Judgment finding Norwegian Refugee Council 'grossly negligent' in 2012 Dadaab Kidnapping (in English)

Translation from Norwegian
Translated by John Richard Stokbak Sciabà, Government Authorized Translator English – Norwegian - Spanish, Candidatus Juris
Tel. (+47) 917.22.768 • E-mail: richard.sciaba@gmail.com
OSLO DISTRICT COURT
[OSLO TINGRETT]
JUDGMENT
Delivered on: 25 November 2015 in Oslo District Court
Case No: 15-032886TVI-OTI R/05
Judge: Deputy JudgeLena Skjold Rafoss with ordinary powers
The case concerns: Claim for compensation
Steven Patrick Dennis
vs.
Stiftelsen Flyktninghjelpen
[the Norwegian Refugee Council]
Advocate Knut Helge Hurum
Advocate Grethe Lillian Gullhaug
No restrictions on publishing

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JUDGMENT
The case concerns a claim for compensation for economic and non-economic loss following the
kidnapping of Steven Patrick Dennis on 29 June 2012 while he was employed by the Norwegian
Refugee Council [NRC] in Dadaab in Kenya.
Background of the case
Steven Patrick Dennis was born in 1975 and is a Canadian citizen. He has a cohabiter who is also a
Canadian citizen. Dennis was trained as a graduate engineer during the period 1994-1999; in addition,
he took a Masters degree in international relations during the period 2009-2010 at the University of
Toronto. Dennis worked as an engineer in Toronto during the period from November 1999 to June
2002. After that he had several assignments as a field worker for Doctors Without Borders (MSF)
during the period 2002-2011. These included assignments in the countries of Sri Lanka, South Sudan,
Somalia, the Ivory Coast, the Netherlands and Chad.
The NRC is an independent and private foundation. The NRC is a worldwide aid organization with
more than 5250 employees in 25 countries, including countries in Africa, Asia, the Americas and
Europe. The foundation's official English name is the Norwegian Refugee Council (NRC). Its head
office is located in Oslo. The foundation is headed by a Board of Directors, and the Board appoints
the Secretary General. The Secretary General is responsible for day-to-day management of the
organization's activities and reports to the Board of Directors. Elisabeth Rassmusson was Secretary
General in 2012. Jan Egeland has been Secretary General since 2013.
The NRC has had an office in Nairobi since 2006. The office in Nairobi has been NRC's regional office
for the Horn of Africa since 2011. In 2012, the regional office was responsible for NRC's projects in
Ethiopia, Kenya, Somalia and Yemen.
The refugee camp in Dadaab in Kenya was established by the UN High Commissioner for Refugees
(hereinafter "UNHCR") in 1991 and is located in Kenya's North Eastern Province bordering on
Somalia. As per June 2012, the camp was divided in five camps. They were Hagadera, Dagahaley,
Kambioos, IFO and IFO II. The refugee camp IFO II was established in January 2012 as a
consequence of an increased influx of refugees. The combined population of the five camps is in
excess of 500,000 refugees. The Dadaab refugee camp is the world's largest refugee camp in terms of
population.
The NRC has been present in the refugee camp in Dadaab since 2006. According to an overview
provided by the UNHCR, the NRC is one of 23 organisations that have operations in Dadaab. The
NRC runs projects within, inter alia, shelter, education, food security, water, sanitation and
hygiene. In June 2012, the NRC had a total of 120 staff in Dadaab, of which 113 were local staff
and seven were international aid workers.

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Dennis signed an employment contract with the NRC on 20 July 2011. He was employed as a
"Project Manager Emergency Coordinator" in Dadaab in Kenya. The contract period was from 25
July 2011 to 24 October 2011. The contract was subsequently extended to 24 July 2012. After that he
was employed in the position of "Area Programme Support Manager" in Dadaab from 01 April 2012
to 24 July 2012. On 23 June 2012, Dennis received an email wherein it was stated that the NRC,
because of a lack of financing, would not extend the contract period beyond July 2012. Dennis
confirmed that he had been informed about this in an email of 26 June 2012. In connection with this,
he presented objections to the planned withdrawal of the position.
Because of the drought in the Horn of Africa, the summer of 2011 saw a dramatic increase in the
influx of refugees to Dadaab. The population of the refugee camps increased from approximately
270,000 refugees to approximately 500,000 refugees. The UN and humanitarian organisations were
struggling to follow up on the massive increase in the need for aid. In October 2011, Kenyan
authorities declared war on Al Shabaab after several kidnappings of Kenyan and foreign nationals. As
a consequence, Al Shabaab threatened to seek revenge in Kenya and there were several bomb attacks
in Nairobi and the North Eastern Province. The Kenyan police became an explicit target of revenge
attacks on the part of Al Shabaab. As a consequence of these circumstances, the security situation in
Dadaab deteriorated strongly. The UN raised the risk level in Dadaab from level 3 to level 4. In
September 2011, a Kenyan driver from the organisation CARE was kidnapped, and in October 2011
two foreign women from Doctors Without Borders (MSF) were kidnapped.
Hanna Vaughan-Lee was hired by the NRC in Nairobi to perform a review of the security situation in
Dadaab. In January 2012, she presented a report entitled "Context & Risk Analysis: Dadaab January
2012". The report pointed out weaknesses in the handling of security internally within the NRC, and
it contained a list of recommended measures to improve the security situation. The security situation
in Dadaab and the risk of kidnapping are mentioned in several other reports. The Court has been
presented with reports from the NGO Safety Program (NSP) and the UNHCR. In addition, weekly
security reports from Dadaab for the period 2011-2012, the NRC's situational report, as well as the
"Security plan NRC Dadaab", last revised in February 2012, have been presented.
The Secretary General of the NRC, Elisabeth Rassmusson, was to visit the Horn of Africa and Yemen
in June 2012. Originally, there were no plans for her to visit Dadaab. However, the situation in
Dadaab was assessed to be so critical that the NRC considered it necessary to have a visit there. The
purpose of the Secretary General's visit was to contribute towards increased attention to the situation
in Dadaab, so that donors and others would provide more financial means for the work. In the
beginning of June 2012 it was therefore decided that the Secretary General was to visit Dadaab and
that the visit would take place on 29 June 2015 [sic].
The country director for Kenya, Qurat Ul-Ain Sadozai, the area manager in Dadaab and the
regional security adviser were in Dadaab on 22 June 2012 to prepare for the visit.

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Originally, the plan was to use an armed escort during the visit; it had also been booked. This is
evident from, amongst other things, an email and a memo from the local security adviser on 27 and 28
June 2015 [sic].
However, on 28 June 2012 Sadozai sent an email to the area manager concerning the security plan for
the visit. The same email was later that evening sent to Glenn Pettersen, who was the global security
adviser at the head office in Oslo. The email showed that a decision had been made not to use an armed
escort during the visit after all. The decision had been made by Sadozai in consultation with the
regional director in Nairobi, Hassan Khaire. The decision had also been approved by Toril Brekke,
head of field operations at the head office in Oslo.
Khaire had tried to get hold of Glenn Pettersen by telephone, but had not been able to contact him. No
other security advisers were contacted in connection with the said decision. Pettersen received the
email regarding the security plan on 29 June 2012, and he immediately sent an email regarding his
concerns about the security arrangements. The visit was however already in progress and the email was
not read by the recipients until after the kidnapping. One of the local drivers who had been booked, did
not want to participate when he got to know that no armed escort would be employed. As a
consequence, the NRC hired another driver.
The Secretary General and her entourage arrived at Dadaab in the morning and received a short
security briefing at the airport. The group arrived at the IFO II camp at around 09:30. They stayed for
longer than planned at one of the places, presumably because of a discussion concerning shelters. The
group consisted of approximately ten persons, and at about 11:45 they left IFO II through a road with
fences on both sides. The road has been described as a "funnel" that you have to pass through in order
to leave the camp. The convoy consisted of three white Land Cruisers with the NRC logo.
Dennis was placed in the first car together with the driver and another staff member, the "Deputy
Shelter Manager". Secretary General Elisabeth Rassmusson, Khaire, the area manager and Abdullahi
Keinan were in the second car together with the driver. Sadozai, a project manager who was an
employee, and communications adviser Astrid Sehl were placed in the third car.
When the convoy entered the fenced road it was attacked by six men firing several shots. The driver
of the second car managed to turn the car around and drove off from the scene together with
Rassmusson, Khaire, the area manager and Abdullahi Keinan. The driver in the third car, who had
been hired that same day, was shot four times and died on the spot. The driver in the first car was shot
and seriously wounded. He was, inter alia, shot twice in the back while lying on the ground outside
the car. Dennis was shot in the thigh. Two other staff members were also shot and injured. Dennis
was taken to the rearmost car and placed inside it together with Sadozai, Astrid Sehl and another staff
member. The kidnappers got into the same car and the group of six kidnappers and the four kidnap
victims drove off. The kidnappers later picked up two more persons who participated in the
kidnapping operation and who joined them for the drive.

