In October 2023, a landmark war crimes trial began in Sweden: the first prosecution in Swedish history of corporate executives for aiding and abetting war crimes. The trial opened to intense public interest – likely to intensify as it unfolds over the next two years.
And for good reason. In many ways, this trial is legally unusual. The two corporate executives, Chairman Ian Lundin and former CEO Alex Schneiter, worked for the Swedish oil giant, Lundin Energy – previously known as Lundin Petroleum and Lundin Oil. Both executives are charged with complicity and aiding and abetting war crimes in South Sudan between 1997 and 2002. These alleged crimes were committed by Sudanese and South Sudanese nationals in Sudan, but according to the Swedish prosecutor, they were carried out with Lundin’s and Schneiter’s tacit approval.
How can a Swedish court prosecute Lundin, a Swedish national, and Schneiter, a Swiss national, for crimes that occurred in neither Sweden or Switzerland and were committed by others?
The answer reflects prosecutors’ growing appetite across the globe to pursue criminal investigations against multinational corporations and their officers in efforts to hold them accountable for profiting off ongoing conflict and fueling human rights abuses. It also demonstrates the innovative legal ways that prosecutors, human rights organizations, and other advocates are pushing for more robust investigations of corporate activities in conflict zones and post-conflict settings across the world.
This blog post first provides an overview of the facts of the case, [B 11304-14 Lundin Oil AB Trial]. It then outlines the jurisdictional elements of the case to explain how a Swedish court can preside over a non-Swedish defendant accused of international crimes. Finally, it explores the prosecution’s theory of criminal liability, which represents a historic and inventive means of targeting corporate executives.
Facts: Block 5A and the Sudanese Civil War
Lundin and Schneiter’s alleged crimes took place during the Sudanese Civil War (1983-2005) between the Sudanese Central Government and the Sudan People’s Liberation Army, along with other loosely organized armed militias. According to the indictment by Swedish prosecutors, Lundin Oil entered into a contract with the Sudanese Government in 1997 for exploration and control rights of oil-rich areas in southern Sudan – specifically an area called “Block 5A.” In 1997, Block 5A was an active war zone, an area over which the Sudanese government did not have complete control. It was also home to hundreds of thousands of civilians.
Lundin and the two executives allegedly wished to “secure” the oil site. To do so, they paid the Sudanese army and other paramilitary groups to clear Block 5A and surrounding areas of all civilian inhabitants to prepare for exploration. The result was violent actions by armed militias and paramilitary groups including forcibly displacing thousands of civilians, allegedly killing almost 12,000 people, as well as rape, enslavement, torture, indiscriminate attacks, pillage, and the recruitment of child soldiers.
Universal Jurisdiction
In the decade following this destruction and devastation of the communities around Block 5A, a group of NGOs based in Europe and Sudan embarked on a years-long investigation. This culminated in a report on Lundin’s misdeeds and a referral to the Swedish Prosecutorial Authority (SPA). The War Crimes division of the SPA subsequently took up the case.
Typically, a state’s domestic courts can only prosecute individuals over whom they have jurisdiction. For example, if an individual is a citizen of Sweden they are generally subject to jurisdiction in Swedish courts. Alternatively, if the individual committed wrongdoing in Germany, they are subject to jurisdiction there, because the act took place in Germany. But when an individual is neither a national of the country and committed crimes outside of that country, they often remain out of reach of domestic courts. This jurisdictional gap makes it difficult for prosecutors to hold multinational corporations accountable.
Ian Lundin is a Swedish national. Thus, although the criminal acts took place in Sudan, he is subject to the Swedish court’s jurisdiction. But Schneiter is a more complicated case, as he is not Swedish and his alleged actions took place outside of Sweden. Hence, to extend jurisdiction over Schneiter, the court leveraged a rare, but powerful form of purview called universal jurisdiction. Universal jurisdiction provides courts the power to hear any case concerning any individual for crimes committed anywhere – reserved for very serious offenses like crimes against humanity, genocide, and war crimes. In enlisting universal jurisdiction to hear the case of a Swiss defendant for crimes occurring in Sudan, the court signaled its willingness to use a rarely leveraged legal tool as a means of corporate accountability. This is significant because while indicting executives for a company’s international wrongdoing is not unheard of, it is rare. The International Bar Association notes only seven other cases – in total, globally – in which individuals have faced prosecution as part of corporate liability cases.
Aiding and Abetting Liability
But jurisdiction is only the first step towards justice for Lundin Oil victims. Even if a Swedish court can hear the case, neither Lundin nor Schneiter are accused of actually committing war crimes. Consequently, Swedish prosecutors are trying both executives on a unique theory: recklessly aiding and abetting war crimes committed by other individuals in Sudan.
Courts that regularly preside over war crimes trials, such as the International Criminal Court, typically require that prosecutors show accused defendants committed or were complicit in war crimes with intent; prosecutors must produce evidence that defendants purposefully directed the crimes. This requires demonstrating specific actions the defendants took that contributed to the deaths of specific people.
Swedish courts, however, accept a lower standard than intent: recklessness. Thus, prosecutors need only show that Lundin and Schneiter had some knowledge of the conflict in Sudan, and that in the context of that conflict, their requests to Sudanese officials to “secure” Block 5A and surrounding areas would result in forced displacement and death of civilians yet they still chose to recklessly ignore the consequences. This is a lower standard than proving that Lundin and Schneiter intentionally assisted in the commission of war crimes. For instance, the prosecutors do not have to tie Lundin or Schneiter’s activities to the displacement or deaths of particular victims. Instead, observers suggest that the prosecution has ample documentation in the form of internal correspondence to demonstrate that Lundin Oil expressed total indifference to the consequences of their oil operations in Sudan – sufficient to show the executives were reckless in allowing war crimes to take place.
A Setback
While the criminal case against the executives looks like a step in the right direction for ending corporate impunity, another decision by the court moves in the opposite direction. On November 22, 2023, the Stockholm District Court held that plaintiffs’ claims will not be heard during this trial. Instead, each plaintiff must bring a separate claim against the defendants. This is a setback, as the court would require each plaintiff to hire their attorneys, a costly endeavor, and also deposit €45.000 as security to reimburse the defendants should the plaintiffs lose. This is likely prohibitively expensive for plaintiffs.
As is far too common in corporate accountability and human rights cases, defendants have endless resources while the plaintiffs – often the victims of the crimes – do not. Here again we see the detrimental impact such a resource imbalance can have. These potential plaintiffs deserve to have their claims against the Lundin executives heard and not be penalized for their struggle to find resources to pay for such complex litigation.
Conclusion
It is still too early to determine whether the prosecution will succeed. The trial is scheduled to end in 2025 and hundreds of witnesses are expected to testify. But the fact that this case is even moving forward represents both a significant step in corporate accountability and highlights the key role that NGO, investigatory, and advocacy organizations play in driving such cases forward.
Sruthi Rao is a legal intern at Corporate Accountability Lab and a 3L at NYU School of Law.
