Report 1: Landmark Trial at Stockholm District Court: Allegations of Complicity in Serious International Crimes in Sudan (1999-2003) Against Two Corporate Leaders

Today, on 5 September 2023, a historic trial commences at Stockholm District Court and is scheduled to continue until February 2026. For the first time in history, the leadership of a multinational company are put on trial in a European country to answer charges of alleged complicity of war crimes in the conduct of their business activities. Civil Rights Defenders will closely monitor the proceedings and provide regular updates from the courtroom throughout the entirety of the trial. This initial report will delve into the case’s background, the scope of the charges, as well as some practical aspects concerning the trial.

On 11 November 2021, the prosecutor filed charges against the representatives of the former company Lundin Oil AB, which is now known as Orrön Energy. The accused individuals are Swedish citizen Ian Lundin, former chairman of the company, and Swiss citizen Alexandre Schneiter, who was its former CEO. Both are charged with aiding and abetting international law violations in South Sudan in what was at the time the southern parts of Sudan, during the years 1999-2003.¹ As such, they are suspected of having contributed to atrocities against civilians committed by the Sudanese government at the time amounting to serious violations of the laws of war and a crime under Swedish and international law. The prosecution argues that these acts were committed with the aim of securing the company’s oil operations in Sudan. This is the first time that Swedish authorities have charged corporate leaders with international crimes. In connection with the charges, a forfeiture of SEK 1,391,791,000 is also sought from Orrön Energy AB. 

The charges were brought after one of the most extensive preliminary investigations ever conducted by Swedish authorities. The investigation was initiated in 2010 after the prosecutor had reviewed the report “Unpaid Debt” by the civil society coalition European Coalition on Oil in Sudan (ECOS), which examines war crimes committed in an area called Block 5A during the years when an oil consortium, led by Lundin Oil AB, operated. According to the report, 12,000 people lost their lives and 160,000 were displaced during this time. 

Background

Sudan and South Sudan have a long history of internal conflicts and civil wars. Between 1983 and 2005, Sudan endured a devastating civil conflict that pitted the Government against armed groups in the Southern region. The presence of oil played a significant role in triggering and escalating the conflict, especially during the mid-1990s. 

In 1997, Lundin Oil AB entered into a partnership with Malaysia’s Petronas Carigali Overseas Sdn Bhd (“Petronas”), Austria’s OMV (Sudan) Exploration GmbH (“OMV”), and the Sudanese state-owned Sudapet Ltd. This coalition, referred to as the Lundin Consortium, formalised an agreement with the Government, during the ongoing civil war. This agreement focused on the extraction of oil from a designated area known as Block 5A. 

Block 5A was a portion of the oil-rich region within Unity State, located in the southern part of Sudan. Unity State extended from the northern banks of the Bahr el Ghazal river, near the Nuba Mountains, with the Bahr el Jebel river marking its eastern border, and the Bahr el Ghazal river forming its western boundary. Block 5A constituted a part of the expansive and marshy flat terrain along the western side of the White Nile, covering a substantial area of 29,885 square kilometres. This block encompassed a vast land area with a significant population and included the counties of Guit, Koch, Ler, and Mayendit within Unity State, as well as parts of Rubkona, Mayom, and Parieng.

In 1997, the Lundin Consortium entered into an agreement with the Sudanese regime to facilitate oil exploration in the region. During this period the regime did not exercise complete control over the area. The agreement stipulated that the regime was responsible for creating favourable conditions for the consortium’s operations by ensuring their protection. However, the prospects of oil exploitation in the region led to a significant transformation, turning what had previously been a relatively calm area into a battlefield between the Khartoum government and armed groups seeking to gain control over the oil fields. 

The connection between oil exploitation and human rights violations in Sudan has been extensively documented by various governmental and non-governmental organisations, independent institutions, and experts since 1999. Notable among them are the UN Special Rapporteurs, the Canadian Government, Amnesty International, Christian Aid, Human Rights Watch, Erik Prins Engineering, ECOS, and others. A shared theme in these reports is descriptions of widespread and systematic violence against civilians in the relevant areas. In order to gain control, the Government of Sudan employed a range of military tactics, including artillery, ground troops, helicopter gunships, and high-altitude bombers against civilian communities. ECOS estimates this led to the intentional displacement of nearly 160,000 civilians from their homes, resulting in a significant loss of life. 

Reported atrocities encompassed indiscriminate attacks on non-combatants, extrajudicial killings, arson, looting, rape, enslavement, recruitment of child soldiers, torture, and theft. The underlying motivation behind these forced displacements was the strategic goal of securing the oil fields for exploitation. Satellite imagery captured between 1994 and 2003 appears to show that the activities of the Lundin Consortium in Block 5A coincided with a drastic decline in agricultural land use. 