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The car with Rassmusson, Khaire, the area manager and Abdullahi Keinan drove to the nearest police
station and later continued to Nairobi. Crisis management teams were set up at the head office in Oslo
and at the regional office in Nairobi. Glenn Pettersen went to Nairobi and took charge of the crisis
management team when he arrived.
After four days, a rescue operation was carried out close to the Somali border and all four kidnap
victims were set free. The rescue operation was performed by Kenyan authorities and the Ras Kamboni
militia, upon a commission by the NRC. The militia was headed by Sheikh Ahmed Madobe.
The kidnap victims were flown to Nairobi after the incident and they were given medical treatment.
Debriefing meetings were held in Nairobi. After that, arrangements were made for the kidnap victims
to return home. Other employees who were affected or involved in the incident were sent on vacation.
A general staff meeting concerning the case was held in Oslo in late August 2012. After that, a
gathering was held in Oslo with the kidnap victims from 19 to 21 September 2012.
After the incident, Glenn Pettersen initiated an internal inquiry. Security adviser Chris Allan was asked
to contribute towards this effort. Chris Allan wrote the report "Review of Security Environment, Risk
Management and Recommendations following the 29th June Kidnap of NRC Staff'. Glenn Pettersen
wrote the report "After Action Review Report — Dadaab Kidnapping". The report was drafted in a long
and a short version. The report was subjected to an external evaluation by Nicholas Downie. He
submitted the report "External and independent evaluation of the Dadaab incident After Action Review
Report authored by Glenn Pettersen". The reports of Pettersen and Downie were reviewed at the NRC
board meeting on 20 September 2012. Christopher Finucane from Humanitarian Policy Ltd. was later
hired to perform a review of the NRC's security systems. On 30 March 2013, he submitted the report
"A Review of Security Management Systems of the Norwegian Refugee Council".
The reports were considered and approved by the NRC board at a board meeting on 17 April 2013. The
short version of Glenn Pettersen's report was made available to all staff members on 07 May 2013
through electronic reading access. The NRC has not requested any external review of the case beyond
this.
It has been informed that there is, or has been, an investigation and criminal proceedings against the
kidnappers in Kenya. During the main hearing, the NRC informed that the criminal proceedings seem
not to be much prioritized in Kenya and that little has happened in the case.
In 2012, the NRC had insured its staff through a travel insurance with Europeiske, a personal injury
insurance with IF, as well as a disability insurance with Norben. The insurance with Norben could
provide a disability pension up to the age of 67 years in the case of physical injury, but the insurance
coverage was more limited in the case of psychological injury. A process has been carried out vis-à-vis
the insurance companies.

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Dennis has received payments in the amount of NOK 477,405 from Norben and NOK 588,102 from
IF. Dennis got a sick leave and salary from the NRC for the remainder of the year 2012 in the
amount of NOK 241,654. The NRC has covered his expenses for a lawyer in the amount of NOK
60,000 as well as expenses for coaching in the amount of NOK 12,000. In addition, Dennis has
received insurance payment from Europeiske and some coverage of costs relating to medical
expenses.
On 23 February 2015, Oslo District Court received a writ of summons from Dennis with a demand for
compensation to be fixed at the Court’s discretion. The NRC filed a timely reply on 27 March 2015
with a plea for acquittal. The NRC did not want judicial mediation. The District Court held a planning
meeting on 10 April 2015. The NRC requested a division of the case to have the question of the legal
basis of liability treated separately, but the Court rejected the request.
Upon a petition by the NRC, on 28 May 2015 the Court issued an order that a medical expert witness
was to be appointed in the case; see section 25-2 of the Dispute Act. On 17 August 2015, the District
Court sent a letter with the appointment and terms of reference to Are Holen as an expert witness in the
case. Are Holen submitted a written expert opinion on 24 September 2015.
The NRC suggested in a written pleading of 03 September 2015 that the parties nonetheless could
attempt judicial mediation. Judicial mediation took place at Oslo District Court on 30 September 2015,
but the parties failed to agree on a settlement.
On 9 October 2015, Dennis presented a settlement offer. The offer was that the compensation to cover
economic loss, permanent injury and pain and suffering was to be set at NOK 6,900,000 and that the
NRC in addition was to pay NOK 1,000,000 to compensate legal costs. The offer was conditional upon
the NRC making a public statement acknowledging that they had acted with gross negligence. The
NRC did not accept the offer from Dennis.
The NRC presented settlement offers on 1 October and 12 October 2015. The final offer was a total
compensation of NOK 3,500,000 in addition to what already had been paid out by the insurance
companies. The NRC offered that Dennis could be allowed to present the case to the NRC board and
that the Refugee [Council] was to issue a specific public statement on the case. Dennis did not accept
the offer by the NRC.
The District Court held a new planning meeting on 08 October 2015. The main hearing was held at
Oslo District Court on 20 - 28 October 2015. Dennis appeared and testified as a party to the case; the
NRC was represented by senior legal advisor Merethe Nedrebø and deputy secretary general Geir Olav
Lisle. Merethe Nedrebø testified as a party to the case. A total of 15 witnesses were heard. The expert
witness, Are Holen, followed the entire main hearing and testified. During the closing argument, the
NRC acknowledged employer's liability due to failing information security; consequently, it submitted
a modified plea for judgment. Additional reference is made to the court record.

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The plaintiff’s grounds for prayer for relief:
In the case at hand, a principle of reversed burden of evidence must apply, for reasons of securing of
evidence. The NRC has held all the documentation concerning the case. The NRC has not wanted to
inform on who made decisions and has not provided access to central reports. In any case, the NRC has
the burden of evidence for its own submissions.
The parties do agree that injury exists and that one can rely on the expert witness' conclusions
regarding the said injury. The assessment made by the expert witness is substantiated by other
documents concerning Dennis's psychological and physical health. Thus, the parties agree that Dennis
has a lasting PTSD, a mild degree of clinical depression, as well as a limited, but lasting gunshot injury
to his left thigh.
There is a basis of liability pursuant to the rule of employer's liability. The NRC acted with gross
negligence and may also be held liable pursuant to the rule of liability for the actions of managing
bodies. Consequently, the conditions for a compensation for pain and suffering are satisfied. In the
alternative, it is submitted that there is a basis of liability pursuant to the rules of non-statutory strict
liability and irresponsible arrangement.
Aid organizations are major employers with the same responsibility for their employees as other
employers. The case might give the impression that the NRC is not to have the same employer's
liability because of its other good deeds. Employees must however know that their employer covers
their back with a satisfactory handling of their security and that they will be taken care of if anything
happens. A sound protection of employees will in the long run lead to increased productivity. The
experiences gathered from the rescue operation in the case at hand have shown that it may be more
costly to react after the fact than to prevent it from happening. Security incidents also affect those who
are to be aided, in that programs are stopped or downscaled. Sound security for employees can prevent
this, thus leading to more persons being helped in the long run.
The activities of aid organizations in other countries are not subject to much government control.
By way of comparison, if there had been any fatalities or kidnapping at the head office in Norway, the
authorities and the police would have reacted with an inquiry and full investigation. The NRC musts
confront its culture with regard to internal criticism. An external inquiry should have been performed.
In this case, superiors have blamed their subordinates for decisions that were made at higher levels of
the system.
The security situation in Dadaab had deteriorated strongly from the autumn of 2011.The risk level had
been set to four. The next level is five, which entails evacuation. No other VIP visits in Dadaab were
carried out during that period. There had been several kidnapping incidents and the risk of kidnapping
was high.

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There was also a risk of being hit by an improvised bomb or road bomb, a so-called IED
(improvised explosive device), but it is not a given that the risk of such attacks would increase
noticeably in the case of an armed escort being used.
The NRC's handling of staff security had been very weak for some time, both in terms of
understanding the security context and in terms of implementing applicable minimum standards.
Reference is made to the reports from Hanna Vaughan-Lee, Chris Allan and Glenn Pettersen.
Additionally, responsibilities were unclear and the training of staff in management positions was
lacking. The general security handling forms a backdrop that may have influenced incorrect
decisions that were made in connection with the visit of the Secretary General.
The Secretary General's visit should not have been performed. In any case, the visit should not have
been performed without more specific security measures. The concrete errors relate to the failing
information security, the fact that the visit was performed with a high profile, that a visit was made to
IFO II, that the duration of the visit exceeded the recommended duration, as well as the lacking
presence of security staff. Nor should the visit have been performed without the use of an armed
escort.
In some cases of international aid work, there will be a residual risk after an employer has done all he
can to reduce the risk, and in such cases he can ask for the employee's consent to assume that risk.
Here, the NRC had however not implemented reasonable and necessary security measures;
consequently, this is not a case of such a residual risk.
The NRC's negligent acts were a necessary condition for the injury. The requirement for causation is
fulfilled.
Dennis is entitled to full compensation for his economic loss, he is also entitled to compensation for
his non-economic loss, including compensation for permanent injury, and pain and suffering.
Dennis has in his calculations of the claim for compensation indicated some points of departure,
and then the Court must establish the compensation on the basis of a broad discretionary
assessment. Dennis cannot bear the currency exchange risk.
The plaintiff's prayer for relief:
1. Steve Dennis is to be awarded compensation for economic loss, compensation for
permanent injury and compensation for pain and suffering, to be determined at the Court’s
discretion.
2. Steve Dennis shall be awarded legal costs.

