Can a Corporation Be Complicit in War Crimes?

At the end of the 1990s, a Swedish company called Lundin Oil started drilling in a war-torn region of what was then Sudan. To secure the drilling sites, the company contracted with the Sudanese government. Over the next several years, the price of oil skyrocketed, and Sudanese government and allied forces displaced, as human rights groups estimate, 160,000 people in the area, bombing and burning their villages. The groups say some 12,000 people were killed.

Two former executives of the company, which has since been renamed and reconfigured, are now defendants in the longest criminal trial in Swedish history; it began in September 2023 and is expected to continue through next May. They stand accused of complicity in war crimes. The defendants reject the charge, and the company maintains that there is no legal basis for the prosecution. The company also disputes the casualty figures.

I went to Stockholm this month to watch a couple of days of the hearings. I was mostly interested in the trial’s other historic distinction: It is the most ambitious effort since Nuremberg to hold accountable corporate executives accused of complicity in war crimes. After World War II, owners and leaders of three companies — Flick KG, I.G. Farben and Krupp — were accused of profiting from and aiding Hitler’s war and the Holocaust. But those efforts fizzled. Within a few years, all of the accused were free and in possession of their fortunes. The case against the Lundin executives seeks to set a precedent: to establish that corporate complicity in war crimes can be severely punished.

The two executives on trial are Ian Lundin and Alexandre Schneiter, but when I was in Stockholm, the prosecution was questioning Ken Barker, who was the highest-ranking Lundin employee in Sudan at the time and is a witness in this case. (He has not been granted immunity and was warned at the start of his testimony that his statements could be used against him.) Barker, a British citizen, ran the operation on the ground for much of the time with which the trial is concerned. He reported directly to Ian Lundin and had frequent interactions with Ian’s father, Adolf, the founder of the company, before Adolf’s death in 2006.

Prosecutors projected onto four large pull-down screens around the courtroom the weekly reports that Barker wrote to his superiors at the company’s headquarters in Geneva. He described the situation on the ground, enumerating the events of a given week: The Sudanese Army was behind schedule on the construction of a road it had promised the company; an army truck was ambushed; 12 soldiers killed; one rebel killed; the army is amassing troops in the area where the company was drilling. In a report dated August 2001, he wrote that the army was active near the rig. “This is a cleanup operation on some scale, and I would not care to comment on the breach of any humanitarian principles that may be involved,” he wrote. “It is beyond reasonable doubt that there is some displacement and cleansing going on.”

Barker is 79. Like other witnesses in this case, he has trouble remembering what happened 25 years ago. This is an issue at many war crime prosecutions: Investigations often take many years, and by the time cases come to trial, witnesses and perpetrators are often frail, and their memories are unreliable.

On the morning of the second day of his testimony, Barker sat outside Courtroom 34 in Stockholm District Court, waiting for the green light that announces the doors have opened. He put aside his tattered paperback copy of “The Lord of the Rings” to chat with the few spectators waiting for the start of the hearing: Martin Schibbye, a Swedish journalist who is writing a book on the trial; a Swedish criminologist who is part of an academic study of the trial; and me.

Before Barker’s testimony, the court heard from the 32 plaintiffs — former and current South Sudanese residents who described being terrorized by government-backed forces, having their villages destroyed, family members killed and children captured and being forced into military service.

On the second day of Barker’s testimony, one of the prosecutors, Annika Wennerstrom, pressed him for his opinion of the events he’d been reporting on.

“My view was that it was part of the war,” he responded. “The war had been going on since 1956, and this was an extension.”

American companies had to cease operations in Sudan. Lundin Oil apparently saw this as an opportunity. In a 1997 interview, Adolf Lundin told a television reporter that the sanctions got rid of the competition his company faced in Sudan. “One could say that we thrive in maximum unrest,” he said. The journalist interviewing him asked him if some regimes were more “appealing” than others. Perhaps they were, Lundin allowed, “but we observe that dispassionately. The only thing we want is the concession. And the regime itself we must treat as a normal negotiating partner.”

The defense argues that there is nothing illegal about this approach. The company didn’t ask for anyone to be killed, it says; it wanted peace. And it contracted for what the company describes as only “a small guard force” to “provide passive protection for personnel and equipment.” In the bigger picture, the defense says that it’s not a crime to drill for oil in a dictatorship or in the middle of a war and that it’s not a crime to cooperate with the local authorities, whoever they are and whatever the tactics they use to maintain their power or facilitate the extraction of their resources.

