Reparations for Corporate Involvement in War Crimes: The Lundin Trial and Prospects for Victims’ Justice

Abstract

In September 2023, the trial at Stockholm District Court against Orrön Energy (previously Lundin Energy) and two corporate directors for complicity in war crimes in Sudan between 1999 and 2003, started. The Lundin case is part of a trend of attempts to hold corporations criminally accountable for their alleged involvement in serious human rights abuses and provides a unique opportunity to assess the possibilities of such attempts in relation to the rights of the victims. This article analyzes how human rights obligations and the objectives of reparations for victims are satisfied by Swedish law and practice in the Lundin trial. It shows that while the law allows victims participating in trial to put forward civil claims, it denies this right to the large number of victims not participating, and the decision early in the Lundin proceedings to separate damage claims from the criminal trial has left the participating victims effectively denied reparations.

I. Introduction

In November 2021, a prosecutor with the Swedish Prosecution Authority’s National Unit Against Organised Crime submitted an indictment in the Lundin case to the Stockholm District Court, charging two corporate directors at Orrön Energy (previously Lundin Energy) with complicity in war crimes committed by government forces and aligned militia in Sudan between 1999 and 2003.¹ They are charged with interacting with the Sudanese government and its aligned militia through business agreements, the alleged purpose of which was to engage the government in securing Block 5A, a territory not under government control at the time, to facilitate oil extraction. The indictment followed an investigation lasting more than ten years.

The main criminal trial started in September 2023 and is expected to last two and a half years, making it the longest-lasting proceeding in Swedish history. The Lundin case is part of a growing trend of attempts to hold corporations criminally accountable for their alleged involvement in international crimes (genocide, war crimes, crimes against humanity and the crime of aggression) and human rights abuses (e.g., LaFarge in France and Booking.com in the Netherlands).² This article argues that the separation of damage claims from criminal trials significantly undermines the potential for effective reparations for victims of corporate involvement in war crimes.

Scholars in criminal and international law have investigated the potential for corporate accountability for complicity in international crimes prosecuted in both international and domestic courts.³ In fact, multiple scholars have concluded that international criminal law is a tangible and welcome tool for those seeking to enforce international and human rights norms in the face of violative corporate activity, not least in the home states of those corporations suspected.⁴ Domestic international crime cases involving corporations are concerned with either criminal or civil liability and are directed at the corporate executives or the corporation itself.⁵ The Lundin case concerns criminal liability for natural persons and to a lesser extent liability for the company.⁶ A common theme is the important role played by civil society organisations (CSOs) and victims’ groups in bringing these cases to court,⁷ another issue also highlighted by this criminal case.⁸

Some scholars highlight the potential of international criminal law to contribute to justice for the victims of business-related human rights violations.⁹ Protection of victims’ rights at international or regional levels requires states to take certain measures at the national level for the international or regional norms to become a reality.¹⁰ These rights or protected interests include rights to information, to protection, to report crime, to an investigation of the alleged crime reported, to participation in criminal procedures, to appeal decisions not to prosecute, to legal representation and to reparation.¹¹ Thus, the victims of atrocities and war have legitimate expectations, similar to victims of ordinary crimes, of their home states and the home states of companies and persons suspected of atrocity crimes—that they will live up to their legal and political obligations.

Researchers have problematized the ability of domestic courts to implement these international victims’ rights or protected interests.¹² Sweden provides an interesting example, as a state in which a relatively high number of cases concerning international crimes have been prosecuted. A recent study of six of the international criminal trials held so far in Sweden¹³ concluded that the Swedish system has been fulfilling a wide range of international legal obligations and political expectations towards victims of crime, yet also that certain aspects of the investigations and trials of these crimes, such as the forum’s remoteness in time and place from the crimes alleged and the large number of victims involved challenge several central aspects of the Swedish system, not least the successful fulfillment of the victims’ right to reparation.¹⁴

The existing literature does not describe how the challenges relating to victims’ access to reparations have been or will be addressed in the Lundin trial, and this article seeks to fill that gap. The armed conflict in focus in the Lundin trial has left thousands of people in South Sudan victimized, people who have not received reparation for their suffering, despite a right to it under international law. At its outset, the trial in Sweden showed the potential to provide a unique avenue for victims of corporate involvement in international crimes to access reparations, at least for those 32 victims chosen to participate in the trial. However, less than three months into the main hearing, the court decided to handle the damage claims in a separate, civil procedure. This effectively left the victims without the possibility to claim reparations, due to procedural hurdles to bring claims in civil procedures. Expectations, once again, were not met.

The potential and obstacles for victims to access reparations in the Lundin trial are the topic of this article. It aims to describe, explain and analyse the legal theory, law and practice of reparations for victims of corporate crimes and seeks to answer the following questions: What expectations do international law and justice theories impose on states to make reparations accessible to victims in criminal cases involving corporate actors? What aims does such reparation strive to fulfill? How do Swedish law and practice in the Lundin trial meet expectations and aims? The article is written from a victim’s perspective, which means that it describes and analyses the victim’s rights and opportunities to claim and receive reparation, but does not involve comparing this with the rights of the accused. However, the views of the accused on the topics covered are accounted for in pursuance of balance and to further the analysis.

This article describes and analyses how legal norms work in practice and what actors and institutional factors influence and shape their implementation. This requires a socio-legal method, which is useful for identifying discrepancies between the law in the books and the law in practice.¹⁵ Through examination of public documents, mainly judgments and the preliminary investigation report and court file in Lundin, the potential of the trial to provide victims with access to reparations is analysed. To a limited extent, this material is supplemented with interviews with one prosecutor and one victims’ counsel. The Swedish Ethical Review Board approved the study.¹⁶ The trial is ongoing, which means that conclusions can only be based on material, procedures and decisions taken so far. That said, the court has already concluded some matters that cannot be appealed. Throughout the article, the ongoing nature of the trial studied will be considered.

The article is structured into seven sections. In section 2 the background of the case and the victims’ role is described. Section 3 provides an overview of the theory, law and systems in place for reparations to victims of international crimes. In sections 4 through 6, the various aspects of reparations relevant to the trial are analysed, including international law expectations, Swedish national law requirements and this law’s application in the trial. In the seventh and final section, conclusions are drawn.

