 All right, we're back, we're live here in Think Tech. We're doing transitional justice here at the four o'clock block with our old friend Nicholas Sussman, Iran. Welcome to the show, Nicholas. Always nice to see your smile and face. Hi, Dave, thank you so much. And it's always a pleasure to be here. Nicholas joins us from Columbia. And we talk about Project Expedite Justice. We talk about atrocities and war crimes. And we talk about today, we talk about the case of London Energy. It seems like a Swedish prosecutor recently indicted the chairman and CEO of London Energy, which is, what, I guess, in Sweden, for London to spell L-U-N-D-I-N for aiding and abetting in the commission of war crimes in Sudan back in 1997, 2003. And we would like to know more about that and find exactly what the trend is here. I have to say it reminds me of a visit we had here in Hawaii from a woman who was teaching economics at MIT. And what she said, and I'm sure this is good father for our discussion, Nicholas, what she said was, you've got to follow the money. If you measure the amount of inter-company, inter-country payments in the world, that's a certain dollar amount. But if you measure the amount of intra-company payments, multinationals and the like, doing business in other countries or globally, that's way more. Money is power. And so from a global point of view, money is power. And we have to look at that in terms of dealing with what they do globally and how they get in trouble, how they violate morality and war crime laws. So Nicholas, tell us what happened in Sweden. Tell us what happened with London Energy. Right. So as you said, London Energy is a Swedish corporation. They have been in the energy sector since forever. Oil, petroleum. Now energy in a broad sense. And their history in Sudan, actually in what today, South Sudan, but the place now is located in South Sudan. But when the crimes were committed, it was in Sudan before it split into Sudan and South Sudan. Right. So this is a case that has been on the radar of the Swedish prosecution since around 2010 for their aiding and abetting of this war crimes. Right. So the Sudanese government since 1989, when former president Omar al-Bashir conducted a coup and then decided to establish his government, a heavily military-oriented government, radical, allied with some paramilitary forces, and so on, and committed a wide range of atrocities all around the country has been in that business. And foreign multinational corporations have not been, well, foreign to these things, right? Sudan is a country that has oil, that has gold, that has a series of resources, and the government way of getting funds for itself and also to profit itself because it has been demonstrated that the Sudanese government during the coup was dealing with enormous amounts of corruption, decided to grant concessions for oil, for gold, for different type of resources. The case of London was in a place called Area 5A, Block 5A is the name. It's located in the north part more or less of South Sudan, and it's an oil concession. It was found by Chevron, and then they stopped exploding that because it has a heavily contested area, right? It has always been contested between the government, who hasn't managed to control it, and, well, rebel forces that also want to have control, to control over the area, and the civilians are just in the middle, right? So what happened in 1999, 1987, more or less, when London was granted this concession with other corporations is that they needed the area to be secured to start their operation, right? And what they did through a series of actions and decisions was tell the government, you know, if you want us to explode this place, if you want us to pay, well, the fees, we have to do it for exploding the concessions, and so on, it's your responsibility to clear the area so we can do it, right, to guarantee security. And they already knew about the human rights track record of the Sudanese government, or that is what the VNGO that brought the claim and the prosecution, the Swedish prosecution, said is that they knew it has been more or less 10 years since the government of South Sudan have been doing that, and it was wide known that they did this type of things. So if you ask for that clearance, if you ask for security, if you ask for all type of things, what you were actually asking them was to conduct an operation to clear the rebels, but also to clear the civilians, right? And that's the core thing under international humanitarian law that is like the mirror area of the law of war crimes. Civilians have to be spared from conflict. That's the rule, you cannot kill civilians, you cannot directly target civilians, and even if they're collateral damage, you have to restrict that and be very cautious about it. So overall, through all of these requests to clear the area, to guarantee security, and so on, what London was doing was to some extent endorsing the government to conduct these operations and either ignoring the human rights violations record of the government, or actually assuming the risk of those human rights violations, right? So it could be like some disregarding for the record or even an assumption of that costs to achieve it. And that's the core element of the case for the Swedish prosecution under their standards of criminal law, either of these two ways are sufficient to prove some sort of intent. So yeah, that's the case and the case have been in investigation since 2010. All the proceedings have been going on and finally the vain document to place earlier this year against this former CEO, now member