(Note: In a complaint filed on 21 October 2020, RSF asked the Swedish judicial authorities to investigate crimes against humanity in the case of Dawit Isaak and accused Isaias Afwerki, Eritrea’s president since 1993, and other senior Eritrean officials of responsibility for these crimes. The National Unit for International Crimes, which is attached to the Swedish prosecutor’s office, announced on 12 January that it had decided not to conduct an investigation although it recognized the existence of grounds for regarding Dawit as the victim of a crime against humanity. RSF formally asked the Swedish general prosecutor’s office to reverse this decision on 8 April.)
Dawit Isaak: Swedish prosecutor rewards a dictatorial regime in world longest detained journalist case
"The Rule of Law and the primacy of fundamental rights are at the heart of prosecutorial functions."
This sentence is taken from the guidelines for prosecutors on crimes against journalists, adopted by Unesco and the International Association of Prosecutors (IAP) in December 2020.
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, Swedish-Eritrean Dawit Isaak. Mr. 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 crimes she suspects are being committed against him. We cannot accept the decision and are now appealing to a higher prosecutor.
Dawit Isaak was imprisoned in Eritrea when the regime in Asmara decided to ban all independent newspapers and started rounding up journalists in September 2001.
Dawit 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, 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, former UN High Commissioner on Human Rights, Canada’s earlier 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 Dawit Isaak, 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 to Dawit Isaak or the public, all the most concerned by crimes against humanity. 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 at place 178 of 180 countries.
But in our complaint, we present evidence that can be found outside of Eritrea, witnesses to when Dawit Isaak was arrested, a person who shared a cell with him, journalists who have been hunted and detained by the regime. And we point to the trove of evidence which were 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 Dawit Isaak’s freedom. That is of greater value, she states, than that of pursuing justice trying to investigate the most serious international crime called crimes against humanity.
The argument is hollow. Sweden has been trying to negotiate Dawit Isaak’s release for almost two decades. It has been fruitless. Swedish diplomats have never been allowed to see Dawit Isaak, they have indeed never even been given proof of life despite demands.
In our complaint we refer to a statement by the Foreign Minister herself. In Parliament Minister Ann Linde 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 vain including since 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 IAP/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. 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.
Dawit Isaak’s Swedish legal team
Brother of Dawit Isaak
International lawyer, Senior Advisor for International Strategic Litigation and Advocacy
Reporters sans frontières (Reportrar utan gränser/Paris)
Dawit Isaak team leader
Reportrar utan gränser (RSF/Sweden)
Former Minister of Justice and Attorney General of Canada
Criminal Defence Lawyer, Human Rights Lawyer and member of the Human Rights Committee of the German Federal Bar
Lawyer and Nobel Peace Prize laureate 2003
Former Judge, High Court of South Africa
Former President. International Criminal Tribunal for Rwanda
Former Judge, International Criminal Court
Former United Nations High Commissioner for Human Rights
Director Centre for Human Rights, University of Pretoria
Professor of International Human Rights Law
Editor-in-chief African Human Rights Law Journal
Convening Editor, African Human Rights Yearbook
Raoul Wallenberg Research Initiative
Canadian HR Lawyer
Director of the Eritrean Law Society, LLD (Dr of Law), independent consultant