II. The Lundin case and reparations to victims

In response to a report to the police, the Swedish Prosecution Authority decided to initiate an investigation of Lundin in June 2010.¹⁷ The report was filed by a lawyer taking an interest in the situation in, what was then, southern Sudan, after reading a report written by a Dutch CSO peace organization, PAX. The report, titled Unpaid Debt, which detailed the role of oil companies in the Second Sudanese Civil War, was one of the documents assessed by the Prosecution Authority before it decided to initiate the investigation.¹⁸ Another likely factor contributing to the initiation of the investigation was timing—the war crimes unit within the police force was established a few years earlier and the unit’s first war crimes trial was just about to begin.¹⁹

The Lundin case concerns events that took place in what is now South Sudan between 1999 and 2003.²⁰ South Sudan lived through two civil wars before gaining independence from Sudan in 2011. The conflicts arose between the mostly African, Christian and animist southern Sudan, which sought political self-determination, and the mostly Arab Muslim central government in the north. The conflicts stemmed from inequality and tensions following the unequal distribution of resources during the colonial period, and armed conflicts broke out upon Sudan achieving its independence from Britain on 1 January 1 1956.²¹ The First Sudanese Civil War lasted from 1955 to 1972 and was followed by the Second Sudanese Civil War between 1983 and 2005. During the 1990s and early 2000s, several peace negotiations and ceasefires took place and various agreements were reached. The fighting was between the south, where one of the armed groups called itself the Sudanese People’s Liberation Movement/Army (SPLM/A), and the forces of the Northern government and their allied militias.

Oil extraction for export began in Sudan in 1999, focused on the south where most of the oil is located. The Lundin case revolves around events in the area of what is now South Sudan, known as Block 5A. The Swedish prosecutor argues that before the oil companies established themselves there, the area was relatively unaffected by fighting, but that control over exploration areas for oil extraction became a central factor in the conflict from 1997 onwards.²²

One of the companies operating in the area was Lundin, a Swedish oil and gas company founded by the Lundin family in 1981. Its activities in Sudan were carried out between 1997 and 2003, through its subsidiary Sudan Limited. Throughout the investigation, the company has asserted that none of its representatives committed or were complicit in international crimes in Sudan. It further claims that its presence in Sudan was a ‘force for development’, that it ‘did everything in its power to advocate for peace by peaceful means’ and provided humanitarian assistance that ‘made life better for thousands of people’.²³

In the indictment, Ian Lundin, chairman of the board of Lundin Energy, and Alexandre Schneiter, former chief executive officer (CEO), were charged with complicity in war crimes committed by government forces and aligned militia in Sudan between 1999 and 2003.²⁴ They remain charged on 11 accounts for interacting with the government in Sudan and its aligned militia through business agreements, negotiated between 1999 and 2002. According to the indictment, the purpose of the agreements was to engage the government in securing Block 5A, a territory not under government control at the time, in order to enable the extraction of oil. The operations of the company required the construction of new roads and the use of existing ones, both secured for the company by the government. Lundin and Schneiter, according to the indictment, took the necessary decisions on the part of the company in reaching these agreements. In so doing, they promoted the warfare implemented by the Sudanese government in order to secure the oil fields. These acts, according to the charges, amount to serious violations of Common Article 3 of the Geneva Conventions of 1949 and generally recognised principles or tenets relating to international humanitarian law concerning armed conflicts.²⁵

According to the indictment, this warfare consisted of indiscriminate attacks directed against the civilian population, amongst them the victims participating in the trial. The attacks against civilians consisted of aeroplane bombardment, shooting from helicopters and shooting, burning, battering and other forms of violence, as well as abductions, destruction of property and looting carried out by troops on the ground. As a result of these attacks, civilians were killed and injured, driven from their homes and had their property destroyed.²⁶

Along with the two company directors, the corporation is also charged. Prosecutors seek a corporate fine from it in the amount of €300,000. A further claim for confiscation and forfeiture of proceeds of crime against the corporation amounts to 2.3 billion Swedish Krona (SEK; €213 million), calculated based on the value of the profit made when the venture was sold in 2003. The prosecutor also proposes a 10-year ban on business activity for the two corporate directors.

The preliminary investigation includes some 80,000 pages of documentation. The trial is planned to last two and a half years, just at the first instance stage, with almost 100 persons to be heard. The main hearing started on 5 September 2023 in courtroom 34 of Stockholm District Court, where both defendants denied the accusations. Thirty-two victims are participating in the trial.²⁷ Under Swedish procedural law, the term used for victims is injured party.²⁸ Injured parties are entitled to several procedural rights, which make the trial an opportunity to take account of several interests of the participating victims. In the Lundin case, victims are provided with their legal counsel, a possibility to claim damages, a right to present their evidence and other support during the criminal procedure.

During the pretrial investigation, they were represented by two victims’ counsel, who eventually requested to have two additional counsel appointed. The court decided not to grant the request, but the decision was overruled by the Appeals Court.²⁹ The injured parties are residents of several, mostly African, nation-states. Eighteen are travelling to Stockholm for their examination by the court, while 13 are being examined via videoconference.³⁰ The damage claims amount to 110 million SEK (€9.6 million). These claims are further analysed in the coming sections, including with respect to applicable law and enforcement issues.

From the perspective of the victims’ right to reparations (sometimes referred to as a remedy), it must be pointed out that the large number of potential victims of the international crimes committed in the former Sudanese area in focus in the trial are not participating as parties, and hence are not provided with the generous rights available to those that do. Attempts have been made by PAX to convince Lundin shareholders to provide reparations to local communities. Such proposals, which were made at Lundin’s annual general meetings, were turned down.³¹ Of relevance for these victims could be the large sum subject to forfeiture in the case. This topic will also be further explored below, in order to highlight the potential for this trial to contribute to redress for victims in South Sudan more broadly.

