. 84, line 8; T-65 , p. 78, lines 10-15 (also stating that Ocan Labongo was Siba commander). 1718 ISO Logbook (Gulu), UGA-OTP-0061-0002 at 0128. The intercepted message is Joseph Kony’s order to Dominic Ongwen to meet with Ocan Labongo for the handover. See also UPDF Logbook (Gulu), UGA-OTP- 0254-4143, at 4272; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7405. The Chamber notes that the UPDF Soroti logbook records Ben Acellam as being instructed to take over the command of Sinia brigade ( see UGA-OTP-0254-2284, at 2556). However, in light of the other logbooks consistently referring to Dominic Ongwen, as well as the other evidence on Dominic Ongwen taking over the command of Sinia Brigade, the Chamber disregards this aspect of the UPDF Soroti logbook. See also Enhanced audio Tape 771, UGA-OTP- 0239-0085; P-0016 Tape 771 Transcript, UGA-OTP-0259-0094; P-0016: T-32 , p. 67, line 20 – p. 75, line 13; P- 0059 Tape 771 Transcript, UGA-OTP-0258-0782-R01; P-0059: T-37 , p. 26, line 16 – p. 29, line 17. The Chamber notes its discussion of this particular audio tape at section IV.B.3.ii.i. 1719 P-0205: T-49 , p. 46, line 25 – p. 47, line 9. P-0205 testified that after the attack on Abok IDP camp, Ocan Labongo was brought to the Sinia brigade headquarters and started working together with Dominic Ongwen; P- 0205: T-48 , p. 3, line 24 – p. 4, line 2. The Chamber does not understand this particular testimony to be that Ocan Labongo and Dominic Ongwen were sharing the position of brigade commander. 1720 Para. 128 above. 1721 P-0231: T-122 , p. 42, lines 12-17. The Chamber notes that P-0231 did not place any specific time frame on this estimate, but referred generally to when he was ‘in the bush’, which was a period from 1994-2007. See P- 0231: T-122-CONF, p. 27, lines 2-5, p. 30, lines 16-19. 1722 P-0231: T-122 , p. 42, lines 5-11. 1723 P-0205: T-48 , p. 28, lines 10-15. 1724 P-0205: T-48 , p. 27, lines 16-21. 1725 P-0379: T-57 , p. 37, lines 11-19.

No. ICC-02/04-01/15 317/1077 4 February 2021

the LRA included from 500 people upwards, whereas a battalion was 50 to 100

1726

people.

While actual numbers may in fact differ in the estimates provided by the different

witnesses at varying times, the Chamber considers that their approximations remain at a

coherent scale and that it can be concluded that at the relevant time the Sinia brigade was

composed of several hundred soldiers.

ii. Ways to ensure capability to undertake military operations

a. Recruitment through abduction

Sinia brigade obtained new fighters through abductions of civilians. These abductions

1727

were targeted at civilians deemed capable for fighting, including young children.

During the course of the trial, the Chamber heard numerous personal stories of abduction

1728

into the LRA by persons who came to testify as insiders. For the relevant time period,

there is no evidence of any recruitment system based on voluntary enlistment. Witnesses

1729

also mentioned that they had no knowledge of anyone voluntarily joining the LRA. It

is an uncontested fact of the case that Dominic Ongwen himself was abducted into the

1730

LRA as a child.

1726 P-0054: T-94 , p. 38, line 24 – p. 39, line 17. P-0054 was in the LRA from 1992-2005. P-0054: T-93 , p. 8, lines 11-19, p. 10, line 24 – p. 11, line 2. 1727 Para. 129 above. 1728 See P-0205: T-47-CONF, p. 9, lines 11-17; P-0054: T-93 , p. 7, line 15 – p. 8, line 15; P-0233: T-111-CONF, p. 8, lines 1-6; P-0231: T-122-CONF, p. 27, lines 5-7; P-0016: T-32-CONF, p. 12, lines 19-21; P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 18-21; P-0097: T-108 , p. 6, line 23 – p. 7, line 5; P-0138: T-120 , p. 8, lines 2-8; P-0142: T-70 , p. 9, lines 20-25; P-0144: T-91 , p. 7, line 23 – p. 8, line 8; P-0145: T-143 , p. 7, lines 8-14; P- 0209: T-160 , p. 8, lines 9-17; P-0252: T-87 , p. 9, line 25 – p. 10, line 5; P-0264: T-64-CONF, p. 10, lines 11-18; P-0275 Statement, UGA-OTP-0244-3398-R01, at paras 29-35; P-0280: T-83 , p. 50, line 3 – p. 51, line 19; P- 0286: T-131 , p. 10, line 14 – p. 12, line 16; P-0314: T-74-CONF, p. 7, lines 12-17; P-0340: T-102 , p. 10, lines 20-23; P-0372: T-148-CONF, p. 8, lines 4-7; P-0379: T-56-CONF, p. 7, lines 6-20; P-0406: T-154 , p. 8, lines 15- 22; P-0440: T-39 , p. 65, lines 12-25; P-0070: T-105-CONF, p. 40, lines 16-25; P-0085: T-158-CONF, p. 6, lines 19-24; P-0307 Statement, UGA-OTP-0266-0425-R01, at paras 14-16; P-0309: T-60-CONF, p. 12, lines 14-24; P- 0410: T-151 , p. 6, lines 18-25; P-0040 Interview Transcript, UGA-OTP-0209-0406-R01, at lines 562-582; P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18; P-0130 Statement, UGA-OTP-0191-0272-R01, at paras 9-17; P-0096 Interview Transcript, UGA-OTP-0228-1698-R01, at lines 1130-57; D-0007: T-193 , p. 5, line 15 – p. 6, line 6; D-0024: T-192 , p. 5, lines 12-19; D-0026: T-191 , p. 4, lines 8-22; D-0027: T-202 , p. 10, lines 6-23; D- 0076: T-219 , p. 11, lines 7-18; D-0079: T-189 , p. 7, lines 18-21; D-0081: T-220 , p. 23, line 19 – p. 24, line 18; D-0092: T-208 , p. 7, lines 10-14; D-0134: T-240 , p. 10, lines 17-23; D-0100: T-234 , p. 9, lines 6-7; D-0034 Statement, UGA-D26-0022-0385, at paras 2-4; P-0028 Interview Transcript, UGA-OTP-0217-0075-R01, at lines 508-35. 1729 P-0233: T-111 , p. 49, lines 12-15; D-0024: T-192 , p. 45, line 20. 1730 See section I.C above.

No. ICC-02/04-01/15 318/1077 4 February 2021

There is ample evidence of the LRA abducting persons in Northern Uganda, and of the integration of the abductees into the LRA as fighters. Although there is evidence of female LRA members participating in military training and operations, including 1731 combat, the evidence discussed below indicates that the role of fighter was primarily intended for male abductees. The phenomenon of abduction of women and girls, of great 1732 significance in this case, is discussed separately. Similarly, the Chamber will address at the relevant juncture below the phenomenon of abduction and recruitment into the 1733 LRA of children under the age of 15. While that specific evidence is also relevant in

the present context, the Chamber focuses its analysis on the more general matter of abduction of civilians as a method through which the LRA obtained new recruits.

The evidence establishes that abduction of civilians for the purpose of increasing ranks was a long-standing policy of the LRA, including the Sinia brigade. A very succinct and clear description of this policy is contained in a radio communication intercepted by the ISO on 29 July 2002, wherein Joseph Kony is recorded as stating that the LRA will not stop abductions, because they were replacing those released, escaped or killed in the 1734 war.

P-0205 testified that, shortly after becoming commander of Sinia, Dominic Ongwen instructed the LRA soldiers going to attack an IDP camp that ‘if they found anybody who can participate in the army, then that person should be abducted’. 1735

P-0231 testified very similarly, stating:

You know, at the time when we were in the bush during the period of abduction, as I stated earlier, even when you’re on the move, for example if we are leaving one location going across some road, at the time when people were still at home, before the camps were established, whoever you come across, whoever you think is able to fight you abduct that person. You abduct that person. And the abduction means an initiation into the army, starting from 10 or – if you estimate that the person is older, so anybody from between the ages of 10 to 30. But there are certain times when some operations are organised and you’re sent to collect food, you’re

1731 P-0045 testified in detail about her experience as a female fighter in the LRA, in addition to being made a socalled ‘wife’, see P-0045: T-103-CONF, p. 90, line 19 – p. 92, line 10. See also P-0252: T-87 , p. 52, lines 4-5; P- 0307 Statement, UGA-OTP-0266-0425-R01, at para. 67; P-0448: T-157 , p. 24, line 17 – p. 25, line 5. 1732 See sections IV.C.10, IV.C.11 below. 1733 See section IV.C.12 below. 1734 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0331. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 1735 P-0205: T-47 , p. 40, line 16 – p. 41, line 8.

No. ICC-02/04-01/15 319/1077 4 February 2021

sent to fight, when you fight if you overran the soldiers, if you find anybody who is capable of joining the ranks of the LRA, that person is abducted and put in the 1736 LRA.

P-0379, speaking from his vantage point as a lower-ranking soldier, stated that during an operation, ‘it was automatic […] that whoever was fit to be in the bush, there was no

1737 reservation about abducting such a person because that is part of the operation’. Asked to explain further, he stated:

What I know is that, personally, if, for instance, I entered into a house and I found food items, I would not carry that food item alone unless I get somebody to abduct. I would abduct that person to come and carry the food items. That person can – could be later released but for those who were within the age that could be kept would not be released. That was something that kept on happening over and over 1738 again. So that was part of the operation.

Asked still further what was ‘within the age that could be kept’, P-0379 indicated the

1739 range from 10 up to about 20 to 25 years of age. He also stated that abductees who were not ‘useful’ were released. 1740

Similar is the evidence of P-0307, who, from his experience of an ordinary Sinia soldier, observed:

[A]s a standard practice, each time we came across young people, we would abduct them and take them to the bush. We had to do this as we had to increase our numbers in the bush. So abducting new recruits was part of routine activities during attacks so that there was no need for any commander to order you to abduct because 1741 this was part of the job.

The Chamber also notes the testimony of P-0233, who observed that ‘in the bush when you have been selected to go and do something […], fighting and abduction go hand in hand’. 1742

One ISO logbook records a report given to Joseph Kony by LRA commander Lapanyikwara on 29 September 2002, where it was stated that in the period of 13 to 25

1736 P-0231: T-122 , p. 73, lines 11-21. 1737 P-0379: T-56 , p. 45, lines 18-23. 1738 P-0379: T-56 , p. 45, line 24 – p. 46, line 6. 1739 P-0379: T-56 , p. 46, lines 7-9. 1740 P-0379: T-57-CONF, p. 36, lines 13-17. 1741 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 36. 1742 P-0233: T-111-CONF, p. 11, lines 17-19.

No. ICC-02/04-01/15 320/1077 4 February 2021

September 2002 Dominic Ongwen ‘charged’ 127 recruits. 1743 It is further recorded that

Joseph Kony was ‘very happy’ with Dominic Ongwen’s results, and told Lanyikwara to

‘reduce on the rate of abduction because it might be a problem to handle them when the

[number] has become so big’. 1744 It is noted that Dominic Ongwen is recorded as

speaking during the conversation, and in particular as stating that his recruits have high

1745 morale and are disciplined.

Following abduction, abductees deemed suitable for recruitment were integrated into the

LRA. P-0205 stated that abductees were ‘distributed amongst the people’ according to

the need, and that they could also be sent to the ‘commander in charge of that place’ or

to ‘the person who went to conduct the operation’. 1746 Thereafter, their training

1747 commenced.

P-0231 also explained that following abduction, the abductee would initially stay with

1748 the specific unit that abducted him. According to this witness, it was following the

1749 training that a person could be transferred to another battalion or elsewhere.

Daniel Opiyo similarly stated that while in Uganda, an abducted person would stay with

1750 the unit that abducted that person. He distinguished the situation in Sudan and testified

that there all abductees would be gathered together and distributed, some to Joseph

Kony’s household, and others to the various other households. 1751

b. Initiation of recruits

Following their abduction, recruits generally passed through initiation rituals, most regularly including anointment with shea butter, intended to instil obedience and prevent

1752

escape. Beating was also a common feature of such initiation.

In relation to the initiation rituals, the evidence before the Chamber establishes that, while

displaying variations and while not used in all cases, they were a stable feature of the

1743 ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0022. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 1744 ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0022. 1745 ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0022. 1746 P-0205: T-48 , p. 31, line 23 – p. 32, line 5. 1747 P-0205: T-48 , p. 31, line 23 – p. 32, line 5. 1748 P-0231: T-122 , p. 45, lines 5-21. 1749 P-0231: T-122 , p. 45, line 22 – p. 46, line 6. 1750 D-0056: T-229 , p. 17, lines 1-5. 1751 D-0056: T-229 , p. 17, lines 5-8. 1752 Para. 129 above.

No. ICC-02/04-01/15 321/1077 4 February 2021

LRA. The evidence, in particular the statements of witnesses who underwent initiation

rituals and testified of what they were told during such rituals, indicates that the LRA’s

1753 initiation rituals were intended to instil obedience and prevent escape.

1754 P-0252, who was still a child at that time, testified that the day after his abduction

during the attack on Odek, he passed through a ritual in the presence of Dominic Ongwen,

during which P-0252’s shirt was removed, and a substance (‘I don’t know what it is, but

it’s – they say it’s an oil’) was used to smear the sign of the cross on his forehead, chest,

knees, and the back of his legs; the witness was thereafter told that ‘when you want to

escape and flee, you will walk in circles and be confused. You will not be able to

escape.’ 1755 P-0252 also stated that he was beaten as part of the initiation process, and

told that the reason why they did that was ‘for you to become a soldier and to leave your

civilian life behind’. 1756

Similarly, P-0307 testified that his initiation consisted of the rubbing of ‘some sort of oil’

on his forehead, and of caning, with the explanation that this was ‘to take away the

civilian life from [him]’. 1757

1758 P-0264 testified about the use of caning as a form of initiation. He explained that

while this did not happen to him, he saw his older colleagues with whom they were

1759 abducted be initiated in this way. The witness also described a separate ceremony,

during which a group of about 20-30 persons including him were summoned, undressed

1760 to bare chests and told they would be anointed. Then, they were told to start clapping

1761 and sung a praise song. After they stopped, each of them had to put shea oil on their

1762 forehead, chest, feet and hands. On all those spots, including the back, a sign of the

1763 cross was put. Thereafter, the recruits were told that ‘if you want to escape that thing

will make you confused and you – you keep rotating until you go back to where you left

1753 On the latter, see also section IV.C.2.ii.e below. 1754 See section IV.B.2.ii.b.xiii above. 1755 P-0252: T-87 , p. 47, lines 4-21. 1756 P-0252: T-87 , p. 50, lines 3-11. 1757 P-0307: T-153 , p. 23, lines 3-11. 1758 P-0264: T-64 , p. 23, line 21 – p. 24, line 2. 1759 P-0264: T-64 , p. 24, lines 3-9. 1760 P-0264: T-64 , p. 24, line 10-20, p. 25, line 25 – p. 26, line 2. 1761 P-0264: T-64 , p. 24, lines 21-22. 1762 P-0264: T-64 , p. 24, lines 22-24. 1763 P-0264: T-64 , p. 24, line 25 – p. 25, line 1.

No. ICC-02/04-01/15 322/1077 4 February 2021

from, and if you go to the battlefield it will shield bullets and you will not be touched by

any bullet’. 1764

P-0379 stated that following abduction, recruits were beaten with a stick, anointed with

shea oil, with the sign of the cross on the forehead and hand, and instructed to declare

1765 that they would not escape, and that they should be killed in case they do.

P-0016 also referred to the practice of anointing recruits with shea oil with the stated

1766 purpose of preventing escape.

1767 P-0231, who was abducted in 1994, testified that after he was anointed with shea

butter oil, soil was smeared on him, and he was also made to drink a mixture of the

1768 two. The witness stated that he was told that the rituals were to cleanse him so that he

1769 could join the LRA. The witness stayed in the LRA for a long time, including in a

1770 relatively important position, which is why the Chamber also considers reliable the

witness’s testimony that most newly abducted people were initiated using the same

1771 ritual.

P-0227 testified that her brothers, who were abducted at the same time as her in April

1772 2005, were beaten with canes on the orders of Dominic Ongwen, ‘so that they may

forget about their homes’. 1773

1774 P-0097, who was abducted in February 2005, testified that when he was brought to

the group together with other new abductees, they were whipped with freshly cut canes,

and told that ‘that is how [the LRA] welcome people so that you do not have any thoughts

of escaping’. 1775

1764 P-0264: T-64 , p. 25, lines 2-5. 1765 P-0379: T-57 , p. 48, line 16 – p. 49, line 9. 1766 P-0016: T-34 , p. 37, lines 16-19. 1767 P-0231: T-122-CONF, p. 27, lines 2-5. 1768 P-0231: T-123 , p. 19, lines 1-8. 1769 P-0231: T-123 , p. 19, lines 9-13. 1770 See section IV.B.2.ii.a.ix above. 1771 P-0231: T-123 , p. 19, lines 19-22. 1772 P-0227: T-10-CONF, p. 6, lines 8-9, p. 8, lines 3-8. 1773 P-0227: T-10-CONF, p. 21, line 20 – p. 22, line 3. 1774 P-0097: T-108 , p. 7, line 3-5, p. 53, lines 9-11. 1775 P-0097: T-108 , p. 13, lines 5-21.

No. ICC-02/04-01/15 323/1077 4 February 2021

1776 P-0249, who was abducted during the Pajule attack, testified that after leaving Pajule, Dominic Ongwen told the abductees that if anyone tried to escape or dropped the load 1777 they were assigned to carry, they would be killed. According to P-0249, Dominic 1778 Ongwen also said that the abductees would be trained to become soldiers.

With some regularity, recruits were forced to brutally kill, or were forced to witness

1779

brutal killings, shortly after their abduction.

As explained below, the evidence demonstrates that new recruits were often forced to kill and/or to witness brutal killings. It is notable that even though memory fades with time, witnesses were able to describe their own experience in striking detail. This is in itself, in the Chamber’s opinion, an indication of the significance of this traumatic experience. In the Chamber’s evaluation, this experience largely contributed, as an

instrument of control, to obtain, and maintain, a tight grip on the part of the LRA commanders over newly abducted, often young individuals.

The Chamber recognises the evidence of P-0314 as particularly informative in this context. P-0314 testified that newly abducted people would be instructed to kill a person, while the ‘older people’ watched; 1780 a general observation which he was in position to make on the basis of his personal experience in the LRA. P-0314 then went on and stated:

This was a way of showing the person that if you also escape, then your friends will kill you. So that was a way to instill fear into the younger people, the people who had been newly abducted. The older people, if, for example, someone is extremely tired and – because sometimes people would walk for long distances carrying heavy luggage, if your feet are swollen, if you are tired, yeah, the people would disappear. But if somebody disappears, you don’t know whether the person 1781 has been released and sent back home or killed.

Indeed, the Chamber has heard evidence relating to a number of specific events of this kind.

P-0264 testified that on the second day after he was abducted, and before the witness was given any training, his unit ‘found’ some civilians. 1782 The witness and other abductees,

1776 See para. 1344 below. 1777 P-0249: T-79 , p. 39, line 23 – p. 40, line 3. 1778 P-0249: T-79 , p. 40, lines 4-6. 1779 Para. 129 above. 1780 P-0314: T-74 , p. 29, lines 18-22. 1781 P-0314: T-74 , p. 29, line 22 – p. 30, line 3. 1782 P-0264: T-64 , p. 17, lines 14-18.

No. ICC-02/04-01/15 324/1077 4 February 2021

who had been tied and were carrying items, were instructed to put down the items, untied

1783 and told that if anybody tried to run away, they would be shot. An old civilian man

1784 was bound, and the abductees were instructed to beat him. In the words of the witness:

There were so many of us, we beat the old man to death. […] We were told to, to get the old man’s blood and put it on our foreheads. We were still new, we were civilians, we were scared, there was blood, there was brains. We started taking the 1785 old man’s blood and put it on our foreheads.

In addition, P-0264 referred to another occasion in Teso, where ‘kadogi’, in the witness’s

own definition the ‘children or the young soldiers’, executed an order to kill three civilian

1786 women by stoning them to death.

As discussed below, P-0252, who was abducted during the attack on Odek,

1787 . P-0252 testified that

the LRA soldiers asked him: ‘Are you still going to escape?’, to which the witness

responded ‘In the name of God I will not escape’. 1788

P-0236 stated that shortly after her abduction, after she had been handed over to Dominic

Ongwen, two people who had allegedly escaped were killed in front of her and three

1789 other newly abducted persons. The abductees were told that if they tried to escape,

1790 the same thing would be done to them.

The Chamber also considers in this context the evidence provided by P-0379, discussed

in detail below, in relation to an incident where a young boy was killed ostensibly because

1791 he had tried to escape, and the abductees were forced to beat and touch the body.

A specific subset of evidence concerns abductees witnessing, shortly after their abduction,

the killings of other abductees who were unable to keep up with the movement of the

group that abducted them.

1783 P-0264: T-64 , p. 17, lines 22-24. 1784 P-0264: T-64 , p. 17, lines 24-25. 1785 P-0264: T-64 , p. 17, line 25 – p. 18, line 4. 1786 P-0264: T-65 , p. 23, line 5 – p. 25, line 12. 1787 See . 1788 P-0252: T-87-CONF, p. 67, line 25 – p. 68, line 1. 1789 P-0236: T-16-CONF, p. 10, line 21 – p. 11, line 21. 1790 P-0236: T-16-CONF, p. 11, lines 1-2. See also p. 11, line 22 – p. 12, line 3. 1791 See para. 981 below.

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P-0340 testified about two children from his neighbourhood who he used to play football

1792 with and who were abducted at the same time as the witness. He testified that during

the walk to Sudan following their abduction, on a mountain, ‘their feet were swollen,

they were weak, there was no food because we did not have enough food on top of that

mountain’. 1793 The witness stated that while walking, he saw two corpses along the road,

1794 one next to a tree, and the other a little further down the road. He explained that he

did not himself identify the two bodies as it was not possible to stop and do that, but that

he was told that the two bodies belonged to his friends and he also noticed their absence

1795 from the group. In more general terms, P-0340 stated:

At the time, if somebody became weak and was unable to walk, they would, they would say that the person should be put to rest or sent to rest. And the rest, we came 1796 to understand that rest meant that you would be killed.

1797 P-0406 testified that he saw the killing of one Ojuko in the Gulu area. According to

the witness, Ojuko was killed because he was unable to walk, and it was the newly

1798 abducted who were made to kill him.

P-0307 testified about an occasion in Pader, after the return from Teso, when the new

abductees who could no longer keep up with the group’s movement were killed by

1799 bayonet or clubbing. The witness stated that at the time, the commanders, including

1800 Dominic Ongwen, were there.

This is brought in context by the testimony of P-0070, who convincingly and logically

explained the link between the killings of abductees with the policy of the LRA to attack

1801 civilians in Northern Uganda who were perceived as supporting the government.

Speaking specifically in the context of the LRA operation in Lango and Teso, P-0070

stated that Joseph Kony gave the instruction to abduct more soldiers, but that the adults

1792 P-0340: T-102-CONF, p. 19, line 12 – p. 20, line 10. 1793 P-0340: T-102 , p. 18, lines 12-14. 1794 P-0340: T-102 , p. 18, lines 16-17. 1795 P-0340: T-102 , p. 18, line 21 – p. 19, line 7. 1796 P-0340: T-102 , p. 18, lines 4-8. 1797 P-0406: T-154 , p. 13, lines 2-7. 1798 P-0406: T-154 , p. 13, lines 6-21. 1799 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 57. 1800 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 58. 1801 See section IV.C.4 below.

No. ICC-02/04-01/15 326/1077 4 February 2021

who ‘are not able to move’ should be killed so as not to ‘send the secret of the group’. 1802

The Chamber understands this to be a reference to the perception on the part of the LRA

leadership that civilians in Northern Uganda were cooperating with the government,

1803 which is discussed in detail below.

P-0070 further described the order given by Joseph Kony for what the LRA should be

doing in Gulu, Kitgum and Pader:

The order that was there was purely an operation to add on to our number. People were supposed to be abducted. Those who could walk were to continue with us, 1804 those who could not were supposed to be killed.

P-0070 also testified:

If somebody is unable to walk, if – or if the person is weak, the person would be released from the ropes and killed. The rebels had a rule that you do not release people, because if you release somebody, if you release an abductee, then you are 1805 showing where you were, you are showing your direction.

c. Training

Upon abduction into Sinia brigade, recruits were given training in fighting skills, including the use of firearms. Weapons were distributed to recruits. As part of the

1806

training, recruits were also taught military discipline.

P-0070, asked specifically about boys under 15 years of age, testified that after their

abduction, they would immediately be subjected to training on how to operate a gun and

1807 how to march. P-0231 similarly stated that training commenced immediately upon

‘arrival in the bush’. 1808

P-0205 explained that the training of the recruits was generally within the domain of the

1809 commander of the unit to which they were assigned. According to the witness, only

1810 at the base in Sudan was it possible for all recruits to be gathered and trained together.

1802 P-0070: T-105 , p. 86, lines 5-12, p. 86, line 24 – p. 87, line 4. 1803 See section IV.C.4 below. 1804 P-0070: T-106 , p. 23, lines 13-18. 1805 P-0070: T-106 , p. 56, lines 16-21. 1806 Para. 130 above. 1807 P-0070: T-106 , p. 3, lines 17-20. 1808 P-0231: T-122 , p. 43, lines 6-12. 1809 P-0205: T-48 , p. 32, lines 22-25. 1810 P-0205: T-48 , p. 32, line 25 – p. 33, line 3.

No. ICC-02/04-01/15 327/1077 4 February 2021

The fact that the training of recruits was not centrally organised is corroborated by several

other witnesses. P-0309 stated that he was trained within the household where he was,

1811 and did not see any other person being trained. P-0252 testified that training took

place ‘when people are having down time’, and not on the move. 1812 P-0340 described

the training as ‘spontaneous’ and stated that ‘each group would be in charge of training

the people who were composed of it’. 1813 P-0406 also explained that recruits were trained

within their groups: in his group, four people were being trained, but in other groups

1814 other people were being trained as well. P-0249 testified that training took place

‘wherever people encamp, at any time’. 1815 A point about this was made by P-0101 who

stated that some recruits were ‘not actually trained’, and continued: ‘As soon as you are

abducted they put a gun in your hand and you are sent out to fight’. 1816

As to the content of training, P-0054 stated that LRA recruits were given training on how

to dismantle a gun, how to shoot, how to parade, and ‘how to manage yourself when you

are at the fighting or fighting front’. 1817 P-0205 stated that recruits were trained in

observation post (OP) work, and in fighting, including combat skills and in what to ‘pick’

from ‘houses’. 1818 P-0252 testified that the skills taught were how to march, how to

1819 handle a gun, and fighting tactics during battle. He stated that he was taught how to

1820 shoot a gun.

P-0264 testified that he was trained to be an escort by the person who abducted him, and

that the training involved carrying the person’s chair, walking with him, and how to use

1821 1822 a gun. Later, the witness was further trained as escort by another commander. He

1811 P-0309: T-61 , p. 34, lines 15-18. 1812 P-0252: T-87 , p. 50, line 23 – p. 51, line 15. 1813 P-0340: T-102 , p. 23, line 22, p. 24, lines 3-8. 1814 P-0406: T-154 , p. 23, lines 15-20. 1815 P-0249: T-79 , p. 40, line 24 – p. 41, line 4. 1816 P-0101: T-13-CONF, p. 64, line 24 – p. 65, line 1. The Chamber clarifies that it does not understand P-0101’s testimony to be even on its face contradictory of the testimonies of witnesses who testified as to their military training in Sinia. In any case, P-0101’s evidence is valuable, in the context of the other evidence, as the impression of a person who spent a long time in Sinia. 1817 P-0054: T-93 , p. 23, lines 4-11. P-0054 testified that he saw this training take place in Sinia brigade after Operation Iron Fist, and that he himself trained recruits in Sinia, see P-0054: T-93 , p. 23, lines 12-13; T-94 , p. 3, lines 17-18. 1818 P-0205: T-48 , p. 33, line 14 – p. 34, line 4. 1819 P-0252: T-87 , p. 50, lines 12-19, p. 51, line 23 – p. 52, line 3. See also p. 51, lines 5-15. 1820 P-0252: T-87 , p. 50, lines 20-22. 1821 P-0264: T-64-CONF, p. 12, lines 14-21. 1822 P-0264: T-64 , p. 28, lines 9-19.

No. ICC-02/04-01/15 328/1077 4 February 2021

also told the Court that he received training in the operation of the SMG – short machine

1823 gun. Further, the witness stated that when he was in Sudan, he was trained in target

1824 1825 shooting, in how to defend and to attack a position, and how to ambush.

P-0309 testified that within Dominic Ongwen’s household, the veteran LRA soldiers

1826 taught P-0309 to operate the AK-47 gun. He testified that he was also taught how PK

1827 and RPG weapons were operated. In addition to training in the use of weapons, the

witness stated that he was trained ‘to be disciplined and have respect’. 1828 P-0309 stated

that he was trained ‘how to be respectful to the commanders like Dominic, the battle-

hardened LRA soldiers’. 1829

P-0314 stated that a month or two after he was abducted he was trained in marching, use

of guns, and in ‘how to show respect’. 1830

P-0340 testified that while in Sudan he was trained in marching, assembling and

1831 disassembling the gun. P-0340 confirmed that the training also included how to

1832 behave during a live attack. The witness testified that he received a gun at a later time,

1833 after his group returned to Uganda.

P-0379 testified that he received training on how to dismantle and reassemble a gun and

1834 the names of the various parts. He stated that the veterans or the commander of the

1835 unit would instruct the newly abducted on discipline.

1823 P-0264: T-64 , p. 28, line 20 – p. 29, line 8. 1824 P-0264: T-64 , p. 29, lines 13-21. 1825 P-0264: T-64 , p. 29, line 24 – p. 30, line 2. 1826 P-0309: T-61 , p. 32, lines 1-8. 1827 P-0309: T-61 , p. 32, line 9 – p. 33, line 2. 1828 P-0309: T-61 , p. 34, line 1-5. 1829 P-0309: T-61 , p. 34, lines 1-5. 1830 P-0314: T-74 , p. 18, line 8 – p. 19, line 5. 1831 P-0340: T-102 , p. 23, line 17 – p. 24, line 2, p. 52, lines 18-22. 1832 P-0340: T-102 , p. 52, lines 23-25. 1833 P-0340: T-102 , p. 25, lines 12-17. 1834 P-0379: T-56 , p. 23, lines 10-20. 1835 P-0379: T-57 , p. 67, line 22 – p. 68, line 5.

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1836 P-0307 stated that he was trained in how to salute a superior, and in the use of a gun.

He stated that he once saw Dominic Ongwen come to the training area during his

1837 training.

P-0406 confirmed that he received military training in the LRA, and stated that this

1838 training took place in Sudan. He stated that he was trained in a group of ‘about

four’. 1839 He stated that he was trained in marching, how to dismantle and reassemble a

1840 gun, how to clean a gun. In addition, this witness testified that after the training the

1841 recruits were given three bullets each to try out.

As to the distribution of weapons to recruits, the evidence indicates that this was related

to their performance. P-0054 stated that a recruit who was ‘liked by [his] boss’ could be

given a gun after two or three months, but if a recruit was ‘lazy’, they could stay long

1842 without one.

P-0054 testified that the brigade commander and ‘CO’ were the ones to decide on the

1843 distribution of weapons, based on the maturity and strength of the person. P-0205

similarly stated that a recruit was given a gun when they ‘have already got used to the

activities’ and had the courage to stay in the bush. 1844

P-0307 testified that he received a gun after training, around Pader in about May 2003,

1845 when the person carrying it previously was killed in an exchange of fire. He stated

1846 that his superior officer ordered that the gun be given to him. He also testified more

generally that a gun was given to a recruit when it was established that he would not

1847 escape, and that this could take up to about nine months.

1836 P-0307 Statement, UGA-OTP-0266-0425-R01, at paras 68-69, 71. 1837 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 69; P-0307: T-153 , p. 20, lines 13-18. 1838 P-0406: T-154 , p. 17, lines 14-18. 1839 P-0406: T-154 , p. 21, lines 1-6. 1840 P-0406: T-154 , p. 22, lines 22-25. 1841 P-0406: T-154 , p. 22, line 25 – p. 23, line 5. 1842 P-0054: T-93 , p. 22, line 25 – p. 23, line 3. 1843 P-0054: T-93 , p. 23, lines 14-21. 1844 P-0205: T-48 , p. 34, lines 16-21. 1845 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 72; T-153 , p. 24, lines 13-23. 1846 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 72. 1847 P-0307: T-153 , p. 23, lines 13-18.

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P-0314 testified that AK-47 guns were distributed to recruits who had spent around six 1848 months in the LRA after abduction, including to himself.

Recruits were not taught, as part of their training, to distinguish between civilians and

1849

combatants, or between civilian objects and military objectives.

Even though, as can be seen from the above analysis, many witnesses were asked about the content of their training upon integration into the LRA, they did not provide any information which would go to indicating that there was any training in the distinction between enemy combatants and civilians, or between legitimate targets and protected objects, let alone any training in international humanitarian law. In fact, the testimonies of the witnesses who spoke about training in the LRA provide a basis to find that any such training was not given.

The only witness to assert that the LRA paid any attention to the principles of international humanitarian law was P-0054, who testified that as an instructor in Sinia he 1850 taught his soldiers not to mistreat civilians. However, whereas the Chamber generally deems P-0054 to be a credible witness, it remains unconvinced by this particular statement. As observed, no witness other than him – who, as an LRA instructor, had an interest in presenting himself in a positive light – provided any statement to the same effect, nor did P-0054, who merely accepted a general proposition put to him, provide any particulars of how this training would have taken place.

In fact, the Chamber cannot but make specific reference to P-0142’s response to the question whether shooting a civilian during the course of an attack would constitute an offence, which was that ‘nobody would see it as a crime if a civilian is injured or if a 1851 civilian is shot at’.

In any case, the Chamber recalls the evidence laid out just above by those who underwent training upon integration into the group, the evidence leading to the finding that the LRA perceived as associated with the Government of Uganda, and thus as the enemy, the 1852 civilians living in Northern Uganda, and the evidence of the orders given to, and the

1848 P-0314: T-74 , p. 20, line 18 – p. 21, line 6. 1849 Para. 130 above. 1850 P-0054: T-94 , p. 3, line 19 – p. 4, line 3. 1851 P-0142: T-71 , p. 25, lines 18-21. 1852 See section IV.C.4 below.

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behaviour of LRA soldiers during operations, including during the four attacks relevant 1853 to the charges. In light of this, the Chamber concludes on the basis of the evidence that the LRA did not pay attention to the protection of civilians or civilian objects in the training of its soldiers.

d. Rules of obedience and disciplinary system

There were clear rules requiring obedience of LRA soldiers, and a violent disciplinary system that guaranteed adherence to them. LRA soldiers were punished, for example, for not executing orders, losing a gun, or failing to prevent abducted persons from escaping. Penalties ranged from beating to execution. Dominic Ongwen personally ordered

1854

disciplinary measures.

As laid out below, several insider witnesses testified about the basic rules applicable to soldiers within the LRA. The Chamber finds instructive in this context the evidence of those insider witnesses who were asked whether, during their time in the LRA, they could refuse orders. This evidence, while general or even hypothetical, provides insight into the insiders’ understanding of their own status within the LRA, and is as such of

assistance to the Chamber.

A considerable number of witnesses, in particular lower ranking insiders, testified 1855 categorically that in the LRA, no one could refuse orders, most commonly referring 1856 to the risk of being killed. In the view of the Chamber, this evidence of how LRA soldiers perceived their situation while integrated into the organisation, is highly indicative of the nature of the organisation and demonstrative of the ability of its commanders to rely on their subordinates for the execution of the orders they issued.

P-0252 summarised the rules applicable in the LRA as follows:

The rules that was given to me, one, respect your superior, when he is passing refer to him as ‘lapwony’. When they call you, you should respond while calling the name of that person and say – when you mention the name, make sure it accompanies with the word ‘lapwony’. When you are sent to do something, ensure 1857 that you do it and you do it quickly.

1853 See sections IV.C.6, IV.C.7, IV.C.8, IV.C.9 below. 1854 Para. 131 above. 1855 P-0067: T-126 , p. 37, lines 14-18; P-0142: T-72 , p. 62, lines 7-14; P-0226: T-9-CONF, p. 36, lines 5-8; P- 0252: T-87 , p. 61, lines 4-5; P-0264: T-65 , p. 15, lines 9-21, p. 16, lines 4-11; P-0379: T-57 , p. 67, lines 10-18. 1856 P-0142: T-72 , p. 62, lines 7-14; P-0226: T-9-CONF, p. 36, lines 9-10; P-0252: T-87 , p. 61, lines 6-13; P-0264: T-65 , p. 15, lines 22-24, p. 16, lines 4-11. 1857 P-0252: T-89 , p. 35, lines 19-25.

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P-0264 also testified that LRA members were obliged to address their commanders by 1858 titles indicating their higher seniority, in particular ‘lapwony’, ‘ladit’ or ‘afande’. On

this point, the evidence indeed demonstrates that Dominic Ongwen was referred to by the title ‘lapwony’, 1859 1860 as well as by the title ‘afande’.

Asked about whether he could have refused the order to participate in an attack on Acet, 1861 P-0252 stated: ‘You cannot refuse. There is no way out when you are told to go.’

Asked what would happen if one refused, the witness stated one would be considered as 1862 wanting to escape or being a collaborator and killed.

P-0264 summarised as follows the rules of obedience applicable in battle:

The rules about battles is that when you are instructed not to capture people, then when you’re a soldier you should not capture anybody. If you’re instructed to go and fight and charge every item that you will find, so if any of the soldier does not charge the items, then there are rules that will also target you. Or there could be rules that says when you fight do not charge any item, but you go against and you go ahead to charge, then you will also be punished. If you get money, a big sum of money and you hide that money, you don’t declare, then there are also rules that will be used because they will say you want to escape. If you get a woman during when you go to fight and you rape that woman, yes, then there are also rules that 1863 will apply against you.

More generally in relation to the rules enforced in the LRA, P-0264 stated:

The rules that are put in the LRA, which were general rules for all – for everybody, is that when instructions are given not to do a certain thing and you violate it, then you are taken as somebody who has violated. Then the appropriate punishment will 1864 be decided.

The record of the case contains consistent evidence of disciplinary measures being

applied in the LRA in an immediate, crude and brutal manner. It was not based on clear

rules and procedures, but on arbitrariness and fear.

1858 P-0264: T-65 , p. 16, line 20 – p. 17, line 11. 1859 P-0097: T-108 , p. 41, lines 4-6. See also P-0097: T-108 , p. 14, lines 14-21; P-0226: T-8-CONF, p. 18, lines 16-19; P-0233: T-111-CONF, p. 69, lines 11-16; P-0249: T-79 , p. 42, lines 19-21; P-0280: T-84 , p. 69, line 4 – p. 70, line 23; P-0340: T-102 , p. 17, lines 8-9. 1860 P-0293: T-139 , p. 18, lines 11-18. 1861 P-0252: T-87 , p. 61, lines 4-5. 1862 P-0252: T-87 , p. 61, lines 6-13. 1863 P-0264: T-65 , p. 15, lines 10-19. 1864 P-0264: T-65 , p. 16, lines 3-7.

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P-0379 made this point very clearly, testifying about a certain Olet, who was severely

1865 punished by beating for forgetting his gun during an attack. Asked about who carried

out the beating, the witness responded:

You know, when you are in the army, if you, if you breach any rules, if somebody is supposed to be beaten we all usually rush to beat that person, because that person, whoever it is, you also feel that you have to punish that person regardless of whether or not that person is your friend. Because if next time you are the one who is in breach of the rules the same thing will happen to you. So everybody actually 1866 [beat] Olet.

P-0314 testified in some detail about his experience of disciplinary measures in Sinia. He

gave the example of a soldier who was beaten with sticks and later had to carry luggage

‘like newly abductees’ because he had lost his gun. 1867 He also gave the example of

himself, testifying that on one occasion he was beaten with sticks because he had

1868 forgotten the salt that he was assigned to carry. More generally, he mentioned letting

1869 prisoners or abductees escape as a reason for beating.

P-0252 further described an incident in the Atoo hills after the Abok attack when he, and

1870 another LRA soldier, were ordered to kill a cow. The witness stated:

We were helpless. We were not strong enough. I refused, that I could not kill the animal. I was hit on my chest with a big stick. I still have the scar up to now. And when I bent down, then I was kicked that I should get up. I got up but I would fall 1871 again.

1872 In the end, P-0252 participated in killing the animal.

P-0406 stated that he was beaten with a stick for imitating radio communications for

1873 fun. The witness testified that he was also beaten in Teso, because two abductees who

1865 P-0379: T-57 , p. 50, lines 10-22. 1866 P-0379: T-57-CONF, p. 51, lines 8-13. 1867 P-0314: T-74 , p. 31, line 6 – p. 32, line 10. 1868 P-0314: T-74 , p. 32, lines 11-19. 1869 P-0314: T-74 , p. 32, lines 19-20. 1870 P-0252: T-87 , p. 82, lines 7-23. 1871 P-0252: T-87 , p. 82, line 23 – p. 83, line 1. 1872 P-0252: T-87 , p. 83, lines 1-8. 1873 P-0406: T-154 , p. 40, line 17 – p. 41, line 5.

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1874 were put under his guard escaped. P-0406 also testified that not making the

commander’s bed properly was another offence punished by beating. 1875

P-0205 referred to a specific instance after the attack on Lukodi, when a soldier was given

100 lashes for refusing to ‘go on the standby to collect food’. 1876 The witness also

mentions himself being punished by beating,

1877 .

Even though Dominic Ongwen was battalion and brigade commander, respectively, in

Sinia during the period of the charges, and therefore relatively high in the hierarchical

organisation of the brigade, witness evidence indicates that he also intervened in specific

disciplinary matters, including minor ones. For the Chamber, this is an important

indicator that Dominic Ongwen was fully aware of the organisational features of Sinia,

and that he contributed to sustaining it.

An example of Dominic Ongwen enforcing discipline and hierarchy was reported by P-

0307 He stated that soon after his abduction, in one instance he failed to salute

1878 properly. According to the witness, Dominic Ongwen then held a knife to the

witness’s chest and reprimanded the witness, commanded him to lie down and ordered

1879 the others to hit him on the back of his head with a club. The witness specified that

1880 he was hit lightly and was in the end left unharmed. Upon suggestion by Defence

counsel that it could have been meant as a joke by Dominic Ongwen, the witness rejected

this and stated ‘he was threatening me’. 1881 He also stated: ‘From that day I knew who

1882 Dominic Ongwen was and never forgot him’.

1874 P-0406: T-154 , p. 41, lines 12-16. 1875 P-0406: T-154 , p. 41, lines 9-11. 1876 P-0205: T-48 , p. 44, line 11 – p. 45, line 4. 1877 P-0205: T-48-CONF, p. 49, lines 14-25. 1878 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 20. 1879 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 20. 1880 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 20. 1881 P-0307: T-153 , p. 12, lines 20-25. 1882 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 20.

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P-0097 testified that he saw that on a specific occasion, Dominic Ongwen ordered the beating of a boy who had been instructed to prepare meals and ‘did not cook well’. 1883

The evidence indicates that corporal punishment was predominant, but there is some evidence of other types of punishment. P-0070 testified that if somebody fled from battle they would be punished by having to carry heavy weapons, or by being sent onto the 1884 battlefield without weapons.

The Chamber notes that while, as stated above, LRA soldiers referred to the threat of being killed if they did not obey orders, the actual occurrence of killings as punishment is mainly attested in relation to escapes and in the context of the LRA treatment of women 1885 and girls, and is as such addressed below. The Chamber also returns to this topic in 1886 the section on duress as a ground excluding criminal responsibility.

The Chamber also notes the evidence in relation to ‘arrest’ and ‘prison’ in the LRA, which is discussed in detail below in the context of the brief arrest of Dominic Ongwen 1887 in April 2003.

The evidence on the record leaves no doubt to the Chamber that the LRA was effective in the use of a disciplinary system to ensure compliance. But to accurately reflect the evidence, the findings in the present section need to be juxtaposed with findings in relation to a particular issue discussed above in respect of the higher echelons of the LRA hierarchy. Whereas LRA commanders at levels such as brigade or battalion did not have the general power to ignore or refuse orders from Joseph Kony – coming directly or indirectly through in particular Vincent Otti –, there is indication in the evidence that 1888 they were at least occasionally able to do so. In addition, as discussed above, the commanders possessed a degree of autonomy on which also the operation of the LRA as 1889 such depended. Thus, it is clear that the constant fear of violence affected the lower levels of the LRA hierarchy more strongly. Indeed, the narrative of the LRA as an organisation where all decisions and orders emanated exclusively from Joseph Kony

1883 P-0097: T-108 , p. 42, lines 3-15. 1884 P-0070: T-106 , p. 41, lines 20-24. 1885 See sections IV.C.2.ii.e and IV.C.11.iv below. 1886 See section IV.D.2 below. 1887 See section IV.C.3 below. 1888 See para. 870 above. 1889 See para. 872 above.

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while any other person was constrained to simply execute them regardless of their will, is not demonstrated by the evidence in such absolute terms; to the contrary, as outlined above, any such narrative needs to be relativised as concerns persons at relatively high positions in the hierarchy, such as brigade and battalion commanders, who, instead, maintained agency within the organisation.

e. Preventing escape

Sinia members, and LRA members generally, were threatened with death if they attempted escape. On certain occasions, execution of re-captured escapees in fact took place. Dominic Ongwen personally issued threats to LRA members that they would be killed if they attempted to escape, and ordered killings of abductees in front of LRA

1890

members to illustrate this threat.

1891 Considering that, as explained above, the LRA obtained new members through abduction, it is not surprising that in any examination of the LRA as an organisation the topic of escape must feature prominently. In the present case, due to duress having been raised by the Defence as a ground excluding criminal responsibility, the possibility of escaping in particular of the accused from the LRA has become one of the central 1892 disputed issues of fact. It is discussed within the context of duress below. But the possibility of escape, and the measures taken to prevent escape by the leaders of Sinia, and the LRA in general, are also relevant for a determination of the nature of the organisation. In the view of the Chamber, the repression of escape from Sinia and the LRA was one of the crucial factors in how the organisation sought to and succeeded in having at its disposal a sufficient number of individuals to execute the orders and instructions given by the leaders. As shown below, Dominic Ongwen personally participated in sustaining the LRA system of repression of escape.

The issue before the Chamber is not whether people escaped from the LRA as it is clear that many did. The subject of interest is rather the stance that the LRA took towards members escaping, and the effect it had on the membership.

Several witnesses testified generally about this topic. The Chamber begins its analysis by reference to those witnesses who, on account of their position within the LRA and/or on

1890 Para. 132 above. 1891 See section IV.C.2.ii.a above. 1892 See section IV.D.2.iv below.

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account of their long stay inside the organisation, were well positioned to make general observations.

P-0054 testified that LRA members were told that if they escaped and were captured 1893 again, they would be killed. He further stated that he indeed witnessed someone being 1894 killed. P-0070 similarly stated that if an abducted person attempted to escape, they 1895 would be beaten to death with a log.

P-0205 stated that when abductees were brought in, they were told that they were to stay, that they were not to try to escape, and that they would be killed if they escaped and were 1896 caught. When asked whether any other form of punishment was applied to those who tried to escape, the witness responded:

With the LRA if you escape and they follow you, if they apprehend you, if you are 1897 lucky, you are beaten. If you are unlucky, you are killed. P-0205 also explained that sometimes, recaptured escapees were killed on the spot, but on other occasions they were brought back into the group where they were killed in the 1898 presence of others. P-0226 similarly made the point that ‘[i]f the person who tried to escape was a boy, then they would call the other boys, his peers to come and kill him’, and that if it was a girl who tried to escape, ‘[t]hen it would be the girls who would be 1899 called to beat the person to death’. This evidence of execution for attempted escape regularly taking place in front of other members is important, as it indicates that such executions had a deterrent purpose.

Several other witnesses provided evidence of having been present when threats were made towards members of Sinia during gatherings to prevent escape attempts. Notably, P-0309 and P-0379 provided testimony indicating that at least on two occasions, on Dominic Ongwen’s specific order, abductees were killed in front of LRA members for

1893 P-0054: T-94 , p. 45, line 21 – p. 46, line 10. 1894 P-0054: T-94 , p. 46, lines 11-14. 1895 P-0070: T-106 , p. 63, lines 10-12. 1896 P-0205: T-48 , p. 31, lines 11-22. 1897 P-0205: T-49 , p. 6, lines 10-13. 1898 P-0205: T-49 , p. 7, lines 3-16. 1899 P-0226: T-8-CONF, p. 64, lines 12-16. See also P-0226: T-9-CONF, p. 3, lines 3-4.

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no reason other than to impress on those present that they would also be killed if they

attempted to escape.

P-0309 stated that one day, Dominic Ongwen gathered people together, sat in front of

1900 them and spoke about the escapes from the LRA. The witness testified that Dominic

Ongwen ordered some more senior LRA soldiers to select four newly abducted people

1901 and kill them. Four persons were indeed selected, tied using the shirts that they were

wearing, pushed so that they fell down and then stabbed with knives until they died; in

1902 the presence of others, including the witness. Those present were warned that if they

1903 attempted to escape, that was what would happen to them. The Chamber clarifies that,

in light of its general assessment of P-0309’s credibility, and on the basis that this

particular part of his testimony is detailed and coherent, it fully accepts the testimony of

the witness in this regard, including on the personal involvement of Dominic Ongwen.

A similar description of an incident personally involving Dominic Ongwen is given by

P-0379, who stated that at one point near Pajule, Dominic Ongwen addressed the soldiers

at a parade and stated that he did not know why people were escaping, and why people

1904 did not want to stay in the bush ‘when the whole world is crying out against us’.

According to the testimony of P-0379, Dominic Ongwen asked those present: ‘If you

escape where are you going to stay?’ 1905 Dominic Ongwen continued stating that if

anybody tried to escape, he was going to teach them a lesson and let them know that it is

1906 bad to escape. Dominic Ongwen then instructed two boys who had been tied up to be

brought in, and ordered those present, , and persons under 15 years

1907 of age, to kill them as a lesson that it is bad to escape. They, ,

1908 started beating the two boys, and killed them.

1900 P-0309: T-60 , p. 40, lines 7-9. 1901 P-0309: T-60 , p. 39, lines 19-24, p. 40, lines 21-23. 1902 P-0309: T-60 , p. 40, lines 10-12, p. 40, line 24 – p. 41, line 3. 1903 P-0309: T-60 , p. 40, lines 10-12. 1904 P-0379: T-57-CONF, p. 75, lines 13-24. See also T-57-CONF, p. 78, lines 4-7. 1905 P-0379: T-57-CONF, p. 75, line 24. 1906 P-0379: T-57-CONF, p. 76, lines 4-6. 1907 P-0379: T-57-CONF, p. 76, lines 6-8, p. 77, line 22 – p. 78, line 3. 1908 P-0379: T-57-CONF, p. 75, lines 9-11, p. 76, line 9.

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P-0379 also described a parade shortly after his abduction, after which the abductees

1909 were gathered together and a boy who had been bound was brought. The witness

stated that he and the other abductees were told the following:

[I]n the LRA what we really don’t want is the issue of escaping, or having to think

about home. Whenever you are here forget about home. Whoever tried to escape will be killed. And we are going to show you as an example, we abducted him earlier and he thought he was wise, he refused to stay with us, he escaped thinking we would not find him again. We shall not forgive him. We shall kill him. You will 1910 be the ones to kill him.

Still according to the witness, thereafter some more senior LRA soldiers went away from

1911 the scene with the boy and killed him using a bayonet. Afterwards the abductees,

including the witness, were told to go see the body, touch it, and beat it, which they

1912 did.

Also in this regard, it is noted that P-0231 testified that he was told in the LRA that if he

1913 1914 tried to escape and was caught, he would be killed. P-0330 stated the same.

P-0309 testified that on another occasion, one boy called Cidoro attempted to escape but

1915 was apprehended, brought back and flogged. P-0309 testified that this ‘really scared’

1916 him. Indeed, when asked why he did not try to escape during his time in the LRA, the

witness stated that this was ‘because of the things that I witnessed, killing people, the

extreme punishment of anybody who tried to escape, and the killing of people who tried

to escape’. 1917 Noting that the witness did in the end escape after about a year and a

1918 half, the Chamber finds his testimony compelling, emblematic of the fate of LRA

members in general, and indicative of the effectiveness of the organisation.

P-0406 testified that he was present when Joseph Kony addressed the LRA soldiers in

Sudan from the top of a rock, telling them not to escape and warning that if they did

1909 P-0379: T-56 , p. 21, lines 22-24. 1910 P-0379: T-56 , p. 21, line 24 – p. 22, line 5. 1911 P-0379: T-56 , p. 22, lines 10-11. 1912 P-0379: T-56 , p. 22, lines 11-16. 1913 P-0231: T-123 , p. 20, lines 18-20. 1914 P-0330: T-52 , p. 72, lines 9-14. 1915 P-0309: T-61 , p. 41, lines 11-18. 1916 P-0309: T-61 , p. 41, line 18. 1917 P-0309: T-61 , p. 41, lines 6-10. 1918 P-0309: T-61-CONF, p. 42, lines 1-23.

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1919 escape, they would be caught and killed. Asked what impression these words made

on him, the witness stated: ‘At that time I believed it because he warned us that if you

don’t believe, he would know.’ 1920

In fact, witnesses have stated that they were afraid during their time in the LRA of

engaging in actions, even if innocuous, which could make it appear that they were

1921 thinking of escaping and thus put them at risk of violence. Witnesses were also

1922 hesitant about sharing their escape plans with others. This fear, entirely explicable in

light of the evidence, also finds validation in radio intercept evidence. On 11 November

2003, the ISO logbook records a message sent by Joseph Kony instructing that if any

1923 plans of escaping are discovered, the person must immediately be killed.

Further on this topic, P-0264 provided a personal story of how the threats and fear

affected his thinking about escape. He testified that after the first battle in his life, the

fighters were convened in the evening, and went on to say the following:

[W]e were given instructions to boost our morale, we were told not to be afraid of those kind of things. The people who had sustained injuries were thinking about escaping and that’s why they got shot. So each and every individual should stop thinking about going home. If you’re still thinking about escaping, thinking about going home, then, yes, you will be shot and, yes, you will be shot and killed. So every individual should stop thinking about going home. And, well, I was – personally I was extremely afraid of that happening. After that, I kept on thinking […] about the instructions that we’d been given and I decided not to think about home and I decided to follow what my commanders […] were instructing me. And 1924 that’s how I remained in the LRA.

P-0264 also testified that shortly after his abduction, one of his friends escaped, and was

1925 chased by LRA soldiers. These soldiers later returned and said that they had found

1926 and killed the escapee. It was only when the witness returned back home that he

1919 P-0406: T-155 , p. 17, lines 3-24. 1920 P-0406: T-155 , p. 18, lines 3-7. 1921 See , for example, P-0097: T-108 , p. 71, lines 12-18; P-0138: T-121 , p. 47, lines 13-16; P-0374: T-150 , p. 45, lines 15-21; P-0406: T-156 , p. 12, lines 7-14; D-0006: T-194-CONF, p. 19, line 23 – p. 20, line 4; D-0074: T-187 , p. 49, line 20 – p. 50, line 3. 1922 See , for example, P-0016: T-34 , p. 37, lines 20-25; P-0097: T-108 , p. 51, line 24 – p. 52, line 2; D-0024: T- 192 , p. 45, lines 15-23; D-0068: T-222 , p. 46, lines 2-8; D-0092: T-208 , p. 54, lines 4-16; D-0119: T-196 , p. 44, lines 15-21; D-0134: T-241-CONF, p. 21, lines 6-9. 1923 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0038. 1924 P-0264: T-64 , p. 36, lines 6-16. It is noted that in the end, P-0264 succeeded in escaping when the LRA was in the Central African Republic, see P-0264: T-65 , p. 35, line 23 – p. 40, line 10. 1925 P-0264: T-64 , p. 18, lines 14-17. 1926 P-0264: T-64 , p. 18, line 17 – p. 19, line 7.

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1927 learned that in fact the friend who had escaped was still alive. In the assessment of

the Chamber, this event – indicating that ensuring that individuals in the organisation

believed that punishments for persons who disobeyed the rules were carried out was more

important than actually inflicting those punishments – also helps to understand that the

repression of escapes in the LRA was employed primarily as a tool to maintain control

within the organisation over the individuals at large, going beyond the mere function of

punishment of persons who disobeyed the rules.

There is further evidence of specific incidences of persons being killed for attempting to

escape from Sinia. P-0314 testified about one Opoka who escaped with ‘some young

girls who belonged to the commander’, and was caught. 1928 He stated that Opoka was

killed, while the girls were ‘just beaten because there was somebody else who was trying

to escape with them’. 1929

P-0351 stated specifically that while she was staying in Dominic Ongwen’s group, a man

1930 who had attempted escape was re-apprehended and brought back. A group of men

1931 and boys beat the man with a log and killed him. P-0307 also referred to a specific

1932 occasion when an escapee was re-apprehended and beaten to death.

Finally, P-0264 reported that he attempted to escape at some point but was re-

1933 apprehended. He provided a detailed account of how he was beaten with a machete

and stepped on and told to ‘[l]ook at the sun for the last time’, but then his punishment

was interrupted by the arrival of a helicopter which started dropping bombs and shooting

1934 at the LRA. He explained that afterwards, the people who had beat him decided to let

1927 P-0264: T-64 , p. 19, lines 8-11. 1928 P-0314: T-74 , p. 34, line 10 – p. 35, line 12. The witness remembered that Opoka and the girls were staying at ‘the superior commander’s household’, but initially could not remember who that person was. After the regular hearing break, he stated that that commander was Buk. When read a prior statement to the effect that Opoka was one of the soldiers who stayed with Dominic Ongwen, he stated that he was not sure which was right. P-0314: T- 74 , p. 36, lines 4-24. In light of this, without this having any further effect on the reliability of the witness, the Chamber cannot make any finding as to who was the senior commander in question. 1929 P-0314: T-74 , p. 35, lines 2-5. 1930 P-0351 Statement, UGA-OTP-0263-0002-R01, at para. 66. 1931 P-0351 Statement, UGA-OTP-0263-0002-R01, at para. 66. 1932 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 56. 1933 P-0264: T-64 , p. 20, lines 15-19. 1934 P-0264: T-64 , p. 20, line 18 – p. 21, line 24.

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1935 him live. P-0264 specified that this incident happened when he was in Terwanga

1936 battalion, and gave the names of the persons involved in his beating.

Members were also threatened that their home areas would be attacked by the LRA if

1937

they escaped.

There is consistent witness evidence that LRA members were threatened with collective

punishment of their home areas if they attempted to escape. P-0205 testified that all

abductees in the LRA would be told that their home areas would be attacked if they tried

1938 to escape. He also stated that he was himself in fear that if he escaped, his village

1939 would be punished. P-0231 provided similar testimony, stating that he was told that

if someone escaped and survived they would go to their home area and kill people there,

and that they would leave a letter stating that people were killed because the person

1940 1941 escaped. P-0406 also confirmed that he heard this threat in the LRA.

P-0070, speaking in general terms, stated that if somebody escaped and the LRA knew

their home area, when they passed through the area there would be repercussions in the

1942 form of attacking and killing people. The witness testified that on abduction, the

abductee’s name as well as the names of their parents and their home area would be

written down, and they would be told that in case they escaped this information would

1943 be used.

Turning to whether this form of punishment in fact occurred, the Chamber first notes that

there is evidence that this was the case before the relevant period for the charges, in

particular in the 1990s. two such operations, in

1944 Padibe in 1995 and in Mucwini in 1997. Daniel Opiyo also testified about an LRA

attack directed at the home area of an escaped child, around the end of 1996, in

1945 Cetkana.

1935 P-0264: T-64 , p. 22, lines 2-5. 1936 P-0264: T-64 , p. 22, line 16 – p. 23, line 16. 1937 Para. 132 above. 1938 P-0205: T-49 , p. 10, line 24 – p. 11, line 2. 1939 P-0205: T-49 , p. 11, lines 3-8. 1940 P-0231: T-123 , p. 20, lines 21-25. 1941 P-0406: T-156 , p. 10, lines 10-13. 1942 P-0070: T-106 , p. 62, lines 17-22. 1943 P-0070: T-107 , p. 10, lines 10-16. 1944 1945 D-0056: T-228-CONF, p. 18, lines 10-24.

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The Defence has emphasised that at least one such attack occurred also during the period 1946 of the charges, in July 2002 at Mucwini.

1947 1948 1949

In addition, an entry in the ISO logbook for the date of 27 July 2002 records Joseph Kony explaining to Vincent Otti that the killings of civilians which had recently been undertaken by the LRA in Mucwini came as a result of one person grabbing the gun from 1950 an LRA soldier. According to the ISO logbook, Joseph Kony also stated that up to 54 1951 people were killed in the operation.

1952 1953

In conclusion on this point, the Chamber accepts as established that the attack on civilians in Mucwini took place and that it was executed in response to escape by an abductee, immediately preceding it.

The Chamber also accepts that this event was significant and became notorious in the 1954 LRA, as demonstrated by the fact that it was reported by witnesses who heard about it. In the view of the Chamber, the collective awareness of the attack in Mucwini added to the believability of the threat issued to LRA members that if they escaped, their home 1955 areas would be attacked. This was explicitly acknowledged by P-0233. This is independent from the fact that, actually, as it appears on the evidence, the circumstances of the attack on Mucwini, i.e. in particular the fact that the person who escaped did so

1946 Defence Closing Brief , para. 690. 1947 1948 1949 1950 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0327. 1951 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0327. 1952 1953 1954 See P-0233: T-112 , p. 24, lines 13-23; P-0352: T-67 , p. 90, lines 4-10. 1955 P-0233: T-112 , p. 24, line 24 – p. 25, line 2.

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after stealing a weapon and opening fire on the LRA, are distinguishable. It is notable

that the fact that a gun was stolen and that were emphasised in Joseph Kony’s radio message.

A further measure taken to discourage escaping was giving soldiers false or negative information about life outside of the LRA, including that they would be killed by government soldiers if they escaped and went home, and preventing them from obtaining

1956

information through public radio broadcasts.

There is witness testimony in relation to LRA members being given false or negative

information about life outside of the LRA. Several witnesses testified that LRA members

were told that government soldiers would kill them if they escaped from the LRA and 1957 went home. P-0070 confirmed that LRA members were told that the UPDF would kill 1958 them. P-0231 stated that it was frequently explained to people that if they escaped and

returned home, the government soldiers would capture and imprison them, and not allow 1959 visits from their family members.

In addition, very specifically, P-0264 testified that he was told by an LRA soldier about two weeks after his abduction that his parents had both been killed and that there was ‘no

reason for you to go home’. 1960 1961 This was, however, not true.

As concerns the prohibition of listening to public radio broadcasts, the Chamber first

notes that the radio broadcasts in question were primarily those of Mega FM, a Gulu-

based radio station which frequently reported on LRA activities and also broadcast a

radio show known as Dwog Cen Paco, which featured persons who had successfully

escaped from the LRA and published direct appeals to LRA members to defect, including 1962 by publicising the promise of amnesty.

1956 Para. 132 above. 1957 P-0054: T-94 , p. 45, line 21 – p. 46, line 7; P-0138: T-121-CONF, p. 20, lines 2-11; P-0172: T-113 , p. 45, line 21 – p. 46, line 7; P-0314: T-74 , p. 62, line 25 – p. 63, line 4; P-0372: T-149 , p. 22, line 19 – p. 23, line 1. 1958 P-0070: T-107 , p. 35, line 24 – p. 36, line 5. 1959 P-0231: T-123 , p. 24, lines 7-13. 1960 P-0264: T-64 , p. 19, line 12 – p. 20, line 2. 1961 P-0264: T-64 , p. 20, lines 3-5. 1962 See P-0145: T-143 , p. 35, line 21 – p. 36, line 25; P-0307: T-152 , p. 69, lines 2-13; P-0440: T-40 , p. 15, lines 2-14; T-41 , p. 5, lines 2-7.

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P-0054 stated that it was generally not allowed in the LRA to listen to the radio, and that

1963 1964 this prohibition came from Joseph Kony. P-0440 testified identically on this issue.

The ISO logbook contains a reference to Joseph Kony instructing LRA members not to

listen to Radio Uganda and other FM radio stations, with the explanation that they only

‘talk lies’. 1965 P-0145 stated that there were times when LRA soldiers were prohibited

from listening to Mega FM except for senior commanders, but, at times, junior

1966 commanders or officers were allowed to listen too. This means that in spite of the

prohibition, some information broadcasted did reach the members of the LRA. P-0145

confirmed that the main programme of interest to those in the bush was Dwog Paco: ‘what most people wanted to find out was whether it was true; if you went home, would

you be killed, would you survive?’ 1967 P-0307 also testified that he was able to listen to

1968 Mega FM while in the LRA.

P-0054 also stated that ‘[t]he LRA would say if you returned home the government

soldiers would take you to the radio, but while holding you [at] a gunpoint, they would require you to speak only what they would want you to communicate out’. 1969 Similarly,

P-0406 testified that he was told that the voices of escapees on Mega FM were just

1970 recordings, and that the people who spoke were recorded and killed thereafter. P-0145

stated that in the LRA, people were told that as soon as they came out of the bush they

1971 would be killed, and that voices would be recorded and put on Mega FM as a hoax.

This evidence indicates convincingly that the LRA sought to manage the information

available to its members, in order to prevent them from developing a realistic view on

the possibility and consequences of escaping. As such, this is a means squarely fitting

within the measures employed in the LRA to sustain a sufficient number of individuals

on whom to rely for the execution of orders. This measure affected mostly the lower

ranking soldiers, who were largely prohibited from listening to public radio broadcasts.

1963 P-0054: T-94 , p. 40, lines 13-21. 1964 P-0440: T-41 , p. 5, lines 8-10. 1965 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0499. See also UPDF Logbook (Soroti), UGA-OTP-0254- 1991, at 2069. 1966 P-0145: T-143 , p. 37, lines 18-22. 1967 P-0145: T-143 , p. 38, lines 16-20. 1968 P-0307 Statement, UGA-OTP-0266-0425-R01, at para. 79; P-0307: T-152 , p. 69, lines 2-18. 1969 P-0054: T-94 , p. 46, lines 15-19. 1970 P-0406: T-156 , p. 11, lines 12-20. See also P-0231: T-123 , p. 24, line 22 – p. 25, line 4. 1971 P-0145: T-143 , p. 36, lines 14-22.

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On the other hand, the evidence demonstrates that commanders generally had the ability to and did listen to public radio.

f. Living conditions

Sinia, and more generally LRA members, especially those of lower rank, suffered from hunger and lack of adequate clothing. They regularly slept outside on the ground. There

1972

was no or very limited treatment available in case of sickness or injury.

In the view of the Chamber, hunger, as well as lack of adequate clothing and medical treatment, which were reported by witnesses as regular problems faced in the LRA, compounded the suffering of the LRA members. Some witnesses described specifically the emotional strain this placed on them during their time in the LRA. It is only natural to conclude that this situation made LRA members more susceptible to the authority of the leaders, and less able to resist their control.

P-0252 testified that LRA soldiers survived on ‘greens and leaves and whatever you find edible from the bush’, and that there was a difference between what the commanders ate 1973 and what the foot soldiers ate. He gave the specific example of the practice of drying beef so that the commander could ‘keep[] eating that dried meat’. 1974 P-0340 similarly testified that in periods of shortage, food was reserved only for commanders, and the rest of the LRA members had to continue moving until food was looted, when they could eat 1975 again. P-0379 testified that if there was enough food, and if they were not being 1976 pursued, there could have been two meals a day in his unit. However, during a pursuit or when there was a helicopter gunship hovering above, there would be no meal during 1977 the day, but only in the evening. The witness also testified that the quantity of the available food depended entirely on the looting from civilians, and that in times of 1978 shortage items like chicken or beans were given to the commanders. P-0406 stated that when he was abducted in 2002 there was enough food, but ‘between 2003 and 2004, life became extremely hard, and we did not have sufficient food. If you wanted food, you

1972 Para. 133 above. 1973 P-0252: T-88 , p. 30, lines 11-16. 1974 P-0252: T-88 , p. 30, lines 17-20. 1975 P-0340: T-102 , p. 50, lines 19-25. 1976 P-0379: T-58 , p. 9, lines 15-21. 1977 P-0379: T-58 , p. 9, lines 22-23. 1978 P-0379: T-58 , p. 9, line 24 – p. 10, line 8.

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1979 had to go to the camps and fight.’ P-0314 also testified that there was a food shortage

1980 in the LRA.

P-0070 testified that sometimes things were fine for the newly abducted, and sometimes

1981 not, depending on the situation. He stated that in particular following an abduction of

a large number of persons, they could not have anywhere to sleep, blankets or anything

1982 to cover themselves, or enough food. Asked specifically about footwear, the witness

explained that new abductees who arrived with shoes kept them, but otherwise were not

1983 given any. Similarly, P-0406 stated that in 2003-2004, LRA members were wearing

1984 tattered clothing, and did not have bedsheets to cover themselves.

