Will Supreme Court Limit Sweden’s Ability to Prosecute War Criminals?
Alex Schneiter has argued that the Swedish courts do not have jurisdiction over him. This claim has already been rejected by the District Court, the Svea Court of Appeal and the Prosecutor General of Sweden. Now, the Swedish Supreme Court has decided to clarify Sweden’s jurisdictional boundaries. If the Supreme Court agrees with Schneiter’s argument, it will not only be inconsistent with well-established international principles but also restrict Sweden’s ability to hold war criminals accountable and limit access to redress for victims of the most heinous crimes.
In November last year, Lundin Energy’s former CEO Alex Schneiter was charged together with Ian Lundin for aiding and abetting war crimes in Sudan between 1999 and 2003. Later that month, Schneiter requested the District Court to dismiss the indictment against him claiming that Swedish courts have no jurisdiction. He argued that there is no support in international law that universal jurisdiction can be applied over crimes committed in a non-international armed conflict or in situations where the accused is not present in the territory of the State where he is indicted.
After both the District Court and Svea Court of Appeal denied his request, Schneiter appealed the decision to the Swedish Supreme Court who in turn referred the question to Petra Lundh, the Prosecutor General of Sweden. On the 20th of May, she came out with her response which was in agreement with the lower courts’ decision. She concluded that the legal framework is clear and that the Swedish courts have jurisdiction to try Alex Schneiter. Despite all instances agreeing that Sweden does have jurisdiction to try him, the Supreme Court of Sweden has now decided to take up the question itself in order to clarify the matter.
What is it that needs to be clarified?
In Sweden, some crimes are considered so severe that Sweden always has jurisdiction over them, such as war crimes. These are subject to universal jurisdiction which means that they can be prosecuted regardless of the nationality of the perpetrators or victims and the place where the crimes were committed. However, Swedish courts are also limited by an internal rule (Chapter 2, Section 7 of the Criminal Code). This rule states that the jurisdiction of a Swedish court is limited by what follows from general international law.
The question that the Supreme Court has taken upon itself to clarify is what “follows from general international law” means. Does international law have to expressly permit the exercise of jurisdiction or is it enough that international law does not prohibit the exercise of jurisdiction?
Alex Schneiter argues that there needs to be explicit support in international law that universal jurisdiction can be applied over crimes in a non-international armed conflict, and as there is none, Sweden does not have jurisdiction to try him.
Prosecutor Eva Bloch submitted her written submission to the Supreme Court on the 14th of September. In it, she echoes the Prosecutor General’s opinion, stating that jurisdiction is only restricted if this is explicitly prohibited in international law. This opinion was put forward in the so called Lotus case, that took place before the Permanent Court of International Justice in 1927. This case has been considered as the leading precedent on this matter ever since. As recently as 2020, a Supreme Court case in Norway referenced the case and confirmed its continued validity. Mark Klamberg, Professor of International Law at Stockholm University has also confirmed that the Lotus case should be considered as the leading precedent here. Prosecutor Eva Bloch included his article “Prosecuting Corporate Executives for War Crimes in Sudan” with her written submission to the Supreme Court.
As the defence’s position contradicts the Lotus judgement, it is a surprise that the Supreme Court believes that it needs further clarification. Furthermore, Sweden has prosecuted numerous cases concerning crimes committed in a non-international armed conflict under the principle universal jurisdiction. If the Supreme Court would adopt Schneiter’s position, it would suggest that the law is seen through a different lens when applied to a multibillion dollar company that can mobilize endless financial resource in order to derail legal proceedings.
If the Supreme Court were to rule in Schneiter’s favour, it would have devastating consequences. Sweden’s ability to hold war criminals accountable and provide redress to victims of the most heinous crimes will be heavily restricted. Sweden also risks becoming a safe haven for war criminals who committed their crimes in the majority of the conflicts around the world.
Accused not being present in the territory of the State where he is indicted
A second question is whether Sweden can prosecute someone who is not present on its territory. The defence refers to the fact that Alex Schneiter is a citizen of Switzerland, does not reside in Sweden, and was not in Sweden when the charges were brought.
