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Will a landmark war crimes trial usher in an era of corporate accountability?

Swedish oil giant Lundin is accused of aiding and abetting war crimes in Sudan between 1999 and 2003

War ZonesAfrica

A man examining a pipeline in Paloch, South Sudan, built on land once used for agriculture. Photo by Sven Torfinn.

A groundbreaking criminal case against a multinational company accused of war crimes in South Sudan is now underway in Sweden, drawing parallels with the corporate complicity trials of Nuremberg in 1949.

The trial in Stockholm against executives of the Swedish oil giant Lundin, which began in September 2023, is expected to change the landscape of corporate accountability for international crimes. Testimony from plaintiffs and victims will start this month.

Swedish prosecutors allege that the former chairman and former CEO of Lundin Oil were involved in aiding and abetting war crimes committed by the Sudanese army and non-state armed militia during a military campaign to secure oil fields on Lundin’s concessions in Sudan from 1999 until 2003. The crimes included aerial bombings, unlawful killings of civilians, rape, torture and massive displacement. An estimated 12,000 people were reported killed and 160,000 displaced during that time.

“I cannot think of another case since Nuremberg where companies have so blatantly contributed to such massive and systematic international crimes over such a long period of time. It’s one of the worst cases of corporate complicity of international crimes,” Egbert Wesselink told me in an interview. Wesselink is the driving force behind a campaign by civil society and church groups seeking reparations for victims harmed by the oil wars in Sudan and South Sudan. A report he co-authored, entitled Unpaid Debt, guided Swedish prosecutions in building the case against Lundin executives. The report documents how Lundin Oil—later renamed Lundin Energy and Orrön Energy—was part of an international consortium that worked alongside the perpetrators of international crimes and should have been aware of the abuses committed by the armed groups that partly provided for their security needs on a concession known as Block 5A.

Lundin has denied that it violated the norms of international law or that it participated in or had, or ought to have had knowledge of any illegal acts. The defence has argued in court that the Khartoum regime had no control over certain pro-government militia who were fighting a rebellion on Block 5A, and that ethnic conflict in Sudan was deep-rooted and existed before, during and after Lundin’s presence.

The Lundin family has a global portfolio of resource companies active in Canada, the United States, Africa, the Middle East and South America. In the 1990s, Lundin’s involvement in Sudan was initially through its Canadian subsidiary International Petroleum Corporation which acquired the acreage in southern Sudan through a daughter company IPC Sudan Ltd of Bermuda. Through its legal predecessor Sands Petroleum, Lundin was a major shareholder in the Canadian company Arakis, which started producing oil in Sudan in early 1996. The oil proceeds in turn were used by the Sudanese armed forces for the war effort against southern rebels and civilians. Lundin was then briefly a shareholder in the Canadian company Talisman Energy after it acquired Arakis. Talisman became an international pariah after being accused of helping Sudanese officials to bomb churches, kill church leaders and attack villages to clear the way for oil recovery in southern Sudan.

If Lundin’s executives are found guilty for complicity in war crimes in Sudan, then the directors and senior management of Canadian companies Arakis and Talisman will most certainly face liability risks in court, predicts Phil Clarke, a researcher and author of the report Justifying Blood Money: Lundin’s communications to shareholders and the market during 1997-2003. “As war crimes have no statutory limit, a criminal case could still be opened against the relevant individuals. All it requires is somebody in Canada to set the ball rolling,” Clarke said. A civil claim in New York against Talisman was dismissed after a judge recognized that the company had been aiding and abetting war crimes, but could not see any convincing evidence of intent. In 2009, a panel of the Second Circuit Court of Appeals affirmed the court’s dismissal of the case, ruling that Talisman could not be held liable for aiding and abetting the abuses because the plaintiffs had not shown that the company acted with the purpose of assisting human rights abuses. The decision by the civil court to apply a high burden of proof for intent perplexed many legal experts at the time, and has since not been followed by other courts.

In international criminal proceedings, the standards of proof and intent to commit crimes must be very high to achieve a conviction. But there are lower gradations of intent and criminal liability, such as recklessness. Swedish standards allow the prosecution to establish recklessness, rather than intent, as sufficient mens rea, for a conviction. Prosecutors will attempt to show that the former chairman Ian Lundin and former CEO Alex Schneiter were aware of the dangers that their conduct could result in violations of criminal law but persisted anyhow.

Clarke said recklessness is considered an indirect form of mens rea—that is, not a direct intent to reach an outcome but an indirect intent through not acting to prevent an outcome from happening. If Lundin is found guilty on those grounds, it will set a precedent for future criminal cases of complicity in war crimes elsewhere in the world. “Whereas a conviction of direct perpetration in war crimes will still require a proof of intent, a conviction for complicity in war crimes will only require a proof of recklessness,” he explained.

“I think it is fair to say that we all have a gut feeling that it is wrong for companies to make money out of war that causes disproportionate harm to civilians. But we also know that many of the business opportunists who make money out of such wars have no ill feeling towards the victims. Proof of intent therefore makes no sense, but proving that they failed to conduct due diligence and exercise a duty to care does seem reasonable,” Clarke argued.

In a major setback for victims in the Lundin case, the court in Stockholm threw out the damage claims of war crimes survivors and argued that the victims must open a separate civil case against the suspects. The judge accepted a demand by Lundin to reject the victims’ claims for compensation, apparently because it would unduly lengthen the criminal proceedings. The decision was unprecedented and is expected to be appealed. “Separating the plaintiffs’ claims for damages makes it considerably more difficult for those affected by these alleged war crimes to obtain redress. In practice, it will be almost impossible as the South Sudanese plaintiffs now face the risk of having to pay for Ian Lundin and Alexandre Schneiter’s legal costs, which are likely to be very large,” said Ebony Wade, a legal adviser at Civil Rights Defenders.

If the prosecution wins its case, then Lundin stands to pay a fine of between 1-2 billion Swedish crowns, which will go into Swedish state coffers. Critics allege that Lundin Oil, which changed its name several times and sold most of its business in 2022, has liquidated most of its assets in order to reduce its financial exposure.

Lundin’s shareholders decided to split the company into two entities: 98 percent of the market capitalization merged with the Norwegian oil company AkerBP, and the remaining two percent into a new vehicle called Orrön Energy.

Wesselink, who is a senior advisor with the Dutch peace movement PAX, has argued that Orrön Energy is meant “to carry the full responsibility of Lundin’s heavy Sudanese legacy.

“The Dutch peace movement PAX believes that AkerBP and Lundin’s shareholder are jointly abusing company law to deny war crimes victims their rights.” Though Wesselink admitted that companies often restructure their risks into different legal entities, in this manner. “Our system is set up to help companies escape responsibilities.”

Nevertheless, Wesselink insists that the trial is a major step towards justice for hundreds of thousands of South Sudanese whose lives were shattered during the war to control Lundin’s oil fields. “The case has a transformative potential. When you have several cases of large, important, publicly-listed companies which are indicted for war crimes, it will inspire other public prosecutors. Prosecutors will see that they can bring and win such cases and this will lower the bar in other jurisdictions to also prosecute corporate crimes.”

Judi Rever is a journalist from Montréal and is the author of In Praise of Blood: The Crimes of the Rwandan Patriotic Front.

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