1985 P-0264 testified that there was nowhere else to sleep except in the bush. After arriving

at a position each day, ordinary soldiers had to set up their own beds, using a net or tent

1986 if they had one, and otherwise using grass in the rainy season. P-0314 testified that

when he was abducted there was no tent that he could use, so he slept in the open, but

1987 that during the rainy season a tent was put up and eight persons slept inside. The

witnesses consistently testified that relatively more comfort was available to

commanders. P-0340 stated that tents were only meant for the commanders, and the rest

1988 of the people would sleep around a bonfire without the protection of a tent. P-0286

1989 also testified that only commanders had tents, whereas P-0379 stated that some foot

1990 soldiers also had tents. P-0379 testified that in many cases commanders had thin,

foldable mattresses, but that the ordinary soldiers and the newly abducted people did not

1991 have beds. P-0410 also mentioned that his commander’s bed was made using a

1992 foldable mattress. Some soldiers had polythene bags that they used for sleeping as a

1979 P-0406: T-154 , p. 84, lines 16-20. 1980 P-0314: T-75 , p. 52, lines 5-7. 1981 P-0070: T-106 , p. 57, lines 2-6. 1982 P-0070: T-106 , p. 57, lines 6-9. 1983 P-0070: T-106 , p. 58, lines 9-14. 1984 P-0406: T-154 , p. 84, lines 21-25. 1985 P-0264: T-65 , p. 58, lines 8-10. 1986 P-0264: T-65 , p. 58, lines 13-18. 1987 P-0314: T-75 , p. 50, line 23 – p. 51, line 7. 1988 P-0340: T-102 , p. 52, lines 2-7. 1989 P-0286: T-131 , p. 58, lines 13-14. 1990 P-0379: T-58 , p. 9, lines 1-7. 1991 P-0379: T-58 , p. 9, lines 8-13. 1992 P-0410: T-151 , p. 24, lines 10-20.

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1993 bed. P-0406 testified that while commanders had beds, ‘we just slept anywhere we

could rest our heads’. 1994 In this context, the Chamber also refers to its findings below,

to the effect that commanders, including Dominic Ongwen, forced abducted women and

1995 girls to perform domestic work in their households.

P-0070 stated that in the LRA, people also died of sickness, and mentioned in particular

1996 that during the time the LRA was in Sudan, a cholera epidemic killed a lot of people.

1997 P-0205 also stated that in the LRA, obtaining medicines was a problem. P-0372 stated

that no medicine was available in the LRA, and that apart from dressing the wounds, no

1998 other treatment could be given to the injured.

In addition, the Chamber also heard evidence describing generally the emotional

condition of LRA members. P-0070 stated that newly abducted people were very fearful,

because they were not used to gunshots or being pursued by gunships or armoured

1999 vehicles. Indeed, P-0309 testified that he had never seen killings before his abduction,

and that the first time he saw it he got ‘so scared’ and was shaking. 2000

The Chamber also finds very compelling the testimony of P-0340, who, asked about the

relationships with other abductees, responded as follows:

In the bush there was nowhere you could form friendship. Because if you stay close to each other they would think you are either planning to escape and it was therefore 2001 difficult for you to create friendship with others.

This, even if just a personal perception on the part of the witness, illustrates the constant

state of fear and apprehension created by the conditions in which LRA members lived.

1993 P-0379: T-58 , p. 9, lines 13-14. 1994 P-0406: T-154 , p. 85, lines 1-3. 1995 See sections IV.C.10.ii.c, IV.C.11.vi below. 1996 P-0070: T-106 , p. 63, lines 13-15. See , on the cholera epidemic before the period of the charges, also P-0231: T-123 , p. 5, lines 9-10; P-0226: T-8-CONF, p. 43, lines 16-19. 1997 P-0205: T-49 , p. 66, lines 19-22. 1998 P-0372: T-148 , p. 65, line 25 – p. 66, line 4. 1999 P-0070: T-106 , p. 61, line 22 – p. 62, line 2. 2000 P-0309: T-61 , p. 50, line 22 – p. 51, line 2. 2001 P-0340: T-102 , p. 52, lines 8-12. See also P-0330: T-53 , p. 47, lines 10-15.

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3 Dominic Ongwen’s position within the LRA

At the beginning of the period relevant for the charges, on 1 July 2002, Dominic Ongwen was battalion commander, in charge of the Oka battalion of Sinia brigade. Dominic

2002

Ongwen was promoted to the rank of major on 1 July 2002.

In the present section, the Chamber lays out its analysis of evidence in relation to the

position occupied by Dominic Ongwen in the LRA, and in particular within Sinia, during

the period relevant for the charges, i.e. between 1 July 2002 and 31 December 2005. It is

important to note that the evidence in relation to how Dominic Ongwen exercised his

authority, discussed at various other points in this judgment, is also relevant and supports

the conclusions reached in this section.

2003 Dominic Ongwen was born in or around 1978 and abducted into the LRA in 1987. At

the commencement of the period relevant for the charges, he held the position of

commander of Oka battalion in Sinia brigade. This is established by the testimonies of

P-0205 and P-0231, who testified that Dominic Ongwen was the commander of Oka 2004 battalion at the time the LRA returned from Sudan following Operation Iron Fist.

ISO logbooks of radio communications provide further corroboration. They record, on 2005 2006 20 September 2002 and 2 December 2002, transmissions of overviews of the

structure of the LRA, including references to Dominic Ongwen as battalion commander

in Sinia brigade.

As to Dominic Ongwen’s rank, the ISO logbook indicates that he was promoted from the

2007 rank of captain to the rank of major on 1 July 2002. This is confirmed by P-0231, who

testified that at the time of his injury, which as discussed in the following section occurred 2008 in October or November 2002, Dominic Ongwen held the rank of major.

2002 Para. 134 above. 2003 See section I.C above. 2004 P-0205: T-47 , p. 17, line 25 – p. 18, line 7; P-0231: T-122-CONF, p. 27, line 24 – p. 28, line 5. See also P- 0070: T-105 , p. 67, line 24 – p. 68, line 3 (testifying that Dominic Ongwen was battalion commander in Sinia ‘[f]rom the time we left Sudan during the Iron Fist’ up to 2003). As explained above, the LRA move from Sudan following Operation Iron Fist occurred a short time before 1 July 2002. See section I.A above. 2005 ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0166-67. 2006 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0079. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2007 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0246, 0248. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2008 P-0231: T-122 , p. 53, lines 12-15.

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In October or November 2002 Dominic Ongwen was injured and placed in sickbay until around mid-2003. From at least December 2002 onwards, he again exercised his authority as battalion commander. In April 2003, Dominic Ongwen was briefly arrested by Vincent Otti. The arrest did not interrupt the exercise of his authority for any significant

2009

period.

There are two particular events in Dominic Ongwen’s personal chronology in the LRA of which the particular relevance for the charges has been extensively discussed during the trial and is disputed by the parties: Dominic Ongwen’s injury in late 2002, and his arrest by Vincent Otti in 2003.

2010 As to the injury, the parties agree, and the evidence consistently demonstrates that Dominic Ongwen was injured in late 2002. The disagreement between the parties relates to the effect this injury had on his performance of tasks as an active senior LRA commander. While the Prosecutor submits that even if injured, Dominic Ongwen retained control over Sinia fighters and was operational again by at least 6 December 2011 2002, the Defence submits that Dominic Ongwen ‘spent the next one to one and a half years in sickbay’, did not retain command of his unit at the time, and, in the final 2012 instance, could not have participated in the LRA attack on Pajule in October 2003.

As concerns the arrest, the Defence case is that at the time of the Pajule attack, while in 2013 sickbay, Dominic Ongwen was under arrest by Vincent Otti. The Prosecution, relying primarily on the radio intercepts, concedes that Dominic Ongwen was indeed arrested ‘briefly’ in 2003, but argues that this occurred around 20 April 2003 and that Dominic Ongwen was ‘back in action two days after his arrest’. 2014

In the following paragraphs, the Chamber considers first the evidence relating to Dominic Ongwen’s injury in late 2002 and, second, the evidence in relation to his arrest by Vincent Otti in April 2003. Third, the Chamber addresses the question of the impact of either of these events on Dominic Ongwen’s activities in the LRA in mid-2003.

2009 Para. 135 above. , para. 33 (stating that Dominic Ongwen was injured ‘on or around 9 November 2010 Prosecution Closing Brief 2002’); Defence Closing Brief , para. 313 (stating that the injury took place in ‘late 2002’). 2011 Prosecution Closing Brief , paras 34-45. 2012 Defence Closing Brief , paras 313-314. 2013 Defence Closing Brief , paras 308, 315, 322, 685. 2014 Prosecution Closing Brief , paras 46-49.

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The circumstances of Dominic Ongwen’s injury are described consistently by witnesses

P-0231, P-0205 and P-0379, who have detailed knowledge of the matter, based on their

personal observation as LRA fighters in close proximity to Dominic Ongwen.

P-0231 stated that Dominic Ongwen was injured during a mission ‘towards the border

between Acholi and Karamoja’, specifically ‘between Adilang and Patongo, towards the

Lango side’. 2015 He testified that the unit did not actually arrive at the place of the mission

but turned back before, and engaged in fighting with some UPDF soldiers during their

2016 return, at which point Dominic Ongwen was shot in the leg.

P-0205 testified that Dominic Ongwen was injured at Ngora on the way to attack

2017 Abim. Specifically, P-0205 states that Dominic Ongwen was shot in the leg during an

2018 ambush while they were trying to cross the Ngora road. P-0205 stated that he had

already crossed the road, when an escort of Dominic Ongwen found him and told him

2019 that Dominic Ongwen had been injured. P-0205 turned back with the escort and went

2020 to the location where Dominic Ongwen was. P-0205 carried Dominic Ongwen from

2021 there.

P-0379 and P-0330 corroborated this sequence of events from their viewpoint. P-0379

stated that Dominic Ongwen was shot in the thigh when crossing a road, and initially left

2022 behind with his escort. The witness was in a group that had already gone ahead, when

Dominic Ongwen’s escort came and told them Dominic Ongwen had been shot. 2023 They

2024 returned to where Dominic Ongwen was and carried him away from there. P-0330 in

turn stated that he was in the same group with Dominic Ongwen when the latter was shot

2025 in the leg in an ambush while crossing a road.

2015 P-0231: T-122 , p. 52, lines 13-25. 2016 P-0231: T-122 , p. 53, lines 1-4. 2017 P-0205: T-47 , p. 22, lines 4-10, p. 25, lines 10-18. 2018 P-0205: T-47 , p. 22, lines 4-10. 2019 P-0205: T-47 , p. 22, lines 15-21. 2020 P-0205: T-47 , p. 22, lines 21-22. 2021 P-0205: T-47-CONF, p. 22, line 22. 2022 P-0379: T-56 , p. 55, lines 4-11. The Chamber notes that P-0379 stated that Dominic Ongwen was injured on the ‘road leading to Patongo’ ( T-57 , p. 3, lines 9-11), around Kalongo (T-59-CONF, p. 20, line 23 – p. 21, line 11), which is compatible with P-0205’s evidence. 2023 P-0379: T-56 , p. 55, lines 12-13. 2024 P-0379: T-56 , p. 55, lines 16-20. 2025 P-0330: T-52 , p. 67, lines 13-25.

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2026 Further corroboration of the above testimonies was provided by P-0226 and P-0235.

The Chamber observes that the witnesses referred to above have used different place

names to indicate the approximate location, but that these indications are compatible, and

all indicate that Dominic Ongwen was injured at a location somewhere in the area of

Patongo, Kalongo, and Adilang.

Regarding the approximate date of the injury, the Chamber notes that the testimonies of

P-0231 and P-0205, who testified about the date, are relatively consistent. P-0231 stated

that it happened at some point in the period between August and October 2002, after 2027 operation Iron Fist and during the rainy season when the grass had overgrown. P-0205 2028 testified that the injury took place in October or November 2002.

The Prosecution puts forward the specific date of 9 November 2002, referring in particular to logbook evidence as ‘mak[ing] clear that Mr Ongwen was injured in early

November’. 2029 The logbook entry in question, summarising a radio conversation

intercepted by the ISO on 12 November 2002, reads as follows:

M/while Kony asked Dominic to send him the loses he incured in the two contacts with UPDF recently. Dominic told Kony that 54 soldiers were wounded in Saturdays clash with UPDF at Olung [?] Primary school. He reported among the 2030 wounded were some offrs, and one offr has his right leg broken.

In the view of the Chamber, the content of the logbook entry is not conclusive by itself

because it does not explicitly refer to Dominic Ongwen as the injured officer. Also from

the other information given, that link cannot be made with confidence. For this reason,

2026 P-0226 testified that Dominic Ongwen was shot after an attack on Patongo, when they were walking away and crossing a road. P-0226: T-9-CONF, p. 67, line 22 – p. 68, line 13. P-0235 also testified that Dominic Ongwen was injured near the Kalongo road, which is an indication of location compatible with the above-cited witnesses, and that he was carried away by his escort to a meeting with Vincent Otti. P-0235: T-17-CONF, p. 57, line 10 – p. 58, line 3. 2027 P-0231: T-122 , p. 52, lines 13-17; T-123 , p. 48, lines 16-24. 2028 P-0205: T-47 , p. 22, lines 4-10, p. 25, lines 10-18. 2029 Prosecution Closing Brief , para. 33. 2030 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0025. The Saturday before 12 November 2002 was 9 November 2002. The same clash had been reported the day before, on 11 November 2002, as having taken place ‘y/day’, i.e. on 10 November 2002, ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0021-22. The ISO logbook also records Dominic Ongwen as sending a report in the morning of 10 November 2002, reporting a clash with the UPDF ‘in a place called Ciga Ciga’, ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0019-20. It is not possible to determine on the face of the logbook whether this is the same or a separate clash, or indeed to conclusively date the clash in which the officer had his leg broken.

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the Chamber does not rely on this logbook entry for the determination of the date of Dominic Ongwen’s injury, and instead relies on witness testimonies.

The Chamber also acknowledges the statement of P-0236 as it is relatively precise as to when Dominic Ongwen’s injury occurred. P-0236 stated that Dominic Ongwen was brought injured during Independence Day celebrations around one month after her 2031 abduction, meaning around 9 October 2002. Accounting for the difficulties in estimating the dates of distant events, P-0236’s testimony may be considered in line with the rest of the evidence. The reference to Independence Day celebrations, however, is not confirmed by P-0231, P-0205 or P-0379, all witnesses with more immediate direct knowledge, and therefore the Chamber attributes no significance to it.

It must in any case be noted that a finding on the specific date of the injury is not required. The Chamber considers the evidence to be overall compatible, and finds it sufficient to conclude that the injury took place in October or November 2002.

On this specific point, the Chamber considered, but ultimately did not accept, the 2032 evidence of P-0235. P-0235 spontaneously placed the time of injury in 2003, and testified it took place ‘around August’. 2033 In light of other evidence, discussed above, which is detailed and contextualised, the estimation of the date given by P-0235 is 2034 unconvincing.

The evidence is clear that following his injury, Dominic Ongwen was placed in an LRA 2035 sickbay. According to the evidence, in the LRA a sickbay was where the sick and 2036 injured as well as nursing mothers were kept grouped together. A sickbay was organised for one or more brigades, depending on the location where an injury occurred 2037 and where the nearest sickbay was. Notably, a sickbay was not fixed at a particular

2031 P-0236: T-16-CONF, p. 38, line 18 – p. 39, line 13. 2032 P-0235: T-17-CONF, p. 57, lines 9-18. 2033 P-0235: T-17-CONF, p. 59, lines 9-15. 2034 It is also noted that P-0235 estimated the duration of Dominic Ongwen’s recovery at one and a half years ( see para. 1043 below), which would bring the recovery towards the end of 2004 if not further, a proposition which is entirely out of line with the rest of the evidence. 2035 P-0231: T-122 , p. 53, lines 16-21; P-0205: T-47 , p. 25, lines 3-9; P-0309: T-61 , p. 38, lines 4-24; P-0379: T- 56 , p. 56, lines 11-14. See also P-0330: T-52 , p. 69, lines 7-9. In light of the other consistent evidence, the Chamber attributes no consequence to P-0330 describing the sickbay as a ‘Gilva bay’. 2036 P-0142: T-71 , p. 22, lines 2-7; P-0016: T-34 , p. 7, line 22-23. 2037 P-0142: T-71 , p. 22, lines 13-16.

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2038 place, but moved, depending on the danger posed by government soldiers. As such, the Chamber observes that an LRA sickbay was not so much a fixed place, but rather an organisational unit.

The evidence indicates that part of the Oka battalion, the battalion under Dominic Ongwen’s command, stayed at the sickbay with him, and that altogether there were about 2039 20-25 people at the sickbay. P-0231 stated that Odong Cowboy, Oka deputy commander at the time, was in charge of the sickbay until his surrender to the 2040 government. Evidence indicates that Odong Cowboy escaped from the LRA in March 2041 2003.

Another part of the Oka battalion, however, did not stay at the sickbay with Dominic 2042 Ongwen. These soldiers were under the responsibility of another person from the Oka 2043 battalion, whom P-0205 identified as Cele.

Some of the charges brought against Dominic Ongwen span across the period of his injury and subsequent stay in sickbay. The Chamber must therefore determine whether Dominic Ongwen exercised his powers as commander of Oka battalion also during that period.

In this regard, the Chamber concludes that any disruption to Dominic Ongwen’s exercise of his powers as Oka battalion commander was limited in time. As laid out in the following paragraphs, as early as December 2002, Dominic Ongwen was again exercising his authority as battalion commander.

This is demonstrated first by the evidence which shows that Dominic Ongwen retained command while in sickbay. P-0231 testified that the sickbay sustained itself through

2038 P-0142: T-71 , p. 22, lines 17-22. See also P-0205: T-49 , p. 68, lines 8-10. 2039 P-0205: T-47 , p. 25, lines 19-23; P-0231: T-122 , p. 55, lines 21-24; P-0309: T-62 , p. 27, line 22 – p. 28, line 2. 2040 P-0231: T-122 , p. 53, line 22 – p. 54, line 3; T-123 , p. 50, lines 19-25. P-0205 corroborated that Odong Cowboy was at the sickbay with Dominic Ongwen and that he was Oka deputy commander at the time, P-0205: T-47 , p. 25, line 19 – p. 26, line 13. 2041 See para. 2622 below. 2042 P-0231: T-122 , p. 57, lines 6-13. 2043 P-0205: T-50 , p. 12, lines 14-16. See also P-0205: T-49-CONF, p. 64, lines 18-21. P-0231 testified that the part of Oka battalion which did not stay with Dominic Ongwen at the sickbay was under the responsibility of Otto Agweng, the IO in Oka battalion, while there were also ‘some other officers (P-0231: T-122 , p. 59, lines 6-17). Noting that P-0231 explained that he was not sure about the matter, and noting that the issue is of limited importance, the Chamber considers that there is no need to further address the matter.

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‘operations’, which meant going to ‘collect food’, and that whenever fighters went on

such operations, they informed Dominic Ongwen and obtained his go ahead in

2044 advance. P-0231 testified generally that during Dominic Ongwen’s time in sickbay,

the members of Oka battalion who were in sickbay followed Dominic Ongwen’s

instructions, but that Dominic Ongwen otherwise did not issue any orders to other

2045 members of the group during that time. Daniel Opiyo also testified that at the time

Dominic Ongwen did not have any authority, but was ‘respected as a high ranking officer

who was a patient at the sickbay’. 2046

The matter-of-fact observation of P-0101 is also valuable in this context. She stated in

respect of Dominic Ongwen’s authority while in sickbay: ‘[e]ven if he was still weak

physically he could still use his mouth to give instructions or orders because if a superior

gives instructions, you have to go and follow what he says’. 2047

2048 P-0205 testified that while in sickbay, Dominic Ongwen sent people to ‘work’.

Specifically, P-0205 stated that in December 2002, Dominic Ongwen ‘sent people to

collect cows, cattle from Pajule’, 2049 and that in February 2003 Dominic Ongwen, while

2050 still in sickbay, ordered an attack on Opit. P-0205 also testified that a month after the

attack on Opit, he attended an RV where it was stated that Dominic Ongwen was

2051 promoted. According to the witness, Buk Abudema had come from Sudan and handed

2052 over to Dominic Ongwen the items he had brought, and gave him instructions. P-0205

testified that because Dominic Ongwen ‘couldn’t move far’, he was taken back to the

2053 sickbay.

P-0379 similarly stated that sometime between February and April 2003, Dominic

Ongwen sent people to conduct an ambush on the UPDF who were patrolling on the

2054 Lalogi road, but did not himself go. He stated that at that time, Dominic Ongwen

2044 P-0231: T-122-CONF, p. 54, lines 16-23. 2045 P-0231: T-122 , p. 60, lines 8-16. 2046 D-0056: T-228 , p. 61, lines 22 – p. 62, line 1. 2047 P-0101: T-13-CONF, p. 57, lines 3-5. 2048 P-0205: T-47 , p. 28, lines 23-25. 2049 P-0205: T-47 , p. 29, lines 1-3. 2050 P-0205: T-47 , p. 29, line 16 – p. 30, line 10. 2051 P-0205: T-47 , p. 32, lines 15-23. 2052 P-0205: T-47 , p. 32, line 24 – p. 33, line 11. 2053 P-0205: T-47 , p. 33, lines 7-9. 2054 P-0379: T-59-CONF, p. 36, line 8 – p. 37, line 2.

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could walk, but was still limping, and ‘wasn’t yet doing very well’. 2055 He also testified

2056 that while in sickbay, Dominic Ongwen sent soldiers to Awere. P-0379 also testified

that Dominic Ongwen personally led an attack on Opit, and that he was able to walk at

2057 2058 the time. Considering that P-0379 placed this attack after the attack on Awere,

2059 which took place in April 2003, this was a separate event than the one described by

P-0205 as taking place in February 2003.

Further, P-0366 testified that at the time when she escaped, Dominic Ongwen was able

to ‘walk for short distances and rest’. 2060 As discussed above, P-0366 escaped around

2061 February 2003. In turn, P-0231 testified that at the time of Dominic Ongwen’s arrest

2062 he was able to ‘walk but using a stick’.

It can be concluded from the above that Dominic Ongwen was able to walk by around

February – April 2003. Because the evidence of P-0205, P-0379, P-0366 and P-0231 is

more specific and contextualised, the Chamber does not base itself on P-0235’s statement

that Dominic Ongwen’s recovery took about one and a half years until he was able to

2063 finally walk. While the Chamber does not doubt that P-0235 spent time with Dominic

Ongwen during this period, her evidence is but a general estimate, and is affected also

by her claim that Dominic Ongwen was injured in August 2003, which, as outlined above,

2064 is unconvincing and does not accord with the rest of the evidence.

The evidence also indicates that while in sickbay, Dominic Ongwen maintained

communication with other high commanders of the LRA. P-0379 testified that during the

time in sickbay ‘many people’ came to visit Dominic Ongwen. 2065 He stated that Buk

Abudema came once, Charles Tabuley came several times, and Lagoga and Odhiambo

2066 also came. P-0205 also testified that he visited Dominic Ongwen while he was in

2055 P-0379: T-59 , p. 37, lines 3-13. 2056 P-0379: T-57 , p. 8, lines 10-15. See para. 1160 below. 2057 P-0379: T-57 , p. 13, lines 14-15, p. 14, lines 3-5. 2058 P-0379: T-57 , p. 8, lines 10-17. 2059 See para. 1160 below. 2060 P-0366: T-147 , p. 93, line 25 – p. 94, line 17. 2061 See para. 410 above. 2062 P-0231: T-122-CONF, p. 63, line 23 – p. 64, line 1. 2063 P-0235: T-17-CONF, p. 59, lines 2-8. 2064 P-0235: T-17-CONF, p. 59, lines 9-15. 2065 P-0379: T-57 , p. 5, lines 8-9. 2066 P-0379: T-57 , p. 5, lines 10-16.

No. ICC-02/04-01/15 357/1077 4 February 2021

2067 sickbay. The Chamber notes that P-0309 stated that he did not see Vincent Otti, Raska

Lukwiya, Charles Tabuley or Tolbert Yadin come visit Dominic Ongwen at the sickbay,

and that he did not know whether Buk Abudema, David Oyenga or Cesar Acellam visited

2068 either. However, the Chamber considers that this evidence does not bring into

question the reliability of the testimonies of P-0379 and P-0205, especially given that P-

0309 was a low-ranking LRA member and that visits to Dominic Ongwen could occur

2069 without his knowledge.

As to radio communications, P-0231 testified that at the sickbay Dominic Ongwen did

2070 not have any radio communication equipment. But asked how Dominic Ongwen

would communicate from the sickbay with the rest of the Oka battalion, the witness stated

that ‘they would find us’. 2071 2072 There was a scheduled RV every month for this purpose.

P-0231 testified that while Dominic Ongwen did not normally attend these meetings, he

came for meetings with the brigade commander, or if there was anything specific that he

2073 wanted to discuss. Similarly, Daniel Opiyo stated that there was no radio at the

2074 sickbay, but that the units which brought food sometimes came with the radio. He

2075 stated that it was important for Dominic Ongwen to know what was going on. In line

with these witnesses on the point that Dominic Ongwen used a radio device brought by

visitors while in sickbay, P-0016 stated that when he visited Dominic Ongwen in sickbay,

his own radio was used to send out a message that Dominic Ongwen was fine, as Dominic

2076 Ongwen did not have a radio at the time. P-0205 further testified that Dominic

2067 P-0205: T-47 , p. 27, lines 2-5. 2068 P-0309: T-62 , p. 24, lines 5-12. 2069 See also section IV.B.2.ii.b.xvi above. 2070 P-0231: T-122 , p. 57, lines 16-18. See also P-0330: T-52 , p. 81, lines 6-13. 2071 P-0231: T-122 , p. 57, lines 16-20. Indeed, the ISO logbook indicates that in late November 2002, arrangements were made to transfer Dominic Ongwen’s radio to another unit, ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0063, 0067. 2072 P-0231: T-122 , p. 57, line 21 – p. 58, line 2. 2073 P-0231: T-122 , p. 59, line 20 – p. 60, line 3. 2074 D-0056: T-228 , p. 61, lines 8-11. 2075 D-0056: T-228 , p. 61, lines 12-21. D-0056 testified that he spent time with Dominic Ongwen at the sickbay, T-228 , p. 60, line 20 – p. 61, line 1. 2076 P-0016: T-34-CONF, p. 19, lines 8-17; T-35-CONF, p. 16, lines 8-16.

No. ICC-02/04-01/15 358/1077 4 February 2021

2077

Ongwen had access to radio communications when he visited him in sickbay. P-0235

2078

testified that in sickbay, Dominic Ongwen used a radio to communicate.

Finally, in this context, it is noted that Dominic Ongwen’s name is included in the list of

call signs transmitted by Joseph Kony’s signaller on 2 December 2002,

2079

and a number

of radio communications were intercepted which indicate that Dominic Ongwen was

active on radio shortly after this time.

According to the ISO logbook, on 8 December 2002, Dominic Ongwen told Joseph Kony

that he ambushed a vehicle on 6 December 2002 on the Kitgum-Gulu road at Ogom near

2080

Angagura. The logbook records Joseph Kony responding that ‘what Dominic did was very good by ambushing [a] veh[icle]’.

2081

A UPDF logbook of intercepted

communication records Dominic Ongwen as active on radio on 1, 5, 6 and 9 February

2082

2003 Then, on 10 February 2003, Dominic Ongwen is recorded as informing Raska

2083

Lukwiya that Pokot was with him, but that Ojok had gone for another mission. This

entry specifically corroborates the evidence of witnesses who stated that even when in

sickbay, Dominic Ongwen exercised his role as commander, including by sending his

subordinates on missions. Further logbook evidence indicates that on 12 February 2003,

2084

Dominic Ongwen reported that he ambushed and burnt a vehicle the previous day.

2077 P-0205: T-47 , p. 27, lines 6-8. 2078 P-0235: T-17-CONF, p. 67, line 25 – p. 68, line 5. In light of the evidence cited in this paragraph, the Chamber does not find decisive the evidence of P-0330, who responded negatively to the question whether he saw anyone visit Dominic Ongwen at the sickbay with a radio, see P-0330: T-52 , p. 81, lines 14-15. 2079 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0079. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2080 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0093. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2081 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0093. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2082 UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3446, 3450, 3452, 3457. The Chamber notes that there are no corresponding logbook entries from other intercepting agencies for these specific dates, but considers, in light of its general discussion of the reliability of intercept evidence, that the UPDF logbook is sufficiently reliable in the context at hand. 2083 UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3459. The Chamber notes that there are no corresponding logbook entries from other intercepting agencies for this specific date, but considers, in light of its general discussion of the reliability of intercept evidence, that the UPDF logbook is sufficiently reliable in the context at hand. 2084 UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3461. The Chamber notes that there are no corresponding logbook entries from other intercepting agencies for this specific date, but considers, in light of its general discussion of the reliability of intercept evidence, that the UPDF logbook is sufficiently reliable in the context at hand.

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On 18 March 2003, Vincent Otti is recorded in the ISO logbook as sending a message to Dominic Ongwen instructing him to ‘make sure he plants landmines (APM) in the

position he is moving to attack’. 2085 On 1 April 2003, Dominic Ongwen is recorded in

the ISO logbook as reporting to Joseph Kony that a soldier, ‘left to keep women in the

camp (hideout)’, had sex with Abudema’s and Charles Otim’s so-called ‘wives’. 2086 On

2 April 2003, Dominic Ongwen reported that he had already killed the soldier pursuant

to Joseph Kony’s order. 2087 On 9 April 2003, Vincent Otti is recorded as giving an order

2088 to, inter alia , Dominic Ongwen to mobilise soldiers. On 16 April 2003, Joseph Kony

is recorded in the ISO logbook as ‘blast[ing]’ Dominic Ongwen, calling him a ‘weak’

commander and saying that ‘if Dominic is not careful, then he will be demoted so that another off[ice]r take charge of that BN’. 2089

The Chamber therefore concludes, on the evidence, that Dominic Ongwen’s access to

radio communication during his stay in sickbay may not have been permanent, but that

he nevertheless had access to a radio at times and did communicate on radio with some

regularity.

Following the chronology of the relevant historical facts, the Chamber considers at this juncture the evidence in relation to Dominic Ongwen’s arrest by Vincent Otti. As

submitted by the Prosecutor, on 20 April 2003, in a radio communication which was

intercepted and logged by both the ISO and the UPDF, Joseph Kony ordered the arrest

2085 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0026-27. The Chamber notes that while the entries in the corresponding UPDF logbooks do not mention this specific detail, both in fact stop their entries after recording the conversation between Joseph Kony and the person not affiliated with the LRA, while the ISO logbook clearly recorded more details of the LRA radio communication at this broadcast time ( see UPDF Logbook (Gulu), UGA- OTP-0254-3399, at 3523; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6248). 2086 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0071-72. See also UPDF Logbook (Gulu), UGA-OTP-0254- 3399, at 3548; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6257. 2087 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0073. The Chamber notes that while the entries in the corresponding UPDF logbooks do not seem to contain this detail, they appear overall less detailed than the ISO logbook entry for this specific communication time ( see UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3548- 49 or UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6257-58). 2088 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0098. The Chamber notes that while not containing the specific instruction given by Vincent Otti, the UPDF Gulu logbook does mention Tabuley as passing on the order from Kony to Otti which precedes the instruction from Otti ( see UGA-OTP-0254-0455, at 0463). While the UPDF Soroti logbook does not mention either instruction, it overall contains much less detail than the other logbook entries for this communication time ( see UGA-OTP-0242-6212, at 6265-66). 2089 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0124. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0455, at 0491.

No. ICC-02/04-01/15 360/1077 4 February 2021

2090 of Dominic Ongwen over a matter involving contact with General Saleh of the UPDF.

2091 On 21 April 2003, Vincent Otti reported that Dominic Ongwen had been arrested.

P-0231 testified that Dominic Ongwen was arrested by Vincent Otti and accused of

2092 communicating with the Government of Uganda by phone. As a result, the senior

soldiers who had been at the sickbay with Dominic Ongwen were told that they were

going to be monitored by Vincent Otti’s security, while the rest of the people would be

2093 staying nearby. Vincent Otti stated that he would wait for an instruction from Joseph

2094 2095 Kony. The order was given that their weapons be taken away. Dominic Ongwen

and the rest of the group remained under arrest by Vincent Otti for ‘between three weeks

and a month’. 2096 Thereafter, the arrestees were summoned by Vincent Otti and told they

2097 were now free. They separated from Vincent Otti and went to an area close to the

2098 2099 Aswa River. At some point afterwards, they went to Teso.

There is a great amount of detail both in the record of the intercepted communication and

in the testimony of P-0231, which leads the Chamber to conclude that both sources refer

to the same event and complement each other. P-0231’s evidence provides detail as to

how Dominic Ongwen’s arrest came about and what it meant for him to be arrested,

whereas the intercept evidence assists in dating the occurrence. In this last regard, the

Chamber notes that P-0231 understandably did not provide a date when Dominic

Ongwen was arrested. Nevertheless, the relative references to the timing of the event in

his testimony, i.e. the reference that it happened while Dominic Ongwen was in sickbay

2100 and after the first escape of Odong Cowboy in 2003, are entirely compatible with the

logbook evidence.

2090 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0136-37; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0505-06. See also section IV.B.3.ii.b above. 2091 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0139; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0509-10. 2092 P-0231: T-122-CONF, p. 62, lines 2-19. 2093 P-0231: T-122-CONF, p. 62, line 24 – p. 63, line 4. 2094 P-0231: T-122-CONF, p. 62, lines 15-18. 2095 P-0231: T-123-CONF, p. 56, lines 13-17. 2096 P-0231: T-122-CONF, p. 64, lines 8-11. 2097 P-0231: T-122-CONF, p. 64, lines 11-14. 2098 P-0231: T-122-CONF, p. 64, lines 15-18. 2099 P-0231: T-122-CONF, p. 78, lines 4-9. 2100 The evidence generally indicates that Odong Cow escaped in March 2003. See para. 2622 below.

No. ICC-02/04-01/15 361/1077 4 February 2021

The Chamber notes that whereas P-0379 admitted to having only very limited knowledge, he stated that Kidega at one point, after Odong Cow had already escaped, brought a phone 2101 to Dominic Ongwen, which P-0379 saw. This, in the specific circumstances, provides additional corroboration to the logbook evidence and the evidence of P-0231.

The Chamber clarifies that it does not base its findings on the issue of Dominic Ongwen’s 2102 arrest on the UPDF intelligence report referred to by the Defence. The report, dated August 2003, and signed by a UPDF intelligence officer, states that ‘Comdr Odomi narrowly escaped firing squad when he was [ sic ] reportedly received some bags and money from Saleh’. 2103 However, it is not possible to ascertain the source from which the UPDF obtained the information. For this reason, the Chamber does not rely on the UPDF intelligence report and instead relies on the available reliable evidence of events surrounding Dominic Ongwen’s arrest, in particular the logbook evidence and the testimony of P-0231.

Together with the above witness and logbook evidence, which relates specifically to the question of arrest, it is pertinent to also take into account other evidence which indicates Dominic Ongwen’s activities in the immediate period following this arrest around April 2003. This is because, in the final instance, the question of fact is not whether Dominic Ongwen was arrested, but rather whether he was active as LRA commander throughout this period, without any significant interruption. It may be added that the same evidence also allows for determining any impact that the continuing effects of Dominic Ongwen’s injury may have had on his activities.

In this regard, the Chamber notes that already on 22 April 2003, Dominic Ongwen is recorded in the logbooks as communicating with other senior LRA commanders in 2104 relation to the retrieval of certain hidden weapons. He is recorded as on air in the 2105 UPDF logbook on 25, 26 and 27 April 2003. On 28 April 2003, according to both the ISO and UPDF records of intercepted communications, he reported to Joseph Kony on

2101 P-0379: T-59 , p. 67, lines 13-23. 2102 Defence Closing Brief , para. 685, n. 1113 referring to UPDF Report, UGA-OTP-0255-0943, at 0945. 2103 UPDF Report, UGA-OTP-0255-0943, at 0945. 2104 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0141; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0512. 2105 UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0522, 0525, 0527. See also ISO Logbook (Gulu), UGA- OTP-0063-0002, at 0149, 0152, 0155.

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2106 the situation on the ground in Lagile, and received instructions. The intercept

logbooks also record Dominic Ongwen as communicating on the radio on 29 April

2107 2108 2109 2110 2111 2003, 1 May 2003, 3 May 2003, 4 May 2003, and 5 May 2003.

At this point, the Chamber makes several observations. First, the Chamber notes the

evidence received in relation to ‘arrest’ and ‘prison’ within the LRA. This evidence

indicates that these concepts referred not to punishment by detention in a confined space,

but rather to a specific measure used for commanders, of which the central feature was

the (temporal) stripping of usual authority. P-0054 explained, in general terms:

[I]f, for example, someone does something bad, that person will be removed from there and transferred to another brigade. Once you arrive there you would be told to remain there as a prisoner. When you arrive there you may have been transferred with your whole family so you would still be doing some duties. So when you are transferred sometimes you are transferred with the whole family. And when there is work to be done you may be deployed. Or at least one of your soldiers would go 2112 for that duty.

The witness also stated that being in prison meant that one’s rank has been removed, and

2113 that the person has been put under someone else.

2114 P-0070 testified that this punishment was applied ‘regularly’, ‘on several occasions’.

He explained that the arrest or jailing of a commander meant the loss of the right of

leadership, whereas a junior soldier would be given luggage to carry under this

2115 punishment. P-0070 specified that an imprisoned person would not be taken to

2106 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0161; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0531. 2107 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0164; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0534. 2108 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0171; UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0543. 2109 UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0552. See also ISO Logbook (Gulu), UGA-OTP-0063- 0002, at 0177. 2110 UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0559. See also ISO Logbook (Gulu), UGA-OTP-0063- 0002, at 0183. 2111 UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0562-63. See also ISO Logbook (Gulu), UGA-OTP-0063- 0002, at 0186-87. 2112 P-0054: T-94 , p. 13, lines 16-25. 2113 P-0054: T-94 , p. 14, lines 14-20. 2114 P-0070: T-106 , p. 41, line 25 – p. 42, line 1. 2115 P-0070: T-106 , p. 42, lines 2-6.

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another place, but would stay in the convoy; only a brigade commander would be sent to 2116 Control Altar.

P-0070’s evidence received corroboration from P-0144, who stated that when a commanding officer of a unit was detained, he would be free to move, but would lose 2117 control of his unit until he was reinstated. Simon Tabo also provided a similar 2118 description of ‘prison’ as a form of punishment in the LRA.

Second, for this reason the Chamber does not see a contradiction between the radio intercept evidence, which shows Dominic Ongwen as active mere days after the order for his arrest was given by Joseph Kony, and the evidence of P-0231, who stated that the arrest continued for up to one month. Even under arrest and under close supervision by Vincent Otti, Dominic Ongwen could in fact continue to act. There is evidence of his actions as LRA commander from the end of April onwards and in light of this evidence, the fact whether he was formally under arrest fades in importance. 2119 Third, Dominic Ongwen was promoted in September 2003 as discussed below. In the assessment of the Chamber, this is another element which shows that the effect of Dominic Ongwen’s arrest in April 2003 was limited.

On the basis of the above, the Chamber concludes that Dominic Ongwen’s arrest in April 2003 did not for any significant period interrupt the exercise of his authority as commander.

As discussed in the following paragraphs, the evidence indicates that at some point in mid-2003, Dominic Ongwen also left the sickbay where he had stayed following his injury. However, the relevance of this fact for the charges is limited, given the evidence that he was active also during his stay in the sickbay. The time that Dominic Ongwen finally left the sickbay can be distilled from the following evidence, consisting of various broadly compatible estimates.

2116 P-0070: T-106 , p. 42, lines 7-14. 2117 P-0144: T-91 , p. 27, 3-10. 2118 D-0034 Statement, UGA-D26-0022-0385, at para. 21. 2119 See para. 1071 below.

No. ICC-02/04-01/15 364/1077 4 February 2021

The evidence also demonstrates that for some time in mid-2003, Dominic Ongwen was

2120 assigned to Control Altar and operated together with Vincent Otti. It is not clear what

the reason was for this arrangement, but, as discussed in detail below, the evidence does

not indicate that it meant that Dominic Ongwen was deprived of his authority as LRA

2121 commander.

2122 P-0205 testified that Dominic Ongwen stayed in sickbay for about eight months. He

stated that ‘while we were moving to Teso we were all out of the sickbay. Dominic was

now able to walk.’ 2123 The Chamber notes that the Defence raised with the witness, on

the basis of his prior statement, the question whether or not his evidence was that at the

time of Charles Tabuley’s death Dominic Ongwen was still in sickbay. 2124 P-0205

clarified that at the time of Charles Tabuley’s death Dominic Ongwen was out of sickbay

2125 and in a convoy with Vincent Otti. This evidence is consistent with the evidence of

Dominic Ongwen’s movements around the time of the attack on Pajule IDP camp,

2126 discussed below.

In line with P-0205’s testimony, P-0231 confirmed that Dominic Ongwen left sickbay to

2127 2128 go to Teso. He stated that this was between August and September 2003. It is

noted that P-0231 testified that this was the time that he separated from Dominic Ongwen

2129 to serve under Charles Tabuley. For this reason, as also explained below, the Chamber

does not rely on P-0231 stating that Dominic Ongwen was ‘not involved’ in the attack

on Pajule IDP camp, but in fact, as is explained below, concludes the opposite on the

basis of other evidence, in particular that given by witnesses who were present and had

2120 P-0205: T-47 , p. 35, line 7 – p. 36, line 7; T-49-CONF, p. 64, line 10; P-0209: T-160 , p. 15, lines 6-8 (stating that Dominic Ongwen was in Control Altar at the time of the attack on Pajule); P-0231: T-122 , p. 32, line 25 – p. 33, line 3, p. 35, line 22 – p. 36, line 20 (notably stating that Dominic Ongwen moved to Control Altar because of a disagreement with Buk Abudema, who was brigade commander in Sinia at the time, and that Dominic Ongwen was still in Control Altar at the time of the attack in Abia, which took place in February 2004, see paras 1164- 1165 below). 2121 See paras 1181-1182 below. 2122 P-0205: T-49 , p. 59, lines 13-20. 2123 P-0205: T-49-CONF, p. 64, lines 8-10. 2124 P-0205: T-49 , p. 60, lines 7-11; T-50-CONF, p. 10, line 20 – p. 11, line 10. Charles Tabuley died in late 2003, see para. 1076 below. 2125 P-0205: T-50-CONF, p. 10, line 20 – p. 11, line 10. 2126 See section IV.C.6 below. 2127 P-0231: T-122-CONF, p. 29, lines 4-8. 2128 P-0231: T-123 , p. 49, lines 5-10. 2129 P-0231: T-122 , p. 66, lines 4-14.

No. ICC-02/04-01/15 365/1077 4 February 2021

an opportunity to observe the planning and execution of the attack on Pajule IDP

2130 camp.

The Chamber also notes that P-0309 estimated that Dominic Ongwen was at the sickbay

2131 for four to six months. P-0379 estimated the time to be between five and six

2132 2133 months, and P-0330 at approximately three months. P-0214 estimated the time

2134 Dominic Ongwen stayed at sickbay at over one year. In the assessment of the

Chamber, such variations can be explained by the difficulty of estimating the duration of

time while in the bush. Because P-0205 and P-0231 provided context, the Chamber relies

on their testimonies, and does not consider that they are brought in doubt by P-0309 and

P-0214’s estimates.

An ISO logbook records, under the date of 22 August 2003, Vincent Otti giving an

instruction that some soldiers should be sent to ‘keep those […] casualties who are in the

sickbay together with Dominic’, and noting that ‘Dominic [was] one of the injured who

[were] being kept at the sickbay’. 2135 On 16 September 2003, the logbook summarises a

communication by Joseph Kony as follows:

Kony told Otti to give Dominic radio call as he does not have one but was talking fm that of Michael. He said since Dominic is now a dis-abled comdr he can operate 2136 in Acholi areas mostly Gulu side but should have radio call.

Importantly, further analysis of the logbook evidence militates against allowing for the

possibility that the consequences of the injury continued to affect the exercise of his

authority as a senior LRA commander. Joseph Kony’s appointment of Dominic Ongwen

2130 See para. 1184 and generally section IV.C.6 below. 2131 P-0309: T-61 , p. 39, lines 4-18. 2132 P-0379: T-59 , p. 62, lines 4-10. 2133 P-0330: T-52 , p. 69, lines 11-13. 2134 P-0214: T-15-CONF, p. 38, lines 11-16. 2135 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0297-98. The Chamber notes that the corresponding UPDF logbook entries do not contain this particular detail. However, bearing in mind its discussion on the general reliability of the intercept logbooks above, in particular that different interceptors at different agencies were bound to, at times, focus on summarising varying details of specific radio communications ( see para. 666 above), the Chamber finds it appropriate to rely on this particular detail from the ISO logbook. 2136 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0411. The Chamber notes that the corresponding UPDF logbooks do not seem to contain this specific detail. However, bearing in mind its discussion on the general reliability of the intercept logbooks above, in particular that different interceptors at different agencies were bound to, at times, focus on summarising varying details of specific radio communications ( see para. 666 above), the Chamber finds it appropriate to rely on this particular detail from the ISO logbook. The Chamber also notes in this context that part of the relevant tape was played to D-0025 ( see T-226 , p. 55, line 9 – p. 58, line 6), but that this witness’s evidence has been set aside by the Chamber ( see paras 377-378 above).

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to the position of second-in-command of Sinia is discussed just below. In addition, a

radio communication intercepted by the ISO on 27 September 2003 indicates that Joseph

2137

Kony praised Dominic Ongwen for his hard work. Then on 30 September 2003, the

ISO intercepted Joseph Kony as telling Dominic Ongwen to stay behind with Vincent

Otti on account of Dominic Ongwen having good plans which could help Vincent

2138

Otti.

On 17 September 2003, Joseph Kony appointed Dominic Ongwen as second-in-command of the Sinia brigade. On 15 November 2003, Joseph Kony promoted Dominic Ongwen to

2139

the rank of lieutenant colonel.

The records of intercepted radio communications indicate that, in the second half of 2003,

Dominic Ongwen progressed within the LRA hierarchy twice, by order of Joseph Kony. In particular, the ISO logbook records that on 17 September 2003, Vincent Otti ‘sent the

2137 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0477. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly reflect the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0477 (Lamola reporting attack as planned the previous day, with details to follow at 11:00) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1024-25 (Lamola reporting attack on UPDF detachment with 300 soldiers, capturing one alive, with details to follow at 11:00) and UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6147 (Lamola reporting attack on UPDF detachment with 300 soldiers, as planned the day before, capturing one alive, with details to follow at 11:00) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2052 (Lamola reporting attack on UPDF, capturing one UPDF soldier alive); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0475-76 (report on attack in ‘market in Bar Oriyo’, with details on items taken) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1025 (report on attack in ‘market call Bar Oriyo’, with same details on items taken) and UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6147 (report on attack in ‘Bar-Riu’, with same details on items taken)). Bearing this in mind, but noting at the same time that these entries are overall less detailed than the entry in the ISO logbook, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. 2138 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0501. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly reflect the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0498 (Otti reporting on contact with UPDF the previous day, without sending anything on items taken) with UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 1036 (Otti reporting on contact with UPDF the previous day, stating he could not take anything due to bushy grass) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2067 (Otti reporting on contact with UPDF the previous day, stating he could not take anything due to grass being very tall); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0499 (Kony stating that ‘highest tactics/styles of guerrilla war fare are surprise attacks and ambushes’) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1036 (Kony advising Otti that ‘highest tactic of guerrila’ should be ‘surprise attack and ambush and planting mines’) and UPDF Logbook (Soroti), UGA- OTP-0254-1991, at 2067 (Kony informing Otti that ‘highest tactics of gorrilas is to surprise’); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0501 (Kony wanting all LRA to move to Teso) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1038 (Kony ordering Otti to inform all LRA units to immediately advance to Soroti) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2069 (Kony ordering that all LRA groups in Uganda move to Teso)). The UPDF Achol Pii logbook does not include an entry for this communication time ( see UGA-OTP-0242-6018, at 6149-50). Bearing this in mind, and noting at the same time that the entries in the UPDF logbooks are overall less detailed than the entry in the ISO logbook and that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. 2139 Para. 136 above.

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details of their meeting with senior LRA Com[man]d[e]rs as below’.

2140

Vincent Otti stated that ‘they formed a new LRA Division and also reshuffled the Bde Comds’.

2141

The report then lists the various units and their commanders as well as other officers,

including referring to Dominic Ongwen as second-in-command of Sinia brigade, with the following note: ‘but since he is still sick, Lapanyikwara (Lapaico) should act’.

2142

On

18 September 2003, Joseph Kony is recorded as asking Vincent Otti ‘whether Dominic

now can walk properly as he was injured some time ago and if he can take up his post of

2143

2I/C Bde Co as Vincent Otti appointed him recently’. Vincent Otti responded that ‘Dominic can now walk and can manage that post very well without any problem’.

2144

The Defence points to the absence of Dominic Ongwen’s name on a UPDF overview of

2145

68 LRA commanders dated 21 September 2003. However, also noting that the list,

which is well-organised as reflecting the LRA command structure, does not include any

entry as to the second-in-command of Sinia or any other brigade, the Chamber considers

that this list is outweighed by the specific evidence relating to the position of Dominic

Ongwen at the time, and does not rely on it.

2140 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0413. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 0992. 2141 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0413. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 0992. 2142 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0414. The same source indicates that on the same day, Kony decided that Lapanyikwara take Isaya Lowum’s post of Division second-in-command, and that Isaya Lowum take his position as Sinia second-in-command. The Chamber considers, also in light of the communication between Joseph Kony and Otti on 18 September 2003, that this appointment was an exchange of roles between Lapanyikwara and Isaya Lowum, and did not have a bearing on Dominic Ongwen’s appointment; see ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0419. The communication of 17 September 2003 can also be found in the UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0992-94. The Chamber notes that the corresponding UPDF Logbook does not record Dominic Ongwen as still being sick, but rather indicates him being still far from Soroti as a reason for Lapanyikwara to act as second-in-command (at 0993). However, the Chamber, noting the additional details provided by the communication of 18 September 2003 recorded in the ISO Logbook, which do not appear in the UPDF Logbook record of the 18 September 2003 communication ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0996), considers the ISO Logbook record of the communication to be more reliable in this regard. 2143 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0422. The Chamber notes that while the entries in the corresponding UPDF logbooks do not contain this particular exchange, they are overall much less detailed ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0996; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6138-39) or do not contain any entry for the same communication time ( see UPDF Logbook (Soroti), UGA-OTP- 0254-1991, at 2015). This said, and bearing in mind its general discussion on the reliability of intercept logbooks, the Chamber considers it appropriate to rely on this information from the ISO logbook. 2144 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0422. 2145 Defence Closing Statement: T-258 , p. 22, line 22 – p. 23, line 2; LRA Commander List, UGA-OTP-0242- 1005.

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On 10 October 2003, the LRA attack on Pajule IDP camp took place. Dominic Ongwen

2146 exercised a command role during that attack, as laid out in detail below.

Another entry in the ISO logbook indicates that on 15 November 2003, Joseph Kony

2147 promoted Dominic Ongwen to the rank of lieutenant colonel.

On 4 March 2004, Joseph Kony officially appointed Dominic Ongwen as brigade

2148

commander of Sinia brigade.

An intercepted radio communication indicates that Joseph Kony appointed Dominic

2149 Ongwen to Sinia brigade commander on 4 March 2004.

The Chamber notes that several witnesses testified about Dominic Ongwen’s promotion

to the top of Sinia brigade, but mostly linked that promotion to the death of Charles

2150 Tabuley, which took place in late 2003 during the LRA operation in Teso. P-0205

testified that at an RV at Omot following the death of Charles Tabuley, Dominic Ongwen

was the brigade commander of Sinia, and that Buk Abudema became Division

2151 commander. P-0070 testified that Dominic Ongwen became Sinia brigade

commander ‘in the year 2003 at the height of the operation’, after the death of Charles

2152 Tabuley and Tolbert Yadin. P-0264 testified that the first time he realised that

Dominic Ongwen was brigade commander was when he was with him in Teso, and that

this was after Charles Tabuley’s death. 2153 P-0231 also testified that Dominic Ongwen

became Sinia brigade commander after the death of Charles Tabuley, and also after the

2154 attack on Abia. P-0406 similarly testified that he learnt of Dominic Ongwen’s

appointment to brigade commander of Sinia on the return from Teso, around November-

2146 See section IV.C.6 below. 2147 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0051. See also UPDF Logbook (Gulu), UGA-OTP- 0254-0229, at 0366. 2148 Para. 137 above. 2149 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0122. See section IV.B.3.ii.i above. See also UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4269. 2150 See P-0070: T-106 , p. 23, lines 5-8; P-0205: T-47 , p. 35, lines 7-10; P-0231: T-122 , p. 67, lines 9-17; P-0372: T-148 , p. 25, lines 6-24; D-0100: T-234 , p. 43, line 23 – p. 44, line 3; D-0125: T-242 , p. 11, line 21 – p. 12, line 14. 2151 P-0205: T-47 , p. 36, line 13 – p. 38, line 25. 2152 P-0070: T-105 , p. 68, line 19 – p. 69, line 13. 2153 P-0264: T-66 , p. 40, line 17 – p. 41, line 6. 2154 P-0231: T-122 , p. 32, line 14 – p. 33, line 3. The attack on Abia took place in February 2004. See paras 1164- 1165 below.

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December 2003, when Buk Abudema informed the soldiers that he was from that time in 2155 charge of Division, and that Dominic Ongwen would be Sinia commander.

Thus, it would appear that the witnesses place Dominic Ongwen’s promotion to brigade

commander at an earlier time than 4 March 2004. However, in light of the specific and

clear record of a promotion ordered by Joseph Kony on that date, the Chamber concludes

that Dominic Ongwen was officially appointed Sinia brigade commander on 4 March

2004.

Dominic Ongwen remained Sinia commander until 31 December 2005, and further. On

30 May 2004, Joseph Kony promoted him to the rank of colonel, and sometime in late

2156

2004 to the rank of brigadier.

Three of the attacks central to the charges in the case took place in the months following Dominic Ongwen’s appointment to Sinia brigade commander, between April and June

2004 P-0142, P-0231 and P-0264 testified that at the time of the Odek attack in April 2157 2004, Dominic Ongwen was in charge of Sinia. P-0054 testified that Dominic 2158 2159 Ongwen was brigade commander at the time of Lukodi, as well as at Abok. Dominic Ongwen’s role and exercise of authority at the time of each attack are discussed

2160 in the respective sections below.

Radio intercept evidence indicates that on 30 May 2004, Joseph Kony promoted Dominic 2161 Ongwen to the rank of colonel.

The evidence indicates that Dominic Ongwen maintained his position as Sinia brigade

commander in the ensuing period. P-0440 testified that when he left the LRA in August 2162 2004, Dominic Ongwen was Sinia brigade commander. P-0406, who served as soldier

2155 P-0406: T-154 , p. 34, lines 3-15. 2156 Para. 138 above. 2157 P-0142: T-71 , p. 3, lines 18-23; P-0231: T-122 , p. 68, lines 13-24; P-0264: T-64 , p. 40, lines 2-8. See also section IV.C.7 below. 2158 P-0054: T-93 , p. 31, lines 4-11; P-0142: T-70 , p. 43, lines 13-15. See also section IV.C.8 below. 2159 P-0054: T-93 , p. 34, lines 18-19. See also section IV.C.9 below. 2160 See sections IV.C.7, IV.C.8, IV.C.9 below. 2161 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0004; section IV.B.3.ii.o above. See also UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3062. P-0205 testified that Dominic Ongwen was promoted to the rank of colonel ‘after he had sent the operation report of Lukodi’, which corresponds to the radio intercept evidence; P- 0205: T-48 , p. 4, lines 9-21. 2162 P-0440: T-40 , p. 15, lines 18-20.

No. ICC-02/04-01/15 370/1077 4 February 2021

in Sinia, testified that they went to Sudan in November 2004 and that Dominic Ongwen

2163 was commander of Sinia at that time.

A faxed copy of an entry in the ISO logbook indicates that Joseph Kony promoted

2164 Dominic Ongwen to the rank of brigadier on 4 December 2004. In the UPDF logbook,

2165 the corresponding promotion is dated 23 October 2004. The Chamber notes that both

radio messages were logged by the intercepting agencies in mid-2005, which was – at

least in case of the UPDF – attributed to the fact that the LRA code was broken only at

2166 that time. In any case, the Chamber considers that the evidence is sufficient to

conclude that the promotion did occur, and that it occurred sometime in late 2004.

The Chamber notes that the Prosecution claims that on 16 March 2005, Dominic Ongwen

2167 was made deputy to Vincent Otti. The UPDF logbook cited by the Prosecution as

2168 evidentiary basis indeed contains such an entry. However, in the corresponding ISO

logbook, the same message is logged as praise for Dominic Ongwen and another person

as ‘still having LRA at heart’ and continuing that ‘they are the ones now following Otti

Vincent’. 2169 Records of intercepts by the police do not assist in resolving the matter.

Indeed, while a typed report dated 17 March 2005 states that Dominic Ongwen and

another person were ‘appointed […] to second deputy LRA chief’ by an ‘unknown

commander’, 2170 a hand-written report, dated 16 March 2005, instead states that Dominic

Ongwen and another person were ‘pinpointed […] as second to deputy LRA chief for

their operations/activities’. 2171 In light of this different interpretations of the radio

communication by the intercepting agencies, the Chamber does not see a basis to make

the finding as proposed by the Prosecution.

2163 P-0406: T-154 , p. 34, lines 16-22. 2164 ISO Faxed Copy, UGA-OTP-0163-0007, at 0165. 2165 UPDF Logbook (Gulu), UGA-OTP-0254-1077, at 1363. 2166 UPDF Logbook (Gulu), UGA-OTP-0254-1077, at 1360. Note that likewise in the ISO logbook, the message appears out of timeline, in a short section entitled ‘Enemies msgs sent in codes’, ISO Faxed Copy, UGA-OTP- 0163-0007, at 0164. 2167 Prosecution Closing Brief , para. 66. 2168 UPDF Logbook (Gulu), UGA-OTP-0254-1077, at 1208. 2169 ISO Logbook (Gulu), UGA-OTP-0152-0002, at 0181 (emphasis added). It is the date of the message and the information logged before and after that establish conclusively that this is the same radio communication. 2170 Police Intelligence Report, UGA-OTP-0256-0241, at 0241. 2171 Police Notes, UGA-OTP-0151-0016, at 0017.

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2172 In any case, P-0054 testified that he was in Sinia until 2005, and that at the time he

2173 left, Dominic Ongwen was still the commander of Sinia brigade. Finally, P-0231

testified that Dominic Ongwen stayed in the position of Sinia brigade commander for

‘[m]aybe one year, eight, nine months or two years’, after which he became a ‘director

of operations’ when they went to the DRC. 2174 The Chamber understands these latter

events to already fall outside of the period of the charges.

4 Objectives and policies of the LRA

2175

The LRA pursued an armed rebellion against the Government of Uganda.

As to the objective of the LRA, P-0138 testified that, to his understanding, Joseph Kony’s

aim was to overthrow President Museveni’s government ‘so that he can become the

president of Uganda’. 2176

P-0406 testified about a speech given by Joseph Kony to the assembled members of the

LRA, in which Joseph Kony stated that he was a prophet, sent to ‘save the Acholi

community from poverty’, and spoke of his intention to overthrow the Government of

Uganda and rule ‘places like Gulu town, Kitgum’. 2177 P-0085 similarly testified that he

came to know that the LRA was fighting because of ‘bad government’, which ‘took away

the wealth of the Acholi people and the Langi’. 2178 P-0097 also reported hearing senior

LRA members, including Dominic Ongwen, state that they were fighting to overthrow

2179 the government. P-0145 testified that he was told the same during his training in the

2180 LRA.

P-0231 stated that when he had just been abducted, he was told that they were ‘fighting

to overthrow the Government of Uganda’, that this government included civilians, and

2181 that the guns they had were to kill people, including those civilians.

2172 P-0054: T-93 , p. 10, lines 23-24. 2173 P-0054: T-93 , p. 12, lines 17-19. 2174 P-0231: T-122 , p. 35, lines 2-10. 2175 Para. 139 above. 2176 P-0138: T-120 , p. 24, lines 7-11. See also P-0138: T-121 , p. 33, line 18 – p. 34, line 4. 2177 P-0406: T-155 , p. 17, lines 9-22. See also the similar theme of Joseph Kony’s speeches to the membership as recalled by P-0045: T-104 , p. 44, lines 13-21. See also P-0410: T-151 , p. 10, lines 7-16. 2178 P-0085: T-158 , p. 13, lines 18-24. 2179 P-0097: T-108 , p. 35, line 15 – p. 36, line 2. 2180 P-0145: T-143 , p. 42, line 22 – p. 43, line 5. 2181 P-0231: T-123 , p. 20, lines 8-12.

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P-0264 stated that while in the bush, they used to be told that Joseph Kony would say

that when they eventually overthrow the government, they will have a ‘very good life’

2182 ahead of them.

Certain documentary evidence is relied on by the Prosecution to demonstrate that the

2183 LRA aimed to overthrow the Government of Uganda. In particular, an undated

document entitled ‘LRA Manifesto’, an (undated) LRA ‘Constitution’, and a 1997

document entitled ‘A brief look of the struggle’, contain language indicating that the

objective of the LRA was to ‘liberate’ Uganda from the rule of the government in

2184 place.

The first document was provided to the Prosecution by Professor Allen, who testified

before the Chamber that there was ‘consensus’ (in the understanding of the Chamber,

this refers to a consensus in the academic community to which Professor Allen belongs),

that this document ‘came from the LRA in some way’. 2185 He pointed out that in an

2186 interview, Joseph Kony referred to the manifesto. The second and third documents

were instead provided to the Prosecution by Timothy Kanyogonya. However, neither his

prior recorded testimony introduced pursuant to Rule 68(3) of the Rules – in which he

explains his transmission to the Court of documents that had been seized from the

2187 2188 LRA – nor his in-court testimony provide any further information on these two

particular documents. The documents were also not discussed with any insider witnesses.

The Chamber does not have concerns on the authenticity as such of these documents,

while noting that some were raised by the Defence in respect of the manifesto at the time

2189 of its submission into evidence. The Chamber is mindful, however, of the testimony

of Professor Allen, who stated that ‘[i]t is not clear the degree to which [these documents]

2182 P-0264: T-65 , p. 59, lines 1-8. 2183 Prosecution Pre-Trial Brief , para. 158. 2184 LRA Manifesto, UGA-OTP-0269-0791, at 0794, 0796; LRA Constitution, UGA-OTP-0012-0326, at 0329- 30; LRA Policy Document, UGA-OTP-0012-0242, at 0246. 2185 P-0422: T-28 , p. 40, line 6 – p. 41, line 4. 2186 P-0422: T-28 , p. 41, lines 7-8. See also Book, UGA-OTP-0272-0002, at 0129. 2187 P-0038 First Statement, UGA-OTP-0069-0784-R01; P-0038 Second Statement, UGA-OTP-0244-0912-R01. 2188 P-0038: T-116 ; T-117 . Defence Response to “Prosecution’s request to submit 1006 items of evidence from 2189 Confidential Annex A to the ‘bar table’” (ICC-02/04-01/15-654) , 7 February 2017, ICC-02/04-01/15-701 (hereinafter: ‘ Defence Response to “Prosecution’s request to submit 1006 items of documentary evidence” ’), ICC-02/04-01/15-701-Conf-AnxA, pages 126-27, 152. See also Defence Response to “Prosecution’s request to submit 1006 items of documentary evidence” , para. 66.

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genuinely represented the views of the movement as a whole’, and that he did not think

that ‘we can say with any certainty that […] these documents were adopted consciously

by all those figures within the LRA forces’.

2190

In these circumstances, as it is not clear

how the documents were prepared and in the absence of an indication in the available

evidence to the effect that they were in fact widely used as reference documents for LRA

members, the Chamber decides not to use them for its findings in relation to the

objectives of the LRA.

In any case, in addition to the evidence provided by witnesses referred to above, there

are regular references in the records of intercepted communications to the overall goal of

2191

the LRA being the removal of President Museveni from power. Among the clearest

and most explicit is the message intercepted by the ISO as transmitted by Joseph Kony

on 29 July 2002, wherein Joseph Kony stated that the LRA had a political agenda for

fighting President Museveni’s government and that they must remove him from

2192

power.

The LRA perceived as associated with the Government of Uganda, and thus as the enemy, the civilians living in Northern Uganda, in particular those who lived in governmentestablished IDP camps in Northern Uganda. LRA commanders routinely declared that civilians were failing to support the LRA in its effort against the government and should be killed by the LRA. Dominic Ongwen knew that the LRA perceived, and also himself

2190 P-0422: T-28 , p. 41, lines 4-24. 2191 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0204 (Kony referring to LRA capturing state power), 0234 (Kony instructing that prayers be held saying that ‘Museveni must go’), 0245 (Kony and Otti discussing that they want to remove Museveni from state power), 0339 (Kony stating that the LRA will struggle until Museveni is removed from power); ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0056 (Kony stating that he was fighting to remove Museveni from power, and that Museveni must go); ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0073 (Otti stating that it is only the LRA who will remove Museveni from power); ISO Logbook (Gulu), UGA- OTP-0068-0146, at 0254 (Otti referring to the LRA struggle to remove Museveni from power) ( see Chamber’s discussion on the reliability of the 2002 ISO logbooks, para. 666); ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0484 (Kony stating that the LRA have started an attack to remove Museveni from power), 0485 (Otti calling on all LRA units to start a real war to remove Museveni from power) ( see also UPDF Logbook (Achol Pii), UGA- OTP-0242-6018, at 6147-48); ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0045 (Kony stating that the LRA were fighting to remove Museveni from power because he was a dictator), 0055-56 (Kony vowing that the war will not end until Museveni is removed from power) ( see also UPDF Logbook (Gulu), UGA-OTP-0254- 0229, at 0356-59); ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0098 (Kony stating that the LRA will continue fighting and killing people for as long as Museveni is president), 0176 (Kony stating that by all means Museveni must go); ISO Logbook (Gulu), UGA-OTP-0061-0206, at 0289 (Kony stating that the LRA did not want peace talks and that Museveni would be removed from power ‘through gun’), 0327 (Kony swearing that he himself would be the one to remove Museveni from power) ( see also UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7491-93; UPDF Logbook (Sudan), UGA-OTP-0242-7194, at 7262-64; Police Logbook, UGA-OTP-0037-0002, at 0139-40). 2192 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0331. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above.

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perceived, the civilians living in Northern Uganda as associated with the Government of

2193

Uganda – and thus as the enemy.

There is considerable evidence on the record demonstrating that the LRA perceived civilians in Northern Uganda as the enemy. In this section, the Chamber lays out the most

relevant evidence demonstrating that this perception was specifically articulated by the

LRA leadership, including by Dominic Ongwen. However, the Chamber emphasises that

this is not the only basis on which the conclusion is taken. Indeed, the pattern of attacks 2194 against civilians, explored below, is an equally powerful indicator of the same.

Asked generally whether at the end of 2003 or in 2004 in Pader the LRA perceived the

civilians as supporting or opposing the LRA, P-0070 responded:

They looked at the civilians as not supporting them, because whenever the civilians saw the LRA moving, it will not take long before they come under attack. In a very short while you will see the gunship above trying to attack the LRA. So they knew 2195 the civilians were not for the LRA.

D-0032 confirmed that by the time of Operation Iron Fist, Joseph Kony was regularly

ordering civilians to be killed and issued an order to attack, inter alia , homes and camps, 2196 and to commit a lot of atrocities. He explained that, as civilians in Lango, Teso and

Acholi were supporting the government through militia groups that fought the LRA, 2197 Joseph Kony ordered attacks on civilians in those areas.

P-0138 testified that in 2003, after the arrival of the LRA in Soroti and from the time that the Arrow groups started organising, ‘Kony gave an instruction that we needed to start

killing the civilians because they had become stubborn’. 2198 Asked what ‘stubborn’

meant in this context, P-0138 stated that, in his view, Joseph Kony meant that the 2199 civilians were joining the army or taking information to the UPDF. The witness also

stated that in Teso, all male civilians were presumed to be part of the Arrow groups, and 2200 consequently targeted by the LRA.

2193 Paras 140-141 above. 2194 See sections IV.C.5, IV.C.6, IV.C.7, IV.C.8, IV.C.9 below. 2195 P-0070: T-106 , p. 24, line 21 – p. 25, line 2. 2196 D-0032: T-201 , p. 8, lines 1-13. 2197 D-0032: T-201 , p. 14, lines 3-12. 2198 P-0138: T-120 , p. 20, lines 8-14. 2199 P-0138: T-120 , p. 21, lines 4-11. 2200 P-0138: T-120 , p. 22, lines 20-23.

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P-0145 also testified about having seen Joseph Kony gather people and issue an order to kill civilians because they were ‘stubborn’. 2201

P-0406 also testified that Joseph Kony told the LRA that Acholi people ‘do not want to support his war’ because they inform the government forces of encountering the LRA, 2202 after which government forces come and attack the LRA. P-0406 stated that this was 2203 the reason Joseph Kony gave for killing civilians.

