torsdag, november 10, 2022

Decision on universal jurisdiction in the Lundin case

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).

When the court has found that there is jurisdiction under Swedish law it shall also ascertain that there is no obstacle for prosecution under public international law. Such an obstacle only exists if there is a rule of public international law that limits the court's jurisdiction in the case at hand. There is no requirement for positive legal basis under public international law in order to exercise jurisdiction when the prosecution is consistent with Swedish law (paras. 14 and 27). The Supreme Court's ruling arguably supports the same principle as the PCIJ applied in the Lotus case. The Supreme Court found no obstacle in public international law (para. 33), not even when the defendant is residing outside of Sweden and lacks Swedish citizenship (para. 39 and 44). Swedish court may thus exercise universal jurisdiction (para. 46).

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 region that became South Sudan experienced two civil wars before gaining independence in 2011. The conflicts arose between the predominantly African Christian and animist south, seeking self-determination, and the predominantly Muslim Arab central government in the north.

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.

Challenge before the Stockholm District Court
One the same day as the prosecution in Lundin submitted its indictment (11 November 2021), Schneiter submitted a written motion challenging the Stockholm district court’s jurisdiction. The basis of the challenge was that Swedish courts cannot exercise universal jurisdiction for war crimes allegedly committed in a non-international armed conflict (NIAC) by a non-Swedish citizen who is not residing in Sweden. The challenge relies in part on a joint opinion written by Professors William Schabas and Guénaël Mettraux and an opinion by Professor Eric Bylander. Schneiter had to distinguish his case from prior cases before Swedish courts, where the prosecution relied on universal jurisdiction in relation to war crimes committed in a NIAC resulting in convictions. Among them was the Saeed case (5th May 2021), where the defendant was convicted of the war crime of humiliating or degrading treatment during his involvement in the conflict against IS/DAESH in Iraq. The conviction was upheld by the Supreme Court of Sweden. But unlike Saeed, Schneiter is not a Swedish resident or citizen, a distinction Schneiter’s defense pointed out.

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
Schneiter appealed the jurisdictional issue, arguing that the district court had not considered the Schabas and Mettraux opinion cited in his initial challenge. On 28 January 2022, the Svea Court of Appeals accepted the district court’s reasoning and dismissed the appeal.

My analysis after the Appeals Court decision, prior to the Supreme Court decision (published in this article with some additions below)
The district court (and thus also the Court of Appeals) relied mainly on traditional Swedish sources of law, while ignoring the international case law invoked by Schneiter as presented in the Schabas and Mettraux opinion, warranting some further discussion of the defendant’s argument here. In other words, the district court adopted a doctrinal approach, accepted by the Appeals Court, that restricted itself to traditional Swedish, internal sources of law, while omitting references to leading international and foreign precedents on the exercise of universal jurisdiction in a domestic context – namely, the Lotus case (7 September 1927) from the Permanent Court of International Justice (PCIJ), the Eichmann case (29 May 1962) from Israel, and the Arrest Warrant case (14 February 2002) at the International Court of Justice (ICJ).

Considering that Sweden normally adopts a dualist approach, i.e. treats the international and domestic systems of law as separate and independent from each other, one may ask why international precedents. Would it not be enough to consider internal sources of law? Chapter 2 of Criminal Code on jurisdiction also contains section 12 (previously section 7) which provides that "[t]he limitations to the jurisdiction of Swedish courts and applicability of Swedish law that follow from public international law or from any international agreement that is binding on Sweden must be observed." Thus, there is a need to consider whether there are limitations on jurisdiction that follow from public international law, this is what the defence relies upon in their appeal.

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.

Motions by the parties before the Supreme Court
At the Supreme Court, the Prosecutor-General's office represents the Prosecution. The case was previously carried out by a senior public prosecutor before the district court and the Svea Appeals Court, the senior public prosecutor normally assists the Prosecutor-General's assigned agent when the case is pursued at the Supreme Court. The prosecution argued (motions 20 May 2020 and 14 September 2022) that the defence has phrased the question wrong by asking "Does international law provide for universal jurisdiction over war crimes committed in non-international armed conflicts (NIAC)". The Prosecution elaborated in its motion to the Supreme Court on the matter by invoking the Lotus case, referenced a judgement 26 June 2020 from the Norwegian Supreme Court that had also relied upon the Lotus case (paras. 42-43), arguing that correct question pursuant to Swedish law and public international law is whether there is a prohibition against the exercise of universal jurisdiction and concluded there is no such prohibition. The defence responded 21 September 2022 to this by relying on select separate opinions in the Arrest Warrant case and that the Lotus case has not influence Swedish legislation since it was never mentioned in the preparatory works that preceded the introduction of the of the new law on international crimes in 2014 and changes 2022 in chapter 2 of the Criminal Code on jurisdictional principles. The reasoning of the parties had this stage arguably clarified the key issue as described in the beginning of this blog post and made their strongest arguments. 

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).

When the court has found that there is jurisdiction under Swedish law it shall also ascertain that there is no obstacle for prosecution under public international law. Such an obstacle only exists if there is a rule of public international law that limits the court's jurisdiction in the case at hand. There is no requirement for positive legal basis under public international law in order to exercise jurisdiction when the prosecution is consistent with Swedish law (paras. 14 and 27). The Supreme Court found no obstacle in public international law (para. 33), not even when the defendant is residing outside of Sweden and lacks Swedish citizenship (para. 39 and 44). Swedish court may thus exercise universal jurisdiction (para. 46).

My preliminary analysis of the Supreme Court decision and its consequences
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.

Updated analysis
We had during our weekly BBL discussion today (10 November 2022) at the law department a discussion about the case, it involved the normal crowd plus three retired distinguished PIL scholars and practitioners (Hans Corell, Ove Bring and Said Mahmoudi). The BBL started with me summarizing the problem and the Supreme Court decision, after that we had a discussion. Our discussions focused very much on the new threshold that the Supreme Court seems to have introduced that there has to be a Swedish interest in prosecution. That is already expressed in other jurisdictional principles such as the active nationality principle (Criminal Code 2:3(2) and 5), passive nationality principle (Criminal Code 2:3(3) and 5), protective principle, attacks against Swedish public interest (Criminal Code 2:3(4)), this part of the Supreme Court ruling muddles the universal jurisdiction principle. Such a threshold rather goes to policy concerns or is an expression of judicial law-making. My view is that policy concerns are matters to be decided either by the prosecution, the Prosecutor-General or the Government (via the authorization of extraterritorial jurisdiction procedure in the Criminal Code, section 2:7-8), not by courts. This resembles the discussion at the ICC and the Afghanistan situation, where there has been a struggle between the pre-trial judges and the prosecution on who should be investigated and prosecuted, where the Appeals Chamber has stated that policy concerns are matters for the prosecution, see judgment 5 March 2000, paras. 6, 26, 30-32, and 47-50. Prosecution and policy concerns at the ICC may obviously also be a matter for the UN Security Council, via articles 13(b) and 16 of the Rome Statute, and again the Security Council is a whole different beast than a panel of judges. 

3 kommentarer:

  1. A "substantial and legitimate interest" in the words of the Supreme Court.
    Tomas Nordberg

    SvaraRadera
  2. 2000-2003 regarding Schneiter

    SvaraRadera
  3. To your last point, the new criteria resembles the jurisdictional limitation at the SCSL and ECCC to prosecute "senior leaders and those most responsible" insofar as the arguments revolve around whether the determination is one of prosecutorial discretion or rather an objective measure to be determined by the court. Both tribunals resolved the question on the former grounds. Very helpful summary and analysis - thank you!

    SvaraRadera