The Prosecutor General argued that there is no requirement in international law that universal jurisdiction is restricted to residents of the prosecuting state. On the contrary, there have been many jurisdictions where the opposite is practiced. For example, in Germany universal jurisdiction for war crimes can be applied even when neither the victim nor the perpetrator are in the country.
The defence replied that even though this is correct, Germany has yet to prosecute someone who is not present in the country. That statement is false. As highlighted by Prosecutor Eva Bloch, an Iraqi IS member was arrested in Greece in 2019 and extradited to Germany in accordance with an european arrest warrant. He was prosecuted under the principle of universal jurisdiction and sentenced to life imprisonment for crimes including the murder of a Yazidi girl in Iraq.
The defence also mentioned that Spain and Belgium, who like Germany did not require that the defendant is present in the country, changed their laws after becoming overburdened with cases and faced with political and diplomatic pressure from the states whose nationals were affected.
There is however a solid procedure in place in Sweden to prevent this from happening. Prosecuting a crime committed outside of Sweden requires the authorisation of the Government. The rule that the Government must follow reads:
“the determination shall be based on balance of interests where different circumstances relating to the case at hand shall be considered, for example the gravity of the crime, the link to Sweden and, when crimes are committed outside of Sweden, the interest of the State – where the crime was committed – to prosecute the case.”
This procedure effectively prevents a floodgate situation from occurring as it filters out cases that Swedish courts are not suited to deal with.
In July, A Swedish court sentenced a former Iranian official to a life sentence for his part in the mass execution and torture of political prisoners in the 1980s. The case also dealt with the question of Sweden’s ability to try a defendant who is not a Swedish citizen and does not reside in Sweden. The judgement reads:
“International law does not require territorial or national connection or other affiliation for the application of universal jurisdiction. There are thus no restrictions for a Swedish court, according to international law, to apply universal jurisdiction. Instead, it is states’ domestic legislation that determines when universal jurisdiction can be exercised. In addition, intergovernmental considerations may need to be taken before universal jurisdiction is exercised when there is no requirement for a connection between the defendant and the state in which he or she is being prosecuted. In Swedish law, legislators have in that regard introduced rules for prosecution.”
With “rules for prosecution” the court is referring to the governmental procedures mentioned above. Thus, the recent judgement is in line with the Prosecutor General’s argument. Universal jurisdiction for war crimes can be applied when the government has approved the prosecution whether the victim or the perpetrator is in the country or not. This conclusion is in line with the purpose of universal jurisdiction – making sure that those guilty of the most heinous crimes do not escape accountability.
What impact will the Supreme Court’s decision have?
More and more European countries have been prosecuting war criminals on the basis of universal jurisdiction, both for crimes committed in international and non-international armed conflicts. A decision that would limit Sweden’s ability to prosecute war crimes committed in non-international armed conflicts would fit badly with that development, says Miriam Ingeson, doctoral candidate in international criminal law at Uppsala University. Sweden would undo established progress among states to hold war criminals accountability if the Supreme Court were to place unwarranted restrictions on Sweden’s own sovereign exercise of universal jurisdiction.
As mentioned above, limiting Sweden’s ability to prosecute war criminals may also lead to Sweden becoming a safe haven for those guilty of such crimes and deprive victims of the most serious crimes of redress. That would a huge blow to Sweden’s key foreign policy objective of defending and strengthening the international rule of law.
An overlooked effect of the Supreme Court’s decision to take up this matter is that it causes further delays. The two defendants in the war crimes case, Ian Lundin and Alex Schneiter, were indicted in November 2021, but despite the prosecutor’s continued request to start planning for the trial, the defence refuses to cooperate until their appeals have been settled. Unnecessary delays jeopardize the integrity of the trial, if only because it denies victims their right to prompt redress and because it increases the risk that key witnesses may eventually no longer be able to testify in court due to illness or old age.
In a way, the defence has already gained from their appeal The Supreme Court will meet late September to early October this year for their decision. Consequently, the trial will now not open until well into 2023, allowing the suspects to continue to walk free a quarter of a century after they decided to gamble with the lives of tens of thousands of people.