P-0264 referred to a specific occasion in Apala in Lango, during the time that Dominic Ongwen commanded the Sinia brigade, when the Oka battalion abducted civilians, but

because an order had been given that civilians should not be abducted or know of the presence of the LRA, the abductees were killed rather than released, so they would not ‘come back with soldiers’. 2204

The Chamber also takes into account the testimony of P-0101, who stated that the LRA ‘did not like civilians’, 2205 and elaborated as follows:

The reason why the LRA didn’t like civilians was they said that it was civilians who would inform government soldiers, as when the government soldiers are in the area civilians would inform them that there are Holy soldiers in the area and 2206 then the government soldiers would go and attack the Holy soldiers.

P-0101’s testimony is a valuable indication of the perception of the LRA from the viewpoint of a person who spent a long period of time within the organisation.

The Chamber also notes the testimony of P-0205 to the effect that there was an order in the LRA that every civilian who raised alarm on the LRA, or who was captured and it was found out that that civilian was the one who reported about the LRA, should be 2207 killed.

2201 P-0145: T-143 , p. 51, line 22 – p. 52, line 6. Although the witness does not use the word ‘civilians’ but ‘people’ and ‘Acholi’, context makes it clear that he is referring to orders in relation to civilians. 2202 P-0406: T-155 , p. 20, lines 7-12. 2203 P-0406: T-155 , p. 20, lines 12-13. 2204 P-0264: T-65 , p. 26, lines 5-25. See also para. 1169 below. 2205 P-0101: T-13-CONF, p. 65, lines 2-6. 2206 P-0101: T-14-CONF, p. 3, lines 18-21. 2207 P-0205: T-48 , p. 61, lines 2-9.

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Hillary Daniel Lagen equally testified that Joseph Kony gave the order that in addition to the UPDF, the LRA should also target civilians ‘because they are the ones […] who also join[] the UPDF and make it difficult for us to, to win’. 2208

Furthermore, Hillary Daniel Lagen provided evidence which gives a basis to reconstruct a slightly different, yet fully compatible, purported rationale for the LRA’s aggressive attitude to civilians. He testified that he heard Joseph Kony order that ‘a lot of civilians’ be killed in order to draw the attention of the international community and put pressure on the Government of Uganda to accept talks with the LRA as a result of its inability to 2209 protect civilians. According to the witness, Joseph Kony gave this order on 31 2210 December 2003 while on the bank of the Agago River. Considering that the witness simultaneously stated that the order was given before Charles Tabuley’s death and insisted even when the interviewer suggested to him that Charles Tabuley died in 2211 2212 2003 – as indeed clearly emerges from the evidence available to the Chamber –, the precise date given by the witness is possibly inaccurate. Instead, it is more likely that the order was given in December 2002, in light of the evidence of Joseph Kony’s 2213 movements as reported in the records of intercepted radio communications. Nonetheless, the Chamber considers that the precise date is not of crucial importance, given that the witness otherwise described the event in detail and in a manner which is internally consistent.

The Chamber also notes that the evidence supporting the conclusion that the LRA perceived civilians in Northern Uganda as associated with the government also includes evidence which indicates a specific focus on people residing in government-established IDP camps.

2208 P-0040 Interview Transcript, UGA-OTP-0220-0704-R01, at 0706-07, lines 40-100. 2209 P-0040 Interview Transcript, UGA-OTP-0220-0678-R01, at 0685-86, lines 246-57. 2210 P-0040 Interview Transcript, UGA-OTP-0220-0678-R01, at 0686, lines 258-75. 2211 P-0040 Interview Transcript, UGA-OTP-0220-0678-R01, at 0686-87, lines 291-316. 2212 See para. 1076 above. 2213 See ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0130 (including a comment on 28 December 2002 from the operator that Joseph Kony was going to Odek for prayers, which is relatively close to the Agago River); ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0134 (noting down: ‘Kony was very happy with this information he said LRA should continue hitting vehs until all vehs are finished here in the north. That it’s until p/talks begin between LRA and the gov’t when they will stop shooting or ambushing vehs’, displaying a similarity in substance with the testimony of P-0040), at 0135 (including a comment that Joseph Kony was preparing to go back to Sudan). See also ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0162 (placing Joseph Kony in Sudan on 31 December 2003). See also UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4179.

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The information available indicates that IDP camps came into existence in Northern Uganda before the period directly relevant to the charges, and further suggests that some 2214 people were moved into IDP camps against their will. Indeed, P-0081 stated that he believed that he did not have a choice to stay in his village at the time the government 2215 said people should move to the Pajule-Lapul IDP camp. P-0269 testified that she moved with her family to Odek IDP camp in 2003 because government soldiers said that if they stayed back home, ‘then it is the civilians who are actually sustaining the rebels’. 2216 D-0083 stated that the Ugandan government gave to the population an ‘ultimatum’ to move into the camps. 2217 Several witnesses testified of occurrences of 2218 abuse by camp residents at the hands of government soldiers, and that the government soldiers and local defence units mandated to protect IDP camps were understaffed and 2219 did not offer sufficient protection. Further, IDP camp residents gave testimony indicating poor living conditions, due to lack of food, access to water and adequate health 2220 facilities.

P-0070 testified about Joseph Kony’s resentment towards the people residing in government-established IDP camps, stating that Joseph Kony said that ‘the people in the camps were not supporting him because every time they saw his people, they would run and report to the government soldiers that the LRA fighters have passed here or there’. 2221

Beyond witness evidence, there is ample evidence in the records of intercepted radio communications of orders having been given to LRA soldiers to direct violence against civilians, and that the reason given was collaboration with the Government of Uganda, or even mere absence of support for the LRA. The records of intercepts of radio communications also indicate the specific focus on residents of IDP camps. The records relate to a large number of specific occasions when instructions or reports were transmitted, are always placed in a context, and on most occasions provide unique detail.

2214 See section I.A above. 2215 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 9. 2216 P-0269: T-85 , p. 32, lines 15-18. 2217 D-0083: T-217 , p. 19, line 12 – p. 20, line 11. 2218 P-0067: T-125 , p. 71, line 14 – p. 72, line 5; P-0269: T-85 , p. 33, lines 5-14. 2219 P-0218: T-90 , p. 18, line 24 – p. 19, line 8; D-0113: T-221 , p. 13, lines 10-12; T-221-CONF p. 21, lines 15- 23. 2220 P-0269: T-85 , p. 59, lines 11-21, p. 60, lines 16-20; P-0280: T-84 , p. 6, line 2 – p. 7, line 1; D-0123: T-238 , p. 10, lines 7-9. 2221 P-0070: T-106 , p. 26, lines 8-14.

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Some of the intercepts, as indicated, were discussed in court in detail. The Chamber also

2222 notes its discussion of the reliability of the 2002 ISO logbooks above.

According to the ISO logbook, on 27 July 2002, Joseph Kony instructed the LRA

commanders to tell the fighters sent on mission ‘not to kill civilians who are pro-

LRA’. 2223

On 9 August 2002, Joseph Kony is recorded in the ISO logbook as instructing a

subordinate to ‘tell UN that LRA doesn’t kill innocent civilians’ and that ‘they only kill

civilians who are siding with Museveni govt’, 2224 referring further to the attack in

2225 Mucwini discussed above.

The ISO logbook records Joseph Kony as stating on 31 August 2002 that ‘this time LRA

shouldn’t spare any civilian who doesn’t want to side with LRA’. 2226 During the same

communication as recorded in the logbook, Joseph Kony also overruled Raska

Lukwiya’s order that certain soldiers who had ‘forced mothers with young children to

have sex with them’ be punished, stating that ‘Lukwiya shouldn’t punish any soldiers

who do such thing’, and that ‘the Acholi even if you do something good to them they

will not appreciate it’. 2227

Also on 31 August 2002, as recorded in the ISO logbook, Joseph Kony instructed LRA

commanders in Uganda to write letters and distribute them in ‘all places’, telling people

that the LRA would follow them into IDP camps if they do not join the LRA in the fight

2228 against Museveni. According to the same entry, Charles Tabuley next stated that since

people do not want to listen, the LRA should start ambushes, plant mines and kill

‘mercilessly’ so people are ‘brought in line’. 2229 Joseph Kony is recorded as responding

that Charles Tabuley’s ideas were ‘very ok[a]y’ and that he opened the ways for all LRA

commanders to ‘resume atrocities on civilians’. 2230 P-0009 testified that occasionally the

LRA would write letters to IDP camp residents telling them to leave the camps or be

2222 See para. 666 above. 2223 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0327-28. 2224 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0025. 2225 See paras 994-998 above. 2226 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0086. 2227 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0085. 2228 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0086. 2229 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0086. 2230 ISO Logbook (Gulu), UGA-OTP-0064-0002, at 0086.

No. ICC-02/04-01/15 379/1077 4 February 2021

2231 killed. It is noted that the statement of P-0084 corroborates the fact that on some

occasions LRA sent threatening letters, including before the attack on Pajule in October

2232 2003.

On 9 September 2002, Joseph Kony is recorded in the ISO logbook as instructing Vincent

Otti to tell his commanders to assess whether the people in a specific area supported the

LRA and, if not, ‘then [people] in that area should be killed all’. 2233 Later on the same

day, Vincent Otti is recorded as stating that all LRA should concentrate on this order of

Joseph Kony rather than on peace talks, and that if the LRA intensified its killing, people,

including the international community, would ‘come kneeling’ before the LRA, while at

2234 that moment people did not appreciate ‘the danger of siding with UPDF (govt)’.

On 9 October 2002, the ISO logbook records an order by Joseph Kony ‘that his

com[man]d[e]rs should start killing civilians because they are siding with Museveni’. 2235

On 10 November 2002, Joseph Kony is recorded as instructing all LRA commanders to

combine and attack one UPDF defence or ‘t/centre’ and kill all people there, and that if

they fail to hit a ‘military target’, they ‘can plan and hit soft target even [local government

2236 officials] because these are Museveni’s p[eo]ple’. Joseph Kony added that his

commanders could ‘use any type of gun they have on any target’, and that even people

2237 travelling on bicycles could be shot using support weapons. Dominic Ongwen is

2238 recorded as on air for this conversation.

On 27 November 2002, Joseph Kony is recorded in the ISO logbook as ordering that

‘civilians should only be killed once any LRA gr[ou]p comes across.’ 2239 He explained

this order by stating that he wanted all people to be ‘in camps’ so that ‘fighting UPDF

becomes easier because any person that you will meet you will know you have met with

2231 P-0009: T-81 , p. 10, line 20 – p. 11, line 9. 2232 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 73-79. 2233 ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0122. 2234 ISO Logbook (Gulu), UGA-OTP-0064-0093, at 0124. 2235 ISO Logbook (Gulu), UGA-OTP-0068-0002, at 0053. 2236 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0020. 2237 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0020. 2238 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0019. 2239 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0064.

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UPDF and shot straight away on sight’. 2240 Joseph Kony also stated that ‘support

2241 weapons like BIO and others should be used on any civilians they come across’.

On 13 December 2002, Joseph Kony is recorded in the ISO logbook as stating that he

was ‘right’ to kill innocent civilians, as he was accused of doing, since ‘all Acholis are

mobilising alongside with Museveni to kill him’. 2242

On 18 March 2003, an interaction is recorded in the ISO logbook between Joseph Kony

and a person not affiliated with the LRA, who, inter alia , confronted Joseph Kony about

2243 the LRA killing innocent civilians travelling. Joseph Kony’s response is noted down

as: ‘All p[eo]ple moving in veh[icle]s are agents of Museveni who are working ways of

destroying LRA so they must all be killed’. 2244 It is noted that ‘Dominic’s squad’ is

2245 recorded as on air during this communication.

On 31 March 2003, according to the intercept evidence, Joseph Kony gave instructions

2246 in relation to civilians. The recorded intercept was played to D-0032 in court. The

witness identified Joseph Kony as the speaker and stated that Joseph Kony was ordering

a commander to shoot the people of Oroko, and to kill more than eight hundred people,

on account of them being ‘useless’ and that, if left alive, they would be working for

2247 President Museveni. This is also the content of the message according to a transcript

2248 of the audio-recorded intercept. The message is noted in the ISO logbook as stating

that ‘civilians hate LRA and those who do[] not want to join LRA in the bush are enemies

and must all be executed’. 2249 The corresponding UPDF logbook corroborates the content

2250 of the instruction given by Joseph Kony, and identifies Ocan Bunia as the recipient.

2240 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0064. 2241 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0064. 2242 ISO Logbook (Gulu), UGA-OTP-0065-0002, at 0105. 2243 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0026. The Chamber notes that while the entries in corresponding UPDF logbooks do not mention this specific detail, they do record the conversation between Joseph Kony and the person not affiliated with the LRA ( see UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3522-23; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6247-48). 2244 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0026. 2245 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0024. 2246 See section IV.B.3.ii.a above. 2247 D-0032: T-201 , p. 16, lines 5-24. 2248 Transcript, UGA-OTP-0286-0165, at 0196-97. 2249 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0067. 2250 UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3545.

No. ICC-02/04-01/15 381/1077 4 February 2021

During this communication, Dominic Ongwen is recorded as on air in the ISO and UPDF

2251

logbooks.

According to the ISO logbook, on 4 April 2003 Dominic Ongwen reported to Vincent

Otti that people in Lagile raise alarm when they see the LRA, and ‘jointly gang’ against

2252

LRA moving in the area. Vincent Otti responded that ‘Dominic should move there and sweep off any living being seen in that area’.

2253

Joseph Kony stated that LRA units

2254

should move to Lagile for that operation, killing anybody in that location. Joseph Kony also said that the people of Lagile ‘have been a problem’, and that Vincent Otti

2255

should organise an operation quickly. On 5 April 2003, Dominic Ongwen reported

2256

that he attacked Lagile IDP camp. On 28 April 2003, Dominic Ongwen is recorded as reporting to Joseph Kony that ‘all p[eo]ple shifted f[ro]m Lagile’, while others were

2257

in Awere. Joseph Kony responded this was ‘very good’ and instructed Dominic

Ongwen to continue checking Lagile to find if any civilian still remained there and ‘should just destroy’.

2258

The attack on Lagile IDP camp in Awere sub-county is

2259

discussed further below.

On 16 April 2003, Joseph Kony is recorded in the ISO logbook as stating that ammunition

he had brought should be given out to all units in Uganda ‘purposely for killing civilians’

2251 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0066; UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3544. 2252 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0079. The relevant page of the logbook is poorly legible, but the Kampala copy of the logbook is legible and assists in understanding the content. See UGA-OTP-0065-0143, at 0242. See also section IV.B.3.i.b.vi. See also UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3552. The Chamber notes that the Soroti UPDF logbook records Lapanyikwara as complaining about the civilians in Lagile (UGA-OTP-0242-6212, at 6259), which the Chamber deems to be an error in light of the ISO and Gulu UPDF logbooks, and in light of P-0379’s testimony in relation to the involvement of Dominic Ongwen in the attack. 2253 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0079. 2254 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0079. See also UPDF Logbook (Gulu), UGA-OTP-0254- 3399, at 3552; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6259. 2255 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0079. See also UPDF Logbook (Gulu), UGA-OTP-0254- 3399, at 3552-53. 2256 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0083; UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3558. See also para. 1160 below. 2257 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0161. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0455, at 0531. 2258 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0161. The Chamber notes that while the UPDF Gulu logbook does not contain this specific instruction from Joseph Kony to Dominic Ongwen, it does also include the report from Dominic Ongwen to Joseph Kony that the Lagile area is empty ( see UGA-OTP-0254-0455, at 0531). 2259 See para. 1160 below.

No. ICC-02/04-01/15 382/1077 4 February 2021

since these were the people who were ‘very dangerous to LRA’. 2260 Dominic Ongwen is

2261 recorded as on air.

On 27 April 2003, Joseph Kony is reported as stating that ‘of all tribes in Uganda only

the Acholi are very useless tribe’, that ‘only those [who] are in the bush with LRA who

are real and good Acholi’, and that ‘LRA should concentrate and if possible finish (wipe)

out all Acholi’. 2262

On 5 May 2003, Vincent Otti is recorded as reporting to Joseph Kony that ‘his major

objectives now is to step [ sic ] serious operations in such [a way] that the entire northern

Uganda will all cry’, and that he was deploying ‘according to Joseph Kony[’s] instruction

such that all parts of Acholi, Lango, Madi are covered and all camps, schools, t/centres

and towns are attacked by LRA’. 2263 The logbook then records Joseph Kony being ‘very

impressed about Otti’s plans’ and saying that ‘Otti should do exactly as he stated’. 2264

On 7 May 2003, Joseph Kony is recorded as stating that he wanted the LRA to ‘cover

the entire northern Uganda purposely for waging serious atrocities for the community to

blame the gov’t that they are not doing enough to keep them’. 2265 It is noted that ‘c/s 89

(Dominic unit)’ is recorded as being on air during this communication. 2266

On 9 May 2003, the ISO logbook recorded Joseph Kony stating that ‘if LRA come across

any bicycle cyclists they should capture and cut off their lips’. 2267

2260 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0124. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0455, at 0490. 2261 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0124. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0455, at 0490. 2262 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0157. The Chamber notes that while the UPDF Gulu logbook does not record this specific statement by Joseph Kony, it records him as talking about killing Acholi ( see UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0529). In light of the detail contained in the ISO logbook entry, the Chamber considers it appropriate in the current context to rely on this record. 2263 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0185. The Chamber considers that even though the corresponding UPDF logbook entries do not seem to contain this specific detail, they clearly overall record the same content of the communication, and that in any event the ISO logbook entry is sufficiently reliable. See UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0560-62; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6309- 10. 2264 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0185. 2265 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0191. See also UPDF Logbook (Soroti), UGA-OTP-0242- 6212, at 6315. While this entry does not reflect the exact same wording, it also records Kony as directing for ‘heavy atrocities on civilians’ to be started. 2266 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0190. 2267 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0151. While the corresponding UPDF logbooks do not contain this exact language, they do mention Kony talking about cutting the lips of civilians/bicycle riders in an

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On 7 June 2003, Lapanyikwara is recorded in logbook evidence as reporting an attack on

2268

Opit conducted by Dominic Ongwen. Dominic Ongwen is indicated as on air during

2269

the radio communication. According to the logbook, Joseph Kony then responded that ‘Dominic should have burnt all civilians houses because they are wors[e] than UPDF’.

2270

On 9 August 2003, Vincent Otti is recorded in the ISO logbook as reporting that civilians in Lango were ‘pledging money for LRA killed’, and stated that therefore all civilians in

2271

Lango areas were enemies and should be dealt with severely. Vincent Otti also said on radio that ‘any person found with bows and arrows should be shot with his arrows on

all his body to stand like a po[r]cupine’.

2272

According to the ISO logbook, on 2 September 2003, in a radio communication including

Joseph Kony, Vincent Otti, Raska Lukwiya, Charles Tabuley, and others, Vincent Otti announced that ‘very soon he will start killing civilians seriously and the blood will flow

into rivers and such river will be call[ed] “R. BLOOD”’.

2273

In an intercepted communication of 10 October 2003, Vincent Otti reported to Joseph

Kony that he had sent soldiers to attack Pajule trading centre, and Joseph Kony responded

by instructing Vincent Otti to make civilians his main target, because they were the ones

2274

making the UPDF fight the LRA. As discussed below, there is also evidence to the

exchange with Ocan Bunia. See UPDF Logbook (Gulu), UGA-OTP-0254-0455, at 0574; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6321. The Chamber further notes that the handwriting on this page of the ISO logbook was identified to be that of P-0059 ( see P-0059: T-36 , p. 31, line 19 – p. 33, line 17; P-0303 Statement, UGA- OTP-0258-0723-R01, at para. 37(e)). 2268 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0228. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0455, at 0664-65; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6395. 2269 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0226, 0229. See also UPDF Logbook (Gulu), UGA-OTP- 0254-0455, at 0664; UPDF Logbook (Soroti), UGA-OTP-0242-6212, at 6394. In fact, the Chamber notes that the Gulu UPDF logbook attributes the report of the attack to Dominic Ongwen himself, but considers this discrepancy in the logbook evidence to be immaterial. 2270 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0229. The Chamber notes that while the UPDF Soroti logbook does not include this specific remark by Joseph Kony, it also records the report by Lapanyikwara and Ocan Bunia on the attack at Opit, including the details of what was taken ( see UGA-OTP-0242-6212, at 6395). 2271 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0257. 2272 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0257. The Chamber notes that while the corresponding UPDF logbooks do not seem to contain this specific statement by Vincent Otti, they do also record exchanges in which Joseph Kony instructs for ‘gun man or arrow men’ to be killed and civilian houses to be burned ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0823-24) and Tabuley states operating ‘to kill Teso people for holding guns and arrows against LRA’ ( see UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6088). 2273 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0349; UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0888. See also UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6108. 2274 See section IV.B.3.ii.c above. The content of this exchange is established by reference to the testimonies of P-0138: T-120 , p. 65, line 25 – p. 66, line 21, and to the ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547. Despite an issue with his testimony, discussed above para. 707, P-0003’s evidence is also corroborative on this

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effect that Dominic Ongwen stated, on the ground during the attack on Pajule IDP camp,

that ‘all the people from Pajule were going to be killed because they were supporting the government’. 2275

On 25 October 2003, according to the ISO logbook, when giving instructions for fighting

Arrow groups, Joseph Kony stated that the LRA should ‘kill all of them including the

civ[ilians] they get that they should just shoot whoever tries to escape’, and that ‘even

2276 mothers with kids should not be spared’. He specified that ‘even if LRA kills few

Arrow grps but kill many civ its okay’. 2277

On 11 November 2003, Joseph Kony is recorded in an ISO logbook as stating that LRA

soldiers should kill Lango, Acholi and Teso civilians because they made the UPDF

2278 follow the LRA.

Certain intercepted communications from the period 22-24 November 2003 were

2279 discussed during the trial in detail. Among these is an exchange between Buk

Abudema and Joseph Kony wherein the former stressed that the LRA needed to kill

civilians because they were supporting President Museveni, to which the latter responds

by saying that civilians were many and that no matter how many they killed, they would

2280 not finish all the civilians.

On 23 December 2003, Joseph Kony is recorded as stating that ‘Acholi should truly be

killed and if possible wiped off totally b[ecau]se instead of running to the bush to join hands with LRA so that Museveni is toppled, they go to Museveni’. 2281

point (P-0003: T-43 , p. 3, line 17 – p. 4, line 16). The Chamber notes that this intercepted communication is also discussed as part of the evidence relevant for the findings in relation to the attack on Pajule IDP camp on 10 October 2003, see section IV.C.6.iv below. 2275 See para. 1274 below. 2276 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0612. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0229, at 0286; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6172. 2277 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0613. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0229, at 0286; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6172. 2278 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0038. See also UPDF Logbook (Achol Pii), UGA-OTP- 0242-6018, at 6194; UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2264-67. 2279 See section IV.B.3.ii.e above. 2280 P-0003 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP-0248-0224-R01, at 0251-54; P-0016 Tape UGA- OTP-0037-0314 Transcript, UGA-OTP-0259-0128, at 0129-32; P-0059 Tape UGA-OTP-0037-0314 Transcript, UGA-OTP-0248-0342-R01, at 0369-72; P-0003: T-43 , p. 48, line 22 – p. 51, line 20; P-0016: T-33 , p. 51, line 13 – p. 52, line 23; P-0059: T-37 , p. 29, line 17 – p. 31, line 11. See also section IV.B.3.ii.e above. 2281 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0147. See also UPDF Logbook (Soroti), UGA-OTP- 0254-2284, at 2460-61.

No. ICC-02/04-01/15 385/1077 4 February 2021

On 23 January 2004, an ISO logbook reports Joseph Kony as stating that ‘killing of

civilians from infant to old age must start seriously. That civilians are the ones who put

pressure on the Govt to fight LRA because LRA are the ones who make them suffer’. 2282

On 23 February 2004, during an intercepted communication during which Dominic

2283 Ongwen was indicated as on air, Joseph Kony is recorded as instructing ‘all units in

Uganda to attack and kill civilians as Odyambo has done because it’s the same civilian

2284 which Museveni recruit to fight LRA. Therefore they should all be finished.’

On 24 February 2004, an ISO logbook records Joseph Kony as stating that ‘all [people]

should know that those who support Museveni will all be killed by LRA. He added that

as long as Museveni is still the president, LRA will continue fighting and killing

[people].’ 2285 Dominic Ongwen is recorded as on air during this intercepted radio

2286 communication.

On 25 February 2004, according to the ISO logbook, based on a report that at ‘Lira Palwo’

some civilians were trying to assist an LRA soldier pretending to defect, Joseph Kony

stated that ‘p[eo]ple in Lira Palwo are very bad p[eo]ple and Onen should organise and

kill them seriously’, and that ‘all Acholi should get finished b[ecau]se they are useless

tribe’. 2287 2288 Dominic Ongwen is noted as on air during this exchange. It is noted that on

2289 19 March 2004, an LRA attack on Lira Palwo IDP camp in fact took place.

On 26 February 2004, the ISO logbook records a particular incident of an intruder joining

the frequency urging the LRA to ‘think about the [people]’ and referring to a ‘peaceful

2282 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0016. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4208-09. 2283 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0094. 2284 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0096. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7383; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2501. The Chamber also notes in this context that P-0339 identified his handwriting in the UPDF Soroti logbook for the entry on 23 February 2004 at 09:45 ( see P-0339: T-135 , p. 12, lines 14-17; the logbook indicated here is a re-scan of the logbook shown to the witness, see UGA-OTP-0197-1866, at 1982). While P-0339 did not identify his handwriting on this exact page, the handwriting does appear to be the same. It is noted that a few days before, LRA soldiers under command of Odhiambo had attacked Barlonyo IDP camp, see paras 1164, 1166 below. 2285 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0098. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4252; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2506. 2286 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0097. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4252. 2287 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0101. See also UPDF Logbook (Soroti), UGA-OTP-0254- 2284, at 2513. 2288 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0101. 2289 See para. 1168 below.

No. ICC-02/04-01/15 386/1077 4 February 2021

solution to end the conflict’. 2290 According to the logbook, ‘[a]ll LRA [commanders] on

the net blamed that voice seriously’ and ‘Otti said under all means LRA will remove M7

[Museveni] and LRA will kill all useless civilians who are siding with the govt’. 2291 On

the same day, Vincent Otti also ordered that all LRA, ‘wherever they are’ must kill people

‘in camps’. 2292 2293 Dominic Ongwen is recorded as being on air for this communication.

On 31 May 2004, according to the ISO logbook, Vincent Otti, referring to the attack on

Lukodi some days previously, stated that Tulu ‘should carry forward b[ecau]se civ[ilians]

are their first enemy’. 2294 Buk Abudema ‘also encouraged Tulu to increase on killing

civilians’. 2295 Tulu replied stating that ‘that is what their god has promised them to

do’. 2296 It is noted that Dominic Ongwen was on air for this communication, during which

he reported that the same day he had ‘hit a veh[icle] carrying UPDF soldiers and

civilians’. 2297

On 17 June 2004, Buk Abudema is recorded as stating, during a conversation with

Dominic Ongwen, that ‘civilians are the worst enemy to them and should all be killed

b[ecau]se they are easily changed to become soldiers’. 2298

A UPDF logbook records Joseph Kony, on 7 July 2004, as stating that ‘all people who

are living in the camps will die due to the difficulties they are facing but that is not enough,

he is encouraging his comdrs to help these people die more [because] they are the very

people who are supporting govt to fight against LRA’. 2299

2290 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0104. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7389. 2291 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0104. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7389; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2517-18. 2292 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0103. 2293 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0102. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7388. 2294 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0007. See also Police Logbook, UGA-OTP-0037-0002, at 0104-05. This communication is also discussed below as relevant for the Chamber’s findings in relation to the attack on Lukodi IDP camp on or about 19 May 2004. 2295 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0007. See also Police Logbook, UGA-OTP-0037-0002, at 0104-05. 2296 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0007. 2297 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0007. See also UPDF Logbook (Gulu), UGA-OTP-0254- 2982, at 3063-64. 2298 ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0040. See also UPDF Logbook (Gulu), UGA-OTP-0254- 2982, at 3091. 2299 UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0355-56. The Chamber notes that this particular detail is not included in the corresponding ISO and UPDF logbooks. However, these entries clearly concern the same radio

No. ICC-02/04-01/15 387/1077 4 February 2021

The Prosecution also refers in this context to a radio message sent out by Dominic

2300

Ongwen on 1 August 2004. However, because there are material discrepancies as to

the interpretation of the message in the testimonies of the two witnesses with whom it

2301

was discussed, the Chamber cannot draw any conclusions relevant for its findings.

According to the ISO logbook, on 1 August 2004, in a radio communication during which,

inter alia , Joseph Kony, Vincent Otti, Buk Abudema and Dominic Ongwen were on air, Labongo stated that the ‘rate of ambushes and attack will be at its highest peak to show

civilians that since they support Museveni […] they should be destroyed all’.

2302

The same ISO logbook also records, under the date of 29 September 2004, a message by

Dominic Ongwen in which he complained about the UPDF and civilians calling on the LRA to come out of the bush if they did not want to ‘get finished’, and stated that he did

not want to hear such ‘foolish talks’ and that he would ‘organise more atrocities’.

2303

communication ( compare , in particular, UPDF Logbook (Lira), UGA-OTP-0255-0228, at 0355 (Abudema and Kony talking about escape of Acaye Ecomog) with ISO Logbook (Gulu), UGA-OTP-0062-0002, at 0089-90 (Abudema and Kony talking about escape of Acaye Ecomog) and UPDF Logbook (Gulu), UGA-OTP-0254-2982, at 3129 (Abudema and Kony talking about escape of Acaye Ecomog)). Of particular note is that none of these logbooks appear to contain the specific report of Abudema which, according to the UPDF Lira logbook, led to this statement by Kony. Bearing this in mind, and noting at the same time that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by UPDF (Lira). 2300 Prosecution Closing Brief , para. 191. 2301 P-0016: T-33 , p. 26, line 15 – p. 27, line 5 (testifying that Dominic Ongwen was stating that he has dispersed people to ‘find their own way’, and that there was no hidden meaning to this expression); P-0059: T-37 , p. 32, line 24 – p. 35, line 7 (testifying that in line with his understanding, Dominic Ongwen was assembling his people and distributing them ‘to do operation as these people wanted’). It may further be noted that none of the two witnesses provided an interpretation of the message relevant for the present discussion. See also section IV.B.3.ii.q above. 2302 ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0156. See also UPDF Logbook (Gulu), UGA-OTP-0254- 2982, at 3168; Police Logbook, UGA-OTP-0037-0002, at 0044. 2303 ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0299. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly concern the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0298 (Otti coming briefly on air but closing down because on move) with UPDF Logbook (Gulu), UGA-OTP-0254-3833, at 4001 (Otti coming briefly on air but closing down because on move) and UPDF Logbook, UGA-OTP-0255-0451, at 0630 (Otti coming briefly on air but closing down because on move)); compare ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0298 (Dominic Ongwen reporting ambushes on 13 and 21 September 2004) with UPDF Logbook (Gulu), UGA-OTP- 0254-3833, at 4002-03 (Dominic Ongwen reporting ambushes on 13 and 21 September 2004) and UPDF Logbook, UGA-OTP-0255-0451, at 0630-31 (Dominic Ongwen reporting ambush on 17 September 2004, but at same location and with same items taken)). While the UPDF Logbook, UGA-OTP-0255-0451, at 0631 also records Dominic Ongwen as talking about what he heard on radio Mega FM, it does not contain the same expressions as recorded in the ISO logbook. However, given the context involved, the Chamber is satisfied that it can rely on the wording as reported by ISO.

No. ICC-02/04-01/15 388/1077 4 February 2021

On the basis of the above analysis, the Chamber understands that the LRA narrative and perception of the civilian population as the enemy was based on the perception of the civilians’ cooperation with the Government of Uganda, rather than including an ethnic dimension as such. Most of the evidence refers to civilians as such, or frames the discussion in geographic terms (i.e. Northern Uganda). When ethnic designators are used, references to Acholi people are most frequent, but this derives primarily from the fact that the LRA had been operating in Acholi areas for the longest time; in a similar logic, when Iteso or Langi are referred to in the evidence, this is done in the specific context of operations in geographical areas of Northern Uganda predominately inhabited by either of these groups.

In this regard, the Chamber observes that, according to the ISO logbook, on 26 February 2004 the issue of ethnicity was discussed on LRA radio. Reference was made to the tribal 2304 conflict between the Acholi and the Langi which had sparked off. Joseph Kony reacted by blaming the Acholi, Langi and ‘Itesots’ as being ‘foolish’ and stated that ‘in the bush’, i.e. in the LRA, Langi and ‘Itesots’ commanders are ‘united without trible [i.e. tribal] conflicts among themselves’, and adding that ‘LRA have moved in all the Acholi, Lango and Teso regions committing atrocities everywhere they reach but still they are one in the bush’. 2305 Joseph Kony and Vincent Otti are further recorded as instructing that ‘true Acholi, Langi and Itesots are only those ones who are in the bush with LRA’ and that ‘all those at home must all be killed’. 2306 This clearly indicates that, indeed, the decisive factor was the perceived lack of support for the LRA on the part of the civilian population, rather than their ethnicity. It is noted that Dominic Ongwen is recorded as 2307 having been on air during this communication.

The finding of the Chamber that Dominic Ongwen both knew of the LRA’s attitude towards civilians in Northern Uganda and himself shared that attitude is based on the

2304 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0103. The Chamber notes that the word ‘tribal’ is consistently misspelled as ‘trible’ in this entry of the logbook, but is clear from context. See also UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4255; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7389; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2515. 2305 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0103. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7389. 2306 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0103. See also UPDF Logbook (Achol Pii), UGA-OTP-0242- 7309, at 7389. 2307 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0102. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4255; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7388.

No. ICC-02/04-01/15 389/1077 4 February 2021

evidence cited above, which indicates that Dominic Ongwen regularly, and at times actively, participated in interactions, in particular of the LRA’s radio communication network, during which intentions to harm civilians on account of their perceived association with the Government of Uganda were discussed. In addition, the Chamber finds support for this conclusion in its findings in relation to Dominic Ongwen’s 2308 involvement in the four attacks relevant to the charges.

The Chamber also notes in this context that the records of intercepted radio communications, as outlined in detail above, establish a clear awareness on the part of the correspondents of the distinction between civilians and combatants. The records regularly refer to ‘civilians’, ‘innocent civilians’, to people living in camps, or specifically distinguish between civilians and UDPF soldiers. Indeed, the references in the intercepted radio communications for example to women, children, elderly, or population in the IDP camps clearly indicate an intention to attack civilians.

2308 See sections IV.C.6, IV.C.7, IV.C.8, IV.C.9 below.

No. ICC-02/04-01/15 390/1077 4 February 2021

5 Armed conflict and the LRA’s attack on civilians

Throughout the period of the charges, i.e. between 1 July 2002 and 31 December 2005, the LRA regularly fought the armed forces of the Government of Uganda and associated

2309

local armed units in Northern Uganda. Dominic Ongwen knew of this fact.

The Chamber has already provided in the introduction to this judgment a brief historical

background to the conflict, and the major events leading up to the period relevant to the

2310 charges.

As set out above, shortly before 1 July 2002, as a result of Operation Iron Fist, a

considerable number of LRA units, including Sinia brigade and specifically the Oka

2311 battalion, crossed the border from Sudan and entered back into Uganda. P-0205

testified that in June 2002, Gilva, Sinia and Stockree brigades, as well as Control Altar,

2312 entered Uganda under the overall leadership of Vincent Otti. As found above, at the

time Dominic Ongwen was battalion commander in the Oka battalion of Sinia

2313 brigade.

The Ugandan People’s Defence Forces (UPDF), which is the national military of

2314 Uganda, was the principal military opponent of the LRA.

In addition, the LRA also fought local armed groups which were under the command of

2315 the UPDF and funded by the Government of Uganda. Joseph Balikudembe, a UPDF

officer, explained that local defence units (LDUs) were under UPDF ‘leadership

guidance to make sure that they locally helped the UPDF fill the gap, especially in the

protection of the IDP camps and maybe securing of routes’. 2316 They were recruited from

2317 a particular sub-county or village, and their purpose was to protect their own people.

2318 They were armed and given military training. John Lubwama, who was commander

2309 Para. 142 above. 2310 See section I.A above. 2311 See section I.A above. 2312 P-0205: T-47 , p. 17, line 25 – p. 18, line 5. 2313 See paras 1013-1015 above. 2314 Agreed Facts , A9. 2315 In light of the evidence, the Chamber considers it appropriate to refer to the combined force of the UPDF and the associated LDUs as government forces. See also Agreed Facts , A11. 2316 P-0359: T-110 , p. 16, lines 7-18. 2317 P-0359: T-110 , p. 17, lines 11-21. 2318 P-0359: T-110 , p. 16, lines 21-25, p. 17, lines 21-23.

No. ICC-02/04-01/15 391/1077 4 February 2021

2319 of the UPDF battalion based at Pajule during the relevant period, testified that he had

2320 LDU soldiers under his command. The LDU were considered militia, but were

2321 integrated into the UPDF structure. P-0059 stated that LDUs were ‘part of the army’;

2322 they were locally recruited and armed by the UPDF. D-0065 stated that the LDUs

belonged to the government and were generally paid monthly salaries and given flour

2323 each week. P-0047 indicated that like the UPDF, the LDUs were paid by the army

2324 and were subject to the same code of conduct as the UPDF. P-0218 agreed that the

LDUs were made up of local men and youth who were trained and paid by the

2325 government.

The evidence also demonstrates that ‘Amuka’ and ‘Arrow Boys’ were LDUs under

UPDF command. P-0070 testified that the LRA’s adversaries included Amuka and the

2326 Arrow Boys, which were locally recruited armed militia and also known as LDUs. P-

2327 0070 stated that the Amuka operated in Langi and the Arrow Boys operated in Teso.

P-0138 explained that ‘Arrow groups’ were composed of Teso and Lira youths and were

established and trained by the government so that they would fight the LRA and ‘flush

out the LRA from Teso’. 2328 He specified that despite their name, Arrow groups were

2329 2330 armed with guns. Several witnesses have testified to having been part of LDU or

2331 Arrow Boys, at the relevant time, or otherwise testified about these groups in line with

the Chamber’s findings. 2332

It is not disputed that the LRA engaged in regular fighting with the government forces

during the period relevant to the charges. Evidence which establishes this fact is

2319 P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 12-13. 2320 P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 50-51. 2321 P-0047: T-115 , p. 6, line 3 – p. 7, line 15. 2322 P-0059: T-38 , p. 46, line 2 – p. 47, line 1. 2323 D-0065: T-211 , p. 8, lines 13-15, p. 9, lines 11-16, p. 11, lines 6-14. 2324 P-0047: T-115 , p. 9, line 10 – p. 10, line 10. 2325 P-0218: T-90 , p. 51, lines 9-13. 2326 P-0070: T-106 , p. 21, line 16 – p. 22, line 4. 2327 P-0070: T-106 , p. 21, lines 16-17. 2328 P-0138: T-120 , p. 20, line 22 – p. 21, line 2. 2329 P-0138: T-120 , p. 21, lines 2-3. 2330 D-0065: T-211 , p. 7, line 2 – p. 14, line 5; D-0066: T-214 , p. 5, line 9 – p. 9, line 15; D-0072: T-212 , p. 6, line 13 – p. 12, line 3. 2331 D-0125: T-242 , p. 6, line 8 – p. 10, line 22; D-0138: T-246 , p. 8, line 4 – p. 14, line 5; D-0140: T-206 , p. 17, line 16 – p. 20, line 15. 2332 D-0122: T-237 , p. 8, line 19 – p. 9, line 24; D-0123: T-238 , p. 10, line 10 – p. 12, line 2; D-0124: T-238 , p. 16, line 17 – p. 23, line 1. Some witnesses also testified about the Amuka, see D-0083: T-217 , p. 45, line 13 – p. 47, line 8; D-0113: T-221-CONF, p. 13, line 18 – p. 23, line 18.

No. ICC-02/04-01/15 392/1077 4 February 2021

2333 discussed across this judgment. An uninterrupted timeline of hostilities between the LRA and the government forces is also discernible from the records of intercepted communication in general. Witnesses have equally referred to numerous instances of fighting with the government forces, outside of the specific contexts already discussed in 2334 this judgment.

The Chamber notes that the Defence advanced the argument that the armed conflict between the LRA and the Ugandan government and associated forces should be 2335 2336 considered international. This question, which is a legal one, is disposed of below.

At this juncture the Chamber notes that there is evidence that the LRA obtained supplies 2337 and training in Sudan. There is, however, no indication, at least as concerns the relevant period, that the Government of Sudan in any way intervened in the conduct of LRA operations in Northern Uganda.

As to its conclusion that Dominic Ongwen knew of the above facts, the Chamber considers that it is the only reasonable conclusion based on the position of Dominic 2338 Ongwen within the LRA, as discussed above.

Throughout the period of the charges, in Northern Uganda, the LRA killed, injured and enslaved a large number of civilians in numerous attacks on individual civilians, IDP camps and other civilian locations. It also abducted and enslaved, and used as sexual slaves and so-called ‘wives’, and as domestic servants a large number of civilians. Dominic

2339

Ongwen knew of these facts.

Under the requirements of the law, in particular of Article 7(2)(a) of the Statute, the Chamber is mandated to verify that a course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Statute can be established. Given the

volume and degree of specificity of the evidence in the case, this task can be undertaken by establishing to a great degree of detail the timeline of individual acts of violence undertaken by LRA soldiers against civilians. It is to be emphasised at the same time that

2333 See paras 1156-1171, sections IV.C.6, IV.C.7, IV.C.8, IV.C.9 below. 2334 See , for example, P-0070: T-106 , p. 17, lines 2-6; P-0309: T-61 , p. 14, line 7 – p. 16, line 1, p. 22, line 23 – p. 24, line 1, p. 28, line 15 – p. 30, line 21; T-62 , p. 38, lines 17-18, p. 53, line 19 – p. 56, line 11, p. 58, line 24 – p. 59, line 15, p. 66, lines 22-25; P-0406: T-154 , p. 15, lines 10-16; D-0068: T-222 , p. 38, lines 5-12. 2335 Defence Closing Brief , para. 305. 2336 See section V.A.2.ii below. 2337 See para. 876 above. 2338 See section IV.C.3 above. 2339 Para. 143 above.

No. ICC-02/04-01/15 393/1077 4 February 2021

the individual acts of violence are not as such material to the charges, but are taken into

account as evidence to demonstrate a course of conduct.

This is, of course, with the exception of the four attacks which underlie a great number

of charges in the case. These attacks at Pajule in October 2003, at Odek in April 2004, at

2340 Lukodi in May 2004, and at Abok in June 2004, – and the acts of killing, injury and

enslavement of civilians carried out by the LRA in their contexts – are also relevant to

the present determination. Similarly, the Chamber takes into account the findings below

in relation to the acts of sexual and gender based violence committed by members of the

LRA, including Dominic Ongwen against civilians in Northern Uganda, who were

abducted, enslaved and used as sexual slaves and so-called ‘wives’, and as domestic

2341 servants.

The Chamber notes that according to the evidence assessed above, LRA soldiers attacked

2342 Mucwini and killed civilians there in late July 2002.

Several witnesses testified about an attack on Patongo in which Dominic Ongwen

2343 participated as commander of Oka Battalion. Witnesses testified that military

2344 barracks were attacked, that some goods were looted and some civilians abducted. An

ISO logbook entry dated 1 July 2002 records Charles Tabuley reporting the attack on

2345 Patongo in the morning of that day. It is noted in particular that the report contains

information on the capturing of two UPDF soldiers and one policeman, who was released

2346 some time after. P-0205 stated that two policemen and a UPDF soldier were captured

2347 during the attack on Patongo, and that the policemen were later released. The

Chamber considers that the small discrepancy in relation to whether two soldiers and one

policeman, or one soldier and two policemen, were captured, is immaterial; to the

2340 See sections IV.C.6, IV.C.7, IV.C.8, IV.C.9 below. 2341 See sections IV.C.10, IV.C.11 below. 2342 See paras 994-998 above. 2343 P-0016: T-34-CONF, p. 20, lines 18-21; P-0205: T-47 , p. 19, lines 21 – p. 20, line 12; P-0231: T-122 , p. 39, lines 2-6, p. 40, lines 9-23. See also P-0309: T-61 , p. 24, line 20 – p. 25, line 17. 2344 P-0205: T-47 , p. 20, lines 1-3; P-0231: T-122 , p. 39, lines 2-6, p. 40, lines 9-23. 2345 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0246. See also ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0249-51; Report, UGA-OTP-0010-0006, at 0057; P-0340: T-102 , p. 11, line 25 – p. 12, line 1. The Chamber notes its discussion of the reliability of the 2002 ISO logbooks at para. 666 above. 2346 ISO Logbook (Gulu), UGA-OTP-0063-0194, at 0246-48. See also ISO Logbook (Gulu), UGA-OTP-0063- 0194, at 0249-50, 0254, 0266-67. 2347 P-0205: T-47 , p. 20, lines 2-10.

No. ICC-02/04-01/15 394/1077 4 February 2021

contrary, given the similarity in the evidence, the Chamber is of the view that the same

event is being described, and that the attack in Patongo occurred on 1 July 2002.

2348

On 4 April 2003, LRA soldiers attacked Lagile IDP camp in Awere sub-county.

According to both the ISO and UPDF logbooks, Dominic Ongwen reported to Joseph

Kony after the attack, stating that he had burnt some houses in the camp, killed a number

2349 2350

of civilians, and abducted others. P-0379, an insider, testified about this attack. He stated that Dominic Ongwen called a standby and announced that they were ‘going to

work on the civilians of Awere so that they know that even us, we have guns that can shoot’.

2351

P-0379 stated that Dominic Ongwen’s instruction was: ‘When you reach there, do not leave anything. Anything that is living, don’t leave alive because the people there

do not want us. They want us to die here in the bush.’

2352

P-0379 went on to describe the

attack, stating that there was a group that went to the barracks, and another that went to

the centre, and that the former was repelled from the barracks and joined the latter at the

2353

centre. He stated that some shops were broken into at the centre, there was a lot of

2354

gunfire and Kalalang was injured, after which the attackers retreated. According to

the witness, about 8-12 civilians were captured and were later killed during the retreat

2355

from the camp, on the specific order of Dominic Ongwen.

2348 The date of the attack is established by the UPDF logbook, where Dominic Ongwen is recorded reporting the attack on 5 April 2003, stating that it took place ‘y/day’ (UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3558). See also ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0083. The Chamber notes that while this entry is hardly legible, the corresponding entry in the Kampala logbook assists in understanding the content ( see UGA-OTP- 0065-0143, at 0246). Further, the Chamber takes note that the UPDF Soroti logbook records the report on the attack as having been made by Lapanyikwara ( see UGA-OTP-0242-6212, at 6260), but considers this to be less reliable in light of the way in which the message is recorded in both ISO and UPDF (Gulu) logbooks. The evidence concerning the discussion among Dominic Ongwen, Joseph Kony and Vincent Otti in advance of this attack is discussed above, see para. 1119. 2349 ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0083 (giving the number of civilians killed as ‘over twenty’); UPDF Logbook (Gulu), UGA-OTP-0254-3399, at 3558. The Chamber notes that the Soroti UPDF logbook records this report as coming from Lapanyikwara (UGA-OTP-0242-6212, at 6260), which the Chamber deems to be an error in light of the ISO and Gulu UPDF logbooks, and in light of P-0379’s testimony in relation to the involvement of Dominic Ongwen. 2350 It is noted that P-0379 referred to the attack as the attack in ‘Awere’, which may be either a reference to the sub-county or the town/place. In either case, the context indicates that P-0379 referred to the same attack as the one reported on the LRA radio and recorded in the logbooks. 2351 P-0379: T-57 , p. 9, lines 3-20. 2352 P-0379: T-57 , p. 9, lines 6-8. 2353 P-0379: T-57-CONF, p. 9, line 22 – p. 10, line 3. 2354 P-0379: T-57-CONF, p. 10, lines 4-8. The Chamber notes that Kalalang’s injury is also mentioned in Dominic Ongwen’s report on the attack (ISO Logbook (Gulu), UGA-OTP-0063-0002, at 0083). 2355 P-0379: T-57-CONF, p. 10, lines 5-18.

No. ICC-02/04-01/15 395/1077 4 February 2021

According to witness evidence, on 23 June 2003, the LRA abducted by force a large

2356

number of girls from the Lwala Girls School. The ISO logbook provides

corroboration for this testimony, as it records discussion of the distribution of the

2357 2358

abducted girls on 22 July 2003, and again on 27 July 2003.

P-0406 described an attack on Abalanga in Soroti, where the LRA clashed with

2359

government soldiers, but also abducted people, and looted food. He stated that during

the attack, civilian houses were shot at and set on fire, and that some people were locked

2360

in the houses before they were set on fire.

P-0309 described in detail an occasion in Labworomor, when LRA soldiers disguised

themselves as members of the UPDF and entered the locality before being recognised

2361

and engaged by the UPDF. P-0309 testified that the LRA failed to overrun the

2362

barracks, but managed to loot food items in the civilian camp. According to this

2363

testimony, some civilians were abducted to carry away the looted items. P-0309 stated that it was Dominic Ongwen’s idea to disguise as UPDF soldiers, and gave details of the

2364 2365

instructions given by Dominic Ongwen. P-0372 provided very similar testimony.

Full and detailed corroboration of this testimony is found in the ISO logbook, which also

2366

makes it possible to date the attack at 23 November 2003.

2356 P-0015, who testified to have been abducted from the school, estimated that initially, more than 100 girls were abducted, but stated that many were released and that afterwards, about 30 girls remained, P-0015 First Statement, UGA-OTP-0043-0131-R01, at paras 10-29; P-0015 Second Statement, UGA-OTP-0191-0254-R01, at paras 8-9. also stated that she was abducted from the school, . Other witnesses have also referred to the abduction at the school, see P-0070: T-106-CONF, p. 6, line 6 – p. 12, line 17; P-0144: T-91-CONF, p. 68, line 16 – p. 69, line 9; D-0125: T-242 , p. 8, lines 12-21. 2357 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0324. The corresponding UPDF logbooks do not contain entries for the communication at 14:00 ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0786-88; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6074). 2358 ISO Logbook (Gulu), UGA-OTP-0068-0146, at 0330. The corresponding UPDF logbooks do not contain entries for the communication at 13:00 ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0796-98) or overall less detailed entries for that day ( see UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6080). 2359 P-0406: T-154 , p. 28, line 18 – p. 29, line 3. 2360 P-0406: T-154 , p. 28, line 25 – p. 29, line 7. 2361 P-0309: T-61 , p. 17, line 18 – p. 18, line 22. 2362 P-0309: T-61 , p. 19, lines 1-25. 2363 P-0309: T-61 , p. 19, lines 24-25. 2364 P-0309: T-61 , p. 17, line 23 – p. 18, line 1, p. 19, lines 12-13. 2365 P-0372: T-148 , p. 34, line 24 – p. 37, line 22. P-0372 also stated that about 40 younger abductees were not released but remained with the LRA, P-0372: T-148 , p. 38, lines 4-9. 2366 ISO Logbook (Gulu), UGA-OTP-0066-0002-R01, at 0087. The date of the attack is based on its being reported on 25 November 2003 as having taken place ‘last Sunday’. See section IV.B.3.ii.f above. See also UPDF Logbook

No. ICC-02/04-01/15 396/1077 4 February 2021

According to the evidence, in February 2004, LRA soldiers under the command of

Odhiambo attacked IDP camps at Abia and Barlonyo, killing civilians and burning

houses. P-0070 recalled that LRA soldiers under the command of Odhiambo attacked

Abia, Barlonyo and Lira Palwo when coming back from Teso, following Charles Tabuley’s death and Joseph Kony’s order that ‘nothing should be left alive’.

2367

Witness

Aldo Odoch stated that he participated in both attacks as an LRA soldier, and noted the

2368

high number of killings.

Some details of the attack at Abia are found in the ISO logbook, which records Odhiambo reporting a fight with the UPDF in ‘Apiya’, and stating that he ‘set the whole barracks

2369

and camp ablaze[] and killed all the p[eo]ple on sight’. A police report establishes 31

killings, injuries, abductions, the looting of food and other property and the burning of

2370

houses. The ISO logbook records Joseph Kony as being overjoyed at Odhiambo’s

2371

report of the attack on Abia, while in a communication of 12 February 2004, Joseph Kony is recorded as stating that ‘the attack Odyambo launched in Abia camp recently

where very many p[eo]ple were killed should be the tactics all LRA units should adopt’.

2372

P-0233 testified that the attack on Abia was ordered by Odhiambo, who gave

2373

the instruction that nothing should be left alive.

2374

The attack at Barlonyo is demonstrated by the evidence provided by D-0032 and

2375 2376

Hillary Daniel Lagen, as well as by an ISO logbook entry, and a preliminary police

(Gulu), UGA-OTP-0254-0229, at 0403-04; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2360-61; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7315. 2367 P-0070: T-106 , p. 22, line 9 – p. 23, line 4. See also p. 21, lines 11-15. 2368 P-0096 Interview Transcript, UGA-OTP-0228-1938-R01, at 1970-71, lines 1082-120. 2369 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0047. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4227; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7364. 2370 Report, UGA-OTP-0025-0069, at 0072-74. At the time of submission of the document by the Prosecution, the Defence pointed out that there was ‘limited reliability because some parts are too faint to be read’; see Confidential Annex A to Defence Response to “Prosecution’s request to submit 1006 items of documentary evidence” , ICC- 02/04-01/15-701-Conf-AnxA, p. 131. The item registered under the same ERN in fact contains several handwritten portions, which may not be entirely legible. Be that as it may, the item also contains a typed selfcontained three page report, which is entirely readable and is the part relied upon by the Chamber. 2371 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0047. See section IV.B.3.ii.g above. See also UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4227; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7364. 2372 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0069. See section IV.B.3.ii.h above. See also UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7369. 2373 P-0233: T-111 , p. 34, line 17 – p. 35, line 1. 2374 D-0032: T-201 , p. 15, lines 6-18. 2375 P-0040 Interview Transcript, UGA-OTP-0220-0729-R01, at 0734-35, lines 151-225. 2376 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0093. See also UPDF Logbook (Gulu), UGA-OTP-0254- 4143, at 4249-50; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7380-81; UPDF Logbook (Soroti), UGA-OTP-0254-2284, at 2497.

No. ICC-02/04-01/15 397/1077 4 February 2021

report, which reported that 121 bodies were exhumed, while noting that some bodies had

2377 been buried elsewhere or left unburied, and that 332 huts were burnt in the IDP camp.

In addition, P-0054 testified that he heard about the attack from the other soldiers as well

2378 as on radio, including about the fact that houses were burnt and people killed.

On 6 March 2004, Dominic Ongwen was intercepted on radio reporting that he had

‘recently’ attacked Alero camp. 2379

On 19 March 2004, LRA soldiers under the command of Odhiambo and Dominic

Ongwen attacked Lira Palwo. According to the ISO logbook, Odhiambo reported that he

set the UPDF barracks and ‘the camp’ ablaze, and that only a few houses survived. 2380

P-0264 testified that soldiers belonging to the Sinia brigade’s Oka battalion abducted and

killed six or seven civilians in Apala so that they would not report on the LRA presence

2381 to the government forces. P-0264 testified that this happened at the time that Dominic

2382 Ongwen was Sinia commander, but before the Odek attack in April 2004.

As recorded in the ISO logbook, Dominic Ongwen reported that, on or shortly before 11 August 2004, he ambushed people on the ‘Awach road’ killing a motorcycle (bodaboda)

2383 driver and removing all items from the vehicle.

Finally, in relation to its conclusion that Dominic Ongwen knew that the LRA engaged

in numerous attacks on civilians during which it killed or injured them, the Chamber deems it to be the only reasonable conclusion based on Dominic Ongwen’s own

2377 Police Report, UGA-OTP-0015-0158, at 0160. At the time of submission of the document by the Prosecution, the Defence argued that it ‘is not relevant and has no probative value’; see Confidential Annex A to Defence Response to “Prosecution’s request to submit 1006 items of documentary evidence” , ICC-02/04-01/15-701-Conf- AnxA, p. 128. The relevance of the item is clear from the analysis in the present section. As to its probative value, the Chamber notes that the document is an official report prepared by the Ugandan Police following an investigative visit to the location of the attack five days after it had taken place. As such, the Chamber attributes to the report probative value, in the context of the other evidence relied upon by the Chamber as concerns the attack on Barlonyo, with which the report is compatible. 2378 P-0054: T-93 , p. 14, line 13 – p. 15, line 2. 2379 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0128. See section IV.B.3.ii.i above. See also UPDF Logbook (Gulu), UGA-OTP-0254-4143, at 4272; UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7405. 2380 ISO Logbook (Gulu), UGA-OTP-0061-0002, at 0165. See section IV.B.3.ii.j above. See also UPDF Logbook (Achol Pii), UGA-OTP-0242-7309, at 7417. 2381 P-0264: T-65 , p. 26, lines 5-25. 2382 P-0264: T-65 , p. 27, lines 1-7. 2383 ISO Logbook (Gulu), UGA-OTP-0062-0145, at 0181. See also UPDF Logbook (Gulu), UGA-OTP-0254- 3833, at 3863; UPDF Logbook, UGA-OTP-0255-0451, at 0467; Police Logbook, UGA-OTP-0037-0002, at 0040.

No. ICC-02/04-01/15 398/1077 4 February 2021

involvement in the acts, as discussed above in this section, and based on his position

2384

within the organisation, as laid out above.

6 Attack on Pajule IDP camp

i. Pajule IDP camp

Pajule and Lapul IDP camps were situated in Aruu County, Pader district. The two camps were across from each other, Pajule on the east side of the Lira-Kitgum road and Lapul on the west. They were commonly referred to as ‘Pajule IDP camp’. At the time of

2385

the attack, an estimated 15,000 to 30,000 people lived in the camp.

In October 2003, Pajule village was located in Pajule sub-county, Aruu County, Pader

2386 2387

District, Uganda. Nearby, Pajule and Lapul IDP camps had existed since 1996.

Many residents moved to the camps on the orders of the government, which were given in response to the LRA’s activities in the region.

2388

Pajule IDP camp was located on the

2389

east side of the Lira-Kitgum road and Lapul IDP camp on the west side of the road.

Another road, towards Pader, branched off from the Lira-Kitgum road within the

2390

camp.

Although the two camps were registered as separate camps by the Ugandan

2391

government, the World Food Programme, which appears to be the main aid agency

2392 2393

providing food for the camp, treated Pajule and Lapul camps as one IDP camp,

2384 See section IV.C.3 above. 2385 Para. 144 above. 2386 Agreed Facts , A1. 2387 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 8. See P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 7 (stating that many people started moving to the location of the current Lapul camp in 1997, and further explaining that most people moved back home in 2000, although he remained, and that the current Lapul IDP camp came into existence in 2002). 2388 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 9 (testifying that he moved to the Lapul side of the camp because the LRA were looting and abducting people and the government directed people to move to the camp); P-0009: T-81 , p. 7, line 16 – p. 8, line 6 (stating that the government came up with the instruction that since the LRA was abducting people from the villages, people were to leave their homes and come to the camps where they would be protected by the government); D-0076: T-219 , p. 5, line 19 – p. 6, line 1 (stating that he moved to the Pajule camp because the government instructed people to leave the villages and move to the camps; according to the witness, if people stayed in the village then the government would assume you were a rebel supporter). 2389 D-0081: T-220 , p. 12, lines 14-17, p. 13, lines 5-8, p. 14, lines 5-15; D-0076: T-219 , p. 6, line 19 – p. 7, line 3. See P-0084’s sketch of Pajule IDP camp, UGA-OTP-0139-0178; P-0047’s sketch of Pajule IDP camp, UGA- OTP-0027-0198; P-0081’s sketch of Pajule IDP camp, UGA-OTP-0070-0029-R01, at 0050. 2390 See P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198. 2391 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 7. 2392 See P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 33-34. See also P-0249: T-79 , p. 19, lines 15-16. 2393 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 7 (for food distribution purposes, the World Food Programme treated both camps as one camp, Pajule-Lapul IDP camp); P-0081 Statement, UGA-OTP-0070-0029-

No. ICC-02/04-01/15 399/1077 4 February 2021

2394

and the evidence shows that the LRA also attacked the camp as one entity. The

2395

witnesses have also commonly referred to both camps jointly as Pajule IDP camp.

Thus, the Chamber jointly refers to the two camps as Pajule IDP camp unless otherwise

specified.

The evidence indicates that an estimated 15,000 to 30,000 people lived within the entirety

2396

of Pajule IDP camp in October 2003.

2397

There was a military barracks on the Lapul side of the camp. The evidence shows that

2398

the barracks was a small distance away and separated from the civilian dwellings.

Each soldier also had his own hut within the barracks grounds and some soldiers’ families

2399

slept inside the barracks. The evidence also demonstrates that there was a police

R01, at para. 8 (administratively Pajule and Lapul are separate IDP camps; however the World Food Programme treats them as a single camp). 2394 See section IV.C.6.iii, the Chamber’s below discussion of the attack on Pajule IDP camp. The evidence indicates that prior to the attack on 10 October 2003, the LRA had attacked Pajule IDP camp several times, the most recent time being in January 2003. See P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 16-24; P- 0084 Statement, UGA-OTP-0139-0149-R01, at para. 12; P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 11, P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 8. 2395 See P-0081: T-118 , p. 27, lines 6-7; P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 33. 2396 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 66 (testifying that he believed there were over 15,000 people at Pajule in October 2003); P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 55 together with Handwritten report, UGA-OTP-0147-0239, at 0239 (indicating that in November 2003 the Lapul side of the camp had a population of 14,155); P-0009: T-81 , p. 78, line 22 – p. 79, line 6 (stating that there were three to four thousand people living in the camp); P-0008 lists of Pajule/Lapul residents, UGA-OTP-0137-0058, at 0058-9 (listing 17,432 residents on the Pajule side of the camp and 13,710 residents on the Lapul side as of November 2003). The Chamber notes that the document is stamped and signed by Okema John Brown (P-0008), as camp commandant of the Pajule IDP camp. In his testimony, Okema John Brown stated that he compiled the list from information provided to him by the block leaders of the Pajule side and from the camp commandant of the Lapul side (UGA-OTP-0137-0002-R01, para. 60). The Chamber considers this list to be an authentic record created by P-0008 on 30 November 2003. 2397 P-0006: T-140 , p. 43, lines 17-21 (stating that the military barracks was initially on the Pajule side of the camp but then was moved to the Lapul side); P-0081: T-118 , p. 28, lines 3-12 (the military barracks was located on the western side of the Lira-Kitgum road, the Lapul side of the IDP camp). See P-0084’s sketch of Pajule IDP camp, UGA-OTP-0139-0178; P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198. 2398 P-0006: T-140 , p. 44, lines 21-24 (stating that the military barracks was perhaps 500 metres from the civilian dwellings); D-0076: T-219 , p. 7, lines 16-19, p. 23, line 22 – p. 24, line 3 (stating that the barracks and the camp were ‘very close’ and the distance from the camp to the barracks was approximately 100 metres or about the length of the Pajule primary football field); P-0081: T-118 , p. 29, lines 4-9 (estimating that the distance between the military barracks and civilian dwellings ‘could be about a hundred metres’). See P-0047 Statement, UGA- OTP-0027-0177-R01, at para. 42; P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198 (the sketch of Pajule IDP drawn by John Lubwama shows that the barracks is on the west side of the camp in the Lapul area and that the Pajule Mission is near to the barracks). 2399 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 54 (John Lubwama could not remember the number of huts in the barracks in October 2003).

No. ICC-02/04-01/15 400/1077 4 February 2021

2400 2401 station at the camp. There was also a trading centre and a Catholic mission at

2402 Pajule IDP camp.

ii. LRA commanders, including Dominic Ongwen, planned and prepared for the attack

a. Meeting of LRA units and their commanders

Several days before the attack on Pajule IDP camp, Vincent Otti summoned a number of LRA units to join him. Around that time, Dominic Ongwen and his group of fighters

2403

joined Vincent Otti.

A useful introduction is provided by P-0372, who testified that in 2003 after a time in

Teso, his group, commanded by Vincent Otti, returned to Acholi land and met with

2404 Joseph Kony at a place called Tim Pa Lukok. The commanders who met with Joseph

2405 Kony were Vincent Otti and Raska Lukwiya. After about two days at Tim Pa Lukok,

the group turned south and after some time met with Dominic Ongwen and his group,

2406 somewhere in Pader. Shortly thereafter, LRA fighters were selected to attack Pajule

2407 IDP camp.

According to the evidence, Vincent Otti had ordered other units to join him to go and

attack Pajule. P-0144 testified that Vincent Otti, who was in LRA headquarters, had

summoned the Trinkle brigade to come and support the group ‘to go and collect food

from Pajule’. 2408 The Chamber notes that in the witness evidence, ‘LRA headquarters’ is

synonymous with Control Altar, which indeed was the unit commanded by Vincent

2400 P-0006: T-140 , p. 49, line 11 – p. 50, line 3 (testifying that there was a police station on the Pajule side of the road that separated the two camps); D-0076: T-219 , p. 9, lines 7-9 (stating that there was a police force based in the camp). 2401 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 7 (stating that Pajule trading centre was part of both IDP camps); P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 43 (testifying that Pajule trading centre lay between Pajule and Lapul camps, on both the east and west of the road). See P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198. 2402 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 34 (stating that Pajule Catholic mission was located ‘near the displaced Lapul people within Pajule IDP camp’); P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 24, 42, together with P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198 (indicating that Pajule Catholic Mission was on the Lapul side of the camp). See P-0084’s sketch of Pajule IDP camp, UGA-OTP-0139- 0178. 2403 Para. 145 above. 2404 P-0372: T-148 , p. 13, line 13 – p. 14, line 25. 2405 P-0372: T-148 , p. 15, lines 3-4. 2406 P-0372: T-148 , p. 15, line 24 – p. 16, line 14. 2407 P-0372: T-148 , p. 16, lines 15-19. 2408 P-0144: T-91 , p. 19, lines 10-23.

No. ICC-02/04-01/15 401/1077 4 February 2021

2409 Otti. P-0209, who was a captain in Trinkle brigade at the time, provided very similar

testimony, stating that Trinkle brigade was operating around the Latanya hills when the

brigade commander, which at the time was Charles Kapere, assembled the soldiers and

2410 told them that they were being summoned by Vincent Otti.

D-0032 testified that he overheard some messages in relation to the attack on Pajule IDP

2411 camp on the LRA radio communication system. He stated that around 7 October 2003,

Vincent Otti ‘gave orders to other people to go and join him in a place known as

2412 Wangduku’. He testified that those who were summoned by Vincent Otti included

Raska Lukwiya, Charles Tabuley, Tolbert Nyeko Yadin, Opio Makas and Opiro

2413 Livingstone, who was together with Opiro Anaka.

D-0032 was asked by the Presiding Judge if the name of Dominic Ongwen was

mentioned among the people being summoned by Vincent Otti, and testified that ‘[l]ater

on’, when Vincent Otti was mentioning the names, Joseph Kony asked about Dominic

2414 Ongwen, and Vincent Otti responded that Dominic Ongwen was also with him. D-

0032’s evidence indicates that Vincent Otti reported Dominic Ongwen’s presence ‘when

he was referring to the commanders who had joined him’, and therefore that this was

2415 before the attack itself, further corroboration of the evidence that Dominic Ongwen

was with Vincent Otti at the time of the Pajule IDP camp attack.

Indeed, there is evidence indicating that Dominic Ongwen had joined Vincent Otti and

was moving with him from sometime after 20 September 2003, when an ISO logbook

recorded Vincent Otti as summoning a number of LRA commanders to join him,

2416 including Bogi and Dominic Ongwen. That Dominic Ongwen was moving with or in

2409 See section IV.C.1 above. 2410 P-0209: T-160 , p. 11, line 20 – p. 12, line 15. 2411 See D-0032: T-200 , p. 18, line 22 – p. 19, line 4. 2412 D-0032: T-200 , p. 20, lines 16-21. 2413 D-0032: T-200 , p. 21, lines 4-19. 2414 D-0032: T-200 , p. 21, line 20 – p. 22, line 3. 2415 D-0032: T-200 , p. 23, lines 5-9. 2416 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0431. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries, with the UPDF Achol Pii logbook not recording any particular information for this communication time ( see UGA-OTP-0242-6018, at 6139-40). However, these entries clearly concern the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0431 (Abudema coordinating with Isaya Loum to meet, with the latter wanting to meet later) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 0998 (Abudema coordinating with Isaya Loum to meet, with the latter wanting to meet later) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2022-23 (Abudema coordinating with Ayoli to meet, with the latter wanting to meet later; to be noted here is that the ISO logbook, while recording this

No. ICC-02/04-01/15 402/1077 4 February 2021

close proximity of Vincent Otti is also corroborated by a 30 September 2003 entry in the

same logbook, indicating that Joseph Kony issued an order for the LRA to move to Teso,

with the exception of the groups of Vincent Otti and Opiro Livingstone, and specifically adding that ‘Dominic should remain behind with Otti b[ecau]se he has good plans which

can help Otti’.

