South Sudan - Charl Folscher

Swedish Prosecution of Corporate Executives for War Crimes in Sudan

 

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This blog post was written by Dr. Mark Klamberg, Professor in International Law, Stockholm University. 

I. Introduction

This is a shorter and amended version of a draft article accepted for publication by the New York University Journal of International Law and Policy (JILP).

As a contrast to civil disputes against corporations as legal entities, corporate representatives (directors, officers, agents and employees) may be held individually criminally responsible for corporate complicity in war crimes. One such example is Prosecutor v. Ian Lundin and Alex Schneiter (hereinafter “Lundin”), an ongoing Swedish case concerning an indictment lodged 11 November 2021 in the district court of Stockholm against chairman of the board of Lundin Energy, Ian Lundin, and former CEO Alex Schneiter for Lundin Energy’s complicity in alleged war crimes committed from 1999-2003 in southern Sudan (now South Sudan).

II. Oil Exploration during the Civil War in southern Sudan

The region that became South Sudan experienced two civil wars before gaining independence in 2011. The conflicts arose between the predominantly African Christian and animist south, seeking self-determination, and the predominantly Muslim Arab central government in the north.

The first civil war lasted from 1955 to 1972, and was followed by the second, from 1983 to 2005. Sudan began exporting oil in 1999.  The majority of the country’s oil reserves are located in the south or in the north-south border region. Lundin Energy is an oil and gas company, stemming from the International Petroleum Corporation (IPC), founded 1981 by the Lundin Family.  What is now Lundin Energy has previously operated with a variety of different names and subsidiaries, including IPC, Sands Petroleum AB, Lundin Oil AB and Lundin Petroleum AB. The company operated in southern Sudan through another subsidiary, Sudan Ltd (also called IPC Sudan Ltd and Lundin Sudan Ltd), from 1997 to 2003.

The Lundin prosecution claims that while as of 1997 the area comprising Block 5A had been relatively unimpacted by the second civil war, which had been ongoing on for several years, by 2003 it became one of the worst affected areas. In fact from 1997 onwards, disputed control over future oil exploitation prospecting areas became a central feature of the conflict.  In May 1999, the Sudanese Government initiated offensive military operations in and around to Block 5A in order to obtain control over areas for oil prospecting and create the necessary preconditions for Sudan Ltd’s exploration.  This led to violence that, with short interruptions, persisted until Sudan Ltd left the area in 2003.

During this period,  on several occasions Sudan Ltd. requested security assistance from the Sudanese government and military, allegedly aware that this would require control of Block 5A via military force. The company entered into an agreement with the government to establish a road in the region, and at various point of time called on the government to direct the military and allied militias to take measures against the rebel forces, according the prosecution documents from the case.

The Lundin prosecution argues that the defendants were complicit in war crimes in part because “they made these demands despite understanding, or, in any case being indifferent” to the fact that calls for security and action against rebel forces would likely result in government and allied forces carrying out violence using methods that violate international humanitarian law.

The alleged war crimes committed by the Sudanese Government and allied militia – to which Lundin and Schneiter are allegedly complicit through their request for protection – include violations of the principle of distinction, principle of proportionality, killing civilians, destruction of civilian objects, unlawful confinement, pillage and degrading treatment. Such acts are all prohibited under international humanitarian law (IHL) and thus also criminalized under the Swedish war crimes provision at the time (Swedish Criminal Code, chapter 22 section 6 in its wording before 1 July 2014).

III. Bringing Corporate Oil Executives to Stockholm District Court

The authority to prosecute in Lundin is derived from universal jurisdiction (Swedish Criminal Code, chapter 2 Section 3(6)(a), known domestically as Brottsbalken, hereinafter BrB) and is crucial because Schneiter is neither a resident nor a citizen of Sweden. Lundin, meanwhile, is a Swedish citizen and so can be prosecuted under the active nationality principle. Schneiter has challenged that the district court can exercise jurisdiction under the universal jurisdiction principle.

