Practice Relating to Rule 158. Prosecution of War Crimes
Norway’s Military Penal Code (1902), as amended in 1981, provides for the punishment of “anyone who uses a weapon or means of combat which is prohibited by any international agreement to which Norway has acceded, or who is accessory thereto” and of “anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property” laid down in the 1949 Geneva Conventions or the 1977 Additional Protocols I or II.
In 2005, during a debate in the UN Security Council on the protection of civilians in armed conflicts, the permanent representative of Norway stated:
Norway fully shares the conviction expressed by the Secretary-General in his report that strict compliance with international humanitarian law, human rights law, refugee law and international criminal law by all parties concerned provides the best basis for ensuring the safety of the civilian population, whatever threats they are facing.
A culture of impunity for mass atrocities can critically undermine long-term security. If peace and reconciliation are to be real and sustainable, they must be built on the rule of law. Impunity for breaches of international humanitarian and human rights law is totally unacceptable.
In 2008, in a statement before the Sixth Committee of the UN General Assembly on the status of the 1977 Additional Protocols, made on behalf of Denmark, Finland, Iceland, Norway and Sweden, the representative of Sweden stated: “Perpetrators must be held accountable under national legislation and procedures. Investigation of suspected abuses of humanitarian law is a necessity and a duty.”
In 2009, in a White Paper on “Climate, Conflict and Capital”, Norway’s Ministry of Foreign Affairs stated: “Post-conflict reconstruction must be based on respect for the law and human rights. Failure to prosecute perpetrators of abuses signals that violence is tolerated, and that armed conflict can break out again”.
In 2009, in a statement before the UN Security Council on “Protecting Women and Girls in Armed Conflict”, the permanent representative of Norway stated: “We also need to ensure that those who violate International Humanitarian Law are held accountable.”
In 2010, in a statement before the UN Security Council on “The Promotion and Strengthening of the Rule of Law in the Maintenance of International Peace and Security”, the permanent representative of Norway stated: “It is Norway’s firm view that assumptions of gross violations of international humanitarian law should always be investigated in a thorough and independent manner to indicate whether there have been any grave breaches.”
In 2010, in a statement before the UN Security Council on the “Protection of Civilians in Armed Conflict”, the counsellor at Norway’s Permanent Mission to the UN stated: “Warfare conducted in violation of international humanitarian law should carry a strong political stigma and perpetrators must be brought to justice.”
In 2010, in a statement on the “Rule of Law” made before the Sixth Committee of the UN General Assembly, Norway’s Counsellor at its Permanent Mission to the UN stated:
Member States should be encouraged to establish and exercise jurisdiction over international crimes … in order to ensure that suspects of such crimes do not evade legal proceedings. It is contrary to the rule of law and creates a profound sense of injustice when a suspect of a serious crime is perceived to obtain impunity out of reach of a competent criminal prosecution.
States have the primary responsibility to investigate and prosecute ICC [International Criminal Court] crimes. ICC is a court of last resort. Ideally, it should have no cases. We must, however, acknowledge that for many States there is a lack of resources and capacity to exercise criminal law proceedings for such complex and large-scale crimes as genocide, crimes against humanity and war crimes. …
… Victims of war crimes, crimes against humanity and genocides, wherever they are found, deserve justice. While we must do our best to encourage all States to live up to their obligations to investigate and prosecute, the International Criminal Court was created to take up the cases when States were not able or willing to do so.
We must continue to work against impunity for serious violations of international humanitarian law and human rights; persons suspected of war crimes, genocide and crimes against humanity must be held accountable. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found. The International Criminal Court is a court of last resort and is of great importance to uphold international humanitarian law and human rights law and to end impunity for mass atrocity crimes.
Women and especially girls are particularly exposed to violence in conflict. Violence against women affects a third of all women globally. The violence is often amplified in areas affected by conflict. …
The fight against impunity for sexual and gender-based violence is … crucial. Each state has a duty and a responsibility to investigate and prosecute such crimes. It is primarily at the domestic level that solutions to the impunity gap must be found.
[T]here is still a lack of accountability for violations of international law committed against children in armed conflict. The fight against impunity and assuring the victims’ access to justice are crucial. Crimes against children must be independently and impartially investigated and prosecuted to the full extent of the law. Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity.