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IV. Legal Standards Governing UPDF Law Enforcement Operations

A. International Law

Under international law, military personnel carrying out policing duties—such as searches, arrest, and detention—are bound by the same human rights standards applicable to all law enforcement officials.¹³¹ Many of these same standards—including protections against the arbitrary deprivation of life, torture and other cruel, inhuman, and degrading treatment, and arbitrary searches, arrests, and detentions, articulated more fully below—are binding on government agents as a matter of Ugandan law.¹³²

With regard to confrontations between Uganda Peoples’ Defence Forces (UPDF) soldiers and armed members of Karamojong communities, international law distinguishes between armed conflict and internal disturbances and tensions. International humanitarian law (the laws of war) is primarily applicable to the former, while the ordinary principles of international human rights law govern the latter.

Violent confrontations between the UPDF and armed members of Karamojong communities do not appear to have risen to the level of an armed conflict under international law. Article 3 common to the four Geneva Conventions of 1949 applies in cases of “an armed conflict not of an international character”;¹³³ the authoritative International Committee of the Red Cross “Commentary”to the Geneva Conventions distinguishes between non-international (internal) armed conflicts and acts of banditry and unorganized and short-lived insurrections for which the conventions do not apply¹³⁴—the clashes in Karamoja appear to be cases of the latter. The Second Additional Protocol to the Geneva Conventions (Protocol II) applies only to non-international armed conflicts that are characterized by conflict between the national army and armed opposition groups “under responsible command” that “exercise such control of a part of [the state’s] territory as to enable them to carry out sustained and concerted military operations.”¹³⁵

Elders and kraal leaders exercise authority over their individual groups, including raiding parties. However, the Karamojong groups—themselves often acting in opposition to one another—do not altogether function under a “responsible command.”¹³⁶ And their occasional confrontations with UPDF soldiers do not have the character of “sustained and concerted military operations.” Instead, these confrontations are more of a piece with “riots” and “isolated and sporadic acts of violence,” international disturbances and tensions to which international human rights law—and not international humanitarian law–applies.¹³⁷

Unless confrontations with armed members of Karamojong communities rise to the level of an armed conflict, the applicable international law will be human rights law.   The Ugandan government’s international human rights obligations include the fundamental injunction that force used by law enforcement officials, including members of armed forces, must be both necessary and proportional.¹³⁸ The rights to life, including against arbitrary deprivation, and to be free from torture permit no derogation.¹³⁹

Civilians who commit criminal acts during violent confrontations with government authorities should be prosecuted under domestic law in accordance with international fair trial standards.  But even while restoring internal order, the Ugandan government has a legal obligation to protect and respect the human rights of all individuals within its territory.¹⁴⁰

B. National Law

Human Rights Watch sought clarification from the government of Uganda by letter of July 23, 2007, as to whether procedures under Ugandan law regulating searches, arrest, and detentions in the context of civil law enforcement operations or pursuant to the military’s prosecution of civilians for firearms offenses—to the extent the latter exist, as discussed below—are applicable as a matter of law to UPDF operations (the letter is included in this report as Annex II). The response received by Human Rights Watch from the Ministry of Defence/UPDF spokesperson’s office (included as Annex III) did not provide details as to the procedures that must be followed under national law for UPDF-conducted law enforcement operations. Instead, the response referred generally to the UPDF’s jurisdiction to try unlawful possession of firearms, discussed below, and to the Ugandan parliament’s authorization of UPDF involvement in disarmament in its March 2000 resolution.¹⁴¹   As far as Human Rights Watch is aware, Ugandan law does not set out the specific procedural safeguards that must be followed in the authorization of searches, arrests, and detentions by UPDF personnel.

Although the UPDF and the Uganda Police Force are independent organs under the Ugandan constitution and governed by different acts of parliament,¹⁴² UPDF “officers and militants” enjoy the “powers and duties” of police officers in assisting civil authorities where a “riot or other disturbance of the peace is likely to be beyond the powers of the civil authorities to suppress or prevent.”¹⁴³ Assuming the UPDF could be understood to be assisting the civil authorities through its law enforcement operations in Karamoja, its personnel would be bound by the same procedural safeguards—discussed in more detail in Chapter V.D, below—attached to searches, arrests, and detentions by police officers. 

An alternative source of authority for UPDF-conducted searches, arrests, and detentions may lie in its authority under the UPDF Act to prosecute civilians for unlawful possession of firearms. As noted above (see Chapter III.B), the military shares jurisdiction over firearms offenses with civilian courts.¹⁴⁴ However, it is unclear under the UPDF Act to what extent the military may undertake searches, arrests, and detentions of civilians or civilian property.

The terms of the UPDF Act appear ordinarily to limit the subjects of UPDF powers of search to service members and property occupied by military personnel,¹⁴⁵ and the power of arrest to service members.¹⁴⁶ However, the UPDF Act does provides for the appointment of special personnel to “detain or arrest without warrant any person subject to military law [who] is suspected of … having committed a service offence” and to “exercise such other powers as may be prescribed for the enforcement of military law.”¹⁴⁷

With regard to detentions, persons arrested under the UPDF Act are to be handed over immediately to either civilian or military custody, but the UPDF Act does not specify whether civilians may be committed to military custody.¹⁴⁸ Ordinarily, the Ugandan constitution prohibits detention in “ungazetted” facilities, that is, facilities not published in the official gazette by the minister of internal affairs; UPDF barracks are not gazetted.¹⁴⁹

In the case of cordon and search operations, a further complication arises in assessing the applicable body of national law. As noted above (see Chapter III.D), according to a spokesperson for the Third Division these operations are conducted to seize illegal weapons, with no intent to charge persons with offenses under civilian or military law. He and the Ministry of Defence/UPDF spokesperson said that the only arrests carried out during disarmament operations for the purpose of charging with offences under military or civilian law are of people who resist disarmament, such as by firing on soldiers.

By restricting the aim of cordon and search operations in this way, the government may be attempting to avoid legal requirements authorizing searches, arrest, and detentions in the context of criminal prosecution. To the extent national law would allow for the use of the military to search private homes, and to arrest and detain individuals without charge in military facilities, however, such practices violate Uganda’s obligations under international law, as discussed in the next chapter.