The governmental armed forces of Sudan and various local armed factions, some aligned with the Government and others affiliated with the opposing Sudan People’s Liberation Movement/Army (SPLM/A), were primarily responsible for the reported offences.  

Nevertheless, a number of reports, as previously mentioned, have also presented compelling evidence that the role of the Lundin Consortium has been highly problematic in these occurrences. These concerns come from indications that several decisions taken by the consortium may have worsened the conflict and resulted in further violations of human rights and the commission of international crimes in Sudan. One such instance is supposed to have been the construction of a highly controversial strategic bridge and road which was intended to open up access to oil extraction, but which Lundin claims were accessible to all those living in the area. This infrastructure extended the geographical influence of armed groups, provided year-round access to previously isolated communities, and facilitated the forced displacement of a significant portion of the population in Block 5A by the Sudan Armed Forces (SAF) and other armed groups. Given the recurring pattern of violent displacement, killings, and other crimes committed by Government forces and militias, which had previously occurred in neighbouring oil-rich areas, many argue that the members of the Lundin Consortium should have been aware of the abuses committed by armed groups that partly fulfilled their security requirements. Nevertheless, they chose to maintain their collaboration with the Government, its agencies, and its army. These are claims which Lundin have denied. 

A challenge to the Lundin denials is the fact that as of 1997, the Government of Sudan’s history of disregarding human rights was thoroughly documented, engaging in torture and political assassinations, withholding humanitarian aid from its citizens, and employing forced displacement both as a wartime strategy and a means to secure oil operations. In order to ensure the security of the Lundin Consortium, the Sudanese government needed control over a considerable area that had largely remained untouched by the conflict until then. It was highly probable that attaining this control would necessitate the use of force against civilian populations. By this logic, the members of the Consortium should have acknowledged that their actions were likely to spark conflict in Block 5A, a conflict where international crimes were likely to occur. 

By neglecting to insist on guarantees that the Government, recognised for its disregard of human rights, would uphold its international legal obligations while safeguarding the Consortium’s operations, various voices suggested that the members of the Consortium exposed themselves to the possible risk of being complicit in the Government’s illicit activities. 

Moreover, some reports from this period even suggest a need to investigate whether the Consortium also provided financial and material support to the security agencies responsible for committing international crimes and severe human rights violations.  

The Criminal Investigation and Legal Challenges 

As previously mentioned, one of the entities that reported on the crimes mentioned was ECOS in its “Unpaid Debt” report. In this report, ECOS called on the home governments of the Lundin Consortium, namely Sweden, Malaysia, and Austria, to conduct further investigations to fulfil their international obligations in preventing human rights violations and the commission of international crimes. This prompted the Swedish prosecutor to initiate a preliminary investigation in 2010. Almost eleven years later, the prosecutor brought charges in 2021. The length of the investigation can in part be attributed to the fact that the alleged criminal activities it deals with are complex and challenging and that they occurred over several years and in a vast geographical area during an ongoing civil war. During the investigation, a new armed conflict erupted that made travel to the area impossible for investigators. 

Unlike crimes in places like Rwanda, former Yugoslavia, and Syria, there are no international courts or investigative mechanisms related to Sudan or South Sudan that could assist the Swedish investigation. The result is an investigation which is one of the largest in Sweden’s history. Approximately 270 interviews have been conducted, involving 150 individuals, and the full preliminary investigation encompasses around 80,000 pages. 

In 2021, the investigations finally led prosecutors to bring charges against two defendants: the former chair of Lundin Oil Ian Lundin, a Swedish national, and the former CEO Alexandre Schneiter, who is Swiss. The case is complex and without precedence and has already given rise to several legal challenges that had to be settled before it could proceed to trial. One such challenge has been whether the Swedish court at all had jurisdiction over a case against Alexandre Schneiter, who is neither a Swedish citizen nor a resident of the country. The matter was brought before the Supreme Court, which concluded that the offence is within universal jurisdiction as enshrined in Swedish law. This implies that, as a general principle, a Swedish court is authorised to hear the case regardless of the perpetrator’s identity, the target of the crime, or where the crime was committed. However, in its decision, the Supreme Court noted that for a prosecution to take place in Sweden on grounds of universal jurisdiction, there needs to be some form of Swedish interest. 

The court also considered another condition for jurisdiction under Swedish law that that there must be “no obstacle against it in public international law.” This means that the court’s jurisdiction, as per the Supreme Court’s view, is restricted if established rules of international law pose an obstacle, such as issues of immunity that may arise. The court stated that in the specific case, involving a Swedish company and a co-defendant who is a Swedish citizen, the connection to Sweden is sufficient for the allegations to be tried by a Swedish court. They also found no obstacle against it in public international law. 

