This is the second of GRC’s briefs reporting on the trial of Ian Lundin and Alexandre Schneiter, for allegedly aiding and abetting Crimes against the Law of Nations (war crimes), taking place in the Stockholm District Court, Sweden. GRC is monitoring the trial proceedings to clarify the legal issues and their implications for businesses and corporate accountability.
The first brief looked at the Prosecution’s Opening remarks and provided an overview of what the Prosecution intends to prove to establish the accused’s criminal responsibility for acts taken during their business activities. The first brief can be accessed here.
This second brief will outline: (i) the Prosecution’s claims regarding the executive positions held by Ian Lundin (Lundin) and Alexandre Schneiter (Schneiter) between 1997 – 2002; (ii) the alleged control they exercised through those positions over Lundin Oil AB and its subsidiary Sudan Ltd and, consequently, their alleged influence over the Sudanese Government; and (iii) how such influence is alleged to form the basis for their aiding and abetting of Crimes against the Law of Nations. Control and influence are critical physical elements (along with alleged requests and demands of the Sudanese Government) that must be established to prove they aided and abetted war crimes.
The other element, which will be equally crucial in proving any form of criminal complicity, is a mental element – the level of awareness/knowledge that Lundin and Schneiter had of the international crimes being committed by the Sudanese Government when they allegedly assisted the crimes (through the requests, demands and control thereof). This “mental state” element will be examined in more detail in GRC’S third brief.
1. Key Facts
According to the Prosecution, since at least 1997, the Sudanese Government was involved in a non-international armed conflict alongside regime-allied militia groups against rebel militia groups, which expanded to include control over future oil extraction in Sudan.
In 1997, the Lundin companies, through its subsidiary (Lundin Sudan Ltd), signed an oil exploration and production agreement with the Sudanese Government, according to which the Lundin companies had the right to extract oil from Block 5A, an area that was not controlled by the government, in exchange for paying fees to and sharing a portion of future profits with the Sudanese Government.
In Block 5A, the operating company, which carried out operations on behalf of the Lundin parent company and the other owners of the mineral rights, was Lundin Sudan Ltd (also named IPC Sudan Ltd at different times).
From May 1999 to March 2003, the Sudanese Government, through their military and allied militias, conducted offensive military operations in and around Block 5A, aiming to control this area for oil prospecting and “create the necessary conditions for oil extraction” for Lundin Sudan Ltd.2
The Prosecution allege that during these operations, serious violations of the Geneva Conventions, and more generally of international humanitarian law, were committed, such as systematic attacks against civilians and their property, violating the principles of distinction and proportionality. It is alleged that the Sudanese Government employed various methods of warfare, including aerial bombings with insufficient precision, missile and machine-gun attacks from combat helicopters, and ground forces shooting, burning, and using other violence against civilians.3
The Accused held key and executive positions within the Lundin companies, which allegedly allowed them to exercise influence over the Government of Sudan and thereby indirectly influence the military operations in Sudan.4
The Prosecution allege that they used this influence to make various requests and demands that they were aware would be met through the unlawful use of violence against civilians and civilian property.
- The Accused are tried separately but within the same trial. The same can be said for the parent company Orrön Energy (previously named Lundin Petroleum AB).
2. What is Influence?
The concept of influence, which implies a certain degree of control, is central to the Prosecution aiding and abetting case. The Swedish Prosecutor alleges that Lundin and Schneiter, through their executive positions, exerted influence over the Sudanese government. The influence was not exercised through a hierarchical relationship, since the Accused were not the Government of Sudan’s superiors, it was exercised horizontally. More specifically, their horizontal influence over the Sudanese Government’s actions resulted from the fact that:
(i) Both the Accused and the Sudanese Government shared common economic interests and benefited from the continuation of the oil operations in Block 5A.
(ii) The Lundin companies made demands of the Sudanese Government to secure safe conditions for Lundin Sudan Ltd’s operations in Block 5A.
(iii) This, in turn, influenced the Sudanese Government to act to create necessary conditions, in a zone that neither the Sudanese military nor regime-allied militia controlled.
(iv) Finally, to meet these requests/demands, the Sudanese Government conducted military operations that involved the commission of war crimes against the civilian population.
The Prosecution case raises several legal issues concerning how the alleged influence, requests and demands are alleged to link the Accused to the crimes that must be determined before any judgment can be delivered. The following section will examine the legal elements of aiding and abetting, a mode of liability applied by the international tribunals and courts and those under Swedish domestic law that are central to the question of how the Accused are alleged to have facilitated the crimes by the Sudanese Government. The International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the International Residual Mechanism for Criminal Tribunals (“MICT”), and the International Criminal Court (“ICC’) developed and applied different standards and tests for aiding and abetting in comparison to each other and in turn different to the Swedish standard. While the international criminal standards will not be directly applicable in this case, the Accused will seek to rely upon these more demanding culpability thresholds to interpret the applicable national law.
3. International Criminal law
In their case law, the ICTY and ICTR set out the physical and mental elements of aiding and abetting: requiring that the aider and abettor carries out: (i) an act that consisted of practical assistance, encouragement, or moral support to the principal; (ii) which had a “substantial effect” on the commission of the principal crime; and (iii) was committed with the “knowledge” that the acts would assist the commission of that crime.5
When addressing aiding and abetting, the ad hoc tribunals case law is clear in that the physical element for aiding and abetting only needs to have a “substantial effect” upon the commission of the crime.6 As reiterated recently, in the Stanišić case, “…there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, and it is not required that such conduct serve as a condition precedent to the commission of the crime. It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realization of that crime, the establishment of which is a fact-based inquiry.7 In other words, it is sufficient that the act of assistance of the aider and abettor substantially influenced the commission of the principal crime by the principal perpetrator.
