Report 2: First week of the long-awaited Lundin Oil trial is now completed

Gavel on a dark background

Last week, the initial three days of the main trial proceedings were concluded, in a case scheduled to extend for a minimum duration of two and a half years. Ian Lundin and Alexandre Schneiter face charges related to their alleged complicity in war crimes. Specifically, they are accused of promoting the Government of Sudan’s use of warfare, which entailed systematic attacks on civilians, or at least, indiscriminate attacks between 1999-2003. The purpose of this report is to provide an overview of the charges outlined in the indictment and the defence’s stance on the substantive aspects of the case.   

The long-awaited Lundin Oil-trial began last Tuesday at Stockholm District Court. The presiding Judge Tomas Zander has previously overseen the trial against an Iranian citizen suspected of participating in the mass executions and torture of political prisoners in Iran in the late 1980s (read more here). The trial is scheduled to extend until 2026. After the prosecution and defence have had the opportunity to present their respective cases to the court, the parties have called for a substantial number of witnesses to testify. One notable example is former Swedish Prime Minister Carl Bildt, who is called a witness in relation to his role as a member of the board of Lundin Oil between 2001-2006.

The tension outside courtroom 34 at the District Court in Stockholm was palpable on Tuesday as the trial’s scheduled starting time of 9:30 approached. Gatherings of activists and representatives of Swedish and international media waited in tense anticipation for the lead defendant Ian Lundin to arrive. By 9:45, he had still not made an appearance.[1] Only a pair of black dress shoes were visible beneath the weighty oak screen the court had put up outside the courtroom to shield him from public view. When Ian Lundin finally emerged, he gave a short, prepared statement to the assembled press and accredited members of the public. His words were marked with confidence as he reiterated that the accusations against him were completely false and that the company had always operated on the highest ethical standard. “We look forward to defending ourselves and we believe that we will receive a fair trial,” Ian Lundin stated before he entered the courtroom.

The indictment

The trial commenced with the prosecutors presenting the indictment against the defendants. Ian Lundin and Alexandre Schneiter are facing charges of aiding and abetting international crimes. To establish this, the prosecution must demonstrate that the Sudanese government carried out attacks on civilians, or at least indiscriminate attacks, and that the defendants promoted this method of warfare, with the knowledge of its criminal nature.

The prosecutors began by providing some background information on the case. From 1997 to 2003, the Republic of Sudan experienced a protracted non-international armed conflict involving the Sudanese Government and certain regime-led militia groups and opposing rebel groups, most notably the Sudan People’s Liberation Movement/Army (SPLM/A). On 6 February 1997, Ian Lundin acting on behalf of the Lundin Companies, entered into an Exploration and Production Sharing Agreement (EPSA) with the Government of Sudan. Alexandre Schneiter was also present at the signing ceremony. The purpose of the EPSA was to grant the Lundin companies concession rights to extract oil within a geographical area designated as Block 5A, in exchange for certain fees and future revenues to be paid to the Sudanese government. The exploration and extraction of oil was to be conducted through a consortium, with Lundin Petroleum AB’s subsidiary, Sudan Ltd as the operator. Lundin Petroleum AB was a successor to Lundin Oil AB following the sale of a large part of the business to the Canadian company Talisman.[2]

The prosecutor asserted that Ian Lundin and Alexandre Schneiter, through their respective roles in the Lundin companies had a decisive influence over Sudan Ltd.’s operations in Block 5A. The prosecution argued that their cooperation with the Sudanese government promoted the regime’s unlawful warfare, which was allegedly carried out to secure the company’s business venture in the area.

The Government of Sudan and militia groups led by the regime engaged in illicit warfare

On April 21, 1997, the Sudanese government and several militia groups entered into the Khartoum Peace Agreement, encompassing regions in southern Sudan, including Block 5A. The prosecution alleged that the rebel group SPLM/A did not enter into this agreement, a point contested by the defence. Nevertheless, the agreement governed the allocation of future revenues arising from oil extraction. Consequently, the prosecution holds that the conflict in southern Sudan from that juncture, also revolved around the control of prospective oil extraction. The prosecution asserted that the Sudanese government and the militias led by the regime conducted offensive military operations to secure control over oil exploration areas, resulting in the killing and displacement of civilians.  

