From 27-29 November, the United Nations in Geneva will host its 12th annual U.N. Forum on Business and Human Rights. Essex Law School scholars Drs Jessica Lawrence and Tara Van Ho and Professors Sabine Michalowski and Clara Sandoval will attend to share their work and insights in the field.

In addition to hosting an event for our Alumni, Professors Michalowski and Sandoval and Dr Van Ho will speak at side events, focusing on issues arising from business operations in conflict-affected areas.

Professors Michalowski and Sandoval will address a side event organised by the Colombian Mission on the potential of securing accountability for business actors by that state’s Special Jurisdiction for Peace (JEP). They will join Roberto Vidal, a member of the JEP. This event, titled “Accountability of economic actors for grave human rights violations as part of transitional justice processes” will be delivered in English on Monday, 27 November from 11-12.30pm in Room VII at the Palais des Nations.

This year, Dr Van Ho will speak at a side event organised by Pax for Peace and Swedwatch on the controversial corporate merger and acquisition of Swedish company Lundin with Norwegian company Aker BP. The event is taking place on Tuesday, 28 November from 10:45-12:00 GMT (11.45-13.00 CET).

The remainder of this post will address the controversy of the Lundin-Aker case and information about our alumni gathering in Geneva.

Allegations of war crimes by Swedish company Lundin 

Non-governmental organisations and victims have long alleged that Lundin was complicit in war crimes committed in Sudan between 1998-2002 (the location is now located in South Sudan following the state’s 2011 independence). Allegedly, Lundin asked the Sudanese military to ensure the security of their oil field with either knowledge or indifference that this would result in the commission of war crimes.  

In 2010, Swedish prosecutors opened an investigation into the allegations. Under international law, statutes of limitations should not apply to war crimes. On 11 November 2021, Swedish prosecutors charged the company’s then-Chief Executive, Ian Lundin and its former vice president, Alex Schneiter, with complicity in those crimes. Both the company and the two men deny the allegations. After a challenge from Schneiter was denied by the Swedish Supreme Court, the case was scheduled for trial, which began earlier this year. 

As Dr. Van Ho has previously discussed on the prominent international justice podcast Asymmetrical Haircuts, transnational criminal prosecutions of corporate executives for war crimes remain rare, despite a large number of significant and well-substantiated allegations against multinational corporations. 

In 2014, Dr. Van Ho published her chapter on the rarity of successful corporate criminal prosecutions for human rights and humanitarian law violations in conflict-affected areas and oppressive regimes. Since then, the landscape of corporate criminal prosecutions has not significantly changed, making the Lundin case the most significant prosecution of corporate executives since the Nuremberg trials.  

The 2014 piece was only one in a series by Dr. Van Ho exploring the responsibility of corporations for terminating and remedying human rights violations committed in the context of conflicts. She now has a grant from Open Society Foundations for a study into the business responsibility to remediate international crimes, including war crimes, and the standards businesses should apply when exiting a conflict-affected area.   

The controversial acquisition by Aker 

On 21 December 2021—approximately five weeks after the Swedish prosecutors announced its charges—Aker announced its acquisition of Lundin, to be carried out in three stages starting in July 2022. The merger allegedly leaves just enough assets to cover any criminal fines levied as a result of the prosecutions but would deny remedies to Sudanese and South Sudanese victims.

Those victims were expected to make civil claims against the company following a successful criminal prosecution, a common practice in civil law states that both reduces the potential of conflict civil and criminal judgements as well as the costs and risks victims must otherwise undertake themselves when litigating a civil claim against a large multinational company. The arrangements for the merger and acquisitions also appear to include a clause indemnifying Aker from any further claims brought against Lundin as a result of its actions in Sudan.  

In other words: the acquisition appears to deny the South Sudanese victims of war crimes an opportunity to pursue their right to an effective remedy. 

A Panel Discussing the Effort to Secure Justice 

In response to the merger and acquisition, 8 South Sudanese and European NGOs have filed a complaint before the OECD National Contact Point in Norway alleging Aker BP failed to adequately conduct the human rights due diligence expected of the company under the OECD’s 2011 Guidelines for Multinational Enterprises.  

Dr. Van Ho has a forthcoming book chapter, co-authored with Dr Eugenio Vaccari of Royal Holloway, on the need for human rights due diligence during corporate insolvency proceedings, a topic intimately related to the denial of remedies through corporate mergers and acquisitions. She has spoken with Dr Vaccari and others about the issue of remedies in corporate insolvency proceedings as part of the INSOL International podcast. 

In Geneva, Dr. Van Ho will discuss the intricacies of this case, focusing on how the right to an effective remedy should factor into mergers and acquisitions and what both the prosecution and the OECD complaint should tell us about the state of corporate accountability in the context of conflict.  

While in-person capacity in Geneva is limited, the event will also be live-streamed and you can register to attend the event here.