III. Reparations to victims: Theory, law, and practice

A. Theory

The idea that a wrongdoer should compensate the victim is ancient and exists in all legal systems.³² Criminal law seeks to punish the offender but, in most legal systems, it is the complement of tort law that secures a right to reparations for the victim. Over time, several theories on the functions and justifications of tort law and reparations have developed. Many of these were developed for tort or reparations after ordinary crimes, then over time were adapted and applied to international crimes as well. In addition, new theories addressing the specificities of international crimes have developed.

Tort theories are often divided into forward-looking theories, such as those focused on deterring future wrongful acts, and those theories that instead focus on the harmful act itself, already committed by the wrongdoer. Justice thinking, fitting into this second category, has always provided a basis for tort law; Aristotle in ancient times acknowledged the idea that liability rectifies the injustice inflicted by one person on another.³³ Today, ‘corrective justice’ is used as a justification for tort law and reparations, in both national and international systems.³⁴

Prevention, a forward-looking justification for imposing liability in tort, appears in both national and international law sources. Studies indicate, for example, that atrocity crimes do not happen in a vacuum but rather in places with a history of inequality and human rights violations.³⁵ Therefore, measures that address these legacies of the past can help to prevent relapses into violence or repression.³⁶

Another forward-looking theory discussed in relation to atrocity crimes focuses on the community-level aims of reconciliation and peace. Measures that bring reparations to the victims are seen as a means of achieving conflict prevention, transformation and peace-building in postwar societies. However, commentators stress the need for such measures to be supplemented with other justice measures and mechanisms.³⁷ Here, ‘transitional justice’ may provide the necessary comprehensive tool. Within transitional justice, a theory and concept concerned with societies’ responses to the legacies of massive and serious human rights violations, the general view is that reparations are merely one aspect of a comprehensive approach to justice in transition. The whole of society is taken into consideration. The state, victims, offenders, society at large and a spectrum of interventions are considered necessary in order to achieve the transitional justice aims, among them to rebuild fragmented societies, prevent the recurrence of violence, and achieve peace, the rule of law and democracy.³⁸

Compensation may be the most important transitional justice measure for many victims, as it has the potential to help victims rebuild their lives more concretely than, for example, the revelation of the truth or punishment of offenders. Truth, by itself, can easily be considered as an empty gesture, as cheap and inconsequential talk.³⁹ Victims express the importance of receiving compensation for their losses.⁴⁰ Adhikari and Hansen’s study indicates that victims of human rights violations during civil war view the punishment of perpetrators and compensation for losses as the most important forms of justice.⁴¹

The paramount Factory at Chorzów case decision by the Permanent Court of International Justice lays down that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.⁴² This idea of restitutio in integrum (complete reparation), restoring the status quo ante (‘the way things were before’), is, however, problematic, especially in the area of gross violations of human rights and regarding criminal wrongdoing in general. Often, it is impossible to achieve; the consequences may be irreparable. Full reparation is rarely possible.⁴³

One challenge for any reparation system concerned with international crimes is how to deal with the large number of victims. The resources available for reparations are in no way sufficient for the large numbers of victims involved in international crimes.⁴⁴ Moffett and Sandoval stress the inherent risk of tension between those who are allowed to participate in cases and seek reparations (at the International Criminal Court [ICC]) and those who are not.⁴⁵ The same issue is relevant in domestic international crime cases like the Lundin case, where prosecutors may need to narrow indictments and the number of participating victims.⁴⁶

One way used to address this issue and the challenge presented by the large numbers of victims of international crimes is to see reparations as primarily a symbolic redress.⁴⁷ According to this view, the greatest value of, for example, extraterritorial civil trials is not compensatory awards at the conclusion of them but rather the publicity such trials generate, and the possibilities for victims to have their day in court and to tell their stories.⁴⁸

This demonstrates the justifications of tort law and reparations as well as the potential functions that reparations may fulfil in the Lundin trial. Part of the discussion and analysis will focus on to what extent the trial illustrates these justifications and fulfils these functions.

B. Law

Turning from theory to law, it is well-established that the principle of reparation is a general principle of law. It is recognized in international instruments both as requiring state-to-state reparations and as providing a human right for individuals. The right to reparation includes a right to be protected in a given legal order by both substantive measures and procedures through which to enforce those measures.⁴⁹ Over time, crime victims have become more of indispensable parties, addressed expressly in conventions and other instruments concerning gross human rights violations in general and atrocity crimes in particular. This includes with respect to the right to reparations.⁵⁰ The non-binding yet important Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the United Nations (UN) General Assembly in 2005, deserves mention here.

In July 2024 the European Union (EU) adopted the Corporate Sustainability Due Diligence Directive, which provides a right to full compensation for damage caused by a corporation’s failure to prevent or halt ‘adverse human rights impacts’.⁵¹ The directive is binding on member states and requires transposition by 26 July 2026. There is no binding international instrument containing state obligations to provide reparations to victims of business-related human rights abuse, but the UN Human Rights Council’s Guiding Principles on Business and Human Rights express a duty to ensure effective remedies for those affected by business-related human rights abuse.⁵²

Pillar III, Principle 25 of those guiding principles states as follows: ‘As part of their duty to protect against business-related human rights abuse, states must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy’. There is also a proposal for a treaty on the topic, the ‘Zero Draft’ Treaty, including provisions on remedies for victims⁵³ and liability.⁵⁴ This proposal concerns liability for transnational and other businesses. An overview of the provisions relevant particularly for victims of business-related human rights abuses was previously presented by the Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie, the architect of the UN Guiding Principles on Business and Human Rights.⁵⁵

C. Practice

Several systems are in place at national, regional and international levels, where these legal norms are enforced. Victims of gross human rights violations can claim reparations in, e.g., the regional Human Rights Courts (European Court of Human Rights, Inter-American Court of Human Rights and African Commission on Human and People’s Rights), and victims of international crimes can turn to the International Criminal Court (ICC) Trust Fund for Victims (TFV), state-to-state claims commissions and truth and reconciliation commissions.⁵⁶ Together, international and regional legal norms on reparations have created expectations, in victims towards states and those responsible for atrocities, that they live up to their obligations. Such expectations are further raised by the work of international institutions, such as the TFV, in enforcing the norms.⁵⁷