The indictment centres around five military operations conducted by the Sudanese military and regime led militia groups in or around Block 5A between 1999-2003. According to the prosecution, these military operations were necessary to create conditions for the planned activities of Sudan Ltd. in Block 5A, as the government did not exercise prior control over this area.

During these five military operations, the Sudanese government and regime led militia forces engaged in warfare which included aerial bombardments, the use of attack helicopters and multiple ground force offensives, killing and injuring civilians as well as resulting in massive destruction of civilian property and civilian displacement. The prosecution holds that unknown perpetrators from the Sudanese government and military, as well as regime-led militia groups, through this warfare committed serious violations of international humanitarian law.

Ian Lundin and Alexandre Schneiter’s Alleged Promotion of Illicit Warfare

The prosecution maintained that Ian Lundin and Alexandre Schneiter, whether individually or in concert, promoted the Sudanese government and regime-led militia group’s use of illicit warfare to create conditions for Sudan Ltd.’s operations. Specifically, the prosecution pointed to eleven instances where Ian Lundin and Alexandre Schneiter aided and abetted the Sudanese government and regime-led militia groups in their violations of the laws of war.

Between May 3-17, 1999, Ian Lundin made the decision that the Lundin companies should present demands to the Sudanese government asking that the Sudanese military take over the responsibility to ensure the security and establish favourable conditions for Sudan Ltd.’s operations in Block 5A. The Sudanese government agreed to this during a Joint Military Committee (JMC) meeting that took place on June 8, 1999.

Around November 8, 1999, Ian Lundin entered into an additional agreement with the Sudanese government. Under this agreement, he undertook the responsibility to finance and build an all-weather road in an area that was not at that time under the control of the Sudanese military or regulated militia. Ian Lundin entered into this agreement with the understanding that it would result in a series of actions, including indiscriminate attacks by the government forces, with the aim of securing government control of the area in question.

During a meeting in November 1999, where representatives from the Sudanese government and Lundin Oil Consortium members were present, Ian Lundin once again reiterated his request for the Sudanese government to establish favourable conditions for the company’s operations in an area not under the control of the Sudanese military or regulated militia. These agreements followed multiple unlawful offensive military operations by the Sudanese military and regulated militia in Block 5A, according to the prosecutor.

The prosecutor contended that Ian Lundin repeatedly made comparable demands and entered into similar agreements, with the Sudanese government up until October 2002. Lundin Petroleum AB withdrew from Sudan and Block 5A on April 25, 2003.

Alexandre Schneiter is likewise accused of making comparable demands to the Sudanese government during meetings which occurred on October 4, 2000, July 11, 2001, and October 25, 2001. Additionally, he allegedly identified the rebel force SPLM/A as a threat to the company’s operations and expressed appreciation for the Sudanese government’s efforts to establish secure conditions for the Sudan Ltd.’s business activities in the area. The prosecution asserts that these statements were made with an awareness of the government’s involvement in unlawful warfare. 

Alexandre Schneiter and Ian Lundin are also accused of making the decision that Sudan Ltd. should undertake construction of additional all-weather roads. Their alleged intent in making this decision was for the Sudanese government, as part of the preparations for construction, to carry out offensive military operations that could encompass attacks on civilians, or at least indiscriminate attacks.

These allegations will be expanded upon in the forthcoming reports, as the prosecution provides evidence for their claims.

Ian Lundin’s position on the substance of the case 

Ian Lundin denied all allegations. He also opposed the prosecution’s petition for disqualification from engaging in commercial activities. His defence attorney, Torgny Wetterberg, prefaced his statement by expressing his gratitude to the court and then proceeded to outline Ian Lundin’s stance on the substance of the case.

