Human rights are presently being violated in large numbers by entities other than the state, especially multinational corporations, as the wind of economic globalisation blows throughout the globe (MNCs). Unfortunately, many states, particularly developing ones, do not control the operations of multinational corporations for a variety of reasons, resulting in a regulatory vacuum. In this sense, one of the prominent example of such abuse refers to the activities of Stockholm-based Lundin Oil corporate in Sudan.
In this regard, on November 2021, Sweden has charged two executives of a Swedish oil exploration and production company for complicity in the military’s war crimes in Sudan from 1999 to 2003, including in its dealings with the country’s regime to secure the company’s oil operations in the African nation (abc,2021). As this proceeding is the first prosecutions of corporate managers for such serious offences since the Nuremberg trials, in this article, various aspect of this case will be explored.
Overview of the facts
Sudan was devastated by a non-international armed conflict between the Sudanese People’s Liberation Army (SPLA) and other armed groups that lasted from 1983 until 2005. Meanwhile, Lundin organized a partnership in 1997 that carried out oil exploration and production in Block 5A in the southern region of the Sudan, which is located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State (Ingeson,2018).
According to a report by the European Commission on Oil in Sudan (ECOS), oil exploration exacerbated conditions while also igniting a battle for control of the disputed region, resulting in thousands of deaths and forced displacement of local populations, with the Nuer people bearing the brunt of the consequences. In addition, indiscriminate attacks, illegal killings, rape, slavery, torture, plunder, and the recruitment of child soldiers have all been carried out by the Sudanese army and affiliated militias of both sides(Ibid).
That led the Swedish prosecutors to open a criminal investigation into the company. Six years later, its chairman, Ian H. Lundin, and then CEO Alex Schneiter, were informed that they were the suspects of the investigation (apnews,2021).
Ultimately, after conclusion of criminal investigation, Prosecutors in Stockholm accused Ian Lundin, the chair and controlling family shareholder of the Swedish oil and gas business, and Alex Schneiter, the chief executive from 2015 to 2020, for complicity in war crimes committed by Omar al-Sudanese Bashir’s administration. Prosecutors want to seize SKr1.4 billion ($160 million) from Lundin, which is primarily involved in oil production and exploration in Norway (Richard Milne,2021).
In the final indictment, the Swedish prosecutors argued that by asking the Sudanese government to take responsibility for security in the area around its oil operations in 1999, Lundin knew that the military would need to break a local peace agreement and take control of a region by force. They further allege that the two men must have understood or were indifferent to the fact that the war would be conducted in a manner forbidden under international humanitarian law(Ibid).
However, Ian Lundin and Schneiter, who both live in Switzerland, strenuously denied the allegations while the company said it was “incomprehensible” that charges had been brought as the investigation was “unfounded and fundamentally flawed”. Lundin Energy insisted on Thursday it had operated “responsibly” in Sudan and had done “nothing wrong”. “There is no evidence linking any representatives of Lundin to the alleged primary crimes in this case,” the company said in a statement.
- Corporate criminal Liability under international law
Corporations’ involvement in international crimes is not new, but multinational corporations are increasingly involved in the direct conduct of war crimes. They are actively benefiting from continuing disputes between state governments and paramilitary groups by providing perpetrators with the necessary equipment to conduct these crimes(DelGrande,2021).
Corporations, on the other hand, might avoid criminal accountability despite their direct involvement in unlawful act due to the lack of international enforcement tools, including substantive criminal laws. There are no mandates to monitor the activity of businesses in any of the U.N. complaint procedures connected to human rights. Furthermore, because the International Criminal Court (ICC) lacks jurisdiction over corporate entities, it can only prosecute individual corporate executives, leaving the corporation as a whole without criminal liability.
In other words, under international law, the existence of criminal liability for legal entities is significantly more contentious. The idea of subjectivity, according to which non-state actors (in this case corporations) lack legal personality under international law and so cannot be bound by obligations, creates doctrinal issues. However, there is a well-established history of prosecutions of individual corporate officers before international tribunals for their role in core crimes, from the 1946 Zyklon B case to the ‘Media Case’ before the International Criminal Tribunal for Rwanda (Davoise,2019).
Therefore, although the investigation and prosecution of legal persons would require complex amendments to the Rome Statute of the ICC, Corporate officers are already subject to investigation and prosecution by the ICC because the Rome Statute confers personal jurisdiction only over natural persons, particularly if he or she is a national of a “State Party” to the Rome Statute.
Conclusion
Swedish prosecutors have universal jurisdiction over some international crimes under Swedish law, and have used it to prosecute crimes in Iran and Rwanda, among other places. However, the Lundin case is the most high-profile since it involves one of Sweden’s most powerful corporate dynasties, which owns a number of oil, mining, and natural resource corporations.
Furthermore, there is an accountability gap within the legal framework of international criminal law without the ability to prosecute companies as collective bodies. By prosecuting business executives and employees as individuals, the law ignores the collective dynamics, culture, and structure of a business, which frequently enable it to commit crimes that individual officers and employees would be unable to do. Although international criminal law is well prepared to deal with corporate wrongdoing, enforcement mechanisms, both at the international and national levels, are insufficient.
Bibliography
- abc, 2021, “Sweden charges 2 oil executives for war crimes in Sudan”, accessed 12 November2021 <https://abcnews.go.com/International/wireStory/sweden-charges-oil-executives-war-crimes-sudan-81106066>
Ingeson,2018, “The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad”, accessed 10 November2021< https://www.ejiltalk.org/the-road-less-traveled-how-corporate-directors-could-be-held-individually-liable-in-sweden-for-corporate-atrocity-crimes-abroad/#more-16602 >
apnews, 2021, “Sweden charges 2 oil executives for war crimes in Sudan”, accessed 12 November2021 < https://apnews.com/article/business-middle-east-africa-sudan-stockholm-2d711419cb14f0c81aebf0da864613e9 >
DelGrande, 2021, “Corporate Accountability: Prosecuting Corporations for the Commission of International Crimes of Atrocity”, accessed 10 November 2021 < https://www.nyujilp.org/corporate-accountability-prosecuting-corporations-for-the-commission-of-international-crimes-of-atrocity/ >
Richard Milne,2021, “Swedish oil executives charged with complicity in Sudan war crimes”, accessed 11 November 2021< https://www.ft.com/content/8fd015a3-622f-4741-86ca-97d462f3ed9d >
Davoise,2019, “All Roads Lead to Rome: Strengthening Domestic Prosecutions of Businesses through the Inclusion of Corporate Liability in the Rome Statute ”, accessed 12 November 2021< http://opiniojuris.org/2019/07/25/all-roads-lead-to-rome-strengthening-domestic-prosecutions-of-businesses-through-the-inclusion-of-corporate-liability-in-the-rome-statute/ >
By Mahmoud Refaat: The European Institute for International Law and International Relations.