In order to fulfil these expectations, it is natural to turn to states. The responsibility for human rights is primarily a state responsibility and it is against states that claims can be directed. However, this does not exclude the possibility of suing states to also make claims in national civil or criminal trials against private actors, such as individuals and companies. Companies, not least multinational ones, can have larger assets than some states and are often in a good position to pay compensation. In relation to this can be mentioned the Working Group on Business and Human Rights’ ‘all roads to remedy’ approach, which emphasizes the need for states ‘to utilise all mechanisms available to them, at both the domestic and the international level, which includes criminal law’.⁵⁸ In relation to the victims in South Sudan, most or all avenues for reparations are unavailable. The unquestionable responsibility of the state of Sudan is hardly enforceable. The right to compensation for ‘persons whose rights have been violated by oil contracts’, as expressed in the Interim National Constitution of Sudan article 208(5) and the Comprehensive Peace Agreement article 4.5, has so far led to nothing.⁵⁹ Also adding to the strain on available state resources is the armed conflict that followed South Sudan’s independence. The ICC Trust Fund for Victims is not available due to a lack of jurisdiction of the ICC. An investigation, initiated in 2005 after a UN Security Council referral, concerns only the Darfur region of Sudan, not Block 5A.⁶⁰ In light of this, it is understandable that CSOs turned their eye to the businesses involved. Even though Sweden’s ambitions in regard to the implementation of international norms on victims’ rights could be doubted,⁶¹ and earlier international crime cases have shown that the specificities of such trials challenge the Swedish justice system,⁶² the Lundin trial, at least initially, held the potential to meet victims’ expectations.

Turning now to the empirical and analytical parts of the article, the first topic is the claims made for damages—perhaps the most obvious avenue for reparation for victims of crime.

IV. The damages claims

A. Sweden’s international obligations and its law on damages and criminal procedure

Sweden is under obligation to implement the right to reparation for individuals under several instruments, including the Compensation Convention,⁶³ the Convention Against Torture, the European Convention on Human Rights,⁶⁴ and the EU Victims’ Rights Directive,⁶⁵ which contains a provision requiring EU Member states to allow compensation claims to be made for all victims within the EU if there are such rules under a member state’s national law.⁶⁶

Does Swedish legislation live up to those obligations? The right to compensation from the offender is ancient in Swedish law. Under medieval laws, fines served simultaneously as punishment and payment of damages.⁶⁷ Today, tort law is separated from criminal law but remains procedurally connected, in that injured parties are allowed to attach a civil claim to the criminal trial.⁶⁸ In these so-called adhesion procedures, the same jurisdiction forming the basis for the criminal charges applies to the civil claims, which is not the case if damage claims are brought in a civil case. This approach carries with it the advantage from the victims’ perspective that claims made in cases concerning international crimes brought under universal jurisdiction may rely on the same jurisdictional basis as the criminal indictment.⁶⁹ Thus, Swedish law is forthcoming in terms of a right to put forward claims for damages in international crimes cases. One recent study of Swedish international crime trials showed that almost all injured parties brought actions for damages in procedural connection with the criminal trials and that a large proportion of claims were approved.⁷⁰

However, this procedural routine has been questioned in the Lundin trial. Before the start of the main hearing, the defence requested that the damage claims be separated from the criminal liability questions and treated in a separate civil case.⁷¹ Before addressing this issue in more detail, this article describes the claims asserted by the injured parties.

B. The damages claims in Lundin

Two victims’ counsel together represent 15 injured parties in the Lundin trial, while two others represent 17. The injured parties have all made claims for damages, submitted in August 2023. The injured parties are basing their claims on Sudanese tort law.⁷² The choice of laws follows the Swedish Supreme Court ruling NJA 1969 s. 163, which requires the application of the substantive law in the country where a tortious act occurred (lex loci delicti). The matter of choice of laws for the damage claims has been treated in various ways in the previous international crime cases in Sweden.⁷³ The most common way has been, as in the Lundin case, to apply the law of the country where the tortious act occurred. Because the claims are considered a civil part of the trial, the rules are amenable to out-of-court settlement. From this follows that the parties could agree to apply any law to the claims. Such an agreement, specifically to apply Swedish law instead, appears to have been reached in some of the previous international crime cases, but so far not in the Lundin case.

The injured parties’ claims vary between 7 and 500 million Sudanese pounds (approximately €10,000-760,000).⁷⁴ The claims concern compensation for personal injury as well as property damage. For instance, one of the injured parties claimed compensation for attempted murder, loss of relatives, expulsion and loss of cattle caused by an attack on the injured party’s home village in the Duar area sometime after May 1999, during which the injured party, his mother and four siblings were shot at by a combat helicopter. Consequently, the injured party was injured, his mother and four siblings were killed, the family house was destroyed and the family lost their cattle.⁷⁵

When submitting the claims, the injured parties also exercised their right to invoke evidence. They invoked ‘the same evidence as the prosecutor’ and in addition a legal opinion on Sudanese tort law, the injured parties’ own examinations and certain photographs.⁷⁶

C. Separating the damages claims from the criminal trial

Turning back to the request by the defence to have the compensation claims treated separately, we must first determine the rules provided in applicable law on this topic. According to Ch 22 sec 5 CJP, if an individual claim has been brought up for consideration in connection with a prosecution, the court may order that the claim be handled as a separate case according to the rules for civil cases if continued joint processing would entail significant inconvenience. ⁷⁷

In the bill that introduced this rule into statutory law, lawmakers (the government at the time of the bill’s passage) explained that ‘[i]f a joint handling of the liability claim and the claim for damages results in the decision of the case as a whole being significantly delayed, this is such a circumstance that should lead to the individual claim being separated (bifurcated). Smaller delays, on the other hand, should not lead to the court dismissing the claim for damages.⁷⁸ Through changes adopted the following year, in 1988, the discretion of the judges to separate claims under this rule was narrowed. This was justified by a wish to strengthen the injured parties’ possibility of having the private damages claim dealt with as part of the same proceeding as the prosecution,⁷⁹ due to the procedural advantages such handling entails. Lawmakers indicated that the court should, if possible, seek the views of the parties on the handling of the case before deciding whether to bifurcate.⁸⁰ The District Court in the Lundin case did seek the parties’ views, both orally and in writing, before deciding to bifurcate.⁸¹

