Practice Relating to Rule 151. Individual Responsibility
Norway’s Military Penal Code (1902) 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”. It also provides for the punishment of:
anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in
a) the Geneva Conventions of 12 August 1949 concerning the amelioration of the conditions of the wounded and sick in armed forces in the field, the amelioration of the conditions of wounded, sick and shipwrecked members of armed forces at sea, the treatment of prisoners of war, and the protection of civilian persons in time of war,
b) the two additional protocols to these conventions of 10 June 1977.
Norway’s Penal Code (1902), as amended in 2008, states:
Any person who conspires with another person to commit a criminal offence mentioned in sections 101 to 107 [genocide, crimes against humanity and war crimes] is liable to imprisonment for a term not exceeding 10 years. The same applies to any person who directly and publicly incites another person to commit such an offence.
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, Norway stated: “States need to hold … non-State actors accountable for their attacks on humanitarian workers operating in territory under their control.”
[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. … Individual responsibility must be upheld and this means that all perpetrators must be held accountable and punished accordingly, regardless of their status or capacity.
In its judgment in the Repak case in 2008, concerning crimes committed against civilian non-combatant Serbs in an internment camp in Bosnia-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:
273. Many of the aggrieved persons have presented claims for compensation for non-pecuniary damage; that is, money to be paid in compensation for pain and suffering. …
274. As regards compensation for non-pecuniary damage, it is regulated by section[s] 3–5 of the Compensation Act. The said legal provision gives a legal basis for compensation for non-pecuniary damage where injury has been inflicted upon a person or reproachable behaviour has been demonstrated as further described therein. The provision does not make reference to any provisions of the 2005 Penal Code, but this District Court presumes this not to be a conscious choice by the legislators, but a failure to adapt the existing legislation when the new war crime provisions were adopted. Thus, the District Court presumes that there is a legal basis for compensation for non-pecuniary damage in the case of deprivation of liberty covered by section 223 second subsection of the Penal Code. The defendant is not convicted pursuant to any provisions concerning violent crime; however, in fixing the amount of the compensation for non-pecuniary damage awarded, the Court attaches importance to the violence exercised by the defendant, and instances of violence where he was directly responsible. The defendant shall however not be held liable for abuses committed by others in Dretelj [internment camp]. This means that the defendant shall not pay compensation for non-pecuniary damage for the rapes committed in Dretelj.
276. In addition to [the defendant's] complicity in the deprivation of her freedom, AA [a female civilian non-combatant who was held in Dretelj] was subjected to torture during an interrogation that the defendant was in charge of, she was subjected to degrading treatment by having to undress completely, and the defendant personally gave her a slap in the face. Following the above, the Court finds that the compensation for non-pecuniary damage to AA is to be in the amount of NOK [Norwegian krone] 100,000.
277. For the remaining victims, who have claimed compensation for non-pecuniary damage, it is the deprivation of liberty that is the basis for these claims. Because the defendant is not liable for the individual instances of abuse committed in Dretelj, the Court finds no reason to differentiate the amounts awarded as compensation for non-pecuniary damage, which is set to NOK 40,000 for each of them [six other victims], with the exception of DD [an eighth victim], where the amount is set to NOK 60,000 because of the use of needles he was subjected to in the interrogation headed by the defendant.