This challenge has been denied by the district court of Stockholm, the Svea Court of Appeal and the matter is pending before the Supreme Court of Sweden.

In addition to the question of jurisdiction, other matters that appear likely to be discussed during the trial relate to the open-ended character of the Swedish war crimes provision and complicity of corporations and their agents

IV. Applicable Law – the Open-Ended Character of the War Crimes Provision

War crimes are grounded in international humanitarian law (IHL), traditionally known as jus in bello (the law of war). While IHL concerns state responsibility, international criminal law (ICL) relates to individual criminal responsibility. As explained below, the scope of criminalized behavior in the relevant Swedish statutory provision on war crimes is dependent on IHL. Thus, when examining whether the defendants in Lundin have been complicit in war crimes, analysis must account for the content of IHL, determining to what extent IHL is applicable to a criminal prosecution.

Lundin and Schneiter have been indicted for “grave crime against international law,” based on Chapter 22, section 6 of the Criminal Code as it was formulated at the time of the alleged crimes. Despite its apparently broad phrasing, section 6 is only covers war crimes, stating that infractions must be against  “international humanitarian law.” Crimes against humanity are therefore beyond the scope of the provision. Though this provision was replaced by the International Crimes Act in 2014, the principle of legality, as codified in Swedish constitutional and statutory law, requires that prosecutions be based on criminal provisions applicable at the time of alleged commissions of crimes, (here, applicable law in 1999-2003). So the 2014 law is not applicable in the Lundin case, and instead the relevant provision governing Lundin is Chapter 22 section 6 of BrB as worded before 1 July 2009, which provides the following:

A person guilty of a serious violation of a treaty or agreement with a foreign power or an infraction of a generally recognised principle or tenet relating to international humanitarian law concerning armed conflicts shall be sentenced for crime against international law to imprisonment for at most four years.

The provision is thus open-ended, taking into consideration new treaties and the evolution of customary international law. There has been a debate between Professor emeritus Ove Bring and me (with rebuttal) on the applicability of this provision in relation to violations of IHL in non-international armed conflicts (NIACs).

V. Complicity of Corporations and their Agents

The complicity of corporations and their agents in violations of international law has triggered discussions about how to assign liability between the corporate entity and particular offers and executives. While there are several conceivable alternatives when it comes to who can be prosecuted and how, in a Swedish context the available avenue is to prosecute corporate agents. Questions of complicity must also be assessed pursuant to traditional principles under Swedish criminal law, rather than general principles under international criminal law.

Neither international law nor Swedish domestic criminal law excludes individual criminal responsibility for corporate agents. If those agents engage in acts as direct perpetrators, they can straightforwardly be held accountable. More often, though, corporations and their agents are potentially involved indirectly in criminal activity, for example through financial and commercial interactions, delivering weapons to a conflict zone, providing food to a detention camp, or asking for protection and/or security from local groups. These acts are not by their nature criminal –  in scholarship they are  typically described as “neutral” acts of assistance, aiding, abetting, or co-perpetration. The question is whether such neutral acts of assistance are criminal. It is easy to determine that a neutral act is criminal when the assistance provided is explicitly prohibited –  for example, if an arms dealer sells weapons in a conflict with an U.N. Security Council arms embargo. It is more difficult in cases where the act is prima facie lawful, for example providing food to a detention camp.

In situations of overlapping domestic and international liability, it remains unclear whether the general principles of criminal law of the country concerned should be applied or whether of international criminal courts should be considered when dealing with complicity and subjective requirements. This will prove important to the Lundin case, where the standards on complicity may differ between Swedish law and that applied by international criminal courts. Moreover, the general principles of Swedish criminal law provide a lower threshold on intent (reckless intent) for conviction than the standard applied by the ICC (indirect or direct intent). This divergence does not present an issue for acts committed since July 2014, when the new law on international crimes entered into force. There, the preparatory works explicitly provide that the general part of Swedish criminal law should be applied in relation to cases on international crimes (SOU 2002:98, pp. 321-322; Prop. 2013/14:146, pp. 71, 212-213).