of the board and another high ranking officer. And it's going into trial in early 2022 that is the expectation. Well, I guess we're looking at the potential, potentially good outcome here. How does the case look going forward? You think the trial will be a successful prosecution and what will happen in the courts of, I guess it's the courts of Sweden, right? Right. So I can only tell you what you see online and what's open source. And as a good lawyer, I know that you can only say an outcome based on the evidence, right? But it seems that they have very strong evidence while knowing how prosecutors work, also knowing that as a prosecutor when you face such a big case, you don't want to step forward unless you have evidence, right? And I was reading a bit about the Swedish illegal system today just preparing this because I'm not an expert, of course, on that. And prosecutors have the obligation to go into trial if they have the evidence. There's no discretion as it could be in other systems and then so on, they have the obligation. And again, considering the reputational risk and even the financial risk in a lawsuit for improper prosecution or whatever, you could say that the case seems strong. Also, they have had several rounds of appeals and complaints throughout the process, like building up to the trial and looting has lost in all of the scenario. So it seems that the case is strong, although they haven't had the chance to actually look at the evidence, right? But there are things that tell you that it could be strong even for this type of cases, they have to ask for permission from the government to do it and the government gave permission. So you could say that if even the Swedish government is willing to assume this risks before one of its big corporations and so on, the case should be solid. But it's pure assumptions, but you could say so and it's just the final step that's missing. How did this case get started? I mean, I suppose some human rights organization maybe like Project Expedite Justice finds out that this was happening in Sudan. They investigate, they get documents and they deliver the product of their investigation to the prosecutors in Sweden. And the prosecutors say, hmm, this involves the Swedish company, we have to take action. And they take that information, validate it and prosecute it. I mean, I know this is compressing a 10 or even a 20 year process into a few words, but is that what happens at least in a case in Sweden? And I'm really interested in the point that once faced with prosecutable, evidence of prosecutable crimes, the Swedes prosecute or must prosecute, he doesn't have the discretion. And that avoids the political experience, the political choice making, the political pressure that will happen in other countries like the US, okay? Am I right about how it gets to the prosecutor? Yeah, absolutely, absolutely. And you would say that this is the only way in which this universal jurisdiction cases get there, right? It is uncommon for domestic prosecutors to reach that far. So usually it's precisely as the situation, a human rights organization, when discussed with the victims, with the stakeholders gathered evidence that they could do it because it's easier to do it when you're a private entity, such as NGO or you're directly with the victims, if you were an unofficial mission, you would utter the Sudanese or the South Sudanese in this case government. So precisely they created, they collected the evidence and then they delivered it to the Swedish prosecutors and then they decided that it was enough to move forward. They cross-checked everything, conducted a couple of interviews on their own and then decided to move forward with the case. From an example, from the vantage of, call it Swedish law and practice and culture, you know, and when I say governmental perception, why is the Swedish government interested in doing this? Because, you know, they're not making friends with London Energy for sure, or the friends of London Energy or the average Swedish person on the street. Why have they taken this burden? Aren't they affected at least by public opinion that might be to the contrary? I mean, isn't that the Swedish people, the Swedish government, the Swedish culture is outraged by stories of human rights violations to the point where there is no choice for anybody, but to take up the prosecution against this big Swedish company. Well, I would say precisely that, of course they're going to have to, to assume the reputational risk, they impact the public opinion and so on, but precisely as you were saying, the legal structure of the system forces the prosecutor to move forward with the prosecution if there's evidence. So the political decision is not on them. For this foreign case, as I told you, there's a requirement to ask for permission from the government, but first there's, these are countries that have a very high standard of law, right? So I think that when you're based there and you're an executive government official, facing that the legal judicial requirements are there, deciding to halt the investigation at that point would be an undue interference into the, into the tasks of the judiciary, right? That's the first thing. And the other thing is that precisely because of that, because of the requirements that the judiciary has the prosecutor in this case, it would be very evident that your decision is political, right? And that you're making a political decision before a case of gross human rights violations of war crimes. And you would be in a sense also be trampling your own international human rights obligations