Court throws out the damage claims of war crimes survivors

The Stockholm District Court decided on 22 November 2023 that it will not consider the claims of South Sudanese plaintiffs in the war crimes trial against Ian Lundin and Alex Schneiter. Instead they  must each open a separate civil case against the suspect. They must then pay for their own lawyers and each deposit €45.000, the security demanded by the suspects for reimbursing their legal costs if a claim is not awarded. As no claimant can afford this, the decision would effectively deny victims of war crimes full access to justice. The decision can be appealed.

In its decision, the court closely follows the arguments of the defence that the trial’s schedule does not allow them to adequately defend against the claims, ignoring the prosecution’s position that a disconnect would in practice mean that the plaintiffs are deprived of the right to review their damages, which is particularly offensive in a case involving massive war crimes. The court’s main considerations are:

  1. The indictment does not relate to participation “in a number of individual, independent attacks“, but to application of a method of warfare. However, all the claims presented relate to individual events such as violent attacks and attempted murder. These circumstances are stated only in the evidence and not in the indictment, and therefore do not constitute legal facts that the prosecution has invoked. It will require precious time to resolve whether these circumstances are covered by the indictment. Also, the defendants would, during an ongoing trial, have to respond to new legal facts, which they cannot properly prepare within the timeframe of the trial.
  2. The legal facts that have been invoked in the claims are “consistently imprecisely stated regarding relevant circumstances, including the time and place of the alleged offence.” Also, the plaintiffs have requested compensation for pain, suffering and material damage, without specifying how the claimed amounts are distributed among these items. And finally, the compensation claims are based on insufficient analysis of Sudanese law. That must all be clarified before the claims can be examined. The agreed timeframe for the trial does not allow to do that.
  3. The court is afraid that another decision will “not be tolerated by the defence”, and that the defence will attempt to cancel the trial for violating their clients’ right to a fair trial. “There is therefore a significant risk that if the claims for damages are not separated, that the already started main hearing, which has already been going on for over two months, must be cancelled in order to give the defence a reasonable opportunity to prepare their defence against the individual claims.” This would cause delays of a year or more, which would infringe with the right of the suspects to be tried within a reasonable time.
  4. The court believes that the decision is in the interest of the plaintiffs as otherwise they would have “to wait longer for a decision on their case”, and notes that the plaintiffs can still go to a court and claim for damages.

The Courts blames its decision entirely on the plaintiffs’ lawyers, arguing that the claims for damages that they filed for their clients are so deficient that they will require extensive work and cause unacceptable delays. :

The court’s decision ignores the position of the prosecution that the evidence shows that each plaintiffs was subjected to harm from the criminal method of warfare that are described in the indictment. More fundamentally, it ignores the prosecutor’s argument that separation means that the claims of the plaintiffs will not be examined. The court does not substantiate its statement that “ …, this does not mean that they [the plaintiffs] are deprived of the right to a review of the question of damages”.

The decision by the Stockholm District Court will be a huge blow for South Sudanese witnesses. According to prosecutor Thomas Ahlstrand, several of them have experienced threats and attacks to change their testimonies about Lundin’s role in Sudan, in, what he called “a powerful effort to unduly reduce the chances of a conviction”. For many South Sudanese witnesses, the case has come with huge personal risks and costs and several of them have had to flee their country.

A key consideration of the court is its expectation that the suspects will start proceedings that will cause substantial further delays, if their request for separation would not be awarded. Contrary to the plaintiffs, who obviously struggled to present their claims in time, the suspects can afford to take any legal action without regard to costs. There is no doubt that the Lundin case would have developed differently if the survivors of war crimes would have had meaningful financial means at their disposal, or if the suspects wouldn’t dispose of an annual budget of USD 8 million to pay for their lawyers. It would have been to its credit if the court had paid attention to this state of affairs.

The court’s decision to prioritize the rights of the suspects over those of their alleged victims will damage the credibility of the trial in the eyes of communities in South Sudan, and may even damage the integrity of the trial itself.

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