Apart from the request to bifurcate the damage claims, the defence requested a staying of proceedings in the civil cases that would follow the proceedings to determine criminal liability. Further, they requested that the court should order that the 32 injured parties who make private claims deposit security of 500,000 SEK (approximately €44,000), based on the Swedish Act (SFS 1980:307) on Obligations for Foreign Plaintiffs, in order to provide security for legal costs that the plaintiffs might owe to the defence if the defence is deemed to be the prevailing party. The defence, on behalf of the defendants, also requested that the court should obligate each of the 32 injured parties submitting damage claims to compensate the legal expenses of Ian Lundin och Alexandre Schneiter.⁸² This is relevant in that such legal costs are not paid by injured parties should their claims be dismissed in a criminal case. If their claims instead are made in a civil case, civil procedural rules apply, which means that they are responsible for legal costs (their own and the opposing parties) should their case be dismissed.⁸³ Finally, the defence requested that the court decide that the 32 persons who submitted damage claims shall not be granted the right to assist the prosecution.⁸⁴ Victims’ counsel opposed these requests. The prosecutor was allowed to give his opinion and pointed out that, in practice, a bifurcation would have the effect in the case of depriving the injured parties of their right to a trial as regards the question of damages.⁸⁵

On 22 November 2023, the court decided nonetheless to bifurcate the criminal trial and the civil damages claims.⁸⁶ Civil cases were initiated and decisions were taken to stay the proceedings in those cases until such times as a legally binding final judgment in the criminal case.⁸⁷ The request that the injured parties not be allowed to assist the prosecution was, however, refused. In its reasoning, the court referred to the temporal and economic advantages for the injured parties of adhesion.⁸⁸ The district court reviewed the rules on adhesion and when deviation from them in the form of bifurcation is permitted (significant inconvenience). The reasons given for the decision were that the civil claims were submitted late, that they relate to legal facts not covered by the prosecutor’s statement of the criminal act as charged (gärningsbeskrivningen), that extensive preparation would be required for the handling of the claims, which are imprecise and inadequate, and that, after such preparation, time would be needed for the defence to submit its opinions. In particular, the court pointed out the shortcomings in the legal opinion on Sudanese law.⁸⁹ It noted that the situation is such that it is ‘the injured parties themselves—through the injured parties’ legal counsel—who have caused the situation to arise by, despite remarks from the court and the defence regarding the importance of submitting the claims in time, submitting the claims a very short time before the start of the main hearing and powers of attorney only when the main hearing has been going on for a long time’.⁹⁰ This is a remarkably scathing criticism of the injured parties’ legal counsel. The court goes so far as to say that ‘[t]he private claim cannot be handled with negligence just because it is handled in a criminal trial’.⁹¹

The decision was appealed by all victims’ counsel.⁹² The Appeals Court agreed with the District Court’s opinion and decided to reject the appeal, with no further reasons given. That decision cannot be appealed.⁹³ Following the District Court decision, two of the victims’ counsel made an objection of disqualification of the presiding judge. They asserted that the presiding judge had handled the case in a way likely to undermine confidence in his impartiality, referring, e.g., to the reasons and timing of the decision to separate the civil claims.⁹⁴ The District Court rejected the objection, a decision that can only be appealed in connection with the appeal of the judgment in the case.⁹⁵

D. Consequences of the decision to bifurcate the claims

What are the consequences of the decision to bifurcate the damage claims? The injured parties may still rely on the extraterritorial jurisdiction applicable to the criminal case. According to the preparatory work, the rules on adhesion procedures in Ch 22 CJP include a rule on competence meaning that a court seized on the criminal matter is always competent to try the private claim cumulatively with the prosecution even though the court would lack jurisdiction to handle the claim in a purely civil case.⁹⁶ The situation that a claim is separated to be treated in a civil case in accordance with Ch 22 sec 5 CJP does not influence the court’s competence.⁹⁷ This means that the court will still have jurisdiction to handle the civil claims in a separate civil case. The right to be represented by victims’ counsel also applies to such a separate proceeding on civil damages claims.⁹⁸

Bifurcation of the claims results in undeniably serious consequences for the injured parties. As mentioned, they now have to wait to have their claim tried; the civil case is stayed, awaiting the verdict in the criminal liability case. The injured parties will also have to endure yet another proceeding. During a seminar held by the CSO Civil Rights Defenders, one of the injured parties expressed his disappointment with the decision, saying that ‘if compensation is denied the whole process is denied’.⁹⁹ Earlier international criminal procedures where the opportunity to claim reparations at the criminal trial also was not provided have demonstrated the disadvantage of such a set-up. Studies on victims participating in trials at the International Criminal Tribunal for the former Yugoslavia show that they did not make claims in civil cases in former Yugoslavia, even though entitled to do so under the tribunal’s Rules of Procedure and Evidence.¹⁰⁰ Another disadvantage is that injured parties risk having to pay the opponents’ legal costs (in addition to their own) in a bifurcated, separate civil action for damages, despite it following a successful criminal conviction.

