On December 30th the New York Times published this piece about an ongoing and fascinating criminal trial of two Swedish oil company executives charged with complicity in war crimes in the Sudan 25 years ago. That article is labeled as an opinion piece but reads like reportage, and is several times longer than the Times usual opinion columns. It is also a good energy-related example of the way our journalism has gotten sloppier in today’s attention economy.
The article tells the story of Lundin Oil, whose late patriarch saw opportunity in war-torn or unstable countries that most bigger oil companies avoided. The Sudanese civil war is the backdrop for its operations in this case. Lundin had a concession with Sudan, and the Sudanese government tasked its army with protecting Lundin’s operations. The army, in turn, committed war crimes of which Lundin officials were or ought to have been aware, according to the article.
In the world of oil companies and human rights this is a depressingly familiar story. Just about every oil supermajor has faced similar or related charges: ExxonMobil in Indonesia, Shell in Nigeria, Total/Unocal in Burma, Total in Mozambique, Chevron in Ecuador, and many more. But the author, a Polk-award winner named M. Gessen, does not mention any of these examples for context, choosing instead (in the 3d paragraph) to analogize the Swedish trial to the Nuremberg trials of German industrialists Flick KG, I.G. Farben and Krupp. Noting that those Nuremberg defendants went free shortly after their trials and “recovered their fortunes,” Gessen frames the case against Lundin Oil as an attempt to “establish that complicity in war crimes can be severely punished.”
Merriam Webster defines “complicit” as “helping to commit a crime or do wrong in some way.” The Cambridge Dictionary definition is broader, and refers to being “involved in or knowing about” a crime or wrongdoing. The Oxford English Dictionary defines it as “being involved with others in something wrong or illegal.” To most of us, Lundin’s founder – Adolph Lundin (yes, Adolph), father of one of the two defendants – looks morally complicit in his indifference to (and willingness to tolerate) the Sudanese Army’s violent methods to protect Lundin’s operations.
But of course, legal complicity and moral complicity are two different things. Under most legal systems, the latter usually requires more than mere association with the criminal act; it requires some form of participation, such as directly employing the perpetrator, directly funding the perpetrator’s crimes, or taking action that facilitates the perpetrator’s crimes. If Lundin did any of these things, Gessen did not report it in this article.
Gessen does report on the testimony of 79 year-old former Lundin engineer named Barker, who was a witness at the trial. Gessen contextualizes Barker’s work in the war zone (in the 9th and 10th paragraphs) this way:
He was an engineer; he had been trained to solve precise problems. The oil lay at a certain depth. Or the rig had to be shut down for a certain number of days because of bad weather. But can you calculate what justice is? Especially after so many years.
In 1963, when Hannah Arendt, in dispatches from the Nuremberg trials, described ‘the banality of evil,’ she was widely misunderstood as trivializing the crimes of which the Nazi functionary Aloph Eichmann was convicted. In reality she was describing the ease with which some people go along with hideous crimes.
It grates on my ears to hear Barker and fellow employees analogized to Eichmann, even if only in subtext.
Years ago, when I was teaching executive education courses to oil industry engineers, I met an engineer who was in charge of team replacing a long pipeline, segment by segment, in the midst of a different violent civil conflict in Africa. As with Lundin in Sudan, one side of the conflict saw the company’s work as the work as the work of their enemies and wanted to attack it. This exec ed student described the team’s work procedures as follows (I’m paraphrasing):
For each segment of the pipeline, my team of 18-20 local workers would first wait for our escort of five policemen to secure the perimeter of the work area. Next, we had an army machine gunner who would perch his gun on the highest piece of ground in the work area. Once that was in place the work could begin.
Gessen reports that Lundin also worked with a dedicated “guard force” to protect its operations, but the article does not implicate that force in war crimes. The two defendants in the Swedish trial claim that they aren’t, or ought not to be, liable for human rights violations committed by local authorities. Gessen describes the defendants’ argument as “similar to that made by the defendants in Nuremberg’s industrialist trials” (17th paragraph).
Does that analogy hold up?
You’d have to do some extra searching to make that evaluation, because Gessen does not describe the indictments against Flick KG, I.G. Farben or Krupp at Nuremberg. So I will.
Flick and Krupp were charged with participating in the deportation and enslavement of concentration camp inmates who were used as slave labor in their factories and mines.[1] I.G. Farben was the chemical company that developed the Zyklon gas used to murder Jews at death camps. The Farben company executives were charged with enslavement and torture and murder of the Nazi’s prisoners, among other things. All of these defendants were convicted of these charges (though acquitted on some others).
If the behavior of the Lundin Oil defendants was as blameworthy as that of the Nazi industrialists, why not say so? I have my suspicions.
Usually, standards of criminal complicity are more stringent than the standards we use to impose moral complicity. And many legal regimes are willing to impose civil liability on relatively blameless defendants sometimes. But they tend to reserve criminal liability for people who not only have a guilty mind, but also undertake a guilty act in furtherance of the harm.
The applicable standard of criminal liability in the Lundin Oil trial is apparently “reckless intent,” one we are told is relatively unique to Swedish law. Gessen cites a legal expert describing the standard as one that imposes criminal liability on people who are “indifferent to a crime that would likely occur.” (It sounds somewhat similar to a controversial and sparingly used principle in U.S. law called “the responsible corporate officer doctrine“.)
By the Swedish standard the two defendants may well be guilty of a crime since they were apparently aware of the violent acts of the Sudanese army. So, such a result could certainly be seen as consistent with the rule of law as it exists in Sweden.
My best guess is that if Adolph Lundin were the defendant none of us would lose much sleep over his conviction. And in today’s increasingly angry and judgy American electorate, many will celebrate the conviction of the actual defendants (if it happens), assuming that they too were enthusiastic profiteers indifferent to the suffering around them. We don’t know if that is the case, because Gessen tells us next to nothing about them or their conduct. We don’t know if they were as morally complicit as they appear to be legally complicit under Swedish law.
Should we care?
In angry, populist times it is easy to rationalize stretching the law to punish those whose actions make us angry. The moral and legal distinctions I am making here are not found in the Times piece, and so they must not resonate with Gessen. The 29th and last paragraph of Gessen’s piece closes with yet another analogy to Nuremberg, noting that that trial “showed us that normal people can commit war crimes for normal reasons …”
Gessen is almost certainly not alone in regarding people like these defendants — people who profit during crises — with contempt, or as the moral equivalent of Nuremberg defendants. We saw similar moral outrage directed at the owners of Zoom, Amazon and other companies that flourished during the COVID lockdowns. This is how our society is evolving as the internet becomes our public square.
I clicked on the Gessen article because as an energy law wonk the article’s presentation of this story makes me uneasy. But I clicked. That’s how the attention economy works. The article is clickworthy, and will be considered a success even though it ought not to have omitted the context that I have added here. Indeed, I don’t think it would have been omitted were this piece published in the Times 20 years ago.
Still, I think interested readers should read the whole thing. To me, it is an example of how the attention economy is eroding journalistic standards. But maybe I am being harsh. Click on it; see for yourself if you agree. — David Spence
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[1] Flick was also a planning collaborator with Heinrich Himmler and a member of the SS.