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The defendant’s grounds for prayer of relief:
The kidnapping on 29 June 2012 was the most serious incident in the history of the NRC. One person
was killed and four staff members were kidnapped. Fortunately, they were freed four days later
following a successful rescue operation.
Crisis management teams were set up both in Nairobi and in Oslo immediately after the
kidnapping. The next of kin were informed and taken care of. The rescue operation was responsible
and successful. The NRC received the kidnap victims in a good way and they have received good
follow-up after the incident.
Extensive evidence exists with regard to an incident that happened several years ago. The case is to
be processed pursuant to Norwegian compensation law, but the acts took place in a refugee camp in
Dadaab in Kenya. The context cannot be compared to compensation cases normally heard by
Norwegian courts.
The Court is not to decide on whether an external inquiry should have been performed.
Nor does the case deal with the NRC's handling of the media and nationalization of positions.
The Court is to base its ruling on the facts that seem most probable upon an overall assessment. In the
case of doubt as to what is most probable, the main rule is that the doubt must be to the detriment of
the one that has suffered injury. The NRC disputes that there is any basis for placing the burden of
evidence on it. The NRC has not intended to be unreasonable, it has only asked questions that any
employer or tortfeasor would have asked in a compensation case.
The NRC has no objections to the main conclusions of the expert witness and accepts as a fact that
Dennis has sustained an injury because of the kidnapping incident. He has been diagnosed with
PTSD. The injury has caused a 25% reduction of his functional capacity and a medical disability that
indicates placement in group 2. The NRC wants to emphasize that the expert witness has stated that
there may be prospects of improvement once the court case is over. No information has emerged that
indicates any risk of a worsening.
The NRC acknowledges that there was a breach of information security and that this error may be
considered to cause liability for compensation under the rule of employer's liability in section 2-1 of
the Compensation Act. It is acknowledged that the kidnappers may have received information about
the Secretary General's visit because of this failure and that as a consequence causation exists. The
responsibility for information security is located in several places, but is still not supposed to be
distributed collectively or allocated to the top manager. The concrete failure happened at the office in
Dadaab and cannot be linked to the regional office in Nairobi or the head office in Oslo.
Consequently, the information failure does not constitute a basis of liability pursuant to the rule of
liability for the actions of managing bodies.

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The submissions with regard to other invoked circumstances are maintained. Weaknesses have been
uncovered with regard to security management, but the errors cannot be considered to constitute
negligence or gross negligence. Since the alleged errors relate to different circumstances, the Court must
in its assessment of the question of liability perform an assessment of each individual circumstance. In the
opinion of the NRC, there are no grounds for the submissions that the NRC had an irresponsible security
culture prior to the kidnapping incident.
The visit of the Secretary General was necessary to draw attention to a refugee crisis in which the world
had lost interest. The risk of kidnapping had been identified and assessed. The decision to carry out the
visit without an armed escort was the result of a balancing of different risk-related elements. The
background of the decision was, inter alia, that the NRC wanted to reduce the risk of IEDs and to make
sure that the visit kept a low profile. It was of no significance for the kidnapping that no security staff were
present at the offices in Dadaab and Nairobi during the visit.
The NRC's handling of the risk of kidnapping cannot be considered to be a marked deviation from that
which is responsible; consequently, the organization has not acted with gross negligence. The conditions
for being granted a compensation for pain and suffering do not exist; see section 3-5 of the Compensation
Act.
A judgment based on strict liability may cause enormous ripple effects for the aid industry. The
consequence might be that important aid work is stopped.
If the Court were to conclude that the other invoked circumstances may be considered negligent, the Court
must assess the requirement of causation concretely for each such circumstance.
The NRC disputes the calculations of the claim for compensation. In the compensation, amounts already
paid out by the NRC and the insurance companies are to be taken into consideration. The
compensation is to be calculated and paid in Norwegian kroner.
The defendant’s grounds for prayer of relief:
1. The NRC is to pay a compensation to Steve Dennis, which shall be determined at the Court’s
discretion.
2. The NRC is to be awarded the part of the legal costs that have been incurred after 12 October 2015.

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The Court’s assessment
The basic conditions for compensation - conclusions
According to general non-statutory principles of compensation law, there are three basic
requirements for compensation. There must be injury, a basis of liability, as well as a causal
relationship between the basis of liability and the injury.
The Court has found that the NRC is liable for compensation towards Dennis for his economic and
non-economic losses as a consequence of the psychological and physical injuries he sustained
following the kidnapping.
The Court has concluded that the NRC is liable for compensation under the rule of employer's
liability in section 2-1 of the Compensation Act. The Court has furthermore concluded that the NRC
acted with gross negligence and is liable pursuant to the rule of liability for the actions of managing
bodies. Consequently, the conditions for a compensation for pain and suffering are satisfied pursuant
to section 3-5 of the Compensation Act. The Court has concluded that there is a causal relationship
between the basis of liability and the injury. The specific loss items are discussed individually.
The question of the burden of evidence has not been pushed to an extreme as regards the basic
requirements for compensation. There has not been any such doubt that would indicate that the rules
regarding the burden of evidence have been of any significance. The Court has considered it to be a
fact that Dennis has the burden of evidence as regards the calculation of the claim for compensation.
The injury requirement
The parties do agree that injury exists and that one can rely on the expert witness' conclusions.
Following the evidence presented, nor the Court sees any reason to dispute the expert witness'
assessments and conclusions. In the opinion of the Court, the conclusions are substantiated by other
evidence in the case, including the documents presented concerning Dennis's psychological and
physical health condition.
Dennis has been diagnosed with post-traumatic stress disorder (PTSD) of a chronic nature and a
mild degree of depression. His psychological health condition is considered to be of a lasting
nature. The expert witness has concluded that the diagnosis was event-triggered and that the
symptoms can be related to the kidnapping event.
As a consequence of the injury, Dennis will for the future have a reduction in his functional capacity
of 25 %. The main cause of his loss of functional capacity is his psychological afflictions and
vulnerability. The Court agrees with the expert witness that the thigh injury will be insignificant for
most jobs that are of potential interest to Dennis. During the main hearing, the expert witness stated
that there is reason to believe that Dennis for an interim phase of 3 to 5 years after the court case
will have a functional capacity reduction in excess of 50 %.

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In this assessment, the need for a certain retraining has been taken into consideration. Following the
evidence presented, the Court, like the expert witness, believes that the functional capacity reduction
will be in excess of 50 % during such an intermediate phase.
Dennis has undergone appropriate medical treatment and rehabilitation. His condition has stabilised.
He has received competent psychotherapeutic treatment for some time. The expert witness stated that
antidepressants and sleep medication may provide some help, but that he probably cannot obtain much
additional gain from further psychotherapeutic treatment. It can however provide some help and
support for mastering his everyday life. In determining medical disability, an overall assessment is to
be made of both the psychological and the physical injury. The Court finds, like the expert witness, that
Dennis on the basis of his psychological health condition may be placed in the upper range of group 1
and that he, because of the thigh injury, upon an overall assessment may be placed in group 2. This
entails a medical disability of 25 to 34 %. This assessment is in accordance with the guidelines of the
Regulations concerning Compensation for Permanent Injury of 21 April 1997 no. 373.
The expert witness emphasised in his statement that good follow-up and information in the wake of
such an incident is of great importance. Persons who experience a kidnap incident like this one, will be
very sensitive to how they are handled. This applies both institutionally and at an individual level. It is
important that a follow-up is provided that gives individuals a feeling of being taken care of. If they do
not feel that they are being taken care of, it may in general lead to a high degree of aggression and
antagonism. Requirements for being able to go on with their lives would include good debriefing, that
they obtain a clear picture of what happened and that they are given adequate information by their
employer. In connection therewith, the Court notes that Astrid Sehl, amongst others, explained that she
can come to terms with the fact that mistakes were made, but that it is difficult to come to terms with
the fact that they have not received full information. Several witnesses have stated that the incomplete
information has made it difficult for them subsequently to trust the management of the NRC.
The expert witness made reference to the fact that Dennis already has received treatment by way of
cognitive therapy over a period of time. According to the expert witness, there is no documented
method for the treatment of PTSD. The expert witness was a bit surprised that antidepressants and sleep
medication had not been tried, as these may influence symptoms like bad sleep, anxiety and
restlessness. The expert witness emphasized that it would be constructive for Dennis to have his
thoughts concentrate on something else than the case at hand, and that the symptoms of posttraumatic
stress may diminish and disappear after the court proceedings are finished. The vulnerability will
however not disappear. The expert witness underlined that Dennis himself may contribute to his
recovery and that central factors for a better everyday life may be physical activity, good relations, as
well as a good alternation between work and rest, and work and recreation.
Following the above, it is the Court's conclusion that the injury requirement is fulfilled. Dennis has
been diagnosed with lasting PTSD and a mild degree of depression. As a consequence of the injury,
Dennis will during a transition phase have a reduction in his functional capacity of 50 %, while he for
the future will have a reduction in his functional capacity of 25 % .