However, the ICC has diverged from the ad hoc tribunals jurisprudence by not requiring that the contribution of the accessory be substantial or that it meets any specific threshold. Yet, there must be a certain degree of causality: “the assistance must have furthered, advanced or facilitated the commission of such offence.”8
As will be discussed in GRC’s third Brief, the ICC, however, requires that “the person act with the purpose to facilitate the crime; knowledge is not enough for responsibility under this article.”9 In other words, the focus at the ICC is not on the impact of the assistance on the crime but the mental state of the accused. Instead of being required to have only knowledge that his acts assisted the crime, he must have intended the crime.10
4. Swedish law
Conversely, according to Swedish law, a perpetrator aids and/or abets a crime when providing advice or acts in support of a crime.11 The physical element of aiding and abetting is established when the act or advice provided in support of a crime by the aider and abettor promoted the crime. In other words, this means that the aider and abettor can either physically support a person while they carry out the crime or encourage the perpetrator and hence support them in the mental element of the crime. The predominant opinion however, which is supported by Swedish case law indicates that being a bystander to a crime whilst it is being committed cannot amount to aiding and abetting.12 This is because observation cannot be considered to promote the physical or mental elements of a crime.
The support that needs to be established by an action or a piece of advice is very limited. According to the caselaw, the promotion requirement is met when a main perpetrator (i) gave his coat to his friend and (ii) immediately proceeded to assault and rob someone on the other side of the street. The court found that the friend (accomplice) must have understood that, by continuing to hold onto the coat, he was facilitating the main offence, i.e., assault and robbery.13 This caselaw would appear to create a lower threshold for conviction in Swedish law pursuant to aiding and abetting: neither a substantial contribution is required (see ICTY/R) or causality or purpose (see ICC) is required. The merest of contribution combined with knowledge appears to be sufficient.
5. Lundin and Schneiter’s Alleged Control over the Lundin Companies and their Influence upon the Sudanese Government and the Crimes
The Sudanese Government is alleged to be the direct perpetrator of the principal crimes, i.e., the crimes against the Law of Nations (war crimes), whereas Lundin and Schneiter are alleged to have facilitated their crimes, that is, through their executive functions providing them with influence over the Sudanese Government. In sum, the Accused’s control over the Lundin Companies is alleged to have given them: (i) influence over the Sudanese Government (that had vested economic interests in the continuation of the oil concession); (ii) the material ability to make specific requests and/or demands to the Sudanese Government (e.g., to ensure transport routes, clear operational areas or provide security for the operations) to create safe conditions enabling the continuation of Lundin Sudan Ltd’s operations or to gain control of areas for oil prospecting, with (iv) the awareness that these requests/demands would be acted upon and would likely lead to the commission of the crimes against the law of nations as listed in the indictment (GRC’s Forthcoming Third Brief).
In other words, the prosecution aims to demonstrate that the Accused are liable for aiding and abetting the crimes because they used their influence over the Sudanese Government to meet their requests and demands that implicitly involved war crimes. Their overarching goal may have been to continue conducting business amid a non-international armed conflict but that involved influencing the Sudanese Government to fulfil their security requests and demands in the awareness that they would involve either direct attacks against civilians or indiscriminate attacks that would amount to crimes.
6. Lessons for Heightened Due Diligence
Senior managers who exercise influence over the activities of their companies and/or entities or those associated with military activities and/or crimes must examine with utmost due diligence the nature of their operational relationships, the operating environment, and the likely response and consequence of business decisions. Facilitating crime can take many different forms and proof of criminal orders, demands or requests are not required. In many situations, ordinary business decisions can be the departure point for chains of causation that lead to serious crimes or human rights abuses. When accompanied with sufficient awareness, or intent, they can be the basis for prosecutions and convictions for aiding and abetting international crimes either nationally or internationally.
To avoid facilitating international crimes, heightened human rights due diligence (“HHRDD”) needs to be part of the decision-making process at the highest level and the involvement of senior management in this process is crucial. Focusing only on business necessity (e.g., to secure operations from militia attacks) will not protect the business or the senior executives who are most likely to bear the legal and reputational risks of an enterprise’s actions if those decisions lead, or contribute, to crime.
HHRDD ensures that the decisions made are not contributing to any harm to civilians or, in turn, the company itself. At a minimum, it requires companies to undertake the following four processes:
Understand the context in which you are operating. Carry out a conflict analysis to examine the conflict dynamics as well as prevailing human rights conditions in the country or area of operation.
Understand how your business interacts with the context. Undertake an assessment of your business operations, including any previous security operating, and link it to the conflict analysis. In many cases, this will include obtaining proper IHL advice.
Understand your impact on human rights. Carry out a heightened human rights impact assessment, including engaging with the local community and other stakeholders for their inputs on how extractive operations in high-risk areas may be feasibly managed.
Avoid or mitigate impacts. Plan and implement business activities that account for the risks identified. For example, ensuring professional security at the operation sites have constant, strict and timely supervision.
Disengagement. Consider responsible disengagement from operations, as a last resort measure, if the risks of human rights abuses or crimes cannot be effectively managed.
Any conflict analysis must be based on meaningful and conflict-sensitive stakeholder engagement and aimed at ensuring an understanding of the root causes, triggers and parties driving the conflict and the impact of the company’s business activities on the conflict, including any crimes being committed. This is particularly important when engaging with either party to the conflict in a business capacity, but even more so when relying on a party to the conflict to provide security or conditions for one’s operations.
For more information on how to conduct HHRDD contact us at mailto:bhr@globalrightscompliance.co.uk
AuthorBenjamin Nord
Intern at Global Rights Compliance