The Indictment

As previously mentioned, the indictment was issued by the prosecutor on November 11, 2021. It remains to be seen whether both individuals have contributed to international crime in the eyes of the court. The indictment centres on allegations of crimes against international law, specifically pertaining to the employment of an unlawful method of warfare. 

The prosecutor is asserting that Ian Lundin and Alexandre Schneiter aided and abetted, individually, or jointly and by mutual agreement, that the Sudanese government with the aim of enabling the Lundin Oil Consortium’s activity in Block 5A applied a warfare contrary to the laws of war.  

The specific acts the prosecutor is referring to mainly regard several agreements concluded between the consortium and the Sudanese government in 1997-2003.  On multiple occasions, the Sudanese government undertook the responsibility of protecting and ensuring the consortiums activities in Block 5A. Furthermore, the consortium agreed to finance and build multiple roads in the surrounding areas, which were not controlled by the military. The prosecutor is alleging Ian Lundin and Alexandre Schneiter entered into these agreements with the intent that the agreements meant that Sudanese state forces, to fulfil Sudan’s obligations, would have to conduct offensive military operations and that those military operations would entail attacks against civilians or at least indiscriminate attacks.

The charges refer to Common Article 3 which is repeated in all four Geneva Conventions I-IV. This provision constitutes customary international law and is binding on all states and all parties to armed conflict. The prohibitions against targeting civilians, causing harm to civilians, and gravely violating the personal dignity of civilians directly stem from Article 3 and from customary law, as expressed in provisions like Article 8(2)(c)(ii) and (e)(i) of the Rome Statute and in the ICRC Customary Law Study. The prohibition of indiscriminate attacks and attacks on civilian property is also enshrined in customary law. 

Furthermore, the prosecutor has also urged that the two company executives be subjected to a 10-year business prohibition, as they have markedly disregarded their responsibilities in business operations and consequently engaged in offences that are far from trivial. The prosecutor considers such a business prohibition as imperative from a broader perspective. 

Additionally, the prosecutor has sought that the company be imposed with a corporate fine of SEK 3,000,000 (approximately EUR 250,000) due to offences committed in business operations. Representatives of the company have not taken reasonable measures to prevent the criminal activities. 

It is also requested that an amount of SEK 1,391,791,000 be forfeited from the Swedish company, as the company has gained financial benefits due to offences committed in business operations. 

The prosecution evidence in the case is extensive. One part of the evidence aims to establish the primary offence – a grave crime against international law – committed by unknown individuals within the Sudanese government, military, and regime-affiliated militias. This part is important to prove that there was indeed a crime to which the defendants could have contributed. The main body of this evidence consists of a significant number of civilians who have been subjected to attacks. It also includes several witnesses who have worked with and studied the situation in Sudan, including those who have met refugees and heard their accounts. Moreover, the prosecutor has also invoked written reports from the area, primarily from the UN and other international organisations, as well as from journalists who have covered the region. 

Other evidence aims to substantiate the involvement of the accused in the commission of the primary offence. This includes information about the organisational structure within the company, its internal reporting about the situation in Sudan, and the communication that has taken place with the Sudanese government. This part involves several witnesses connected to the operations as well as extensive documentary evidence. 

Parties To The Case And Witnesses

There are 34 plaintiffs. The plaintiffs are represented by advokat Percy Bratt and advokat and former Minister of Justice Thomas Bodström. The two suspects will undergo cross-examination between December 10, 2024, and January 30, 2025. Following that, the court has allocated 12 months, until January 2026, to hear 57 witnesses. Several prominent figures are expected to be called as witnesses, including former Prime Minister of Sweden Carl Bildt, former German Interior Minister Gerhard Baum, former Special Envoy for the Canadian Government John Harker, former Head of African Affairs at the U.S. National Security Council John Prendergast, EU Special Representative for the Horn of Africa Annette Weber, CEO of Africa Oil Corp Keith Hill and esteemed historian Douglas Johnson. 

Schedule

The main trial will proceed according to the following established plan: 

• September 2023 – May 2024: Presentation of claims, plea, grounds, and statements of facts 
• May 2024 – November 2024: Examination of plaintiffs 
• December 2024 – January 2025: Examination of defendants 
• February 2025 – November 2025: Examination of witnesses 
• December 2025 – February 2026: Summations and closing arguments 

During this period, the proceedings will follow a fixed weekly schedule with hearings three days each week: 

• Tuesdays from 09:30 AM to 04:30 PM 
• Wednesdays from 09:15 AM to 04:30 PM 
• Thursdays from 09:15 AM to 04:30 PM