Typically, the defendant in a Swedish criminal trial is simply expected to share whether they deny or confess to the allegations made by the prosecutor. In this case, however, the court granted a request from the defendants for an exception to criminal procedure to allow them to share a more in-depth explanation of their position.

Wetterberg asserted that the defence has two primary concerns with the indictment. Firstly, he contended that the essential facts of the case had been fabricated. Furthermore, he argued that the facts presented in the indictment do not constitute sufficient evidence that the defendants have committed any criminal offence. He claimed that many of the circumstances outlined in the indictment completely lack support in the preliminary investigation, that some have been disproven by the investigation, and that others are beyond the scope of what the investigation can substantiate. An opportunity for the defence to further develop their position and present evidence in support of their claims has been scheduled for November 29, 2023.

As an example of their stance, the defence criticised the maps used by the prosecution to indicate the locations of where indiscriminate attacks supposedly took place. They emphasised to the court that even fundamental data presented by the prosecution in this case should be thoroughly examined and questioned, given the flaws they said were there in the preliminary investigation.

The defence argued that the case should be dismissed on several grounds. First and foremost, the defense claimed that there was no sufficient evidence to prove that unidentified perpetrators from the Sudanese government, military, or regime-led militia groups, committed serious violations of international humanitarian law in Block 5A during 1999-2003. To secure convictions against Ian Lundin and Alexandre Schneiter the prosecution is obligated to establish the commission of an offender under international law by some party. Consequently, disputing the existence of such an offence is an important argument on behalf of the defence.

Regarding the accusations against Ian Lundin individually the defense first restated that Sudan Ltd.’s operations within Block 5A were completely legitimate and in accordance with international regulations. For example, they pointed out that the EPSA agreement referenced by the prosecution was an internationally approved, standardised agreement used by many oil companies globally.

Secondly, the defence contested the claim that Ian Lundin had decisive influence over the Lundin companies. The consortium was responsible for the decision making regarding the business activities of Block 5A, which Ian Lundin did not take part in. It is noteworthy in this context that the defence did not allege that any other individual within the consortium engaged in criminal activity of any kind. 

Thirdly, they refuted the assertion that Ian Lundin, or any representative of Sudan Ltd., ever demanded that the Sudanese military take over responsibility for securing and creating the conditions for Sudan Ltd.’s operations in Block 5A. Instead, the discussion possibly revolved around the prospect of passive protection through the deployment of a guard force. The defence further clarified that Ian Lundin had no knowledge of the fact that the Sudanese government would need to engage in illicit warfare to comply with their agreements. Additionally, they denied that Ian Lundin’s actions had any influence on the conduct of the Sudanese military or regime-led militia groups in any manner.

Lastly, the defence raised concerns about the vagueness of the language used in the indictment.  They left the court – and media – with a fundamental question: “How can you prove something which you cannot define?”  

Alexandre Schneiter’s position on the substance of the case

On the second day of the hearing, Alexandre Schneiter’s defence team had the opportunity to present their position on the substance of the case. Alexandre Schneiter, although perhaps not as widely recognised as Ian Lundin among the general public, is a geologist and geophysicist, who started working for IPC in 1992. IPC would later merge with Sands Petroleum AB in 1997, creating Lundin Oil AB. In 1995, he was assigned to the role of Vice President of Exploration and, in 2002 he was promoted to Chief Operating Officer.

The defence devoted a significant amount of time to describing Alexandre Schneiter’s responsibilities within the company. Their aim was to contest the allegation that Alexandre Schneiter ever had a decisive influence over the Lundin companies. Instead, they emphasised that Alexandre Schneiter spent most of his time in Geneva, working behind a desk, analysing technical data to determine where drilling for oil would be ideal. Furthermore, they contested the claim that the individuals mentioned in the indictment were subordinates accountable to Alexandre Schneiter. Apart from a British consultant, the defence argued Alexandre Schneiter had no company staff reporting to him within Sudan until the year 2002.