But when it comes to acts committed before July 1, 2014, debate is ongoing, in both Swedish scholarship and litigation in the Lundin case. This is due to the open-ended character of Chapter 22 section 6 of the Criminal Code (prior to repeal in July 2014).

While the prosecution in the Lundin case relies on the comparatively lower Swedish requirement on intent (reckless intent), Schneiter has previously argued – submitting an expert opinion by Bring and Träskman – that the prosecutor should face a higher threshold (indirect or direct intent), as required by the Rome Statute and relevant case law from the ICC. Preparatory works, case law, scholarship, and other sources do provide some guidance directly relevant to Lundin. The preparatory works preceding the 1954 amendment of the Swedish international crimes provision provide that, “according to the travaux préparatoires [to the 1949 Geneva Conventions] the domestic courts should in this regard apply general principles of criminal law,” and a footnote refers to a section of the “Final record of the diplomatic conference of Geneva of 1949” (Prop. 1953:142, p. 19, 53-54).

The referenced section in the 1949 records reveals that there was no agreement among states on accomplice liability, attempt to commit a crime, duress, grounds for excluding criminal responsibility, or the obligation to obey orders. Instead, the records explicitly state that these issues were left for judges applying domestic law to address (Final record of the diplomatic conference of Geneva of 1949, vol II, section B, p. 114 f). It should also be emphasized that the Rome Statute is not a treaty containing legally obligating state parties to change or adapt domestic rules to protect certain rights in an analogous manner. Instead, it is a document regulating the work of the ICC (Rome Statute article 1 and 10).

To conclude, the general principles of Swedish criminal law, rather than international law, are applicable when ascertaining modes of liability and mens rea. If the Lundin court accepts this notion, it should be enough for the prosecution to prove that the defendants did support Sudanese perpetrator(s) in their intention to commit war crimes in southern Sudan. It is also enough to prove the defendants had reckless intent, i.e. that they perceived it was highly probable that a result would occur as a consequence of their conduct.

The “result” in this case in the context of the present case does not need to amount to proving that the defendants intended that civilians be killed or civilian objects destroyed: it would arguably suffice to prove

  1. that the defendants intended to make requests for protection and conclude an agreement between Sudan Ltd (Lundin Oil) and the Sudanese Government; and
  2. that the defendants perceived that there was  high probability that these requests and that agreement could lead to the commission of war crimes.

VI. Conclusion

The prospect of exacting accountability from corporations and their agents for war crimes and other international crimes is gaining traction. The Lundin case raises several questions which may have broad and far-reaching implications for criminal liability for corporate executives, as it tests the limits of universal jurisdiction, responsibility for violations in NIACs, and rules on complicity.

While previous universal jurisdiction cases in Sweden concerned persons residing in Sweden at the time of their indictment, the courts in the Lundin case have accepted that the principle may also grant jurisdiction over a corporate executive who resides in Switzerland for crimes allegedly committed in Sudan. If successful, the case may inspire similar prosecutions in other western countries. Statutes of limitations may offer little protection or be entirely unavailable for this category of crimes, opening up the possibilities for investigations in events dating back decades against executives residing all over the world. While corporations may increasingly adopt more cautious approaches to doing business in conflict-ridden states, the long arm of the law may now prove to reach further back than once thought.

Finally, Lundin challenges the possibly flawed assumption that the more international law takes precedence above national law, the easier prosecutions of rights violations become. In Sweden at least, the opposite may be true when it comes to issues around complicity and intent. While the Rome Statute and the case law of the ICC impose a high threshold on the prosecution to prove intent, criminal law principles in domestic settings seem to offer lower thresholds to achieve convictions. So far Swedish courts have applied domestic criminal law principles, but it remains to be seen if trend continues in the Lundin case. The ultimate findings of the Lundin court in this regard is of paramount importance not only to the victims of the conflict in southern Sudan, but also to all stakeholders with an interest in international law. Regardless of outcome, this case will create important legal precedents and provide guidance for future cases.

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