An unusual war crimes trial began at the Stockholm Court of Justice in Sweden in September. It involves two former executives – Alex Scheiter, the former director, and Ian Lundin, the former chairman of a Swedish oil company, Lundin Petroleum. They are charged with “complicity in grave war crimes” allegedly committed during the armed conflict in Sudan between 1999 and 2003. This is a significant case. Although the number of domestic war crimes trials has increased over the last decade, very few cases have involved business persons. The Lundin case is one of the first domestic war crimes trials to grapple with questions of the applicable legal regime that should govern corporate complicity.

The allegations in the Lundin case:

The prosecution alleges that on 6 February 1997, an oil prospecting and production sharing agreement was concluded between Lundin Petroleum, through a subsidiary, and the Sudanese government. The two defendants participated in the conclusion of that agreement. The agreement included a right to search for and extract oil in an area called “Block 5A” in Southern Sudan. Between 1999 and 2003, the Sudanese government conducted military operations in the area to gain control of Block 5A. During military operations, conducted by Sudanese government forces and associated militias, war crimes were committed against the civilian population in the area. They included “systematic” and “indiscriminate attacks” against civilians, including “aerial bombardments from transport planes, shooting civilians from helicopter gunships, abducting and plundering civilians and burning entire villages and their crops so that people did not have anything to live by”. The prosecution alleges that the defendants aided and abetted these war crimes because they made the agreement with the Sudanese government, knowing that their requests to secure the area would be likely to result in military operations in violation of international humanitarian law (see the Stockholms Tingstratt, Sveriges Domstolar, “Trial Commences in case regarding complicity in grave war crimes in Sudan”, 18 August 2023).

Mens rea:

The criminal case is unsurprisingly giving rise to a multitude of legal issues. One of the significant legal issues at the pre-trial stage concerned the applicable mens rea (the mental element that must be proven to find the defendants guilty). The issue is whether the Swedish Court will use the mens rea applied by the International Criminal Court (“ICC”) pursuant to Article 30 of the Rome Statute of the ICC, or whether it will apply the mens rea normally applied under domestic Swedish law. The answer to this question is significant and could potentially determine the outcome of the trial because the mens rea at the ICC is higher and more difficult for the prosecution to prove compared to that under domestic Swedish law. Consequently, the defence argued that the ICC standard should apply, whereas the Swedish prosecutor relies on the domestic standard, pursuant to which the defendants could be convicted if they were found to be reckless (Asymmetrical Haircuts, Justice Update podcast – “Landmark Lundin trial”, 1 September 2023). 

The ICC:

Article 30 of the Rome Statute of the ICC expressly provides that a person is regarded as committing a war crime where the actus reus of the crime is committed “with intent and knowledge”, except where the offence in question specifically provides that a different mens rea applies to that offence. Article 30 explains that “a person has intent where: (a) [i]n relation to conduct, that person means to engage in the conduct; (b) [i]n relation to consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events”… “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. Although, there has been some divergence in the jurisprudence at the ICC, including discussion as to the relationship between Article 30 and Article 25(3)(c), the preponderance of the jurisprudence supports the view that Article 30 includes direct intent (i.e. where a person intends to bring about a desired consequence or result) and indirect intent (i.e. where a person does not intend to bring about a particular result, but realises that the result will occur in the ordinary course of events) but not recklessness – i.e. a foreseeable risk that something might occur. Indeed, the drafting history of the Rome Statute supports this view because recklessness was not included in the Statute following negotiations.

Swedish law:

The situation under Swedish law is different from that at the ICC. Under Swedish criminal law, intent can be divided into three categories: direct intent, indirect intent, and reckless intent and “unless otherwise provided, the main rule is that reckless intent is sufficient to prove that the defendant acted with intent”. Thus, under Swedish law reckless intent “is enough”, as per Lekva, Ebba and Martinson, Dennis, “The Mens Rea Element of Intent in the Context of International Criminal Trials in Sweden” (September 29, 2020) Scandinavian Studies in Law Vol 66, 2020. Notably, the authors of this article argue that the mens rea standard under Swedish law, rather than under Article 30 should apply to domestic proceedings concerning international crimes. They argue that if it did not, then in practice a higher degree of intent would be required to convict someone for international crimes than domestic crimes, which would “make it more difficult to convict somebody in Sweden of an international crime than it would of other crimes”.

The comparative position under the law of England and Wales:

How might this issue play out should similar proceedings come before the courts of England and Wales? A case in this jurisdiction could be tried under the International Criminal Court Act 2001 (“ICCA”). Under the ICCA, section 66, a person accused of committing a crime must do so with “intent and knowledge” which is defined with reference to Article 30 of the Rome Statute. When assessing the mental element under section 66, our domestic courts must “take into account” ICC case law and “may” also consider “other relevant international jurisprudence”. Thus, in a case where a direct perpetrator is involved, a legal discussion is likely to ensue about whether “intent and knowledge” includes recklessness. However, in a situation such as the Lundin case, where the defendants are alleged to be criminally liable as aiders and abettors, they would be criminally liable pursuant to section 52 ICCA, which criminalises “ancillary conduct”. Significantly, section 55 ICCA expressly defines ancillary offences with reference to the law of England and Wales. So, in relation to aiding and abetting, such conduct would be an indictable offence pursuant to section 8 of the Accessories and Abettors Act 1861 and the principles of English law in relation to aiding and abetting as per the Supreme Court case of R. v Jogee [2016] UKSC 8, would apply, pursuant to which, foresight is not sufficient mens rea but is rather evidence of intent. A defendant, such as Lundin or Scheiter would not have to intend to assist or encourage violations of international law, but if they contemplated that one of several crimes may be committed and one of those crimes was committed, their intention to assist in the commission of any one of those crimes would be sufficient mens rea for the crime committed.

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