2417

Several witnesses provided testimony, fully compatible with the above logbook evidence,

to the effect that Dominic Ongwen was with Vincent Otti at the time. In particular, P-

0070 testified that at the time of the Pajule attack Sinia brigade was ‘moving together’

with Control Altar and that this explained his prior testimony to the effect that Dominic

2418

Ongwen was in Control Altar at the time. P-0209 also testified that Dominic Ongwen

2419

was with Vincent Otti in Control Altar at the time. Further, P-0144 and P-0045

testified that at the time of the attack on Pajule IDP camp Dominic Ongwen was ‘in Control Altar at the headquarters’.

2420

The Chamber notes that P-0209 did not know why Dominic Ongwen was in Control Altar

2421

and stated that it is possible to go there as a prisoner or to be transferred. Asked by

exchange to involve Isaya Lowum, indicates for the individuals on air ‘Isaya Lowum/Ayoli’)). Bearing this in mind, and noting at the same time that the entries in the UPDF logbooks are overall less detailed than the entry in the ISO logbook and that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. 2417 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0501. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly reflect the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0498 (Otti reporting on contact with UPDF the previous day, without sending anything on items taken) with UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 1036 (Otti reporting on contact with UPDF the previous day, stating he could not take anything due to bushy grass) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2067 (Otti reporting on contact with UPDF the previous day, stating he could not take anything due to grass being very tall); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0499 (Kony stating that ‘highest tactics/styles of guerrilla war fare are surprise attacks and ambushes’) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1036 (Kony advising Otti that ‘highest tactic of guerrila’ should be ‘surprise attack and ambush and planting mines’) and UPDF Logbook (Soroti), UGA- OTP-0254-1991, at 2067 (Kony informing Otti that ‘highest tactics of gorrilas is to surprise’); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0501 (Kony wanting all LRA to move to Teso) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1038 (Kony ordering Otti to inform all LRA units to immediately advance to Soroti) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2069 (Kony ordering that all LRA groups in Uganda move to Teso)). The UPDF Achol Pii logbook does not include an entry for this communication time ( see UGA-OTP-0242-6018, at 6149-50). Bearing this in mind, and noting at the same time that the entries in the UPDF logbooks are overall less detailed than the entry in the ISO logbook and that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. It is noted that Joseph Kony ordered Opiro Livingstone and his group to head for Sudan. 2418 P-0070: T-106 , p. 34, lines 4-19. 2419 P-0209: T-160 , p. 15, lines 6-8. 2420 P-0144: T-91 , p. 26, lines 12-14; P-0045: T-104 , p. 67, lines 2-4. 2421 P-0209: T-160 , p. 15, lines 9-16.

No. ICC-02/04-01/15 403/1077 4 February 2021

the Presiding Judge about whether it was possible to determine which possibility was the

correct one, P-0209 observed that he saw that Dominic Ongwen was not ‘being

mistreated or taken badly’. 2422 Very similarly, P-0144 mentioned tentatively that ‘it was

a kind of detention or an imprisonment’, but immediately added that he did not

2423 understand the reasons for this arrangement. Later in the discussion, however, P-0144

reasoned that he thought that at the time of the Pajule attack Dominic Ongwen was no

2424 2425 longer in detention. Contrary to the Defence submission, P-0045’s evidence on the

reason why Dominic Ongwen was in Control Altar was entirely hypothetical, and she did

2426 not testify that Dominic Ongwen was in LRA prison at the time. In any case, the

Chamber refers to its conclusions above that the brief arrest of Dominic Ongwen by

Vincent Otti took place in April 2003 and that it did not affect Dominic Ongwen’s

2427 position and authority in the organisation for any significant period of time.

The Chamber also refers to its analysis above in relation to the argument of the Defence

that at the time of the attack on Pajule IDP camp Dominic Ongwen was injured and in

2428 sickbay. In particular, the Chamber recalls its finding that at least from December

2002, i.e. nine months before the attack on Pajule IDP camp, Dominic Ongwen exercised

his authority as commander. This is entirely compatible with the evidence that in 2003,

including at the time of the Pajule attack, Dominic Ongwen still suffered from some

2429 physical limitations as a result of the injury.

The Chamber also notes the testimony of P-0231, who stated that Dominic Ongwen was

‘not involved’ in the Pajule attack. 2430 However, as P-0231 testified that he was around

2431 Soroti with Lapaicho when the attack on Pajule IDP camp took place, he might not

have been in a position to know Dominic Ongwen’s actions at the time, and in the context

of the attack. Also, his testimony on this discrete issue stands in contrast to evidence

provided by witnesses who, instead, personally observed the relevant facts and testified

2422 P-0209: T-160 , p. 18, line 24 – p. 19, line 4. 2423 P-0144: T-91 , p. 26, lines 14-16. 2424 See P-0144: T-91 , p. 27, lines 11-14. According to the witness, this was the case ‘because if you were in detention they would not give you the task to go and carry out an operation’. 2425 Defence Closing Brief , para. 322, footnote 521. 2426 P-0045: T-104 , p. 67, lines 5-2; T-105 , p. 25, line 24 – p. 26, line 20. 2427 See section IV.C.3 above. See also Defence Closing Brief , paras 308, 322, 336. 2428 See section IV.C.3 above. See also Defence Closing Brief , paras 313-314, 316-321, 330-331, 336. 2429 See D-0092: T-208 , p. 63, lines 16-24. 2430 P-0231: T-123 , p. 65, lines 6-9. 2431 P-0231: T-123 , p. 65, line 19 – p. 66, line 2.

No. ICC-02/04-01/15 404/1077 4 February 2021

convincingly and in detail as noted throughout this section. In this context, the Chamber does not accept the testimony of P-0231 that Dominic Ongwen was not involved in the attack on Pajule IDP camp.

Finally in this context, the Chamber specifies that the evidence indicates that Dominic Ongwen was not moving with Vincent Otti’s unit as an individual, but had a Sinia unit under him. This is the explicit testimony of P-0070, referred to above. In addition, as discussed below, Sinia members P-0309 and P-0330 as well as Dominic Ongwen’s socalled ‘wife’ P-0101 testified to being present with Dominic Ongwen and his group at 2432 the time of the attack on Pajule IDP camp. P-0309 in particular named several individuals who went for the attack on Pajule IDP camp, who are otherwise well attested in the evidence as Dominic Ongwen’s subordinates in Sinia. 2433 P-0330 also named 2434 individual Sinia members who participated in the attack.

In this context, the Chamber notes the testimony of P-0379 who had previously been 2435 2436 abducted by the LRA, was in captivity for eight months in Sinia’s Oka battalion, 2437 and had escaped and returned to Pajule IDP camp around August 2003. During the attack on 10 October 2003, while trying to hide from the LRA, he saw an LRA fighter whom he recognised as Okello Tango, a member of Oka Battalion whom P-0379 had 2438 known while still in the bush. The Chamber recalls its finding that at the time of the 2439 Pajule IDP camp attack, Dominic Ongwen was commander of Oka battalion. The presence of an Oka battalion fighter in the camp corroborates the evidence that Dominic Ongwen’s subordinates were present in the course of the Pajule IDP camp attack.

Logbook evidence indicates that the commanders summoned by Vincent Otti gathered on or around 5 October 2003. A Soroti UPDF logbook records an intercepted communication on 5 October 2003 between 13:00 and 14:00, wherein Vincent Otti informed Joseph Kony that he has joined with ‘Abudema’s grps’, while Okot Odhiambo, Ayoli, Dominic Ongwen and Michael reported to Charles Tabuley that they had reached

2432 See paras 1214, 1356, 1367 below. 2433 P-0309: T-60 , p. 53, lines 16-21. 2434 See para. 1211 below. 2435 P-0379: T-56-CONF, p. 7, lines 8-9; T-58 , p. 23, line 21 – p. 24, line 7, p. 53, lines 7-9. 2436 P-0379: T-58 , p. 53, lines 7-12. 2437 P-0379: T-57 , p. 20, line 4 – p. 21, line 12. 2438 P-0379: T-57 , p. 22, line 14 – p. 24, line 7. 2439 See section IV.C.3 above.

No. ICC-02/04-01/15 405/1077 4 February 2021

2440 the RV with Vincent Otti. At 16:00, the same logbook noted: ‘While Otii V., Michael,

Odyambo/Angola, Abudema and Dominic they are in the same RV together but they have camped separately with some distance among them’. 2441

On 7 October 2003 between 8:00 and 9:00, according to the Soroti UPDF logbook,

Vincent Otti informed Joseph Kony that he had divided the commanders, and that Angola

was moving with ‘Bogi Coach’, Dominic Ongwen was moving with him (i.e. Vincent

Otti), and that Buk Abudema had separated from him and left for Teso following Charles

Tabuley, who was ‘combined with’ Ocan Bunia. 2442 On the same day at 11:00, the

logbook records Joseph Kony asking Vincent Otti whether ‘Mama Dominic’ was accompanying him, and Vincent Otti responding that ‘Mama Dominic’ was with him and

that he (Vincent Otti) was moving together with Dominic Ongwen, Raska Lukwiya and

2443 Caesar Acellam. The Chamber notes specifically that this latter information as logged

by the UPDF is similar to the radio conversation described by D-0032 and discussed

above, wherein Joseph Kony asked Vincent Otti about the whereabouts of Dominic

2444 Ongwen, and Vincent Otti confirmed that Dominic Ongwen was with him.

A meeting took place the day before the attack at a location east of Pajule IDP camp, including Vincent Otti, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen and other

2445

LRA commanders. Several hundred LRA members were present nearby.

A number of witnesses have testified about a meeting, or ‘RV’, taking place the day

before the attack at a location east of Pajule IDP camp. The witnesses belonged to various

groups of the LRA and offered testimony on the basis of personal observation from

2440 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2097. The Chamber notes that the corresponding ISO and UPDF logbooks are either significantly less detailed ( see ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0529- 31; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6156) or do not include any entry for this communication time at all ( see UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1051-55). Bearing this in mind, including its discussion on the general reliability of logbooks, as well as noting in particular that the UPDF Achol Pii logbook does also make reference to Abudema joining Otti, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by UPDF (Soroti). 2441 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2097. The Chamber notes that the corresponding ISO and UPDF logbooks are either significantly less detailed ( see ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0529- 31) or do not include any entry for this communication time at all ( see UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 1051-55; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6156). Bearing this in mind, including its discussion on the general reliability of logbooks, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by UPDF (Soroti). 2442 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2102. See also UPDF Logbook (Achol Pii), UGA-OTP- 0242-6018, at 6157; UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1057. 2443 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2104. 2444 D-0032: T-200 , p. 21, line 20 – p. 22, line 3. It is noted that D-0032 testified that Joseph Kony and Vincent Otti referred to Dominic Ongwen as ‘Wanyama’ during the conversation. 2445 Para. 146 above.

No. ICC-02/04-01/15 406/1077 4 February 2021

diverse vantage points. For this reason, the Chamber finds it natural that there is no perfect overlap in the evidence. Instead, it is to be expected that witnesses put emphasis on the facts which took place in their proximity or facts which they were better able to understand and contextualise. Still, in relation to the crucial findings of the Chamber, the witnesses are in agreement. The main area of divergence is the names of LRA commanders, who, according to each witness, attended the meeting with Vincent Otti. This divergence is at least in part explained by the witnesses’ emphasis on persons who they knew better. Given that none of the witnesses who testified before the Chamber about the planning of the attack on the Pajule IDP camp were present at the meeting, the Chamber also does not attribute importance to the fact that certain persons, including Dominic Ongwen, are not mentioned by any particular witness as attending the meeting. Indeed, it is entirely plausible that the witness simply did not see the person in question, even if they knew that person. Having said that, the Chamber does address in the following paragraphs those discrepancies in the witness evidence which are of a nature that, if unexplored and unresolved, could affect the Chamber’s findings.

According to P-0144, following the summons by Vincent Otti, an RV took place about 2446 10 kilometres east of Pajule. P-0144 stated that this was a large gathering and 2447 estimated the number of people in attendance at over 500. P-0144 testified that Vincent Otti was ‘the overall commander who was leading the operation’. 2448 In addition, according to the witness, the other ‘most senior commanders’ present were Raska 2449 Lukwiya and Okot Odhiambo. Still further, P-0144 mentioned that there were several ‘junior’ commanders present, including Bogi and Dominic Ongwen. 2450

P-0209 testified that Trinkle brigade went to meet with Vincent Otti after being 2451 summoned by him, but was unable to describe the location of the meeting. He too 2452 estimated the distance from Pajule at about 10 kilometres. P-0209 testified that the 2453 Trinkle brigade arrived at the location of the meeting at around 16:00. There, P-0209

2446 P-0144: T-91 , p. 20, lines 1-5. 2447 P-0144: T-91 , p. 20, lines 9-11. 2448 P-0144: T-91 , p. 20, lines 12-14. 2449 P-0144: T-91 , p. 20, lines 14-16. 2450 P-0144: T-91 , p. 20, lines 15-24. 2451 P-0209: T-160 , p. 12, line 22 – p. 13, line 4. 2452 P-0209: T-160 , p. 13, lines 5-9. 2453 P-0209: T-160 , p. 13, lines 10-12.

No. ICC-02/04-01/15 407/1077 4 February 2021

2454 saw members of Trinkle and Sinia brigades, as well as of Control Altar. Among the

commanders, P-0209 saw Vincent Otti, Charles Kapere, Dominic Ongwen, Opoka and

2455 Raska Lukwiya. He also confirmed that Bogi, Caesar Acellam, Acel Calo Apar and

2456 Buk were present.

The Defence put to P-0209 the contents of an intercepted radio communication

suggesting that Charles Kapere was in Teso on 9 October 2003, and of another intercept

indicating that on 10 October 2003 Joseph Kony gave Charles Kapere instructions in

relation to an upcoming meeting between the two, to which P-0209 responded by stating

that he was personally involved with Charles Kapere in the preparations for the attack in

2457 Pajule. The Chamber accepts the detailed testimony of P-0209, and in fact notes that

the records of intercepted radio communications do not contradict it. The 9 October 2003

intercept does not record an LRA report on the location of Charles Kapere, but rather Vincent Otti reporting that ‘gov[ernmen]t keeps singing on the radio that Kapere and

Onen are moving with Tabuley to kill p[eo]ple in Teso’. 2458 In turn, the 10 October 2003

entry records Joseph Kony stating that Charles Kapere, who was preparing to move and

2454 P-0209: T-160 , p. 13, lines 16-19. See also P-0209: T-161 , p. 37, lines 7-9. 2455 P-0209: T-160 , p. 13, lines 20-25. 2456 P-0209: T-160 , p. 14, lines 6-20. 2457 P-0209: T-161 , p. 48, line 11 – p. 49, line 8. See also ISO Faxed Copy, UGA-OTP-0242-0780, at 0781; ISO Faxed Copy, UGA-OTP-0242-0775, at 0777. As explained above ( see section IV.B.3.i.b.vi above), both faxed copies originate from the ISO Gulu logbook, which has also been submitted as evidence, see UGA-OTP-0232- 0234, at 0543, 0549. 2458 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0543. See also UPDF Logbook (Soroti), UGA-OTP-0254- 1991, at 2112. While this logbook entry attributes the statement not to Otti, but rather to Kony, in an exchange with Otti and Tabuley, the Chamber considers this not to affect the information regarding them reportedly hearing on radio that Kapere and Onen Kamdule were moving with Tabuley in Teso.

No. ICC-02/04-01/15 408/1077 4 February 2021

meet him should move ‘with the battery’,

2459

without providing any indication of Charles Kapere’s location.

2460

P-0209 stated that once Trinkle brigade arrived at the location of the meeting with

2461

Vincent Otti, the latter summoned the high-ranking officers. From Trinkle brigade,

2462

brigade commander Charles Kapere went. P-0209 testified that according to what

Charles Kapere told his subordinates, the meeting with Vincent Otti included Buk, Raska

2463

Lukwiya, Dominic Ongwen, and Opoka. P-0209 also stated that according to what

2459 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0549. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly concern the same radio communication ( compare , in particular, ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0549 (c/s 9A (part of Odhiambo’s squad) reporting ambush of dyna between Puranga and Rackoko, taking 9 radios, 5 walk men, 2 accumulators) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1072 (c/s 9A under command of Okullu reporting ambush of pick-up on Lira-Kitgum road between Puranga Rac-Koko, taking same items plus 36,000 UG shs) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2120 (Okurut reporting ambush of pick-up on Lira-Kitgum road between Puranga and Rackoko, taking same items plus 36,000 UG shs) and UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6160 (Okure reporting ambush of dyna pick-up on Lira-Kitgum road between Puranga and Rach-Koko, taking same items plus 36,000 UG shs). Of particular note is that the UPDF Achol Pii logbook also indicates Kony as instructing that the two batteries be kept for him. Bearing the above in mind, and noting at the same time that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. 2460 It may be noted that a 7 October 2003 entry in the same ISO logbook, which records Vincent Otti as reporting that he was ‘still waiting for Onen Kamdulu […], then imm[ediately] he will organise Kapere to start his journey to Sudan’, provides a specific indication that at the time, Charles Kapere was with Vincent Otti; see UGA-OTP- 0232-0234, at 0535. The Chamber notes that this particular detail is not included in the corresponding UPDF logbook entries. However, these entries clearly concern the same radio communication ( compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0534 (Tabuley reporting location as Acuna and coordinating with Lagulu and Lamola to meet) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1058 (Tabuley sending location as Acuna railway station, telling Lagulu to meet him there) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2101- 03 (Tabuley coordinating with Lagulu to meet at Acuna); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0535 (Kony and Otti talking about reported complaints against Museveni for taking presidential jet to bring daughter to Germany for delivery) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1057 (Kony and Otti talking about reported complaints against Museveni for taking daughter, with a lot of money, abroad for treatment) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2103 (Kony and Otti talking about reported complaints against Museveni for taking presidential jet to take daughter outside country to deliver); compare ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0536 (Otti telling Kony about failed attack against UPDF) with UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1058 (Otti telling Kony about failed attack against UPDF) and UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2103 (Otti telling Kony about failed attack against UPDF)). The UPDF Achol Pii logbook contains an overall much more succinct entry for this communication time ( see UGA-OTP-0242- 6018, at 6157). Bearing this in mind, and noting at the same time that the entries in the UPDF logbooks are overall slightly less detailed than the entry in the ISO logbook and that interceptors at times would have focused on different details in summarising radio communications, the Chamber considers it appropriate to refer to this specific detail included in the record of the communication as prepared by ISO. 2461 P-0209: T-160 , p. 21, lines 7-8. 2462 P-0209: T-160 , p. 21, line 9. P-0209 explained that he did not himself go to the meeting because he was ‘not yet a high-ranking officer’ and ‘did not qualify to go there’; T-160 , p. 21, lines 18-20. 2463 P-0209: T-160 , p. 21, lines 10-17.

No. ICC-02/04-01/15 409/1077 4 February 2021

Charles Kapere told them, at the meeting Vincent Otti assigned roles to each commander 2464 present.

In relation to the presence of Buk Abudema, the Chamber notes that when the Defence read to the witness a government report dated 10 October 2003 which recorded Buk 2465 Abudema as reporting an attack at Adilang, P-0209 maintained his testimony. Moreover, the Chamber notes that P-0138 testified that while Buk Abudema did not attend the commanders’ meeting, he was present afterwards when the soldiers selected 2466 for the Pajule attack were addressed. However, neither of these two nor any other witness who testified about the attack on Pajule IDP camp attributed to Buk Abudema any action or role. In addition, as noted above, on 7 October 2003, Vincent Otti reported to Joseph Kony Buk Abudema’s departure for Teso. Accordingly, the Chamber makes no finding in relation to Buk Abudema’s involvement at this point.

Turning to further witnesses who described the meeting of LRA commanders on the day before the LRA attack on Pajule IDP camp, the Chamber notes the testimony of P-0309, who was Dominic Ongwen’s escort and part of his household. 2467 He described the leadup to the attack on Pajule IDP camp. He stated that LRA soldiers from different groups 2468 met in a place called Wanduku under the leadership of Vincent Otti. P-0309 testified that Pajule was attacked by ‘many groups that came together’, specifically mentioning that ‘Dominic’s group’ was also involved. 2469 P-0309 understandably testified that he could not name all of the commanders involved because they were new to him, but was able to mention, in addition to Vincent Otti and Dominic Ongwen, also Raska 2470 Lukwiya.

P-0309 testified that the commanders, including Dominic Ongwen and Vincent Otti, 2471 gathered together, and when they came back they gave the orders. Notably, P-0309 testified that he took Dominic Ongwen’s stool for sitting to Vincent Otti’s ‘home’, where

2464 P-0209: T-160 , p. 21, lines 21-24. 2465 P-0209: T-160 , p. 38, line 24 – p. 39, line 25. See also ISO Faxed Copy, UGA-OTP-0242-0775, at 0777. 2466 P-0138: T-120 , p. 37, lines 12-20, p. 38, lines 9-14. 2467 See section IV.B.2.ii.b.xvi above. 2468 P-0309: T-60 , p. 41, lines 16-23. 2469 P-0309: T-60 , p. 42, line 23 – p. 43, line 1. 2470 P-0309: T-60 , p. 43, lines 2-5. 2471 P-0309: T-60 , p. 45, lines 2-12.

No. ICC-02/04-01/15 410/1077 4 February 2021

2472 the meeting took place. He confirmed that he saw those present at the meeting from

2473 a distance of approximately 20-30 metres. He testified that the meeting took place

2474 when it was getting dark, at around 17:00, and that it lasted for over 30 minutes.

P-0138 stated that at the time of the Pajule attack, Vincent Otti was with Raska Lukwiya,

Nyeko Tolbert Yadin, Sam Kolo, Okot Odhiambo, Charles Tabuley and other

2475 commanders. The Chamber notes that P-0138 was the only witness who placed

Charles Tabuley among the commanders present near Pajule IDP camp in advance of the

2476 LRA attack. No witness attributed to him any action or role for the attack. There is

2477 also evidence that at the time, Charles Tabuley was in Teso.

Asked specifically about the presence of Dominic Ongwen, P-0138 stated that at the time

Dominic Ongwen was not a brigade commander and that due to his lower rank he could

not sit together with the other commanders, but would only receive instructions from his

2478 brigade commander. This testimony is emphasised by the Defence as contradicting

the Prosecution’s allegation that Dominic Ongwen participated in the planning of the

2479 attack on Pajule IDP camp. However, the Chamber considers that the evidence of P-

0138 on this specific point consists of supposition rather than his personal observation or

another identifiable source of knowledge and for this reason sets it aside, relying instead

on the evidence of witnesses who testified more reliably about Dominic Ongwen’s

presence, including P-0309 referred to just above.

According to P-0138, the meeting of the commanders started at around 13:00 at a place

2480 where they had sat to rest because they had been moving. At 17:00, they started

selecting the people for the attack, which happened at the same place where the meeting

2472 P-0309: T-60 , p. 47, lines 5-11. 2473 P-0309: T-60 , p. 47, lines 12-21. 2474 P-0309: T-60 , p. 50, lines 3-7. 2475 P-0138: T-120 , p. 35, lines 13-20. 2476 It is noted that D-0032 stated that Vincent Otti summoned also Charles Tabuley before the attack, see para. 1178 above. 2477 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2102. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 1056. The Chamber notes that while the ISO and UPDF Achol Pii logbooks do not contain this specific detail, they place Charles Tabuley in Teso at least the following day (8 October 2003). See ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0537; UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6158. 2478 P-0138: T-120 , p. 36, lines 15-23. See also Defence Closing Statement: T-258 , p. 90, lines 19-23. 2479 Defence Closing Brief , paras 333, 335; see also para. 337. 2480 P-0138: T-120 , p. 37, lines 1-8.

No. ICC-02/04-01/15 411/1077 4 February 2021

2481 took place. This was also the location where those who did not go for the attack,

2482 including P-0138, waited for the attackers to return.

Charles Lokwiya testified that at the gathering before the attack on Pajule IDP camp, the

commanders present were Vincent Otti, Nyeko Yadin, Lakati, Mzee Banya, Ocaya,

2483 Opiru, Raska Lukwiya and others. Charles Lokwiya did not list Dominic Ongwen as

present, but in light of what is said at the outset of this section, the Chamber does not

consider this decisive, in light of the other detailed and contextualised witness evidence

placing Dominic Ongwen at the meeting. Charles Lokwiya confirmed that the gathering

2484 took place in Wanduku. Charles Lokwiya also accepted the Prosecution’s suggestion

that different LRA units met up and that about 600 LRA fighters were present at the

2485 RV.

The Chamber also notes the testimony of another low-ranking Sinia member who was

present, P-0330, who stated that there was a ‘standby between the leaders’, where there

were two groups: Vincent Otti’s group and Dominic Ongwen’s group. 2486 P-0330 gave

2487 the location of the standby as the foothill of Latanya. The leaders met, but P-0330

2488 observed that the escorts were too far off to know what was discussed. However, P-

2489 0330 stated that he could see the leaders. According to P-0330, the leaders present

were Dominic Ongwen, Okello Kalalang and Okello from Dominic Ongwen’s group,

2490 and from the other group Vincent Otti and other people P-0330 could not recognise.

P-0330 testified that he prepared the chair for Dominic Ongwen for the meeting of the

2491 leaders.

The Chamber notes that there are several discrepancies in P-0330’s description of the

meeting as compared to the witnesses cited above. Most importantly, however, as

opposed to the meeting described by the above witnesses, which took place the day

2481 P-0138: T-120 , p. 37, lines 8-10. 2482 P-0138: T-120 , p. 37, lines 9-11. 2483 D-0134: T-240 , p. 57, lines 1-9. 2484 D-0134: T-241 , p. 10, lines 22-24. 2485 D-0134: T-241 , p. 10, line 25 – p. 11, line 6. 2486 P-0330: T-51 , p. 74, lines 1-3. 2487 P-0330: T-55 , p. 29, lines 12-13. 2488 P-0330: T-51 , p. 74, lines 3-5. See also T-55 , p. 22, lines 6-17. 2489 P-0330: T-51 , p. 74, lines 8-24. 2490 P-0330: T-51 , p. 74, line 25 – p. 75, line 3. 2491 P-0330: T-51 , p. 78, lines 5-6.

No. ICC-02/04-01/15 412/1077 4 February 2021

before the attack, P-0330 testified that the leaders talked ‘for a day’ and on the second 2492 day they selected the standby. Therefore, P-0330 is, on the face of his evidence, describing another previous meeting, involving Dominic Ongwen’s and Vincent Otti’s groups. Considering that P-0330 is the only witness who discussed this additional meeting, the Chamber will not delve into it further, but it is noted that for this meeting to have taken place is not incompatible with the evidence on record, in particular with the evidence in relation to when Dominic Ongwen joined Vincent Otti.

Finally, P-0084 participated in the UPDF military fact-finding 2493 mission following the attack on Pajule IDP camp. He stated that prior to the attack, the UPDF was aware of ‘the concentration east of Pajule of the LRA’, 2494 thereby corroborating the insider evidence.

b. Selection and briefing of the attackers

After the meeting, on the eve of the attack, the LRA soldiers were selected from the Control Altar, as well as Trinkle and Sinia brigades. Raska Lukwiya was designated as the overall commander for the attack. The attackers were briefed about the attack and instructed to attack the UPDF at the barracks, as well as civilian areas of the camp in order to loot radio equipment, food and other items. The attackers were also told to

2495

abduct civilians.

A number of witnesses provided evidence on the preparation for the attack on Pajule IDP camp once the commanders’ meeting ended and the decision to attack was made known to the LRA members present at large. The Chamber notes that the evidence of the various witnesses is generally compatible, but that on occasion, as above, the evidence of witnesses is limited to what they could observe from their individual position. This particularly affects the evidence as to from which LRA units the attackers were selected.

P-0144 testified that the decision to organise the force for the attack on Pajule IDP camp 2496 came from Vincent Otti. Vincent Otti gave the instruction to Raska Lukwiya, who 2497 then selected the soldiers to go and carry out the operation. P-0144 testified Raska

2492 P-0330: T-51 , p. 75, lines 4-7. 2493 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 14-15. 2494 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 70. 2495 Para. 146 above. 2496 P-0144: T-91 , p. 21, lines 21-23. See also p. 79, line 15 – p. 80, line 3. 2497 P-0144: T-91 , p. 21, lines 23-25.

No. ICC-02/04-01/15 413/1077 4 February 2021

Lukwiya also had ‘subordinate commanders as well who were instead commanding the

smaller groups that went and carried out the operation’. 2498

P-0209 described in detail how the result of the commanders’ meeting reached his unit.

He testified that Charles Kapere was at the meeting for about two hours and that

immediately after he returned, he called the commanders under him, including Bogi, Sam

2499 Opio, the IO and the witness. Charles Kapere informed those present that Vincent Otti

had told him that there was going to be an operation and that he wanted them to go and

2500 attack the UPDF in Pajule. From Trinkle brigade, 75 fighters were organised for the

2501 2502 attack. Other fighters were prepared from Control Altar as well as from Sinia.

According to P-0209 the instruction coming from Vincent Otti was to go to the barracks

where the UPDF were, to the mission ‘to take the radio equipment’ and to the centre ‘to

collect food, soap, salt and other items’. 2503 The plan was also to abduct civilians to carry

2504 items and to increase the numbers of LRA soldiers. Similarly, P-0330 testified that

the LRA fighters had been instructed to abduct civilians, loot items and give it to the

2505 civilians to carry.

P-0045 testified that before the attack on Pajule IDP camp, she was called to a standby

2506 where Vincent Otti announced that there would be an attack on Pajule. She stated that

2507 many people were present at the time.

P-0309 stated that after the meeting of the commanders, he heard Dominic Ongwen give

2508 orders to Opio Korea to choose people from his group to go for an operation.

Subsequently, Opio Korea selected about 10 people from Dominic Ongwen’s home to

2509 go for the attack. According to P-0309, people who were chosen were then addressed

2498 P-0144: T-91 , p. 79, line 25 – p. 80, line 3. 2499 P-0209: T-160 , p. 22, lines 5-19. It is noted that during examination by the Defence, P-0209 also mentioned Okwang Olero, but it is unclear whether this is a further participant in the meeting, or whether Okwang Olero was the IO; P-0209: T-161 , p. 42, lines 17-18. 2500 P-0209: T-160 , p. 22, line 20 – p. 23, line 3. 2501 P-0209: T-160-CONF, p. 25, lines 6-25. 2502 P-0209: T-160-CONF, p. 27, lines 11-14. 2503 P-0209: T-160 , p. 23, lines 7-14. 2504 P-0209: T-160 , p. 24, lines 3-13. 2505 P-0330: T-52-CONF, p. 5, lines 19-20. 2506 P-0045: T-103-CONF, p. 90, lines 12-25. 2507 P-0045: T-103-CONF, p. 91, lines 4-5. 2508 P-0309: T-60 , p. 45, lines 9-10, p. 50, line 19 – p. 51, line 3. 2509 P-0309: T-60 , p. 51, lines 8-12.

No. ICC-02/04-01/15 414/1077 4 February 2021

2510 and told that they were going to Pajule. The group of soldiers addressed was well over

2511 100 people.

P-0309 testified that no specific orders were given to him, and stated: ‘I knew by default

that since we were going to the barracks then we had to fight and win the battle’. 2512

When P-0309’s previous statement to the effect that the instruction was to go to Pajule

centre, abduct people and loot food to eat was put to him, he responded: ‘What I can say

is that whenever we are prepared to go fight, all those activities are part of the fighting,

the part of the attack. I didn’t think it was necessary to outline them one by one.’ 2513

P-0330 stated that Dominic Ongwen’s deputy for the standby was Okello, and that among

2514 the other people selected for the attack were Odoki and Bomek. On refreshing from

2515 previous testimony, P-0330 also confirmed the presence of Oyo and Oyet. P-0330

2516 stated that they were Sinia soldiers. As to Bomek, P-0330 stated that he was in Sinia

2517 support. P-0330 testified that instructions were given to abduct civilians to carry

‘luggage’. 2518

P-0372 testified that when the meeting of the commanders took place, the foot soldiers

did not know what would happen, but realised in the evening that some soldiers had been

2519 selected to go and attack Pajule. He testified that at the time that the soldiers were

selected, the commanders present were Dominic Ongwen, Vincent Otti and Raska

2520 2521 Lukwiya. P-0372 specifically confirmed having seen Dominic Ongwen.

According to P-0372, there was no ‘major speech’ by a commander before the attack on

2522 Pajule. However, he stated that when people were selected and put in a group to start

2510 P-0309: T-60 , p. 45, lines 10-12. 2511 P-0309: T-60 , p. 48, lines 13-15. 2512 P-0309: T-60 , p. 53, lines 3-6. 2513 P-0309: T-60 , p. 56, line 15 – p. 57, line 22. 2514 P-0330: T-51 , p. 75, lines 8-23. 2515 P-0330: T-51 , p. 76, lines 5-12. 2516 P-0330: T-51 , p. 76, lines 13-14. 2517 P-0330: T-51 , p. 76, lines 18-21. 2518 P-0330: T-51 , p. 79, lines 11-14. See also P-0330: T-52-CONF, p. 5, lines 19-20. 2519 P-0372: T-148 , p. 16, lines 15-19. 2520 P-0372: T-148 , p. 16, lines 20-23. See also P-0372: T-149 , p. 55, lines 9-18. 2521 P-0372: T-149 , p. 67, lines 14-15. 2522 P-0372: T-148 , p. 16, line 24 – p. 17, line 1.

No. ICC-02/04-01/15 415/1077 4 February 2021

moving, Dominic Ongwen gave information that they were going to Pajule with his

2523 group.

2524 Charles Lokwiya also testified about the briefing Vincent Otti gave before departure.

The instructions that Charles Lokwiya could recall were to attack the barracks, collect

2525 food and abduct people.

P-0101 testified that she was present during the selection of soldiers for the Pajule

2526 attack. According to her testimony, Vincent Otti was doing the selection, and

2527 Dominic Ongwen was a commander chosen to go to Pajule.

2528 P-0138 stated that he did not personally go for the Pajule attack.

2529 and Vincent Otti selected people for the attack at

2530 about 19:00 at a place approximately a mile away from Pajule camp.

According to P-0138, after the plan for the attack was finalised, Nyeko Tolbert Yadin,

2531 Raska Lukwiya and Ocitti Jimmy addressed the fighters. Asked about other LRA

commanders who were present at this occasion, P-0138 mentioned ‘Colonel Bogi’,

‘several captains, among whom included Bosco’, ‘Lukwiya’, Buk Abudema, ‘Odhiambo,

who was coming from Trinkle’ and ‘Tabuley coming from Stockree’. 2532 Furthermore,

the witness’s testimony that Vincent Otti gave instructions to the soldiers necessarily

2533 implies that Vincent Otti was present at the gathering too. In any case, the Chamber

considers P-0138’s testimony was not very clear as to the commanders present when the

attackers were first assembled and addressed. The witness also did not provide a clear

2534 answer to the question whether Dominic Ongwen was present at this gathering.

2523 P-0372: T-148 , p. 17, lines 2-5. 2524 D-0134: T-240 , p. 57, lines 15-17. 2525 D-0134: T-240 , p. 57, lines 18-21. 2526 P-0101: T-13 , p. 24, lines 21-24. 2527 P-0101: T-13 , p. 24, line 25 – p. 25, line 1, p. 25, lines 10-14. See also p. 58, lines 18-22 (stating that Dominic Ongwen commanded and selected the soldiers that went to Pajule). 2528 P-0138: T-120 , p. 32, lines 3-6. 2529 P-0138: T-120-CONF, p. 32, lines 6-7. 2530 P-0138: T-120 , p. 32, lines 7-9. The Chamber notes that P-0138’s estimate of the distance between the location of the selection and Pajule IDP camp is notably lower than that of other witnesses. However, considering that P- 0138 did not go to Pajule, the Chamber does not attribute value to this estimate. 2531 P-0138: T-120 , p. 35, line 21 – p. 36, line 1. 2532 P-0138: T-120 , p. 37, lines 12-20. In relation to P-0138’s identification of Charles Tabuley as present, see para. 1197 above. 2533 P-0138: T-120 , p. 38, lines 18-24. 2534 P-0138: T-120 , p. 37, line 21 – p. 38, line 8.

No. ICC-02/04-01/15 416/1077 4 February 2021

Consequently, even though the Chamber does not have doubts that P-0138 described facts that he personally observed, his evidence is not of assistance on details, including as concerns the presence of commanders.

P-0138 testified that Control Altar, as well as Stockree, Trinkle and Sinia brigades, 2535 provided soldiers for the attack on Pajule IDP camp.

2536 P-0015, who was a ting ting in Vincent Otti’s household at the time, stated that on 9 October 2003 at 19:00 Vincent Otti sent people from Control Altar to attack Pajule IDP 2537 2538 camp. She said that ‘many people’ were sent, all from Control Altar.

She stated that she heard the orders that Vincent Otti gave, which were ‘that if they found huts they should burn them, to loot, and to abduct children of the age of 8 years and above, and to attack the barracks’. 2539 In addition, P-0015 stated that Vincent Otti told the group that ‘even if they found insects on the way that they should kill them, that all houses in Pajule should be burnt, that civilian people and UPDF should be killed’. 2540 P-0015’s evidence on the orders given to the attackers stands out from the evidence of other witnesses who testified about the same fact. The fact that other witnesses who were asked about the orders did not mention the explicit order to kill civilians prevents the Chamber from following P-0015 with respect to this specific issue. This, however, pertains exclusively to the issue of whether an explicit order of the kind described by P-0015 was issued in advance of the attack on Pajule IDP camp, and has, in the light of all the other evidence, no bearing on the Chamber’s finding that the LRA perceived as enemy the 2541 civilians living in Northern Uganda.

P-0015 also stated that she heard Vincent Otti make a telephone call to a commander at the UPDF barracks telling him that ‘he had sent his people who should reach there at about 8pm’. 2542 However, given that there is no other evidence attesting to this contact,

2535 P-0138: T-120 , p. 39, lines 14-18. 2536 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 61. 2537 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 87. 2538 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 88. 2539 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 87. 2540 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 87. 2541 See section IV.C.4 above. 2542 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 89.

No. ICC-02/04-01/15 417/1077 4 February 2021

and in light of the fact that the issue is immaterial to the disposal of the charges in the present case, the Chamber does not make any findings in this regard.

As is evident from the above, each witness who testified before the Chamber about the preparations for the attack on Pajule IDP camp described what they could personally observe in the specific surroundings where they found themselves at the time. Only a few witnesses had reliable overall knowledge of the organisation of the LRA soldiers for the attack. But the testimonies referred to, taken together, establish that after the meeting, soldiers were selected from the attack from the various groups present at the location.

2543 P-0144, an LRA fighter who participated in the attack, testified that two LRA groups went to lay ambushes along the way so that reinforcements from the Ugandan military would not interfere in the Pajule operation; another was meant to carry out the assault and attack the barracks; and the biggest group was sent to go and collect food items and 2544 abduct civilians. P-0144 stated that the purpose of the attack on the barracks was to weaken the government soldiers and to prevent them from attacking the LRA attackers 2545 who were looting food in the camp. P-0144 testified that the ‘major reason’ the LRA 2546 was in Pajule was to collect food. The witnesses agreed that Raska Lukwiya was 2547 designated as the overall commander on the ground.

Finally, the Chamber notes the evidence of P-0070, who testified that he was injured and in sickbay at the time of the attack on Pajule IDP camp, but that he heard of the attack on ‘domestic radio’ and from those who were injured during the attack and were brought to 2548 the sickbay, including one , an LRA soldier in Control Altar. P-0070 testified that he was told that the attack on Pajule was undertaken by the combined forces of the 2549 Control Altar and the Sinia brigade. Further, P-0070 stated that he was told that the plan for the attack on Pajule had been to overrun the barracks and thereafter to abduct civilians and ‘burn down the entire place’. 2550 Even though P-0070 did not personally

2543 P-0144: T-91 , p. 29, lines 1-11. 2544 P-0144: T-91 , p. 21, lines 6-20, p. 32, lines 6-7. 2545 P-0144: T-91 , p. 34, line 18 – p. 35, line 3. 2546 P-0144: T-91 , p. 34, line 18 – p. 35, line 1. 2547 P-0144: T-91 , p. 22, lines 14-18; P-0209: T-160 , p. 24, lines 17-18; D-0134: T-240 , p. 58, lines 4-6; P-0101: T-13 , p. 25, lines 15-21; P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 87. 2548 P-0070: T-106-CONF, p. 27, line 12 – p. 28, line 20. 2549 P-0070: T-106 , p. 29, lines 7-10. 2550 P-0070: T-106 , p. 29, lines 19-25.

No. ICC-02/04-01/15 418/1077 4 February 2021

observe the facts, the Chamber sees value in his evidence as an element of 2551 corroboration.

c. The departure of the attackers

The same evening after the briefing, the attackers, including Dominic Ongwen, departed

2552

for Pajule IDP camp. Vincent Otti remained behind.

Witnesses who were present provide consistent testimony, diverging only in inessential

detail such as the precise time of departure and arrival, that after the setup of the attacking

force, the attackers left for Pajule IDP camp on the evening of the day preceding the

attack, moved during the night, and arrived near Pajule in the early morning of the day

of the attack.

2553 P-0144 testified that after the ‘standby’ was selected, they went straight to Pajule. P-

0144, who himself went for the attack, testified that it was not very far, only 10 kilometres,

and that the attackers left at about 18:00, but did not go in a straight line and kept resting 2554 on the way.

P-0045 testified that the orders for the Pajule attack were given at around 20:00, after 2555 which the attackers moved until dawn.

P-0309 testified that when the attackers left Wanduku they moved to Pajule, which took 2556 about two to three hours. During examination by the Defence, P-0309 added that they

did not go directly to Pajule, but stopped along the way and stayed in the bushes for a 2557 2558 while. P-0309 testified that they arrived at Pajule ‘at the centre’ at about 4:00.

P-0372 testified that the attackers left for Pajule at around 21:00, and arrived there at

around 3:00 the next morning, after which they waited for dawn to commence the

2551 This is not undermined by the fact that P-0070 – in clear contradiction with the other witnesses who were present for the organisation of the attack – stated that according to what he was told, overall commander of the operation was Bosco Bogi of Control Altar. See P-0070: T-106 , p. 29, lines 11-16. 2552 Para. 146 above. 2553 P-0144: T-91 , p. 28, line 23 – p. 29, line 1. 2554 P-0144: T-91 , p. 29, lines 15-17. 2555 P-0045: T-103-CONF, p. 94, lines 20-21. 2556 P-0309: T-60 , p. 54, lines 13-16. 2557 P-0309: T-63 , p. 5, lines 11-16. 2558 P-0309: T-60 , p. 57, lines 23-24.

No. ICC-02/04-01/15 419/1077 4 February 2021

2559 2560 attack. He estimated the distance at 12 miles. P-0372 also stated that it rained on

2561 the way, but in the morning it was clear.

2562 Charles Lokwiya stated that the attackers set off for Pajule at about 19:00 to 20:00.

P-0209, who himself did not go to the attack, testified that the attacking force departed

the meeting location at about 22:00, but added that he could not recall the time very

2563 well.

Several witnesses who provided credible and detailed accounts of the attack on Pajule

IDP camp also stated that they personally saw Dominic Ongwen in the attacking force.

In particular, P-0144 specifically confirmed that he saw Dominic Ongwen in the group

2564 that went to Pajule. P-0309 also testified that in the vicinity of Pajule, P-0309 saw

2565 people separate into different groups and he himself joined Dominic Ongwen’s group.

2566 P-0372 also testified that he saw Dominic Ongwen on the way.

Turning to Vincent Otti, the Chamber notes that several witnesses testified that he

2567 remained behind. In the presence of this consistent evidence from multiple sources,

including P-0138 who stated that he remained behind with Vincent Otti, the Chamber

does not on this issue follow P-0045, who at some point indicated that Vincent Otti went

2568 to the mission, or the statement of P-0006, a civilian resident of Pajule IDP camp,

who stated that shortly after she was abducted during the attack, she saw an old man for

whom she ‘thought that he looked like Otti Vincent’ and that she recognised him from

2569 photographs at the camp.

2559 P-0372: T-148 , p. 19, lines 16-23. 2560 P-0372: T-149 , p. 65, lines 7-10. 2561 P-0372: T-149 , p. 65, lines 11-17. 2562 D-0134: T-240 , p. 58, lines 10-12. 2563 P-0209: T-160 , p. 29, lines 5-8. 2564 P-0144: T-91 , p. 30, lines 7-8. 2565 P-0309: T-60 , p. 54, lines 16-18. 2566 P-0372: T-148 , p. 19, lines 19-21. 2567 P-0045: T-103-CONF, p. 95, lines 14-17; P-0138: T-120-CONF, p. 32, lines 13-19; P-0209: T-160 , p. 30, lines 6-9; P-0309: T-60 , p. 53, lines 13-15. 2568 P-0045: T-103-CONF, p. 91, lines 23-25. 2569 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 33

No. ICC-02/04-01/15 420/1077 4 February 2021

iii. The LRA’s attack against the civilian population of Pajule IDP

camp

On 10 October 2003, LRA fighters, including Dominic Ongwen, attacked Pajule IDP

2570

camp.

In the early morning of 10 October 2003, several hundreds of LRA fighters, including fighters under the age of 15, entered through the Pajule side of the camp on the east, armed with an assortment of weapons, including SPG-9, AK-47s, a 12.7 mm anti-aircraft

2571

gun, RPGs, a PKM machine gun as well as pangas/machetes and knives.

The LRA fighters were organised in several units, spreading throughout the camp. One group attacked the military barracks in the Lapul side of the camp, engaging with the Ugandan government forces. Another much smaller group went to the Catholic mission, from where it was repelled by government soldiers. Two small groups set up ambushes on the Pader and Kitgum roads, to prevent government military reinforcements from aiding the camp. A final large group of fighters went to attack the civilian camp. Amongst

2572

this group of fighters was Raska Lukwiya, the operations commander of the attack.

Government soldiers within the camp fled in the face of the attacking force, while government soldiers in the barracks managed to hold the barracks under heavy fire from

2573

the LRA.

The parties agree that on or about 10 October 2003, there was an attack on Pajule IDP

2574 camp. The evidence shows that this attack occurred in the early morning of 10

2575 October 2003, the day after Uhuru day, the Ugandan Independence day.

Regarding the number of fighters that attacked the camp, LRA fighter P-0144 testified

2576 that between 400 and 500 of them went to Pajule IDP camp. This estimate is

compatible with the testimony of Charles Lokwiya, another LRA fighter, who stated that

80 to 100 fighters went to the barracks but that the majority of the attackers went to the

2577 centre. LRA fighter P-0372 estimated that there were at least 40 fighters from each

2570 Para. 144 above. 2571 Para. 147 above. 2572 Para. 147 above. 2573 Para. 148 above. 2574 Agreed Facts , C1. 2575 P-0009: T-81 , p. 11, line 25 – p. 12, line 2; P-0379: T-57 , p. 21, lines 17-24; P-0008 Statement, UGA-OTP- 0137-0002-R01, at para. 14; P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 12. See enhanced audio recording, UGA-OTP-0247-1102 at section IV.B.3.ii.c above; P-0003 Tape 693 Transcript, UGA-OTP-0132- 0105-R01, at 0133-36; P-0003: T-43 , p. 3, line 17 – p. 12, line 21; P-0138: T-120 , p. 65, line 25 – p. 68, line 14; UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2116-2117; ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547; UPDF Logbook (Gulu), UGA-OTP-0254-0725, at 1070. 2576 P-0144: T-92 , p. 43, lines 10-13. 2577 D-0134: T-240-CONF, p. 62, line 18 – p. 63, line 2, thus indicating that the 80 to 100 fighters mentioned were a minority of the fighters participating in the attack.

No. ICC-02/04-01/15 421/1077 4 February 2021

2578 group selected to go to attack Pajule and about three groups participating in the attack.

The Chamber considers this latter relatively lower estimate to still be compatible with

the other evidence and the conclusion that several hundred LRA fighters participated in

the attack on Pajule IDP camp on 10 October 2003.

This conclusion is further supported by the testimonies of government soldiers. UPDF

2579 officer John Lubwama testified that about 400 LRA fighters attacked the camp. P-

0084, an officer with the UPDF who observed the attack and participated in an

investigation the next day, testified that he believed that about 200 to 250 rebels came to

2580 attack Pajule in October 2003.

The evidence also demonstrates that among the LRA fighters who participated in the

attack on Pajule IDP camp, there were also children younger than 15 years old. P-0144,

who participated in the fight at the government barracks, testified that the youngest LRA

2581 fighters at the barracks could be about 13 or 14. Asked how he could tell their ages,

P-0144 also testified that he could ‘see’ their age, and that they were ‘still tender’ and

2582 could have been 13, 14 or 15 years old. He also stated that he compared the soldiers

to himself, who was 17 years old and was older, by ‘many years’, than even the people

2583 who abducted him.

This evidence is corroborated by the testimony of camp resident P-0249, who stated that

the rebels who abducted him and his wife were young, from 12 up to about 18 years

2584 2585 old. P-0249 also testified that Rwot Oywak was abducted by an armed kadogo . P-

2586 0249 testified that he believed that the kadogo was approximately 13 or 14 years old.

P-0249 testified that he could tell the soldiers’ ages by their sizes and estimating their

2587 age accordingly.

2578 P-0372: T-148 , p. 18, lines 9-11; T-149 , p. 67, lines 18-21. It is noted that the witness stressed that he was providing an estimate; P-0372: T-149 , p. 67, lines 18-21. 2579 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 96. 2580 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 137. 2581 P-0144: T-91 , p. 32, line 25 – p. 33, line 7. 2582 P-0144: T-91 , p. 33, lines 13-14. 2583 P-0144: T-91 , p. 33, lines 15-19. 2584 P-0249: T-79 , p. 11, line 23 – p. 12, line 11. 2585 P-0249: T-79 , p. 21, lines 14-18, p. 23, lines 3-9. 2586 P-0249: T-79 , p. 23, lines 3-6. 2587 P-0249: T-79 , p. 12, lines 5-11. See also T-80 , p. 3, line 10 – p. 5, line 9.

No. ICC-02/04-01/15 422/1077 4 February 2021

Further, camp resident P-0006 testified that she was abducted and beaten by young LRA

2588

fighters, she identified as kadogos around 14 years old. UPDF commander John

Lubwama testified that he could see that the average age of the rebels in the attack were

2589

between 12 and 20 years old. He also stated specifically that he saw the bodies of the

LRA fighters killed during the attack and that their ages were between 12 and 20 years

2590

old.

In this context, the Chamber recalls the testimony of LRA fighter P-0379 who stated that

he saw a very young boy, who appeared to be a rebel, who was shot around the shoulders

and on his head and was dead and it appeared he had been holding bubble gum in his

2591

hand but it fell next to him. While P-0379 does not explicitly estimate the age of the ‘very young boy’ that he saw, the description that he gave makes it plain that he spoke

of a child below the age of 15. The Chamber thus notes P-0379’s evidence as

corroborative of the other evidence in relation to the participation of children under 15

years old in the LRA attack on Pajule IDP camp on 10 October 2003.

Credible and consistent evidence shows that the LRA forces attacking Pajule IDP camp

were heavily armed with weapons including an SPG-9, AK-47s, a 12.7 mm anti-aircraft

2592

gun, RPGs, a PKM machine gun as well as pangas/machetes and knives. The evidence

2588 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 11, 14; P-0006: T-140 , p. 9, lines 1-11, p. 37, lines 15-20. 2589 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 108. 2590 P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 109-110. 2591 P-0379: T-57 , p. 26, lines 6-8, p. 27, lines 8-18. 2592 D-0134: T-240-CONF, p. 60, lines 19-25, p. 61, lines 10-16 (testifying that he was carrying a weapon called an SPG-9, an anti-tank weapon used mainly to shoot armoured vehicles); P-0144: T-91 , p. 30, lines 15-18 (stating that the LRA had an SMG, a PKM machine gun, an RPG, a recoilless, an SPG-9, a 12.7 and a 60 millimetre mortar); P-0209: T-160 , p. 29, lines 2-4 (stating that the LRA soldiers who participated in the Pajule attack from his group went with AK-47s, PKM, RPG and 12.7 gun); P-0309: T-60 , p. 53, line 22 – p. 54, line 12 (testifying that LRA fighters, including himself, had weapons such as AK-47s; fighters also had mortars and RPGs as well as ‘big guns’ whose names the witness could not recall); P-0045: T-103-CONF, p. 95, line 24 – p. 96, line 2 (stating that the LRA fighters went to the barracks with an LMG, a B-10, an SPG-9 and small arms); P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 30, 97, 98 (testifying that the attackers were armed with hoes, pangas and 1.5 metres spears. The LRA attackers also used AK-47s, an SPG-9 and the 12.7 mm anti-aircraft gun. After the attack the government soldiers recovered from LRA an SPG-9 (a self-propelled, anti-armour gun) and cartridges from the 12.7 anti-aircraft gun near the military barracks as well as 11 Ak-47s); P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 20 (testifying that after the attack, the government forces recovered 13 submachine guns (SMGs) and an SPG-9 from the LRA fighters); P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 14 (Benson Ojok was abducted by an LRA fighter carrying an AK-47 and a bayonet knife); P-0067: T-125 , p. 10, lines 3-6 (Dick Okot saw an RPG gun, and other smaller arms, foldable guns).

No. ICC-02/04-01/15 423/1077 4 February 2021

2593 shows that Dominic Ongwen was also armed at Pajule IDP camp during the attack.

2594 P-0309 testified that Dominic Ongwen had a gun similar to an AK-47 gun.

UPDF soldier P-0084 testified that prior to the attack, the military had noticed LRA

commanders concentrating east of Pajule and were thus anticipating an attack somewhere

2595 in the region. The military was monitoring about seven LRA groups and these groups

2596 were moving towards Lanyatono village, which was about eight miles east of Pajule.

P-0084 testified that just before the attack there had already been threats by the LRA of

2597 attacks on IDP camps, including on Pajule IDP camp. According to P-0084, the letter

2598 warned the people to leave the camp or they would be attacked.

2599 As planned, and as laid out in detail below, the LRA fighters split and went to

different areas in the camp: the barracks; the Catholic mission; the civilian camp,

including the trading centre; and also to set up ambushes of the incoming government

reinforcements on the Pader and Kitgum roads. The Chamber notes that some witnesses

did not mention certain groups referred to by other witnesses, in particular the groups

that went to the Catholic mission and to lay ambushes to prevent government

reinforcements from arriving. This is naturally explained by the different personal

knowledge of the witnesses, and does not raise doubt as to the reliability of the evidence

as a whole.

LRA fighter P-0144 testified that each of the different groups that went to the attack had

2600 a different commander, Lieutenant Lalero for one of the ambushes, Bogi for the

2601 barracks, and Dominic Ongwen for the centre. According to P-0144, Raska Lukwiya,

the operations commander for the entire attack, went to the centre with Dominic Ongwen

2602 and the group Dominic Ongwen commanded. Raska Lukwiya’s role was to ‘go and

2593 P-0309: T-60 , p. 54, lines 4-8. 2594 P-0309: T-60 , p. 54, lines 6-8. 2595 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 69-70. 2596 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 70. 2597 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 73, 76. In this regard, the witness testified about having seen a letter from the LRA, warning people to leave the camp or they would be attacked, that had been dropped at Pajule IDP camp about a week before the attack. 2598 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 76. 2599 See section IV.C.6.ii above. 2600 P-0144: T-91 , p. 32, lines 6-7 (testifying that he could not remember the name of the commander of the second ambush). 2601 P-0144: T-92 , p. 45, lines 14-23. 2602 P-0144: T-92 , p. 45, lines 14-23.

No. ICC-02/04-01/15 424/1077 4 February 2021

conduct abductions, supported by the commanders that he selected at the centre, and to

2603 coordinate the other groups that are not together with him at that time’. P-0144

confirmed that Raska Lukwiya was personally present and oversaw the operations in the

2604 centre.

According to P-0144, the attacking force initially moved in one group and then, when

the LRA fighters were close to Pajule IDP camp, they split into their respective groups.

The ambush group went first, then the group assaulting the barracks and lastly the third

2605 group went to the trading centre to collect food and abduct people.

Similarly, LRA fighter Charles Lokwiya testified that as the LRA approached Pajule IDP

2606 camp they split into three groups. He stated that Bogi led the groups going to the

2607 2608 barracks, and the main group, led by Raska Lukwiya, went to the centre.

According to Charles Lokwiya, another group, led by Vincent Otti’s escort Onyee,

2609 proceeded to the mission.

John Lubwama, the UPDF commander of the government forces stationed at the camp

at the time of the attack, testified that the LRA split into two groups near the health centre

and one group crossed the main road and advanced towards the barracks while another

2610 group moved towards Pajule IDP camp.

John Lubwama testified that at the time of the attack there were a total of 150 government

2611 soldiers under his command. The soldiers were mostly LDUs and the commanders,

2612 UPDF. John Lubwama testified that 70 soldiers were deployed in the barracks and

2613 about 80 were deployed around the camp. At the time of the attack on the camp, the

soldiers in the barracks slept in the trenches in order to be ready for fighting. The

2603 P-0144: T-92 , p. 45, line 24 – p. 46, line 6. 2604 P-0144: T-92 , p. 46, lines 4-6. 2605 P-0144: T-91 , p. 29, lines 15-25. 2606 D-0134: T-240 , p. 58, line 25 – p. 59, line 4. 2607 D-0134: T-240 , p. 59, lines 7-10. 2608 D-0134: T-240 , p. 59, lines 7-11. 2609 D-0134: T-240 , p. 59, line 14 – p. 60, line 12. 2610 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 95. 2611 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92; P-0047: T-115 , p. 11, lines 13-15. 2612 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92. 2613 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92.

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Chamber notes that while there was a police station in the camp there is no evidence that

the police engaged in any discernible way during the LRA attack on 10 October 2003.

The witnesses – LRA insiders, camp residents and government military officers – stated

that the shooting began in the early morning of 10 October 2003, generally testifying to

2614

a range of times between 5:00 and 6:00. According to witness evidence, people had

been celebrating Uhuru Day – Ugandan Independence Day – the night before, and for

2615

this reason some were still drunk and caught unaware by the attack.

Camp resident Terrence Otika became aware of the attack when he heard the sounds of

2616

whistles being blown and ululations. He testified that he knew it was the ‘rebels’

attacking because they were blowing whistles and had girls with them making

2617

ululations.

UPDF commander John Lubwama testified that he initially heard a gunshot from the

2618

north by the road, close to the primary school near the military barracks. He testified

that two of his officers, who were about 100 meters from the main road, saw the rebels

2619

coming from the north of their position, advancing in fighting formation. The two

2620

soldiers fired at the rebels and the rebels started firing back. The soldiers then ran to

2614 P-0144: T-91 , p. 31, lines 6-8 (testifying that the attack began at about 5:00); P-0008 Statement, UGA-OTP- 0137-0002-R01, at para. 14 (stating that he first heard shooting between 5:00 and 6:00); P-0007 Statement, UGA- OTP-0147-0214-R01, at paras 10-11 (stating that he lived within the trading centre in the Lapul side of the IDP camp and first heard guns being fired at around 5:00 in the morning); P-0379: T-57 , p. 21, lines 17-24 (testifying that he started hearing gunshots at around 5:00 and knew that this meant that the camp was being attacked); P- 0084 Statement, UGA-OTP-0139-0149-R01, at para. 82 (testifying that he heard gunfire at about 5:30); D-0134: T-240-CONF, p. 62, lines 2-7 (stating that the attack began at 6:00); P-0047 Statement, UGA-OTP-0027-0177- R01, at paras 25, 91 (testifying that the attack took place around 6:00 when he was awake inside his house listening to the BBC); P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 17-18 (stating that he woke up at around 6:00 the morning of 10 October 2003 to the sound of gunshots, he went outside and was sent back inside by an armed man who he assumed to be a government soldier, at that time he checked his watch and it said 6:00). See also D-0085: T-239 , p. 18, line 23 – p. 19, line 1 (testifying that the LRA forces arrived in Pajule ‘around dawn, around 7:00, 7:30’). 2615 D-0076: T-219 , p. 11, lines 2-6. See also P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 8-9; P-0249: T-79 , p. 9, lines 18-22. 2616 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 11. 2617 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 13. The witness stated that this was, in his observation, the customary behaviour of the rebels during attacks. 2618 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92. See P-0047 Statement, UGA-OTP-0027-0177- R01, at para. 49; P-0047’s sketch of Pajule IDP camp, UGA-OTP-0027-0198. In his sketch of Pajule IDP camp, the witness indicates the locations of the primary schools in Pajule with a ‘P.S’. The primary school he speaks of here is shown as being towards the north east of the military barracks. 2619 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92. 2620 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92.

No. ICC-02/04-01/15 426/1077 4 February 2021

2621 the barracks and into the fighting trenches. John Lubwama testified that the

government forces took position in the trenches, armed with AK-47s, mortars and 82 mm

2622 recoilless guns. John Lubwama testified that he called for reinforcement from the

th regular UPDF force, the 65 battalion, which was about seven kilometres south of the

2623 camp.

2624 According to John Lubwama, the attackers came from the east. Similarly, camp

2625 resident Santo Oweka confirmed that the LRA came from the east or northeast. Camp

resident P-0006 also heard the noises signalling the beginning of the attack coming from

2626 the eastern direction.

Other witnesses corroborate the above accounts. Okema Brown, a camp resident and

leader, testified that he first heard shooting from the direction of the barracks and then he

could hear shooting coming from all different directions, stating ‘the attack came from

2627 all directions in the camp’. UPDF officer P-0084 testified that he was at the UPDF

divisional headquarters at Achol-Pii about 30 kilometres from Pajule and could hear

2628 gunshots coming from the camp. P-0084 stated that after hearing the gunshots the

divisional headquarters received radio communication of the attack from Captain

2629 Lubwama, commander of the military detachment at Pajule, thereby confirming the

latter’s testimony. P-0084 also testified that Captain Lubwama said that there was

2630 fighting in the barracks and some LRA were in the trading centre.

2631 P-0144 testified that about 100 LRA fighters went to the barracks. Charles Lokwiya

2632 corroborates this account. This number is also compatible with the testimony of John

2633 Lubwama, who stated that he saw about 150 rebels coming towards the barracks. The

2621 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92. 2622 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 97. 2623 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 53. 2624 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 95. 2625 D-0081: T-221 , p. 45, lines 20-22. 2626 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 9. 2627 P-0008 Statement, UGA-OTP-0137-0002-R01, at paras 13-14. 2628 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 82. 2629 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 82. This testimony corroborates John Lubwama’s accounts of his reaction to the LRA’s attack. See para. 1250 above. 2630 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2631 P-0144: T-91 , p. 32, lines 20-22. 2632 D-0134: T-240-CONF, p. 62, line 18 – p. 63, line 2 (testifying that 80 to 100 fighters went to the barracks). 2633 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 92.

No. ICC-02/04-01/15 427/1077 4 February 2021

Chamber notes that LRA fighter P-0045’s estimate as to the number of fighters that went to attack the barracks was much lower (‘about 15 perhaps’), but does not consider this

estimate decisive in light of the consistent estimates of the other witnesses and in light of

P-0045’s clarification that, in any case, she was not including in her count all the LRA

2634 fighters that actually went to the barracks.

2635 The evidence shows that heavy fighting occurred at the barracks. According to P-

0144, a group of LRA fighters, led by Bogi, went straight to the barracks and engaged

2636 the government soldiers there. P-0144 testified that when the LRA started its attack

on the barracks at the upper side of the barracks some of the government soldiers there

2637 fled in the southern direction. P-0144 stated that the LRA fighters initially overran

part of the barracks but were ultimately not able to overpower the soldiers stationed at

2638 the barracks and so retreated in the direction of the trading centre. Several other

witnesses, specifically LRA fighters, offered testimony consistent with and corroborative

of this account. P-0045 stated that the government soldiers at the barracks initially

2639 retreated before coming back and defeating the LRA. Charles Lokwiya testified that

the LRA fighters fought in the barracks and just as they were about to capture the

2640 barracks, the government soldiers returned in numbers. Camp resident P-0081

testified that he heard bombs being fired towards the barracks and coming out of the

2641 barracks.

Witnesses reported that there was also shooting in the civilian areas of the camp. LRA

fighter P-0330 provides testimony to the effect that LRA fighters engaged with

government soldiers, stating that there were soldiers guarding the centre and he fired his

2642 gun at them. From his position in the military battalion headquarters, John Lubwama

could see and hear the group in the camp attacking there at the same time as the group

2634 P-0045: T-103-CONF, p. 95, lines 7-13. 2635 P-0067: T-126 , p. 5, lines 6-7 (testifying that the barracks was ‘where the heavy fighting was’); P-0372: T- 148 , p. 20, line 25 – p. 21, line 2 (testifying that he was told by the people who went to the barracks the fighting at the barracks was ‘very fierce’). 2636 P-0144: T-91 , p. 22, lines 1-4, p. 30, lines 21-23, p. 33, line 23 – p. 34, line 1. 2637 P-0144: T-91 , p. 34, lines 7-17. 2638 P-0144: T-91 , p. 33, line 23 – p. 34, line 6, p. 35, lines 21-24. See also P-0372: T-148 , p. 21, lines 7-12 (like P-0144, P-0372 also testified that the persons who went to the barracks later came back and joined the ones who were in the camp who were taking foodstuff). 2639 P-0045: T-103-CONF, p. 91, lines 14-16; T-104-CONF, p. 6, lines 5-11, line 25 – p. 7, line 3. 2640 D-0134: T-240-CONF, p. 62, lines 8-11, p. 63, lines 3-8. 2641 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 18. 2642 P-0330: T-52-CONF, p. 7, lines 4-10.

No. ICC-02/04-01/15 428/1077 4 February 2021

2643 attacking the barracks. UPDF commander John Lubwama testified that some of the

government soldiers were present nearby to protect the camp, but they were overpowered

2644 and withdrew, after which the attackers entered the camp.

Similarly, camp resident Dick Okot testified that there were government soldiers in the

2645 outskirts of the camp and a few soldiers were within the camp. The witness testified

that there was a gun battle in the Pajule side of the camp and the UPDF soldiers retreated

to the barracks on the Lapul side of the camp and were no longer there on the Pajule

2646 side. According to the witness, the LRA came and chased away the soldiers that were

in the camp and the soldiers that were in the outskirts of the camp and the soldiers ran to

2647 the barracks. Dick Okot testified that the LRA fighters then entered the camp and

started breaking into people’s houses and into the shops. 2648 Likewise, P-0006 testified

that she knew the government soldiers in the camp had run away because she did not see

any government soldiers near the house when she and the other inhabitant were taken out

2649 by LRA fighters and abducted.

Other witnesses’ testimonies are consistent with and corroborative of these accounts. 2650

In this context, the Chamber notes the testimony of Okema Brown, who lived on the

Pajule side of the camp, testified that after the shooting began he and his children lay on

2651 the floor of their hut. Okema Brown heard the rebels outside giving instructions ‘you

just abduct, maka maka’. 2652 Okema Brown testified that he also heard rebels giving

instructions to other rebels that ‘they should just shoot the drunkards’. 2653 Similarly,

Richard Otim testified that it was dawn and he was asleep, when he heard gunshots on

2643 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 96. 2644 P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 102. 2645 P-0067: T-126 , p. 4, line 24 – p. 5, line 4. 2646 P-0067: T-125 , p. 8, lines 7-10. 2647 P-0067: T-126 , p. 5, lines 4-7. 2648 P-0067: T-125 , p. 8, lines 7-12. 2649 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 18. 2650 D-0077 Statement, UGA-D26-0022-0316, at paras 1, 12-13 (David Okwera testified that the LRA fighters ran away, leading to the abduction of the people. He also stated that towards the end of the attack, a government soldier kicked open the door and ran into his home. The soldier did not attack or hurt him and made no threatening statement or gestures and it seemed that he was just looking for safety). David Okwera’s testimony indicates that there were government soldiers within the camp trying to escape from the LRA; P-0007 Statement, UGA-OTP- 0147-0214-R01, at para. 12 (testifying that he heard gunshots go off on and off, and when the guns fell silent, he could hear the sounds of loud hitting on the doors of houses). 2651 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 14. 2652 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 14. 2653 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 14.

No. ICC-02/04-01/15 429/1077 4 February 2021

2654

the road from Pajule centre. Richard Otim realised that it could be LRA fighters

2655

attacking so he woke up; afraid of being abducted, he tried to run. However he was

held back by his wife who was afraid that he would be shot by the bullets being fired

2656

outside.

The very fact that LRA fighters were able to abduct so many civilians within Pajule IDP

camp is further proof that they were not being impeded by a military force that remained

2657

in the centre.

The evidence indicates that several LRA fighters and UPDF soldiers were injured, and

2658

some killed, in the exchange of fire that occurred at the barracks and within the camp.

Whereas the charges in relation to the Pajule IDP camp attack do not include the

destruction of property, the Chamber notes nonetheless that the evidence suggests that

2659

the LRA did burn down a limited number of civilian huts within the camp.