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His medical disability is placed in group 2, entailing a medical disability of 25 - 34 %.
The basis of liability
The requirements for employer's liability
Section 2-1 of the Compensation Act imposes upon the employer a strict liability for injury caused by
intent or negligence on the part of the employee in his performance of work for the employer. It is clear
that no NRC employees acted with intent. The central issue to be assessed is thus whether NRC's
employees acted "negligently". According to established law, this is to be assessed pursuant to the non-
statutory fault-based liability standard ["the culpa norm"]. For the purposes of this assessment, the Act
states that "one must take into consideration whether the requirements that the aggrieved party
reasonably may place upon the undertaking or service, have been set aside". This means, amongst
other things, that the employer's liability may also encompass anonymous and cumulative errors. The
employer may be held liable if several employees have committed the error together or if the sum of
several errors fulfils the liability requirement. There is no doubt that the employer's liability may also
encompass injury caused to another employee.
The central issue pursuant to the fault-based liability standard is whether the NRC's employees should
have acted differently to avert the risk of kidnapping. Central elements of this assessment include the
degree of risk, the nature of the risk, whether the risk of injury was visible or foreseeable, and whether
effective and practicable alternative courses of action existed. In addition, it may be of relevance
whether or not industry standards were violated. On the basis of the said elements, the Court is to
perform a concrete overall assessment of whether the NRC's course of action was negligent.
The Court has not found any case law or examples from legislative preparatory works or legal theory
that may be compared to the NRC's operations. Consequently, there are no clear guidelines for what
requirements the aggrieved party may reasonably place upon the undertaking within the aid industry. In
the light of this, the Court can at least not see any basis for applying a milder due care standard for
employers within the aid industry than the one that applies to other employers.
The NRC has several projects in high risk areas. It is therefore natural that field workers assume a
conscious risk by staying there. Since the NRC constantly works in high risk areas, it is the Court's
opinion that at the same time it can be required that the organization should be conscious of the risk
situation, implementing necessary and reasonable security measures to limit the risk to the extent
possible. It can also reasonably be required that the NRC should inform employees of the risk that
exists or if specific mandatory security measures are not going to be employed anyway.
Without any reference being made to comparable cases, it has been presumed in legal theory that the
requirements for responsible behaviour become stricter when one ventures into risk areas; see Lødrup,
Lærebok i erstatningsrett ["Textbook in Compensation Law"], 5th edition p. 105.

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The reason for this is that the larger the risk of injury, the stricter the requirement that the employer
should increase his diligence or assess alternative courses of action.
The Court emphasizes that this case does not concern the security management within the NRC or the
aid industry in general. The Court is to decide only on whether employees of the NRC acted
negligently in connection with the kidnapping incident in Dadaab.
With this as a point of departure, the Court shall now turn to the above-mentioned elements of the
assessment of negligence.
The risk of kidnapping
The security situation in Dadaab deteriorated strongly from the autumn of 2011 onwards. This was
due to, amongst other things, Kenyan authorities having declared war on Al Shabaab after several
kidnappings of Kenyans and foreign tourists. In addition, there was a dramatic increase in the influx
of refugees into the camps in Dadaab. The UN raised the risk level in Dadaab from 3 to 4. The next
risk level is 5, which would have entailed evacuation.
There had been several kidnappings in the autumn of 2011. A Kenyan employee of the organisation
CARE was kidnapped from the Hagadera camp on 19 September 2011, and two employees of Doctors
Without Borders (MSF) were kidnapped from the IFO II camp on 13 October 2011. The organizations
were not using any armed escort when their employees were kidnapped. In addition, the Danish
Refugee Council (DRC) suffered a kidnapping incident in Somalia on 25 October 2011. These
incidents substantiate that the risk of kidnapping was high and that the risk increased if no armed escort
was used.
Because of the security situation, no VIP visits were performed after the kidnappings in the autumn of
2011. According to the witness Daniel Hardy from the Danish Refugee Council (DRC), no other NGOs
carried out any VIP visits at the time. He explained that they had performed VIP visits prior to the
kidnappings of employees of CARE and Doctors Without Borders, but that all visits were halted after
that. He explained that they experienced an escalation of the security situation and that the risk of
kidnapping was considered to be increasing and unacceptable.
Daniel Hardy's statements is supported by Glenn Pettersen's report. On p. 65 of the report it is
stated that:
"Previous requests to visit field locations by senior staff from Oslo and Nairobi have routinely
been denied over the last nine months prior to the visit of the SG, and in that time the security
situation has only deteriorated".
Several reports from the NGO Safety Program (NSP) from the period between the autumn of 2011 and
the spring of 2012 have been presented. In these reports, warnings were given that the risk of
kidnapping was high and increasing. In a report by the NSP of 11 October 2011 entitled 'Advisory: Increased
threat of kidnapping/carjacking in the southern section of the Kenya Somalia Border"

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it was stated that the risk of kidnapping had increased. It was stated that:
"NGOs operating along the Kenya-Somalia border, particularly between Dadaab and Lamu,
should consider this increased threat of kidnapping and carjacking and adapt their security
plans accordingly."
It was furthermore stated in that same report that:
"The use of armed police escorts is recommended between Dadaab and the Somalia border, and
in the close proximity of the Dadaab refugee area. If possible these escorts should be clearly
identified and visible to any hostile element."
Additionally, it was stated that:
"Movement in the Dadaab area, particularly with international staffs, should to the extent
possible not be predictable and limited to essential duties."
After that, on 27 October 2011 the NSP presented another report entitled "Increased Threat of
Kidnapping". It stated that:
"The last months have seen a dramatic increase of kidnapping-related incidents, in Somalia
and along the Somalia-Kenya border in Kenya."
The recommendations for the area around Dadaab include the following:
"The use of armed escort has become mandatory since 26/10. It is imperative that these
escorts travel in separate vehicles, be clearly identified and visible to deter potential
attackers from a distance ".
In addition, the NSP issued another report on 10 April 2012 entitled "Advisory on kidnapping threat
in Dadaab and the border area". It stated that:
"Information received from three different and unlinked sources, including embassy source,
referred to 1 or 2 kidnapping groups believed to be potentially operating in Dadaab and/or
along the Kenyan/Somalian border. Depending on the report, target could be international
staff with one report mentioning more specifically German nationals ".
The NSP reports show that the risk of kidnapping was considered to be high. There was concrete
information that 1 to 2 groups were operating in the Dadaab area and that they were waiting for an
opportunity to carry out a kidnapping. In addition, the reports show that the use of armeds escort
became a mandatory part of recommended security measures from the end of October 2011.
Since kidnapping has mainly been financially motivated, international staff and visitors were at a
higher risk. This indicates that the risk of kidnapping increased in the case of an international VIP
visit.

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This is supported by Chris Allan's report. On p. 6 of the report it is stated that:
"The risk differs between staff: international staff vulnerability is high as they represent the
greatest economic prize, but the vulnerability is reduced as their movement is limited; the
vulnerability Kenyan national staff is lower economically, but higher in terms of exposure ".
It is stated in the NRC's own security plan, last updated in February 2012, that the risk of IEDs and
kidnapping was considered to be "possible". Under the description of "possible" it was stated that
there was considered to be "A reasonable probability of occurring in next 12-24 months to NRC or
Staff'. In the security plan, procedures were established with regard to security, and it was stated that
"Expatriate movement beyond Dadaab needs to be completely escorted". It was also stated in the
minutes of a staff meeting of the NRC in Dadaab on 18 April 2012 that "Kidnap threat apparent to
still be real".
The information in the NRC's own security plan and minutes from staff meetings show that there
was a high probability that a kidnapping might happen and that this was known to the NRC's staff.
The security plan also shows that the use of armed escorts was a central and mandatory security
measure to avert the risk of kidnapping.
Chris Allan has on p. 5 of his report emphasized some common denominators with regard to the
kidnappings carried out in Dadaab.
The common denominators are that the attacks took place in isolated places, mainly in the IFO II
camp; that no armed escort was employed; that information was propagated in advance with regard to
the convoy's movement; that the attacks were performed with massive threats of violence; and that the
drivers are killed. This indicates that the risk of kidnapping would increase if one or more of these
elements were present.
There is no information indicating that the risk of kidnapping had been adjusted downwards by June
2012. Khaire explained that no kidnappings had taken place in nine months. However, during that
period no VIP visits had been carried out and in addition the use of an armed escort had become
mandatory. The Court believes this may be considered an explanation why no more kidnappings had
happened. The reports from the NSP show that during that same period, concrete information had
been received that there were 1-2 groups operating in Dadaab that were waiting for an opportunity to
carry out a kidnapping for economic reasons.
The risk of IEDs had increased during the same period. There is however no information indicating that
this had made the risk of kidnapping lower than before. Quite the contrary; on p. 26 of Glenn
Pettersen's report it is stated that:
"the risk of IED and kidnap are equally placed in terms of likelihood and impact. However, the
risk of kidnap had verbally been expressed by the Roving Security Advisor in a senior
management meeting to be higher, with reference to the nature of