What about the evidence required? Injured parties would be able to invoke the judgment in the criminal case as evidence. The judgment will not have legal effect; the court in the civil case will not be bound by the criminal case judgment. The judgment instead will have a probative effect in the civil case and can be expected to weigh heavily.¹⁰¹ The most serious consequence that can be anticipated is a decision in line with the request made by the defendants that the injured parties deposit a large sum as security for the legal costs. Such a requirement may be difficult if not impossible for these injured parties to meet. An alternative could be for the injured parties to transfer their claims to one legal person, who could then act as a plaintiff in a class action, thereby limiting the deposit requirement and risk of responsibility for both sides’ legal costs to one plaintiff.¹⁰²

How can the decision be understood in relation to the international legal obligations of Sweden? The right to reparations in various international legal instruments cannot be said to require the cumulation of private claims. As mentioned, the EU Victims’ Rights Directive, to which Swedish legislation corresponds, does include a limited right to compensation through criminal proceedings. The directive is, however, under review, and in its proposal for changes to it, the Commission suggests strengthening the law to facilitate access to compensation from the offender in all cases. The Commission stresses that ‘[a]ll victims should be able to obtain a decision on compensation from the offender within the criminal proceedings to avoid their engagement in multiple cumbersome and lengthy proceedings in separate civil proceedings’.¹⁰³ The issue has also attracted attention from the Swedish government, following media coverage of several Swedish cases (not including the Lundin case) where decisions to bifurcate damages claims were taken. In April 2024, the government commenced an inquiry into the matter.¹⁰⁴ It might bring little comfort to the injured parties in the Lundin case, but injured parties in future trials might have a stronger position if the Commission proposal is adopted into EU law and thus required to be implemented in Sweden.

As a result, what initially seemed promising about the Lundin case, with its targeting of claims for damages against top company executives compared with the ‘foot soldiers’ who had been defendants in previous cases,¹⁰⁵ now looks much more uncertain. This is the first time a request for and decision on bifurcation was made in an international crime case in Sweden.

E. Damages claims of victims not participating in the trial

For the large number of victims not participating in the Lundin trial, there also remains the possibility to claim damages in a separate civil case, either individually or through class action. In such a case (just as discussed above in relation to bifurcation), a possible guilty verdict in the criminal case could be invoked as evidence supporting liability for civil damages. However, because such a claim (by victims not involved in the criminal trial) would not be made specifically in connection with the criminal trial, a court’s competence would rely on private international law principles, which in this case would mean that a civil action against the defendants for damages would need to be brought in the state of residence of the defendants, in the Lundin case in Switzerland for the named corporate officers.¹⁰⁶ An action could also be brought against the company itself. In that case, jurisdiction would lie with the courts of the place of the defendant’s registered office (säte),¹⁰⁷ which would be Stockholm.¹⁰⁸ Victims considering this avenue need to consider the risk of legal costs, and they must be mindful of relevant statutes of limitation. As mentioned, according to the Swedish rules on civil procedure, legal costs for both sides in the event of a dismissal are the responsibility of the plaintiff. The Swedish Act on Statutes of Limitation¹⁰⁹ provides a general rule on a ten year limitation, and a special rule establishing that claims for damages arising from a criminal offence expire one year after the date on which the judgment or final decision is issued on liability for the offence unless the limitation period expires later according to the general rule.

V. Alternatives for victims not participating: forfeiture of proceeds of crime

One difference between the Lundin case and earlier Swedish prosecutions of international crimes is the connection to a corporation. In addition to the injured parties’ claims for damages should criminal liability be found, there is also a prosecution claim for a corporate fine and one forfeiture of the proceeds of crime connected to operations in Sudan between 1997 and 2003. The latter two are directed at the company. The question this section seeks to answer is whether forfeiture is relevant for the victims of the crimes charged in the Lundin case.

Forfeiture and corporate fines are in Swedish law considered ‘a special legal effect of crime’ and go to the state.¹¹⁰ Of biggest interest here is the sum claimed for forfeiture, amounting to more than 2.3 billion SEK (approximately €213 million). The sum was increased from a significantly lower amount just before the start of the main hearing and not only the claim but also the method of calculation is disputed by the company.¹¹¹ The company not only denies that the accused have committed the alleged crimes, but also denies that crimes have been committed in connection with the business activity of the company and that the company received financial benefits connected to the alleged crimes. It further asserts that there is no causal connection between the alleged crimes and the subsidiary Sudan BV’s profit. It also maintains that the prosecutor’s calculation of the forfeiture sum is seriously flawed resulting in it being ‘grossly overrated’.¹¹²

Forfeiture means confiscation—generally to the state—of property due to the owner’s criminal conduct.¹¹³ Several rules deal with the conditions for forfeiture. The prosecutor in the Lundin case has requested forfeiture under Ch 36 sec 4 of the Swedish Penal Code which deals with the proceeds of crime in connection with business activity (näringsutövning).¹¹⁴ The rule is subsidiary to other, more general rules on forfeiture,¹¹⁵ which means the prosecutors must have assessed that it is the only option for the forfeiture claim to be successful.

If proceeds are successfully forfeited, the forfeited property (and corporate fines) accrue to the state unless otherwise prescribed by law.¹¹⁶ This means that the large sum at issue in the Lundin case in the event of a conviction would not accrue to the victims of the crimes but to the Swedish state. The legislature has taken into account the unreasonableness of the fact that those entitled to compensation could lose their lot in the event of forfeiture. A prerequisite for confiscation under Ch 36 sec 4 para 2 is that it is not unreasonable. One situation that would render a decision unreasonable is where there is a potential liability for damages connected to the assets.¹¹⁷

In the Lundin case, the claim for damages is directed towards the accused, while the claim for forfeiture is directed towards the company. Therefore, it is not obvious that the rule on unreasonableness in Ch 36 sec 4 para 2 is applicable. The victims (injured parties) participating in the trial are directing their claims towards individuals and not the company whose property is requested to be forfeited. However, the victims not participating in the trial could make claims for damages in the future. Presumably, these victims could direct claims for damages either towards the accused or towards the company. In light of that, the rule on unreasonableness might have bearing meaning that the court might consider those potential claims before deciding to grant forfeiture.

VI. Implementation of potential decisions on damages and forfeiture

This article now turns from the legal possibilities to put forward claims for damages and forfeiture in the Lundin case, to the prospects under Swedish law to have future decisions concerning damages and forfeiture implemented.