UPDF commander John Lubwama testified that some of the rebels in the group tried to

go to the Catholic mission and into the Lapul civilian area but they were repelled by his

2660

men. UPDF officer P-0084 testified that a nun at the Catholic mission told him that

the LRA fighters did not enter the mission but stopped at the fence and called out to the

2654 D-0076: T-219 , p. 11, lines 2-9. 2655 D-0076: T-219 , p. 11, lines 11-15. 2656 D-0076: T-219 , p. 11, lines 11-15. 2657 See paras 1326-1355 below. 2658 D-0134: T-240-CONF, p. 62, lines 9-11 (testifying that he was shot); P-0144: T-91 , p. 35, lines 4-12 (testifying that Charles Lokwiya was injured in the attack at the barracks when his SPG-9 gun was shot and the fragment of the gun hit him on the stomach and on the mouth); P-0045: T-103-CONF, p. 91, lines 14-18; P-0130 Statement, UGA-OTP-0191-0272-R01, at para. 62 (many LRA fighters were injured during the fight at the barracks); P- 0372: T-148 , p. 20, line 25 – p. 21, line 3, p. 24, lines 14-18 (testifying that LRA fighter Oringa was killed at the barracks); P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 100, 111-112 (testifying that some of the rebels were killed among the huts near the military barracks. Ten rebels were killed by the military barracks and two government soldiers killed close to the barracks. One rebel was killed in the Pajule camp area as well as one government soldier who had been deployed around the camp to protect it.). 2659 P-0008 Statement, UGA-OTP-0137-0002-R01, at paras 36, 46-49 (stating that when he went to his home to check the damage he saw that grass had been pulled from the thatched roof of his hut and was then told by his relative that after the arrival of the helicopter, the rebels said that they should burn the huts so that the smoke prevents the helicopter from seeing them; and testifying that on 11 October 2003, he counted, along with block leaders, 23 huts burnt on the Pajule sub-county side of the camp); P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 102 (stating that 11 huts were burned in ‘Pajule IDP camp north east’ and that he saw the huts on fire); P- 0084 Statement, UGA-OTP-0139-0149-R01, at para. 115 (testifying that his staff members counted 315 huts burnt in the camp); P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 18; P-0006: T-140 , p. 11, lines 8-15 (testifying that she saw the smoke from burnt grass-thatched houses in the trading centre of both sides of Pajule IDP camp; she guessed that it was the rebels attacking the camp who set the houses on fire because government soldiers had never set houses on fire before). 2660 P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 100-101.

No. ICC-02/04-01/15 430/1077 4 February 2021

2661 people within the mission to open the gate. According to P-0084, the mission housed

2662 captured or rescued former female or child LRA abductees. P-0084 testified that the

mission was ‘less than 100-200 metres’ from the barracks. 2663

LRA insider evidence is consistent with these accounts. P-0144 testified that a group of

about 10-11 fighters was supposed to go to the mission but did not manage to reach the

2664 mission because the government soldiers were able to thwart their attack. This group

2665 of fighters was commanded by Onyee, an LRA captain. P-0045 testified that the

group that went to attack the mission included a fighter called Onyee, one of Vincent

Otti’s escorts. 2666 In addition, P-0045 stated that she heard that ‘[n]othing happened at

the mission’, because the LRA fighters sent there encountered soldiers and ran back. 2667

Regarding the groups of fighters who went to set up ambushes, P-0144 testified that

Lieutenant Lalero commanded the ambush group and they went to the Pader road to lay

2668 an ambush for the government soldiers, a second ambush team who went to Kitgum

2669 road. P-0309 testified that some fighters went to stage an ambush along the way to

2670 take care of the government soldiers that would be coming from different directions.

Corroborating these accounts, camp leader Okema Brown testified that he was later told

by the commanding officer of the military barracks that the LRA had laid ambushes on

2671 the roads outside the camp to prevent the army from coming inside. UPDF officer P-

0084 testified that the LRA fighters ambushed a UPDF vehicle coming to reinforce the

camp with a landmine and anti-tank gun, about 3-5 kilometres from the trading centre on

2672 the Pajule-Pader road. Although the LRA was successful in damaging a vehicle, they

2661 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 103. 2662 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 103-104. 2663 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 105. 2664 P-0144: T-91 , p. 25, lines 19-25. 2665 P-0144: T-91 , p. 25, line 19 – p. 26, line 1. 2666 P-0045: T-104-CONF, p. 4, lines 6-10, p. 62, lines 21-23. 2667 P-0045: T-104-CONF, p. 9, line 23 – p. 10, line 1. 2668 P-0144: T-91 , p. 22, lines 10-13. 2669 P-0144: T-91 , p. 32, lines 6-7 (P-0144 did not recall the name of the commander of this group). 2670 P-0309: T-60 , p. 54, lines 13-20. 2671 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 16. 2672 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 86.

No. ICC-02/04-01/15 431/1077 4 February 2021

2673 eventually retreated in the face of UPDF fire. P-0144 testified that he heard that

2674 Lieutenant Lalero, who had commanded the ambush, died in the operation.

Dominic Ongwen led a group of attackers to fight at the barracks, before directing them

2675

to attack the trading centre within the camp.

As discussed above, Dominic Ongwen participated in the planning of the attack on Pajule

IDP camp. He also personally went to the attack. Witnesses testified that they saw

Dominic Ongwen leave for the attack on Pajule along with the brigades that were going

2676 on the attack. P-0144 also testified that after the attack, during the LRA retreat from

Pajule, he saw Dominic Ongwen among a group of fighters moving ahead to the RV

2677 point.

The Chamber recalls that almost a hundred fighters alone attacked the barracks and even

more than a hundred attacked the trading centre, and that altogether several hundred

2678 persons participated in the LRA attack on Pajule IDP camp. Given the large number

of LRA fighters participating in the attack, it is not unusual that several witnesses testified

2679 that they did not see Dominic Ongwen during the course of the attack. Additionally,

at the time of the gathering of various LRA units, the preparations for the attack and

during the attack itself, several officers more senior to Dominic Ongwen were present

and active. It is therefore understandable that even fighters within the same group might

not have noted and remembered each other’s presence.

As to where Dominic Ongwen went within the camp, some evidence suggests that

Dominic Ongwen was present at the barracks, for at least some portion of the attack.

2673 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 87. 2674 P-0144: T-91 , p. 47, lines 21-25. 2675 Para. 149 above. 2676 See section IV.C.6.ii.c, the Chamber’s discussion of the departure of the attackers. 2677 P-0144: T-91 , p. 44, lines 11-19. See P-0144: T-91 , p. 45, line 3 – p. 47, line 2; P-0144’s sketch of Pajule, UGA-OTP-0243-0504 (showed the path of withdrawal and indicating that during the withdrawal, Dominic Ongwen was positioned in the main group of fighters who went to the camp). 2678 See paras 1234, 1253 above. 2679 P-0330: T-51 , p. 80, lines 3-7; T-52 , p. 11, lines 11-13 (testifying that he did not see Dominic Ongwen in Pajule during the attack and went to the attack with a different commander); D-0085: T-239 , p. 18, lines 4-6 (testifying, having been a low level attacker in Pajule to collect food, that she never met Dominic Ongwen); D- 0134: T-240 , p. 65, lines 17-21, p. 66, lines 1-3 (testifying that he did not see Dominic Ongwen among the group that went to Pajule and did not see Dominic Ongwen at the RV after the attack). Regarding Charles Lokwiya’s testimony, the Chamber recalls that he was injured during the attack, arrived at the RV location later than the other fighters and was moved to sickbay.

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LRA fighter P-0372 testified that Dominic Ongwen divided the fighting troops into

2680 groups and led the group that went to attack the barracks at Pajule. P-0372 testified

2681 that he saw Dominic Ongwen as he was going to the barracks. P-0372 testified that

he saw Dominic Ongwen walk with a limp as if he was shot in the leg but noted that ‘his

disability was not very serious, he would walk by himself.’ 2682 The witness stated that

although he did not see Raska Lukwiya in Pajule, he was not certain that Lukwiya was

not there as ‘people were many and besides that people went at night and so you wouldn’t

know everyone’. 2683

LRA fighter P-0309 provided similar testimony, including more detail. He also stated

that Dominic Ongwen’s group went to the barracks, while another group went to the

2684 trading centre of Pajule IDP camp. Importantly, P-0309 testified that Dominic

Ongwen went with a group of fighters straight to the barracks to engage with the soldiers

2685 there and that he was himself part of these fighters. The witness further stated that a

group of LRA soldiers surrounded the government troops in the barracks and, led by

2686 Dominic Ongwen, had an armed exchange with government soldiers. As also

discussed above, P-0309 testified that LRA fighters overpowered part but not the whole

2687 of the government barracks. P-0309 explained that the government soldiers retreated

2688 and then came back and defeated the LRA forces. He testified that his group, on

Dominic Ongwen’s orders, then left the barracks and went to the centre to join the LRA

2689 group there. P-0309 testified in great detail about how he heard Dominic Ongwen

blow a whistle and indicate with his hand that LRA fighters should retreat from the

2680 P-0372: T-148 , p. 18, lines 15-23, p. 20, lines 5-6. The Chamber notes that P-0372 testified that Dominic Ongwen was ‘[t]he most senior person in charge of that attack’. However, in light of the detailed evidence otherwise available in relation to the commanders involved in the planning and execution of the attack, and in light of P-0372’s status as a low level fighter which gave him an inherently limited possibility to observe the relevant facts and make this assessment, the Chamber does not attribute any consequence to this particular assertion of P-0372. The Chamber also notes that given P-0372’s status at the time of the attack, it is likely that Dominic Ongwen was indeed the most senior person he observed. 2681 P-0372: T-148 , p. 21, lines 13-14. 2682 P-0372: T-148 , p. 22, lines 3-8. The Chamber has no reason to believe that P-0372 mistook any other commander for Dominic Ongwen in light of the precise physical description of Dominic Ongwen that he was able to provide. 2683 P-0372: T-148 , p. 18, line 25 – p. 19, line 7. 2684 P-0309: T-63 , p. 7, lines 19-25. 2685 P-0309: T-60 , p. 52, lines 1-2, p. 54, lines 13-22; T-63 , p. 9, lines 2-5. 2686 P-0309: T-60 , p. 59, lines 19-25. 2687 P-0309: T-60 , p. 59, line 23 – p. 60, line 2. 2688 P-0309: T-60 , p. 60, lines 2-4. 2689 P-0309: T-60 , p. 60, lines 3-16.

No. ICC-02/04-01/15 433/1077 4 February 2021

2690 barracks and move to the trading centre of Pajule IDP camp. P-0309 testified that the 2691 LRA forces spent between 40 to 50 minutes at the barracks.

The Chamber is persuaded by the details and context provided by P-0309 in his description of his participation under Dominic Ongwen in the attack on the UPDF barracks and the retreat therefrom towards the trading centre. Whereas there is contrary evidence, in particular from witnesses familiar with the planning of the attack, that Bogi 2692 was in charge of the group that attacked the barracks, the Chamber does not consider that this evidence contradicts P-0309, as he merely asserted that he participated in the attack in a group under the immediate orders of Dominic Ongwen. P-0309’s evidence, taking into consideration the expected limits of his knowledge, should not be interpreted as implying that no other LRA groups were participating in the attack under other commanders. In fact, considering that a hundred LRA fighters attacked the barracks, the participation of multiple senior officers on the ground was logical. The Chamber notes the testimony of Charles Lokwiya and P-0045 – two fighters who knew Dominic Ongwen and who went to attack the barracks in the course of the attack. Given the number of fighters, including senior officers, on the ground in the course of the Pajule attack, the Chamber also does not consider these witnesses’ accounts dipositive as such as to whether Dominic Ongwen, at the initial stages of the attack, in fact went to the barracks, as stated by P-0309 and P-0372.

In light of the evidence, the Chamber finds that Dominic Ongwen participated in the attack on the barracks for a portion of the attack, before withdrawing with the fighters under his command towards the trading centre.

The evidence is clear that Dominic Ongwen moved and led fighters to the trading centre to loot and abduct. P-0309 testified that the group commanded by Dominic Ongwen and acting on his orders, also went to the trading centre, after leaving the barracks, and joined 2693 another LRA group there in looting food, breaking into shops and abducting people.

2690 P-0309: T-60 , p. 60, line 14 – p. 61, line 1. See P-0309’s sketch of the Pajule IDP camp attack, UGA-OTP- 0258-0833-R01. 2691 P-0309: T-60 , p. 60, lines 5-7; T-63 , p. 8, line 23 – p. 9, line 1. 2692 See paras 1243, 1245, 1254 above. 2693 P-0309: T-60 , p. 61, line 11 – p. 62, line 2.

No. ICC-02/04-01/15 434/1077 4 February 2021

P-0309 testified that his group of LRA fighters, including Dominic Ongwen, spent about

2694 30 minutes at the trading centre.

Camp residents who experienced the attack also place Dominic Ongwen at the scene of

the attack. Rwot Oywak testified that he encountered Dominic Ongwen in the trading

2695 centre. He stated that Dominic Ongwen had a gun in one hand, a stick in another, a

radio communication device and a number of soldiers with him and was walking with a

2696 2697 limp. According to Rwot Oywak, Dominic Ongwen was firing his gun. He

testified that the escorts around Dominic Ongwen were addressing him as Lapwony

2698 Dominic and reporting to him when they ‘brought’ persons. In relation to the

identification of Dominic Ongwen by Rwot Oywak, the Chamber recalls that, as

2699 discussed above, Rwot Oywak had previously met Dominic Ongwen.

Rwot Oywak testified that he thought Raska Lukwiya also participated in the Pajule

2700 attack; but he testified that he was taken to Dominic Ongwen during the attack. The

Defence noted that in his 2005 statement to the Prosecution, the witness mentioned that

2701 Raska Lukwiya was firing his gun and that Dominic Ongwen was giving orders. The

witness confirmed this account and explained that from his observation of Dominic

2702 Ongwen’s behaviour, he believed that Dominic Ongwen was in charge. Rwot Oywak

testified that Raska Lukwiya was present among the fighters around Dominic Ongwen at

2703 the Pajule trading centre. The Chamber finds this explanation convincing.

Rwot Oywak testified that Dominic Ongwen was giving directions to his fighters,

‘ordering them to go and abduct people, to go and take stuff, to burn things and to fire

2694 P-0309: T-60 , p. 65, lines 4-6; T-63 , p. 9, lines 22-24. 2695 P-0009: T-81 , p. 12, lines 17-19, p. 26, lines 20-24, p. 28, line 6 – p. 29, line 9, line 23 – p. 31, line 20. See also P-0009’s sketch of Pajule IDP camp, UGA-OTP-0241-0555; Annotated aerial map of Pajule IDP camp, UGA-OTP-0241-0556. 2696 P-0009: T-81 , p. 13, lines 2-7, p. 18, line 16 – p. 19, line 3, p. 31, line 22 – 32, line 8. Rwot Oywak described the stick held by Dominic Ongwen as ‘long, but one could hold it in their hand’, and added that it was ‘already kind of shattered because they had been using it to beat a lot of people’; P-0009: T-81 , p. 20, lines 2-9. 2697 P-0009: T-81 , p. 12, lines 17-19. 2698 P-0009: T-81 , p. 19, lines 4-14. 2699 See para. 447 above. 2700 P-0009: T-82 , p. 76, lines 5-16. 2701 P-0009: T-82 , p. 76, lines 17-22. 2702 P-0009: T-82 , p. 76, line 17 – p. 78, line 1. 2703 P-0009: T-83 , p. 9, line 22 – p. 11, line 5.

No. ICC-02/04-01/15 435/1077 4 February 2021

guns’. 2704 According to Rwot Oywak, Dominic Ongwen said that ‘all the people from

2705 Pajule were going to be killed because they were supporting the government’.

Richard Otim corroborates Rwot Oywak’s account, testifying that he did not hear the

2706 2707 name Dominic Ongwen in the bush, but when he returned from captivity, he was

at a social gathering with Rwot Oywak when Rwot Oywak began to discuss the October

2003 attack on Pajule IDP camp and said that the group that attacked Pajule IDP camp

2708 included Dominic Ongwen, Vincent Otti and Raska Lukwiya. According to the

witness, at that gathering, Rwot Oywak was talking about the attack on Pajule and

mentioning some of the commanders that Rwot Oywak knew were involved in the

2709 attack.

Also consistent and corroborative of Rwot Oywak’s account is P-0249’s testimony that

Dominic Ongwen was in charge of the rebels who abducted him and his wife in the course

2710 of the attack. P-0249 stated that LRA fighters who abducted them took him towards

2711 the main road going to Lira. He testified that he saw Dominic Ongwen with a number

of soldiers standing along the way and the whole group continued to walk together on

2712 the Lira road. P-0249 explained that he knew that these soldiers were under Dominic

Ongwen’s orders because he was the one who came with the rebels to the centre and was

2713 in command of those rebels. P-0249 testified that the LRA fighters in Pajule centre

2714 addressed Dominic Ongwen as Lapwony Odomi. According to P-0249, Dominic

Ongwen was wearing army fatigues, had a large stick in his hand, a cap on his head, some

2715 sort of radio, and was also giving instructions to the fighters to loot and abduct.

2704 P-0009: T-81 , p. 22, lines 3-11. 2705 P-0009: T-81 , p. 22, lines 12-15. 2706 See D-0076: T-219 , p. 34, line 24 – p. 35, line 14 (testifying that he had never seen Dominic Ongwen and that he would not have recognised him as Dominic Ongwen had he seen him in the course of his time with the LRA). 2707 Richard Otim spent up to a week in captivity. D-0076: T-219 , p. 21, lines 1-4. 2708 D-0076: T-219 , p. 21, lines 5-15, p. 35, line 15 – p. 36, line 12. See also p. 21, lines 1-4, p. 35, lines 3-10. 2709 D-0076: T-219 , p. 22, lines 5-10. 2710 P-0249: T-79 , p. 12, lines 12-13, p. 14, lines 11-18, p. 14, line 25 – p. 15, line 3. 2711 P-0249: T-79 , p. 13, lines 15-20. 2712 P-0249: T-79 , p. 13, lines 15-21, p. 14, lines 2-7; T-80 , p. 17, lines 4-25, p. 18, lines 15-20. See also P-0249’s sketch of the attack, UGA-OTP-0238-0795-R01 (marking where he first saw Dominic Ongwen as ‘A3’). 2713 P-0249: T-79 , p. 14, line 25 – p. 15, line 3. 2714 P-0249: T-79 , p. 42, lines 19-21. 2715 P-0249: T-79 , p. 15, lines 4-13, lines 18-25, p. 16, lines 1-6, p. 18, line 24 – p. 19, line 3; T-80 , p. 21, line 21 – p. 22, line 1. See also T-79 , p. 26, lines 1-8.

No. ICC-02/04-01/15 436/1077 4 February 2021

The Chamber notes that this description of Dominic Ongwen, his behaviour and his soldiers’ response to him is similar to Rwot Oywak’s.

It is noted that P-0249 did not indicate that Dominic Ongwen walked with a limp, testifying that ‘you cannot be observing a soldier for a long time’. 2716 The Chamber finds it plausible that a person in P-0249’s situation, as a new abductee, did not concentrate on this detail and chose not to observe his abductors closely. Indeed, in light of the fact that any continuing impediment as a result of the injury did not prevent Dominic Ongwen from participating in the Pajule IDP camp attack, it may have easily been one that a civilian in the process of being abducted would not notice.

The Defence submits that Raska Lukwiya was the person ordering LRA fighters in the 2717 camp around using a stick, rather than Dominic Ongwen as stated by P-0249. In this context, they cite the testimony of P-0006 who testified that she saw Raska Lukwiya by the health centre, holding a walking stick, ordering LRA fighters around, and carrying a 2718 communication device. The Chamber first recalls its finding that P-0249 was clearheaded enough at the time of his abduction to have been fully aware of his experiences in Pajule IDP camp during the attack and to recall them accurately in his 2719 testimony before the Court. Second, the evidence shows that there were at least a 2720 hundred, possibly many more, LRA fighters within the camp, and it is entirely plausible that both P-0006 and P-0249 testified reliably, there is nothing inherently contradictory about their accounts. The Chamber notes that P-0249 separately identified 2721 Raska Lukwiya, as a different person from the one he identified as Dominic Ongwen. For these reasons, the Chamber does not follow the Defence’s argumentation and relies on the testimony of P-0249.

In addition to P-0309, discussed above, other insider witnesses stated that Dominic Ongwen participated in the LRA attack on the trading centre. According to P-0144,

2716 P-0249: T-80 , p. 23, line 14 – p. 24, line 24. 2717 See Defence Closing Brief , para. 328 (arguing that P-0249 was intoxicated the morning of the attack and that P-0006’s account that she saw Raska Lukwiya with a stick ordering people around should be given more weight). 2718 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 31-32. See also P-0006: T-140 , p. 57, line 19 – p. 58, line 1. 2719 See paras 472-474 above. 2720 See paras 1234, 1235, 1253 above. 2721 See P-0249: T-80 , p. 21, lines 14-17, p. 37, lines 3-8 (testifying that he saw Raska Lukwiya when the LRA stopped in the course of the retreat. He stated that he could not speak to whether Raska Lukwiya abducted people in Pajule IDP camp because he did not see him abduct people there).

No. ICC-02/04-01/15 437/1077 4 February 2021

Dominic Ongwen was the commander of the attack at the trading centre, and went there

2722 along with the overall operation commander Raska Lukwiya to loot and abduct. P-

2723 0144 did not recall seeing Dominic Ongwen in the trading centre.

Consistent with P-0144’s account, P-0045 provides corroboration that Dominic Ongwen

2724 went to the trading centre. P-0045 appeared to indicate that she did not see Dominic

2725 Ongwen personally going to the centre. She confirmed however, that Dominic

Ongwen was initially in charge of the group going to the centre and that Raska Lukwiya

2726 came afterward, saying that he was the big person. P-0045 explained that ‘[y]ou

cannot mention the smaller commander to lead the group’. 2727

Further, as discussed below, P-0379 testified that he was told by several abductees that

they were abducted by Dominic Ongwen and his fighters within the camp and at trading

2728 centre during the attack.

Camp resident Dick Okot testified that after leaving the camp, he was told by the LRA

fighter leading his group that Dominic Ongwen was the LRA commander in charge of

2729 the fighters he saw in the camp. Dick Okot also testified that Dominic Ongwen’s

group was identified by the LRA fighter as the group coming from the road from

2730 2731 Lapul. Dick Okot testified that he saw Dominic Ongwen.

In light of the consistent and mutually corroborative evidence of the witnesses, the

Chamber is satisfied that the evidence shows that Dominic Ongwen was present at the

trading centre in a leadership role along with his soldiers whom, as discussed further

below, he ordered to loot and abduct.

The Chamber notes the testimony of witnesses who indicated that Dominic Ongwen did

not participate in the attack on Pajule IDP camp. P-0214, one of Dominic Ongwen’s so-

2722 P-0144: T-91 , p. 22, lines 10-23, p. 25, lines 3-17, p. 46, lines 3-14. 2723 P-0144: T-91 , p. 38, line 8 – p. 40, line 4. 2724 P-0045: T-103-CONF, p. 92, lines 16-25, p. 94, lines 8-15. 2725 P-0045: T-103-CONF, p. 92, lines 20-25, p. 93, lines 20-22. 2726 P-0045: T-103-CONF, p. 94, lines 8-15; T-104-CONF, p. 4, lines 14-16. 2727 P-0045: T-103-CONF, p. 94, lines 8-15. 2728 P-0379: T-57 , p. 25, lines 12-21; P-0379: T-57-CONF, p. 31, line 7 – p. 32, line 3, p. 33, lines 10-24. 2729 P-0067: T-125 , p. 10, line 7 – p. 11, line 1. 2730 P-0067: T-125 , p. 10, line 21 – p. 11, line 1. 2731 P-0067: T-125 , p. 10, line 21 – p. 11, line 1.

No. ICC-02/04-01/15 438/1077 4 February 2021

called ‘wives’ testified that Dominic Ongwen did not participate in an attack on Pajule IDP camp because he was injured and in the sickbay at the time and was unable to walk 2732 far. It is noted that there is nothing in the testimony of P-0214 establishing a link between her evidence and the attack relevant to the charges, and that the witness only 2733 stated that she heard about an attack in Pajule, without giving any details. In this regard, the Chamber notes that P-0214 was asked about ‘an attack on Pajule’ without any 2734 further specifications. In the absence of any further details, and considering that the evidence available to the Chamber indicates that there were several attacks on Pajule IDP 2735 camp, it remains unclear whether in her testimony the witness was referring to the attack on Pajule IDP camp under consideration or any other attack conducted on other occasions on the same camp. In the presence of more specific evidence given by witnesses with personal knowledge, the Chamber does not rely on P-0214 on this 2736 issue.

Similarly, LRA insider P-0085 testified that some LRA fighters who had participated in the attack on Pajule IDP camp told him that Odomi was ‘present in that group’, but did not go to the battlefront himself because he had just returned from sickbay, so he did not 2737 go physically to fight in the front line. P-0085 testified that he did not know whether Dominic Ongwen had been given back his role or was still ‘being taken as a sick person’ 2738 after he was released from sickbay. Considering that the witness only received this information second-hand and that he conceded not knowing the details of Dominic Ongwen’s status at the time, and in the face of the overwhelming evidence that Dominic Ongwen was no longer in sickbay at the time of the October 2003 attack, had not been in

2732 P-0214: T-15 , p. 39, lines 1-8. 2733 See P-0214: T-15 , p. 39, lines 1-4. 2734 P-0214: T-15 , p. 39, line 1. 2735 See the assessment of P-0307’s testimony and the Chamber’s finding that the witness provided evidence with regard to another attack on Pajule. Section IV.B.2.ii.b.xv; para. 1173, n. 2394 above; P-0307 Statement, UGA- OTP-0266-0425-R01, at paras 32-44; P-0307: T-152 , p. 70, lines 8-17; T-153 , p. 33, lines 20-23. 2736 In this context, the Chamber notes its discussion of Dominic Ongwen’s position within the LRA and his presence in the sickbay. See paras 1017-1073 above. 2737 P-0085: T-158 , p. 40, line 24 – p. 41, line 5. The Chamber understands P-0085’s testimony to indicate that he was told that Dominic Ongwen was at the RV but did not participate in the attack. 2738 P-0085: T-159 , p. 28, line 16 – p. 29, line 2.

No. ICC-02/04-01/15 439/1077 4 February 2021

2739 sickbay for some time and was actively participating in attacks, the Chamber puts no

2740 weight on P-0085’s testimony in this regard.

While the Chamber finds LRA insiders D-0056 and D-0068 to have been generally

credible witnesses, the Chamber does not consider that the Pajule attack they described

2741 is the attack at issue in these proceedings, as also argued by the Prosecution. While

2742 some details of the attack that D-0056 discussed are similar to other witnesses, the

witness is alone among the credible witnesses to not recall that the day of the attack was

2743 related to a significant occasion, as opposed to most other witnesses who remembered

that it was just after Uhuru Day. His testimony about important details of the attack

2744 greatly diverges from other credible evidence. Thus, the Chamber cannot rely on the

evidence D-0056 provides about the Pajule IDP camp attack. Regarding D-0068, who

testified that Dominic Ongwen did not participate in the Pajule IDP camp attack, the

2745 Chamber notes that he testified that the attack he referenced occurred in early 2003.

The Chamber notes that the evidence indicates that there was an LRA attack on Pajule

2746 IDP camp in January 2003. In addition, the Chamber notes that D-0068 testified that

in the attack he mentioned Charles Tabuley and Buk Abudema exercised a commanding

role on the ground, a fact which does not correspond to the rest of the reliable

2747 evidence.

At this juncture, the Chamber provides a more specific assessment of the available

evidence concerning the numerous acts of violence and looting perpetrated by LRA

fighters against civilians in the course of the attack on Pajule IDP camp, as well as in its

immediate aftermath. As also emerges from the evidence analysed below, the victims

targeted by the LRA attackers were civilian residents of the camp.

the Chamber discussion of the Dominic Ongwen’s role in the LRA. 2739 See section IV.C.3, 2740 In this context, the Chamber notes its discussion of Dominic Ongwen’s position within the LRA and his presence in the sickbay. See paras 1017-1073 above. 2741 See Prosecution Closing Brief , paras 236-237. 2742 See D-0056: T-228 , p. 70, lines 11-16; T-229-CONF, p. 28, line 21 – p. 29, line 1; T-229 , p. 29, lines 8-19 (stating that the LRA was not able to overrun the barracks, that there was a helicopter gunship, and that Rwot Oywak had come with the captured people). 2743 D-0056: T-228 , p. 64, lines 14-22. 2744 D-0056: T-228 , p. 68, line 20 – p. 69, line 2, p. 71, line 8 – p. 72, line 24; T-228-CONF, p. 69, line 16 – p. 70, line 6; T-229-CONF, p. 27, line 5 – p. 28, line 20. The witness also does not mention the large scale abduction of civilians during the attack. 2745 D-0068: T-223 , p. 32, lines 8-12. See Prosecution Closing Brief , paras 236-237. 2746 See para. 1173, n. 2394 above. 2747 D-0068: T-223 , p. 30, lines 14-25.

No. ICC-02/04-01/15 440/1077 4 February 2021

During the attack, LRA attackers, some of them led by Dominic Ongwen, broke into homes and shops and looted food and other property from them in Pajule IDP camp. There was widespread looting throughout the camp. The attackers raided the trading centre in the camp, broke into shops and took food items and supplies. Among the items looted by the LRA attackers were foodstuffs like beans, flour, salt, sugar, cooking oil, maize, sweets, biscuits, groundnuts, soda as well as household goods such as bedding,

2748

clothing, a radio set, saucepans and items such as medicine, livestock and money.

Dominic Ongwen personally ordered LRA attackers to loot within the trading centre, ordering them to loot items from shops and homes within the camp. The LRA attackers

2749

complied with this order.

Both LRA fighters and camp residents offered credible and consistent evidence to this

Chamber that LRA fighters looted Pajule IDP camp during the course of the 10 October

2003 attack.

LRA attackers provided credible and mutually corroborative evidence that household

goods, particularly food, were looted from the camp. P-0045 testified that the group that

2750 went to the centre went to collect food items from the civilians. The witness testified

2751 to seeing the LRA coming back from the trading centre with food. D-0085 testified

2752 that she saw LRA forces take foodstuff from Pajule IDP camp. She stated that LRA

2753 attackers broke into shops in order to do so. D-0085 testified that the LRA also took 2754 food from the homes of civilians in the camp. P-0309 testified that LRA forces in the centre of Pajule IDP camp broke into people’s shops and homes and were looting items

from the homes of civilians, including such food items as beans, flour, maize, sugar and 2755 biscuits, among others.

P-0330 testified that he was in a group of attackers that ‘worked’ in the trading centre,

breaking into shops and looting items such as flour, beans, and money from Pajule IDP 2756 camp. P-0372 testified that the group of LRA fighters he was with collected items

2748 Para. 150 above. 2749 Para. 150 above. 2750 P-0045: T-104-CONF, p. 4, line 24 – p. 5, line 3. 2751 P-0045: T-104 , p. 10, lines 2-5. 2752 D-0085: T-239 , p. 18, lines 15-18. 2753 D-0085: T-239 , p. 33, lines 15-20. 2754 D-0085: T-239 , p. 33, lines 21-25. 2755 P-0309: T-60 , p. 62, lines 12-25, p. 65, lines 17-21. 2756 P-0330: T-52-CONF, p. 4, lines 8-22.

No. ICC-02/04-01/15 441/1077 4 February 2021

2757 from Pajule centre, mostly foodstuffs. P-0372 testified that he personally saw people

2758 taking food from Pajule IDP camp.

The evidence provided by camp residents and the UPDF officers who observed the attack

is consistent with the LRA attackers’ accounts of the LRA looting in shops and homes

within the camp.

Camp resident P-0006 testified that the LRA rebels broke into the house she was in

during the attack and looted food items like maize, beans, salt, sugar and cooking oil

2759 from the house. She testified that she saw the LRA take maize from the house she was

2760 hiding in as well as cooking oil from a shop. P-0006 also stated that the items

abductees carried from Pajule included foodstuffs such as maize, beans, salt and

2761 sugar. Rwot Oywak testified that abductees were carrying items like flour, chicken,

2762 goats, which the LRA had found in the homes of the civilians. Santo Oweka testified

2763 that the LRA looted a radio set, beddings and clothing from his house. Dick Okot

testified that a lot of things were looted from his home including foodstuff, money and

2764 clothes. Items like soda, biscuits, clothes, and beans were taken from shops and

2765 civilian homes. Dick Okot testified that LRA fighters picked up a sack of groundnuts

2766 for him to carry. P-0081 testified that he learned after he came back from the bush

2767 that LRA rebels had entered his home and taken things. P-0081 indicated that he had

2768 a small store in the house and the LRA rebels took onions and small groceries. Benson

2769 Ojok was given a crate of soda to carry on his head. He saw the LRA break into shops

2770 and take other things like the soda he was made to carry. Santo Oweka testified that

2771 he could hear that shops were being broken into during the attack.

2757 P-0372: T-148 , p. 20, lines 14-19. 2758 P-0372: T-148 , p. 20, lines 20-21. 2759 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 12. 2760 P-0006: T-140 , p. 11, lines 16-22; P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 13. 2761 P-0006: T-140 , p. 12, lines 3-5, p. 40, lines 9-11. 2762 P-0009: T-81 , p. 17, lines 11-19. 2763 D-0081: T-220 , p. 25, lines 5-7. 2764 P-0067: T-125 , p. 52, lines 2-4. 2765 P-0067: T-125 , p. 23, lines 8-13. 2766 P-0067: T-125 , p. 22, line 20 – p. 23, line 4; T-126 , p. 9, lines 9-12. 2767 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 22. 2768 P-0081: T-118 , p. 32, lines 5-11. 2769 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 2770 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 2771 D-0081: T-220 , p. 24, lines 4-6.

No. ICC-02/04-01/15 442/1077 4 February 2021

According to P-0249, Dominic Ongwen was in the centre of the camp and was using a

stick to point out and indicate where one of his fighters should go or what the fighter

2772 should do. P-0249 testified that Dominic Ongwen would tell fighters to go and loot a

2773 shop and use a stick to point to that shop and issue his instruction. P-0249 testified

that when Dominic Ongwen directed his fighters to go and loot, they followed his

instruction, taking ‘lots of things’ and giving them to people to carry. 2774 P-0249 testified

that at Pajule trading centre, Dominic Ongwen indicated and issued instructions for

2775 fighters to take things quickly so they could leave the camp. P-0249 testified that he

was close to Dominic Ongwen and could hear him issuing instructions, telling people

‘[h]urry up, go and take the things quickly, hurry up’. 2776

P-0249 testified that Dominic Ongwen ordered the looting in Pajule to the soldiers he

was leading on the ground, explaining ‘[t]here was no other person other than Ongwen.

He is the one who came with the soldiers and he is the one who was issuing instructions

and giving orders to soldiers to go and take things and to take the food that was

2777 needed.’ While the evidence shows that Dominic Ongwen was one of several

commanders at Pajule – Raska Lukwiya was also present at the centre – P-0249’s

testimony here demonstrates that Dominic Ongwen was in control of the fighters he was

2778 leading and he ordered fighters subordinate to him to loot. Indeed, P-0330 testified

2779 that Dominic Ongwen stated that he should bring him a goat or a chicken from Pajule.

P-0249 testified that in response to Dominic Ongwen’s instructions, LRA attackers took

2780 salt, sugar, maize, beans, soap and anything that might be useful to them. P-0249

testified that he saw the LRA attackers take clothes that were in shops, and even

saucepans from people’s houses. 2781 P-0249 testified that he personally witnessed LRA

fighters directly under Dominic Ongwen’s command, looting the shops along the Lira

2782 road. P-0249 also testified that the LRA looted items from the shops in the Pajule

2772 P-0249: T-79 , p. 15, lines 18-25; T-80 , p. 21, line 21 – p. 22, line 1. 2773 P-0249: T-79 , p. 15, lines 24-25. 2774 P-0249: T-79 , p. 18, line 24 – p. 19, line 3. 2775 P-0249: T-79 , p. 17, line 22 – p. 18, line 4. 2776 P-0249: T-79 , p. 18, lines 5-8. 2777 P-0249: T-79 , p. 20, lines 9-13. the Chamber’s discussion of Dominic Ongwen’s role in the attack. 2778 See also paras 1264-1287, 2779 P-0330: T-51 , p. 78, lines 7-13. 2780 P-0249: T-79 , p. 18, lines 9-13, p. 19, lines 14-15. 2781 P-0249: T-79 , p. 18, lines 12-13. 2782 P-0249: T-79 , p. 19, line 21 – p. 20, line 2; T-80 , p. 10, line 14 – p. 11, line 9.

No. ICC-02/04-01/15 443/1077 4 February 2021

2783 trading centre and along the highway and from people’s homes. P-0249 testified that

the LRA looted merchandise from shops as well as personal things from people’s

2784 houses. P-0249 testified that his own shop was looted as well as a number of other

2785 shops in the market. P-0249 stated that although he did not see his shop looted by the

2786 LRA, he knew that his shop was looted because after the attack it was left empty.

Similarly, P-0081 testified that when he was passing through the camp, there was looting

2787 under way and he could hear rebels cutting the doors in the market place. P-0081

testified that the group of rebels he was with would open the doors of homes they passed

2788 by and take any loot they found interesting. P-0379 observed that the gate going to

2789 the market was broken and several shops within the market had been broken into.

2790 Richard Otim testified that the LRA looted flour, beans and other items from shops.

Dick Okot testified that as he was leaving his home area with the LRA after being

abducted, he could see LRA soldiers taking some items from shops which were near the

2791 market.

UPDF officer P-0084 testified that he was told by drug shop owners that the rebels took

2792 medicine from their shops, both tablets and injections. Other traders in the trading

centre also told him that the rebels had taken some foodstuffs, clothing and other

2793 household items.

UPDF commander John Lubwama testified that the LRA pillaged articles they found in

2794 shops like foodstuffs, including sugar, clothing and also pillaged civilian homes.

Camp leader Omona Lokilamoi testified that the LC-1 chairpersons of each village within

the Palenga parish, which is one of the six parishes of Pajule Sub-County, compiled

records of households of their respective villages pillaged by the LRA during the attack

2783 P-0249: T-79 , p. 17, line 22 – p. 21, line 4. 2784 P-0249: T-79 , p. 19, lines 4-10. 2785 P-0249: T-79 , p. 19, lines 21-25. 2786 P-0249: T-79 , p. 20, lines 14-23. 2787 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 25. 2788 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 25. 2789 P-0379: T-57 , p. 26, lines 15-16. 2790 D-0076: T-219 , p. 16, lines 10-14. 2791 P-0067: T-125 , p. 15, lines 9-13. 2792 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 113. 2793 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 114. 2794 P-0047: T-114 , p. 37, lines 15-25.

No. ICC-02/04-01/15 444/1077 4 February 2021

2795 on 10 October 2003. Such records provided by Omona Lokilamoi list over 650

2796 households. Omona Lokilamoi testified that to the day of his statement he had not

been able to locate the lists of pillaged households in parishes of Pajule Sub-County other

than the Palenga parish, partly because they no longer had a permanent administration

2797 office for fear of an attack on the IDP camp. The Chamber finds that Omona

Lokilamoi’s list corroborates the witnesses’ accounts in demonstrating that there was

widespread looting in Pajule IDP camp.

With the arrival of a government helicopter and reinforcement ground forces, LRA

2798

attackers left the camp with abductees and looted goods.

The evidence shows that while fighting was still ongoing at the barracks, a military

helicopter arrived to reinforce the government soldiers. The helicopter’s arrival

precipitated the LRA’s departure from the camp. The helicopter pursued the retreating

fighters and their abductees through the bush. Additionally, reinforcements of

government soldiers arrived in the camp and started engaging with the LRA fighters.

P-0084 testified that the military helicopter was airborne within 25 minutes after the

2799 report that Pajule was under attack. The helicopter went to the barracks and started

2800 shooting at the rebels. P-0084 testified that an extended line of rebels faced the

2801 military barracks. According to P-0084, the rebels became disorganised and started

2802 running in disarray when the helicopter started firing. P-0084 testified that the LRA

rebels had to withdraw from the barracks because of the counter attack from the barracks

2803 and the aerial attack from the helicopter.

UPDF commander P-0084 testified that subsequently the military helicopter flew over

2804 the Pajule trading centre. According to the witness, the helicopter did not fire at

2805 anything in the trading centre. P-0084 testified that there were rebels running with

2795 P-0001 Statement, UGA-OTP-0138-0002-R01, at paras 26-27. 2796 See P-0001’s lists of pillaged households compiled by the LC-1 chairpersons of the villages within the Palenga parish on 10 October 2003, UGA-OTP-0138-0168-R01. 2797 P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 28. 2798 Para. 151 above. 2799 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2800 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2801 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2802 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2803 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 83. 2804 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84. 2805 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84.

No. ICC-02/04-01/15 445/1077 4 February 2021

2806 loot as well as abductees who were forced to carry loot. He testified that

the UPDF soldiers previously posted at the outskirts of the camp

2807 advancing towards the Pajule trading centre coming from the east. P-0084 testified

2808 that he was communicating on the radio with the commander of these UPDF soldiers.

P-0084 also stated that the UPDF soldiers started engaging the enemy as they were

running away from the Pajule trading centre, and that the UPDF soldiers killed three

2809 rebels there.

P-0084 testified that outside the trading centre, the helicopter fired at the retreating

2810 rebels. When the rebels saw the helicopter firing they started running, some of the

2811 rebels were firing at the helicopter. P-0084 testified that the four rebels firing at the

2812 helicopter were killed.

P-0084 further stated that the helicopter then went towards the east, in the direction in

2813 which the rebels were withdrawing. P-0084 said that he saw more than 300 civilians

who had been taken captive by the LRA from Pajule carrying looted items stolen from

2814 Pajule towards Lanyatono. He testified that the helicopter did not fire at that point

because of the presence of the civilians; however the noise and sight of the helicopter

2815 caused a number of abductees and rebels to run.

P-0084’s account of the movements and actions of the military helicopter is entirely

credible. Multiple witnesses corroborate this account from their different vantage points

2816 during the attack.

2806 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84. 2807 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84. 2808 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84. 2809 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 84. 2810 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 85. 2811 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 85. 2812 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 85. 2813 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 88. See also P-0084 Statement, UGA-OTP-0139- 0149-R01, at para. 70. 2814 P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 88, 121. 2815 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 89. 2816 P-0047 Statement, UGA-OTP-0027-0177-R01, at paras 12, 53, 104; P-0047: T-115 , p. 30, lines 13-17; P- 0330: T-51-CONF, p. 81, lines 23-24; T-52-CONF, p. 5, lines 3-4, p. 8, lines 9-13; T-52 , p. 9, lines 1-3; P-0372: T-148 , p. 23, lines 3-7; P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 22-24; P-0006: T-140 , p. 53, lines 6-13, line 18 – p. 54, line 3; P-0045: T-104 , p. 6, lines 22-24; T-104-CONF, p. 68, lines 15-17; P-0061 Statement, UGA-OTP-0144-0043-R01, at paras 25-26; D-0076: T-219 , p. 12, lines 3-14, p. 17, lines 8-10, p. 18, lines 6-12; P-0309: T-60 , p. 64, lines 18-23, p. 65, line 22 – p. 66, line 1; P-0009: T-81 , p. 13, lines 13-16, p. 22, lines 20-25; P-0379: T-57 , p. 24, lines 24-25, p. 25, lines 6-11, p. 29, lines 5-9; P-0008 Statement, UGA-OTP-0137-0002-R01,

No. ICC-02/04-01/15 446/1077 4 February 2021

In the face of the arrival of these reinforcements, LRA fighters left the camp. The

Chamber is satisfied that the evidence shows that the LRA spent one to two hours in the 2817 camp. The evidence indicates that LRA fighters did not leave in one group but rather

left in stages as they retreated back to the RV with the abductees and the looted goods.

Santo Oweka testified that he noticed that abductees arrived at the meeting place in

different groups: when he arrived there were already people there and people continued

2818 to arrive at the RV location for another two hours.

In the course of the attack, LRA fighters killed at least four civilians, most of whom were abductees killed because they tried to escape or refused to carry looted goods. The civilians killed by the LRA in the course of the attack on Pajule IDP camp included: an unnamed woman killed by machete, Kinyera Benson Lacung, Pangarasio Onek and

2819

unnamed abductee killed by the RV location.

The Chamber finds that the evidence shows that during the 10 October 2003 attack on

Pajule, LRA fighters specifically targeted civilians and killed them.

The evidence, presented above, shows that there were exchanges of gunfire between the

LRA and the government soldiers at the military barracks and within the camp. However,

it is clear that LRA fighters purposely targeted civilians in the course of the attack in

Pajule.

Camp resident Benson Ojok testified that he saw people in the camp being shot at by the

2820 rebels. Benson Ojok saw four people, both males and females, lying injured outside

their houses; they had been shot at their doors and he did not see whether they were dead

2821 or not. Benson Ojok testified that he saw about seven rebels shooting at unarmed

2822 2823 civilians at random. Some of the civilians had fallen down and were crying.

at paras 16, 18-19; P-0067: T-125 , p. 13, line 24 – p. 14, line 1, lines 13-20, p. 15, lines 3-5; T-126 , p. 3, lines 1- 25; P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 29-31; P-0081: T-118 , p. 11, lines 1-6; P-0130 Statement, UGA-OTP-0191-0272-R01, at para. 37; P-0249: T-79 , p. 28, lines 1-5; D-0081: T-220 , p. 24, lines 16- 18, p. 27, lines 15-20, line 25 – p. 28, line 5; D-0077 Statement, UGA-D26-0022-0316, at paras 17-18. See P- 0379’s sketch of Pajule, UGA-OTP-0266-0071 (denoting the direction from which the UPDF mobile unit entered the camp). 2817 P-0045: T-104-CONF, p. 7, lines 4-9; P-0209: T-160 , p. 30, lines 19-24; P-0007 Statement, UGA-OTP-0147- 0214-R01, at paras 14-17; P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 16; P-0047 Statement, UGA- OTP-0027-0177-R01, at para. 26. 2818 D-0081: T-221 , p. 50, line 21 – p. 51, line 5. 2819 Para. 152 above. 2820 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 20. 2821 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 20. 2822 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 21. 2823 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 21.

No. ICC-02/04-01/15 447/1077 4 February 2021

Benson Ojok testified that he saw a man about thirty years old being shot down when he

2824 attempted to escape. Benson Ojok testified that as the unarmed civilians were being

shot down, a commander, whom the witness identified as Gala Gala, appeared and told

2825 the seven rebels that they were not sent to kill people but rather to get food. Benson

Ojok testified that when the civilians were being shot at, a group of government soldiers

that were some distance away in the direction of the mission started running towards the

2826 LRA and their abductees. The LRA fighters then fled, dragging the abductees with

2827 them, including Benson Ojok. Benson Ojok testified that the LRA fighters threatened

the abductees that they would be killed if they threw away the items they were

2828 carrying. Benson Ojok testified that another group of government soldiers had

2829 previously been chased away by the rebels towards the barracks.

UPDF officer P-0084 testified that he saw about five dead civilians in the camp, all of

whom had been shot; their gunshot wounds were in various places; one was on the side

2830 of the head, one in the chest, one in the arm, in the legs and one in the stomach. P-

0084 testified that there were both male and female civilians killed, mostly persons

2831 between 10 and 18 years old; one of the victims was 26 years old.

Camp resident P-0006 stated that, outside the camp, she saw an older man beaten to death

2832 by the LRA because he was not walking fast. In testimony consistent with P-0006’s,

Richard Otim testified that after he returned to the camp, he was told that after his release

2833 the LRA began to kill abductees who were unable to walk. Okema Brown also

testified that he was told by returned abductees about persons killed for not being able to

2834 walk anymore or for trying to escape.

2824 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 21. 2825 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 23. 2826 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 24. 2827 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 24. 2828 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 24. 2829 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 24. 2830 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 108. 2831 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 108. 2832 P-0006: T-140-CONF, p. 16, lines 2-8. 2833 D-0076: T-219 , p. 31, line 11 – p. 32, line 1. 2834 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 32.

No. ICC-02/04-01/15 448/1077 4 February 2021

Below, the Chamber discusses the evidence presented in the proceedings of specific

individuals killed by the LRA throughout the course of the Pajule IDP camp attack.

Unnamed woman killed by machete: Camp resident Dick Okot testified that he saw

the body of a woman who appeared to have been killed by a machete, her neck was cut

2835 and had a deep cut wound. Dick Okot testified that he saw the dead body of the

woman; the woman had three kids and her children were around her crying ‘[o]ur mother

has been killed’. 2836 The Chamber finds Dick Okot’s testimony here clear and credible.

The Chamber notes that LRA fighters attacked Pajule IDP camp with blade weapons in

2837 addition to firearms, and, on the other hand, that there is no evidence, or even

suggestion, that government soldiers attacked any civilian with a machete in the course

of the attack. The necessary inference is that this woman was killed by the LRA.

Kinyera Benson Lacung: Omona Lokilamoi, a local government official testified that

while collecting information on the persons killed in the attack, he was told that Kinyera

Benson Lacung, who was his copy-typist, was beaten to death by the LRA because he

2838 failed to carry the ‘load’ given to him. Residents of the camp described the killing of

Kinyera Benson Lacung in detail as follows: Terrance Otika testified that Lacung was

2839 one of the people killed after being abducted. Terrance Otika saw the Lacung’s family

2840 gathering to go to collect his body. Lacung’s family retrieved his body and he was

2841 buried the day after the attack. Terrance Otika saw the body wrapped up and was told

by Lacung’s brother, Ben Okema, that Lacung had been shot in the back. 2842 Ben Okema

2843 told Terrance Otika that he had collected the body from the road. Okema Brown

2844 testified that he saw the dead body of the sub-county typist, Kinyera Lacung. Okema

Brown testified that he saw the body in Kinyera Lacung’s home after it had been carried

2845 from the bush to his home. Okema Brown testified that the body was wrapped tight

2835 P-0067: T-125 , p. 18, lines 9-18; T-126 , p. 7, line 25 – p. 8, line 5. 2836 P-0067: T-125 , p. 18, lines 9-18. 2837 See para. 1240 above. 2838 P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 16. 2839 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 22. 2840 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 22. 2841 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 22. 2842 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 22. 2843 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 22. 2844 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 28. 2845 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 28.

No. ICC-02/04-01/15 449/1077 4 February 2021

2846 so he could not see the wounds. Okema Brown testified that he was told by Kinyera

Lacung’s relatives that his head had been beaten and that his body was found about one

2847 kilometre away from the Pajule side of the camp where he had been killed. Okema

Brown testified that he was later told by returning abductees that Kinyera Lacung had

2848 been killed by rebels because he could not carry the load that was given to him.

Okema Brown testified that the rebels used a club that they had brought with them to kill

2849 2850 Kinyera Lacung. Other witnesses also mention the killing of Lacung.

The Chamber notes the testimony of Dick Okot, who stated that he saw Lacung killed by

2851 the LRA. According to Dick Okot, Lacung worked at the sub-country chief’s

2852 office. Dick Okot testified that in the course of the retreat from the Pajule IDP camp,

his group found people stopped and gathered around the place where Lacung was

2853 killed. According to Dick Okot, Lacung was told, ‘you are a government worker, we

are not going to leave you, we will kill you’. 2854 Dick Okot testified that LRA fighter

Odongo called his bodyguards and the bodyguards instructed Lacung to lie down and the

body guard picked a knife and fixed it on the barrel of a gun and then stabbed Lacung in

2855 the mouth and he fell down and died. Dick Okot also testified that Lacung was stabbed

2856 on his side of the abdomen. Dick Okot testified that he was not far away when Lacung

2857 was stabbed and personally witnessed it. Dick Okot testified that after Lacung was

stabbed the LRA searched his pocket and took away his identity card and other personal

2858 2859 effects. According to Dick Okot, Lacung was killed in Wangduku. Dick Okot

testified that he saw Vincent Otti and Dominic Ongwen talk and after they completed

2860 their conversation, Lacung was killed. Dick Okot testified that Dominic Ongwen and

Vincent Otti stopped and observed Lacung’s body for a bit, but they did not say

2846 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 28. 2847 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 28. 2848 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 29. 2849 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 29. 2850 P-0081: T-118 , p. 11, line 19 – p. 12, line 12; P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 44. 2851 P-0067: T-125 , p. 30, lines 1-11. 2852 P-0067: T-125 , p. 30, lines 12-20. 2853 P-0067: T-125 , p. 30, lines 21-24. 2854 P-0067: T-125 , p. 30, lines 21-25. 2855 P-0067: T-125 , p. 30, line 25 – p. 31, line 6. 2856 P-0067: T-125 , p. 32, lines 19-22. 2857 P-0067: T-125 , p. 31, lines 18-19. 2858 P-0067: T-125 , p. 31, lines 20-22. 2859 P-0067: T-125 , p. 32, lines 13-18. 2860 P-0067: T-125 , p. 31, lines 7-17.

No. ICC-02/04-01/15 450/1077 4 February 2021

2861 anything. The Presiding Judge noted that in Dick Okot’s statement to the Prosecution, he did not mention any discussion between Vincent Otti, Dominic Ongwen and 2862 Odongo. Dick Okot testified that he did not hear the conversation nor does he recall 2863 who gave the order for the killing of Lacung. The Chamber notes that Dick Okot describes details of the attack and places himself on the location in a manner which convinces the Chamber that he witnessed the killing of the victim. However, in light of the other evidence indicating that Lacung was killed before the LRA reached the RV location, the Chamber is unconvinced by his evidence that Vincent Otti and Dominic Ongwen witnessed the killing and conversed about it. Given the details Dick Okot provides and its view of the general credibility of his account, the Chamber is convinced that Dick Okot witnessed the killing of Lacung. The Chamber considers that Dick Okot’s testimony corroborates the evidence that Lacung was killed by the LRA.

While noting that the witnesses differ in their testimony as to the exact manner of his death, the Chamber is satisfied that the evidence proves that Kinyera Lacung was killed by LRA fighters in the course of the retreat from Pajule IDP camp.

Pangarasio Onek: Camp leader Okema Brown testified that on the day after the attack on the upper side about half a kilometre to the north of Pajule IDP camp he saw the dead 2864 body of businessman Pangarasio Onek. Okema Brown testified that the body and head were already swollen and the body was so bloody he could not tell where the blood 2865 came from. Okema Brown testified that Pangarasio Onek’s brother told them that before Okema Brown saw the body, the brother had turned it around and discovered that 2866 Pangarasio Onek was shot in the back.

Dick Okot testified that in the course of the retreat, he saw Pangarasio Onek, a trader 2867 between 30 and 40 years of age, among the abducted. Dick Okot testified that 2868 Pangarasio Onek was carrying about three or four basins full of beans. He asked LRA fighter Odongo for help because the load was heavy, making the request about three

2861 P-0067: T-126 , p. 16, line 23 – p. 17, line 6. 2862 P-0067: T-125 , p. 33, lines 1-4. 2863 P-0067: T-125 , p. 33, lines 4-13. 2864 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 27. 2865 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 27. 2866 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 27. 2867 P-0067: T-125 , p. 23, line 23 – p. 24, line 1, lines 14-23. 2868 P-0067: T-125 , p. 27, lines 2-5.

No. ICC-02/04-01/15 451/1077 4 February 2021

2869 2870 different times. Odongo did not accept the request. Dick Okot testified that 2871 Pangarasio Onek would walk from a distance and then put the load down to rest. Dick

Okot described what happened next:

At that time a gunship was hovering about and firing small guns at the people. He was hurrying Pangarasio to move. Then at some point he stopped the people and said if Pangarasio didn’t want to carry the load, he was going to be killed. At that time he summoned his escort, a young boy of about 9 or 10, and he said, “If this person does not want to go ahead, shoot him.” And then he asked Pangarasio, “Are you sure you cannot manage?” And Onek said, “No, I cannot.” Then they unbound him, the rope that was used to tie him was cut using a knife, and they told him to sit down. And he was shot in the head, three bullets in the head. That was what I saw. And then we were told to continue moving and they said if anybody refuses to move, they wouldn’t waste time, they would be killed in a similar manner. And 2872 everyone else got on their feet to continue moving. That was what I witnessed.

Dick Okot testified that after Pangarasio Onek was killed, Odongo told his bodyguard to

search his body and the boy found money in Pangarasio Onek’s pocket and gave it to 2873 Odongo. Dick Okot testified that before Pangarasio Onek was killed, the group was

stopped and Vincent Otti arrived and spoke to Lapwony Odongo for about five minutes 2874 and then Lapwony Odongo returned to the group. Dick Okot testified that at the time

Pangarasio Onek was killed, Dominic Ongwen was a little behind the group they were 2875 in. Dick Okot indicated that Dominic Ongwen would still have been able to see 2876 everything that was happening. Given the location in which Pangarasio Onek was

killed, the Chamber is unconvinced that Vincent Otti, who was at the RV location, witnessed the killing. However, given the details he provided and the Chamber’s view of

the general credibility of Dick Okot’s account, the Chamber is convinced that Dick Okot

witnessed the killing of Pangarasio Onek.

2877 Richard Otim stated that he saw two civilians killed in Pajule IDP camp. Richard

Otim testified that one of the persons was his neighbour and the other was a shop

2869 P-0067: T-125 , p. 27, lines 2-7. 2870 P-0067: T-125 , p. 27, line 6. 2871 P-0067: T-125 , p. 27, lines 7-8. 2872 P-0067: T-125 , p. 27, lines 9-20. 2873 P-0067: T-125 , p. 28, lines 2-6. 2874 P-0067: T-125 , p. 29, lines 1-11. 2875 P-0067: T-125 , p. 27, lines 21-24. 2876 P-0067: T-125 , p. 27, line 24 – p. 28, line 1. 2877 D-0076: T-219 , p. 16, line 15 – p. 17, line 2, p. 25, lines 2-5 (testifying that he saw two dead civilians in Pajule camp, but at the time, the government soldiers were exchanging fire with the rebels, so he could not tell who killed the two persons. Richard Otim testified that he did not observe the rebels randomly and deliberately shoot anyone,

No. ICC-02/04-01/15 452/1077 4 February 2021

2878 attendant in one of the shops in the centre named Pangaracio Onek. The Chamber

also notes that unlike the other two witnesses who suggest that Pangarasio Onek was

killed outside the camp, Richard Otim indicates that Pangarasio Onek was killed within

the camp. Still, the Chamber considers Richard Otim’s testimony to corroborate the

accounts that Pangarasio Onek was killed in the course of the attack.

The Chamber notes that witnesses also testified about the killing of ‘Apang Onek’. Given

the similarities in the names of the witnesses and the description of the circumstances of

the killing, the Chamber is of the view that these witnesses likely refer to Pangarasio

Onek. P-0249 testified that LRA soldiers killed a civilian, Apang, as abductees were

2879 leaving the centre. Apang was killed in an area called Wang Kweyo, as the abductees

2880 were going to the bush. According to P-0249, Apang was killed for refusing to carry

2881 baggage from the centre. P-0249 testified that when he returned from the bush

Apang’s wife told him of Apang’s death. 2882 P-0249 testified that he was told that Apang

2883 was drunk at the time and became aggressive with the LRA. Corroborating this

testimony, Terrance Otika testified that he heard that a man, Apang, was killed from the

2884 Pajule side of the camp. In addition, Santo Oweka testified that Onek Apang was

2885 killed during the course of the Pajule IDP camp attack. Importantly, Santo Oweka

2886 appears to suggest that he refers to Pangarasio Onek when he referenced Apang.

In light of the evidence, the Chamber finds that Pangarasio Onek was killed by the LRA

in the course of their attack on Pajule IDP camp.

Unnamed abductee killed by the RV location : Camp resident P-0006 testified that after

leaving the RV location, when she was in Ocitti’s group heading towards Kitgum, she

the only people he saw dead were the two civilians ‘caught in the crossfire’). The Chamber notes that it understands Richard Otim’s testimony to indicate that he did not see who killed the civilians. 2878 D-0076: T-219 , p. 30, lines 2-5, p. 31, lines 2-7. Despite the different spelling of the first name, the Chamber considers it self-evident that the witnesses refer to the same person. 2879 P-0249: T-79 , p. 35, lines 20-25, p. 36, lines 8-11. 2880 P-0249: T-79 , p. 36, lines 12-15. 2881 P-0249: T-79 , p. 35, lines 20-25, p. 36, lines 16-20. 2882 P-0249: T-79 , p. 36, lines 3-7. 2883 P-0249: T-79 , p. 36, lines 12-20. 2884 P-0007 Statement, UGA-OTP-0147-0214-R01, at para. 24. Terrance Otika heard of Apang’s death from the people who brought the news of Lacung’s death. 2885 D-0081: T-221 , p. 47, lines 12-19. 2886 D-0081: T-221 , p. 48, lines 1-3.

No. ICC-02/04-01/15 453/1077 4 February 2021

2887 saw a dead person lying by the side of the road. P-0006 testified that the rebels she

was with told her that the man was an abductee who had tried to escape and that if they

2888 tried to escape they would be killed like him. P-0006 testified that the man was an

older man and was lying face down and looked as though he had been hit on the back of

2889 the head. Benson Ojok also testified that as they were leaving the meeting place, about

2890 one mile away, he saw a dead body beside the road. Benson Ojok testified that the

man was wearing civilian clothes and it looked like he had been beaten, the back of his

2891 head looked like it had been hit. Benson Ojok testified that there was a stick near the

man’s body and the dead man’s hands was tied with a rope behind his body. 2892 Benson

Ojok testified that he did not know who the man was, but believed that he was one of the

persons abducted from Pajule as he was unarmed, tied and was wearing civilian clothing

2893 and it looked like he had been killed recently. While neither witness knew the man,

the testimony is overwhelmingly similar in their description of the body. The Chamber

is convinced by Benson Ojok’s testimony that the deceased was one of the Pajule

abductees and the manner of his death as well as the fact that he was found just outside of the LRAs’ RV location demonstrates that he was killed by the LRA.

The Chamber is satisfied that the evidence shows that at least four civilians were killed

by the LRA in the course of the 10 October 2003 attack on Pajule IDP camp.

LRA fighters abducted hundreds of civilians from the camp and forced them to carry

2894

looted items, including heavy loads, for long distances while retreating from the camp.

Dominic Ongwen ordered a subordinate to abduct civilians. The order was immediately executed. Dominic Ongwen also led a group of abductees and ordered abductees to carry

2895

looted goods and instructed them not to drop items.

Some abductees were forced to carry injured LRA fighters. The abductees were under armed guard to prevent their escape and were under constant threat of beatings or death. Some were tied to each other. Many of the abductees were forced to walk bare foot or not

2887 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 50. See also para. 49. 2888 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 50. 2889 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 50. 2890 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 45. 2891 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 45. 2892 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 45. 2893 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 46. 2894 Para. 153 above. 2895 Para. 153 above.

No. ICC-02/04-01/15 454/1077 4 February 2021

fully clothed through the bush for a long distance. LRA fighters beat abductees to make

2896

them walk faster.

Among the persons abducted from Pajule IDP camp were Witness P-0006, her neighbour, her three relatives; Witness P-0081; Richard Otim; Witness P-0249; Witness P-0249’s wife; Benson Ojok; Dick Okot and his family members; Rwot Joseph Oywak; Charles Bongomin, Oryema Kadogo, Sunday Abalo, Charles Ayela, Concy Ayet; Ogen; Opira; Okumu; Santo Oweka; David Okwera; Francis Kitara; George; Ronald Labeja; Christopher; Celestino; Vincent Okot; Ocana; Charles Abonga; David Otti Moyo;

2897

Christine; Paska; Oluge; Opira Bosco and Oryema.

The Chamber finds that the evidence shows that armed LRA fighters abducted civilians

from Pajule IDP camp and prevented their escape and forced them to work. The Chamber

recalls its above discussion of the killing of three abductees, Kinyera Benson Lacung, 2898 Pangarasio Onek and an unnamed abductee. The evidence also shows that the LRA

fighters mistreated the civilians they abducted from the camp.

The witnesses’ accounts of the LRA’s abduction and treatment of civilians are credible,

mutually corroborative and show that the LRA, including fighters under Dominic Ongwen’s direct command, forcibly abducted civilians in Pajule IDP camp and severely

2899 mistreated them in accordance with the orders they had received.

P-0330 testified that the LRA abducted civilians from Pajule, tied them around the waist, 2900 put them together in a line and gave them looted items to carry. P-0330 testified to

abducting two civilians himself, a boy and a girl, and estimated that the boy he abducted 2901 was around 18 and the girl between 15 and 16 years old. P-0330 testified that the

abducted civilians from Pajule were made to carry looted items to the meeting point 2902 where the fighters met up with other members of the LRA. P-0330 also testified that

2903 . The Chamber finds P-0330’s

testimony here specific and credible, noting that in

describing the abduction of the two persons.

2896 Para. 153 above. 2897 Para. 154 above. 2898 See paras 1315-1324 above. 2899 See section IV.C.6.ii, the Chamber’s discussion of the planning of the attack. 2900 P-0330: T-52-CONF, p. 4, line 23 – p. 5, line 3. 2901 P-0330: T-52-CONF, p. 5, line 25 – p. 6, line 11. 2902 P-0330: T-52 , p. 9, lines 2-14. 2903 P-0330: T-52-CONF, p. 12, line 17 – p. 13, line 4.

No. ICC-02/04-01/15 455/1077 4 February 2021

In line with P-0330’s testimony, other witnesses reported seeing abductees who were tied

2904 up so that they could not escape. LRA fighter P-0372 explained that abductees were

guarded and some of the abductees were bound on their waists while others were walking

2905 without being tied but under guard. Camp resident P-0081 credibly testified that the

LRA abducted all manner of people in the course of the attack, testifying:

Whatever they find you wearing, they would abduct you in it; even if you were wearing an underwear, even if you were bare chested, they would take you and mix 2906 up people. They abducted all categories of people.

Similarly, P-0309 testified that LRA fighters abducted civilians from the trading

2907 centre. P-0309 credibly testified that Dominic Ongwen ordered him to abduct two

2908 people from Pajule IDP camp and ask them to carry flour and beans. P-0309 testified

that he entered the civilian’s home and called them and they came out and carried the

2909 items. P-0309 explained:

They were helpless, they did not refuse. When I called them they left and they were shaking with fear. They were trembling and they came and carried the luggage that I’d asked them to carry. […] Because they feared that I could – I could kill them 2910 or I could do worse things if they did not carry the things I asked them to carry.

In line with P-0309’s testimony, P-0249, a camp resident and abductee, testified that

Dominic Ongwen directed his fighters to go and loot, they followed his instruction,

taking ‘a lot of things’ and giving them to people to carry. 2911 P-0249 testified that while

still at Pajule trading centre, Dominic Ongwen told the abductees not to drop their

2912 luggage. P-0249 testified that as they were walking, Dominic Ongwen would move

2913 and walk anywhere within the group. Consistent with the other accounts, P-0372 also

2914 testified that some of the abductees were given loot to carry. Similarly, D-0085

2904 P-0249: T-79 , p. 13, lines 10-14; P-0067: T-125 , p. 37, lines 5-12; D-0077 Statement, UGA-D26-0022-0316, at para. 29. 2905 P-0372: T-148 , p. 24, lines 7-11. 2906 P-0081: T-118 , p. 27, lines 15-18. See also D-0076: T-219 , p. 29, lines 9-21 (Richard Otim testified that the persons were abducted in the condition they were found in, so some people were half dressed). 2907 P-0309: T-60 , p. 63, lines 1-2. 2908 P-0309: T-60 , p. 62, lines 5-10, p. 63, lines 3-5. 2909 P-0309: T-60 , p. 63, lines 3-6. 2910 P-0309: T-60 , p. 63, lines 8-13. 2911 P-0249: T-79 , p. 15, lines 4-13, lines 18-25, p. 18, line 24 – p. 19, line 3; T-80 , p. 21, line 21 – p. 22, line 1. See para. 1344 below, the Chamber’s further discussion of P-0249’s testimony. 2912 P-0249: T-79 , p. 42, lines 13-18. 2913 P-0249: T-79 , p. 31, line 24 – p. 32, line 5. 2914 P-0372: T-148 , p. 24, lines 12-13.

No. ICC-02/04-01/15 456/1077 4 February 2021

testified that the LRA forced civilians to carry the food the LRA had taken from the

2915 camp. Additionally, P-0138 stated that he saw the civilians that had been abducted,

2916 including children. P-0138 testified that the abductees were brought back to the RV

location in different battalions, staying with the group that abducted them and carrying

2917 the goods looted by that group. P-0015 also stated that when the attackers returned

from Pajule, they ‘brought back little boys and girls and big men who were carrying the

luggage of things they had taken from Pajule’. 2918

Camp resident Dick Okot testified that abductees were also carrying items including

2919 merchandise like soda and biscuits, taken from shops. Dick Okot also saw an abductee

2920 carrying clothes and one person was carrying about four gallons of beans.

