The Supreme Court of Sweden has today, 10th November 2022, issued its decision on universal jurisdiction in the Lundin case
This is a brief comment on the decision. You can read more on the other aspects of the Lundin case in my article Prosecuting Corporate Executives for War Crimes in Sudan, New York University Journal of International Law and Policy, volume 54, number 3, 2022, 887-939, available here. A summary of the same background information is provided below.
Summary: the key question and findings of the Supreme Court of Sweden
The defence essentially argued that the prosecution needs to show that their is a permissive rule in public international law allowing the exercise of universal jurisdiction and the defence argued there is no such rule. This is similar to the argument made by France in the Lotus case (p. 18). The prosecution made the exact counterargument, namely that the defence needs to show that their is prohibition for states under public international law to extend their jurisdiction and the prosecution argued there is no such prohibition. The later argument is similar to the one made by Turkey in the Lotus case (p. 18) and which was accepted in the judgment 7 September 1927 by the the Permanent Court of International Justice - PCIJ (pp. 18-19).
The Supreme Court phrased the key question as follows in its decision: whether a Swedish court has jurisdiction to try an indictment concerning crime against international law (war crimes) committed outside of a Sweden in the context of a non-international armed conflict, when the defendant neither is a Swedish citizen or is present in Sweden (para. 8).
The Supreme Court found in the preparatory works that the legislator (the Swedish parliament) intended that universal jurisdiction should only be exercised when there is clear and legitimate interest for prosecution in Sweden (para. 24). In this particular case there was such an interest in view of the fact that the prosecution claims that defendant Schneiter has committed the acts as an agent of a Swedish business group, either alone or together with a Swedish citizen. This is enough in order to justify a Swedish interest for prosecution (para. 41).
The indictment
Prosecutor v. Ian Lundin and Alex Schneiter (hereinafter “Lundin”), is an ongoing Swedish case concerning an indictment lodged 11 November 2021 in the district court of Stockholm against chairman of the board of Lundin Energy, Ian Lundin, and former CEO Alex Schneiter for Lundin Energy’s complicity in alleged war crimes committed from 1999-2003 in southern Sudan (now South Sudan).
Background to the case: Oil Exploration during the Civil War in southern Sudan
The first civil war lasted from 1955 to 1972, and was followed by the second, from 1983 to 2005. Sudan began exporting oil in 1999. The majority of the country’s oil reserves are located in the south or in the north-south border region. Lundin Energy is an oil and gas company, stemming from the International Petroleum Corporation (IPC), founded 1981 by the Lundin Family. What is now Lundin Energy has previously operated with a variety of different names and subsidiaries, including IPC, Sands Petroleum AB, Lundin Oil AB and Lundin Petroleum AB. The company operated in southern Sudan through another subsidiary, Sudan Ltd (also called IPC Sudan Ltd and Lundin Sudan Ltd), from 1997 to 2003.
The Lundin prosecution claims that while as of 1997 the area comprising Block 5A had been relatively unimpacted by the second civil war, which had been ongoing on for several years, by 2003 it became one of the worst affected areas. In fact from 1997 onwards, disputed control over future oil exploitation prospecting areas became a central feature of the conflict. In May 1999, the Sudanese Government initiated offensive military operations in and around to Block 5A in order to obtain control over areas for oil prospecting and create the necessary preconditions for Sudan Ltd’s exploration. This led to violence that, with short interruptions, persisted until Sudan Ltd left the area in 2003.
During this period, on several occasions Sudan Ltd. requested security assistance from the Sudanese government and military, allegedly aware that this would require control of Block 5A via military force. The company entered into an agreement with the government to establish a road in the region, and at various point of time called on the government to direct the military and allied militias to take measures against the rebel forces, according the prosecution documents from the case.
The Lundin prosecution argues that the defendants were complicit in war crimes in part because “they made these demands despite understanding, or, in any case being indifferent” to the fact that calls for security and action against rebel forces would likely result in government and allied forces carrying out violence using methods that violate international humanitarian law.
The alleged war crimes committed by the Sudanese Government and allied militia – to which Lundin and Schneiter are allegedly complicit through their request for protection – include violations of the principle of distinction, principle of proportionality, killing civilians, destruction of civilian objects, unlawful confinement, pillage and degrading treatment. Such acts are all prohibited under international humanitarian law (IHL) and thus also criminalized under the Swedish war crimes provision at the time (Swedish Criminal Code, chapter 22 section 6 in its wording before 1 July 2014).
Universal Jurisdiction: Bringing Corporate Oil Executives to Stockholm District Court
The authority to prosecute in Lundin is derived from universal jurisdiction (Swedish Criminal Code, chapter 2 Section 3(6)(a), known domestically as Brottsbalken, hereinafter BrB (before 1 January 2022, this provision was found at 2:3(6)) and is crucial because Schneiter is neither a resident nor a citizen of Sweden. Lundin, meanwhile, is a Swedish citizen and so can be prosecuted under the active nationality principle. Schneiter has challenged that the district court can exercise jurisdiction under the universal jurisdiction principle. This challenge has been denied by the district court of Stockholm, the Svea Court of Appeal and the matter has now been decided by the Supreme Court of Sweden.