because war crimes are what international lawyers called customary law. They're enforced by everyone. Everyone has to prosecute them. The countries have the task to prosecute their own individuals or extradite them for these purposes. So there's a lot of legal restraints on the government that require them to do it. And these are countries with a very strong and a very solid human rights record, right? So maybe when you balance the outcome, it's better to protect your human rights record than to protect the company. And then comes the trial, right? So even if you're going to trial, there's still a lot to do. And you're not making a decision as government there. That's on the judge's shoulders. So what you've described is commendable on the part of the Swedish institutions. And for that matter, the Swedish government and public, we should only have the same view of things and view of the rule of law here in this country right now. But at the same time, it strikes me that what happened in Sudan with London energy is really egregious. They knew this was going to result in war crimes. They were party to what happened and to the deaths of many people in order to satisfy some, what do you want to call it? Some corrupt mentality, a corrupt corporate mentality. And you wonder, I mean, Sudan is one place, but you wonder if they were doing business in other places in Africa or elsewhere in the world in developing countries where they're doing precisely the same thing. You know, you have a security problem, you go to the government and you make an arrangement, which it happens to be a war crime to do that, to have civilians killed so that you don't have any security problem anymore. I'm wondering if there's been any news or expectation that London will be found to have involved itself in the same procedures, in the same violations in other countries in Africa or elsewhere. Is it just limited to Sudan? Well, on my research for this, I didn't find anything else, although the situation is not uncommon not only with London, right? But with many corporations worldwide, because as you mentioned earlier, the dynamic is the same, right? Global South countries are full of resources, they want foreign investment, they struggle with rule of law issues, even with conflict and so on, and the resources are just there. There's no local corporations or they're not as profitable as the foreign ones, so that the foreign ones get the concessions and then, well, it's a cycle that repeats itself, right? So because as a global South country, you want to keep your investors happy, right? So they will keep investing and like the narrative is that that will bring development, that will bring wealth, that will get you out of development, but then the dark side that no one is looking at is that this is gonna be expensive for the local communities, right? That are expelled, that are targeted, that are evicted, that are dispossessed because London is one of the cases, right? And there was conflict, right? There was a rebel group there, but in many cases there's no rebel groups, there's just, I don't know, other communities and they're just in the way so they are removed because the concessions were very granted and the government didn't care, they didn't ask for, yeah, just, they took care of the population, right? What is it about Sudan that gets Sudan in so much trouble? You know, it strikes me that what you said is very important. They have resources and they have a dictator at the time by the name Bashir, they still have government problems, obviously. And he was a really bad guy into corruption. So you have resources that make people wealthy and you have corruption and thus a weak institutional government. And then you have a foreign corporation that wants to come in and seize this opportunity and does it, but Sudan's not the only place like that, but Sudan seems to be special, no? It's got a special mixture of valuable resources, corruption, bad leaders and thus it's a good target for companies that want to go off the side like London. Am I right? Yeah, no, I think it's precisely that, it's precisely that. And you have a government, well, you've had a government that didn't actually care about like keeping good impressions even, right? So they granted the concessions, they were full of conflict, they were an ethnic-based conflict, right? So they clearly differentiated groups of people based on ethnicity and there were ethnicities that under review were just expendable. So they didn't care to do what they needed to keep enriching themselves because there are studies by other NGOs that says that Sudan at the time of Bashir conflict with all the elements of what we collect, but talk, right? So it's a group and the lead, a small lead that use violence, human rights, violations, corruption, crime, et cetera to gain power legally or illegally, in this case illegally from the coup and then they use the violence to first, keep themselves in power, second, to learn a position and third profit themselves from the country, right? So there's no differentiation between the government and the personal belongings and property and so on. And they just use the state and the government to enrich themselves and engage with this. Well, in these activities with local corporations or even international corporations, we're just wanting to have an in into the country and to be honest, all of this human rights and business, business and human rights, ethical standards, due diligence is not as old as we would like it to be and not as enforced as we would like it to be although we're making progress there, of