In addition to carrying looted items, P-0138 explained that injured LRA fighters coming

2921 back from the attack were carried back to the RV location by civilian abductees. P-

0015 testified that she saw male abductees from Pajule IDP camp carrying an injured

2922 LRA fighter on a stretcher made of logs and polythene paper. P-0144 testified that the

group that went to collect food items in the camp abducted civilians to carry looted items

2923 or injured LRA fighters and some to be recruited into the ranks. P-0144 testified that

2924 Raska Lukwiya was carried by civilians.

Further elaborating on the use of threats by LRA to abduct civilians and force them to

work, witnesses also testified about the environment of fear in which the LRA abducted

civilians. D-0085 testified that the LRA was carrying guns as they forced civilians to

2925 carry the looted food. P-0330 testified that the two civilians he abducted to carry

2926 looted items could not refuse to do as he instructed because he had a gun. P-0144

2927 testified that no civilian could reject being abducted by a person wielding a gun. The

2915 D-0085: T-239 , p. 34, lines 1-6. 2916 P-0138: T-120 , p. 41, lines 14-16. 2917 P-0138: T-120 , p. 43, line 20 – p. 44, line 2. 2918 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 92. 2919 P-0067: T-125 , p. 23, lines 5-10. 2920 P-0067: T-125 , p. 23, lines 8-11. 2921 P-0138: T-120 , p. 44, lines 11-15. 2922 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 92. 2923 P-0144: T-91 , p. 40, line 12 – p. 41, line 25. 2924 P-0144: T-91 , p. 41, lines 21-23. 2925 D-0085: T-239 , p. 34, lines 4-6. 2926 P-0330: T-52-CONF, p. 7, lines 1-3. See para. 1328 above. 2927 P-0144: T-91 , p. 41, lines 1-7.

No. ICC-02/04-01/15 457/1077 4 February 2021

Chamber recalls its finding that several hundred LRA fighters attacked Pajule IDP camp

2928 armed with an assortment of weapons, including guns.

UPDF commander Joseph Balikudembe testified that his troops were amongst the ones

who pursued the LRA some days after the attack on Pajule IDP camp and managed to

2929 2930 rescue some abductees. He testified that these abductees were ‘exhausted’. Some

had swollen legs from moving barefoot and some of their feet were swollen because they

2931 were not used to walking for such distances. Joseph Balikudembe assessed their

condition as ‘totally emaciated and exhausted because they were not used to that kind of

treatment’. 2932

P-0249 testified that the LRA fighters instructed the abductees that anyone who threw

2933 their load would be killed. P-0249 attested to a difficult journey walking to the RV

location; he stated that the abductees, including himself, were ‘manhandled’, kicked and

2934 beaten. P-0249 stated that when the group entered the bush, the fighters ‘were beating

people seriously’. 2935 According to P-0249, the LRA fighters used their hands, sticks,

2936 guns to beat people, sometimes they just kicked people. P-0249 testified that the LRA

fighters beat people for various reasons:

They would beat people every time, every single time we were moving they would keep beating people. Sometimes they would beat you because they say you are not walking fast, at another moment why you let part of your luggage fall down. For flimsy reasons they would still beat you up. Sometimes when the commanders were passing, and the escorts were also moving them, as they are passing by they would kick you. You wouldn’t even know they are passing by because you’d be burdened 2937 by your load. But these people would really do anything on you.

P-0249 testified that Dominic Ongwen was present during the times all the beating was

2938 occurring; however the witness did not see him beating anyone.

2928 See para. 1240 above. 2929 P-0359: T-109 , p. 56, lines 2-14, lines 22-24, p. 58, lines 16-18. 2930 P-0359: T-109 , p. 58, lines 19-23. 2931 P-0359: T-109 , p. 56, lines 17-19, p. 58, lines 21-22. 2932 P-0359: T-109 , p. 58, lines 22-23. 2933 P-0249: T-79 , p. 35, lines 20-22. 2934 P-0249: T-79 , p. 13, line 22 – p. 14, line 1, p. 28, lines 18-22. 2935 P-0249: T-79 , p. 33, lines 7-9. 2936 P-0249: T-79 , p. 33, line 25 – p. 34, line 8. 2937 P-0249: T-79 , p. 34, lines 9-17. 2938 P-0249: T-79 , p. 35, lines 10-15, p. 37, lines 13-18. See para. 1344 below, the Chamber’s further discussion of P-0249’s testimony.

No. ICC-02/04-01/15 458/1077 4 February 2021

LRA insider Santo Oweka testified that the LRA fighters were moving the abductees ‘in

a haste’ and beating them to get them to hurry. 2939 Consistent and corroborative of this

and other evidence of beatings discussed above, P-0379 testified that civilian Okony was

2940 also abducted from Pajule IDP camp and escaped after about a week. P-0379 testified

2941 that Okony said he was beaten. P-0379 testified that Okony stayed in Kitgum hospital

2942 for a long time because he was vomiting blood.

The Chamber heard a number of accounts of the abduction of specific civilians in the

course of the LRA attack on Pajule IDP camp on 10 October 2003, which are discussed

below. As with the above discussion, the below is evidence of the abduction of camp

residents and their mistreatment by LRA fighters.

P-0006, her neighbour, her three relatives and other abductees: P-0006, sixteen years

old at the time of the attack, had been asleep in her neighbour’s house in the Lapul side

of the camp when she heard ululations and gunshots coming from the eastern

2943 direction. She stated that she knew she had nowhere to run and nowhere to hide, so

2944 she stayed in bed in the house. She testified that the LRA kicked in the door of the

house, whereupon seven armed young LRA fighters, whom she referred to as ‘kadogos’,

2945 entered the house. P-0006 testified that the fighters commanded her and another

2946 woman who lived in the house as well to carry items the fighters took from the house.

2947 P-0006 testified that she was made to carry maize and cooking oil. At the time, she

2948 was wearing a dress and no shoes. P-0006 testified that the LRA fighters told her to

run towards the barrack and a ‘boy’ LRA fighter of approximately 14 years old and

2949 carrying a gun, beat her twice on her back with a stick. P-0006 testified that after

2950 being beaten, she began to run as instructed. P-0006 testified that other abductees

2939 D-0081: T-220 , p. 27, lines 1-5. 2940 P-0379: T-57-CONF, p. 34, lines 18-22. 2941 P-0379: T-57-CONF, p. 34, lines 18-21. 2942 P-0379: T-57-CONF, p. 34, lines 18-23. 2943 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 7-9. 2944 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 10. 2945 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 11; P-0006: T-140-CONF, p. 37, lines 15-20. 2946 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 12-13. See also P-0006 Statement, UGA-OTP-0144- 0072-R01, at para. 10. 2947 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 13. 2948 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 13. 2949 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 14; P-0006: T-140 , p. 9, lines 1-11. 2950 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 15.

No. ICC-02/04-01/15 459/1077 4 February 2021

2951 were beaten as well, on their backs, necks and buttocks. P-0006 testified that the stick

used to beat people were big pieces of wood the size of walking sticks used by the elderly

2952 and had been taken from civilian houses. P-0006 testified that she was forced to carry

‘extremely heavy’ items away from the camp, ‘maybe two and a half basins full of

goods’. 2953 Other abductees were also forced to carry heavy loads, things that had been

2954 taken from shops. P-0006 testified that she saw the other abductees struggling to carry

the load, stating ‘[i]t appears the luggage was also heavy for them the way I would

see’. 2955 P-0006 testified that despite the fact that the LRA rebels were beating abductees

to make them walk faster, the abductees could only walk slowly because of the heavy

2956 items they were carrying. P-0006 testified that the other woman abducted with her

2957 was also made to carry luggage but was released the day after the attack. In addition,

P-0006 testified that were abducted

2958 during the attack. P-0006 testified that

2959 . P-0006 testified

that

2960 . P-0006 testified that she was integrated into the LRA until her escape on

2961 28 April 2004. She was taken by an LRA commander to his place and forced to

2962 become the so-called ‘wife’ of the commander. P-0006 testified that she was raped

2963 and became pregnant in the bush. The Chamber finds P-0006’s account of her and

other civilians’ experience during their abduction credible, specific, full of details and

internally consistent. It is also consistent with the evidence of other witnesses’ abductions

and the abductions of other civilians in Pajule IDP camp.

2951 P-0006: T-140 , p. 9, lines 12-23, p. 10, lines 15-18. 2952 P-0006: T-140 , p. 10, lines 5-11. 2953 P-0006: T-140 , p. 11, lines 16-24. 2954 P-0006: T-140 , p. 12, lines 3-5. 2955 P-0006: T-140 , p. 12, line 23 – p. 13, line 3. 2956 P-0006: T-140 , p. 13, lines 4-12. 2957 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 15. 2958 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 15. 2959 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 15. 2960 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 15; P-0006: T-140-CONF, p. 16, line 23 – p. 17, line 9. 2961 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 60. 2962 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 37, 56-57. 2963 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 56.

No. ICC-02/04-01/15 460/1077 4 February 2021

2964 P-0081 : Camp resident P-0081 lived on the Lapul side of the camp. After being

woken up by the sound of gunshots, P-0081 went outside his home where he saw an

2965 armed man who told him to return inside. After a short time, the same armed man

2966 knocked on P-0081’s door and ordered him back outside. P-0081 testified that when

2967 he came out this man told him to remove his shirt, which he did. P-0081 testified that

he was taken to an injured person who had been brought some distance behind his

2968 house. According to P-0081, two other civilians were already carrying the injured

2969 person. P-0081 testified that the three abductees were tied to each other with a rope

2970 and made to carry the injured person whom P-0081 identified as ‘Lapwony Lukwiya’.

According to P-0081, Lukwiya was shot in the head and the side and was one of the

2971 people who had been carrying and operating the SPG-9 used during the attack. P-

0081 testified that he moved out of the camp with the group, consisting of about eight to

ten rebels and led by Okot, Lukwiya’s escort. 2972 P-0081 testified that he saw several

2973 rebels behind the house, coming to see the injured Lukwiya. P-0081 testified that

Okot lead the group to the Wanduku primary school which was about six to seven miles

2974 from the camp and there they met more people, including Lukwiya’s wife. P-0081

testified that a group of rebels including Lukwiya’s wife arrived after him at Wangduku

2975 School with a large group of other abductees. P-0081 testified that he, other abductees

2976 and LRA fighters then moved to the RV location. P-0081 testified that he carried

2977 Lukwiya for a week before Lukwiya was taken to a sickbay. P-0081 testified that he

2978 was integrated into LRA until he escaped in April 2004. Given the name, Lapwony

Lukwiya, and the witness’s mention of an SPG-9, the Chamber is certain that P-0081

testified that he was forced to carry LRA fighter Charles Lokwiya. Charles Lokwiya

testified before the Chamber about his injury, stating that the SPG-9 he was carrying was

2964 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 8; P-0081: T-118 , p. 33, lines 2-4. 2965 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 17-18. 2966 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 18. 2967 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 18-19. 2968 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 18. 2969 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 18. 2970 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 19-20. 2971 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 20. 2972 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 21. 2973 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 23. 2974 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 27-28. 2975 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 34-35; P-0081: T-118 , p. 35, line 17 – p. 36, line 1. 2976 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 36. 2977 P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 20. 2978 P-0081 Statement, UGA-OTP-0070-0029-R01, at paras 64, 104.

No. ICC-02/04-01/15 461/1077 4 February 2021

shot and the barrel exploded and the shattered pieces of the barrel came and injured

2979 him. P-0144 corroborates this account that Lokwiya was injured in the attack at the

barracks when his SPG-9 gun was shot and the fragment of the gun hit him on the

2980 stomach and on the mouth.

Charles Lokwiya testified that after he was injured, he was left behind and his ‘wife’

came and carried him from the camp up until the time when she found people to help

2981 carry him. Charles Lokwiya testified that only his ‘wife’ dragged him from the

2982 barracks.

2983

2984 The Chamber

finds these witnesses’ testimonies credible and mutually corroborative. In light of the

details P-0081 knew of Charles Lokwiya, the Chamber is convinced that P-0081 was

abducted by the LRA and forced to carry Charles Lokwiya – likely from the RV onwards;

however, the Chamber is of the view that his testimony about carrying Lokwiya from the

camp is not reliable.

Richard Otim : Richard Otim testified that LRA rebels forced the door of his home open

2985 and he was forcibly captured and brought out and tied with a rope at the waist. Richard

Otim testified that it was around 4:00; he had just woken up and was barefoot and only

2986 2987 wearing shorts. Richard Otim testified that the LRA fighters had guns. Richard

Otim testified that from the RV location he helped to carry Charles Lokwiya and Acel

2988 Calo Apar along with other abductees. Richard Otim testified that the soldiers were

2989 on stretchers and the abductees carried the stretchers on their shoulders. In the course

of the LRA’s trek in the bush, Richard Otim’s feet and shoulders were injured, as he

2979 D-0134: T-240-CONF, p. 63, lines 5-8; T-241-CONF, p. 13, line 21 – p. 14, line 2. 2980 P-0144: T-91 , p. 35, lines 4-15. 2981 D-0134: T-240-CONF, p. 63, lines 9-21; T-241-CONF, p. 13, line 21 – p. 14, line 7. 2982 D-0134: T-241-CONF, p. 14, lines 3-7. 2983 2984 2985 D-0076: T-219 , p. 11, lines 16-18, p. 26, line 17 – p. 27, line 1, p. 37, lines 8-19. 2986 D-0076: T-219 , p. 27, lines 2-13. 2987 D-0076: T-219 , p. 27, line 24 – p. 28, line 4. 2988 D-0076: T-219 , p. 13, lines 11-12, p. 19, line 10 – p. 20, line 3. 2989 D-0076: T-219 , p. 13, lines 12-14.

No. ICC-02/04-01/15 462/1077 4 February 2021

feared that he was no longer able to perform the tasks the LRA had assigned to him and

2990 would be killed, he managed to escape from the LRA. Richard Otim testified that he

2991 stayed with the LRA from about four days to a week before managing to escape. The

Chamber considers Richard Otim’s testimony credible, detailed and specific.

P-0249 and his wife: At the time of the attack, P-0249 was a trader within the Pajule

2992 trading centre. According to P-0249, the gunshots carried on until they reached his

2993 doorstep and LRA fighters began to kick his door and fired a bullet into his house. P-

0249 testified that his wife opened the door of the house and they came out of the

2994 house. P-0249 stated that he and his wife were bound around the waist with ropes that

2995 were normally used for tying cattle. P-0249 testified that the LRA fighters tied his

2996 waist together with another person; however other people were bound differently. The

Chamber recalls the above determination that P-0249’s identification of Dominic

2997 Ongwen in the trading centre was credible and reliable. P-0249 credibly testified that

2998 Dominic Ongwen was in charge of the rebels who abducted him and his wife. P-0249

testified that he was given about two or more basins of beans to carry, which the LRA

2999 poured into a sack and put on his head and he carried as they walked. P-0249 testified

3000 that until the LRA arrived at the RV location, he was carrying food. After they left

3001 the RV, the witness carried a stretcher with an injured LRA soldier. P-0249 testified

3002 that he still has scars on his shoulders from carrying the injured LRA soldier.

According to P-0249, the injured soldier was very heavy and he carried him with another

3003 person. P-0249 testified that abductees could not escape because they were being

‘protected’ by the rebels. 3004 P-0249 explained that the abductees did not have the

2990 D-0076: T-219 , p. 13, line 18 – p. 15, line 19, p. 22, line 11 – p. 23, line 1. 2991 D-0076: T-219 , p. 13, line 18 – p. 15, line 18, p. 21, lines 1-4, p. 22, line 11 – p. 23, line 1. 2992 P-0249: T-79-CONF, p. 9, lines 1-5. 2993 P-0249: T-79 , p. 10, lines 16-19. 2994 P-0249: T-79 , p. 10, lines 20-21. 2995 P-0249: T-79 , p. 10, lines 20-22. 2996 P-0249: T-79 , p. 31, lines 14-18. 2997 See paras 1276-1279 above, the Chamber’s discussion of Dominic Ongwen’s role in the attack. 2998 P-0249: T-79 , p. 12, lines 12-13, p. 14, lines 11-18. 2999 P-0249: T-79 , p. 22, line 14 – p. 23, line 2. 3000 P-0249: T-79 , p. 47, lines 19-22. 3001 P-0249: T-79 , p. 47, line 19 – p. 48, line 1. 3002 P-0249: T-79 , p. 47, line 19 – p. 48, line 1, p. 53, line 11 – p. 54, line 5. See photographs of P-0249’s injuries: UGA-OTP-0238-0804; UGA-OTP-0238-0805. 3003 P-0249: T-79 , p. 48, line 16 – p. 50, line 1. 3004 P-0249: T-79 , p. 28, lines 10-17.

No. ICC-02/04-01/15 463/1077 4 February 2021

freedom to move anywhere, ‘[y]ou were like a prisoner, and every now and then you will

be guarded’. 3005 Abductees were unbound so that they could carry items and then bound

3006 behind their backs at night. P-0249 testified that after the rebels separated in groups

3007 and moved in different directions; he moved with Dominic Ongwen’s group. After

about two weeks of being with the LRA, P-0249 was no longer able to walk further, LRA

3008 fighters beat him until he was unconscious and left him. The witness managed to drag

3009 himself for nine days trying to get home. The Chamber considers P-0249’s testimony

to be credible. It was detailed, contextualised, specific and corroborated by other

witnesses’ similar accounts of their experiences during their abduction.

Benson Ojok and other abductees: Benson Ojok, then a 15 year old boy, was staying

at a house in the Pajule side of the camp, with two other boys, around 16 and 17 years

old, when he woke up to the sound of the kicking of doors, plastic whistles and

3010 gunshots. The two other boys in the house escaped and Benson Ojok was alone when

a rebel knocked on the door and said that anyone inside the house should come out or

3011 they would be shot. The LRA fighter pushed open the door and Benson Ojok fell

3012 because he had been standing behind it. According to Benson Ojok, the LRA fighter

3013 was about 19 years old, and carried an AK-47 and a bayonet knife. Benson Ojok

testified that the LRA fighter grabbed him, took his shirt off and used the shirt to tie

3014 Benson Ojok’s hands together. Then the LRA fighter took Benson Ojok to another

house in the trading centre and abducted a man and three boys; two of the boys were

3015 about ten and nine years old and one was even younger. The abductees were tied

3016 together around their waist and their hands were freed. Their shirts were removed and

3017 if they had been wearing good footwear, it was removed from them. Benson Ojok

saw other people who had just been abducted in the camp, including boys about 15 years

3005 P-0249: T-79 , p. 28, lines 13-17. 3006 P-0249: T-79 , p. 52, lines 18-25. 3007 P-0249: T-79 , p. 41, lines 17-23, p. 43, line 18 – p. 44, line 7. 3008 P-0249: T-79 , p. 67, lines 6-23, p. 72, line 17 – p. 73, line 19. 3009 P-0249: T-79 , p. 72, line 17 – p. 74, line 12, p. 77, lines 3-6; T-79-CONF, p. 74, lines 12-16. 3010 P-0061 Statement, UGA-OTP-0144-0043-R01, at paras 8-13. 3011 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 13. 3012 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 13. 3013 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 14. 3014 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 3015 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 3016 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 3017 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 19.

No. ICC-02/04-01/15 464/1077 4 February 2021

3018 old and below and girls about ten and 11 years and older. The youngest abducted boy

3019 Benson Ojok saw was about nine years old. In his estimation, the oldest male abductee

3020 was around 35 years old and the oldest female abductee about 30 years old. Benson

Ojok testified that he saw his friend Ocaya as well as a teacher from his school among

3021 3022 the abductees. Benson Ojok was given a crate of soda to carry on his head. Benson

Ojok testified that the LRA fighters threatened the abductees that they would be killed if

3023 they threw away the items they were carrying. Benson Ojok was integrated into the

3024 LRA before he eventually escaped. The Chamber finds Benson Ojok’s testimony

about his abduction credible and reliable. It was detailed, specific and rich with the details

that showed that he spoke of his personal experiences.

Dick Okot and his family members: Dick Okot, who lived in the Pajule trading centre,

testified that the LRA fighters broke down his door, entered into his house and brought

3025 him out along with his wife, his brother, his sister and her children. Dick Okot testified

3026 that one of his neighbours was also brought out. Dick Okot testified that the door to

his house was a steel door so it was not easy to break; the LRA attackers used an axe to

3027 break down the wall and bring down the door. Two armed LRA fighters entered the

3028 house and ordered the inhabitants out and told them to sit down. According to Dick

Okot, when he came outside, he saw around 14 LRA fighters, a mixture of men and

3029 women, out in front of the shops and spread around the house and buildings there.

Dick Okot testified that when he was taken out of the house, LRA fighters tied his arms

behind his back with a rope and his brother’s arms were also tied and they were ordered

3030 to start moving. Dick Okot testified that he was bare foot and only wearing underwear

3031 and had a light vest over his chest. Dick Okot testified that among his abductors was

3018 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 19. 3019 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 19. 3020 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 19. 3021 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 19. 3022 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 18. 3023 P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 24. 3024 See P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 61. 3025 P-0067: T-125 , p. 8, lines 13-21. 3026 P-0067: T-125 , p. 12, lines 6-9. 3027 P-0067: T-125 , p. 8, lines 19-25. 3028 P-0067: T-125 , p. 9, lines 4-12. 3029 P-0067: T-125 , p. 9, line 20 – p. 10, line 1. 3030 P-0067: T-125 , p. 11, line 21 – p. 12, line 2. 3031 P-0067: T-125 , p. 12, lines 3-4.

No. ICC-02/04-01/15 465/1077 4 February 2021

3032 a commander named Lapwony Odongo from the Trinkle brigade. Dick Okot testified

that there were children among the group of civilians and that the LRA commander

Odongo told the abductees that ‘[w]e will show you that it is not good to stay in the camp.

We will take you guys, we will take the older people. But the children, we will burn them

inside the house’. 3033 Dick Okot testified that Odongo sent his bodyguards to go and

collect fire but then the helicopter gunship arrived and he ordered the adults in the group

3034 to get up and move. Dick Okot testified that after the helicopter arrived, the LRA

3035 fighters and their adult abductees started moving away from the camp. Dick Okot

testified that his hands were tied when he left the camp with his abductors but he was

unbound when the LRA came across a woman who was carrying a sack of groundnuts

3036 and LRA fighters picked up the sack for him to carry. Dick Okot testified that his

brother Okello David, his wife Grace Aringo and Janet Acan were abducted and in his

3037 group as he left Pajule IDP camp. Dick Okot testified that he stayed with the LRA for

3038 about three weeks to a month before he escaped. Dick Okot testified that he was to be

3039 tied when sleeping at night. The Chamber recalls its assessment of Dick Okot’s

credibility and notes that in this account of his abduction, the witness was clear, internally

consistent, detailed and specific. His testimony was also corroborated in part by Okema

Brown, the camp commandant of the Pajule side of the camp, who testified that Dick

Okot was one of the returned abductees that he spoke with about the persons who

3040 commanded the attack.

Rwot Joseph Oywak: Rwot Oywak testified that he heard gunshots the morning of the

3041 attack, as well as people screaming and crying. According to Rwot Oywak, armed

3042 LRA fighters kicked down the door of his house and ordered him to leave the house.

Rwot Oywak testified that he was kicked and hit with the butt of a gun and pushed out

3032 P-0067: T-125 , p. 11, lines 9-16. It is noted that P-0067 testified that Odongo himself mentioned that he was under the Trinkle battalion. 3033 P-0067: T-125 , p. 12, lines 6-11. 3034 P-0067: T-125 , p. 12, lines 12-17. 3035 P-0067: T-125 , p. 13, line 24 – p. 14, line 1. 3036 P-0067: T-125 , p. 14, lines 2-4, p. 22, line 20 – p. 23, line 2; T-126 , p. 9, lines 9-12. 3037 P-0067: T-125 , p. 23, lines 20-25. 3038 P-0067: T-125 , p. 43, line 21 – p. 44, line 17. 3039 P-0067: T-125 , p. 37, lines 5-12. 3040 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 20. 3041 P-0009: T-81 , p. 11, line 25 – p. 12, line 3. 3042 P-0009: T-81 , p. 12, lines 3-8, p. 16, line 17 – p. 17, line 2.

No. ICC-02/04-01/15 466/1077 4 February 2021

3043 of the house. Rwot Oywak stated that he started walking and joined the people,

3044 including his neighbour, who had been abducted. Rwot Oywak testified that there

were men, women and children among the abductees, from the ages of 12 to 50, some of

3045 whom were carrying items LRA looted from civilians. Rwot Oywak testified that

once the group was on the main road, LRA fighters gave him a heavy sack of rice to carry

3046 and he was hit and told to move with the people. Rwot Oywak insisted that any

statement that he did not in fact carry luggage is not correct, explaining further ‘[i]t could

be he’s saying the correct thing because you carry luggage and then you pass on to

another person as you’re moving. Along the way, you carry for some time and then you

pass it on to another person. So he could have seen because I did not carry right from

Pajule up to Latanya’. 3047 The Chamber recalls its conclusion above that Rwot Oywak

3048 credibly identified Dominic Ongwen as being at the trading centre in Pajule. Rwot

Oywak also testified that Dominic Ongwen hit and kicked him and ordered him to sit

3049 3050 down. When the group started walking, Dominic Ongwen was kicking him and

3051 other people. Rwot Oywak stated that as they moved along, whoever was unable to

3052 walk was left behind and the LRA continued to add people as they moved along. Rwot

Oywak testified to walking six to eight miles from Pajule before eventually reaching the

3053 RV location. As is discussed further below, Rwot Oywak was released along with

3054 other abductees the day after the attack.

Multiple witnesses testified about Rwot Oywak’s abduction and his treatment by the

LRA. P-0249 largely corroborates his account. Camp resident P-0249 indicated that

3055 Rwot Oywak was abducted by Dominic Ongwen’s group. P-0249 testified that ‘Rwot

3056 Oywak’ was abducted by an armed ‘kadogo’. According to P-0249, the fighter had

taken Rwot Oywak’s shirt off and brought him to meet with the others while the group

3043 P-0009: T-81 , p. 12, lines 7-8. 3044 P-0009: T-81 , p. 12, lines 10-13. 3045 P-0009: T-81 , p. 17, lines 10-19. 3046 P-0009: T-81 , p. 12, lines 13-15, p. 17, lines 3-9; T-82 , p. 78, lines 2-16. 3047 P-0009: T-82 , p. 78, line 17 – p. 79, line 3. 3048 See paras 1272-1273 above. 3049 P-0009: T-81 , p. 12, lines 18-20, p. 19, lines 15-20; T-82 , p. 80, line 18 – p. 81, line 9. 3050 P-0009: T-81 , p. 13, lines 1-2. 3051 P-0009: T-81 , p. 13, lines 1-3, p. 19, lines 15-21. 3052 P-0009: T-81 , p. 13, lines 8-10. 3053 P-0009: T-81 , p. 13, lines 21-23, p. 22, lines 20-25. 3054 See para. 1366 below. 3055 P-0249: T-79 , p. 44, lines 14-19. 3056 P-0249: T-79 , p. 21, lines 14-18, p. 23, lines 3-9.

No. ICC-02/04-01/15 467/1077 4 February 2021

3057

was branching off to go into the bushes from the camp. P-0249 testified that he

believed the kadogo had found Rwot Oywak in his house and brought him to his

3058

commander. P-0249 testified that a soldier asked the kadogo if he knew who he had

abducted and told the boy to give Rwot Oywak his shirt back and not to touch or beat

3059

him or give him luggage to carry. P-0249 testified that the group continued on and

Rwot Oywak was the only person among the abductees who was not carrying anything,

3060

while everyone else had heavy loads on their heads. P-0249 testified that no harm was

done to Rwot Oywak, that he ‘appeared to be free while, while he was there’ and it was ‘possible for him to do anything’.

3061

P-0249 testified that he did not see Rwot Oywak

speaking with Dominic Ongwen along the route of retreat from Pajule camp but P-0249

saw Dominic Ongwen sit together with Rwot Oywak at the gathering with all the other

3062

commanders. Camp resident P-0006 testified that Rwot Oywak was among the

persons abducted from Pajule by the LRA fighters and that she saw him outside the camp

3063

at a stream when the group stopped briefly. P-0006 testified that when she saw him,

3064

he had all his clothes on and he had been given rice to carry. P-0006 and P-0249, who

both testified to seeing Rwot Oywak at an early point in his abduction, corroborate his

account that he was abducted and initially treated like the other abductees. The Chamber

does not consider it dispositive that P-0249 did not also testify to seeing Rwot Oywak carry a bag of rice. Other witnesses also testify as to the LRA’s treatment of Rwot Oywak

3065

in the course of the attack.

3057 P-0249: T-79 , p. 21, lines 15-20. 3058 P-0249: T-79 , p. 22, lines 5-10. 3059 P-0249: T-79 , p. 21, lines 15-22, p. 22, lines 11-15; T-80 , p. 33, lines 1-20. 3060 P-0249: T-79 , p. 21, lines 23-25. 3061 P-0249: T-79 , p. 21, line 25 – p. 22, line 1; T-80 , p. 34, lines 7-13, p. 36, lines 15-21. 3062 P-0249: T-80 , p. 33, lines 21-25. 3063 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 35. 3064 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 35. 3065 D-0076: T-219 , p. 18, line 22 – p. 19, line 6, p. 39, line 4 – p. 40, line 2 (testifying that Joseph Oywak was the only person not given anything to carry. From Richard Otim’s observation, Rwot Oywak was relaxed and did not look like he was in fear or under threat. He did not see Rwot Oywak being beaten during the gathering where the abductees were addressed by Vincent Otti); P-0081 Statement, UGA-OTP-0070-0029-R01, at para. 43; P-0081: T-118 , p. 40, line 16 – p. 41, line 16 (testifying that he knew Rwot Oywak from home and saw him at the RV point; Rwot Oywak was wearing his shirt and a watch and was wearing shoes unlike the other abductees. Before Vincent Otti addressed the abductees, P-0081 saw Rwot Oywak shaking hands with Vincent Otti and they both looked happy and were laughing and even hugged); D-0081: T-220 , p. 30, lines 10-21 (testifying that during the walk to the meeting place, Rwot Oywak was conversing and laughing with LRA commander Raska Lukwiya. Rwot Oywak looked different than the rest of the abductees because they did not remove his clothes and he was not carrying any luggage); P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 127, 130 (testifying that Joseph Oywak told him that when the rebels discovered that he was one of the abductees, he was separated from the others and treated differently from the other abductees. P-0084 was also told by other abductees that Rwot Oywak

No. ICC-02/04-01/15 468/1077 4 February 2021

The Chamber is satisfied that this evidence demonstrates that Rwot Oywak was abducted by force and initially treated harshly by the LRA. In this context, the Chamber notes the 10 October 2003 communication in which Vincent Otti reports on the attack on Pajule to Joseph Kony, and states that ‘he instructed soldiers to target all the big pple in Pajule 3066 including Oywak and the priests’. P-0085 also testified that Vincent Otti reported Rwot Oywak’s abduction to Joseph Kony after the operation and the people had 3067 returned. However, neither P-0006 nor P-0249 corroborates his account that he was beaten by Dominic Ongwen. In the Chamber’s view, given Rwot Oywak’s position and fame in the community, had he been beaten by Dominic Ongwen in a public setting, other witnesses who testified in these proceedings would have mentioned it. P-0249, who testified to also being abducted by Dominic Ongwen’s group and noted Rwot Oywak’s abduction by that same group, should certainly have observed or heard about the beating had it occurred in that manner. Rather, the evidence indicates that P-0249’s above account is credible and reliable in that after being recognised as the Rwot, LRA fighters no longer mistreated Rwot Oywak.

Charles Bongomin, Oryema Kadogo, Sunday Abalo, Charles Ayela: testified that , Charles Bongomin, was captured by the LRA during the attack on Pajule 3068 IDP camp and held captive for about a month. testified that 3069 he was abducted by Dominic Ongwen. testified that when the LRA fighters and their abductees left Pajule, they joined a bigger convoy under Vincent Otti’s leadership. 3070 testified that Oryema Kadogo was 3071 also abducted by the LRA. testified that Oryema Kadogo 3072 was in Dominic Ongwen’s group as an abductee. testified that Oryema Kadogo when he was walking with the LRA, his feet were swollen and he was beaten and left for dead, until he was found by the government soldiers pursuing the 3073 LRA, who took him to the hospital. testified that Oryema Kadogo remains

was not treated like other captive but was able to move freely with the rebel commanders and had meetings with them that the abductees could not hear). 3066 See para. 1375 , discussing ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547-48. 3067 P-0085: T-158 , p. 41, lines 10-12. 3068 3069 3070 3071 3072 3073

No. ICC-02/04-01/15 469/1077 4 February 2021

3074 disabled to this day. In addition, testified that Sunday Abalo

3075 was in Dominic Ongwen’s convoy. According to , Sunday Abalo

3076 stayed in the bush and escaped in 2004. testified that Charles Ayela was also

3077 abducted by the LRA. testified that Charles Ayela was in

Dominic Ongwen’s group. 3078 testified that Charles Ayela in the

movement from the camp, he encountered Patrick Acire, an LRA abductee who had been

3079 taken after and was in Odhiambo’s group. testified that Charles Ayela

3080 had to carry an injured person during the retreat from the camp. testified that

when Patrick Acire escaped, had met Charles Ayela in the bush,

but that there was nothing he could do to help Charles Ayela because he was in a different

3081 group. While recounts the accounts , the Chamber

considers this hearsay testimony to be sound evidence corroborative of the other reliable

evidence that Dominic Ongwen and his fighters abducted civilians from the trading

centre of the camp and forced them to work for the LRA.

Concy Ayet and other abductees: testified that his , Ayet

Concy, was abducted from Pajule as was a boy name Ogen and two men, Opira and

3082 Okumu. testified that after seeing his sister among the abductees Dominic

Ongwen agreed to help him ensure that she was released; when could not find

3083 his sister Dominic Ongwen told him that he supposed she had already been released.

The Chamber considers his account here credible and further proof that the LRA

abducted civilians from Pajule IDP camp.

Santo Oweka: Santo Oweka testified that about an hour after he first heard gunshots in

3084 the camp, LRA fighters kicked open his door and broke into his house. The LRA

3085 fighters pulled him out of his hut. Santo Oweka testified that when he came out, he

3074 3075 3076 3077 See also P-0249: T-79-CONF, p. 23, line 22 – p. 24, line 5; D-0081: T-221 , p. 46, line 14 – p. 47, line 11. 3078 3079 3080 3081 3082 3083 3084 D-0081: T-220 , p. 24, lines 1-4, p. 25, lines 1-4; T-221 , p. 44, lines 8-18. 3085 D-0081: T-220 , p. 24, lines 6-7.

No. ICC-02/04-01/15 470/1077 4 February 2021

saw so many abductees outside and some gun-wielding people who were giving items to

3086 the abductees to carry. Santo Oweka testified that he was initially given a box of soap

3087 to carry, and then later he was made to carry an injured person, Odong Murefu. Santo

3088 Oweka stayed in the LRA for about five months. The Chamber considers Santo

Oweka’s account of his abduction credible and reliable. P-0249 also corroborates this

3089 account.

David Okwera: David Okwera lived just east of the Pajule market on the Pajule side of

the camp. David Okwera testified that a rebel came into his house and took him to the 3090

market where there were many LRA fighters and many abductees. 3091 David Okwera

stated that the LRA gave him three basins of rice to carry. 3092 David Okwera testified that

the abductees walked through the bush with the LRA in front and behind. 3093 He stated

that this formation was so the LRA could protect people from ambushes and pursuing

forces. 3094 David Okwera stated that he escaped from the LRA after about six weeks. 3095

Other abductees: Camp residents provided relevant, credible and mutually

corroborative accounts of other residents abducted by the LRA. Omona Lokilamoi, a

Pajule local government official, testified that Francis Kitara and George, both officials

3096 of Pajule camp were abducted during the attack. Both Francis Kitara and George were

3097 with the rebels for about two months before escaping. According to P-0084, the LRA

abducted Ronald Labeja, a student of Kitgum High School named Christopher, Celestino,

3098 Vincent Okot and Ocana, among others. All but Ocana returned to the camp a few

3099 days after the attack; Ocana was with the rebels for about one month. P-0249 testified

that his wife was abducted as was Charles Abonga, David Otti Moyo, Christine and a

3086 D-0081: T-220 , p. 24, lines 7-9. 3087 D-0081: T-220 , p. 24, lines 10-12; T-221 , p. 46, lines 1-10. 3088 D-0081: T-220 , p. 34, lines 11-13. 3089 P-0249: T-79-CONF, p. 40, lines 12-18. 3090 D-0077 Statement, UGA-D26-0022-0316, at para. 2. 3091 D-0077 Statement, UGA-D26-0022-0316, at para. 13. 3092 D-0077 Statement, UGA-D26-0022-0316, at para. 13. 3093 D-0077 Statement, UGA-D26-0022-0316, at para. 16. 3094 D-0077 Statement, UGA-D26-0022-0316, at para. 16. 3095 D-0077 Statement, UGA-D26-0022-0316, at paras 27, 37. 3096 P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 19. 3097 P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 19. 3098 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 122. 3099 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 122.

No. ICC-02/04-01/15 471/1077 4 February 2021

3100

number of other people. Santo Oweka testified that after he returned from the bush,

he learnt that the LRA abducted a woman called Paska, a teacher named Oluge, Opira

Bosco as well as David Otti, Oryema and Ayela, who were all abducted from Pajule IDP

3101

camp and stayed with the LRA for some time before returning back home.

Estimates of the number of persons abducted by the LRA attackers from Pajule IDP camp

3102

on 10 October 2003 range from 100 to 1,210. Pajule camp commandant Brown

explained that it was difficult to ascertain the exact numbers of how many persons were

abducted from the camp because it was assumed that some of the people thought to be

missing had simply run away to relatives outside the camp and people returning reported

3103 3104

to various places. Noting in particular the testimonies of Rwot Oywak and UPDF

3105

soldier P-0084 – who both observed the abductees taken from Pajule IDP camp – the

Chamber is satisfied that the evidence shows that the LRA abducted hundreds of civilians

from Pajule IDP camp.

Abductees carried the looted items to a meeting place where the LRA met after the attackers left Pajule IDP camp. At this meeting point, the LRA collected the looted goods.

3100 P-0249: T-79-CONF, p. 23, line 22 – p. 24, line 5. See also D-0081: T-221 , p. 46, line 14 – p. 47, line 11 (regarding the abduction of David Otti). 3101 D-0081: T-221 , p. 46, line 14 – p. 47, line 11. 3102 P-0309: T-60 , p. 63, lines 15-17; T-63 , p. 11, lines 4-7 (testifying that he saw that there were well over 100 people abducted from Pajule IDP camp); D-0081: T-221 , p. 46, lines 14-16 (testifying that the LRA abducted hundreds of people from Pajule IDP camp); P-0138: T-120 , p. 33, lines 14-15 (testifying that about 300 persons were abducted from Pajule IDP camp); P-0372: T-148 , p. 22, line 23 – p. 23, line 2 (testifying that he estimated that over 300 civilians were abducted from Pajule, children, men and women); P-0047 Statement, UGA-OTP- 0027-0177-R01, at para. 119 (testifying that nearly 300 people were abducted); P-0084 Statement, UGA-OTP- 0139-0149-R01, at para. 88; P-0144: T-91 , p. 48, lines 3-8 (estimating that 400 civilians were captured from Pajule); P-0009: T-81 , p. 14, line 11, p. 23, lines 6-9, p. 79, lines 14-21; P-0007 Statement, UGA-OTP-0147- 0214-R01, at para. 40 (testifying that based on the information he received from people returning from the bush and from information from Rwot Oywak, he estimated that around 700 persons were abducted from Pajule IDP camp in total); D-0076: T-219 , p. 29, lines 9-12 (estimating that up to 700 persons were abducted from Pajule IDP camp); P-0001 Statement, UGA-OTP-0138-0002-R01, at para. 23 (testifying that according to lists collected by the 86 LC-1 chairpersons of Pajule IDP camp between 10 October 2003 and 25 October 2003, there were ‘a combined figure of 1,210 thought to be abducted. Then the next day 500 returned leaving 710 thought to be abducted. Some came back and some remain[ed] missing’). See also 18 September 2004 Letter requesting funds th for joint prayers for peace in memory of LRA attack on Pajule/Lapul IDP camp on the 10 October 2003, UGA- OTP-0138-0284-R01; 27 October 2004 Pajule/Lapule Sub-Counties 10 October 2003, Commemoration Speech, UGA-OTP-0138-0291-R01; Enhanced audio recording, UGA-OTP-0247-1110; P-0016: T-33 , p. 54, lines 18-22 (in the 13-14 October 2003 intercepted radio recording, Otti states that ‘200 to 300 people’ were gathered from Pajule). 3103 P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 50. 3104 P-0009: T-81 , p. 14, line 11, p. 23, lines 6-9 (testifying that he estimated that there were about 400 to 500 abductees at the meeting place where the various LRA groups that had conducted the attack re-converged). 3105 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 88 (testifying that he saw at least more than 300 abducted civilians in the group leaving the camp after the attack).

No. ICC-02/04-01/15 472/1077 4 February 2021

Looted items were distributed within the LRA, including within Dominic Ongwen’s

3106

group.

The evidence shows that abducted civilians took the items they were carrying to the

LRA’s chosen destination. 3107 P-0138 testified that after the attack at the meeting point

3108 he saw the food that was pillaged from Pajule IDP camp. Charles Lokwiya testified

that when he arrived back at the meeting point, he saw food that had been taken from the

3109 centre of Pajule IDP camp. Similarly, P-0015 testified that she was present when LRA

soldiers returned from the attack on Pajule and they came back with items such as sweets,

3110 biscuits, cooking oil and clothes. P-0081 testified that at the RV location, he saw

people carrying items, these items would have been taken out of their homes or from the

3111 shops. P-0101, one of Dominic Ongwen’s so-called ‘wives’, corroborated these

accounts, confirming that she saw Dominic Ongwen return from the attack in Pajule with

3112 luggage.

Rwot Oywak also testified that at the gathering place, the LRA collected all the food

3113 items from the abductees. P-0330 testified that once the LRA was back at the meeting

point, the looted items were distributed amongst the LRA, including to Dominic

3114 Ongwen’s group. P-0330 testified that Opige, a commander in Dominic Ongwen’s

3115 group, was among the people distributing the looted items.

At the meeting point, Vincent Otti and other commanders addressed the abductees. Vincent Otti told abductees that the LRA reproached the civilians for settling in IDP camps set up by the government, and that there was a punitive nature to the LRA’s attack on the camp. Dominic Ongwen also spoke to a group of abductees, telling them that

3106 Para. 155 above. 3107 P-0330: T-52 , p. 9, line 20 – p. 10, line 1 (testifying that the civilians were told to put down their items and most were released); P-0047 Statement, UGA-OTP-0027-0177-R01, at para. 124 (stating that returned abductees told him that they were released after they brought loot to the places where the LRA wanted them to bring the loot, in Lira district and Soroti); P-0138: T-120 , p. 45, lines 10-22 (stating that abductees arrived at the RV location carrying food that had been pillaged from the camp); P-0209: T-160 , p. 31, line 22 – p. 32, line 14 (testifying that the LRA fighters who went to Pajule IDP camp came back with civilians who were carrying items on their heads). 3108 P-0138: T-120 , p. 41, lines 10-16. 3109 D-0134: T-240-CONF, p. 63, line 17 – p. 64, line 1. 3110 P-0015 First Statement, UGA-OTP-0043-0131-R01, at para. 92. 3111 P-0081: T-118 , p. 34, line 16 – p. 35, line 3. 3112 P-0101: T-13 , p. 26, lines 6-13. 3113 P-0009: T-81 , p. 24, lines 12-14. 3114 P-0330: T-52 , p. 10, lines 5-8. 3115 P-0330: T-52 , p. 10, lines 9-11.

No. ICC-02/04-01/15 473/1077 4 February 2021

anyone who escaped or dropped looted goods would be killed and that abductees would

3116

be trained as soldiers.

The evidence shows that at the RV location, Vincent Otti and other commanders spoke

3117 to abductees before ordering the release of some. In this context, the Chamber notes

a police report dated 13 October 2003 concerning the LRA’s attack on Pajule IDP

3118 camp. The report states:

On […] 11.10.2003 during day time at Pajule T/C in Aruu city, Pader District (.) 504 former abductees reportedly released by rebels, returned (.) They included Rwot Joseph Oywak the Acholi Traditional Chief of Koyo Lalogi […] who was abducted on 10.10.2003 with several others (.) The former captives were reported to have said that they were addressed by Maj. Gen Otti Vincent, Brig. Tolbert Nyeko Yadi, Brig. Kolo and Lt. Col. Opiru before their released […] that the rebel commanders said their aim to attack Pajule T/C was to discipline the people in the area and that the release was not because of pressure from UPDF but because they th were innocent civilians (.) the October 10 attack was reported to have been commanded by Lokwiya Raska who is said to be the LRA’s deputy army commander […]. 3119

Rwot Oywak testified that Vincent Otti introduced his soldiers, including Dominic

3120 Ongwen, Acel Calo Apar, and Raska Lukwiya. Rwot Oywak testified that Dominic

3121 Ongwen was the person who took abductees from Pajule. Rwot Oywak also testified

that after arriving at the RV location, Dominic Ongwen went and spoke with Vincent

3122 Otti. John Lubwama stated that Rwot Oywak did not mention that he saw Dominic

Ongwen at the RV location when he was debriefed on the attack; John Lubwama noted

3123 that he could not remember the other names mentioned by Rwot Oywak. Given the

3124 discussions of Rwot Oywak’s testimony in relation to Dominic Ongwen, as well as

the testimonies of P-0144, P-0249 and Dick Okot that they saw Dominic Ongwen at the

3116 Para. 156 above. 3117 P-0009: T-81 , p. 14, line 4 – p. 16, line 5; D-0076: T-219 , p. 19, lines 7-9; P-0144: T-91 , p. 48, line 25 – p. 49, line 4; P-0249: T-79 , p. 37, line 25 – p. 40, line 6. See UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6160-61 (On 10 October 2003 at 13:00, Otti is recorded as stating to Kony that ‘he is going to release the civilians who were abducted to carry food stuffs charged if he finishes talking to them as Kony agreed […]’). 3118 Police Intelligence Report, UGA-OTP-0256-0335. P-0126 authenticated the report. See P-0126 Second Statement, UGA-OTP-0264-0002-R01, at para. 68. P-0126 stated that he signed the report and the information contained within it was derived from human intelligence sources. See P-0126 Second Statement, UGA-OTP-0264- 0002-R01, at para. 68. The Chamber is satisfied that the report reflects information known by the Ugandan police in relation to the 10 October 2003 Pajule IDP camp attack. 3119 Police Intelligence Report, UGA-OTP-0256-0335. 3120 P-0009: T-81 , p. 15, lines 9-11. 3121 P-0009: T-81 , p. 16, lines 1-3. 3122 P-0009: T-81 , p. 14, lines 2-3. 3123 P-0047: T-115 , p. 39, lines 10-12; P-0084 Statement, UGA-OTP-0139-0149-R01, at paras 128, 131. 3124 See paras 1272-1274 above.

No. ICC-02/04-01/15 474/1077 4 February 2021

3125 RV after the attack, John Lubwama’s testimony does not undermine the Chamber’s view that Rwot Oywak is credible in this aspect of his testimony. The Chamber is satisfied that the evidence shows that Dominic Ongwen was present at the RV location after the attack.

According to Rwot Oywak, Vincent Otti addressed the gathered abductees and said:

You, the people of Pajule, you thought that we would not come to you, haven’t we come? Haven’t we come? We are going to kill all of you […]. We are fighting to 3126 overthrow the government, but at the moment you are supporting the UPDF.

The Chamber notes also that P-0084 corroborates Rwot Oywak’s account, stating that

after the attack, Rwot Oywak told him that Vincent Otti said that Pajule was attacked because:

First, the people of Pajule were not supporting the rebels but were accusing and reporting them to the government troops so that the rebels wanted to show them their power that the people are not protected and the rebels can do anything. Secondly, because the people were allowing their children to be recruited as LDUs. Thirdly, that the rebels did not want the peace talks, as earlier on they had been meeting in peace talks, because the government troops were fighting them. Fourthly, they thought that the people should leave the camps and go back to their 3127 homes.

P-0138 testified that Vincent Otti spoke with Rwot Oywak about the strength of the LRA 3128 and that the UPDF was not able to properly protect the camps. Santo Oweka also testified about the address, and specifically that Vincent Otti stated that ‘he was happy to meet the people and he was telling the people that people should leave the camps, people should not stay in the camps. The reason why they went to Pajule was not to go and fight and attack the civilians or cause any harm to the civilians, they went there to fight with their enemies, who were the UPDF soldiers’. 3129 Santo Oweka stated that Vincent Otti continued that the civilians would be caught in the crossfire if they stayed in the camps, that the LRA had been telling civilians to leave the camps but that the civilians did not heed the LRA’s words and getting hurt ‘is the result of the defiance’. 3130

3125 P-0144: T-91 , p. 48, lines 1-2; P-0249: T-79 , p. 37, line 25 – p. 38, line 6; P-0067: T-125 , p. 33, lines 21-25. 3126 P-0009: T-81 , p. 14, lines 4-6, lines 19-20; see also p. 24, lines 12-25. 3127 P-0084 Statement, UGA-OTP-0139-0149-R01, at para. 127. 3128 P-0138: T-120 , p. 45, line 25 – p. 46, line 8. 3129 D-0081: T-220 , p. 28, lines 17-22. 3130 D-0081: T-220 , p. 28, line 23 – p. 29, line 6.

No. ICC-02/04-01/15 475/1077 4 February 2021

Dick Okot stated that Vincent Otti said that the LRA did not want people to stay in the

3131 camp and that they should stay in their homes. He testified also that an old man asked

3132 Vincent Otti why the rebels did not return home. According to Dick Okot, Vincent

Otti responded that the LRA was in the process of overthrowing the Ugandan government

3133 and could therefore not come back home. Dick Okot testified that Vincent Otti also

3134 said that if the civilians continued to stay in the camps, the LRA would kill them.

The Chamber considers that the witnesses’ testimony regarding Vincent Otti’s speech is

substantively similar. Each witness testifies that Vincent Otti indicated that the LRA

reproached the civilians for settling in IDP camps set up by the government, and that

there was a punitive nature to the LRA’s attack on the camp. 3135

P-0249 testified that Dominic Ongwen also addressed abductees saying anyone who tried

to escape or dropped looted goods would be killed and that the abductees would be

3136 trained to be soldiers. The Chamber finds P-0249’s account credible and notes that P-

0249 testified that he moved with Dominic Ongwen’s group for several weeks. Thus

while it is unclear whether Dominic Ongwen spoke to the entire group of abductees taken

3137 from Pajule, the Chamber is satisfied that Dominic Ongwen at least spoke to the group

of abductees in his custody.

After the fighters returned from the camp, some abductees remained in the LRA and

3138

were distributed to various units, including among Dominic Ongwen’s group.

In the course of the retreat, some abductees managed to escape or were rescued, either

during the course of the retreat with the arrival of the helicopter or in the weeks and

3139 months after their abduction. Older abductees were released the day after the attack,

3131 P-0067: T-125 , p. 34, lines 14-25. 3132 P-0067: T-125 , p. 38, lines 2-7. 3133 P-0067: T-125 , p. 38, lines 8-12. 3134 P-0067: T-125 , p. 38, lines 11-21. 3135 See sections IV.C.4 and IV.C.6.ii.a above, the Chamber’s discussion of the LRA’s objectives and policies and of the preparation for the attack on Pajule IDP camp. 3136 P-0249: T-79 , p. 39, line 23 – p. 40, line 6. 3137 See P-0144: T-91 , p. 48, line 25 – p. 49, line 4 (indicating that Vincent Otti alone spoke in the large gathering of abductees). 3138 Para. 157 above. 3139 P-0101: T-13 , p. 26, lines 19-22 (testifying that when after the Pajule attack, a government helicopter came and shot at people, some civilians managed to escape); P-0008 Statement, UGA-OTP-0137-0002-R01, at para. 21 (stating that abductees, who managed to escape when the helicopter came, came back to camp on their own); P- 0007 Statement, UGA-OTP-0147-0214-R01, at para. 20 (testifying that his neighbour Masimino Oyat had been

No. ICC-02/04-01/15 476/1077 4 February 2021

along with Rwot Oywak, and younger abductees were retained and continued with the

3140

LRA.

Witnesses report that the civilians that continued with the LRA were distributed into the

3141

households of LRA commanders. Abductees were also distributed to Dominic

Ongwen. P-0309 testified that some civilians were distributed to Dominic Ongwen’s

3142

household. P-0144’s testimony is consistent with P-0309; he stated that the abductees

were distributed to the various units, including those of Dominic Ongwen, Bogi and

3143

Raska Lukwiya. P-0144 testified that there were girls and women among the

abductees distributed within the LRA, including the abductees distributed to Dominic

3144

Ongwen. P-0101, one of Dominic Ongwen’s so-called ‘wives’, confirmed that she

saw Dominic Ongwen return from the attack in Pajule with seven civilians he had

3145

abducted from Pajule, this included four young girls and three men.

P-0006 testified that younger girls were taken to the commanders’ ‘wives’ to act as

3146

babysitters, called ting-tings and older girls were given as ‘wives’ to the commanders.

abducted by the LRA to carry sodas and returned the day of the attack saying that he had escaped when the government helicopter hovered over the escaping LRA and abductees). 3140 P-0372: T-148 , p. 23, lines 12-14 (testifying that at the rendezvous point, mature abductees were released while the younger abductees were retained), p. 54, lines 1-6 (testifying that the young boys abducted from Pajule remained with the LRA and moved along with them while the older ones were released); P-0006 Statement, UGA- OTP-0144-0072-R01, at paras 36, 45-47 (stating that at the LRA’s meeting place she heard Rwot Oywak say to Vincent Otti that small children, women with children and old men and women could not work as soldiers for the LRA and he would take them back with him. Vincent Otti responded that the mothers with children and old persons would be released but the children would stay and be later released as they were needed to carry items looted from the camp. She heard Vincent Otti instruct his soldiers to count the people who would be released and the figure they came up with was about 160. The people released included mothers with children, small children, older people and Joseph Oywak. The rest of the people continued with the LRA); P-0101: T-13 , p. 27, lines 3-18 (testifying the LRA released the elderly, weak, mothers, and those who could not walk, persons who were healthy and young were kept and moved on with the LRA); P-0144: T-91 , p. 49, line 12 – p. 50, line 2 (testifying that Vincent Otti ordered that the older people should be released and the younger persons remain); P-0309: T-60 , p. 68, lines 11-25, p. 69, lines 14-17 (testifying that some adults were released and returned to the camp with Joseph Oywak); P-0061 Statement, UGA-OTP-0144-0043-R01, at para. 40 (testifying that Rwot Oywak and some other people were released, including older people, very young children and some women); D-0076: T-219 , p. 12, line 17 – p. 13, line 7 (testifying that the LRA and their abductees reached a gathering place where they were addressed by a man who introduced himself as Vincent Otti. Vincent Otti told Joseph Oywak that he would like him to take the elderly, weak and very young children back home. The LRA sorted the abductees; older, disabled or very young people were released with Rwot Oywak. Richard Otim and other abductees continued with the LRA). 3141 P-0309: T-60 , p. 70, lines 12-14 (stating that the civilians who were not released remained behind and were distributed to the various homes of the commanders); P-0372: T-148 , p. 54, lines 16-17 (testifying that some abducted boys were distributed to other brigades); P-0209: T-160 , p. 34, lines 2-16 (testifying that six civilians abducted from Pajule were sent to Trinkle to be soldiers). 3142 P-0309: T-60 , p. 70, lines 20-22. 3143 P-0144: T-91 , p. 51, line 3 – p. 53, line 16, p. 55, line 16 – p. 56, line 3. 3144 P-0144: T-91 , p. 66, line 15 – p. 67, line 7. 3145 P-0101: T-13 , p. 26, lines 9-13. 3146 P-0006 Statement, UGA-OTP-0144-0072-R01, at paras 38-39.

No. ICC-02/04-01/15 477/1077 4 February 2021

Similarly, P-0372 testified that some girls abducted from Pajule were distributed to

become ‘wives’. 3147

Witnesses reported that there were children younger than 15 years old among the

abductees that remained with the LRA. P-0144 testified that younger abductees, from 11

3148 to about 15 to 17 years old, were taken in as newly recruited members of the LRA. P-

3149 0006 testified that the youngest abductees she saw were about twelve years old.

Richard Otim testified that the youngest civilian abductee from Pajule that he saw kept

3150 by the LRA was between 12 and 13. P-0138 testified that he saw young people

between the ages of 10 and 17 years old among the boys and girls abducted from Pajule

3151 who stayed behind. P-0138 stated that he could identify the ages of the abducted

because he was able to identify when somebody was a child and some of them stayed

3152 with his group and he spoke to them and asked questions to determine their ages. P-

0330 offered testimony consistent with these accounts, testifying that a 12 or 13 year old

3153 girl was one of the abductees not released by the LRA.

iv. Report of the attack to Joseph Kony

Vincent Otti, the overall commander for the attack, communicated the results of the

3154

attack to Joseph Kony on the LRA radio communication system.

The Defence argues that the ‘[Government of Uganda] failed to give the Prosecution ISO

tape 694/G, which allegedly contains the intercept audio file from 10 October 2003’. 3155

According to the Defence, this audio file would confirm that Dominic Ongwen did not

command the group which attacked Pajule trading centre and serves as corroborating

3156 evidence of his injury and state of punishment at the time of the attack. Indeed, the

Chamber notes that while Tape 693 and Tape 695 are in the record, there is no Tape

3157 694. However, the contents of Tape 694 can be gleaned from the relevant entries in

3147 P-0372: T-148 , p. 57, lines 13-16. 3148 P-0144: T-91 , p. 49, line 12 – p. 50, line 2. 3149 P-0006 Statement, UGA-OTP-0144-0072-R01, at para. 47. 3150 D-0076: T-219 , p. 34, lines 6-11. 3151 P-0138: T-120 , p. 34, lines 8-12. 3152 P-0138: T-120 , p. 47, lines 5-15. 3153 P-0330: T-52 , p. 11, lines 1-3. 3154 Para. 158 above. 3155 See Defence Closing Brief , para. 315. 3156 Defence Closing Brief , para. 315. 3157 See sections IV.B.3.ii.c and IV.B.3.ii.d below.

No. ICC-02/04-01/15 478/1077 4 February 2021

3158 3159 the ISO logbook, discussed as relevant also below. These logbooks suggests that the intercept evidence from 10 October 2003, discussed below, in which LRA commanders report on and discuss the Pajule attack, appear to have been recorded, in 3160 parts, on Tapes 693 and 694. The logbooks do not confirm the Defence’s allegations and are consistent with the Chamber’s findings, discussed in detail above, about Dominic Ongwen’s role in the LRA’s attack on Pajule IDP camp. Indeed the existence of this Tape

693, and its contents, as well as of the relevant ISO logbook entries concerning also Tape 694, makes the lack of Tape 694 somewhat irrelevant.

A record of an intercepted radio communication – from Tape 693 – involving Vincent Otti and Joseph Kony and others speaking in the morning of 10 October 2003 of the Pajule IDP camp attack was discussed during these proceedings. In the communication, Joseph Kony castigates civilians, saying that ‘civilians are very bad people’ because they 3161 are the ones requesting for the army and they are the ones joining the ‘home guard’. Vincent Otti describes an attack, saying:

[t]here are people who went to homes, there are also people who went to the homes and civilians and there are also people who went everywhere else, were there over […] the way I have organised it if it is done like that, then it is good. Because I have planned that, going for the army will be hard so the bullets should start and go and loot, go to the centre, burn houses more than that of [Atiak] even all civilian 3162 homes should be burnt, anything that is found should be done over.

Vincent Otti and Joseph Kony then discuss the arrival and activity of an army aircraft at 3163 the scene of the attack. The Chamber notes that the transcripts of the radio communication do not expressly mention Pajule IDP camp, however given the day of the communication and the descriptions Vincent Otti provides, it is clear to the Chamber that

3158 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547-51. 3159 See paras 1374-1381 below. 3160 See ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547-48 which refers to the communication at 8:00-8:35 to have been recorded on side B of Tape 693 and side A of Tape 694. 3161 See the Chamber’s discussion of enhanced audio recording, UGA-OTP-0247-1102 at section IV.B.3.ii.c above; P-0003 Tape 693 Transcript, UGA-OTP-0132-0105-R01, at 0134; P-0003: T-43 , p. 3, line 17 – p. 4, line 21; P-0138: T-120 , p. 65, line 25 – p. 68, line 14. 3162 See P-0003 Tape 693 Transcript, UGA-OTP-0132-0105-R01, at 0134; P-0003: T-43 , p. 3, line 17 – p. 12, line 21. P-0003 explained that he understood the ‘people’ referenced by Otti to refer to the LRA. P-0003: T-43 , p. 8, lines 9-17. 3163 See P-0003 Tape 693 Transcript, UGA-OTP-0132-0105-R01, at 0135-36; P-0003: T-43 , p. 3, line 17 – p. 12, line 21.

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the commanders spoke of the Pajule IDP camp attack. This is further proven by the records of the communications in the logbooks prepared by ISO and UPDF officers. The Chamber notes the Defence argument that there exist ‘extreme inconsistencies’ in 3164 the various logbooks. The Defence mischaracterises the contents of these logbooks. While they do not contain all of the same details or language, such differences can be expected of material made by interceptors working in different locations and taking contemporaneous records of radio communications. The Chamber is satisfied that the logbooks, discussed in detail below, contain contemporaneous written records of the radio communications, offer descriptions in line with the radio recording as described above, and connect the attack discussed therein to the attack on Pajule IDP camp.

The following entry appears in a Soroti UPDF logbook entry for 10 October 2003, at 8:00: Otii V. has info. Kony that he has deployed his […] GRPs to go and attack a certain UPDF position and the centre and the mission and Otti V. also said he has instructed Raska who is the o/rall opn. Comdr to deploy as follows:  Dominic’s/Bwona they shd attack the mission to loot drugs and other properties.  Koch-C Bogi shd attac the brrks of UPDF and then Kuma-Kech shd attack the 3165 centre and burn all the civilians houses. The ISO logbook for 10 October 2003 at 8:00 to 8:35 noted the same conversation. It reports Vincent Otti telling Joseph Kony that he sent a ‘big force to attack Pajule trading centre under the com[man]d of Lukwiya Raska’, adding that they have not yet come 3166 back. The logbook records Joseph Kony as intervening by stating that ‘Otti’s main target would have been civilians b[ecau]se they are the ones making UPDF to continue following the LRA’. 3167 Vincent Otti is then recorded as explaining the setup of the attack to Joseph Kony:

3164 Defence Closing Brief , para. 315. The Defence also asserts that none of the logbooks list Dominic Ongwen as going to Pajule trading center, that more than half of the logbooks do not mention Dominic Ongwen, and that D-0134 corroborates that other commanders went to the Catholic mission, the barracks and the trading centre. In this context, the Chamber notes its above detailed discussion about its findings as to Dominic Ongwen’s participation in the attack. 3165 UPDF Logbook (Soroti), UGA-OTP-0254-1991, at 2117. 3166 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547. 3167 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547.

No. ICC-02/04-01/15 480/1077 4 February 2021

Otti told Kony that he deployed in all strategic points. That he send Onyee to go and attack the mission, Bogi to attack the barracks and Ociti Jimmy and Bwona [?] to attack the camps and he instructed them to burn all the houses there. Otti also said he deployed all types of support weapons for that attack and move so to target at mambas and gunships in case they are seen. […] Otti said he instructed soldiers 3168 to target all the big pple in Pajule including Oywak and the priests’

The same logbook entry records that Joseph Kony’s ‘felt so happy with Otti’s plan’. 3169

Further, the same message was also logged by the UPDF in Achol Pii. The logbook for

10 October 2003 at 8:00 notes that Vincent Otti has informed Joseph Kony that he has

made a ‘very strong deployment’ in ‘various positions’ under the commands of ‘Raska

Lukwiya, […], Dominic and Kapere’ to move and attack the mission, IDP camp, trading

3170 centre and the UPDF barracks, and deploy ambushes ‘in all routes’. The logbook also records Vincent Otti as stating that he ‘briefed the comdrs to burn all civs’ houses in the

places’. 3171

P-0138 identifies this radio communication as recording the exchange between Vincent

3172 Otti and Joseph Kony following the Pajule attack and discussing the attack. P-0138

testified that and the LRA did not discuss the

3173 attack on the radio before the day of the attack. P-0138 testified that the morning after

the attack was planned, he heard Vincent Otti tell Joseph Kony that he had prepared

3174 soldiers to go for the attack.

Another intercepted radio recording contains an audio recording of Joseph Kony, Vincent

3175 Otti and others speaking on 13 October 2003, several days after the attack on Pajule

IDP camp. In the intercepted communication, Vincent Otti and Joseph Kony discuss the

3168 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0547-48. See also UPDF Logbook (Gulu), UGA-OTP-0254- 0725, at 1070 (the UPDF Logbook (Gulu) records the following: ‘Otti informed Kony to have deployed many LRA rebels under the command of Brig. Lukwiya Raska to attack all positions in Pajule. He claimed that he heard some bombardment at 0600 hrs where by he is expecting a good result fm Lukwiya Raska.’). 3169 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0548. 3170 UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6159. In this context, the Chamber notes that the logbook also records Raska Lukwiya reporting to Otti later in the same day that he had looted a B10 weapon and had many abductees whom he had ‘abducted this morning’ and that ‘he is moving separately with Dominic, Kapere and Ongyer’. UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6159-60. 3171 UPDF Logbook (Achol Pii), UGA-OTP-0242-6018, at 6159. 3172 P-0138: T-120 , p. 54, line 8 – p. 65, line 24. 3173 P-0138: T-120-CONF, p. 48, lines 10-14, p. 49, lines 6-12. 3174 P-0138: T-120-CONF, p. 48, lines 13-16. 3175 See Enhanced audio recording, UGA-OTP-0247-1110. See the Chamber’s discussion on enhanced audio recording UGA-OTP-0247-1110, at section IV.B.3.ii.d above.

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Pajule attack, the reaction of the government military forces and continue to discuss the 3176 presence and activity of an army aircraft during the attack. Joseph Kony laughs in 3177 response to Vincent Otti’s reference of killings. Logbooks, prepared by UPDF and ISO officers, contain contemporaneous written record of the radio communication.

The following entry of this conversation appears in a ISO logbook entry for 13 October 2003, at 11:00:

Kony asked Otti whether Oywak was among those pple they abducted. Otti said Oywak was among them. He said he talked to about 200-300 people who were abducted from Pajule and even show them the weapons they captured from UPDF. That when the gunships came they shot at it using PKM and other support weapons and this forced the gunships to fly very high in the sky. That civilians truly witness the strength of the LRA and also the weakness of the gunships. That they told him that for them they use to believe that the gunships was so terrible of LRA but now 3178 they have seen with their eyes that gunships are first nothing to LRA.

3179 UPDF logbook entries in Gulu contain a similar description of the same conversation.

P-0138 testified that after the attack, he heard Vincent Otti give a report on the attack to Joseph Kony in which he discussed the Pajule attack, stating that approximately 200 to 3180 300 people had been abducted and a B-10 gun captured.

D-0032 testified that the day after the attack he heard Vincent Otti giving a report on the military radio in which he stated that many civilians had been abducted in Pajule and 3181 some killed and houses burned and that Joseph Kony laughed in response. While the communication discussed above takes place several days after the attack, the Chamber is of the view that the witness described and corroborated the account heard in the intercepted radio communication.

3176 See Enhanced audio recording, UGA-OTP-0247-1110; P-0003 Tape 695 Transcript, UGA-OTP-0132-0243- R01, at 0265, 0267; P-0003: T-43 , p. 12, line 22 – p. 17, line 25; P-0138: T-120 , p. 54, line 8 – p. 65, line 24; P- 0016: T-33 , p. 53, line 13 – p. 55, line 10. 3177 See Enhanced audio recording, UGA-OTP-0247-1110; P-0003 Tape 695 Transcript, UGA-OTP-0132-0243- R01, at 0265. 3178 ISO Logbook (Gulu), UGA-OTP-0232-0234, at 0562. 3179 UPDF Logbook (Gulu), UGA-OTP-0254-0229, at 0237. 3180 P-0138: T-120 , p. 49, lines 19-24. 3181 D-0032: T-201 , p. 29, line 19 – p. 30, line 5.

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7 Attack on Odek IDP camp

i. Odek IDP camp

Odek IDP camp was situated in Odek sub-county, Omoro County, Gulu district and at

3182

the time of the attack between 2000 and 3000 people lived in the camp.

3183

Odek is located in Odek sub-county, Omoro County, in the Gulu district of Uganda.

In April 2004, the Odek IDP camp was located around Odek village, having been created

3184

in mid-2003 to protect civilians from frequent LRA attacks in the area. The evidence

indicates that there were between 2,000 and 3,000 residents in the camp at the time of

3185

the April 2004 attack.

