CHRONICLE: The mass atrocity crimes in Gaza can and must be investigated and prosecuted in Norway

CHRONICLE

The situation in Gaza

Since Hamas’s indiscriminate attack on October 7, 2023 that resulted in 1,200 Israelis being killed, around 240 taken hostage and around 5,400 injured, Gaza has been under intensive attacks by the Israeli army. On day 175 of the escalation of the conflict between Hamas and Israel (as of March 29, 2024), these attacks have resulted in more than 32,500 Palestinians killed, most of them women and children, and around 75,400 Palestinians injured.

The amount of demolition of homes, medical facilities, schools and universities and other vital civilian infrastructure in Gaza is unparalleled in modern armed conflicts. The living conditions for Palestinians in Gaza are so terrible that words do not suffice. Famine threatens 2.3 million Palestinians in Gaza. Many children have died due to lack of food and basic health services.

Despite repeated calls from world leaders, UN high-ranking officials, UN human rights mechanisms and various professional organizations and experts, it took 171 days of bloody conflict before the UN Security Council finally called for a ceasefire during the fasting month of Ramadan and for efforts for a lasting ceasefire, the release of hostages and permission for humanitarian aid in resolution 2728 (2024) adopted on 25 March 2024.

Unlike in previous conflicts, the war crimes committed in Gaza this time have flooded social media.

Placement of responsibility for crimes committed in Gaza by the Israeli army in previous conflicts, i.e. in 2008-2009, 2012, 2014, 2018 and 2021, is lacking, despite the reports of UN commissions of inquiry documenting its occurrence. This lack of accountability for past conflicts in Gaza necessitates a different approach to the current escalation of the ongoing Israeli-Palestinian conflict, namely internal prosecution by third states, including Norway, based on the principle of universal jurisdiction.

Investigation and prosecution at national level by Norwegian authorities

The International Criminal Court (ICC) investigates the crimes committed in Gaza and more generally in the occupied Palestinian territories, by the parties to the armed conflict.

Through a decision of Pre-Trial Chamber I of the ICC of 5 February 2021, the ICC opened criminal investigations into the Palestine situation.

The public prosecutor’s office must still bring charges against certain persons. However, war crimes, crimes against humanity and genocide can be investigated and prosecuted at the national level, based on the principle of universal jurisdiction, especially when there is a jurisdictional connection to a third state.

Among other recommendations to UN member states, the UN Special Rapporteur on Palestine, Francesca Albanese, in her report from the end of March 2024, has recommended that member states must fulfill their obligations under the principles of universal jurisdiction, by ensuring genuine investigation and prosecution of persons suspected for having committed, aided or abetted the commission of international crimes, including genocide.

On 28 November 2023, ICJ Norway and the National Defense Court submitted a detailed complaint to Norwegian prosecutors against Israel’s Minister of Defense Yoav Gallant, member of Israel’s War Cabinet Benjamin Gantz and the Chief of the Israeli General Staff, Herzl Halevi, for complicity in crimes against humanity in Gaza, based on section 102 of the Norwegian Criminal Code.

These senior Israeli officials do not enjoy immunity in Norwegian courts. More than four months later, and despite inquiries from Save the Children at the end of January 2024, and from the Norwegian Helsinki Committee at the beginning of February 2024, the status of the requests to the national state prosecutor’s office for efforts against organized and other serious crime (NAST) is not known.

It is clear that the prosecuting authorities in Norway are pulling the strings and seem inclined to engage in further procedural delays. This passive approach stands in stark contrast to the swift and active commitment to investigate and provide assistance to the Ukrainian authorities and the ICC to investigate and prosecute crimes committed in Ukraine by Russian armed forces.

If Norwegian law enforcement authorities, including NAST, want to avoid accusations of double standards, they should immediately start an investigation into the situation in Gaza and prosecute those most responsible for the ongoing crimes against humanity in the occupied Palestinian territories.

Concluding remarks

Norway is a strong supporter of international law and multilateralism, and the Norwegian government has made many statements about maintaining international law and international humanitarian law in the context of the ongoing hostilities in Gaza. Norwegian investigative and prosecuting authorities must, without further delay, initiate investigations into crimes committed in Gaza and inform ICJ Norway and the Defense of People’s Rights and the public about their work in this regard.