course. Well, one thing that strikes me is that corruption leads inevitably to human rights violations and violence, especially where there's money involved. Corruption is a few people getting rich at the hands of everyone else and in order to maintain their power to enhance their wealth, they do things like this, including corporations. So I guess there's two solutions just logically. One solution is to have a strong, responsible, not corrupt government. So that if you can suppress the corruption, then this whole process is suppressed and then when some multinational like London Energy comes in, you can manage them. You can manage what they do. You've got, but you've got to have a strong, responsible accountable, fair-minded humanitarian government there. And Sudan doesn't have that. It didn't have it then and it doesn't have it now. So it remains vulnerable to this kind of attack. I see it as an attack by a multinational who wants to make money and will use these techniques. And the other thing, of course, is what's happening in Sweden, the prosecution. So obviously it's best to have both of those things working, a strong government, a responsible government in the country like Sudan, which you can't always have and the prosecutions, which you can't always have. So I'm wondering what you see as the more successful of the two possible approaches. And I'm wondering where the United Nations would be in the International Court of Justice. Why isn't this case pending there? Why Sweden instead? Do we have a global arrangement or a global institutional organization or system to deal with this? On both sides of the coin to help a country that needs help. So it has strong institutions and to punish war crimes in a systematic international way rather than just the country of Sweden. Right, right. So on the United Nations and the International Court just decided and so on. So we have two issues from the side of the United Nations. Their capacity to enforce things and so on is very limited, right? And that's not the fault of the institution or such but of the states that made it to be extremely limited, right? Yeah, I always say that the UN is like a party and if the party is bad many times you have to blame the guests, right? Not the party itself, the party is about the guests. So that's the thing. And there have been some developments like business and human rights principles and things like that. But first, well, the states are the ones who are here before the UN and they don't want anyone meddling that much with their own companies. So these principles are not legally binding, they're important, but they're just advice and recommendations and so on, right? And regarding the International Court of Justice it only allows for country to country complaints, right? So you would have to have, I don't know, Sudan or South Sudan or any other country bringing Sweden to the International Court of Justice for the breach of international obligations. And there have been a couple of cases regarding human rights before the International Court of Justice but these cases are very long or very complex trying to link the act of the company to the country and then to international violation. It's very complicated, right? So you're going to have a lot of expectations for justice that could take too long to arrive if it does at all. And then how this will reflect in consequences, right? Because what do you have at the International Court of Justice is just state liability and some orders of reparations perhaps and so on. But for the victims, you don't have that much, right? Then you can start saying, okay, let's look at the International Criminal Court, for example, that's another option. It has more to do with war crimes. It has individual liability and so on. But then the way in which the ICC works is complicated. South Sudan does not belong. Sudan does not belong. There was a referral by the Security Council but it's very limited to the Darfur region. So you start having a lot of jurisdictional obstacles since the first one and the second operational obstacles, right? We think this courts because they're international, they have a lot of power, they have a lot of budget and that's not the reality. They're severely, severely limited, right? So that's complicated. Actually, I think that this domestic prosecutions can be a very good option for accountability. Domestic systems have much more capacity than international courts. They can deal with individual cases in an easier way. In the case of London, for example, they have jurisdiction over the Swedish prosecution and courts have jurisdiction over other people. And ultimately, the responsibility for human rights protection and prosecution of international crimes always relies first and foremost on states. So I think this is good. This is not entirely bad. And they have much more enforcement capacity, right? They can seize goods. They can issues of penis. They can do a lot of things that maybe the International Criminal Court, International Justice cannot do. So that is good. Let's move to that. Because let's take a country that ostensibly was or could be or maybe to some extent is a world leader. Let's take the United States, which is the birthplace of the United Nations and the Marshall Plan and sort of a moral leadership. Let's take the United States. And let's assume, which I think is probably a good assumption that London Energy also does business here and has resources and assets and banks on Wall Street right here. And let's take a country that at least has a court system. Could this prosecution have taken place in the