This argument is similar to that made by the industrialist defendants in the Nuremberg trials. In those proceedings, the defense argued that the accused had simply been doing business as business was done at the time and where they had found themselves. Many of them were acquitted, and the sentences of the rest were commuted soon after the trial ended. Alfried Krupp, the only one of those industrialists whose property was confiscated, was pardoned and granted restitution.

More recently, however, national courts have taken up a handful of such cases. In 2007, Chiquita Brands International pleaded guilty to financing a designated terrorist organization, after it paid off a Colombian rebel group, and last year a Florida court ordered the company to pay more than $38 million in damages to some of the organization’s victims. The French cement company Lafarge has pleaded guilty in the United States to providing material support to terrorist groups, including ISIS, which it paid to protect its plant in Syria, and agreed to pay a $778 million fine. The company is now in French criminal court, fighting additional charges over payments to these groups. And Francesca Albanese, the U.N. special rapporteur for the occupied territories, has prominently advocated holding corporations responsible for enabling and profiting from the genocide in Gaza.

A few things made the Lundin trial possible. One is the legal doctrine of universal jurisdiction, which holds that — because the laws governing war crimes are agreed on by many nations and because war crimes are of concern to all of humanity — such crimes can be prosecuted in any country. In reality, there is nothing universal about universal jurisdiction: Whether a country takes up a case depends on national laws and procedures as well as political will.

Sweden is a special case. Its national identity has been that of a moral superpower, as the Swedes put it. This identity, in turn, has dictated that Sweden open its doors to refugees — and though the Swedish welcome has worn thin in recent years, hundreds of thousands of people who fled conflicts in the former Yugoslavia, Syria, Afghanistan and elsewhere now live in the country.

Some of these newcomers were victims of war crimes, and their presence spurred Swedish prosecutors to action. The country has created special law-enforcement units for war crimes. In 2016 a Swedish court convicted a man for participating in the Rwandan genocide and sentenced him to life in prison. Other cases have stemmed from the conflicts in the former Yugoslavia, Syria, Iraq and Iran. But unlike the Lundin trial, all of them have involved direct or indirect perpetrators of the crimes, never the complicity of corporate individuals.

In 2001 the Presbyterian Church of Sudan, along with people displaced from what became oil fields, brought a class-action lawsuit in U.S. District Court against Talisman Energy, a Canadian oil company that was operating in Sudan around the same time as Lundin. Talisman argued that the United States did not have jurisdiction, but a federal judge ruled that, in part because the Sudanese government’s actions were considered genocide and because the U.S. government had classified Sudan as a state sponsor of terrorism, a federal court could take up the case. Several years later, however, different judges found that the plaintiffs couldn’t prove that Talisman had purposefully aided and abetted war crimes.

Swedish law contains the concept of reckless intent. Fanny Holm, a legal scholar who has been following the trial, told me that this makes Swedish law different from international criminal law, which contains only direct intent (the perpetrator intended to commit the crime) and indirect intent (the perpetrator was aware that a crime would occur). Reckless intent means, in essence, that the perpetrator is indifferent to a crime that will be likely to occur. The case the Swedish prosecutors are making is that the information was there — in international newspapers, on BBC radio and television and in the memos found in the Lundin office and projected onto the walls of the courtroom. It was there, but executives contracted with the Sudanese government anyway, and this constitutes complicity in a war crime.

On the second day of Barker’s testimony, Wennerstrom asked a series of questions about reports he had received of burned villages, which the company apparently interpreted as a form of traditional farming. Barker kept repeating that he remembered nothing about this issue.

“But with 70,000 people displaced, who would farm under such circumstances?” Wennerstrom pressed, apparently asking Barker to think about the issue now, even if he didn’t think about it 25 years ago. “Who would engage in slash-and-burn agriculture?”

One of the judges let out a laugh, prompting the presiding judge to issue a stern reprimand.

It is as if the Swedish system is designed to underscore that this trial, unlike many war crime trials (including the one Arendt wrote about), is not a show trial. There is nothing showy about it, and the outcome is not preordained. It may be the longest criminal trial in Swedish history, and it may be legally novel, but it is a very normal trial of some very normal people. The Nuremberg trials showed us that normal people can commit war crimes for normal reasons, such as wanting to make a profit and to keep their jobs. What hasn’t been normal is to see them held accountable.