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IED attacks, perceived preferred targets, and the limitations one has to reduce the risk of
kidnapping, other than armed escort an reduction in exposure ".
In the view of the Court, it is completely evident that the risk of injury in the case of kidnapping is a
serious one, and that in the worst case such events may produce fatalities. It is stated in the NRC's own
security plan, last updated in February 2012, that the risk of kidnapping and IEDs was defined as
"critical". Under the description of "critical" it was stated that the risk of kidnapping or IEDs would be
"Death/severe injury/loss of vital equipment/cancellation of activities and risks the survivability of the
program and/or organization". In the report of Chris Allan, the risk of kidnapping is also defined as
"critical". On p. 5 of the report it is stated that:
"The impact on the office and individuals of kidnap is critical. Management would be disrupted,
programme implementation would be slowed and the team and individuals would suffer both
mentally and physically".
That there is a risk of serious physical and psychological personal injury in the case of a kidnapping, is
also borne out by the very kidnapping incident in June 2012. On that occasion, several shots were fired.
One staff driver was killed and four others were shot and wounded. Additionally, in the case of
kidnapping there is a risk of injury and death during the captivity as such and in connection with any
rescue operation.
The review of the reports, which were available to the NRC staff prior to the VIP visit in June 2012,
shows that the risk of kidnapping was visible and foreseeable to NRC staff. This is supported by the
witness statements in the case. The Court makes reference in particular to the statements of Sadozai,
local staff and other security staff.
Overall, the Court finds that there was a high degree of probability that a kidnapping would take place
and that the risk would increase in the case of an international VIP visit. The risk of serious injury is
very high in connection with a kidnapping incident. The degree and nature of the risk thus strongly
indicate that in the specific situation concerned, there must be strict requirements as to the NRC's
handling of security and as to the implementation of reasonable and necessary measures to reduce and
avert the risk of kidnapping.
The use of armed escorts as an industry standard
The use of armed escorts in connection with aid work is debated and cannot be considered to be a
general industry standard. In connection with this, the Court makes reference to the report from the
Inter-Agency Standing Committee (IASC) of 27 February 2013 entitled "Non-Binding Guidelines on
the Use of Armed Escorts for Humanitarian Convoys". The Court also makes reference to a statement
by the Red Cross in Kenya of 18 June 2015. It appears that the Red Cross has not used nor uses armed
escorts in its work in Dadaab. Additionally, a report has been presented from the International
Committee of the Red Cross (ICRC) of 1 December 1995 regarding the use of armed escorts. It states
that the use of armed escorts as a general principle may conflict with the principles of humanity,
independence and neutrality, and that it might contribute to unwanted escalation and a damaged
reputation.

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It is however evident from the NSP reports that the use of armed escorts had become mandatory in
Dadaab from the end of October 2011. According to the NRC's own security plan for Dadaab, last
updated in February 2012, it was evident that the use of armed escorts was mandatory also for NRC
staff. It stated that "NB: Expatriate movement beyond Dadaab needs to be completely escorted". The
clear and mandatory guideline, also internally within the NRC, was and is thus that an armed escort
should be used for transport between and outside of the camps in the Dadaab area. This was a
standard practice. This is supported by central witness statements in the case. The Court makes
reference to, inter alia, the statements of John Saisi, Dennis, Sadozai and Astrid Sehl, as well as the
security advisors Glenn Pettersen, Chris Allan and Daniel Hardy.
John Nzumbi, who was a security advisor in Dadaab, informed in an email of 28 June 2012 that he
would be away travelling from 28 June 2012 to 30 June 2012. The Court has been presented with a
memo from him of 27 June 2012 with the title "Briefing Notes During My Absence from 28-30 June
12". The memo stated, amongst other things, that an armed escort had been ordered in connection with
the visit and it would be coordinated by John Saisi. The wording of the memo may be interpreted to
mean that only one escort had been ordered. That part of the memo does however come across as
vague. The main message of the memo was, the way the Court understands it, that escorts had been
ordered through the UNHCR and that this was to be coordinated by John Saisi. John Nzumbi has since
died and as a consequence the Court did not get to hear his statement regarding the issue.
Based on the evidence, the Court finds that two escort cars were ordered. In making this
assessment, the Court has attached importance to John Saisi's witness statement. He explained that
it was common and mandatory to use armed escorts in Dadaab at the time. The ordering of escorts
was organized through the UNHCR. John Saisi had discussed the visit with the UNHCR, and the
UNHCR had decided that there were to be two vehicles as escorts since it was a high profile visit.
Consequently, two vehicles had been ordered with four policemen in each car, including the driver.
The drivers of the escort cars were also to be armed.
Sadozai decided on 28 June 2012, in consultation with Khaire and Torill Brekke, that no armed escort
was to be used during the Secretary General's visit after all. Following the presentation of evidence, in
the view of the Court it is unclear what was the cause of this decision and what caused the security
plan to be changed the day before the visit. Sadozai explained that the decision was made because
they wanted to keep a low profile and reduce the risk of IEDs. In addition, a few days before the
decision she had experienced that the escort did not know the way. In any case, the Court finds that
the decision was at odds with the prevailing conditions and advice from the local security advisor in
Dadaab. The decision was also contrary to established and mandatory practice in Dadaab at the time.

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Before the decision was made, Khaire had tried to get hold of the global security advisor in Oslo,
Glenn Pettersen, without succeeding. No advice was sought from other security advisors in
connection with the said decision.
This is supported by Chris Allan's report. On p. 14 of the report it is stated that:
"No advice was sought for the changes from the security adviser but appears only to come from
an undocumented conversation between Hassan Khaire and Qurat".
On p. 14 of the same report it is further stated that:
"The changes were not referred to the security adviser in the region and
communicated at a very late hour to the global security manager".
The decision not to use an armed escort was contrary to the prevailing opinion among the security
advisors. This is substantiated by, amongst other things, the email that Pettersen sent in the morning
of 29 June 2012 when the VIP visit was already in progress. It stated that:
"My only concern was whether this was the first time you have gone for no armed escort,
hence no great certainty as to desired targeting of us or nor, although all experience show
with some level of confidence that we are not a desired target! Considering the low level of
unpredictability in the camps and its surroundings for incidents occurring, preparedness as to
quick movement based on effective and strategic sources of information surrounding the visit,
would be important for risk mitigation."
Glenn Pettersen explained in court that the decision-makers had not consulted him on the use of
armed escort before sending the email with the modified security plan. In his view, Khaire, Sadozai
and Torill Brekke should have gathered security advice from him or other competent security
advisors prior to changing the security plan for the visit.
Chris Allan's report states that information security and a deterrent element shall generally be
included in the security measures, and that in reality this indicates that an armed escort should have
been used. He explained that ordinary movements inside the camps normally would take place
without an escort, but that an escort should be used in the case of an international or high profile
visit. Chris Allan also emphasized that the use of an armed escort did not increase the risk of IEDs.
Quite the contrary; an armed escort was a measure to reduce the risk of IEDs. On p. 13 of the report
it is stated that:
"A key function of any police escort is to take this role and mitigate the risk of IED attack faced
by INGO staff. SOP's outlined in the current security plan are designed to reflect this".
Although the decision regarding armed escort was not in violation of a general industry standard
within the aid industry, it was in violation of an established and mandatory practice. The decision was
also contrary to conditions, advice and recommendations from the NRC's own security advisors.

