Practice Relating to Rule 99. Deprivation of Liberty
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment.
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … in violation of international law … unlawfully confines a protected person.”
The Penal Code further states: “A protected person is a person who does not take, or who no longer takes, active part in hostilities, or who is otherwise protected under international law.”
In its judgment in the Repak case in 2008, concerning crimes committed against civilian non-combatant Serbs in an internment camp in Bosnia and Herzegovina in 1992, resulting from which the defendant was convicted on 11 counts of the war crime of unlawfully confining a protected person, the District Court of Oslo held:
80. … [To meet the war crime conditions of section 103 of the 2005 Penal Code] the act must have been committed in connection with an “armed conflict”. This is undisputed. The Court makes reference to the description of the conflict. Secondly, it is required that the deprivation of liberty must concern a “protected person”. This will be the case with civilian non-combatant persons and will be assessed concretely. Thirdly, the confinement must be “contrary to international law”. In the opinion of the Court, this must apply to international law as it was in 1992 if one is to avoid another problem arising in relation to retroactive effect. Written international law at the time consisted mainly of the 1949 Geneva Convention[s] and some Additional Protocols. The Geneva Convention [IV] is a convention regarding the protection of civilian persons in time of war. The Convention stipulates different requirements, depending on whether there is an international conflict or an armed conflict not of an international character. The Court finds that the requirements for both alternatives are fulfilled in the case at hand. The Court finds that at the time in question an international conflict existed. … Articles 41 to 43 of the Geneva Convention stipulate stringent conditions for the internment of civilians. It is a condition that it must be absolutely necessary for security reasons, and there are special requirements for procedures. With the reservation that a specific assessment linked to each count of the indictment is to be made, the Court finds that the internment of civilians in the Dretelj camp took place in violation of the Geneva Convention [IV], cf., inter alia, Articles 30, 31, 32 and 43 of the Convention. The defendant was aware that this was contrary to international law.
246. AA was a civilian non-combatant and was held in Dretelj with a view to exchange. The defendant was aware that this was unlawful. Heading an interrogation of her with the use of torture, where the interrogation ends by her being taken back to the cell, amounts to complicity in continued deprivation of liberty. The defendant acted with intent. Taking into consideration the situation, there was nothing to indicate that her internment would be very brief. Thus, the defendant could have realised the risk that the internment in this case would last more than one month. …
261. As far as the defendant Repak is concerned, the Court considers … [that the] execution of his tasks resulted in innocent persons being taken to Dretelj were they were subjected to long-term internment and, in a number of cases, to violence, other kinds of abuse and degrading treatment.
In its judgment in the Repak case in 2010, Norway’s Court of Appeal stated:
Not all violations of international humanitarian law are to be regarded as war crimes. The starting point is that the violation must involve a serious breach of a rule of international law that protects substantial values, and that causes individual criminal responsibility according to either international customary law or treaty based law …
According to the Geneva Convention [IV] of 12 August 1949 on the protection of Civilian Persons in Times of War, unlawful confinement of protected persons in relation to armed conflict is considered a serious breach of international law, see art. 147, art. 146 and 79 with further references, including art. 42 and 43.
Unlawful confinement of protected persons is considered a war crime according to the Rome Statute of the International Criminal Court of 17 July 1998.
The Lagmannsretten (Court of Appeal) adds for the record that even if the decisions of arrest and confinement had been formally correct, it would still not make the deprivation of liberty lawful. It would not in any case be any legal grounds for imprisoning civilian non-combatants on the grounds of their ethnicity.
In its judgment in the Repak case
in 2011, Norway’s Supreme Court confirmed the verdict of the court of first instance, increased the sentence from five to eight years’ imprisonment owing to the extremely serious nature of the crime, and stated that the crime of “deprivation of liberty” was a “serious violation of international humanitarian law”.