The Lundin trial stands out for its importance for hundreds of thousands of survivors of war crimes in South Sudan. Never before has anybody been brought to justice for his role in these crimes, that were routinely committed by all parties to Sudan’s civil war. The hearings will be closely followed in South Sudan.
Also, international corporations are rarely prosecuted for complicity in gross and systematic human rights violations. Not since the 1949 Nuremberg trials has a large, listed enterprise been indicted for international crimes. The Lundin trial sends a loud signal to international corporations that there is no impunity for international crimes.
Accounting for war crimes in South Sudan
The indictment describes gross and systematic human rights violations that occurred in Lundin’s operating area in South Sudan and brought unspeakable harm, uprooting tens of thousands of people and impoverishing a large area that had until then been relatively prosperous and peaceful. An estimated 12,000 people died during the violence in Lundin’s concession area. Absence of justice for past crimes is a driving force behind South Sudan’s political instability and culture of violence. Never before has anybody been brought to justice for any of the unspeakeble crimes that were committed during Sudan’s long civil war. A free and fair trial enables truth telling and recognition of victim communities. The Lundin trial is therefore of great importance to South Sudan for the example that it will set, and it will be keenly watched.
Remedy for victims of human rights violations
Lundin and its business partners Petronas and OMV endorse the UN Guiding Principles and acknowledge their duty to provide remedy for human rights abuses that they have contributed to. The available facts strongly indicate that Lundin and its consortium partners contributed to violations that caused severe harm. A conviction would undeniably show that the three companies are indebted to the population and that they are duty-bound to provide effective remedy. Theoretically, the trial could therefore deliver remedy and reparation for harmed communities and offer them opportunities to rebuild their lives. In practice, however, this is far from certain. None of the three companies seem interested to take an honest look in the mirror, and it does not come naturally for corporations to pay their moral debts.
Curbing corporate impunity for gross crimes
It is not unusual for corporations to be directly involved in human rights violations, but prosecutions are rare. Public prosecutors are discouraged by the lack of successful cases and the difficulties in obtaining evidence. Also, critical legal questions are yet to be decided by courts. Each successful prosecution removes some of these obstacles, reducing the free space for businesses to cause or contribute to the worst human rights violations
The Lundin trial can significantly strengthen the effectiveness of the rules that protect human rights. Among the crucial legal questions that the Swedish court will answer are whether international crimes are specific enough to apply renvoi to national criminal law? does the outcome of a structural approach to a war crimes investigation produce a satisfactory evidentiary standard? and do national criminal liability standards apply in a universal jurisdiction case? The court’s decision may define new legal standards that broaden the range of cases that will be investigated around the globe. The Swedish prosecutor’s intention to forfeit criminal benefits from Lundin is ground-breaking and will be taken notice of in corporate boardrooms.
Prevention of violent conflict
Violent conflict is a major driver of human rights violations. Companies that operate in conflict-affected areas are therefore expected to conduct enhanced human rights due diligence and tackle conflict drivers, but only very few international companies do this. Expanding liability for complicity in gross crimes will incentivize the business community to consider their impact on violent conflict. The Lundin trial is set to become a landmark case and a global catalyst in this regard. If successful, it will have a preventive impact by changing the risk profile of business operations in conflict affected areas and in countries without the rule of law.
