On 11 November, 2021, Ian Lundin and Alex Schneiter, two top executives of Lundin Energy, were indicted for complicity in atrocity crimes. To prove complicity in a crime, the prosecutor must show that the accused acted with intent. In Swedish law there are three levels of intent which require different levels of awareness.
The Chairman of the Board of Lundin Energy, Ian H. Lundin, and Director Alex Schneiter have been charged with aiding and abetting international atrocity crimes in Sudan between 1999 and 2003. They deny all charges. Defense lawyers claim that there was no link between the activities of Lundin Energy and the alleged war crimes. They also argue that the prosecution is flawed because the suspects never had the intention to cause or contribute to crimes. A close look, however, shows that the suspects had the required level of intent and that the Prosecution can establish a direct link between Lundin’s operations and the commission of war crimes.
In Sweden, one can only be prosecuted if, objectively speaking, there is sufficient evidence that a crime has been committed and the defendant can be linked to that crime. Evidence that war crimes have been committed in Lundin’s concession area is abundant. The key issue is the link between the crimes and the defendants. According to Swedish law, persons can be found guilty for being complicit if they have intentionally promoted the criminal act through mental or physical assistance (“word or deed”).
The key word here is intentionally. There are three levels of intent in Swedish law, requiring different levels of awareness on the part of the perpetrator. The highest one is a deliberate, controlled act that is performed with the aim that a certain consequence should occur. For the second, the perpetrator must understand that a certain consequence of his act is probable. The lowest one, ‘indifference intent’ does not require that the perpetrator intends for the specific crime to be committed as long as he knew that there was a risk that his actions would lead to a crime being committed, and was indifferent as to whether this would occur. As described in one case “the realisation of the possible effect of his actions at the time of the act did not constitute a relevant reason for the perpetrator to refrain from the act”. In general, the perpetrator needs to understand that the risk that a crime is committed is significant. The court in the above case also highlighted that: “insight that there was a very high probability is normally sufficient for intent to be considered to exist, however, reckless behavior, acting in an agitated mood and the perpetrator’s self-interest in the act are circumstances that may mean that intent may be considered to exist even if there was not a very high probability that the act would lead to a crime taking place”. The evidence presented by the prosecutor in the Lundin case shows insight of a high probability that war crimes would be committed, and that the actions by the suspects on behalf of Lundin Energy were motivated by self-interest.
How did the accused promote war crimes?
As will be illustrated below, the indictment shows how the defendants promoted the commission of war crimes. In May 1999, Ian Lundin decided that Lundin Oil would demand of the Sudanese government that its armed forces would take responsibility for securing Lundin’s operations in Block 5A, an area which at that time was not controlled by the Sudanese Armed Forces or government affiliated militia. Ian Lundin made the decision with the objective that the Sudanese military, together with affiliated militia, would carry out offensive military operations and with the understanding their warfare tactics included indiscriminate attacks and/or the targeting of civilians.
When the Government attacked in response to Lundin’s demands, the company received continuous information about the situation in Block 5A, and about the consequences of the military actions for their operations. The company knew that the population was targeted by its security providers and demanded that they stepped up their efforts nevertheless. Lundin’s internal security reports warned about “the increased possibility of continued fighting in Block 5A – both short term and long term” and established that Alex Schneiter was aware that the Sudanese military dropped bombs on villages. On the 21st of February 2000 Ian Lundin nevertheless demanded that the Sudanese government secure the construction of an all-weather road between Rubkona and his drilling site Thar Jath. He did this with the understanding that the Sudanese military would, together with a militia, start offensive military operations to clear the area by displacing the population, and with the knowledge that the Government had previously violently depopulated villages during similar security operations on its behalf.
The indictment points out that Alex Schneiter knew that indiscriminate attacks had been carried out in and near Block 5A in 1999 and 2000, when on the 4th of October 2000, he expressed his appreciation to representatives of the Sudanese Government for the way in which they had created conditions for Sudan Ltd to operate in Block 5A. By doing so, he de facto approved their actions and implicitly encouraged them to continue to commit war crimes.
When Lundin acquired the right to explore and produce oil in Sudan, the country had a solid and very well documented track record of disregarding human rights, practicing torture, denying humanitarian assistance to its population, committing war crimes, and using forced displacement as a means of warfare and to secure oil operations. This by itself would suggest that the defendants should have been aware of the risks associated with allowing the Sudanese government to take over responsibility for securing Block 5A. Not least as the Government did not have full control over the area. The acts of the defendants therefore fully meet the criteria for the lowest and second lowest levels of intent.
For four years, the Sudanese military, together with a group of militias conducted offensive military attacks including aerial bombardments, shooting civilians from helicopter gunships, enslaving children, plundering villages and burning crops to allow Lundin to operate. Yet the company continued to work alongside them. At this point, even the criteria for reaching the highest form of intent are met. The fact that the two defendants and their legal representatives did everything they could to avoid the case reaching trial stage is understandable considering the damning evidence that the prosecutor has now presented.
The indictment establishes that Ian Lundin and Alex Schneiter had the intention that war crimes were committed to secure Lundin’s operations and that their demands for security provision exacerbated war and caused and contributed to the commission of war crimes. Together, this constitutes a solid legal basis for a conviction for complicity in war crimes.
 William A. Schabas OC MRIA, Expert Opinion on Universal Jurisdiction, 2018.