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In the opinion of the Court, this indicates that the NRC's decision-makers should have acted
differently, and they should at least have sought advice from competent security advisors
before making the decision.
The Refugee Council's alternative courses of action
The question is whether effective and practicable alternative courses of action existed for NRC staff
members.
One alternative would of course be to refrain from going through with the VIP visit. This would have
been in accordance with the practice in this area for the past nine months. Daniel Hardy of the
Danish Refugee Council explained that no VIP visits had been carried out during that period because
the risk of kidnapping was considered to be increasing and unacceptable.
Glenn Pettersen received the decision from Sadozai regarding the security arrangement on the same
morning that the visit was to take place. Pettersen explained that it caused him some concern, which
he relayed by email and by telephone to Khaire. Pettersen did however consider that it would be
difficult for him to cancel the visit, since it was already in progress. He explained that if he had
known of the breaches of the information security, seen in conjunction with the amended security
plan, he would have asked for the visit to be cancelled.
The need for staff security must be weighed against the need to create awareness of people in wars,
crises and distress. Jan Egeland explained that it was important that the Secretary General, being the
top operational manager of the NRC, should visit such places to understand the realities and to obtain
a focus on and increased attention to crisis situations. This might in turn lead to increased aid funding
and more assistance to people living there. Considering the difficult situation in Dadaab in the
summer of 2012, it was thus understandable that the NRC chose to send its Secretary General there.
However, it had been an established practice for several months that because of the serious security
situation, no other VIP visits had been carried out. Against this backdrop, it was to be expected that
the organizers of the visit would contemplate the security situation with utmost seriousness, and at
least implement necessary and reasonable security measures when it was decided that the visit was to
be carried out.
Before the visit was carried out, there was concrete information that there was an insufficient
understanding of security handling in Dadaab. In connection with this, the Court makes particular
reference to the report from Hanna Vaughan-Lee entitled "Context & Risk Analysis: Dadaab
January 2012". The report contains a list of several weaknesses in the handling of security, and a list
of several recommended measures to improve security. She explained in court that there were
deviations in the understanding of the security situation and that those responsible had to understand
that context analysis is a tool to make it possible to reach good decisions concerning security
measures. She explained that in the wake of the report, context and analysis training was performed,
but that that the other recommended measures were put on hold.

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She reported both to Khaire and to central persons at the head office in Oslo that the other measures
should be followed up on, but this was not done.Hanna Vaughan-Lee went on to explain that in
reality there was no security management in Dadaab and that the NRC did not have sufficient
information to be able to reach a decision on removing the armed escort for the visit. In her opinion,
the kidnapping could have been averted if the NRC had had a better security understanding and
thinking in advance; if the information security had been better; if they had followed the
recommendation not to visit the IFO II and if they had used an armed escort. She explained that the
NRC had operated in Dadaab for some time and that as a consequence, the understanding of the
context should have been better. In her view, the reports regarding the incident and the decisions that
were made in connection with the visit should have stated that "We didn't really know what we were
doing", or "We did our best, but it could have been better".
Security advisor Chris Allan confirmed in court that he knew of the report by Hanna Vaughan-Lee
before the kidnapping incident and that there had been a need for security improvements. He
explained that security had not been taken as seriously as it could have been, and that the
implementation of security measures ought to have been better.
Based on the evidence, the Court is of the opinion that there should have been a stronger security
thinking and understanding in the Dadaab area. A more conscious and professional handling could
have contributed both to increased security in general and to well-founded decisions on security
measures in connection with the specific visit of the Secretary General.
This is supported by Glenn Pettersen's report. On p. 3 of the report it is stated that:
"NRC Kenya failed, in this particular situation to acknowledge the relevance of kidnap risk,
and to introduce appropriate, principled, best practice preventive and reactionary measures
to reduce this risk".
On p. 3 of his report, Chris Allan also concluded that:
"The recent critical incident demonstrates strongly that NRC is not currently fulfilling its duty
of care to staff. This is clearly the case in Dadaab and may also be relevant in missions
elsewhere ".
"A background of ignoring key security requirements, failing to implement, maintain and
adhere to security procedures, cancelling of the purchase orders of key equipment coupled with
a reliance on a gut feel of key managers may also have allowed staff to 'just go along" with the
changes in procedure. "If Hassan is there it will be alright" was the phrase used by one
member of staff and this was clearly demonstrated not to be the case".

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Furthermore, the NRC has itself acknowledged that there was a failure in the information security and
that as a consequence the kidnappers may have come to know that a VIP visit was to take place on the
day in question. This acknowledgment is supported by other evidence in the case.
Information security and low profile go hand in hand. These may be central measures to mitigate and
avert kidnap risk. Lars Christian Finstad, who has a background as a police officer and a security
advisor at the NRC, explained that an important element with regard to both information security and
low profile is that as few as possible should know about a VIP visit. This will reduce the risk of
kidnapping and other attacks. This assessment is supported by other evidence and witness statements
in the case. Sadozai explained that information security and low profile were the only ways of
preventing the risk of kidnapping. Other witnesses with a professional security background and
competence explained that this is one of several central means for reducing the risk of kidnapping. In
connection with this, reference is made to the testimonies of Glenn Pettersen, Daniel Hardy and Chris
Allan.
The evidence presented has shown that prior to the visit, notice was given that a high profile
visit would arrive. It is unclear whether it was specifically stated that it was the Secretary
General who was to arrive, but in any case it was informed that the visit would be a high
profile one.
This is supported by the information in Glenn Pettersen's report. On p. 6 of the report it is stated
that:
"Information security was inadequate, from the outset in late May many staff knew of the
proposed visit and increasingly third parties were informed. The choice of date was
inappropriate, it called people in on a day that was normally a non working day and as such
incentive staff members were given a week's notice of a VIP visit".
On p. 25 of the report it is further stated that:
"It must have been apparent to numerous people in Dadaab that a high profile visit was
underway. A number of measures were set in motion in order to prepare for the
visit, measures that inevitably must have alerted the community to the fact that something
out of the usual was to take place."
Additionally, on p. 28 of the report it is stated that:
"Information security was not sufficiently prioritized and the failure to acknowledge the
importance of information security is probably the most important contributing factor that led
to NRC being targeted".
Glenn Pettersen explained in court that the greatest security failure concerned the information
security. After the kidnapping incident there has been more awareness raised in the NRC
regarding the need to prioritize information security.

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Chris Allan has in his report reviewed when it was that information about the Secretary General's visit
was provided. On p. 11 of the report he concluded that:
"It is clear that from any number of sources the kidnappers could have gained information that
a significant visit by NRC management was due to be undertaken. Information is released far
too early in the planning of visits and unnecessary changes to programme acitivity are made
that only go to further flag the importance of certain visitors. It is clear that the high profile
nature of the visit was signaled to all levels of the community with little regard for the affect
this had to security."
The Court makes further reference to Yann La Bohellec's testimony. He worked for the NRC in
Dadaab from the beginning of 2012. He explained that there was a coordination meeting
approximately 10 days prior to the visit, where all the managers of the different fields were present.
They were then informed that the Secretary General would arrive. He explained that all staff members
in Dadaab were informed five or six days before the visit and that there was no particular mentioning
of the visit having to be kept secret. He explained that the area was upgraded in preparation of the
visit and that amongst other things, stones were painted, fences were raised, a special menu was
prepared, etc.
Sadozai explained that she started her job in Kenya on 4 June 2012 and she was then informed of the
visit. She was involved in the planning of the visit from that point onwards. She explained that it had
been communicated that a high profile visit was to arrive, but that it was being kept secret that it was
the Secretary General who was to arrive. She explained that the refugees who worked at the IFO II
were informed two days before the visit that they were to come in and work on their day off. She
explained that they were all then informed that a high profile visit would come. She furthermore
explained that it was only a few that should have been informed of the visit but that the information
already had "started to float" when she took up her position. She explained that despite this, she did
not give any instructions with regard to maintaining information security.
John Saisi worked as a logistics coordinator for the NRC in 2012-2013. He explained that he got to
know about the visit of the Secretary General at a general meeting with the entire staff in Dadaab a
few weeks in advance. He explained that they were about 70-80 persons present at the meeting and
that it specifically concerned an upcoming high profile visit. It was his understanding that it was the
Secretary General who was to arrive. He explained that the meeting was chaired by the NRC area
manager in Dadaab and that no instructions were given as to the information being confidential. He
explained that this meeting was held before Sadozai came to visit Dadaab. According to Saisi, no staff
members from the regional office in Nairobi were present at that meeting. He explained that as part of
the preparations for the visit, the area was cleaned and upgraded.
Overall, the Court finds that there were several breaches of information security and that this led to an
increased risk of kidnapping. The Court considers it a fact that the kidnappers, because of the
information security breaches, were able to know about the visit in advance. This is also in line with
the assessments and witness statements that the kidnapping attack gave the impression of having been
planned.