A. Securing assets in the early stages of the process

Enforcement of decisions on damages and forfeiture requires available assets and one way to secure such assets is to take hold of a person’s property early in a criminal process. Under Swedish law two control mechanisms can be used during the preliminary investigation, namely custody (förvar) and sequestration (kvarstad) of a suspect’s assets. Provisions on custody and sequestration in criminal cases are found in Ch 26 CJP. Custody is an interim measure taken by the prosecutor pending a court decision regarding sequestration. Sequestration is a security measure according to which a suspected person (natural or legal) is temporarily deprived of possession or prohibited from disposing of property belonging to them. The purpose of detention and sequestration is to ensure that a suspect in a criminal case does not evade payment obligations, including forfeiture, corporate fines and damages that may be established by the proceedings.¹¹⁸ In the two Swedish international crime cases where damages were enforced, parts of the decisions on damages were covered only because assets had been sequestered during the investigation.¹¹⁹

Certain requirements need to be in place before these coercive measures may be decided upon, for instance, that a person is suspected on reasonable grounds, that this suspect can be assumed to be liable for payment of, e.g., damages, and that there is a risk that the suspect will try to evade their payment obligation.¹²⁰ The case law has exercised restraint as to what counts as evasion risk. One circumstance could be the size of the claim (e.g. on damages).¹²¹

In the Lundin case, at least at the point when the injured parties’ legal counsel was appointed (starting in 2014),¹²² it could be assumed that damages due to crime would be on the table. If large claims for damages can be expected, prosecutors must discuss sequestration with the victims’ counsel, since they themselves cannot take property into custody,¹²³ but injured parties can request a court order for this to be done. However, in the Lundin case, there is no decision on detention or sequestration and the topic seems not to have been discussed between the prosecutor and legal counsel.¹²⁴

In light of the case law, it would seem that the prosecutor would have had a difficult time using detention and sequestration in the Lundin case. Uncertainty on the position of the law combined with the near certainty of an appeal might have been enough for the prosecutor to abstain earlier during the initial proceedings. However, it would have been reasonable to at least consider sequestration because of the large amounts anticipated both in damage claims and in forfeiture.

B. Enforcement of court decisions on damages and forfeiture

The above shows that the most obvious avenue for injured parties to claim reparations in the Lundin case—through damage claims in the criminal trial—is effectively unavailable. Nevertheless, let us consider the possibilities for injured parties who are awarded damages by a court in the Swedish system. After such decisions (or decisions on defendants’ forfeiture of assets) have been issued, the next step for injured parties to gain access to these means is enforcement. In Sweden, enforcement of decisions on damages, forfeiture of assets and corporate fines is the responsibility of the Swedish Enforcement Authority (Kronofogden). After a judgment is finalised and the time for appeal has expired, the Authority may initiate enforcement measures, such as attachment of earnings (under the Enforcement Code).¹²⁵ When it comes to enforcement of decisions on damages, the injured party himself or herself is required to seek the assistance of the Authority,¹²⁶ while the court seeks enforcement of forfeiture it has ordered.¹²⁷

For the injured parties in the Lundin case, this enforcement step is a potential hurdle. Generally, injured parties awarded damages who reside in Sweden are contacted by the Enforcement Authority, but all but one injured party in the Lundin trial reside abroad.¹²⁸ They are dependent on their legal counsel’s assistance post-trial to contact the Authority. However, the responsibility of legal counsel formally ends with the finalisation of the trial, which means that measures taken by counsel to collect damages are not reimbursed by the state as part of the provision of counsel to crime victims. In previous international crime cases, counsel have taken measures pro bono to help their clients.¹²⁹ Regrettably, access to reparations is dependent on the readiness of counsel to work for free, a situation that seems to correspond poorly with Sweden’s obligations to ensure reparations pursuant to, among other sources of law, the EU Victims’ Rights Directive.

Due to multiple instances of convicted defendants’ insolvency, enforcement of damages has been successful in only two earlier international crime cases prosecuted in Sweden.¹³⁰ Sweden is under obligation to provide state compensation to victims in cases where criminal injury is not compensated in other ways (this is pursuant to the Compensation Convention, 1983, and Compensation Directive, 2004). A system exists in Swedish law through which victims can receive such compensation, so-called ‘criminal injuries compensation’ (brottsskadeersättning), in cases where it is not paid through, for example, damages paid by the perpetrator or as a result of private insurance coverage.¹³¹ However, criminal injury compensation for crimes committed abroad is only paid to persons who were resident in Sweden at the time the crime was committed.¹³² This renders this type of compensation unavailable for most injured parties in Swedish international crime trials, including the Lundin trial. Victims’ counsel in previous international crime trials have proposed special solutions in serious crime cases where there exists a connection to Sweden, but the government has not heeded those yet with proposals for new law on the subject.¹³³

That said, the Lundin trial differs from the earlier international crime trials in that here, the accused are far from indigent. In 2019, Alexandre Schneiter was reported to have received remuneration amounting to €3.8 million,¹³⁴ while Ian Lundin’s assets in 2023 amounted to €2 billion, according to media.¹³⁵ Therefore, there appears to be no need for state compensation for any injured parties who may be awarded damages after this trial. In contrast with earlier cases, what we see in the Lundin case is that enforcement of damages, in the event of a ruling to award damages in the civil proceeding set to follow the trial, may not be the main challenge, but rather bringing those claims to court in the first place.

C. Enforcement of forfeiture by following the money

In Lundin, the claim for confiscation and forfeiture of proceeds of crime amounts to over €200 million. The prosecutor has requested that forfeiture be ordered against the company, now named Orrön.¹³⁶ What happened in December 2021, one month after the indictment, was that Norwegian oil and gas company Aker British Petroleum (BP) agreed to acquire Orrön’s oil and gas business. The merger was completed in June 2022. Human rights organizations now claim Aker BP’s acquisition risks contributing to Lundin Energy/Orrön’s continued attempts to avoid its responsibilities. These organizations foresee a dramatic reduction in Orrön’s net asset value.

If the company is found liable, they predict Orrön may not have sufficient assets to fulfil what they see as its human rights obligations.¹³⁷ After the merger, the net asset value of Orrön decreased, according to the company, from ca 8 billion to 480 million SEK (approximately €700 million to 42 million), well below the forfeiture amount claimed.¹³⁸ Should the claim for forfeiture be approved, it is thus highly unlikely that Orrön will have sufficient assets to cover it. Enforcement of a forfeiture order could render Orrön insolvent.

