Swedish Prosecution of Corporate Complicity in Sudanese War Crimes

Swedish Prosecution of Corporate Complicity in Sudanese War Crimes

By Harrison A. Meyer, Senior Executive Editor, N.Y.U. Journal of International Law & Politics

On November 11, 2021, Swedish prosecutors indicted two executives of Lundin Energy AB (“Lundin”), a Swedish-based oil company currently focused on Norwegian operations, for their alleged complicity in war crimes committed in Sudan from 1999 to 2003. The Lundin indictments follow eight recent prosecutions by Swedish prosecutors of international war crimes. Prosecutors allege that Ian Lundin and Alex Schneiter, in an effort to secure Lundin’s oil operations in what is now South Sudan, requested protection from and were complicit in war crimes committed by the then-Sudanese regime (“Sudanese Military”). The pair face a life sentence if convicted. Prosecutors also seek to confiscate 1.4 billion Swedish Krona, the equivalent of approximately 153 million USD, from both the executives and Lundin itself, which prosecutors claim is equivalent to Lundin’s profit with interest from the sale of the Sudanese business in 2003. The prosecution seeks a further 3 billion Swedish Krona in fines, equivalent to 329 million USD. Currency conversions were calculated on December 28, 2021.

Lundin began oil exploration in what is now South Sudan, in an area called Block 5A, in 1997. Prosecutors claim that Block 5A was “one of the worst affected areas” of the Sudanese Civil War from 1997 to 2003. Under a local peace agreement that took effect in 1997, Southern Sudanese forces (“Southern Forces”) were responsible for providing security around Block 5A. In contrast, government forces (the “Sudanese Military” and its allies) were not responsible for providing security under the agreement. At the time, Southern Forces were fighting the Sudanese Military as part of the Civil War. In 1997, a militia group allied with the Sudanese Military led a failed attack to take control of Block 5A. After Lundin found oil in Block 5A in 1999, prosecutors allege that the militia, in coordination with the Sudanese Military, renewed attacks to take control of Block 5A and facilitate exploration by Lundin. Prosecutors further allege that, according to Swedish law and international humanitarian law, the Sudanese Military’s operations constituted grave war crimes. For example, the prosecutors’ investigation concluded that the Sudanese Military “and its allied militia systematically attacked civilians or carried out indiscriminate attacks,” as well as conducted “aerial bombardments from transport planes, shooting civilians from helicopter gunships, abducting and plundering civilians and burning entire villages and their crops so that people did not have anything to live by.” Prosecutors further allege that Lundin was complicit in these war crimes because Lundin requested that the Sudanese Military, as opposed to the Southern Forces, provide security to Lundin during oil exploration, knowing such requests would result in illegal military operations by the Sudanese Military.

Lundin denies the charges, asserting that “there are no grounds for the allegations of wrongdoing by any of its representatives,” and that “it sees no circumstance in which a corporate fine or forfeiture could become payable.” The company also argues that its operations in Sudan were conducted through a separate entity that was part of a project with Malaysian, Austrian, and Sudanese companies, and that “[t]here is simply no link between the activities of [Lundin’s Sudanese entity], and the alleged primary crimes in this case.”  Lundin also claims that its operations were regulated by an agreement consistent with international contractual practice, U.N. General Assembly statements, and Sudanese law. Elsewhere, Lundin has written that its “firm belief is that Lundin was a force for development in Sudan and did everything in [its] power to advocate for peace by peaceful means in the country.”

The Financial Times claims that the indictments represent the first prosecution of corporate executives for complicity in war crimes since the Nuremberg trials following World War II. In actuality, corporate executives have been prosecuted for complicity in war crimes since Nuremberg. For example, in 2005, Frans Cornelis Adrianus van Anraat was convicted in The Hague for complicity in war crimes after selling mustard gas ingredients to Saddam Hussein’s government from 1984 to 1988. Nonetheless, Nuremberg is a well known example, and thus serves as a useful comparison. At Nuremberg, corporate executives from companies such as I.G. Farben, Krupp, and Siemens were all indicted for war crimes arising from wartime business conduct, such as the employment of concentration camp inmates. However, unlike Nuremberg, which prosecuted corporate complicity in war crimes committed by a domestic government, the charges against Ian Lundin and Alex Schneiter allege complicity in war crimes committed by a foreign government, and are therefore more akin to the Frans von Anraat case.

The prosecution defended, on the basis of several factors, the significant duration of its investigation into Lundin, which began in 2010 and concluded in late 2021. For example, unlike many other prominent prosecutions for international crimes, such as those in Rwanda and Yugoslavia, there are no international courts or investigative mechanisms that can facilitate prosecution by Swedish authorities. Furthermore, the 2013–2018 civil war in South Sudan, which put many millions in a position of food insecurity, also interrupted the Swedish government’s investigation. Given the external difficulties in conducting the investigation, as well as the complexity of the conduct being investigated, prosecutors argue that the investigation’s eleven-year duration was reasonable. The Clooney Foundation for Justice also argues that the investigation, for the purposes of Article 6 of the European Convention on Human Rights, occurred “within a reasonable time.”

In the course of the prosecution, the court will likely address several novel legal questions, such as the level of involvement required for complicity in international crimes, and the degree of knowledge and intent required to establish liability on these charges. The defense has previously argued that the prosecution must prove direct intent, to which the prosecution has replied that it must only prove “reckless intent.” Ebba Lekvall and Dennis Martinsson, in a recent article, examined the contrast between these and other states of mens rea, suggesting that general principles of Swedish law should determine the mens rea that prosecutors must prove, concluding that Swedish law merely requires recklessness. In the United States, courts addressing a different case arising from oil exploration in South Sudan suggested that plaintiffs alleging accessorial liability to war crimes under the Alien Tort Claims Act must establish both substantial assistance and intent.

Several questions deserve further academic attention, though I take no position on them here. Do the Lundin indictments serve to uphold international humanitarian law, or do they better serve the narrower domestic concerns of Swedish authorities? Are national courts an appropriate venue for the enforcement of international law at all? And how should the international community best enforce international humanitarian law?

I am very grateful to Mark Klamberg and Elizabeth Wiseman for their advice in writing this piece. All errors and opinions are my own.