The Stockholm district court asserts universal jurisdiction
The district court dismissed on 20th December 2021 Schneiter’s submission, relying on several sources to rule that it had jurisdiction. First, it made reference to statutory law, namely BrB Chapter 2, Section 3(6) which provides for universal jurisdiction for certain crimes, including war crimes. Next, it referenced rule 157 of the ICRC’s study on customary international humanitarian law, published in 2005 (henceforth the ICRC 2005 Study) which states that “[s]tates have the right to vest universal jurisdiction in their national courts over war crimes.” The 2005 ICRC Study, commenced in 1995, contains a survey of state practice and other sources in order to determine the content of customary international humanitarian law. The 2005 ICRC study is important since the relevant Swedish statutory law on war crimes explicitly references customary international humanitarian law, and in doing so determines the scope of criminalized behavior under Swedish law. The district court also relied on an assessment made by an expert inquiry commissioned by the Swedish government on the status of Customary International Law (CIL), and preparatory works drafted by the government preceding its 2014 amendment of a law on international crimes that authorizes the exercise of universal jurisdiction in relation to crimes committed in an NIAC. Preparatory works like these are themselves a source of law in Sweden. It also noted doctrinal comments made by Ove Bring, et al. (p. 304), that universal jurisdiction may be relied upon by a state in relation to persons residing outside its territory. Finally, it took into accounts that the Swedish government had authorized prosecutions where it had considered, among other factors, potential conflicts of jurisdiction with other countries. The “government” in this context refers to the national cabinet of ministers headed by he Prime Minister. Notably, subject to the Swedish approach to separation of powers, the Prosecutor-General and all other prosecutors are independent from the government, meaning that the Minister of Justice is prohibited from instructing the Prosecutor-General, or any prosecutor, on whether to initiate or how to manage a case. This applies, inter alia, to prosecution of crimes committed within Swedish territory. The requirement for authorization of prosecution in relation crimes committed outside of Sweden represents an exception from this constitutional principle, in the sense that the government may become more involved than in typical domestic cases.
The Svea Court of Appeals confirmed the district court's assertion of universal jurisdiction
The Schabas and Mettraux opinion builds in part on separate and dissenting opinions in the 2002 Arrest Warrant case at the ICJ. The case concerned an international arrest warrant issued by Belgian authorities, based on universal jurisdiction, against Abdoulaye Yerodia Ndombasi, Minister of Foreign Affairs of the Democratic Republic of the Congo (DRC), for alleged war crimes and crimes against humanity in the DRC. At the ICJ, the Democratic Republic of the Congo brought suit against Belgium, initially arguing that Belgium’s reliance on universal jurisdiction was in conflict with international law, but later withdrew that claim (paras. 17 and 42). As a result, the ICJ stated that the Court did not “rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts.” (para. 43) In the absence of a definitive ICJ opinion on universal jurisdiction, other historical precedents may appear useful and more relevant. Lotus, a 1927 case at the PCIJ, emphasizes the need to distinguish between the exercise of enforcement (executive) jurisdiction on the one hand, and both prescriptive (legislative) jurisdiction and adjudicative (judicial) jurisdiction on the other (pp. 18-19). It provides that international law leaves states “a wide measure of discretion” to extend the application of their laws through prescriptive and adjudicative jurisdiction, “which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.” (p. 19) Further, the PCIJ asserted that “[r]estrictions upon the independence of states cannot therefore be presumed,” (p. 18) which means that what is not explicitly prohibited under public international law is permitted for states. The Supreme Court of Israel explicitly referenced Lotus when it made a similar finding in Eichmann, stating that “every state may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the state; and that only insofar as it is possible to point to a specific rule prohibiting the exercise of this discretion—a rule agreed upon by international treaty—is a state prevented from exercising it.” (para. 9) In comparison with the Arrest Warrant case, Lotus and Eichmann are arguably more persuasive, as each actually ruled on whether a domestic court could exercise jurisdiction on an extraterritorial basis, something absent in the Arrest Warrant case. A similar argument to that from Lotus and Eichmann can be made in Lundin, as the indictment initially involves the exercise of adjudicative jurisdiction, and if Swedish authorities seek to enforce the summons that would be an exercise of enforcement jurisdiction. Sweden would only violate international law if it seeks to enforce the summons on an extraterritorial basis without the consent of the state concerned. The upshot is that the Stockholm district court should be able to assert jurisdiction, declare the case admissible, and issue a summons to Schneiter to appear, provided the consent of his host state (Switzerland), following the rationale given in the Lotus case and the Eichmann case.
The Supreme Court decision
The Supreme Court phrased the matter of the decision as follows: whether a Swedish court has jurisdiction to try an indictment concerning crime against international law (war crimes) committed outside of a Sweden in the context of a non-international armed conflict, when the defendant neither is a Swedish citizen nor is present in Sweden (para. 8).
The Supreme Court found in the preparatory works that the legislator (the Swedish parliament) intended that universal jurisdiction should only be exercised when there is clear and legitimate interest for prosecution in Sweden (para. 24). In this particular case there was such an interest in view of the fact that the prosecution claims that defendant Schneiter has committed the acts as an agent of a Swedish business group, either alone or together with a Swedish citizen. This is enough in order to justify a Swedish interest for prosecution (para. 41).
Comment: the Supreme Court's ruling supports the same principle as the PCIJ applied in the Lotus case. The case may have consequences for similar cases in Sweden and other countries. Of immediate interest is the Noury case which concerns mass executions in Iran 1988. The conviction from 14 July 2022 from the Stockholm district court is subject to appeal at the Svea Court of Appeals. The Svea Court of Appeals is present considering a challenge from the Noury defence concerning the exewricse of universal jurisdiction. The prosecution may in the Noury case argue that the Supreme Court in Lundin has confirmed the wide scope of universal jurisdiction available under Swedish law. On the other hand, the Noury defence may argue that the Supreme Court has introduced a requirement that there must clear and legitimate interest for prosecution in Sweden. The defence may argue that the interest that existed in the Lundin case is not present in the Noury case. It remains to be seen what the Svea Court of Appeals rules on this matter. Beyond Sweden, the Lundin case may have consequences in the sense that it has adopted the same the principles as established by the PCIJ in the Lotus case.