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In the Court's assessment, there were several practicable alternative courses of action that could have
ensured improved information security, thus reducing the risk of kidnapping. By comparison, the
NRC had a very different approach to information security in connection with the Secretary General's
earlier visit to Yemen in June 2012. It was stated in the security plan that information about the
identity and itinerary of the visitor would be kept restricted to key persons involved. Specifically, it
was stated that "Identity/itinerary of the visit team will be kept restricted to only key individuals
involved".
In the view of the Court, the management and organizers at the NRC should have provided equally
clear guidelines and instructions on how information security was to be preserved. This should have
been part of the security plan. In connection with this, the Court makes reference to the fact that the
NRC after the incident also has changed its practice, making an assessment of information security a
standard part of such security plans.
Sadozai explained that the information about the visit "was floating" when she took up her position
on 4 June 2012. In the view of the Court, she then should have considered whether the visit ought to
be cancelled. In any case, possible changes to the programme and security measures should have
been considered, and clear instructions should have been given with regard to information security.
She should have informed the security advisors of the breaches of information security, so that they
could have recommended any necessary measures.
Both Sadozai and Khaire explained that they wanted to keep a low profile for the visit and that this
was a central reason why they decided not to use an armed escort. The Court can however not see that
any other measures were implemented for the visit to keep a low profile or to reduce the risk of
kidnapping. Nor can the Court see that the removal of the escort was an adequate measure for the visit
to keep a low profile. Chris Allan concluded on p. 15 of his report that:
"change to SOPs — these were changed to possibly mitigate against IEDs although their
effectiveness was questionable but nothing was reinstated to mitigate the kidnap threat and as a
result this risk was increased".
The evidence presented has shown that the visit was not performed with a low profile. Quite the
contrary; it was launched and carried out as a high profile visit. There were massive information
security breaches. It was made known several days in advance that a high profile visit would come.
Several dozens of refugees were called in to work on their day off, and prior to the visit several
upgrading measures were performed.
Chris Allan said in a statement that a relevant measure for keeping a low profile would be to use
other kinds of cars. However, during the visit the entourage drove in a convoy of three white Land
Cruisers that were clearly marked with the NRC logo.

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By comparison, no cars marked with logos were used during the Secretary General's visit to Yemen.
No other measures were implemented for the visit to Dadaab to keep a low profile, apart from the
removal of the armed escort. In connection with this, the Court mentions that the security advisors
who gave evidence in the case stated that the removal of the escort was not an adequate measure for
averting neither the risk of kidnapping nor IEDs. This is also clear from an email from Pettersen of
29 June 2012 as well as Chris Allan's report.
Overall, there were several specific security measures that should have been implemented to ensure
sufficient information security and that the visit would keep a low profile. Such alternative courses of
action must be considered practicable and effective with regard to reducing the risk of kidnapping. In
light of the tense security situation and the high risk of kidnapping with a serious potential for injury,
such actions must in the view of the Court clearly be considered to be reasonable and necessary
security measures.
Another central alternative course of action would be to stick to the plan of using armed escorts in
connection with the visit. The escorts had already been ordered and this course of action would
obviously be practicable. The use of escorts would be in line with established practice, internal
security routines and the clear advice of security advisors, including both internal and external
persons with security competence. Also, armed escorts were being used in Dadaab several times a
day.
Additionally, the Court makes reference to the fact that no armed escort had been used during the
kidnappings in the autumn of 2011, and to the fact that there had not been any kidnappings after
armed escorts became mandatory and after VIP visits were halted.
Sadozai and Khaire explained in court that a central part of the grounds for the decision not to use
armed escorts was to reduce the risk of IEDs. However, the security advisors that gave evidence
stated that there was nothing to indicate that the risk of IEDs would diminish if one refrained from
using armed escorts. Nor is there any other information to indicate that the risk of IEDs increased
with the use of an armed escort. In the email of 29 June 2012, Pettersen stated that the NRC was not
a target for IEDs. Chris Allen stated in his report that it was the escort's job to mitigate the risk of
IEDs, and that the risk of such attacks against NRC staff did not increase with the use of armed
escorts. He has made reference to the fact that by experience it was the police escort, not the
convoy, that would be a target for IEDs.
In the email of 28 June 2012 from Sadozai concerning the security plan, it was stated that:
"The first car will stay at a significant distance ahead to ensure they are assessing the
situation and are able to alert car 2 and car 3 of any changes in the situation to allow for
appropriate reaction time".

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Sadozai explained in court that the idea was that the first car was to be sent in front and notify the
others if it observed any movements out of the ordinary. An additional intention was to secure the
most important delegation with the Secretary General, which was placed in the second car. Sadozai
explained that if the first car was hit by an IED attack, the other two cars of the convoy could avoid
the attack and escape.
Chris Allan has concluded that Sadozai's decision entailed an unacceptable risk. The decision entailed
that the staff in the first car in the convoy was sent out ahead of the others to avert the risk of IEDs for
the rest of the group. None of the staff in the first car, including Dennis, were informed neither of
their function as warners with regard to unusual movements nor the risk they assumed by being
placed in the first car. Chris Allan has in his report commented on Sadozai's assessment of this. On p.
13 of the report it is stated that:
"Quite separately to the incident of kidnapping that actually occurred this exposure to risk of
staff without their informed consent demonstrates an extreme dereliction of NRC's duty of care
and in contravention of NRCs current security instructions and policies ".
All of this indicates that the removal of the armed escort was not a suitable security measure for
reducing the risk of either kidnapping or IEDs. Quite the contrary; the risk of both kidnapping and
IEDs to staff members in the convoy increased substantially when the decision was made to remove
the escort.
In summary, it would have been practicable to use an armed escort during the visit. Moreover, in this
particular security situation it must be considered an altogether necessary and reasonable security
measure. This is supported by all witness statements from the security advisors with a professional
security background, as well as by other central witnesses.
Another alternative course of action would have been to make the visit to a different camp than IFO II.
It can be seen from an email correspondence on 26 June 2012 that the regional security advisor
commented that for reasons of security, one should consider visiting Hagadera rather than IFO II. The
IFO II camp was less established and more dangerous than several of the other camps in Dadaab. The
kidnapping of two staff members of Doctors Without Borders (MSF) in October 2011 had also taken
place in IFO II. Security advisor Chris Allan explained in court that the said camp was less structured,
that the police were not in full control there, and that kidnappings had taken place there before. The
other camps were more structured and safer. In Chris Allan's report on p. 15 it is stated that:
"The location for the visit is exposed and vulnerable to attack by criminal elements.
In particular the NGO sub office compound in Ifo II although fenced has no guard force and
there are compounds that are unoccupied. This allows infiltration by armed actors. The
kidnap of MSF staff took place in the same area with a very similar modus operandi".

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"No consideration has been given in these measures to the kidnap incident that took
place in October 2011 within a few hundred meters of where the kidnap incident against
MSF occurred".
Witnesses explained in court that it was of no significance for the programme work and media
exposure of the Secretary General's visit whether it took place in the IFO II camp or in one of the
other camps. The Court makes particular reference to communication advisor Astrid Sehl's
statement. She explained that there was no particular point in going to IFO II, where they mainly
were going to observe how bricks were made. She explained that they could have obtained the same
benefit by visiting one of the other camps.
Overall, the Court finds that the organizers of the visit were warned in advance against visiting the
IFO II camp and that the risk of kidnapping could have been reduced by visiting one of the other
camps instead.
In advance it was also recommended and planned that the visit to IFO II was to be limited to 30
minutes. This was also presupposed in the security plan, as is evident from the email from Sadozai
of 28 June 2012. It would have been a practicable alternative course of action in order to limit the
risk of kidnapping. The visit did however extend beyond the recommended duration. In Glenn
Pettersen's report on p. 28 it is stated that:
"it is assumed that the length of the visit and mode of exposure has given the attackers time
to assess how the convoy was organized and also confirm the high-level nature of the visit
thereby contributing to the kidnap being carried out".
In addition, security staff should have been present during the visit. However, no security advisors were
present.
In Glenn Pettersen's report on p. 68 it is stated that:
"This led to the responsibility for security being delegated to staff with limited knowledge
and skills, reducing the ability to undertake responsible and good operational judgments
along the way".
In any case, the decision-makers should have continuously consulted security staff. Chris Allan has in
his report presumed that this could have led to improved coordination and security planning, and thus
also to improved security.
Nor should the NRC have had so many key persons in the same convoy. In Chris Allan's report on p.
15 it is stated that:
"Number of management staff exposed to risk was reckless. The entire management chain were
placed in one convoy in a high risk location ".

