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Source: US Global Legal Monitor

(July 16, 2020) On June 26, 2020, the Norwegian Supreme Court ruled that Norwegian courts may exercise universal jurisdiction over crimes of terrorism and that foreigners may thus be sentenced in Norway for terrorism crimes they committed before arriving in the country. (Supreme Court Decision Case No. HR-2020-1340-A.)

Facts of the Case

The defendant, a stateless Palestinian born in Libya, arrived in Norway in 2017 as an asylum seeker. While in Syria in 2014, he had joined the terrorist organization Jabhat al-Nusra (also known as Jabhat Fatah al-Sham). (Decision ¶ 3.) There he participated in the organization’s training, including weapons training, and in armed military assignments on behalf of the terrorist organization, including as a leader. He also spoke on behalf of the organization in the media and in propaganda videos. During his time with the terrorist organization, its members committed several violent crimes, including murder, with the express purpose of creating serious fear in the civilian population. At the time these crimes were committed the defendant had no connection to Norway.

Joining a terrorism organization is illegal in Norway under article 136a of the Criminal Code, and prior to October 2015, doing so was illegal under article of the Criminal Code of 1902, as amended. Thus, for the entire period when the defendant was an active member of the terrorist organization, his membership violated Norwegian law. (Decision ¶ 4.)

Specifically article 136a reads, “A person who organizes, participates in, recruits members for or provides financial or other material support to a terrorist organization is to be sentenced to six years imprisonment, when the organization has taken steps to realize the purpose with unlawful measures.”

In addition, article 133 of the Criminal Code criminalizes both the planning and preparation of a terrorist act with someone else and the commission of a criminalized terrorist act, which would include creating a serious fear in a population, terror bombing, taking people hostages for terrorist purposes, hijacking airplanes, etc.

 Issue before the Court

It was clear that the defendant’s actions were violations of the Criminal Code provisions described above. The court had thus to decide “[t]o what extent international law allows states to punish foreigners by prosecution in [the state’s] own territory for acts that have been conducted outside the [state’s] territory.” (Decision ¶ 28.)

The court went on to describe two possible approaches to universal jurisdiction: either universal jurisdiction can be used only when international law explicitly allows for it, or it can be used as long as international law does not explicitly forbid its use. (Decision ¶ 29.)

Supreme Court’s Verdict

The Supreme Court held that national states may use universal jurisdiction unless it is explicitly prohibited in international law (Decision ¶ 54), and that states may therefore adjudicate cases against foreigners for terrorist actions that the foreigners have committed abroad. The court’s finding thus partially overturned the appellate court decision. The appellate court had argued that only violations against article 133 of the Criminal Code could be brought by exercising universal jurisdiction, as only such violations were sufficiently authorized in international law, particularly United Nations Resolution No. 1373 (2001) of September 28, 2001. (Decision at ¶ 9.)

The Supreme Court argued that

there are no grounds to establish as an explicit rule of international law that [national] states can exercise universal jurisdiction only in those instances when a special authorization has been made in international law. Even if one cannot establish the opposite, i.e., that [the exercise of] universal jurisdiction is allowed as long as international law does not prohibit it, Norwegian courts should nevertheless use that assumption as long as the jurisdiction provisions of the Criminal Code that relate to the criminal provision, following an in-depth evaluation by the legislator, are based on [such an assumption.] (Decision ¶ 46.)

The Supreme Court went on to find that, with respect to the terrorist crimes mentioned in articles 133 (preparation of terrorist crimes) and 136a (participating in a terrorist organization), nothing in international law prevented Norwegian courts from exercising universal jurisdiction, and that nothing in the jurisdiction paragraph of the Criminal Code (article 5) prevented this. (Decision ¶ 54.)

Accordingly, the court upheld the defendant’s conviction under article 133 of the Norwegian Criminal Code and further convicted the defendant of violating article 136a of the Criminal Code. The court then reinstated the Oslo District Court’s original prison sentence of 11 years and six months, thereby increasing the appeals court’s sentence by three years. (Decision ¶¶ 6, 77.)

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