United States? Should it have taken place in the United States? If you were a prosecutor or an investigator for that matter, would you bring this case to the United States? Well, you have options in the United States, right? The relationship between the United States and international law is a bit different that it is in the rest of the world. You have a different incorporation model of international law, other countries rather incorporated and find ways to apply directly in their own system or create incorporation laws and so on. The U.S. is a bit more complicated than that, right? And it's for a reason. It's to protect itself for international intervention and to be too vulnerable to international things. Nonetheless, that is a defensible reason. I remember there was a case somewhere in Africa, maybe it was Sudan also, which might have gone to the courts in the U.S. but instead went to the courts in France, which had a more receptive set of laws for that kind of war crimes case, more receptive than the United States. We don't seem to care about war crimes as much as France does or Sweden. So, Query, don't you think we could be doing more? They could be more options, absolutely. And of course, when you have the U.S. legal system on top of you as a corporation, you're going to be more afraid than that. But there have been also good examples of not directly prosecutions, but lawsuits against corporations in the U.S. for this type of things. And there you have like two big options, right? The first one is civil liability tort law. And you have the alien tort statute and another series of statutes that have been used for similar cases, aiming for reparations, right? Usually they end on settlements or monetary compensations that it's arguable if that is the right decision to go for. But at the end, at least you have funds, right? You have money to give to the victims and maybe that's better than having the CEO in jail. That's an option. And the other option that the U.S. has and has become pretty popular and also imitated by other countries or sanction regimes, right? So it's more than administrative law and it's like U.S. registered corporations or corporations in the U.S. that do business with corporations in other countries that are involved in this type of international crimes, torture and so on, could be, you could bring a complaint before the sanctions regimes and you have the OHAC system or the Magnitsky system. And then you more or less blacklist this corporations. And of course that has a huge impact on your... Yes, oh yes, right? Well, on that same notion, and I was mentioning before this MIT professor came around to Hawaii and made the point, which I think is a really important point, is that it's the money that counts, follow the money. So if I have a multinational like London and there's so many multinationals that escape taxes and do all kinds of things that are embarrassing, a criminal prosecution, such as the one going on now in Sweden with the indictments and criminal trials may not be the best solution. A civil action with like treble damages or punitive civil damages might be a better option because A, the stockholders are going to say and they're interested in the bottom line is what happened here? How come we just lost $10, $20 billion over this case? Somebody isn't managing the company right. Let's look at our directors. Let's look at our officers. Let's look at what they're doing and let's either replace them or discipline them in some way and let's fix this. So you have all this pressure by the stockholders when they realize that the object of their investment is going off the rails. So I don't think that's gonna happen in the Swedish case. Maybe somebody are going to jail, but it's not the money. Wouldn't it be better? Don't you think, Nicholas, if it was the money? Yeah, no, I agree with that and with two extra elements. The first one is that, well, you have to prosecute or to bring some sort of accountability in the home countries of this corporation. They're very good at creating subsidiaries and creating an unorganizational structure to avoid accountability in global South countries. That's the first thing. So you have to go for the home company and use that in their favor. And the other thing is, and also, because the degree of evidence you need to prove this until civil liability is way lower than criminal law, right? Yes. Although you're beyond reasonable doubt here, you can be before preponderance of evidence or it depends on the standards. And also when these companies go to the global South, the imbalance in power even before the governments in the global South is huge. It's huge. So many times the governments have to get into many things. Not that that excuses them, but making them accountable at their own countries has a different impact, right? They're not going to fear prosecution in Sudan, it would ever happen. But if you have that in the US, in Sweden, in Europe, well, the thing is different, right? So there are a lot of extra elements that have this impact. And of course, when you get the money, the thing is much more complicated, right? And they care much more about it. Yeah. Let me go to the last thing I wanted to ask you about and that's this. It's just maybe my observation, you're closer to it, but seems to me that in sub-Saharan Africa, we have an increase in governments that are failing, failing to meet the needs of the people. I mean, Sudan is only one example. There's Ethiopia, there's Somalia, there's Wanda, and to some extent, the Congo, I don't know how many others. And it seems to be a kind of dynamic