This case raises significant issues of public concern, which Lundin has consistently raised in the course of the 10-year preliminary complicity investigation by the Swedish Prosecution Authority.
INCONSISTENCY WITH INTERNATIONAL LAW
The Swedish Prosecution Authority is seeking under Swedish law to exercise so-called ‘universal jurisdiction’ over alleged crimes against international law, but is applying standards that are materially lower than those under international law. The concept of ‘complicity’ in Swedish law does not entail making a substantial or significant contribution to a primary crime (as required under international law), but may instead be acts of little or no consequence. International law also requires that an accomplice intended to facilitate the main crime or knew that his acts or omissions shall facilitate the main crime, which is a materially higher threshold than Swedish law.
NO INVESTIGATION OF ALLEGED PRIMARY CRIMES
The Swedish Prosecution Authority is not investigating or seeking to prove the alleged primary crimes in what was then southern Sudan. The Swedish Prosecutor has made clear that it does not intend to call any representative from the Government of Sudan or military to testify to the primary crimes. The Swedish Prosecutor has also recently made it very clear that, due to the security situation in South Sudan and budgetary constraints, the Swedish Prosecution Authority is unable to carry out any investigations on the continent of Africa, not least in South Sudan. The Swedish Prosecutor appears to be relying, among other things, on UN and NGO reports to substantiate the crime base. During 1997–2003, both UN staff and European politicians / diplomats, including staff from the Swedish Ministry of Foreign Affairs, visited the area to investigate whether there was any truth behind the allegations. Neither the UN nor any of the European States decided on any sanctions against Sudan, or indeed the international oil companies operating in Sudan at that time.
FLAWS IN THE INVESTIGATION AND APPROVAL PROCESS
There have been numerous, seriously prejudicial flaws and irregularities during the investigation. These include:
- The Swedish Prosecution Authority ignoring numerous submissions and applications — supported by independent legal experts, including eminent international law professors — as to why this case should not be allowed to proceed.
- The Swedish Prosecution Authority handing over to plaintiff lawyers confidential investigation materials. (Even though this was deemed by the Prosecutor General to have been unlawful when it happened previously, it happened again despite reassurances that it would not.)
- The Swedish Government granting approval in principle for a prosecution without taking into account Lundin’s multiple objections and despite a conflict of interest on the part of the ministers involved in the decision.
Find out more here. Open Letter dated 6 November 2019
WORRYING PRECEDENT AND LEGAL UNCERTAINTY FOR INTERNATIONAL BUSINESS
By purporting to exercise universal jurisdiction and applying Swedish law to the question of complicity (contrary to international law), and given the serious flaws in its investigation, Sweden is setting a worrying precedent and creating significant legal uncertainty for other Swedish / international companies and executives who have undertaken — or may seek to undertake — legitimate, poverty-reducing, growth-promoting economic activities in developing or post-conflict countries. If this is what companies should expect in future investigations of alleged ‘complicity’, they may well wonder whether they should do business in post-conflict states at all. That could come at a regrettable cost to vital foreign investment in developing economies.
See further here. “Oil Bosses Battling War-Crime Allegations Fear Broader Fallout” Bloomberg, 5 December 2018
LESSONS FROM CASES IN OTHER JURISDICTIONS
Comparable cases in other jurisdictions demonstrate why this case should not proceed, in particular a case in the United States against a company (Talisman Energy) operating in the same area of South Sudan as Lundin itself.
- Talisman Energy case in the Southern District Court of New York: In 2001, the Presbyterian Church of Sudan brought a legal action against the Canadian oil and gas producer, Talisman Energy, under the US Alien Tort Claims Act (which gives US federal courts jurisdiction over tort actions brought by foreign plaintiffs for torts in violation of international law). The lawsuit alleged that Talisman had been complicit in violations of international law by aiding and abetting human rights abuses committed by the Government of Sudan. The claim was dismissed by the US District Court for the Southern District of New York and that decision was affirmed in 2009 by the US Court of Appeals for the Second Circuit, which held that “to establish accessorial liability for violations of the international norms prohibiting genocide, war crimes, and crimes against humanity, plaintiffs were required to prove, inter alia, that Talisman provided substantial assistance to the Government of the Sudan with the purpose of aiding its unlawful conduct.” See judgment of the US Court of Appeals for the Second Circuit here. This case has obvious parallels with the case against Lundin in Sweden. However, in New York, Talisman was able to engage in the question of the correct applicable standard for complicity at an early stage of the proceedings. The New York courts confirmed that the correct applicable standard is the international law standard for complicity and not New York law on complicity. In Sweden, Lundin has sought on multiple occasions, to engage the Prosecution on this important threshold legal issue, but there is no recourse to the Swedish Courts on this important threshold issue at this stage of the process.