The Odek IDP camp received food from another IDP camp nearby at Awere, some

humanitarian assistance from NGOs, in addition to subsistence farming undertaken by

3186

the residents. The Chamber refers to its earlier discussion of the LRA’s policy to

3187

specifically target IDP camps to, amongst other things, obtain provisions. In this

context, the Chamber notes LDU soldier Julius Nyeko’s testimony that prior to the attack, food distribution had just taken place and he thought that ‘[the LRA] were also aware

3182 Para. 159 above. 3183 Agreed Facts , A3. 3184 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 11; P-0274 First Statement, UGA-OTP-0244-3375- R01, at paras 13-15, 21. 3185 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 16 (Mario Ottober, the Camp Leader at the time of the attack, did not remember the exact number of the camp residents at the time but estimated that there were about 2000 people residing in the Odek IDP camp); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 15 (Zakeo Odora, one of the camp’s leaders, testified that there were about 3000 people living in the camp at the time of the attack). See also P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0438 (P-0301’s Incident Report listed the population of the camp at 2,600 persons); Mario Ottober provided two Odek Camp notebooks which listed the populations within the camp as over 6000 persons. UGA-OTP-0267-0180-R01 at 0181; UGA-OTP- 0267-0182-R01, at 0183. Both of these notebooks are marked with the date ‘13/5/2005’. Mario Ottober indicated that these notations on the population of the camp were actually taken from January and February 2004. P-0274 Second Statement, UGA-OTP-0267-0174-R01, at paras 17, 22. Given the inconsistency between the date written on the notebooks and Mario Ottober’s statement, as well as the fact that the witnesses, including Mario Ottober in an earlier statement, testified that the population of the camp was much less at the time of the attack, the Chamber places more weight on the testimony of the witnesses heard in these proceedings. This discrepancy does not undermine the Chamber’s general view on Mario Ottober’scredibility. 3186 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 13 (the residents of Odek IDP camp were receiving food from nearby Awere IDP camp); P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 19, 22 (the camp residents received food aid distributed once or twice a month depending on the amount of food rations and they also collected food from Awere camp); P-0325 Statement, UGA-OTP-0264-0242-R01, at paras 17-18 (local people dug for food and NGOs distributed food to the camp). 3187 See section IV.C.4 above, the Chamber’s discussion of the LRA’s policy.

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that food was being distributed monthly, and they also wanted to come and collect these

3188 food items from the civilians. So that’s what [the LRA] did’.

There was a government military barracks comprised of grass thatched huts and located

in the north-western area of the camp along the Gulu-Moroto road, just a few hundred

3189 meters from the civilian IDP camp. The Chamber noted the location of the barracks

at the time of the Odek IDP camp attack during their site visit to the location of the former

3190 Odek IDP camp.

ii. Joseph Kony’s order to attack Odek IDP camp

Shortly before the attack on Odek IDP camp, Joseph Kony ordered that the people of Odek be attacked, to punish their perceived failure to support the LRA. Dominic Ongwen

3191

knew of Joseph Kony’s order before the attack.

The Chamber heard consistent evidence from former LRA members to the effect that

shortly before the attack on Odek IDP camp Joseph Kony ordered that Odek IDP camp

be attacked. P-0410 testified that he was present at a gathering in Sudan sometime after

the death of Tabuley, where Joseph Kony addressed LRA members, telling them that ‘[p]eople should come back to Uganda knowing that we were coming for work’, and that

‘the first place that should be attacked and used as an example, so that the people of

Uganda can be aware that they [i.e., the LRA] have started working, was attacking Odek’. 3192 Joseph Kony stated that Odek was ‘their home’ and for that reason should be

3193 used as an example, because the people there did not like the rebels. Still according

3188 D-0066: T-214 , p. 22, lines 1-8. See P-0252: T-87 , p. 34, lines 9-15 (food had been distributed to the camp three days before the attack, so when the LRA arrived the food was still there). 3189 See P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 15 (government soldiers were stationed at a barracks situated in the north-west part of the camp. The barracks was composed of grass thatched huts); P-0218 Sketch of Odek IDP camp, UGA-OTP-0238-0731-R01; P-0274 Sketch of Odek IDP camp, UGA-OTP-0244- 3388-R01; P-0325 Sketch of Odek IDP camp, UGA-OTP-0264-0252-R01; P-0264: T-64 , p. 56, lines 15-18 (the army quarters were to the west of the camp); P-0406: T-155 , p. 47, line 25 – p. 48, line 3 (the barracks was close to the civilian camp); D-0066: T-214 , p. 15, lines 12-18 (the IDP camp was about 200 metres away from the government barracks). 3190 See Annex to the Registration into the Record of the Case of the Site Visit Report pursuant to Trial Chamber Decision ICC-02/04-01/15-1211 of 27 March 2018 , 27 June 2018, ICC-02/04-01/15-1292-Anx, paras 16-17. 3191 Para. 160 above. 3192 P-0410: T-151 , p. 27, line 18 – p. 28, line 21. 3193 P-0410: T-151 , p. 28, lines 22-23, p. 29, lines 15-18. P-0410 stated that ‘their home’ was a reference to the fact that Odek is Joseph Kony’s birthplace.

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to P-0410, Joseph Kony ‘gave the commanders an order to start operation’, and as soon 3194 as they came back to Uganda, they went and attacked Odek.

Similarly, D-0032 testified that he heard Joseph Kony talking on radio, telling commanders: ‘My people are also stubborn’, referring to the people of Odek, and saying 3195 that they needed to be punished someday. According to D-0032, this message was 3196 transmitted on radio a short time before the attack on Odek. As D-0032’s testimony is based on his personal recollection of a specific radio communication, the Chamber accepts his evidence as truthful, even though the communication does not appear to have been recorded by the agencies that were intercepting radio communications at the time.

P-0410 did not state that Dominic Ongwen was present for the gathering with Joseph Kony in Sudan. Similarly, D-0032’s testimony does not provide a basis to conclude that the message was received by Dominic Ongwen at the time.

However, P-0142’s testimony indicates that by the time that concrete plans for the attack were being made, Joseph Kony’s order had indeed already reached the ground. In particular, according to P-0142’s testimony, Okwer told him, before the attack, that 3197 Joseph Kony had issued an order that Odek should be attacked. As discussed below, Okwer is one of the commanders consistently referred to by witnesses as having been involved in the Odek attack, including in its planning together with Dominic Ongwen. In light of Dominic Ongwen’s role in the preparation of the attack on Odek IDP camp, as discussed below, the Chamber finds that the necessary inference is that Dominic Ongwen also knew of Joseph Kony’s order.

In this context, the Chamber notes the argument by the Defence that Dominic Ongwen did not receive an order to send soldiers to attack Odek, but that such an order from 3198 Joseph Kony was addressed directly to Ben Acellam. However, this submission is based on evidence merely stating that, on 30 April 2004, Ben Acellam was communicating on radio before Dominic Ongwen. From this, the Defence concludes that

3194 P-0410: T-151 , p. 28, line 24 – p. 29, line 1. 3195 D-0032: T-200 , p. 23, lines 13-23. It is noted that D-0032 specified that he heard Joseph Kony talk to the commanders in general and that he did not hear Joseph Kony issue instructions to a specific person. 3196 D-0032: T-200 , p. 25, lines 2-6. 3197 P-0142: T-71 , p. 4, line 3 – p. 5, line 11. 3198 Defence Closing Brief , para. 376.

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Ben Acellam ‘was given the order to attack Odek, not Ongwen’. 3199 The Chamber finds that this argument is purely speculative, not confirmed by any other evidence, and therefore unfounded.

In any case, the Chamber also emphasises that the significance of any order by Joseph Kony specifically for the attack on the Odek IDP camp is limited. As discussed above, there is evidence that in early 2004, in the period before the Odek attack, Joseph Kony, on several occasions, called upon the LRA commanders to engage in attacks against 3200 civilians in Northern Uganda, including specifically against IDP camps. At times, 3201 Joseph Kony ordered that a specific location be targeted. But the majority of his 3202 orders to commanders during this period were more general. By the terms of those orders, it fell upon the commanders to determine the specific times and locations of 3203 attacks. For this reason, and considering the relevant charges as brought by the Prosecution in this regard, it is not decisive for the determination of Dominic Ongwen’s

criminal responsibility to establish conclusively that the attack on Odek took place pursuant to a specific order by Joseph Kony.

iii. Dominic Ongwen’s order to attack Odek IDP camp

Dominic Ongwen decided that LRA soldiers under his command would attack Odek IDP camp. He coordinated with subordinate commanders and appointed them to lead the attack on the ground. Dominic Ongwen ordered the fighters to attack the camp in two groups, one focused on the military barracks in the camp and the other focused on the civilian areas. Dominic Ongwen and his subordinate commanders ordered LRA soldiers to target everyone they find at Odek IDP camp, including civilians, and also instructed them to loot food and abduct civilians. Dominic Ongwen ordered the selection of soldiers for the attack, and participated in a ritual and prayer before they set out. He encouraged the soldiers and repeated the orders to target everyone, including civilians, to loot and to

3204

abduct civilians.

Several insider witnesses were present when the plan to attack Odek was announced, at a gathering, to LRA members. Their testimonies elucidate the orders given to the attackers by Dominic Ongwen and the other commanders. The testimonies also indicate

3199 See P-0125: T-136 , p. 26, line 19 – p. 30, line 10. 3200 See section IV.C.4 above. 3201 See paras 1118, 1119, 1136 above. 3202 See section IV.C.4 above. 3203 See also para. 872 above. 3204 Para. 161 above.

No. ICC-02/04-01/15 486/1077 4 February 2021

that Dominic Ongwen was the person who decided that the attack would take place and

set in motion the preparations.

In particular, P-0410 stated that there was a gathering (‘RV’) where the groups from

different places met and ‘the commanders’ gave the order to go to Odek. 3205 The

Chamber refers to its analysis of P-0410’s credibility, and in particular to its conclusion

that P-0410’s testimony that Vincent Otti and Buk Abudema were present for the Odek

attack is not reliable, but that the issue does not have a general impact on the reliability

3206 of the evidence of P-0410.

In any case, in relation to Dominic Ongwen, the evidence of P-0410 is detailed and

specific. P-0410 stated that he got to know Dominic Ongwen at the assembly, when he

3207 introduced himself. P-0410 testified that he heard Dominic Ongwen say that there

would be an operation in Odek, and that the intention was ‘to exterminate everything,

everything in Odek’. 3208 P-0410 stated that other commanders also spoke, saying that

‘nothing should be left alive’, that ‘[e]verything should be exterminated, even ants, even

flies’, and that ‘[a]nything alive, anything you see in front of you that is alive should be

shot and killed’. 3209 P-0410 also testified that Dominic Ongwen explained where people

were going to go, how the attack was going to be done, and ordered to bring food from

3210 the camp.

This corresponds to the testimony of P-0205, who stated that after crossing the Aswa

3211 River, Dominic Ongwen planned the attack on Odek. P-0205 stated that he was

present when Dominic Ongwen addressed the soldiers who were to go to Odek, and that

3205 P-0410: T-151 , p. 30, lines 10-22; T-152 , p. 32, line 25 – p. 33, line 16, p. 35, lines 2-10. P-0410 also stated specifically that the LRA soldiers did not cross the Aswa River on the day of the attack; P-0410: T-152 , p. 35, lines 11-15. P-0410 also testified that he had difficulty pinpointing the direction of Odek from the gathering place: ‘It’s difficult to point because at that time we were in the bush and it would be very difficult to even point the direction of your home. You will keep meandering while walking and you will not know which direction it was. It was difficult for me to point out which direction Odek was when we were at the riverbanks because the rebels do not move in a straight kind of movement. They can walk for about one or two hours, and you will not know the direction of your home. They don’t move in a straight movement. So at that time it was difficult for me to point out the direction of Odek. Whenever you’re moving, you keep on meandering. Sometimes you move ahead and then move backwards, and all that will confuse. You will not know how you have arrived in a certain place. So it’s difficult for me to point out.’ P-0410: T-152 , p. 33, lines 4-16. 3206 See section IV.B.2.ii.b.xxiii above. 3207 P-0410: T-151 , p. 33, line 22 – p. 34, line 8. 3208 P-0410: T-151 , p. 34, lines 12-17. 3209 P-0410: T-151 , p. 34, lines 17-21. 3210 P-0410: T-151 , p. 35, line 21 – p. 36, line 18. 3211 P-0205: T-47 , p. 41, line 25 – p. 42, line 4.

No. ICC-02/04-01/15 487/1077 4 February 2021

he heard Dominic Ongwen issue the order to ‘go and destroy Odek completely’ and to

‘only leave bare ground’. 3212 P-0205 also testified that Dominic Ongwen asked to abduct

‘good girls’ and boys, and said that those who were not fit to be in the army should be

3213 killed instead. P-0205 stated that he remained behind and did not go to Odek for the

3214 attack,

3215 . The Chamber does not deem it necessary for the present

purposes to resolve this discrepancy in the evidence. Due to P-0205’s in Court testimony,

the manner of recounting the events, as well as the corroboration by other witnesses, the

Chamber finds that it is without bearing on the reliability of P-0205’s evidence as to the

preparations for the attack.

Further corroboration of the fact that Dominic Ongwen ordered the attack on Odek IDP

camp is provided by P-0054, who stated that ‘when people were at a place called

3216 Orapwoyo, Ongwen instructed people to go and collect food from Odek’. P-0054

specified that ‘[a]t that time there was a big problem of hunger so he invited Kalalang

and other commanding officers and instructed them that since we do not have food people

should go to Odek’. 3217 While P-0054 initially stated that he did not remember any further

order by Dominic Ongwen, he did confirm as truthful his prior testimony to the effect

3218 that Dominic Ongwen also ordered to ‘attack the civilians’. P-0054 stated that he was

3219 present when Dominic Ongwen gave this instruction.

Still further, P-0264 testified that there was an ‘RV’ before the Odek attack, attended by

3220 soldiers from all three battalions of Sinia, as well as from Sinia headquarters. P-0264

3221 stated that the RV took place the day before the attack. He stated that the LRA came

3212 P-0205: T-47 , p. 43, lines 12-21. P-0205 stated that the gathering took place after crossing the river in the Lalage area, P-0205: T-50-CONF, p. 41, line 15 – p. 42, line 3. See also UGA-OTP-0233-1386, a sketch produced by P-0205 during his interview with the Prosecution. 3213 P-0205: T-47 , p. 44, lines 3-9. See also T-50 , p. 45, lines 3 – p. 46, line 1. The Chamber accepts P-0205’s statement that his prior statement to the Prosecution was incomplete in relation to Dominic Ongwen’s order in respect of civilians because he had forgotten at the time. 3214 P-0205: T-47 , p. 44, lines 10-13. 3215 3216 P-0054: T-93 , p. 15, lines 8-11; T-94 , p. 19, lines 17-23. 3217 P-0054: T-93 , p. 16, lines 6-12. 3218 P-0054: T-93 , p. 18, line 23 – p. 19, line 8. 3219 P-0054: T-93 , p. 16, lines 19-23. 3220 P-0264: T-64 , p. 38, lines 11-21. 3221 P-0264: T-64 , p. 41, lines 6-16.

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3222 from the east, but was not able to name the location where the RV took place. P-0264

3223 saw Dominic Ongwen at the RV and stated that Ben Acellam, his immediate

commander, returned from the planning meeting of the commanders and informed his

3224 escorts and security, including P-0264, of the plan. P-0264 stated that they were told

that there was going to be an operation involving looting food, warned that there would

be government soldiers present, and told that if they found a weapon they should recover

3225 it. Asked whether anything was said about civilians, P-0264 stated that all the

commanders, ‘even Dominic Ongwen’, said that people who can be recruited into the

LRA should be abducted, and also that civilians should be abducted to carry the looted

3226 food.

Two other witnesses offer testimony based on personal observation that confirms P-

0264’s testimony that there was a planning meeting of the commanders before the wider

announcement of the plan to attack Odek. First, P-0142 stated that he heard a gathering

of Dominic Ongwen and the commanders who were designated for the attack, during

3227 which Dominic Ongwen gave the order to ‘attack the soldiers’ and ‘loot food’. The

Chamber notes that P-0142 explained that whereas he himself did not participate in the

3228 discussion, he was at a distance where he could hear what was being discussed. P-

0142 stated that the briefing took place ‘around Omel Kuru, in an area called Kanu’. 3229

Second, P-0330 testified that he saw the commanders ‘huddled together’ before the attack

3230 3231 on Odek. Besides Dominic Ongwen, there were Okello, Kalalang and Bomek. P-

0330 stated that he heard them say that they should ‘select a standby’, and that Kalalang

3232 would be in charge of this. P-0330 stated that at this point they were on the Gulu side

3233 of the Aswa River.

3222 P-0264: T-66 , p. 58, lines 2-17. See also p. 58, line 24 – p. 59, line 8. 3223 P-0264: T-64 , p. 39, line 23 – p. 40, line 1. 3224 P-0264: T-64 , p. 41, line 17 – p. 42, line 2. 3225 P-0264: T-64 , p. 41, lines 12-15. 3226 P-0264: T-64 , p. 44, lines 4-15. 3227 P-0142: T-70 , p. 26, line 18 – p. 28, line 7, p. 30, line 21 – p. 31, line 2, p. 36, lines 7-9. 3228 P-0142: T-70 , p. 28, lines 3-7. 3229 P-0142: T-70 , p. 28, line 24 – p. 29, line 3. 3230 P-0330: T-52 , p. 13, lines 19-24. 3231 P-0330: T-52 , p. 13, line 25 – p. 14, line 3. 3232 P-0330: T-52 , p. 14, lines 7-12. 3233 P-0330: T-52 , p. 16, lines 14-18.

No. ICC-02/04-01/15 489/1077 4 February 2021

According to the evidence, after the initial announcement of the attack, there was a

selection of fighters who were to participate. This selection is described by P-0410, who

stated that after the RV finished, people returned to their respective groups, and each

3234 individual commander selected soldiers to go for the attack. P-0410 referred to two

groups of people being selected, one to go to the barracks and the other to go to the

3235 camp.

Similarly, P-0314 stated that soldiers were selected from various households and told that

they were going to ‘collect food items’. 3236 According to the witness the selected soldiers,

3237 at that point in time, had not been told yet where exactly they would be going. As

discussed above, however, other witnesses testified to the effect that there had already

been an announcement that Odek would be the target prior to the selection of the soldiers.

The Chamber is of the view that this discrepancy in the evidence could be explained by

the fact that, for any reason, P-0314 may not have been present at the previous

announcement. In any case, the Chamber is satisfied that the evidence shows that fighters

were selected and told that they were to ‘collect food’.

P-0340 similarly testified that he heard that there was a ‘standby’, even though he did not

3238 know at the time what that meant. Late in the evening, his commander Mukwaya,

3239 among others, started selecting people. The witness asked Mukwaya where they were

3240 going, and Mukwaya replied that they were going to collect food. P-0340’s testimony,

given from his personal viewpoint, fits into the narrative established by the relevant

witness testimonies altogether.

Another credible personal account of this process was provided by P-0352. The witness,

who and participated in the Odek attack, stated that before

the attack, they were staying in ‘an isolated area in Gulu’. 3241 She stated that there was a

3242 gathering of soldiers at Dominic Ongwen’s. Then she heard the soldiers whistling and

3234 P-0410: T-151 , p. 36, lines 19-23. 3235 P-0410: T-151 , p. 36, line 24 – p. 37, line 1. 3236 P-0314: T-75 , p. 3, lines 1-16. 3237 P-0314: T-75 , p. 3, lines 7-10. 3238 P-0340: T-102 , p. 26, line 23 – p. 27, line 1. 3239 P-0340: T-102 , p. 27, lines 2-3. 3240 P-0340: T-102 , p. 27, lines 6-8. 3241 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 109. 3242 P-0352 Statement. UGA-OTP-0260-0315-R01, at para. 109.

No. ICC-02/04-01/15 490/1077 4 February 2021

came and told her to leave the things she usually carried because she was going

3243 3244 on a trip. Soldiers and people from the houses of different leaders gathered.

There is also consistent evidence of a ritual and prayer, which followed the selection of

soldiers. P-0410 testified that all soldiers who were going to the barracks were smeared

3245 3246 with oil, and told to go bare-chested. There was also a prayer. P-0309 stated that

as the soldiers were gathered, Dominic Ongwen led a short prayer and sprinkled water

mixed with oil on the soldiers as a ‘blessing for [them] to go to fight’. 3247 P-0309 gave

the location of this gathering as ‘in the bushes in Loyo Ajonga’. 3248 Asked about when it

took place in relation to the attack itself, P-0309 stated that they moved for about three

3249 or four hours before reaching Odek. P-0314 also testified that there was a prayer and

that the soldiers were ‘sprinkled […] with some kind of water’. 3250 P-0264 also

3251 mentioned that soldiers were anointed before setting off for Odek.

At this time, Dominic Ongwen addressed the soldiers and gave further instructions. P-

0410 stated that Dominic Ongwen and ‘all of them’ were there, encouraging people and

telling them to be bold, and that if they followed instructions, nothing would happen to

3252 them. Asked specifically about what Dominic Ongwen said or did on this occasion,

P-0410 stated that Dominic Ongwen gave instructions to go to the battlefield and not

backtrack, to not fire the gun before instructions are given, as well as to ‘be merciless’,

to ‘exterminate everything’, and to come back with foodstuffs. 3253 Similarly, P-0309

testified that Dominic Ongwen told the soldiers that they were going to ‘work’, which P-

3254 0309 understood as fighting. P-0372 testified that before the Odek attack, Dominic

Ongwen spoke to the soldiers selected for the attack and said that he was going to attack

3243 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 109. 3244 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 109. 3245 P-0410: T-151 , p. 37, lines 2-16. 3246 P-0410: T-151 , p. 37, lines 8-9. 3247 P-0309: T-60 , p. 74, lines 17-23. 3248 P-0309: T-60 , p. 75, lines 7-21. 3249 P-0309: T-60 , p. 75, lines 22-24. 3250 P-0314: T-76 , p. 57, lines 3-8. 3251 P-0264: T-64 , p. 44, line 24 – p. 45, line 8. 3252 P-0410: T-151 , p. 37, lines 18-23. 3253 P-0410: T-151 , p. 38, line 8 – p. 39, line 3. 3254 P-0309: T-60 , p. 74, line 24 – p. 75, line 3.

No. ICC-02/04-01/15 491/1077 4 February 2021

3255 and to loot Odek. According to P-0372, Dominic Ongwen also spoke about the 3256 division of soldiers into two groups, one to go to the camp, another to the barracks. P-0406 testified that he heard Dominic Ongwen address the soldiers before the Odek attack, and that the order Dominic Ongwen gave was that ‘people from 18 under should be abducted, food should be taken, and the camp should be burned and the barracks should be attacked’. 3257 P-0406 specified that Dominic Ongwen addressed the soldiers at 3258 approximately 10:00 or 11:00 hours on the day of the attack. As to the location, P- 0406 stated that this happened after crossing the Aswa River leaving Pader and entering 3259 into Gulu, adding that he did not know the more specific location. P-0314 similarly said that Dominic Ongwen addressed the selected people on the day of the attack before they set off, telling them to ‘abduct some children’ and ‘bring food items’. 3260

As can be seen above, every witness described in their own words the location of the above events. Some witnesses understandably stated that they were not able to tell the precise location, because they were unfamiliar with the area or due to the LRA’s practice of meandering movement, while others gave more or less precise geographical references. Considering that the gathering took place in the bush, which is confirmed by all witnesses, the Chamber finds their inability to provide a precise description of the location natural and expected. Bearing this in mind, the Chamber deems the witness evidence on this point compatible, and finds, taking into account the various geographical references given by the witnesses, that the gathering took place at a location in the bush, west of the Aswa River and northwest of Odek, at a distance of several walking hours. Accordingly, the argument of the Defence to the effect that the evidence of witnesses called by the Prosecution is inconsistent as to the location of the RV prior to the Odek attack is 3261 rejected. In this regard, the Chamber recalls that it rejects as unreliable all direction- 3262 finding evidence.

3255 P-0372: T-148 , p. 40, line 11 – p. 42, line 6. Asked where the standby and selection for the Odek attack took place, P-0372 responded: ‘[w]e were moving here and about. I – it’s a place which is called Alim, if I have not forgotten. It was in the bush’; P-0372: T-149 , p. 73, lines 8-11. 3256 P-0372: T-148 , p. 42, lines 7-11. 3257 P-0406: T-154 , p. 42, line 23 – p. 43, line 19. 3258 P-0406: T-154 , p. 44, lines 5-9. 3259 P-0406: T-155 , p. 42, lines 5-11. 3260 P-0314: T-75 , p. 3, line 25 – p. 4, line 12. 3261 Defence Closing Brief , paras 353-364. 3262 See section IV.B.3.iii above.

No. ICC-02/04-01/15 492/1077 4 February 2021

The Chamber has paid particular attention to the content of the instruction given by Dominic Ongwen to the soldiers. Again, in the view of the Chamber, the fact that the witnesses expressed in their own terms their recollection is natural and expected. They described or emphasised different specific orders. Nonetheless, and contrary to the Defence’s argument, 3263 the Chamber does not find that witnesses contradict each other on the point or that their evidence is otherwise inconsistent. The Chamber considers that the evidence before it justifies and necessitates the finding that Dominic Ongwen, as well as other commanders, ordered LRA fighters to target everyone they find at Odek, including civilians. This is plainly the content of the testimony of P-0205 and P-0410, who stated, respectively, that the order was to ‘destroy Odek’ and to ‘exterminate everything’, and who are corroborated by P-0054. Furthermore, there is consistent evidence from multiple witnesses that the orders included looting food and abducting civilians. At the same time, the Chamber makes reference to P-0340’s elaboration on what it meant, in that particular context, to ‘collect food’: They don’t tell you there is going to be a fight. But when you ask, they will tell you we are going to collect food. Now, going to collect food, you do not know if you will go and they will give you or you go line up in a queue and you collect the food. When you go there, you have to fight, you have to shoot at them, and they shoot at you because they are the people who protect that food. So when we reached there, other people went to the barracks and other people went to the camp. That is what 3264 collecting food means. The conclusion that the purpose of the Odek attack, as designed by Dominic Ongwen, was indeed to target civilians is further supported by the fact that, as stated by several witnesses, the attackers were split into two groups – one which headed to the UPDF barracks, and another which went directly into the civilian camp.

iv. Departure of attackers for Odek

Afterwards, the LRA fighters left for Odek. The LRA fighters who went to attack Odek IDP camp were subordinate to Dominic Ongwen. They included fighters belonging to Sinia brigade, as well as two fighters from the Gilva brigade. The subordinate

3263 Defence Closing Brief , paras 365-370. 3264 P-0340: T-103 , p. 49, lines 8-19.

No. ICC-02/04-01/15 493/1077 4 February 2021

commanders Dominic Ongwen sent to attack Odek IDP camp included Ben Acellam,

3265

Okwer and Kalalang.

3266

After the events described above, the soldiers left for Odek. The consistent testimony

of P-0264, P-0340 and P-0410 is that the soldiers walked during the day before stopping

3267

briefly in the afternoon at a location nearby Odek. P-0314 testified that they did not

3268

cross the Aswa River on the way from the RV to Odek. P-0410 testified that two

civilians on their way to their gardens were abducted and questioned about the number

3269

of soldiers at the barracks of the camp. P-0314 testified that as the attackers were

approaching the barracks of Odek camp, Abongomek addressed the soldiers, dividing

3270

people into two groups, one to attack the barracks, and the other to attack the camp.

The evidence shows that the LRA soldiers who attacked Odek IDP camp on 29 April

2004 were subordinate to Dominic Ongwen. Former LRA members P-0142, P-0352, P-

0205, P-0372, P-0264 and P-0314, all part of Dominic Ongwen’s Sinia brigade at the

3271

time of the attack on Odek IDP camp, testified that the fighters sent to the camp were part of the Sinia brigade and under Dominic Ongwen’s command.

3272

3265 Para. 161 above. 3266 P-0410: T-151 , p. 37, line 17; P-0309: T-60 , p. 74, lines 17-23. 3267 P-0264: T-66 , p. 63, lines 1-22 (stating that the attackers waited for the sun to settle down before they went for the attack); P-0340: T-102 , p. 27, lines 9-12; P-0410: T-151 , p. 31, lines 1-3. P-0352 also stated that the attackers arrived at Odek in the evening; P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 114; T-68 , p. 10, line 25 – p. 11, line 5. P-0054 testified that the attackers left the point where instructions were given at about 14:00-15:00 hours and arrived at Odek at around 19:00; P-0054: T-93 , p. 15, lines 8-12; T-94 , p. 21, lines 6-8. In the assessment of the Chamber, this is not a significant discrepancy in estimating the time, in particular because the chain of events is otherwise well established. 3268 P-0314: T-76 , p. 61, line 25 – p. 62, line 1. 3269 P-0410: T-151 , p. 31, lines 4-7. P-0410’s testimony is corroborated by the testimony of P-0340; P-0340: T- 102 , p. 26, line 23 – p. 27, line 13. See also P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 18; T-90 , p. 61, lines 11-21. 3270 P-0314: T-75 , p. 6, lines 5-9. P-0314 explained that the same person is also referred to as Labongo, P-0314: T-75 , p. 16, line 22 – p. 17, line 1. 3271 P-0142: T-70 , p. 16, lines 6-8, p. 17, lines 3-10 (P-0142 had the rank of a second lieutenant in the Sinia brigade); P-0352 Statement, UGA-OTP-0260-0315-R01, at paras 25, 55, 108 (P-0352 participated in the attack on Odek IDP camp and was part of Sinia brigade); P-0205: T-47-CONF, p. 9, lines 18-22, p. 36, line 13 – p. 37, line 6; P-0372: T-148 , p. 14, lines 18-21, p. 30, lines 14-19; T-149 , p. 2, line 23 – p. 5, line 10 (while not technically assigned to Sinia, P-0372 was staying with Sinia and was under Dominic Ongwen’s command at the time of the attack on Odek IDP camp); P-0264: T-64 , p. 33, lines 1-2, p. 37, lines 1-19 (P-0264 was in the Sinia brigade under Dominic Ongwen); P-0314: T-74 , p. 23, lines 15-19 (P-0314 was a fighter in Sinia under Dominic Ongwen). 3272 P-0142: T-70 , p. 25, lines 5-10, p. 28, lines 16-23 (the soldiers who attacked Odek IDP camp came from the Sinia brigade, a mixture of fighters from the three Oka, Terwanga and Siba battalions); P-0142: T-71 , p. 3, lines 18-23 (Dominic Ongwen was the brigade commander of Sinia at the time of the attack); P-0352 Statement, UGA- OTP-0260-0315-R01, at paras 63, 109 (while the LRA was staying in an isolated area in the Gulu area, P-0352 observed LRA fighters gathered at Dominic Ongwen’s residence. She then saw fighters whistling and was told by , one of Dominic Ongwen’s direct subordinates, that she was going on a trip. Fighters and people from the households of different LRA leaders in Sinia gathered together and started moving to attack Odek); P-0205:

No. ICC-02/04-01/15 494/1077 4 February 2021

3273

P-0142 testified that two fighters from the Gilva brigade participated in the attack.

Apart from these Gilva fighters, the Chamber is of the view that no credible evidence

3274

indicates that other LRA groups participated in the attack on Odek IDP camp.

The charges contain the allegation that Okwonga Alero commanded, together with

3275

Dominic Ongwen and others, the Odek attack. However, in light of the Chamber’s

findings in relation to the credibility of P-0245, this allegation is not established by the

3276

evidence.

T-47 , p. 41, line 25 – p. 43, line 19; T-50-CONF, p. 28, lines 8-11 (some of the fighters that participated in the Odek IDP camp were from the Terwanga battalion of Sinia brigade. About six fighters and four officers were sent to join the attacking force from that battalion); P-0372: T-148 , p. 42, lines 14-19 (part of the Sinia brigade went to attack Odek IDP camp); P-0264: T-64 , p. 65, lines 2-4 (Dominic Ongwen was the overall commander in charge of the LRA fighters P-0264 saw come back from the Odek attack); P-0314: T-74 , p. 61, lines 16-20; T-75 , p. 2, line 24 – p. 3, line 24 (Dominic Ongwen sent the LRA fighters that went to attack Odek IDP camp. Otto Signaller selected P-0314 among six fighters from his household. Some other fighters were selected from Kalalang’s household. Kalalang was Dominic Ongwen’s 2IC). See also P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 35 (a former abductee told P’Oyoo Lakoch that Dominic Ongwen’s group was operating in the Odek area at the time of the attack); P-0231: T-122 , p. 68, line 13 – p. 69, line 4 (along with others in a gathering P-0231 was told by Joseph Kony that in 2004 the Sinia brigade attacked Odek, shot at fighters, killed many people and actually overran the barracks. At the time P-0231 was told about this Odek attack, Dominic Ongwen was the brigade commander of Sinia brigade); P-0085: T-158 , p. 42, line 8 – p. 43, line 9; T-159 , p. 29, line 21 – p. 30, line 2 (soon after the attack, P-0085 heard over Mega radio that Odek had been attacked by Odomi’s group. The radio reported that Odomi’s group had attack the barracks, seized weapons and burned down the barracks and houses. A week and a few days later, he and his group met Dominic Ongwen in an area known as Te Atoo Opin and he asked Dominic Ongwen about the attack on Odek. P-0085 testified that he did not recall seeing any other commander with Dominic Ongwen. P-0085 testified that Dominic Ongwen stated that he had sent his people and they attacked the barracks, burned houses and took guns); P-0205’s annotated Acholi Sub-Region Planning Map, UGA-OTP-0233-1386. 3273 P-0142: T-72 , p. 67, lines 5-7 (Ojara Abin and Abonga Won Dano, two fighters from the Gilva brigade participated in the attack on Odek IDP camp). 3274 In this regard, the Chamber notes P-0410’s testimony that ‘most groups’ participated and all the senior commanders went. See P-0410: T-151 , p. 30, lines 15-21, p. 41, lines 5-11, p. 42, lines 1-11. The Chamber notes its assessment of P-0410’s testimony above. The Chamber also notes that P-0410 is the only witness to testify to the presence of these other commanders and groups. In the Chamber’s view, the witness’s testimony is not reliable in this regard. See also P-0252: T-89 , p. 20, lines 13-19 (According to P-0252, who was abducted from Odek, during the retreat, there were no senior commanders from any other group apart from Dominic Ongwen’s. He testified that apart from fighters from Dominic Ongwen’s group, he saw no other group coming from Odek). The Chamber considers it reasonable that P-0252 would not have noticed the two solitary fighters from Gilva. However, the Chamber expects that the witness would have noticed had there been other large contingents of fighters. 3275 Para. 27 of the charges ( Confirmation Decision , p. 77). 3276 See section IV.B.2.ii.a.xi above. It is noted that in the Prosecution’s Pre-Trial Brief, P-0245 was the only witness cited for the proposition that Okwonga Alero participated and that the attack on Odek was a joint attack between Sinia and Trinkle brigades. See Prosecution Pre-Trial Brief , paras 334, 336, 339. Similarly in the Prosecution’s Closing Brief, P-0245 is given as the sole basis for allegations of Okwonga Alero’s involvement in the Odek attack. See Prosecution Closing Brief , paras 197, 287. It is also noted that P-0142 and P-0406, whose evidence indicates that they knew Okwonga Alero, were asked about his involvement in the Odek attack, and did not confirm it. See P-0142: T-72 , p. 66, line 13 – p. 67, line 4; P-0406: T-155 , p. 52, lines 11-19. See also P-0309: T-63 , p. 16, lines 24-25.

No. ICC-02/04-01/15 495/1077 4 February 2021

As to the command of the attack on the ground, consistent and mutually corroborating

testimony shows that the subordinate commanders Dominic Ongwen sent to attack Odek

3277 3278 3279 IDP camp included Ben Acellam, Okwer and Kalalang.

v. Dominic Ongwen’s on-ground participation in the attack

Dominic Ongwen moved with the attackers in the direction of Odek IDP camp. He did

3280

not enter Odek IDP camp with the fighters sent to attack.

It is alleged in the charges that Dominic Ongwen ‘commanded and coordinated the attack

3281 on the ground’ in Odek IDP camp. The Prosecution alleges that Dominic Ongwen

3282 personally led the attack on the ground, accompanied by senior Sinia brigade officers.

The Defence contends that the Prosecution has failed to present evidence which

demonstrates that Dominic Ongwen, inter alia , led LRA personnel in the attack on Odek

3283 IDP camp. The Defence further suggests that Dominic Ongwen could not have

3284 walked the distance to Odek because he had been injured.

The Chamber notes that the evidence in relation to Dominic Ongwen’s injury does not

indicate that he would have been physically incapable of walking to Odek IDP camp

3285 attack. The Chamber heard varying testimony about Dominic Ongwen’s participation

in the attack, particularly from witnesses P-0054, P-0142, P-0205, P-0264, P-0309, P-

0314, P-0330, P-0340, P-0352, P-0406 and P-0410. Below, the Chamber discusses each

witness’s account. These witnesses were fighters in Sinia brigade who participated in the

attack on Odek IDP camp. The Chamber notes its above individualised assessments of

these witnesses’ testimonies. At issue for the Chamber is the reliability of this aspect of

the witnesses’ testimony. As a general matter, the Chamber recalls that not relying on a

3277 P-0142: T-70 , p. 25, lines 19-22; P-0205: T-47 , p. 43, line 22 – p. 44, line 2; P-0264: T-64 , p. 47, lines 10-18. 3278 P-0142: T-70 , p. 25, lines 19-22; P-0205: T-47 , p. 43, line 22 – p. 44, line 2; P-0264: T-64 , p. 72, lines 2-8; ; P-0410: T-151 , p. 41, lines 5-14. The witnesses refer to ‘Okwer’, ‘Okwe’, or ‘Okwee’. Given the overwhelming similarity in the names, and that the transcripts of the proceedings show a phonetic spelling of the name, the Chamber is of the view that they spoke of the same person, Okwer. 3279 P-0205: T-47 , p. 43, line 22 – p. 44, line 2; P-0372: T-148 , p. 44, line 22 – p. 45, line 20; P-0264: T-64 , p. 38, line 25 – p. 39, line 5. 3280 Para. 162 above. 3281 Para. 29 of the charges ( Confirmation Decision , p. 78. 3282 Prosecution Closing Brief , paras 256, 258-265. 3283 Defence Closing Brief , paras 338, 359-363. 3284 Defence Closing Statement: T-258 , p. 91, lines 8-11. 3285 See paras 1020-1079 above, the Chamber’s discussion of Dominic Ongwen’s position within the LRA.

No. ICC-02/04-01/15 496/1077 4 February 2021

witness’s testimony in this regard does not necessarily undermine other aspects of the witness’s testimony.

P-0054 testified that Dominic Ongwen commanded a group of LRA fighters into the 3286 centre of Odek IDP camp during the attack. P-0054 testified that a recruit, , accompanied him to Odek and went to the centre to loot food with Dominic Ongwen’s group of attackers while P-0054 himself went to attack the barracks with other 3287 fighters and did not go to the centre. The source of P-0054’s information about Dominic Ongwen’s movements is not clear. It is significant to the Chamber that the witness does not testify to seeing Dominic Ongwen within the camp himself. P-0054 also testified to seeing Dominic Ongwen in the group as they were retreating from Odek IDP 3288 camp.

3289 P-0340, , testified that he was part of the group that went to attack the camp centre and Dominic Ongwen was not in the group that went to the camp centre; P-0340 did not know if Dominic Ongwen split and went to 3290 the barracks. P-0340 testified that he saw Dominic Ongwen among the fighters during the LRA’s movement to Odek, stating, ‘he was together with us while we were walking there. Sometimes would walk behind, sometimes would be ahead, sometimes would just be in the middle’. 3291 The Chamber notes that P-0340 does not testify to seeing Dominic Ongwen within Odek IDP camp during the attack.

P-0309 testified that he saw Dominic Ongwen in the group moving to go to Odek IDP camp and that ‘[w]hen we were entering Odek camp, I did not look to see where he was, I – I ran, when we reached closer, we ran and split into smaller groups. I was among those who ran to the centre. At that point I did not know where he was’. 3292 P-0309 stated that he did not see Dominic Ongwen in the centre of the camp and did not look to see where Dominic Ongwen was as the fighters were entering Odek; he next saw Dominic Ongwen after he and the other attacking forces had left Odek IDP camp and were

3286 P-0054: T-93 , p. 15, lines 21-22, p. 19, line 24 – p. 20, line 2, p. 53, lines 13-21. 3287 P-0054: T-93-CONF, p. 24, line 10-15, p. 26, lines 9-11; T-93 , p. 19, lines 13-14, p. 53, line 24 – p. 54, line 6; T-94 , p. 23, lines 1-3. 3288 P-0054: T-93 , p. 16, lines 1-3; T-94 , p. 24, lines 6-23. 3289 3290 P-0340: T-102 , p. 34, line 21 – p. 35, line 12; T-103 , p. 49, line 20 – p. 50, line 10. 3291 P-0340: T-102 , p. 28, line 21 – p. 29, line 3; T-103 , p. 47, line 24 – p. 48, line 1. 3292 P-0309: T-60 , p. 77, line 1 – p. 78, line 5.

No. ICC-02/04-01/15 497/1077 4 February 2021

3293 retreating back into the bush. P-0309 also did not see Dominic Ongwen within Odek

3294 IDP camp during the attack.

P-0410 testified that all the top commanders went to attack Odek IDP camp, including

Dominic Ongwen; he believed Dominic Ongwen was at the attack because all the top

3295 commanders went there. However, P-0410 indicated that he did not see Vincent Otti

3296 or Dominic Ongwen in the camp during the attack. P-0410 testified that he actually

saw Dominic Ongwen in the pre-attack ceremony and did not see him again until after

3297 the returning fighters gathered after the attack. Given that P-0410 did not see Dominic

Ongwen in the camp, and merely speculates that he would have been there, the Chamber

does not put any weight on this aspect of his testimony.

P-0264 testified that while Dominic Ongwen moved with the group that went to attack

the camp but did not enter the camp, Dominic Ongwen stayed about a football pitch and

3298 a half span outside of the camp while the other attackers went into the camp.

P-0142, a Sinia fighter who himself did not participate in the Odek attack but stayed in

the RV location, testified that Dominic Ongwen remained with the rest of the group while

3299 the fighters left to attack Odek. According to P-0142, the LRA left behind at the pre-

attack gathering point, including Dominic Ongwen, stayed in their position for a whole

3300 day until the next day when the fighters returned from the attack on Odek IDP camp.

P-0142 testified that he was not personally with Dominic Ongwen during this period as

Dominic Ongwen was a ‘big commander’ and P-0142, a low level fighter could not be

3301 close to him. P-0142 testified that he saw Dominic Ongwen at the pre-attack

3302 meeting; he did not report actually seeing Dominic Ongwen again until after the

3293 P-0309: T-60 , p. 77, line 24 – p. 78, line 2; T-63 , p. 23, line 11 – p. 24, line 16. 3294 P-0309: T-60 , p. 80, lines 15-19. 3295 P-0410: T-151 , p. 41, lines 5-11, p. 42, lines 15-20; T-152 , p. 37, line 14 – p. 38, line 3. 3296 See P-0410: T-151 , p. 41, lines 5-11; T-152 , p. 37, line 14 – p. 38, line 3. 3297 P-0410: T-151 , p. 41, lines 5-11, p. 42, lines 1-20, p. 51, lines 18-25; T-152 , p. 37, line 14 – p. 38, line 3, p. 40, lines 12-15. 3298 P-0264: T-64 , p. 46, line 8 – p. 47, line 8. 3299 P-0142: T-70 , p. 28, lines 16-20, p. 29, lines 2-3, lines 16-19, p. 40, lines 13-24. 3300 P-0142: T-70 , p. 29, lines 16-22. 3301 P-0142: T-70 , p. 29, line 23 – p. 30, line 1. the Chamber’s discussion of the order to attack Odek IDP camp. 3302 See section IV.C.7.iii above,

No. ICC-02/04-01/15 498/1077 4 February 2021

3303 attack. P-0142 testified that after the attack, the commanders returned and gave

3304 Dominic Ongwen a report at the RV location.

According to P-0205, Dominic Ongwen did not participate in the Odek IDP camp

3305 attack. P-0205 testified that he heard Dominic Ongwen give orders to the attackers

and then returned to his position; he did not report interacting or observing Dominic

3306 Ongwen until the fighters returned from the attack.

P-0314 stated that Dominic Ongwen stayed behind at the meeting place and did not go

3307 to Odek IDP camp personally. P-0314 testified that Dominic Ongwen remained

3308 behind at the RV location when the attacking group moved on to Odek. P-0314, who

participated in the attack, next saw Dominic Ongwen after the attack when the returning

3309 attackers met him to brief him. When asked about other commanders participating in

the attack, P-0314 stated that he could not see people who were in the group ahead of

3310 him.

The Chamber also notes the testimony of P-0406 who participated in the attack and stated

that after Dominic Ongwen ordered his fighters to attack Odek IDP camp, P-0406 went

3311 to attack the camp. While he testified that he and Dominic Ongwen ‘were in one

formation’ when Dominic Ongwen gave orders to attack the camp, P-0406 explained that

he did not see Dominic Ongwen again until the next day when the attackers returned

3312 from the operation in Odek.

3313 Similarly, P-0330 testified that Dominic Ongwen did not go to the Odek attack.

Additionally, P-0352 testified that she did not remember seeing Dominic Ongwen during

3303 See P-0142: T-70 , p. 29, line 23 – p. 30, line 1. 3304 P-0142: T-70 , p. 30, lines 2-6, p. 39, line 4 – p. 40, line 4. 3305 P-0205: T-50 , p. 28, lines 6-7. 3306 P-0205: T-47 , p. 43, line 7 – p. 45, line 14. 3307 P-0314: T-75 , p. 9, lines 1-7; T-76 , p. 56, lines 19-22. 3308 P-0314: T-75 , p. 9, lines 4-7. 3309 P-0314: T-75 , p. 13, lines 13-17, p. 17, lines 2-18. 3310 P-0314: T-76 , p. 56, lines 10-14. 3311 P-0406: T-154 , p. 43, lines 1-8. 3312 P-0406: T-154 , p. 44, line 24 – p. 45, line 5. 3313 P-0330: T-55 , p. 38, lines 6-8.

No. ICC-02/04-01/15 499/1077 4 February 2021

the attack on Odek IDP camp, stating that there were many people and she could not see the ‘soldiers who were leading the way’. 3314

In this context, the Chamber also notes the testimony of P-0085, who credibly testified about an encounter with Dominic Ongwen during which Dominic Ongwen informed P-0085 that he had sent his people to attack Odek, indicating that Dominic Ongwen had 3315 not gone himself. The Chamber considers that P-0085’s testimony corroborates the accounts of witnesses who testified that Dominic Ongwen did not follow the attacking force into Odek himself.

Upon considering the evidence of the above witnesses, the Chamber is not satisfied that the evidence proves that Dominic Ongwen entered Odek IDP camp as part of the attacking force, commanding and/or coordinating the LRA fighters. The Chamber considers it significant that although certain witnesses testified to seeing Dominic Ongwen outside of the camp before the attack, none of them testified that they actually saw him within the camp during the attack. While the chaos of an attack on an IDP camp can justify fighters, especially low ranking fighters, not knowing the exact location of the other fighters or commanders, the Chamber is of the view that, had Dominic Ongwen actually participated in the attack, at least one of the witnesses would have seen him within the camp.

Noting that the witnesses who testified that Dominic Ongwen stayed behind at the RV location were not in fact staying with him and largely testified to observing him at the pre-attack meeting and after the attackers returned from the camp, the Chamber is convinced that the evidence shows that Dominic Ongwen moved with the attacking group towards the camp but did not actually enter the camp to attack.

3314 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 110; P-0352: T-68 , p. 11, line 20 – p. 12, line 3. 3315 P-0085: T-158 , p. 42, line 17 – p. 43, line 9. See paras 1484, 1639-1640 below.

No. ICC-02/04-01/15 500/1077 4 February 2021

vi. The LRA’s attack against the civilian population of Odek IDP camp

On 29 April 2004, LRA fighters subordinate to Dominic Ongwen, and acting on his orders,

3316

attacked Odek IDP camp.

In the late afternoon the day of the attack, Odek IDP camp residents gathered and a government soldier warned them to be vigilant as the LRA were believed to be operating

3317

in the area.

As the residents and several government soldiers were dispersing from that gathering in the early evening, at least 30 LRA attackers, including children under the age of 15, executed Dominic Ongwen’s orders and, with an assortment of arms including AK guns, a mortar and an RPG, a PK and a ‘B-10’ gun, attacked Odek IDP camp from the

3318

northern side of the camp.

Witnesses residing at Odek camp at the time of the attack provided credible, consistent

and overlapping testimony that in the mid to late afternoon of 29 April 2004, government

soldiers gathered camp residents for a meeting in the camp centre and warned them that

3319

LRA forces were present in the area.

In light of the testimonies of Mario Ottober, the elected Camp Leader, Joseph

Balikudembe, a UPDF officer and Julius Nyeko, an LDU officer who served at Odek

IDP camp, the Chamber is of the view that there were at least 20 to at most 60 government

3320

soldiers stationed at the camp at the time of the attack.

3316 Para. 159 above. 3317 Para. 163 above. 3318 Para. 163 above. 3319 P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 17-18; T-90 , p. 61, line 11 – p. 66, line 10 (stating that around 16:30-17:30, UPDF soldiers gathered camp residents at the centre of the camp under a mango tree. A government soldier, Second Lieutenant Odong, warned camp residents of the presence of LRA fighters in the area, as they had been sighted by civilians earlier in the day); P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 22 (stating that around 14:00, the UPDF called a meeting by the mango tree in the market. The UPDF commander told the civilians that rebels were present in the area and cautioned against civilians going to visit their gardens); P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 25 (testifying that around 15:00, LDU soldiers gathered the people of the camp for a meeting in the market place of the camp). See P-0218: T-90 , p. 62, line 20-24; P-0269: T-86 , p. 24, line 18 – p. 25, line 1 (stating that the reason a meeting was held was so that people in the camp could be aware that a visitor could be part of rebel activity. They were requested to report any visitor and advised that this person may need to be arrested so that the camp is not attacked). 3320 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 20 (stating that according to Mario Ottober, there were about 20-30 government soldiers stationed at the camp before the attack); P-0359: T-110 , p. 43, lines 8-10 (testifying there were about 40 UPDF soldiers and around 20 LDUs stationed in Odek IDP camp at the time of the attack); D-0066: T-214 , p. 13, lines 5-25, p. 14, lines 7-18, p. 20, line 22 – p. 21, line 7 (stating there were 38 LDUs stationed in Odek, commanded by an UPDF soldier. A mobile force of UPDF soldiers passed through the camp a day before the attack). See P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 15 (according to P’Oyoo Lakoch, a local resident, there were about 40 soldiers protecting Odek IDP camp, about 15 UPDF soldiers and 25 from the LDU. A mobile force of UPDF soldiers arrived at Odek IDP camp a short time before the attack on 29 April 2004). The Chamber notes that all these witnesses estimated the number of soldiers they believed was stationed at the camp at the time of the attack.

No. ICC-02/04-01/15 501/1077 4 February 2021

The Chamber also recalls the credible testimony of local teacher P’Oyoo Lakoch that

during the afternoon meeting, government soldiers informed residents that a number of

government soldiers had left the camp to attempt to ambush the LRA and only about 11

3321 soldiers remained at the camp, with three of them stationed at the barracks.

Regarding the number of LRA fighters that attacked Odek IDP camp, the Chamber is

convinced by the testimony offered by several LRA fighters who actively participated in

the attack and were in a position to know roughly how large a force was sent to attack

3322 Odek IDP camp. P-0309 testified that there were 30-40 LRA fighters gathered when

3323 Dominic Ongwen told them they were going to ‘work’ in Odek. P-0330 did not recall

the number of soldiers selected to attack Odek but estimated that the largest number was

3324 probably between 30 and 35 fighters. P-0406 testified that there were 40-50 LRA

3325 fighters selected to go attack Odek IDP camp. P-0314 testified that about 60-80

3326 fighters were selected to carry out the operations in Odek IDP camp. In light of these

witnesses’ testimony, 3327 the Chamber considers that at least 30 LRA fighters went to

attack Odek IDP camp.

Witnesses provided credible, consistent and overlapping testimony that there were

children younger than 15 years old among the LRA forces that attacked Odek IDP camp

on 29 April 2004. P-0314 testified that the youngest fighters participating in the attack

3328 would have been between 13 and 14 years old. Similarly, P-0410 testified that among

3329 the persons that went to attack Odek IDP camp were persons as young as 13 years old.

3321 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 19; P-0218: T-90 , p. 64, lines 7-15. 3322 The Chamber notes that local teacher P-0218 testified that as many as 400 troops attacked Odek IDP camp. See P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 31. As noted above, the Chamber considers that LRA fighters who participated in the attack themselves were better positioned to know approximately how many fighters were sent than residents who were attempting to survive in the midst of an attack and also did not have an overview of what was happening in other areas of the camp. The Chamber notes also that, given the time that elapsed and the context of the attack, the LRA fighters are only able to provide an approximation of the number of forces sent to attack the camp. 3323 P-0309: T-60 , p. 75, lines 4-6. 3324 P-0330: T-52 , p. 16, lines 4-11. 3325 P-0406: T-155 , p. 42, lines 12-15. 3326 P-0314: T-75 , p. 5, lines 1-3. 3327 The Chamber also notes the corroborating evidence of the Incident Report of the Odek IDP camp attack created by P-0301 in 15 May 2004. According to this report, the LRA attacked Odek IDP camp with a force of 60 armed fighters. P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0438; P-0301 Statement, UGA-OTP- 0249-0423-R01, at paras 60 and 62. 3328 P-0314: T-75 , p. 5, lines 9-14, p. 10, lines 8-14. See also P-0205: T-48 , p. 36, line 25 – p. 37, line 11 (indicating that one LRA fighter who participated in the Odek IDP camp attack and came back carrying luggage obtained from Odek would have been 13 at the time of the Odek IDP camp attack). 3329 P-0410: T-151 , p. 39, line 15 – p. 40, line 8.

No. ICC-02/04-01/15 502/1077 4 February 2021

P-0275 testified that during the attack, he saw children beating jerry cans, some of the

3330

children looked younger than him. The Chamber recalls the finding that P-0275 was

3331

under 15 years old at the time of the Odek IDP camp attack. In line with P-0275’s

testimony, P-0054 testified that children, ranging from 10-13 years old as well as older

3332

children participated in the Odek IDP camp attack. P-0269 testified that the youngest

persons she saw amongst the female contingent of the LRA forces in the camp could

3333

have been around 13 years old. In light of the evidence, the Chamber is satisfied that

children under the age of 15 participated in the attack on Odek IDP camp.

Credible and consistent evidence demonstrates that the LRA forces attacked Odek IDP

camp with various weapons, including guns and heavy weaponry such AK guns, a mortar and an RPG, a PK and a ‘B-10’ gun.

3334

Witnesses in these proceedings, both LRA insiders and residents of the camp, agree that the LRA’s attack on Odek IDP camp began in the early evening of 29 April 2004,

3335

generally testifying to a range of time between 17:00 and 18:00. The evidence shows

3330 P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 25. 3331 See the Chamber’s discussion of P-0275’s testimony in section IV.B.2.iv.c.v. 3332 P-0054: T-93 , p. 29, lines 7-8. 3333 P-0269: T-85 , p. 40, lines 5-7. The Chamber notes that P-0269 was abducted by LRA fighters and had the opportunity to observe the LRA forces in close proximity. 3334 P-0264: T-64 , p. 67, line 15 – p. 68, line 12 (stating that heavy weapons were used by the LRA fighters in Odek IDP camp, including a PK, an RPG, a mortar and a B-10. P-0264 explained to the Chamber, ‘a PK is a gun that uses a chain. The bullets are in a chain, a long chain, some of them up to 200, others 250, others 100’, a ‘B10 is a heavy weapon and it can also be put on a stand, but you can also use it without a stand’, an RPG ‘also uses a stand, but it’s not too big. Depends on the bullets. others have longer bullets, others have short bullets’); P-0340: T-102 , p. 37, lines 8-15 (the LRA used several weapons at Odek IDP camp including a small gun called a Logos, a chain gun called a PK, and a big gun called a ‘B-10’); P-0314: T-75 , p. 5, lines 4-8, lines 15-16 (the fighters going to Odek IDP camp were armed with heavy weapons like a ‘B-10’ and another gun with very big bullets and bullets in a chain as well as AK-47 guns and a PK. P-0314 stated that he was also armed with a gun during the attack); P-0309: T-60 , p. 77, lines 8-12, lines 15-16 (stating that the LRA went to Odek IDP camp with weapons, including ‘AK’ guns and some bombs. P-0309 was carrying an ‘AK’); P-0330: T-52 , p. 15, line 22 – p. 16, line 3 (stating that he LRA took twelve smaller handguns and PKs to the Odek attack. P-0330 was also armed with a gun for the attack); P-0352 Statement, UGA-OTP-0260-0315-R01, at paras 120-121 (testifying that the LRA attacks the camp with ‘normal small guns’ as well as ‘a big gun that needed two people to carry it. It was like a bomb’. There were also two medium sized guns, one taken to the barracks and the other to the camp. P-0352 believed that these guns were called a ‘PK’). 3335 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 16 (stating that the LRA attacked Odek IDP camp on 29 April 2004); P-0268 Statement, UGA-OTP-0248-0013-R01, at paras 22-23 (testifying that the rebels attacked Odek IDP camp on 29 April 2004, beginning the attack around 17:00); P-0274 First Statement, UGA-OTP-0244- 3375-R01, at para. 24 (on 29 April 2004, after the children had come back from school, the LRA attacked Odek IDP camp); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (stating that the attack began around 17:00 on 29 April 2004); P-0269: T-85 , p. 34, line 19 – p. 35, line 3 (stating that the attack began around 17:00 on 29 April 2004); P-0264: T-66 , p. 64, lines 7-11 (testifying that the attack on Odek took place approximately 17:00 – 18:00); P-0309: T-60 , p. 78, lines 23-25 (stating that the attack on Odek IDP camp started around 17:00 or 18:00). See also P-0314: T-75 , p. 10, lines 21-22 (the LRA fighters arrived at Odek around 17:30 and 18:00).

No. ICC-02/04-01/15 503/1077 4 February 2021

that the attack began as civilians were returning to their various homes after the meeting

3336 with the government soldiers. Other camp residents were at their homes. As camp

resident Helen Opoka Acan described, she was sitting in her home with her husband and children, ‘[w]e were just sitting there talking and laughing, enjoying ourselves […]’. 3337

The evidence shows that the LRA forces entered Odek IDP camp from the northern side

3338 of the camp.

The LRA fighters operated in two groups, pursuant to Dominic Ongwen’s orders. One group of fighters attacked the military barracks, situated about a few hundred meters from the camp, killed some soldiers there and burned the barracks down, overwhelming the soldiers at the barracks. The other group of fighters spread into the civilian area, including the trading centre, where they dispelled several government soldiers and proceeded to attack the civilian residents, shooting, beating, abducting and forcing them

3339

to carry looted goods.

The Chamber is convinced by the testimony of Odek IDP camp residents and LRA

fighters who participated in the attack that as the LRA fighters entered the camp they

divided into two groups: one group heading to the camp to collect food and the other

3340 group going to attack the soldiers in the barracks.

Witnesses testified that, as they moved on the camp, LRA fighters, particularly children,

would beat jerry cans together to scare government soldiers away and instil fear in the

3341 soldiers and civilians. In line with these testimonies, P-0252 also testified that he later

learned after being abducted during the attack that the purpose of beating the cans was to

3336 D-0066: T-214 , p. 22, lines 1-4; P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 19-21; P-0218: T- 90 , p. 71, lines 11-20 (the crowd dispersed after meeting between the government soldiers and the civilians but before the soldiers could return to the barracks, the LRA attacked the camp. At the time of the attack, a few government soldiers were in the barracks and others were just leaving the gathering with camp residents). 3337 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 18. 3338 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 31; P-0218: T-90 , p. 9, line 24 – p. 10, line 2. 3339 Para. 164 above. 3340 P-0340: T-102 , p. 26, line 23 – p. 27, line 23; P-0218: T-90 , p. 9, line 24 – p. 10, line 4; P-0054: T-93 , p. 15, lines 14-19; P-0406: T-154 , p. 42, lines 7-10; T-155 , p. 43, lines 19-25; P-0352 Statement, UGA-OTP-0260-0315- R01, at paras 114-115; P-0309: T-60 , p. 77, line 24 – p. 78, line 2; P-0410: T-151 , p. 31, lines 11-12. See P-0330: T-52-CONF, p. 18, line 13 – p. 19, line 16. Although P-0330 testified that the LRA fighters attacked Odek in one group, the Chamber understands his testimony that there was a group of fighters going to the barracks and a small contingent of LRA fighters stationed to loot in the centre of the camp to conform with the testimony of other witnesses, as described. 3341 P-0275: T-124 , p. 44, lines 3-23; P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 25; P-0252: T-87 , p. 32, line 20 – p. 33, line 7; P-0410: T-151 , p. 43, lines 5-13.

No. ICC-02/04-01/15 504/1077 4 February 2021

confuse the government soldiers and civilians in the camp to give the impression that the

3342

LRA group attacking the camp was very large.

The evidence shows that, along with banging jerry cans, the LRA forces were making

3343

noise and ululating, creating alarm in the camp. As they moved on the camp, a whistle

3344

was blown and the LRA fighters started shooting. P-0340, one of the LRA attackers, testified credibly that ‘nobody was supposed to retreat, nobody should return. Whoever

3345

had tried to retreat would be beaten seriously. And we ran and attacked the place.’

The Chamber observes that the LRA fighters who participated in the attack on Odek IDP

camp and credibly testified in these proceeding were generally consistent in their

description of what occurred at the camp. Their accounts were also consistent with other

credible testimony, particularly that of witnesses who were residents of the camp at the

time. The witnesses recalled that the gunfire began at the barracks and then quickly

spread to the civilian camp.

P-0054, a fighter in Sinia brigade, was part of the group of LRA fighters who went to the

3346

fight at the barracks. P-0054 testified that the fighting began from the barracks, which

3347

was just by the roadside. Other witnesses corroborate P-0054’s account, testifying

that they first heard gunfire or saw the LRA fighters coming from the direction of the

3348

barracks.

3342 P-0252: T-87 , p. 32, line 20 – p. 33, line 7. 3343 P-0340: T-102 , p. 30, lines 8-14 (LRA fighters removed their shirts and tied them around their waist, and were blowing whistles and making noise); P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 119 (the first group of LRA soldiers started moving towards the barracks while making an alarm and ululating. They were shouting ‘catch them’ and ‘kill them’). 3344 P-0314: T-75 , p. 10, line 23 – p. 11, line 3 (that as they approached the location, the LRA troops lined up and prepared and when they reached very close to the camp a whistle was blown and the LRA fighters started shooting); P-0340: T-102 , p. 26, line 23 – p. 27, line 24 (the LRA fighters were blowing the whistle, making noise and started firing). 3345 P-0340: T-102 , p. 27, lines 24-25. 3346 P-0054: T-93 , p. 19, lines 13-14, p. 53, line 24 – p. 54, line 6. 3347 P-0054: T-93 , p. 15, lines 15-18. 3348 P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 20, 31 (the group within the camp heard gunfire coming from the direction of the barracks); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (from his position sitting outside his home, he saw the rebels enter from the side of the barracks). See P-0252: T-87 , p. 10, lines 18-21; T-89 , p. 7, lines 12-14 (the gunshots started from the direction of Lakim and Odek primary school). P-0252’s testimony is corroborated by P-0218’s account that the LRA fighters came in from the direction of Lakim and entered the camp from the northern side, shooting their guns. See P-0218: T-90 , p. 9, line 24 – p. 10, line 1; P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 20; P-0218 Sketch of Odek IDP camp, UGA-OTP- 0238-0731-R01.

No. ICC-02/04-01/15 505/1077 4 February 2021

The evidence shows that LRA fighters conducted an assault on the government

3349

barracks. P-0054 testified that an LRA fighter, Abongomek, fired a heavy weapon

3350

and the shot landed on one of the huts in the barracks and burned that hut. The Chamber notes the Defence’s contention that Michael Oryem, who was called

Abongomek while in the LRA, did not participate in the Odek IDP camp attack and was

3351

instead with Dominic Ongwen in an area near Lapak at the time. The Chamber recalls its discussion of this witness’s credibility above as well as its discussion of Dominic

Ongwen’s role in ordering the attack.

3352

Additionally other LRA fighters offered

3353

testimony which generally corroborates P-0054’s account. Several of these witnesses

independently place Abongomek at the scene of the attack and describe his active

3354

participation in it. Considering the above, the Chamber concludes that Abongomek

did indeed participate in the Odek IDP camp attack and fired a heavy weapon during the

fight at the barracks.

Witnesses reported that the government soldiers at the barracks were quickly defeated

3355

and fled. In this context, the Chamber notes LDU soldier Julius Nyeko’s testimony

3349 P-0406: T-154-CONF, p. 45, lines 14-19 (at the barracks, a battle ensured); D-0066: T-214 , p. 22, lines 9-13 (the LRA attacked the barracks); P-0410: T-151 , p. 30, lines 15-25 (LRA forces attacked the barracks of Odek IDP camp. There was a heavy fight between the LRA forces and the government soldiers in the camp); P-0309: T-60 , p. 78, lines 6- 20 (LRA fighters went to the barracks and started exchanging fire with government troops); P-0264: T-64 , p. 44, lines 16-22 (when the LRA forces arrived in Odek IDP camp, there were government soldiers within the camp and in the barracks. The government soldiers started firing guns. There were gunshots in the barracks and in the camp centre as well). 3350 P-0054: T-93 , p. 15, lines 19-21; T-94 , p. 22, lines 9-16 (P-0054 testified that the weapon was an RPG). 3351 Defence Closing Brief , paras 348-352. See Prosecution Closing Brief , paras 266-273. Chamber’s assessment of D-0075’s testimony at section IV.B.2.ii.b.xxxi above. 3352 See 3353 P-0352 Statement, UGA-OTP-0260-0315-R01, at paras 120-121 (there was a big gun, a medium size gun, as well as normal small guns used at the barracks. The big gun was like a bomb, and required two people to carry it. The gun was fired before the first group reached the camp. The bomb hit the barracks and the LRA fighters dispersed and ran to the barracks); P-0314: T-75 , p. 23, lines 13-19 (during the attack on the barracks Abongomek fired some bullets, from the big gun with chains, however the gun failed later on); P-0406: T-154-CONF, p. 45, line 21 – p. 46, line 1 (a ‘support weapon’ called a ‘12’ was used in the course of the attack, fired by a commander known as Abongomek). While they do not each name the same gun, the Chamber is satisfied that P-0054, P-0314 and P-0406 describe Abongomek firing a heavy weapon and considers that this corroborates and is consistent with P-0054’s account. See also P-0352 Statement, UGA-OTP-0260-0315-R01, at paras 120-121 (two medium size guns were taken to the attack, one to the barracks and the other to the camp. This medium size gun had chains that hung around the body of the person carrying it. P-0352 believed that the gun was called a PK). 3354 See also P-0330: T-52 , p. 14, lines 19-22 (P-0330 testified that he went to Odek under the command of Bomek, Dominic Ongwen’s 2IC); P-0264: T-64 , p. 72, lines 15-20 (Abongomek participated in the Odek IDP camp attack). 3355 P-0314: T-75 , p. 11, lines 8-12 (when the LRA fighters started shooting, the government soldiers in the barracks were caught off guard and they started running and retreating); P-0325 Statement, UGA-OTP-0264- 0242-R01, at para. 20 (after the rebels entered from the side of the barracks, they attacked and dislodged the government soldiers); P-0330: T-52-CONF, p. 18, lines 13-14 (the LRA fighters went to the barracks, shot at the government soldiers and the government soldiers fled); P-0252: T-87 , p. 11, lines 13-20 (after intense fighting in

No. ICC-02/04-01/15 506/1077 4 February 2021

that because there were so few government soldiers at the barracks, ‘they could not

3356

sustain.’ Julius Nyeko testified that one of the soldiers in the barracks tried to fight

back because he had a child with him in the barracks and the LRA came and eventually

3357

killed the soldier together with his child. LRA fighter P-0340 also testified that he saw the dead body of a soldier at the edge of the barracks; the soldier’s clothes had been

3358

removed. An LRA fighter was also shot at the barracks in the exchange of fire

3359

between the LRA and the government soldiers present at the barracks.