As a reaction to the merger, these same human rights organizations have initiated a lawsuit taking place before the Organisation for Economic Co-operation and Development (OECD) National Contact Point (NCP) in Norway. The organizations claim that Aker BP and its investor Aker ASA have knowingly complicated the reparations process and in so doing have not lived up to the OECD’s Guidelines for Multinational Enterprises.¹³⁹ In its response, Aker BP/ASA requested that the NCP reject the complaints, on both formal and substantial grounds. They maintain, for example, that the complaints should have been brought against Lundin Energy and before the Swedish NCP instead, and that the underlying facts (Lundin Energy’s alleged contribution to human rights violations in Sudan) are not substantiated.¹⁴⁰ The main purpose of the OECD procedure is to mediate between the disputing parties and, if that is not possible or successful, to provide an assessment in the form of recommendations as to how the conflict might best be resolved.¹⁴¹ However, it does not lead to binding and enforceable decisions, e.g., on damages.

Another option for enforcing any forfeiture that may or may not be ordered against the company defendant in the Lundin case is the institution of recovery in bankruptcy. If Orrön goes bankrupt, Swedish bankruptcy legislation comes into play, including the rules on recovery in bankruptcy.¹⁴² Recovery in bankruptcy means that a certain legal act that the debtor has taken before the bankruptcy is reversed. The rules are intended to provide the possibility of taking action against legal acts carried out in order to circumvent the consequences of an anticipated bankruptcy.¹⁴³ In the case of the merger between Orrön and Aker BP, a merger consideration (fusionsvederlag) has been paid by Aker BP. This consisted of shares in Aker BP and money, both of which have gone to the shareholders.¹⁴⁴ This could be seen as a dividend (utdelning) to shareholders. It could be argued that this has led to a situation where a creditor (the state) will potentially not receive the compensation it is entitled to (forfeiture), as a result of a legal act (the payment of the dividend) made before the bankruptcy but after the claim had been asserted (the forfeiture requirement in the indictment). The bankruptcy rules could offer a possibility to recover the dividends.¹⁴⁵

In the end, should forfeiture be collected it is still nonetheless payable to the state, not directly to the victims. The best option left is also one which could enable the victims to access the assets seems to be for the Swedish government to make a decision to, e.g., create a special fund to fund victim compensation claims. This has been proposed before in Sweden, but never implemented, and is now being discussed in relation to the French company LaFarge’s income from terrorism.¹⁴⁶

VII. Conclusion

The Lundin case is unique but can also be expected to have an impact on similar cases concerning the involvement of corporations in international crimes and to attract interest from scholars as well as practitioners. This article seeks to investigate how expectations in international law and justice theory concerning reparations are met by Swedish law and practice in the Lundin trial. From the analysis at hand, we can see that Swedish law provides good opportunities for damages, fully in line with the requirements of international law. It confirms that international criminal procedure comes with advantages for victims of crime involving corporations,¹⁴⁷ not least because the civil jurisdiction can piggyback upon the criminal. Compared with previous cases concerning international crimes handled by Swedish legal institutions, the Lundin case also seemed, at least initially, to hold promise that a potential future decision on damages could be enforced since the defendants have large assets. However, the decision to bifurcate the claim for damages from the criminal liability trial in practice has led to victims being denied the opportunity to claim compensation. The court’s reasoning also shows that the decision possibly could have been avoided with a different and more proactive approach on the part of the victims’ counsel.

The article also analyses the possibility of obtaining reparations for victims who do not participate in the trial. In cases involving international crimes, there are typically large numbers of victims, including in the Lundin case. Most of them do not get the opportunity to participate in the trial. Therefore a legally interesting road taken in the Lundin case and other cases concerning corporate liability is the pursuit of forfeiture of large sums claimed as the proceeds of the crime committed. However, it is legally and practically unclear how passable that road is, from the victims’ perspective, in the Lundin case. Forfeited assets go to the state, and the corporate defendant’s recent reduction of its assets by means of a merger means that future forfeiture might not be enforceable in full.

What do these conclusions tell us about the extent to which the objectives of reparations law are fulfilled in the Lundin case? If the outcome is that the issue of damages is not even examined, even in the event of a conviction on the issue of liability, then this of course means that most of the purposes of reparations are not fulfilled at all. This is perhaps especially true of the compensatory function.

Damage awards also have the potential to provide the victims of crime a sense that justice has been done, but this potential is lost if no claims are made, and there is a great risk that the decision on bifurcation means that the whole process will be seen as a disappointment for the injured parties.

However, a conviction of criminal liability can in itself have a restorative effect and be seen as important for victims. A judgment allocating responsibility can also send a symbolically important signal to the participating victims as well as to the greater number of non-participating victims and the local (and international) community as a whole.

In sum, it is obvious that this trial on its own cannot fully achieve the aims of reparations, but to borrow the words of the UN Working Group on Business and Human Rights, it can be one road to a remedy.

In the event of an acquittal, there can still be something valuable achieved by Sweden’s pursuit of this prosecution. Even unsuccessful court cases can trigger public debate, and lead to law reforms and other social changes, thus having an impact beyond that on the parties to the specific case.¹⁴⁸

Finally, the handling of issues bearing on reparations in the Lundin case has shown that the link to corporate responsibility poses new challenges for the prosecutors and victims’ counsel working on Swedish investigations and trials of international crimes. The absence of a sequestration order securing the availability of company assets and what has been perceived by the court as slow reactions of victims’ counsel have resulted in a situation where compensation seeming more accessible than in previous cases now appears increasingly inaccessible, in the case and for the victims in South Sudan more generally. Putting pressure on the Swedish government to take action to provide victims with access to reparations by means other than litigation may be the most available road forward for human rights proponents, with the greatest potential to address the collective and intergenerational harm done in South Sudan. To strengthen the rights of victims in future trials, the Swedish government must follow through in ongoing domestic legislative matters on the right to counsel and the right to make civil claims during criminal trials. This also includes following closely and adhering to developments in international and EU law on the right to reparations.