here, a trend. And every time you have a failed government, especially in a country with resources, you have the possibility that the London energy scenario will repeat itself right now. Second of all, you have multinationals who like to be unaccountable. They like to operate under the radar and do this kind of corruption and not say anything and make lots of money. So my question to you is, and of course, the United Nations and the International Criminal Justice has lots of burdens. As you said, it's complex to actually reach justice. The Swedish case is notable because there's a fair chance we're gonna reach justice and it will have an effect on London. All that is good. But Query, are we winning this game or are we losing this game? Where is it all going? Where is it all going in developing countries, not only in that continent, but other continents like Latin America, your continent? Are we doing better or worse? Should we be concerned that we have a decline of moral business? Actually, I would say we're improving. Usually I try to be more negative because that's the trend in many cases, but the rise in universal jurisdiction, the creation of new sanction regimes, even the bringing of lawsuits in the home countries of this corporation is actually taking us into a better direction. NGOs and victims organizations that are being much more pragmatic in their approach to these cases. And that is great. That is great because, yeah, you have London, but a couple of years ago, you also had a case against Shell, Shell in the Netherlands for polluting the lands and rivers of a community in Nigeria if I'm not mistaken, and they lost the case and they had to pay a lot for that. So I think if this keeps going on and this companies understand that they're assuming a bigger reputational financial security risk because that's how you operate as a company. You risk analysis, you look at the trade-off and then you decide. If you see that you're going to start losing and your risk is going to increase because you're not going to be able to escape that much, then the thing will improve and the trend legally is that it will improve because there are more systems being created. At first the US had the Magnitsky system and that no fuck. And last year, the United Kingdom created a similar one. The EU created a new one. Australia created a new one because usually what these corporations do is that they try to escape the forum, right? So they're not registered in the US anymore. They go to Ireland or they go to Australia or they go to other countries. So the more countries that create this type of laws and regimes and so on, the more narrow space they will have to maneuver, right? And escape accountability and at the end being accountable, doing proper due diligence, not engaging in this type of behaviors, mitigating the risks and so on is going to become a good business decision. Yes, well, I want to ask you one last thing. I can't resist. There's another constituency here and that is the stockholders themselves. All these multinationals are obviously public companies. They have stockholders. And I think a lot of stockholders just clip the coupons. They don't really watch for the impact of what their company in which they own the stock is doing. And it seems to me there's an obligation now. It's not, it's more than it was before. We've been talking about impact investment for a long time but it seems to me that the stockholders got on board either individually or in groups and took steps to make sure that the company was doing the right thing or not doing the wrong thing. We would have another control point on this kind of war crimes problem. Is this happening? Do you agree? I agree that that should be done. I didn't know how detailed they go into this and that. And that's something that honestly I haven't looked into but I totally agree. I totally agree. And that would be even better, right? That would be much, much more better because then you have control from the top and then if the stakeholders associations, the assembly says like, you cannot do this. These are no-go zones. And again, it does not have to be out of moral compass. We would like it to be, but then it has to become, we have to get to a point where violating human rights has to become bad business, right? And maybe all of these cases and so on should drive into this and maybe the stakeholders should look at it because very big corporations are falling now. They're not looking like mid-range corporations. Lund is huge, Shell is huge. In the US a couple of years ago, Chevron also lost a case. There are cases against Nestle for their chocolate extraction practices and so on, so big corporations. So maybe this should send a message to the stakeholders to see if they do something. That would be the best scenario, of course. But I don't know that much is being done. Maybe in a couple of years we'll see that impact and it would become a concern in the risk analysis programs and so on. So the Swedish case does reveal practices that are really awful. At the same time, the discussion with you today does provide a little optimism for the future. And the discussion itself, not only with you and me, but other people and NGOs involved and investigators and prosecutors, it's all good. And hopefully we'll be able to bring, I shouldn't say we, but they, you, we'll be able to bring the world together to focus on this so that it goes in the right direction. Thank you so much, Nicholas. Nicholas Sussman, really appreciate you participating in ThinkTech and your discussion on these points. Thank you, Jay. Always a pleasure. Aloha.