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WAR CRIMES COMMITTED IN GAZA BY
ISRAELI LEADERS
Director General of Public Prosecutions
Stortorvet 2
0144 Oslo
Stavanger, 27 November 2009
Your ref.: 09/30-C-01
APPEAL AGAINST DECISION NOT TO PROSECUTE CRIMINAL ACTS: WAR CRIMES
COMMITTED IN GAZA BY ISRAELI LEADERS
Reference is made to the letter of 6 November 2009 from the National
Authority for Prosecution of Organised and Other Serious Crime with
a decision not to proceed with the complaint of 22 April 2009 from
the undersigned against 10 named Israeli leaders of war crimes
committed against the population of Gaza.
An appeal against the decision not to prosecute was sent to the
National Authority for Prosecution yesterday, which stated that the
proper addressee is the Director General of Public Prosecutions. The
appeal is therefore now submitted to you.
The decision not to prosecute is hereby appealed by the complainants
and the aggrieved parties we represent.
It is obvious that the decision not to prosecute was made following
thorough consideration. It is the complainants’ understanding that
the complaint was properly assessed, but we disagree with the
decision not to prosecute.
I
The Norwegian prosecution authority and Norwegian courts of justice
have jurisdiction over the acts covered by the complaint. If the
suspects had been on Norwegian soil one would undoubtedly had a duty
to investigate/prosecute. In our opinion such a duty exists even
though the suspects are not in Norway.
As long as an investigation is not conducted by the Israeli
authorities, international organisations or other states, we believe
that the Norwegian authorities have an obligation under
international law to implement an investigation of war crimes.
II
We see no reason to discuss the issue of immunity in this appeal, as
the Public Prosecutor in any case finds that the case can be
investigated. Initially, the complaint presumes investigation, and
this is the demand the Public Prosecutor has rejected. This is the
decision we appeal. Should any of the suspected, known perpetrators
have diplomatic immunity, this does not speak in favour of an
investigation not being implemented now. On the contrary; the
securing of evidence (also beyond the reports that already exist)
and uncovering of responsibilities should also take place as early
as possible in this case. Please see the Public Prosecutor’s
concluding remark, which states the same.
III
In our opinion, Norway has a duty to investigate the acts stated in
the complaint. This is evident from the fourth Geneva Convention
(Articles 146 and 147), and the obligation to investigate has the
status of jus cogens. This is in line with what MP J. Robert
Marshall-Andrews (Labour) in the British Parliament stated on 23
November: “As a Member of Parliament and a lawyer, I simply say this:
the offences committed, particularly in Gaza, are international
offences against the fourth Geneva Convention and its protocol. In
this country we are signatories to the convention and under the
Geneva Conventions Act 1957 and the Geneva Conventions (Amendment)
Act 1995 we have not only a right but a duty to track down,
investigate and prosecute those in breach of the convention. We have
a duty to do that here. I say now, in so far as one has any voice at
all, that those responsible for those acts in Israel and Palestine
can no longer travel safely, because internationally, in all the
countries that have signed the convention, they are liable to the
prosecution that they deserve” (www.publications.parliament.uk).
This is also, aside from ICC, the only way to combat war crimes.
This is precisely what the Geneva Convention was meant to ensure.
We would also refer to our statement in the complaint regarding
Norway’s duty to investigate war crimes. We cannot see that the
Public Prosecutor refutes our arguments on this point in the
decision. Nor can the quoted statements from Cassesse or Werle be
cited in support of the duty to prosecute only being applicable to
persons residing in their own territory.
The purpose of the rules, namely the need to punish the most serious
breaches of the law, also indicates that there should not be a
restriction in the duty to prosecute so that it only applies to
one’s own territory. Israel’s lack of willingness to conduct a
proper investigation also speaks in favour of other states having a
duty to “provide effective penal sanctions for persons committing,
or ordering to be committed, any of the grave breaches to the
present Convention” (Art. 146). When the state of residence does
not prosecute the war criminals, this duty rests with the other
states in the international community, also if the suspects reside
in a state where they are not prosecuted. Otherwise the commitment
Norway has made under the convention becomes illusory and
meaningless. That states should cooperate on bringing war crimes
before the courts cannot in individual cases exempt individual
states, including Norway, from fulfilling its obligations under
humanitarian law.