The defence chose to dedicate a significant part of their presentation to expound their position concerning point 9 f. of the indictment. This allegation regards statements attributed to Alexandre Schneiter during a meeting between representatives of the Sudanese government and the consortium on July 11, 2001. The defence argued that Alexandre Schneiter never informed the Sudanese representatives of any planned seismic activity in the alleged areas. They emphasised that Alexandre Schneiter never demanded that the Sudanese military create conditions for their business operations in Block 5A. Furthermore, they raised doubts about the causal link between Alexandre Schneiter’s actions during a meeting in Geneva and the alleged war crimes in Sudan. Lastly, they claimed that Alexandre Schneiter never had any intent to aid or abet the Sudanese regime or regime-led militia’s alleged illicit warfare.

The defence also reiterated their stance that the conflict in the region was driven by other factors unrelated to the oil exploration. They contested the notion that a PowerPoint presentation slide shown at a meeting in Geneva could have had anything to do with it. Furthermore, they underscored that Sudan Ltd.’s business operations in Sudan were relatively minor compared to other companies active in the region. Consequently, since the whole company’s effect on the region was so insignificant – the effect that Alexandre Schneiter’s actions could have had on the alleged war crimes must have been completely inconsequential. In any case, the chain of events presented by the prosecution would have been broken by multiple messages to the Sudanese government urging for peace in the region. Finally, they urged that Alexandre Schneiter lacked intent as to the alleged war crimes, since he himself observed civilians living in peace in the region in 2001.

At one point, Alexandre Schneiter’s defence team also attempted to use the time to argue that the preliminary investigation lacked evidentiary strength. However, at this point, Judge Tomas Zander intervened to interrupt the defence. According to the judge, the defence was crossing a line by using the exceptional permission granted by the court to explain their position to pass judgment on the quality of the preliminary investigation before the prosecution had had the opportunity to present it. This would violate the rights of the prosecution and, as such, the defence had to wait.

The defence instead criticised the manner in which the preliminary investigation had been conducted. They highlighted the fact that between 2016 and 2023, Alexandre Schneiter had been suspected of 95 different acts of participation. Notably, of the 62 suspected acts originally stated in 2016, none remain in the current indictment. The defense argued that this should be taken as an indication that the prosecution’s case lacks a solid foundation. In their closing remarks, they stated that the indictment was too vague to ever lead to a conviction.

Orrön Energy AB’s position on the substance of the case

Lastly, counsel for the company Orrön Energy AB had the opportunity to present their position on the substance of the case. The prosecution has petitioned for a corporate fine of SEK 3 000 000 to be imposed on the company, as well as a forfeiture of SEK 2 381 300 000. To prove that the fine and forfeiture should be invoked, the prosecution has to show that the profits Lundin Petroleum AB received were the result of criminal activity within the company’s operations. 

Orrön Energy AB denied any assertion that criminal activities had taken place within the company’s operations. They also disputed the causality between the alleged crimes and the profit generated by the company in Sudan. In fact, they argued that the conflict in Sudan obstructed their ability to conduct business in the region, making it improbable that the conflict contributed to their profits.

Furthermore, Lundin Petroleum AB never actually received any profit from the sale of Sudan Ltd. Instead, the purchase sum from the sale of the company was paid to Sudan BV (a Dutch company), not Lundin Petroleum AB. As a result, the prosecution’s calculation of the profit which Lundin Petroleum AB supposedly earned due to the alleged crimes lacks foundation.

The defence also spent a considerable amount of time disputing the methodology employed by the prosecution to calculate the growth of the profit since 2003. They argued that the calculation lacks a solid basis and represents a purely theoretical example of how profits could have grown within the company. Hence, it was obviously excessive to petition for such a large sum to be forfeited from the company.

Next report

In the next report, we will present a summary of the prosecution’s first week of presenting the statement of facts. The prosecution’s presentation is anticipated to continue until 8 November 2023, and will delve into each of the grounds of prosecution mentioned in the indictment.