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In Glenn Pettersen's report it is stated that it took time to establish a crisis management team in
Kenya following the incident, since several key persons were involved in the convoy that was
attacked. Additionally, on p. 3 of his report it is stated that:
"The amount of key Senior Managers in the convoy should have been questioned by most
members of the convoy. It should have been obvious that a serious incident occurring to that
convoy would severely limit the organisations ability to manage a critical incident."
The kidnapping would probably have been carried out independently of the number of key persons in
the convoy. If the persons in the second car, including the Secretary General, Khaire and the area
manager, had not managed to escape, there would however be few decision-makers left in the area to
give notice of the attack and to establish a crisis management team.
Overall, the Court has found that there were several effective and practicable alternative courses of
action that would have reduced and averted the risk of kidnapping.
Overall assessment
Overall, the Court finds that the staff could reasonably expect that the NRC would implement
necessary security measures in connection with the visit of the Secretary General. The risk of
kidnapping was concrete and high. In addition, the risk was visible and foreseeable. The potential for
injury in the case of kidnapping is serious and may in the worst case entail fatalities or serious
injuries. Kidnapping may also impact programme activity. Considering the degree and nature of the
risk, the requirements for diligent handling of security must be considered to be heightened. The
Court has found that there were several effective and practicable alternative courses of action that
would have improved security. The security plan that was applied was however contrary to
applicable guidelines and advice from persons with competence in the field of security. Upon a
concrete overall assessment, in the Court's view there is no doubt that NRC staff acted negligently
and that the requirements for employer's liability under section 2-1 of the Compensation Act are
fulfilled.
The Court's conclusion is that the NRC may be held liable under the rule of employer's liability in
section 2-1 of the Compensation Act.
Compensation for pain and suffering
The requirements for compensation for pain and suffering
The plaintiff has submitted a claim for compensation for pain and suffering pursuant to section 3-5 of
the Compensation Act. It is a requirement for a compensation for pain and suffering that the tortfeasor
must have acted with intent or gross negligence.
In order to establish liability for pain and suffering, it must be possible to link the matter to the
employer's managing bodies, which then will be considered to have caused the injury; see, inter
alia, [the Supreme Court judgment reported in] Rt 2012 p. 1062.

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The Court must therefore decide both whether the NRC may be held liable pursuant to the rule of
liability for the actions of managing bodies and whether the NRC acted with gross negligence.
Liability for the actions of managing bodies
The question is who may be identified with "the body". In legal theory, it has been presumed that
liability for the actions of managing bodies should be established when the injury caused is due to
failure in "management functions"; see the book by Hagstrøm and Stenvik, Erstatningsrett
["Compensation Law"], 1st edition p. 250. The Supreme Court has linked the liability to the one who
has the highest authority to make decisions in each individual field; see Lødrup, Lærebok i
erstatningsrett ["Textbook in Compensation Law"], 6th edition p. 203. This means that the
delimitation can be based more on teleological arguments of compensation law.
In legal theory, see Lødrup, Lærebok i erstatningsrett ["Textbook in Compensation Law"], 6th
edition p. 204, it is stated that: "The concept of management does however encompass more
than the company's top management, as it may also include lower levels with the highest
independent decision-making authority, which not uncommonly is found at a section manager
level. Depending on the enterprise's tasks and size, it may well happen that there are many
who must be identified with the enterprise. It is thus the person's function as a manager that is
of interest, not only his position in the organizational structure, and the liability-causing act
or omission must be a manifestation of the managerial function."
The NRC has acknowledged that there was a failure in the information security. The NRC has
however submitted that the failure happened locally in Dadaab where the area manager was
responsible, and not at management level, and that consequently the requirements for liability for the
actions of management bodies are thus not present.
In June 2012, Hassan Khaire was regional director at the office in Nairobi. Qurat Ul-Ain Sadozai took
up her position as country director for Kenya on 4 June 2012. The area manager in Dadaab was
Marco Buono. Toril Brekke was head of field operations and acting Secretary General in the absence
of Rassmusson.
Dennis had previously functioned as a so-called "Security Focal Point" in Dadaab, at least up until 2
April 2012. The role as Security Focal Point meant that he was the local contact person for the
security advisors of the NRC. The Court cannot see that this role entails neither decision-making
authority nor management responsibilities. Dennis was asked to be Security Focal Point in connection
with the visit, but he did not want to. During the visit as such it was another person who held that role.
It was Abdullahi Keynan. He was employed as shelter coordinator and did not have any security
competence either. During the visit he also acted as an interpreter and guide for the Secretary General.
Apart from that, there were no other security staff present in connection with the visit in Dadaab.
The Court notes that Dennis had no responsibility for or influence on the security plan for the visit,
and that it was only a short time in advance that he was given the task of providing a short security
briefing at the airport.

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At that point in time, Dennis had not seen security documents or participated at meetings regarding
safety in the past four months. He had been informed of the decision concerning armed escort on
the day before the visit and had protested against it. The area manager had then informed that the
decision was made at the Nairobi office and had been assessed by security staff. As a consequence,
those present had "swallowed" the decision.
The evidence presented has shown that the security plan was established by the country director
Sadozai in an email of 28 June 2012. This is also substantiated by Glenn Pettersen's report, wherein it
is stated on p. 64 that Sadozai was "Responsible and decision maker. Established the SOPs for the visit
in agreement with the RD (Khaire) ". The security plan was established in consultation with regional
director Khaire, following approval by head of field operations Toril Brekke, who also was the acting
Secretary General. Consequently, they were responsible for the security plan. They were responsible
for the decision not to use an armed escort. They were also responsible for the decision that the first
car in the convoy was to look for IEDs and assume the risk for such an attack.
Upon direct questions by the Court, different answers were given as to who were responsible for
information security. Jan Egeland explained that preservation of information security is a management
responsibility, but that each individual is also responsible for it. Sadozai explained that she herself had
the overall responsibility for security. She explained that Astrid Sehl was the communications advisor
and that as a consequence she was the one who should have assumed responsibility for limiting the
spread of information. Sadozai did however not have any contact with Astrid Sehl with regard to the
preservation of information security. Torill Brekke explained that the responsibility for information
security was distributed among country director Sadozai, regional director Khaire, communications
advisor Astrid Sehl and the area manager in Dadaab. Former police officer and security advisor Lars
Christian Finstad explained that it was the organizers of the visit; that is, the regional office in Nairobi
and the head office in Oslo, who were responsible for preserving information security.
In the view of the Court, it must be considered a management responsibility to provide guidelines
concerning information security. The manager is also responsible for implementing other measures if
it becomes known that instructions have not been followed. This is supported by the fact that it was
country director Sadozai and the managers above her who had the overall responsibility for the
security planned, and the fact that the requirement of information security after this incident has been
included as a mandatory part of such security plants. Sadozai explained that she was aware that there
was a failure in the information security. Despite this, she did not to give any instructions with regard
thereto; nor did she implement any other measures that could have compensated the error. The
decision-makers with regard to the security plan had, in the view of the Court, themselves the
responsibility for securing a satisfactory basis for decision-making, including securing advice from
advisors with security competence.

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Country director Sadozai and regional director Khaire were responsible for carrying out the visit and
were thus responsible for the implementation of necessary and reasonable security measures.
Jan Egeland explained that risk must be handled in the best possible way, while at the same time the
organization is to help as many as possible. He explained that this is a balance between programme
work and security concerns and that as a consequence, decision-making authority lies with the line
manager. Country director Sadozai, regional director Khaire and head of field operations Brekke were
line managers with independent decision-making authority. They had decision-making authority and
responsibility for the implementation of necessary security measures. The decisions regarding the
security plan and security measures in connection with the visit in Dadaab were made by these three
persons. In the view of the Court, this indicates that the NRC may be held liable pursuant to the rule
of liability for the actions of managing bodies.
Country director Sadozai, regional director Khaire and head of field operations Brekke held different
information about the situation and had different premises for assessing reasonable and necessary
security measures. Since the decisions were made by them jointly, the Court can however not see there
being any grounds for performing a differentiated assessment of them.
The Court does however note that country director Sadozai previously had been "Programme
Director" in Kenya and Somalia. After that, she was country director for Pakistan for a period of
time before she took up her position as country director for Kenya in June 2012. It is stated in Chris
Allen's report on page 4 that the context in Dadaab had changed "significantly" during the period she
had been away from the area. Since she was new to the job, she should have made sure that she
collected sufficient and updated information on the security situation from others.
Head of field operations Brekke confirmed that she was not familiar with central security reports from
Dadaab, including, inter alia, the report by Hanna Vaughan-Lee. She explained that they had been
sent to the regional office in Nairobi and Glenn Pettersen and not to her. In the view of the Court, this
highlights the importance of line managers consulting security staff before decisions are made.
The Court's conclusion is that the NRC may be held liable pursuant to the rule of liability for the
actions of managing bodies.
Gross negligence
Following the above, the question is whether country director Sadozai, regional director Khaire and
head of field operations Brekke acted with "gross negligence"; see section 3-5 of the Compensation
Act. There is no sharp dividing line between simple and gross negligence. In the case of gross
negligence, the deviation from the responsible conduct must be greater than in the case of ordinary
simple negligence. The act or omission must be considered to be clearly blameworthy and must
provide grounds for strong reproach for lack of due care. The elements of the assessment are the same
as those of the general fault-based liability standard.

Judgment finding Norwegian Refugee Council 'grossly negligent' in 2012 Dadaab Kidnapping (in English)

Judgment finding Norwegian Refugee Council 'grossly negligent' in 2012 Dadaab Kidnapping (in English)

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Judgment finding Norwegian Refugee Council 'grossly negligent' in 2012 Dadaab Kidnapping (in English)