In October 2020 Reporters without Borders filed a complaint with the office of the Swedish prosecutor for international crimes accusing Eritrea’s President Isaias Afwerki and seven other senior Eritrean officials of a crime against humanity by holding the journalist Dawit Isaak incommunicado since 2001.
The National Unit for International and Organised Crimes, which is attached to the Swedish prosecutor’s office, said in a decision published on January 12 that it had reasons to believe Swedish-Eritrean journalist Isaak is the victim of a crime against humanity coming under Sweden’s universal jurisdiction. But it refused to open an investigation on the grounds that it would be difficult to carry out in the absence of any cooperation by the Eritrean authorities.
“The Rule of Law and the primacy of fundamental rights are at the heart of prosecutorial
Functions,” reads a sentence from the Guidelines for Prosecutors on Cases of Crimes Against Journalists adopted by Unesco and the International Association of Prosecutors last December.
Yet it rings strange when you read the recent decision by a Swedish prosecutor, who suspects crimes against humanity against one of the longest detained journalists in the world. Isaak has been held in Eritrea for almost two decades without ever being tried in court. Yet the Swedish prosecutor decided not to open an investigation of the crime she suspects are being committed against him. We cannot accept the decision and are now appealing to a higher prosecutor.
Isaak was imprisoned in Eritrea when the regime in Asmara decided to ban all independent newspapers and started rounding up journalists in September 2001.
Isaak and his colleagues are now the longest detained journalists in the world.
His case has been brought to the Swedish Prosecution Authority by his brother, Esayas Isaak, Reporters Without Borders (RSF), his Swedish legal team and 12 prominent international human rights lawyers. The Nobel Peace Prize laureate and lawyer, Shirin Ebadi, signed the complaint. Navi Pillay, the former United Nations high commissioner on human rights, Canada’s former justice minister, Irwin Cotler, and the former chair of the African Commission on Human and Peoples’ Rights, Pansy Tlakula, are also behind the complaint.
But the Swedish prosecutor does not think that Isaak, a Swedish citizen since 1992, deserves an investigation.
The Prosecutors Guidelines state: “When prosecutors make fair decisions, impartially and with integrity to secure justice to victims and the public, they help maintain a free and democratic society.”
We believe the prosecutor’s decision is neither fair nor convincing. It does not secure justice for Isaak or the public. Nor does she help maintain a free and democratic society. In her decision she declares it would be possible to investigate the crime that she suspects and says it could be tried by a Swedish court. But she gives two reasons to not even try.
First, that an investigation would need her to go to Eritrea and that she would most likely not be given permission to do that. We agree. Eritrea is one of the world’s most repressive countries when it comes to the media. In Reporters Without Borders Press Freedom Index
Eritrea is placed 178 of 180 countries.
But in our complaint, we present evidence that can be found outside of Eritrea — witnesses
to Isaak’s arrest, a person who shared a cell with him and other journalists who have been hunted and detained by the regime. And we point to the trove of evidence collected by the UN Human Rights Council Commission of Inquiry on Human Rights in Eritrea. The evidence is held in Geneva and is available to prosecutors investigating crimes against humanity in Eritrea.
It is no surprise that crimes against humanity may be the most complex to investigate. Legislating about them and creating a specialised prosecutorial unit aims precisely at confronting that complexity instead of avoiding it and rewarding impunity.
Second, the prosecutor contends that an investigation may harm Sweden’s relations with Eritrea. She does not want to do that for fear of making it harder for Sweden’s ministry for foreign affairs to achieve Isaak’s freedom. That is of greater value, she states, than that of pursuing justice by trying to investigate the most serious of international crimes — those against humanity.
The argument is hollow. Sweden has been trying to negotiate Isaak’s release for almost two decades. It has been fruitless. Swedish diplomats have not been allowed to see him; they have never even been given proof of life, despite pleas.
In our complaint we refer to a statement by Foreign Minister Ann Linde. In parliament she described her ministry’s many efforts regarding Dawit and said: “I am forced to conclude that Eritrea in no way has listened to our concerns or acted on them.”
Neither this nor almost two decades in detention in one of the most hostile countries to journalism on Earth impresses the Swedish prosecutor. She thinks an investigation would be made difficult by Eritrea and thus rewards a dictatorial regime by giving up without trying to battle impunity. And she hopes for some magic to happen on the diplomatic front while acknowledging that diplomatic efforts have been in vain, including in 2016 when her predecessor refused to open an investigation for the same reason.
It is unreasonable and runs counter to the final conclusion in the International Association of Prosecutors/Unesco Guidelines for Prosecutors: “All above are part of the general commitment of prosecutors to protect justice, equity, the public interest and the common good.”
We are now asking for a review higher up in the prosecution authority. We are doing this for the sake of protecting justice, equity, the public interest and the common good — and for the sake of the journalist, husband and father of three who risks his life in the Eritrean prison system every day.
Jesús Alcalá, Dawit Isaak’s Swedish legal team;
Susanne Berger, Raoul Wallenberg Research Initiative;
Antoine Bernard, international lawyer, senior adviser for international litigation, Reporters Sans Frontières (Reportrar utan gränser/Paris);
Irwin Cotler, Former Minister of Justice and Attorney General of Canada;
Bernhard Docke, criminal defence lawyer, human rights lawyer and member of the Human Rights Committee of the German Federal Bar;
Shirin Ebadi, lawyer and Nobel Peace Prize laureate 2003;
Esayas Isaak, brother of Dawit Isaak;
David Matas, Canadian human rights lawyer;
Daniel Mekonnen, Eritrean legal scholar;
Navanethem Pillay, former judge of the High Court of South Africa, former president of the International Criminal Tribunal for Rwanda, former judge of the International Criminal Court, and former United Nations high commissioner for human rights;
Björn Tunbäck, Dawit Isaak team leader, Reportrar utan gränser (RSF/Sweden);
Frans Viljoen, director for the Centre for Human Rights, University of Pretoria, professor of international human rights law and editor-in-chief of the African Human Rights Law Journal, convening editor of the African Human Rights Yearbook.