The duty to prosecute cannot be departed from due to considerations
of convenience, the principle of discretionary power or on the basis
of a discretionary assessment. By signing the treaty, Norway has
undertaken to prosecute serious war crimes, regardless of where they
have been committed and regardless of where the perpetrators reside.
The fact that the persons complained of (hereinafter “the subjects”)
do not have any affiliation with Norway, is not relevant in relation
to the question of whether Norway has a duty persecute serious war
crimes. The fact that several of the aggrieved parties have an
affiliation with Norway or citizenship here, is relevant for the
alternative question of whether Norway should investigate the
complaint, but is not crucial to the duty to investigate. The duty
prevails – jus cogens.
IV
In any case, the war crimes in Gaza should be investigated and
possible prosecuted. We would here refer to the arguments in Item
III. The complainants cannot see that it is correct to apply
considerations of convenience, reasons of judicial economy or other
resource consideration as grounds for omitting to investigate or
prosecute the most serious crimes. If Norway finds that it cannot
afford to investigate war crimes, who is then able to take on such
tasks? The legitimacy of prosecution also lapses. If the most
serious crimes are not prosecuted due to considerations of
convenience or reasons of judicial economy, how can one substantiate
bringing to trial other, less serious crimes? The same question
regarding legitimacy can be raised when one only prosecutes crimes
outside the western sphere; Africa and former communist Yugoslavia.
These are considerations that Public Prosecutor should have
emphasised.
Whether the suspects reside abroad or enjoy immunity does not
dictate that the case should be discontinued. A decision not to
prosecute on this basis will efficiently undermine prosecution of
the most serious war crimes. The transgressors will always seek
refuge, either in their own country or with a sympathising regime.
Nor is the fact that those accused may not want to appear
voluntarily before a court in Norway any argument for omitting to
investigate serious crimes; on the contrary; this is a factor in
favour of employing the international police collaboration to
apprehend those accused so that they can be brought to trial.
Nor is there any argument in favour of discontinuing the case in
respect of the Public Prosecutor’s fear of “forum shopping”. That
fact that serious crimes can be prosecuted in several states and are
prosecuted in several states is precisely in support of humanitarian
law, and not an argument for dropping investigation. Another
question is whether it is necessary to prosecute the crime in one
state if it is already being prosecuted in another. This is not a
relevant question in relation to this complaint, nor has it been
raised by the Public Prosecutor. As long as the acts stated in the
complaint are not investigated or prosecuted in another state, the
discussion of any eventualities related to this issue lapses. The
fact that there are other efforts internationally to investigate the
war crimes and convict the perpetrators cannot lead to any other
result.
Israel’s duty to investigate and prosecute is not an argument in
this case in favour of dropping the complaint in Norway. It is
evident that the subjects will not be investigated or brought to
trial in Israel. This has been officially confirmed by Israeli
authorities.
The Public Prosecutor does see the gravity of the accusations raised.
The gravity of the case is so extensive that an investigation must
be implemented. Nor can the appellants see that a discontinuance of
this case has any legal authority in Section 224 of the (Norwegian)
Criminal Procedure Act. The appellants cannot see that there is any
basis in either the text of the statute or its preparatory works to
give the provision the scope attributed to it by the Public
Prosecutor.
The greatest danger in letting the Public Prosecutor’s decision
stand is that the world’s war criminals, and particularly those on
good terms with western states, yet again experience that the
international community fails to react to documented war crimes –
the most serious crimes against humanity can continue without the
transgressors being held responsible.
We ask the Director General of Public Prosecutions to reverse the
decision not to prosecute. We reserve the right to submit further
arguments.
Sincerely
Bent Endresen
Attorney-at-law
and acting on behalf of
Attorney-at-law Kjell Brygfjeld
Attorney-at-law Geir Höin
Attorney-at-law Pål Hadler
Attorney-at-law Loai Deep
Attorney-at-law Harald Stabell |