LRA fighters reported that they surged forward and overran the barracks, taking

3360

ammunition and other supplies. Witnesses reported seeing government soldiers flee

3361

from the area of the barracks. Witnesses also reported that the LRA fighters burned

3362

down the barracks. In addition to the barracks, the evidence shows that the LRA also

3363

burned some civilian huts within the camp.

the camp, the LRA chased the army out of the barracks. P-0252 heard someone say that the LRA had chased the soldiers out of the camp). 3356 D-0066: T-214 , p. 22, lines 9-11. 3357 D-0066: T-214 , p. 22, lines 9-13. The Chamber discusses the death of the soldier’s child further in its discussion of the killing and attempted killings committed by LRA fighters in Odek IDP camp. 3358 P-0340: T-102 , p. 30, line 15 – p. 31, line 1. P-0340 testified that he knew the soldier was not an LRA fighter because his clothes would not have been removed if he was a fighter and typically the LRA removed uniforms from the bodies of soldiers. P-0340: T-102 , p. 31, lines 6-12. 3359 P-0314: T-75 , p. 11, lines 13-16 (LRA fighter Owiny was shot in the neck and the LRA fighters left him in order to advance). 3360 P-0314: T-75 , p. 11, lines 8-20 (P-0314 entered the barracks and took ammunition); P-0352 Statement, UGA- OTP-0260-0315-R01, at para. 120 (after hitting the barracks, the first group of LRA fighters dispersed and ran to the barracks); P-0406: T-154-CONF, p. 45, lines 18-20 (the LRA fighters found weapons that fleeing government soldiers had left behind and took them); P-0410: T-151 , p. 32, lines 3-6 (after defeating the government soldiers, the LRA forces took things from the barracks, including the soldiers’ items, guns, ammunitions, uniforms and shoes). 3361 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122 (P-0352 saw government soldiers firing their guns while running in the other direction from the barracks); P-0054: T-94 , p. 23, lines 18-25 (the government soldiers fled from the barracks). 3362 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 31; P-0218: T-90 , p. 81, lines 15-19 (the barracks were burned down); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (the rebels burned the huts surrounding the barracks and he saw the barracks go up in flames as well as his own civilian hut that was close by the barracks); P-0340: T-102 , p. 26, line 23 – p. 28, line 3, p. 30, lines 15-22 (LRA fighters set fire to the houses at the barracks). See P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 29 (during the attack, he noticed that the barracks were on fire). See also P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0438 (P- 0301’s Incident Report states that the LRA overran and burnt down the ‘LDU “Charlie” BN detach in Odek’). 3363 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (testifying that the rebels burned the huts surrounding the barracks and Zakeo Odora saw the barracks go up in flames as well as his own civilian hut that was close by the barracks); P-0406: T-154 , p. 46, line 23 – p. 47, line 4; T-154-CONF, p. 47, lines 5-10 (stating that he saw houses burning in the camp. According to P-0406, LRA fighters would light a match and then set fire to houses. P-0406 set a house of fire, upon orders of his LRA commander). See also P-0352 Statement, UGA- OTP-0260-0315-R01, at para. 123 (stating that one house burned down with civilians inside); P-0330: T-52 , p. 20, line 9 – p. 21, line 1 (P-0330 saw dead people in Odek, including people burned in their huts by LRA fighters).

No. ICC-02/04-01/15 507/1077 4 February 2021

Contrary to the Defence’s suggestion during the examination of some witnesses, the

Chamber is satisfied that these huts were not set on fire by crossfire stemming from the

government forces. For instance, during the questioning of P-0340, Defence counsel

suggested that certain types of guns can ignite a fire and that this could have caused the

3364 burning. However, in his responses P-0340 did not confirm that he knew whether the

3365 government soldiers had such weapons and, after further questioning, explained that

3366 he only saw the buildings on fire, not how they had been ignited. In any case, the

Chamber notes that destruction of property was not among the charges confirmed in

relation to the Odek IDP camp attack.

Witnesses, both LRA fighters and camp residents, reported that as the LRA fighters

attacked and overran the barracks, other LRA attackers spread into the camp, some firing

their weapons. P-0352, a member of Dominic Ongwen’s Sinia brigade, testified that she

3367 was among the forces sent to the civilian area. She stated that by the time the group

going to the camp centre entered, the LRA fighters with guns had started shooting

3368 towards the barracks. She and the other LRA forces going to the camp centre ran into

the camp, making ‘an alarm’. 3369 P-0309, also one of the Sinia fighters that attacked the

camp centre, testified that when LRA fighters in the centre heard gunshots start coming

from the barracks, they also started shooting at the government soldiers they found mixed

3370 3371 with civilians in the centre. P-0309 testified that he too shot his gun.

3372 P-0252, who was abducted during this attack, stated that LRA soldiers filled the camp.

P-0252 testified that after the rebels overran the barracks there was gunfire everywhere;

even while trying to apprehend the witness, P-0252’s LRA abductor kept firing his

3373 gun. Similarly, P’Oyoo Lakoch, a local teacher at the time of the attack, saw the LRA

rebels from about 100 metres, moving through the camp, carrying guns, and shooting as

3364 P-0340: T-103 , p. 52, lines 4-5 and 12-16. 3365 P-0340: T-103 , p. 52, lines 17-20. 3366 P-0340: T-103 , p. 52, line 21 – p. 53, line 11. 3367 P-0352 Statement, UGA-OTP-0260-0315-R01, at paras 119-120. 3368 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 120. See P-0325 Statement, UGA-OTP-0264-0242- R01, at para. 22 (stating that when the LRA attacked the camp centre, Zakeo Odora ran away towards the Odek River along with his wives and children). 3369 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 120. 3370 P-0309: T-60 , p. 81, lines 3-21. 3371 P-0309: T-60 , p. 81, lines 22-23. 3372 P-0252: T-87 , p. 12, line 5. 3373 P-0252: T-89 , p. 8, line 12 – p. 9, line 3.

No. ICC-02/04-01/15 508/1077 4 February 2021

3374 they went along; they advanced through the camp, shouting and firing at civilians, 3375 running around while firing their guns.

P-0264 offers testimony consistent with the other witnesses, stating that LRA forces were 3376 shooting towards the barracks and also shooting towards the camp. P-0264 described

the scene at the camp from the point of view of one of the LRA fighters entering the

camp centre:

Q. What happened […]?

A. […] there were soldiers among those people, so in order to enter and start abducting civilians in the presence of soldiers would be impossible. So we--we started shooting. I also personally shot my gun at the soldiers that were with the civilians.

Q. Did you shoot your gun at any civilians?

A. Not--no, not at Odek. At Odek I only shot at soldiers. I also shot in the houses, but that’s--well, that’s equal to shooting civilians because you’re firing in a civilian 3377 camp.

The Chamber finds the above witnesses’ accounts credible, consistent and mutually

corroborative.

LRA fighter P-0352 and camp resident P’Oyoo Lakoch testified that some civilians 3378 started running away as LRA fighters moved into the camp. P’Oyoo Lakoch reported

that many residents ran to their huts having previously been advised by the government 3379 soldiers to do so in the case of an attack. P’Oyoo Lakoch reported that because of the

continued gunfire, the civilians began to panic; some ran away, some ran into houses and 3380 the rebels advanced through the camp, shouting and firing at civilians.

3374 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 21. 3375 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 20; P-0218: T-90 , p. 72, lines 2-8. 3376 See P-0264: T-64 , p. 57, lines 8-13. 3377 P-0264: T-64 , p. 54, lines 12-21. The Chamber notes that the witness later recalled that he personally shot and killed a civilian at the camp centre while shooting at the soldiers. P-0264: T-64 , p. 55, line 10 – p. 56, line 8. 3378 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122; P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 20. 3379 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 21; P-0218: T-90 , p. 63, line 25 – p. 64, line 6, p. 70, lines 14-20. 3380 P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 20-21; P-0218: T-90 , p. 70, lines 11-20.

No. ICC-02/04-01/15 509/1077 4 February 2021

Camp resident Hellen Adong corroborates these accounts, reporting that after hearing

3381

gunshots, people started running and she and her children ran into their house. Hellen

Adong stated that at some point a bullet entered the house but missed her and her children

3382

because they were all lying down on the ground.

The evidence indicates that there was some exchange of gunfire between the LRA

fighters and government soldiers at the barracks and at the camp centre. The Chamber

3383

notes the above discussion of the fighting at the barracks. Within the camp centre, the

3384

government soldiers also shot back at the LRA fighters shooting at them. As P-0340 stated ‘[w]hen they say fighting, that means the government soldiers shot back. They are

the ones who are being attacked and they should be the ones to defend. There was a battle’.

3385

However, witnesses credibly testified that the government soldiers within the camp, like

3386

the government soldiers in the barracks, were quickly overwhelmed and fled.

3387

The LRA forces within the camp proceeded to also loot goods and abduct civilians.

In this context, the Chamber recalls P-0352’s testimony that before entering the camp,

she and the LRA forces being sent to the camp were told that they were to go into the

camp, enter houses and take food and clothes, if they came across a young person and

3381 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 23. 3382 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 23. the Chamber’s discussion of the fighting and deaths at the barracks in para. 1443 above. 3383 See 3384 P-0309: T-60 , p. 79, lines 9-12, p. 81, lines 12-16; T-61 , p. 4, lines 20-24 (P-0309’s group of LRA fighters found soldiers amongst the civilians and so they started shooting at the soldiers. The soldiers also shot back and then fled). See P-0264: T-64 , p. 58, lines 19-25 (P-0264 indicated that an LRA soldier was killed in the camp). 3385 P-0340: T-103 , p. 51, lines 13-17. 3386 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 29; T-90 , p. 71, line 16 – p. 72, line 1 (testifying that there was not much fighting between the government soldiers and the LRA during the attack because the small numbers of government soldiers were overwhelmed and ran away. The government soldiers who were not in the barracks ran through the camp and headed towards Lango which was southwards of the camp. Some government soldiers ran together with some of the civilians fleeing the camp); P-0269: T-86 , p. 25, lines 10-14 (there was an exchange of fire between LRA soldiers and the government soldiers. The government soldiers were defeated and went across the stream); P-0264: T-64 , p. 54, lines 4-6, p. 57, line 4-18 (LRA forces continued going forward and fighting and defeated the government soldiers. P-0264 personally saw soldiers fleeing and entering into civilian houses). See also P-0142: T-70 , p. 29, lines 10-15 (when the LRA fighters returned from Odek, they told the LRA who had stayed behind, including P-0142, that ‘[w]e attacked Odek, the government soldiers were chased away’). The Chamber finds P-0142’s testimony convincing because he heard it immediately after the LRA fighters returned to the rendezvous point from attacking Odek IDP camp. See D-0066: T-214 , p. 22, lines 14-17 (testifying that there was a soldier running from the centre, he had his uniform on but had left his gun at the barracks, he started going towards the barracks and as he was approaching the barracks, he was shot and killed). 3387 The Chamber discusses the crimes committed by LRA fighters within Odek IDP camp in the sections below.

No. ICC-02/04-01/15 510/1077 4 February 2021

3388 could scare the person without a gun, then they should abduct that person and if someone refused to come out of the house then they were to burn the house with the 3389 person inside. P-0352, one of Dominic Ongwen’s Sinia attackers, testified that she 3390 saw LRA fighters beating civilians with the butts of their guns in the camp.

The Chamber notes that P-0054 testified about the actions of government soldiers in the 3391 centre of Odek IDP camp during the attack. However, given that he did not go to the centre himself and that he was participating in the attack on the barracks and was not in a position to have accurate information about what was occurring in the centre, the Chamber puts little weight on his testimony about the fighting in the centre of the camp.

Additionally, the Chamber notes that Julius Nyeko testified about the shooting between 3392 the additional government forces and the LRA. The Chamber recalls its assessment 3393 above of the credibility of the evidence provided by Julius Nyeko. The Chamber also recalls Julius Nyeko’s testimony that he fled from the attack and hid half a mile away. From the witness’s testimony, the Chamber is unable to ascertain exactly when during the attack he fled and hid away. However, on the face of the evidence given, the Chamber is of the view that he was not in the position to witness much of the actual attack during the events. The Chamber does not place credence on his account of the movement and actions of the mobile forces.

At this juncture, the Chamber provides a more specific assessment of the available evidence concerning the numerous acts of violence and looting perpetrated by LRA fighters against civilians in the course of the attack on Odek IDP camp, as well as its immediate aftermath. As also emerges from the evidence analysed below, the victims targeted by the LRA attackers were civilian residents of the camp.

While in the camp, LRA attackers broke into homes and shops and looted food and other items from the camp, both from shops in the trading centre and from civilian homes,

3388 P-0352 was among the unarmed LRA attackers who participated in the attack on the camp. See P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122. 3389 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 116. 3390 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 123. 3391 P-0054: T-93 , p. 15, lines 21-23 (discussing the presence of government soldiers and mambas on the other side of the school). 3392 D-0066: T-214 , p. 22, line 21 – p. 23, line 19, p. 24, lines 11-19 (testifying that the mobile forces on the other side of the river started firing on the camp and the mobile forces returning to the camp to come and save the camp were firing towards the camp as well). the Chamber’s discussion of D-0066’s testimony in section IV.B.2.v.b.ii. 3393 See

No. ICC-02/04-01/15 511/1077 4 February 2021

including items such as beans, cooking oil, maize, flour, soda and other beverages, biscuits, sugar, salt, posho, soap, clothes, saucepans, bedding, shoes. The food aid which had been recently distributed to the camp was looted by the attackers. The LRA distributed the items looted from Odek IDP camp to the households of different commanders, including

3394

Dominic Ongwen.

Both LRA fighters and camp residents offered credible and consistent evidence to this

Chamber that LRA fighters looted Odek IDP camp during the course of the attack.

LRA fighters testified that they looted the camp, taking items such as soap, clothes, shoes,

money as well as food stuff including salt, beans, cooking oil, maize, flour, soda and

3395

biscuits. In this context, the Chamber recalls P-0264’s testimony that after they

3396

defeated the government soldiers, LRA attackers started taking things from the camp.

P-0264 testified that he was among the LRA forces that looted goods from Odek and

3397

took them back into the bush. Similarly, P-0340 testified that there were many LRA

3398

fighters who carried food from Odek, and that abductees were also made to carry

3399

foodstuffs. According to P-0340, after the LRA re-converged while retreating from

3400

Odek, he saw that some other LRA fighters came back with items.

In line with the testimony of the LRA fighters, camp residents provided credible, detailed,

specific and mutually corroborative evidence that the LRA looted goods, including food,

from the camp. Hellen Adong testified that after being abducted, as she was moving with

the LRA out of the camp, rebels entered the house of Thomas Anyayo Opio (Opiyo),

3394 Para. 165 above. 3395 P-0372: T-148 , p. 42, lines 7-11, line 20 – p. 43, line 3 (P-0372 was among the group that was going to collect food items in the camp centre. He saw LRA fighters enter the camp to loot goods); P-0340: T-102 , p. 34, line 21 – p. 35, line 7 (P-0340 testified that he personally went into a civilian’s house in the middle of Odek IDP camp and found beans and flour, took it and started running with others to return from the camp); P-0410: T-151 , p. 32, lines 7-8, p. 46, lines 15-18 (P-0410 observed that LRA fighters looted civilian property, including food stuff from the camp); P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122 (after entering the camp, LRA fighters without guns entered the houses and looted); P-0309: T-60 , p. 82, line 14 – p. 83, line 1 (P-0309 saw LRA fighters loot items from civilians homes, including clothes, shoes, cooking oil and salt); P-0264: T-64 , p. 61, lines 12-21 (the LRA looted items from the camp, including soap, salt, clothes and food); P-0142: T-70 , p. 33, lines 17-19; T-71 , p. 5, lines 16-19 (one of P-0142’s subordinates who had participated in the attack stated that the LRA took food from Odek. The majority of items looted from the camp were household items such as beans, groundnuts and biscuits); P-0330: T-52-CONF, p. 22, lines 1-4, p. 23, line 3 – p. 24, line 10 (the LRA took items from shops, including flour and money. P-0330 handed over the money he took from Odek to his immediate superior, in line with instructions received from Okello that money taken from an attack should be handed in to superiors). The Chamber notes that it found P-0330’s account here credible. 3396 P-0264: T-64 , p. 54, lines 5-6. 3397 P-0264: T-64 , p. 61, lines 19-25. 3398 P-0340: T-102 , p. 35, lines 8-12. 3399 P-0340: T-102 , p. 36, lines 9-10, line 25 – p. 37, line 3 (foodstuff such as beans, cooking oil and flour). 3400 P-0340: T-102 , p. 29, lines 13-18 (items like soda and biscuits).

No. ICC-02/04-01/15 512/1077 4 February 2021

who had been killed in the course of the attack, and LRA fighters took things from his

3401 house. Similarly, P-0269 testified that during the retreat she saw armed LRA fighters

3402 holding items, followed by residents of the camp also carrying items. She testified

that an LRA fighter took flour from her house and made her carry it and follow him as

3403 the LRA retreated from the camp. Camp residents reported that the LRA fighters took

3404 3405 items such as flour, maize, posho, beans, cooking oil, salt and soap from the camp.

Camp leader Mario Ottober testified that returned abductees said that they all carried

3406 something during the LRA’s retreat.

The evidence shows that much of the goods taken from Odek IDP camp were taken from

civilian homes. Hellen Adong testified that she saw armed LRA fighters looting maize,

3407 beans and flour from the houses near the barracks. The bag of maize she was forced

3408 to carry was taken from the home of a civilian.

In testimony consistent with Hellen Adong’s description of the LRA’s behaviour, Helen

Opoka Acan testified that LRA fighters came into her house and started looting things,

3409 taking everything they could find and leaving her with nothing. From her home, the

3410 LRA attackers took flour, maize, beans, oil, clothes, saucepans, even the bedding.

Similarly, , an LRA fighter went into

a hut and returned with a 20 kilogram bag of maize flour, with ‘World Food Program’

3411 written on the bag; the soldier gave the bag to Hilary Kilama to carry. P-0275 testified

that an LRA fighter took him and other abductees to a hut belonging to Aciga Ocaya, a

3401 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 33. 3402 P-0269: T-85 , p. 35, line 20 – p. 36, line 2. 3403 P-0269: T-85 , p. 36, line 7 – p. 37, line 5. 3404 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 44. P-0325 testifies that posho is one of the staple foods of the local people and is made from maize flour. 3405 P-0269: T-85 , p. 39, lines 7-10 (civilian abductees carried flour, maize, beans, cooking oil and some other items that were looted from shops, like salt and soap); P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 34 (P’Oyoo Lakoch was told by returned abductees food items, such as posho, beans, sugar, soya flour and cooking oil, were carried out of the camp); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 44 (the rebels stole lots of food from the camp, such as cooking oil, maize, beans, and posho. Almost all of the food that had been recently distributed in the camp at the time of the attack was taken by the rebels). 3406 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 82 (the returned abductees said that they carried food items like beans, salt, and maize among other things). 3407 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 28. 3408 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 30. 3409 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 23. 3410 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 23. 3411

No. ICC-02/04-01/15 513/1077 4 February 2021

3412 local carpenter. P-0275 testified that the LRA fighter entered the hut and took a sack

of beans tied at the top, he then took a can of cooking oil with ‘USA’ written on it, as

3413 well as a bag containing clothes and gave it to the abductees to carry.

LRA fighters corroborate the camp residents’ account. P-0309 testified that he saw LRA

3414 fighters looting items from the homes of civilians during the attack. P-0309 testified

that he saw items like cooking oil, clothes and shoes carried out from the homes of

3415 civilians. Similarly, P-0340 testified that he looted beans and flour from a civilian’s

3416 house in the middle of the camp.

The Chamber notes P-0314’s testimony that he was told by the LRA fighters who went

to the camp that there were a lot of government soldiers there so they did not loot a lot

3417 of food. The Chamber notes however that P-0314 did not go into the camp centre and

testified that he did not know what happened in the camp or what the LRA forces did

3418 there, apart from looting food. Thus, given the ample evidence that indicated that

LRA fighters looted widely in Odek IDP camp, the Chamber does not rely on this aspect

of P-0314’s testimony. Indeed, the Chamber notes that P-0314 testified that during the

retreat from Odek, he saw food that had been looted from Odek IDP camp, including salt,

3419 beans, flour, cooking oil, and other items such as soap.

The Chamber is satisfied that the evidence shows that the LRA looted widely from the

homes of civilians.

The evidence also shows that LRA fighters looted from shops in Odek IDP camp. Zakeo

Odora testified that the day after the attack, he went to the trading centre and all the doors

3420 of the shops had been broken and the rebels had stolen items like salt and sugar. Zakeo

3421 Odora testified that he could see for himself that the shops were empty inside. P-0264

3412 P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 28.

3413 P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 28. 3414 P-0309: T-60 , p. 82, lines 14-19. 3415 P-0309: T-60 , p. 82, line 18 – p. 83, line 1. 3416 P-0340: T-102 , p. 34, line 21 – p. 35, line 7. 3417 See P-0314: T-75 , p. 12, lines 1-6. 3418 P-0314: T-75 , p. 12, lines 10-12; T-76 , p. 25, lines 1-8. 3419 P-0314: T-75 , p. 12, lines 13-15, p. 13, lines 9-12. 3420 P-0325 Statement, UGA-OTP-0264-0242-R01, at paras 44-45. 3421 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 44.

No. ICC-02/04-01/15 514/1077 4 February 2021

3422

testified LRA fighters took soap from shops in Odek. P-0252 testified that LRA

fighter Onen Kamdulu took some soda, biscuits, and other edibles from a grocery stop

3423

by the roadside. P-0252 testified that LRA fighters forced the door of the shop open

3424

with a bayonet and looted soda, biscuits, beverages, cooking oil and soap.

As camp leader Mario Ottober was in a position of authority in the camp and inspected

the camp the day after the attack, the Chamber relies on his testimony that although the

LRA wanted to break into the food store in the middle of the camp, they were

3425

unsuccessful because the government soldiers arrived and the LRA fled. Mario

Ottober testified that he knows that the LRA did not break into the food store because he

3426

inspected it the next day with the store keeper after the attack.

Although evidence is scant as to how and from whom the item was taken, the evidence indicates that, in line with Dominic Ongwen’s reporting to Joseph Kony, a diamond was

taken in the course of the LRA’s attack on Odek IDP camp. P-0264 testified that a

3427

diamond was recovered from the camp by an LRA fighter Okeny Ginadyak.

3422 P-0264: T-66 , p. 64, lines 15-19. The Chamber notes that the witness testified that there was ‘no marketplace in Odek’. The witness testified that there were shops, not a market. The Chamber is of the view that the witness observed a number of shops in the camp and was expressing his personal view of the volume of what would constitute a market. This is not inconsistent with the testimony of others that there was a trading centre in Odek and shops which were looted by the LRA. 3423 P-0252: T-87 , p. 15, lines 13-15, p. 19, lines 9-14; T-89 , p. 9, lines 6-8. 3424 P-0252: T-87 , p. 19, lines 17-23. 3425 P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 82-83. 3426 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 83. For this reason the Chamber does not on this specific point accept the testimony of P’Oyoo Lakoch, who stated that he saw the food store being raided by LRA fighters. P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 34; P-0218: T-90 , p. 10, lines 25 – p. 11, line 3, p. 12, lines 6-14, p. 70, line 21 – p. 71, line 10. Noting that P’Oyoo Lakoch’s larger testimony was consistent and corroborated by the other evidence in this case, the Chamber’s non-reliance on P’Oyoo Lakoch’s testimony in this instance does not undermine the Chamber’s view of the general credibility of his accounts of what happened in Odek IDP camp. 3427 P-0264: T-64 , p. 62, lines 1-5. The Chamber notes that the name of the LRA fighter P-0264 mentions is different from that mentioned by Dominic Ongwen in the radio communication in which he reported the looting of the item. The Chamber is of the view that this discrepancy does not undermine the consistency of P-0264’s testimony with Dominic Ongwen’s report.

No. ICC-02/04-01/15 515/1077 4 February 2021

The evidence shows that LRA fighters returned to the other LRA fighters with the goods

3428 looted from Odek IDP camp and the items were distributed to various households,

including Dominic Ongwen’s. 3429

In the light of the foregoing, the Chamber finds that the LRA looted houses and shops in

the trading centre during the 29 April 2004 Odek IDP camp attack.

During the attack in the camp, a female LRA attacker raped , a civilian resident of the camp, with a comb and a stick used for cooking, while the victim’s husband was forced to watch. The rape was committed with such force that

3430

started to bleed.

One camp resident testified about being raped by a female LRA fighter.

testified that an armed female LRA fighter, wearing an army outfit with camouflage

3431 came into her house and found her sitting down in the hut. She described that the

woman pulled her up and took a comb that was typically used for hair care and tried to

3432 stick in inside her vagina. The witness testified that the comb was very painful and

3433 would not go in so the soldier removed it. She explained that the soldier then took a

‘mingling stick’, used for cooking, and put that in ’s vagina. 3434 She

testified that the soldier put the stick all the way in until blood started to come out of her

3435 3436 body. The witness testified that the soldier used a lot of force. The witness testified

3437 that the soldier did not say anything during the attack nor did she. She described that

after the soldier was finished, she threw on the floor and stepped on

3428 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 35 (P’Oyoo Lakoch was told by two returned abductees, Helen Ottober and Nighty Olanya, that the pillaged food was brought back to a bigger group of LRA fighters at a place called Lakim, which was about four kilometres away from Odek IDP camp); P-0142: T-71 , p. 5, lines 20-22 (P-0142 saw the fighters who returned with looted items); P-0340: T-102 , p. 35, lines 8-12 (there were many people carrying food taken from Odek); P-0205: T-47 , p. 45, lines 10-18 (P-0205 testified that he saw the LRA fighters who went to attack Odek return to the rest of the Terwanga soldiers carrying food items taken from Odek). 3429 P-0314: T-75 , p. 17, line 22 – p. 18, line 3 (when the fighters returned to the gathering place, some of the food items that were brought back were divided, while others were hidden. Dominic Ongwen’s 2IC, Kalalang, was the one who divided the food); P-0330: T-52 , p. 25, lines 2-7 (all the items looted from Odek were distributed to various households, including to Dominic Ongwen and his deputy). 3430 Para. 166 above. 3431 3432 3433 3434 3435 3436 3437

No. ICC-02/04-01/15 516/1077 4 February 2021

3438 her chest as the fighter left the hut and ran off. The witness then had to remove the 3439 3440 stick herself. The witness testified that her husband saw what happened to her. She described that ‘the stick brought sickness as I have a wound inside of me…We could never live as husband and wife again but he did not leave me’. 3441

3442 The Chamber is convinced of the veracity of ’s testimony about her rape. Her

narrative was detailed, comprehensive and internally consistent. The Chamber is convinced that she described an event she actually experienced and that remains a

traumatic occurrence in her life. The Chamber is satisfied that the evidence shows that was raped by a female LRA attacker in the course of the attack on Odek IDP camp.

Under orders to shoot civilians in the chest and head to ensure that they died, LRA fighters fired their weapons at civilians during the attack. At least 52 civilians died as a result of the injuries sustained in the camp or in the course of the retreat, while at least ten were the victims of attempted killings. Many civilians were shot as they ran away from the LRA. Among the victims were elderly civilians, children, a pregnant woman as well as women carrying babies tied to their back. The bodies of the dead were scattered everywhere across the camp. Witness P-0264, an LRA fighter, was ordered to spray bullets inside civilian houses. He also shot a civilian man dead. LRA also fighters set at

3443

least one hut on fire with civilians inside.

The LRA killed the following persons within the camp during their attack: Adoni Okullu, Agudu’s wife and her grandson, Betty Adong and her daughter Ajok, Catherine Amono, Okeny, Aldo Okello, Ayita Labanya, Charles Obur, Doris Apiyo, Jenaro Ongwen, Jimmy Ojok, Catherine Laker, Kevin Apiyo, Kerobina Acayo, Kejikiya Okec, Veronica Auma, Mary Acayo, Monica Aciro, Wilson Okoya, Okoya, Obangomoko, Pedwang Opio, Thomas Opiyo, Thomas Ojok, Valentino Okot, Walter Ojok, Atikcon, an unnamed camp resident, Mary Agudu, Doreen Ojok, DP, Acayo, Aboni, Witness P-0269’s mother-in-law

3444

and her grandson, a girl found by the river.

LRA fighters also attempted to kill at least ten civilians. An LRA fighter fired shots through the door of a locked hut, killing the male inhabitant and wounding the female inhabitant in the neck. The LRA attempted to kill the following persons in the course of the attack: Santa Akello, Betty Atenyo, Christopher Moro, David Bua, Witness P-0252,

3438 3439 3440 3441 3442 3443 Para. 167 above. 3444 Para. 168 above.

No. ICC-02/04-01/15 517/1077 4 February 2021

Kengali and his wife, a man by a borassus palm tree, Okot LC’s mother and a woman

3445

shot in the mouth.

The Chamber finds that the evidence shows that during the 29 April 2004 attack on Odek IDP camp, LRA fighters specifically targeted civilians and killed them, as ordered by Dominic Ongwen. On some occasions, killings were not fully carried out because of independent circumstances.

The Chamber first discusses the evidence that LRA fighters purposefully killed or attempted to kill people within Odek IDP camp during the course of their 29 April 2004 attack on the camp, specifically targeting civilians. The Chamber then discusses the evidence of specific named individuals killed by the LRA or whom the LRA attempted to kill both within the camp in the course of the attack and outside of the camp during the LRA’s retreat from Odek IDP camp.

In the course of the proceedings, the Defence suggested that civilians killed during the course of the attack on Odek IDP camp were shot during ‘crossfire’. 3446 The Prosecution argues that LRA fighters were seen killing civilians within and outside of the camp and contends that ‘[w]hile it is entirely possible, even likely, that some civilians may have died in circumstances such as these, the overwhelming evidence establishes that the LRA intentionally killed at least 27 civilians’. 3447

Having considered the totality of the evidence, the Chamber is convinced that the evidence proves that LRA fighters killed the victims during the attack. The evidence does not suggest that the civilians killed in Odek IDP camp were killed during crossfire between government forces and the LRA fighters. The Chamber understands the killing of civilians in crossfire to mean the death of civilians in an exchange of gunfire between government soldiers and LRA fighters in which it is not possible to ascertain which party actually shot the victim.

3445 Para. 169 above. 3446 See P-0269: T-86 , p. 25, lines 15-16. 3447 See Prosecution Closing Brief , paras 290-4.

No. ICC-02/04-01/15 518/1077 4 February 2021

LRA fighters P-0372, P-0264, P-0085, P-0233, LDU officer Julius Nyeko, and camp residents P-0269 and P’Oyoo Lakoch raised the possibility of the deaths of civilians by crossfire. The Chamber addresses each witness’s testimony in turn.

3448 P-0372 testified that there were civilians ‘caught in the crossfire’. When questioned about whether this meant that civilians were ‘shot by accident or just that they were shot during the gun-fight’, P-0372 testified that ‘that was by accident, they were not targeted. You know, when there is exchange of gunfire and you are trying to flee, you can be a victim of a stray’. 3449 It is clear that the witness was speaking of what could happen in a general manner and in so far as he speaks specifically, the witness indicates that he was stating that civilians were not specifically targeted and not speaking of death by crossfire as the Chamber understands it. The Chamber notes that P-0372 does not testify to actually seeing a civilian struck by crossfire. The witness also does not indicate that such a ‘stray’ bullet would have come from being fired by government soldiers.

P-0264 also testified of ‘crossfire’, saying ‘[s]o civilians were also caught in the crossfire’. 3450 The Chamber notes that in the context of P-0264’s mention of crossfire, he was describing a scenario in which LRA forces were shooting at houses with closed doors on the suspicion that they housed government soldiers, and in the process shot civilians as well as government soldiers. The Chamber recalls that P-0264 also stated:

Well, there’s – once you direct a barrel of a gun in a certain direction, the barrel of the gun is in that direction. I – my intention was to shoot at soldiers, but sometimes 3451 civilians get caught up in the cross-fire when you’re shooting at soldiers. P-0264 offered an example which illustrated what he was describing: when the LRA arrived at the camp, a group of soldiers were drinking in the camp and there was a person in civilian clothing among them, ‘[a]nd these people go up. When they got up to flee [the LRA attackers] immediately started shooting at them and the civilian was caught in the 3452 crossfire – the civilian was shot at the time’. This is not ‘crossfire’ as the Chamber understands it; this is LRA fighters shooting at civilians.

3448 P-0372: T-148 , p. 46, lines 5-14. 3449 P-0372: T-148 , p. 46, line 22 – p. 47, line 1. 3450 P-0264: T-64 , p. 52, line 25. 3451 P-0264: T-64 , p. 56, lines 3-8. 3452 P-0264: T-66 , p. 66, lines 4-11.

No. ICC-02/04-01/15 519/1077 4 February 2021

When P-0264 spoke about ‘crossfire’, he was generally describing scenarios in which

LRA fighters shooting at government soldiers also shot civilians in the midst of the

soldiers. The initial gunfire within Odek IDP camp centre, as described by P-0264, was

not a scenario where government soldiers and LRA forces were on two sides of the camp

and civilians were ‘accidentally’ caught in the middle. Rather, it was one in which

civilians and government soldiers were on one side and the LRA fighters on the other.

And LRA fighters started to attack and shot indiscriminately, without care as to the lives

of the civilians present.

In this context, the Chamber recalls the testimony of Sinia fighter P-0309, who testified

that his group found soldiers amongst the civilians and so they started shooting at the

3453 3454 soldiers. P-0309 testified that the soldiers also shot back and fled. In P-0309’s

3455 view he did not see anyone shooting directly at civilians, rather the LRA fighters shot their ‘guns, aiming at the soldiers who were mixed up with the civilians’. 3456 P-0309

testified that he saw five of these civilians who were mixed up with the soldiers who were being shot by the LRA, ‘[fall] down, they had blood over them’. 3457 P-0309 testified that he did not know whether the civilians were alive or dead, but he ‘can confirm that they

3458 were wounded’. This is further evidence that the LRA fighters failed to distinguish

between civilians and soldiers.

Both LRA fighters and camp residents reported that the LRA fighters shot

3459 indiscriminately at civilians. LRA fighters also shot at government soldiers and

3453 P-0309: T-60 , p. 79, lines 9-11. 3454 P-0309: T-60 , p. 81, lines 12-16; T-61 , p. 4, lines 20-24. 3455 P-0309: T-60 , p. 79, lines 12-14. 3456 P-0309: T-60 , p. 79, lines 15-17. 3457 P-0309: T-60 , p. 79, lines 18-20; T-61 , p. 5, lines 3-6. 3458 P-0309: T-60 , p. 79, lines 21-23. 3459 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 31 (stating that the fighters not at the barracks spread throughout the camp, killing civilians and looting); P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (Zakeo Odora saw LRA fighters shooting at civilians. The rebels shot at anyone they saw, even opening the doors of huts and shooting the people inside); P-0218: T-90 , p. 72, line 9 – p. 73, line 16; P-0218 Statement, UGA-OTP- 0238-0720-R01, at para. 21 (P’Oyoo Lakoch heard heavy gunshots coming towards his location in the camp and believing that the government soldiers had been defeated, he fled the camp. As he fled with other civilians, the LRA was running towards them, so the civilians scattered and ran off. P’Oyoo Lakoch stated that when the rebels started shooting at the civilians, the civilians ran in different directions). The Chamber discusses the LRA fighters shooting civilians in greater depth below in its discussion of the killing and attempted killing of civilians by LRA fighters.

No. ICC-02/04-01/15 520/1077 4 February 2021

3460 civilians. P-0352 testified that she could see civilians and government soldiers crying 3461 and falling down when they were shot.

The Chamber recalls P-0085’s testimony that he was told by Dominic Ongwen that the civilians shot in Odek IDP camp were killed in the crossfire and also that Dominic 3462 Ongwen said he did not know what the civilians were actually doing. In addition to the ample evidence to the contrary, as discussed below, neither Dominic Ongwen nor P- 0085 were present at the Odek IDP camp attack. So while their conversation is evidence that Dominic Ongwen sent his fighters to attack Odek IDP camp, it is not reliable evidence of what actually occurred in the camp. In this context, the Chamber recalls its findings that Dominic Ongwen ordered armed LRA fighters to attack Odek IDP camp and to target everyone they find at Odek IDP camp, including civilians.

Similarly, P-0233 did not participate in the attack on Odek IDP camp; however, he was 3463 told about the attack by a fighter who did. P-0233 only testified that he was told that the LRA went to attack Odek, however he then speculated that ‘[y]ou know, when there is a battle […] if animals are fighting, the grass also suffers […] when soldiers are fighting, soldiers cannot – the bullets cannot bypass the civilians, so the civilians suffer like the grass that suffers under animals fighting’. 3464 In this context, P-0233 ventured that in Odek, civilians ‘will be killed. They will be caught in the crossfire during the battle’. 3465 Noting that P-0233 was not at the attack, his comments were general in nature and not tied to anything he stated he was told about the Odek attack, the Chamber does not put weight on his testimony.

Regarding LDU officer Julius Nyeko’s indication of death of civilians by ‘crossfire’, the Chamber recalls its assessment of his credibility, particularly its view that his testimony was not clear as to what he witnessed or heard about during the attack, thus making it difficult for the Chamber to trust this aspect of his testimony. This is particularly true of Julius Nyeko’s testimony about the actions of the mobile forces during the attack. Julius

3460 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122 (P-0352 could see LRA fighters shooting government soldiers and civilians in the camp). 3461 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 122. 3462 P-0085: T-158 , p. 43, lines 10-15. See also T-159 , p. 37, lines 14-24. 3463 P-0233: T-111 , p. 45, lines 11-15. 3464 P-0233: T-111 , p. 45, lines 18-24. 3465 P-0233: T-111 , p. 45, line 25 – p. 46, line 3.

No. ICC-02/04-01/15 521/1077 4 February 2021

Nyeko testified as though he was present in the camp and observed the mobile forces’ 3466 behaviour in the attack. Yet he also indicated that he fled the camp during the attack and hid at a position about half a mile away from the camp and could not see what was 3467 happening in the camp. The Chamber notes that while other witnesses testified about the return of the mobile forces or reinforcement of government soldiers at the end of the attack, none testified as Julius Nyeko appears to have done that the mobile forces were 3468 engaged in the early period of the attack and were firing at the camp.

Although Julius Nyeko testifies that ‘many people were saying a lot of people were shot 3469 from the shots that were coming from the school,’ the witness does not offer any particular detail to support this assertion. The Chamber also notes that no other witness testified along these lines. Indeed given the many witnesses that testified about the attack on Odek IDP camp, the Chamber is of the view that had there been widespread casualties from shots coming from government soldiers at the school, there would be further indication of this in the other available evidence. The Chamber also notes that Julius Nyeko did not testify that he personally witnessed any civilians being shot by the government soldiers. Nor does he testify that anyone told him of specific persons shot by government soldiers. Indeed of the 13 specific killings that the witness mentioned being 3470 told of after the attack, he described each of the victims as killed by the LRA.

Regarding P-0269, the witness testified that there was an exchange of gunfire between 3471 the LRA and the government soldiers in which some government soldiers were killed. When asked whether it would be ‘right to say that some civilians died in the crossfire’, the witness replied ‘[y]es that is correct because there was exchange of fire, the rebels 3472 did not come quietly in the camp’. The Chamber notes here that the witness’s testimony suggests that she believed that the LRA were at fault for the civilians killed.

3466 D-0066: T-214 , p. 26, line 14-17, p. 28, lines 1-10. 3467 D-0066: T-214 , p. 23, lines 4-6, p. 24, lines 11-19. the Chamber’s discussion of the course of the attack in para. 1552 below. 3468 See See P-0264’s sketch of Odek IDP camp, UGA-OTP-0256-0178 (indicating that the school is in the vicinity of the barracks, away from the camp centre). 3469 D-0066: T-214 , p. 28, lines 13-14. See P-0264’s sketch of Odek IDP camp, UGA-OTP-0256-0178. 3470 The soldier shot at the barracks along with his son, the soldier shot returning to the barracks, the woman shot in the camp and the nine men killed by the LRA in the bush. See D-0066: T-214 , p. 22, lines 10-20, p. 23, line 25 – p. 24, line 4 and p. 25, line 15 – p. 26, line 13. 3471 P-0269: T-86 , p. 25, lines 10-14. 3472 P-0269: T-86 , p. 25, lines 15-18. From the context of her testimony, the witness here was discussing the initial phase of the attack when the government soldiers were defeated and fled.

No. ICC-02/04-01/15 522/1077 4 February 2021

Further, P-0269 hid inside during the course of the attack and generally could not see

3473 what was happening in the camp. The persons whom she did witness being killed, her

3474 neighbours, were shot by LRA fighters. Based on the witness’s location in the course

of the attack, she did not witness what happened in the camp, and the source of her

testimony about ‘crossfire’ is not clear. The Chamber does not place any weight on this

aspect of her testimony.

As to her testimony about an exchange of gunfire between government soldiers and the

3475 LRA fighters during her abduction, the Chamber recalls that P-0269 testified that the

3476 group that abducted her was the last group of LRA fighters in the camp. In the Chamber’s understanding, by the time the government soldiers arrived at the camp and

engaged with the LRA fighters, most civilians had already fled and much of the LRA and

their abductees were out of the camp. The Chamber also notes that P-0269 did not testify

to seeing any civilian shot by government soldiers in the course of this exchange of

gunfire.

Lastly, P’Oyoo Lakoch testified that, as he was running away from the camp, he heard

3477 the government soldiers in the vicinity of Odek primary school. P’Oyoo Lakoch

speculated that after hearing gunshots in the camp, these government soldiers returned

3478 from the earlier attempt to ambush the LRA. He testified that the soldiers started

shooting at his group of camp residents because they thought they were rebels but stopped

3479 shooting when they realised that the group was not firing back. P’Oyoo Lakoch

3480 testified that the government soldiers then started shooting towards the camp. The

Chamber is of the view that P’Oyoo Lakoch’s testimony does not point to civilians being

shot by government soldiers in the crossfire. Rather, he indicated that government

3473 P-0269: T-86 , p. 25, lines 19-22 (because P-0269 had hid inside, she could not tell who had killed the people whose corpses she saw lying on the group throughout the camp). 3474 See P-0269: T-85 , p. 37, lines 6-18. See also the Chamber’s discussion of the killing of Christopher Moro and David Bua in para. 1535 below. 3475 P-0269: T-85 , p. 36, lines 7-25 (government soldiers shot and hit the soldier that abducted her and there was an exchange of gunfire between them). 3476 P-0269: T-85 , p. 35, lines 12-19, p. 36, lines 7-20, p. 48, lines 14-16; T-86 , p. 77, lines 14-19 (P-0269 was abducted by the last group of LRA fighters that was fighting in the camp about an hour after the LRA arrived at the camp). 3477 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 23. 3478 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 23. 3479 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 23. 3480 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 23.

No. ICC-02/04-01/15 523/1077 4 February 2021

soldiers attempting to engage LRA fighters were responsive to information in their

surroundings alerting them to the presence of civilians.

When questioned whether it was possible that the government soldiers could have shot

some of the people in the camp, P’Oyoo Lakoch testified that given the kind of death and

killing at the camp, it ‘must have been the LRA because they were opening the doors,

3481 when they open the door and they find you inside they will shoot you and kill you’.

P’Oyoo Lakoch stated that it was possible that people were killed during the exchange

of gunfire and bullets, but ‘there is no confirmation’. 3482 P’Oyoo Lakoch stated that there

was no way he could investigate whether LRA bullets or government bullets killed

people, however ‘actions such as shooting or firing inside the house, opening, breaking

people’s doors and finding people and killing them, that makes me to conclude that these

3483 were LRA doing it’. P’Oyoo Lakoch testified however that indeed, not all the persons

killed were shot inside their houses, ‘some were shot from outside when they were trying

to run and escape’. 3484 However, P’Oyoo Lakoch does not indicate that he knew of

anyone killed by a government soldier.

In all the evidence heard by the Chamber, not one witness testified of a specific incident

where a civilian was shot by government soldiers or of a civilian actually killed in alleged

crossfire. However, there is ample evidence that LRA fighters shot and killed civilians.

3485 As discussed below, many witnesses personally saw LRA fighters shoot civilians.

3486 LRA fighters shot indiscriminately into civilian homes. Further, in his reporting of

the attack to Joseph Kony, Dominic Ongwen himself stated that ‘many’ or ‘all’ civilians

3487 were killed. Given the evidence considered by the Chamber, the Chamber considers

it a necessary inference that LRA forces were the ones that killed the civilians in Odek

3481 P-0218: T-90 , p. 79, lines 15-23. 3482 P-0218: T-90 , p. 79, lines 15-25. 3483 P-0218: T-90 , p. 80, lines 11-19. 3484 P-0218: T-90 , p. 80, lines 20-24. 3485 See also P-0325 Statement, UGA-OTP-0264-0242-R01, at paras 21, 22 (stating that the rebels were shooting directly at civilians, something the government soldiers did not do. Zakeo Odora saw LRA rebels shoot two civilians). 3486 P-0264: T-64 , p. 52, lines 23-25 (stating that the LRA forces acted on an LRA commander’s order to shoot on any house with a closed door and began to shoot, some civilians were shot and some soldiers were shot); P- 0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (Zakeo Odora saw LRA fighters opening the doors of huts and shooting people inside). the Chamber’s discussion on reporting of the attack in section IV.C.7.vii below. 3487 See

No. ICC-02/04-01/15 524/1077 4 February 2021

IDP camp. The suggestion that civilians were killed in crossfire is speculation unsupported by the evidence heard in these proceedings.

Rather, the Chamber heard credible evidence that civilians were killed by the LRA during the attack. The evidence shows that LRA fighters deliberately targeted civilians.

LRA fighters testified that the LRA killed civilians in Odek IDP camp. As P-0330, a fighter in Dominic Ongwen’s Sinia brigade who participated in the Odek IDP camp attack, stated, describing the scene during the attack: ‘[w]henever the Holys are carrying 3488 out an operation you can be sure of deaths, especially in civilian homes’. Although P- 0054 did not witness any killings himself, the Chamber considers his testimony that he heard that people had been killed in the Odek attack from some of the fighters that went 3489 there as well as from Radio Mega after the attacks as corroborative evidence of other eye-witnesses’ accounts that the LRA killed people in the Odek attack.

P-0264, one of Dominic Ongwen’s Sinia fighter who participated in the Odek IDP camp 3490 attack, testified that he was armed with a gun and he fired it within the camp. According to P-0264, the LRA forces that went into the civilian centre of the camp were given the order to be ‘extremely cautious’, which to them meant to start shooting at 3491 houses. P-0264 testified that the LRA fighters thus started shooting at every house, ‘any house that we came across there was a barrage of bullets into that house and I personally also did that’. 3492 P-0264 testified that after he shot one house, he could hear 3493 people crying in the house, he testified that the voice he heard was an adult. When asked whether he shot his gun at a civilian, P-0264 stated that he shot ‘in the houses, but that’s – well, that’s equal to shooting civilians because you’re firing in a civilian camp’. 3494

As discussed above, P-0264 testified that he shot and killed a civilian because the man 3495 was among government soldiers. P-0264 also testified that he saw about 10 dead

3488 P-0330: T-52 , p. 19, lines 20-23. 3489 P-0054: T-93 , p. 20, lines 15-23. 3490 P-0264: T-64 , p. 53, lines 2-5. 3491 P-0264: T-64 , p. 53, line 13 – p. 54, line 1. According to P-0264, government soldiers entered civilian houses and thus the LRA fired into houses. 3492 P-0264: T-64 , p. 54, lines 1-3. 3493 P-0264: T-64 , p. 54, lines 3-4, p. 58, lines 4-14. 3494 P-0264: T-64 , p. 54, lines 18-21. 3495 P-0264: T-64 , p. 55, line 10 – p. 56, line 8.

No. ICC-02/04-01/15 525/1077 4 February 2021

3496 civilians in the Odek IDP camp, a mixture of men, women and children. P-0264

indicated that these civilians were killed by LRA fighters, stating that some had bullets

3497 in their chests and heads. P-0264 testified that:

[T]he way LRA soldiers are trained, we are told that in order to shoot somebody sufficiently you have to shoot the person in [the head or the chest] so that the person does not survive. So I know that anybody who shoots at somebody either shoots on the head or on the chest for maximum effect. And that’s why those people were 3498 shot in the head and the chest.

The Chamber finds P-0264’s account of the behaviour of LRA soldiers within the civilian

area of the camp detailed, comprehensive and consistent. The Chamber finds the witness

credible and finds that the civilian shot by P-0264 was at least a victim of an attempted

killing. The Chamber also considers that P-0264 offers credible evidence of the manner

in which LRA fighters generally shot at civilians. The Chamber also notes the testimony

of Sinia attacker P-0352 who testified that she saw civilians being shot by the LRA in

3499 the course of the attack. This, in addition to the ample evidence discussed in detail

below of the many persons killed by LRA fighters in the camp, corroborates P-0264’s

account of the LRA’s shooting of civilians in the camp.

P-0406, a fighter in Dominic Ongwen’s Sinia brigade, testified that during the attack, he

3500 saw the dead bodies of three civilians who had been clubbed in the head. P-0406

3501 testified that the club was left by the dead bodies. Similarly, P-0330 testified that he

saw civilians killed by ‘seasoned’ LRA fighters in Odek IDP camp. 3502 P-0330 testified

that the civilians were killed by being beaten on the back of their heads while having

3503 their arms tied behind their back. Additionally, P-0330 testified that he saw a civilian

3504 stabbed by an LRA fighter he called Lapwony Oyo. The Chamber considers that these

witnesses’ accounts are consistent and mutually corroborative of the fact that LRA

fighters targeted civilians and beat or stabbed them to death in Odek IDP camp.

3496 P-0264: T-64 , p. 60, lines 3-6. 3497 P-0264: T-64 , p. 60, lines 7-14. 3498 P-0264: T-64 , p. 60, lines 17-21. 3499 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 123. 3500 P-0406: T-154 , p. 47, lines 18-23. 3501 P-0406: T-154 , p. 47, lines 24-25. 3502 P-0330: T-52 , p. 25, lines 14-25. 3503 P-0330: T-52 , p. 26, lines 19-21. 3504 P-0330: T-52 , p. 20, lines 5-8.

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The Chamber also notes that there is no evidence, or even suggestion, that government

soldiers, who were the only other armed forces active in Odek IDP camp during the attack,

beat any civilian during the attack. Indeed, although the government soldiers fired shots

for a short period of time during the attack as described above, they were described as

fleeing from the LRA.

Further, the evidence shows that at least some civilians were burnt in their homes. The

Chamber notes that the evidence does not indicate that there was a widespread burning

of the civilian area of Odek IDP camp comparable to the burning that occurred in the

3505 Lukodi and Abok IDP camp attacks. However, the evidence indicates that at least

3506 some civilian homes were burned down. In that context, the Chamber recalls P-0352’s

3507 testimony that she saw one house being burned with civilians inside. P-0330

corroborates this account, testifying that he saw dead people in Odek, including people

3508 burned in their huts by LRA fighters. P-0406’s testimony corroborates the other witnesses’ accounts that civilian’s homes were set on fire. 3509

The Chamber is satisfied that the evidence shows that the LRA set at least one house on

fire with civilians inside and the person(s) inside that home was (were) at least the

victim(s) of an attempted killing by the LRA.

The Chamber notes camp resident P’Oyoo Lakoch’s and LDU Officer Julius Nyeko’s

testimony that the people whose dead bodies they observed in the camp after the attack

3510 mostly died of gunshot wounds. The Chamber notes that these witnesses testified to

what they observed and the evidence indicates that these witnesses could not have

3511 observed all the persons killed in the camp. Given the credible evidence that the LRA

did indeed kill people by other means than gunshot, the amount of people killed in the

3505 The Chamber notes that the huts that comprised the barracks were completely burned down by the LRA. 3506 See P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 20 (the rebels burned the huts surrounding the barracks). 3507 P-0352 Statement, UGA-OTP-0260-0315-R01, at para. 123. 3508 P-0330: T-52 , p. 20, line 9 – p. 21, line 1. 3509 P-0406: T-154 , p. 46, lines 23-25; T-154-CONF, p. 47, lines 1-10 (P-0406 saw houses burning in the camp. LRA fighters would light a match and then set fire to houses. P-0406 personally set a house on fire, under orders of an LRA commander). 3510 P-0218: T-90 , p. 12, lines 18-21; D-0066: T-214 , p. 25, lines 9-17, p. 26, lines 9-13. 3511 Residents started removing the dead early in the morning. See P-0274 First Statement, UGA-OTP-0244-3375- R01, at paras 36, 74, 76 (according to Camp Leader Mario Ottober, camp residents started removing the bodies of their relatives for burial before the sunrise, as they were afraid the bodies would start decaying. Most people were buried at a place near the camp but some people took the bodies of their relatives to other places).

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attack, the quick burial of the deceased, often in disparate places, the Chamber concludes that these witnesses’ testimony is not inconsistent with the Chamber’s finding that some

persons were killed or the LRA attempted to kill people by other means than gunshots.

Camp residents and LDU officer Julius Nyeko corroborate the LRA fighters’ accounts

that the LRA targeted civilian residents.

P’Oyoo Lakoch testified that the LRA fighters were the ones shooting at the camp

3512 inhabitants. P’Oyoo Lakoch testified that there were children among the civilians

3513 killed in the attack, all of whom had been shot. Witnesses testified that the day after

3514 the attack, they saw corpses all over the camp, and people were collecting the bodies.

LDU soldier Julius Nyeko stated that the day after the attack, government soldiers went

3515 around with the civilian leaders to see ‘what happened to whom’. Julius Nyeko

explained:

[W]e returned and came and found so many dead bodies and then some injured people. Well, you know some people never fled, they closed themselves – locked themselves in their houses […] some of them were killed in their houses and you 3516 just find them, the dead bodies in there.

The evidence shows that the LRA targeted civilians for killing or attempted killing.

Below, the Chamber discusses the evidence of specific individuals killed or attempted to

be killed by the LRA in the camp during the attack.

Adoni Okullu : P’Oyoo Lakoch stated that just after dawn the day after the attack, he

saw the body of his 80 years old uncle, ‘Adonia Okullu’, laying outside Adoni Okullu’s

3517 home. P’Oyoo Lakoch described the wounds he observed, ‘[h]e was shot in the chest

from the back, and the bullet came out from the front, from his chest, and he fell on his

3512 P-0218: T-90 , p. 13, lines 12-14. 3513 P-0218: T-90 , p. 12, line 23 – p. 13, line 11. 3514 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 37 (the morning after the attack, Helen Opoka Acan saw many corpses, of children and adults, stating, ‘you could see corpses everywhere and people were collecting them’); P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 25 (P’Oyoo Lakoch heard people wailing and crying and as he entered the camp the morning after the attack, there were dead bodies everywhere. Men, women and children of all ages were all killed); P-0269: T-85 , p. 50, lines 12-18 (when P-0269 returned to the camp after her release from the LRA, she found so many dead bodies littering the camp, as well as the other bodies along the way); P-0275 Statement, UGA-OTP-0244-3398-R01, at para. 29 (when P-0275 was being abducted by LRA fighters, he saw many dead people around). 3515 D-0066: T-214 , p. 23, lines 20-21. 3516 D-0066: T-214 , p. 24, lines 22-25, p. 25, lines 7-8. 3517 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 26.

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3518

belly’. P’Oyoo Lakoch testified that he personally buried his uncle next to the

3519

river. The Chamber finds P’Oyoo Lakoch’s testimony credible. It is also consistent

with other credible evidence. Former Odek IDP Camp Leader, Mario Ottober, confirms ’,

3520

this evidence. He testified that ‘Okullu Adonibejege an old person, was shot at his

3521

house in the trading centre. Mario Ottober stated that he heard about the killing from

3522

Adoni Okullu’s relatives. Further, Helen Opoka Acan, a former Odek IDP camp

resident, testified that the morning after the attack, she saw several corpses of people who

3523 3524

had died during the attack, including the body of ‘Okullu Adoni’. Similarly, ISO

Officer P-0301’s, post-attack incident report lists ‘Adonyi Bajedo Okullu’ as one of the

3525

persons killed during the 29 April 2004 LRA attack on Odek IDP camp. In light of

3518 P-0218: T-90 , p. 78, line 25 – p. 79, line 3; P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 26, 42. 3519 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 42; P-0218: T-90 , p. 16, lines 12-18, p. 78, lines 21- 24. 3520 The Chamber notes that the witnesses refer to Adoni Okullu by different first names – Adonyi Bajedo, Adonibejege, Adoni, and Adonia. Given the overwhelming similarities in this first name and the fact that they all refer to the last name of Okullu, the Chamber is of the view that the evidence all refer to the same person, Okullu Adoni. The Chamber is of the view that the evidence provided by these witnesses in relation to Adoni Okullu’s death is consistent and credible and mutually corroborative. 3521 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 61. 3522 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 61. P-0274’s 2004 Diary pages, UGA-OTP- 0244-3391, UGA-OTP-0244-3393, at number 8. See also P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 46, 54, 61 (Mario Ottober provided a 2004 Diary in which ‘Okullu Adonibejege ’ is listed among the persons killed in the 29 April 2004 Odek attack and testified that he wrote the names of camp residents who were injured and killed during the attack in this personal diary in the aftermath of the attack). The Chamber recalls that the Defence contends that Mario Ottober’s 2004 Diary pages are not official but rather personal records not created in the normal course of business. Defence Response to Prosecution Application under Rule 68(2)(b) , para. 179. See also First Decision on Prosecution Applications under Rule 68(2)(b) , at paras 76-77. The Chamber does not consider it necessary to determine whether Mario Ottober’s diary pages are or are not business records. The diary pages have evidentiary value as contemporaneous records the witness made of what he witnessed and was told about the persons injured and deceased as a result of the 29 April 2004 Odek IDP camp attack. The witness provided the pages to the Prosecution, authenticated his writings and explained the contents, adding details that contextualised the entries. See P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 46-75. The Chamber is convinced by his evidence and is of the view that the 2004 Diary entries are an authentic, contemporaneous account of the deceased persons Mario Ottober saw or and was informed about in the aftermath of the 29 April 2004 IDP camp attack. Thus, Mario Ottober’s diary pages provide a contemporaneous record of the death of Adoni Okullu in the attack on Odek IDP camp. 3523 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 38. 3524 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 38. 3525 P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0439. Adoni Okullu is number 7 on the list of the deceased. The Chamber notes that P-0301 lists Adonyi Bajedo Okullu on his list of deceased. The Chamber notes that this report was introduced into evidence in its First Decision on Prosecution Applications under Rule 68(2)(b) , at p. 110. P-0301 discussed this incident report in his statement, testifying that the report was based on his interviews with the survivors of the attack, including the camp leaders and the relatives of the deceased or abducted (UGA-OTP-0249-0423-R01, para. 60). The Chamber considers the document to be the authentic incident report created by P-0301 in May 2004 reporting on the 29 April 2004 attack on Odek IDP camp.

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3526 the totality of the evidence, the Chamber considers that Adoni Okullu was shot and

killed by the LRA during the Odek IDP camp attack.

Agudu’s wife and her grandson : Former Odek IDP camp block leader Zakeo Odora

testified that after the attack, he and other camp residents, as well as people from another

nearby IDP camp, dug graves to bury some of the persons killed during the LRA’s attack

3527 on the camp. These persons were buried on land Zakeo Odora and his family donated

3528 to serve as a grave site. Among the persons buried on that land are a woman Zakeo

Odora referred to as the ‘wife of Agudu’ and her grandson, buried in separate graves

3529 beside each other. Zakeo Odora testified that they were both killed in the course of

the LRA’s attack on the camp. 3530 Zakeo Odora testified that Agudu’s wife was found

3531 with her grandson wrapped around her back. She had been shot in the breast and the

3532 bullet had passed through her and also killed her grandson. Zakeo Odora testified the

3533 boy was around four years old. The Chamber finds Zakeo Odora’s testimony as to

3534 these deaths detailed, compelling and credible. In light of the totality of the evidence,

the Chamber finds that LRA fighters shot and killed Agudu’s wife and her grandson

during the Odek IDP camp attack.

Betty Adong and her daughter Ajok : Mario Ottober testified that after the attack, he

was informed by the relatives of Betty Adong and her daughter Ajok that they were killed

3535 during the 29 April 2004 Odek attack. Helen Opoka Acan also testified that Betty

3536 Adong died the day after the attack. Helen Opoka Acan testified that she saw Betty

3537 Adong that day when she was still alive. Helen Opoka Acan stated that when she saw

3526 The Chamber recalls its above finding that the killings in Odek IDP camp are attributable to the LRA. 3527 P-0325 Statement, UGA-OTP-0264-0242-R01, at paras 30-31. 3528 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 30. 3529 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 32. 3530 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 32. 3531 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 32. 3532 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 32. 3533 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 32. 3534 The Chamber recalls its above finding that the killings in Odek IDP camp are attributable to the LRA. 3535 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 63. Mario Ottober provided his 2004 Diary in which Betty Adong and Ajok are listed among the persons killed in the 29 April 2004 Odek attack thus providing a contemporaneous record of their death. Betty Adong is listed at number 12 and Ajok at number 13. P-0274’s 2004 Diary pages, UGA-OTP-0244-3391, UGA-OTP-0244-3393. See also P-0274 First Statement, UGA-OTP- 0244-3375-R01, at paras 46, 54, 63. In his diary recording her death, P-0274 writes ‘Ajok D/O Adong Betty’. See P-0274’s 2004 Diary pages, UGA-OTP-0244-3391, UGA-OTP-0244-3393. Given his testimony, the Chamber understands the notation ‘D/O’ to mean ‘daughter of’. 3536 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 47. 3537 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 47.

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Betty Adong ‘she was alive but she could not go anywhere and was in her house […] she

was lying in the house alone’. 3538 She was later told that Betty Adong had died that

3539 day. Further corroborating the witnesses’ accounts, P-0301’s Incident Report lists

‘Ajok D/O Adong Betty’ as one of the persons killed during the 29 April 2004 LRA

3540 3541 attack on Odek IDP camp. In light of the totality of the evidence, the Chamber

finds that Betty Adong and her daughter Ajok were killed by the LRA as a result of the

Odek IDP camp attack.

Catherine Amono : Hellen Adong testified that while she was abducted and walking with

LRA fighters in the course of the attack, she saw the dead body of a woman with a baby

3542 3543 on her back. She testified that the baby was still alive. Hellen Adong did not recall

3544 the name of the woman. Hellen Adong’s testimony is completed and further explained

by the statements of Mario Ottober, Hellen Adong’s husband, to whom Hellen Adong

provided further details immediately after the attack. Mario Ottober stated that he was

told by his wife that as she was passing by with the rebels who had abducted her, she saw

the body of Catherine Amono and was told by the rebels that she would end up like

3545 Catherine Amono if she is stubborn. Mario Ottober stated that Catherine Amono was

shot whilst she had a child tied to her back and ‘fell with the child at the back’, however

3546 the child survived. In light of the overlapping accounts of Hellen Adong and Mario

Ottober, it is clear that the two witnesses spoke of the same victim, Catherine Amono.

Also corroborating the witnesses’ accounts, P-0301’s Incident Report lists ‘Ariono

Catherine’ as one of the persons killed during the 29 April 2004 LRA attack on Odek

3538 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 47. 3539 P-0270 Statement, UGA-OTP-0241-0168-R01, at para. 47. 3540 P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0439. Betty Adong is number 4 on the list of the deceased. The Chamber is of the view that in line with Mario Ottober notations, P-0301’s notation of ‘D/O’ refers to ‘daughter of’ and is an indication that Ajok was the daughter of Adong Betty. 3541 The Chamber recalls its above finding that the killings in Odek IDP camp are attributable to the LRA. 3542 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 34. 3543 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 34. 3544 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 34. 3545 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 58. 3546 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 58. Further, in his 2004 diary entry listing the persons killed in the 29 April 2004 Odek attack, Mario Ottober included ‘Amono Catherine’, thus providing a contemporaneous record of the death. P-0274’s 2004 Diary pages, UGA-OTP-0244-3391, UGA-OTP-0244-3393. Catherine Amono is listed as number 6. See also P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 46, 54, 58.

No. ICC-02/04-01/15 531/1077 4 February 2021

3547 3548 IDP camp. In light of the totality of the evidence, the Chamber is convinced that

Catherine Amono was killed by LRA fighters in the course of the attack.

Okeny, the government soldier’s son : Several witnesses testified about the death of the

government soldier’s son in the course of the LRA’s attack on Abok IDP camp. Zakeo

Odora testified that a government soldier, Paleo Lapii, and his son Okeny died during the

3549 attack. Zakeo Odora testified that their bodies were taken away from Odek IDP camp

3550 to be buried at Acet IDP camp. Mario Ottober corroborates Zakeo Odora’s account,

testifying that an LDU soldier called Lapii was killed at the barracks along with his child

3551 who was with him. Similarly, P’Oyoo Lakoch stated that after the attack the body of

an LDU soldier was found lying by the barracks alongside that of his four year old son,

3552 who had also been shot dead. LDU soldier Julius Nyeko provided further detail.

According to Julius Nyeko, during the LRA’s attack on the government barracks, one of

the soldiers in the barracks tried to fight back because he had a child in the barracks and

3553 the LRA came and eventually killed the soldier together with his child. In light of the

credible and consistent testimony of the witnesses, the Chamber considers that Okeny,

the government soldier’s son, was shot and killed by the LRA during the Odek IDP camp

attack.

Aldo Okello and shooting of Santa Akello : P’Oyoo Lakoch testified that in the

3554 aftermath of the attack, he spoke to Santa Akello and her husband, Aldo Okello.

P’Oyoo Lakoch testified that he was told by Santa Akello that during the attack when the

3555 gunfire intensified, she and her husband, Aldo Okello, locked themselves in their hut.

LRA fighters attempted to open the door and, when they failed, they fired their guns

3547 P-0301 Incident Report, UGA-OTP-0249-0438-R01, at 0439. Catherine Amono is number 18 on the list of the deceased. The Chamber notes the slight difference in the last name and considers it a minor misspelling. 3548 The Chamber recalls its above finding that the killings in Odek IDP camp are attributable to the LRA. 3549 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 38. Given the similarity in the details of the killing, the Chamber is of the view that this is the same deaths referenced by D-0066 in para. 1443. 3550 P-0325 Statement, UGA-OTP-0264-0242-R01, at para. 38. 3551 P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 39, 74. 3552 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 28. The Chamber notes that P’Oyoo Lakoch calls the soldier ‘Albriko Lapir’ while Mario Ottober references ‘Lapii’ and Zakeo Odora, ‘Paleo Lapii’. Given the overwhelming similarities in their descriptions of the manner and scenario in which the soldier was killed, the Chamber is of the view that they are speaking of the same soldier whose young child was killed in the attack. 3553 D-0066: T-214 , p. 22, lines 9-19. 3554 P-0218: T-90 , p. 11, line 14 – p. 12, line 5 3555 P-0218: T-90 , p. 11, lines 14-19.

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3556 inside the house and both Santa Akello and Aldo Okello were shot. One of the LRA’s

3557 bullets hit Aldo Okello in the mouth and another hit Santa Akello in the neck. P’Oyoo

Lakoch testified that Aldo Okello died in Lacor hospital on 3 May 2004, a few days after

3558 the attack, as a result of the injury from the bullet. P’Oyoo Lakoch appears to have

spoken to Aldo Okello before he died and testified that when he spoke to him Aldo Okello

3559 was seriously injured; he had injuries in his mouth from being hit by a bullet. P’Oyoo

3560 Lakoch testified that he personally buried Aldo Okello. Santa Akello was treated for

3561 her injury and survived. P’Oyoo Lakoch testified that she still has scars from the

3562 injury.

Other evidence corroborates P’Oyoo Lakoch’s account, Mario Ottober testified that

Santa Akello told him that Aldo Okello was shot in the mouth and his tongue was cut off

3563 by the bullet. Mario Ottober also testified that Santa Akello was shot on the back of

3564 her neck and the injury healed. Similarly, Hellen Adong, a former camp resident who

is married to Camp Leader Mario Ottober, corroborates the accounts that Santa Akello

was shot. However, unlike Mario Ottober and P’Oyoo Lakoch, who testified that Santa

Akello was shot in the neck, Hellen Adong testified that Santa Akello was hit by a bullet

3565 in her abdomen during the attack. She testified that the bullet remained in her stomach

3566 until it was removed at the hospital and Santa Akello survived. The Chamber does

not find the discrepancy between Mario Ottober and Hellen Adong’s account dispositive.

Both witnesses testified independently, along with P’Oyoo Lakoch, that Santa Akello

was shot during the attack and recovered. The Chamber puts more weight on the

testimony of P’Oyoo Lakoch and Mario Ottober who both testified of speaking to Santa

Akello. Further corroborating the witnesses’ accounts, P-0301’s Incident Report lists

‘Okello Aldo’ as one of the persons killed during the 29 April 2004 LRA attack on Odek

3556 P-0218: T-90 , p. 11, line 14 – p. 12, line 5. 3557 P-0218: T-90 , p. 12, lines 3-4; P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 30. 3558 P-0218: T-90 , p. 12, lines 3-5; P-0218 Statement, UGA-OTP-0238-0720-R01, at paras 30, 42. 3559 P-0218: T-90 , p. 12, lines 1-5; P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 30. 3560 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 42. 3561 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 30. 3562 P-0218 Statement, UGA-OTP-0238-0720-R01, at para. 30. 3563 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 64. 3564 P-0274 First Statement, UGA-OTP-0244-3375-R01, at para. 50. Mario Ottober’s 2004 diary also lists Aldo Okello among the persons killed in the 29 April 2004 Odek attack providing a contemporaneous record of Aldo Okello’s death. P-0274’s 2004 Diary pages, UGA-OTP-0244-3391, UGA-OTP-0244-3393. See also P-0274 First Statement, UGA-OTP-0244-3375-R01, at paras 46, 54, 64. Aldo Okello is number 14 on Mario Ottober’s list. 3565 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 60. 3566 P-0268 Statement, UGA-OTP-0248-0013-R01, at para. 60.

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3567 IDP camp. The Incident Report lists ‘Akello Santa’ as one of the persons injured

during the 29 April 2004 LRA attack on Odek IDP camp and still hospitalised in Lacor

3568 hospital as of May 2004. In light of the consistent and credible evidence, the Chamber

finds that LRA fighters killed Aldo Okello and attempted to kill Santa Akello in the

course of the Odek IDP camp attack by shooting her.

Ayita Labanya : P’Oyoo Lakoch testified that after the attack he saw the dead body of

3569 3570 Ayita Labanya. P’Oyoo Lakoch testified that Ayita Labanya was shot in the back.