Report 7: Part Five of The Prosecution’s Opening Presentation
This week’s proceedings suffered multiple interruptions by the defense and saw several questions and concerns raised by Judge Tomas Zander. Even prosecutor Henrik Attorps received his first reminder to maintain a cordial tone during the proceedings. These incidents will be detailed throughout this week’s report, indicating where possible which parts of the prosecution’s presentation triggered particular reactions from the defense. The report will also cover the material aspects of the prosecution’s presentation, among them the alleged discrepancy between Lundin Oil AB’s external and internal communications, as well as the company’s alleged determination to conduct seismic operations and build a road to Nhialdiu – an area in the western parts of Block 5A which the prosecution hold was controlled by rebel leader Peter Gadet.
“There is Fighting. This is a Faction of African Life”
The prosecution began the proceedings by stating that “Lundin Oil AB never intended to cease operations, regardless of the serious allegations against the Government of Sudan. Lundin Oil AB never carried out an independent, thorough investigation of the allegations. Instead, the company chose to criticize the organisations who voiced concerns about violations of international humanitarian law and human rights and portray a positive image of the oil industry to international and Swedish media.”
In last week’s report, we detailed some of Lundin Oil AB’s responses to the increased allegations against the Sudanese government and Lundin Oil AB’s operations in Block 5A. This week, the prosecution presented additional examples of the company’s responses and described how their strategy for dealing with reports of the Sudanese government’s crimes against civilians developed further during 2001.
To prepare the company for the increased media scrutiny and the risk of losing shareholders, Christine Batruch, Lundin Oil AB’s Corporate Social Responsibility (CSR) advisor, put forward a new CSR strategy for 2001. In this report, published on the 25th of January 2001, she stated that the strategy for 2001 should aim to convince shareholders that Lundin Oil AB was having a positive impact on Sudan. She held that the company’s position was that when Lundin Oil AB obtained the Block 5A concession, the Khartoum Peace Agreement was in force, which was a reassuring factor for the company. She then stated “[T]here is fighting. This is a faction of African life,” denying that the oil companies’ presence had had any effect on the conflicts in the area.
As noted in the previous report, in 2001, Lundin Oil AB started receiving criticism for their presence in Block 5A. To combat these allegations, Ian Lundin appeared on Swedish National Television in March 2001. He was questioned about the accusations made by the UN, Amnesty International and Human Rights Watch, who claimed that civilian villages adjacent to a road built by Lundin Oil had been scorched. Ian Lundin stated: “If that were so, we would have seen, like…burnt villages. Our sources in Sudan tell us a wholly different story.” When asked if this could be because Lundin Oil AB was paying their sources, Mr. Lundin responded that he did not think so.
Furthermore, he discredited Amnesty International and the United Nations, stating that “These organisations do not have access, they are usually not allowed to visit these areas because they have reported negatively about Sudan previously. So, their relationship with the government is bad, and Sudan does not want them to report negatively about the state.” Adolf Lundin, Ian Lundin’s father and a board member of Lundin Oil AB, was also asked about the allegations on Swedish National Television two weeks later. He claimed that the reports from Christian Aid and the United Nations could not be relied upon since they had something to gain from portraying the Sudanese government in a bad light. However, when asked what exactly the United Nations had to gain, he responded that he actually did not know. He further admitted that he had not read the reports himself because “it takes such an enormous concentration to find oil that I do not have time for anything else.”
Lundin Oil AB Invites Media to Block 5A
The prosecution held that to counter the bad press Lundin Oil AB had been receiving, the company decided to invite journalists of their own choosing in the hopes of getting some positive coverage on their operations in Block 5A. After the idea was proposed to Ian Lundin in an email dated the 16th of March 2001, freelance Swedish writer Bengt Nilsson – who had previously visited Sudan in 2000 – was invited to visit Block 5A. On the trip, Bengt Nilsson and Ian Lundin were accompanied by personnel from the Sudanese security service Petroleum Security.
The visit resulted in a short documentary detailing the conditions in Rubkona and Bentiu, two villages in Block 5A under government control. The prosecution began by showing the Court a segment from when the documentary was aired on Swedish National Television, along with an interview with Bengt Nilsson. During the interview, Mr. Nilsson had to respond to concerns regarding his impartiality due to him having been paid and accompanied on the trip by Lundin Oil AB. He stated that since he was a freelance journalist, he had to receive payment for his work but that this in no way compromised his journalistic integrity. However, he did admit that being accompanied by Lundin Oil AB representatives was troublesome, since “that leads to me being seen as a part of Lundin Oil, and Lundin Oil is regarded as part of the dictatorship.”
The sections of the documentary that were aired on television showed civilian women along Lundin Oil AB’s all-weather road stating that they liked the road. In relation to this quote, the prosecution reminded the Court that Ian Lundin and Bengt Nilsson were accompanied by the Sudanese security service.
It also featured an interview with a German NGO employee, who said that: “I can’t see the responsibility of Lundin. I read recently that thousands were displaced to make way for the road – that is not true.” However, the prosecution had also gained access to the raw footage from the interview. They showed sections of this material to the Court as well, after playing the segment from Swedish National Television featuring the interview with Bengt Nilsson and segments from the edited documentary. In the raw footage from the interview, the NGO employee continued speaking, adding: “The government has been bombing and using gunships. They did not do that before [the oil companies entered, eds. remark]. If Lundin pulled out, they would probably stop doing that.”
In the documentary, Ian Lundin could also be seen interacting with child soldiers, as portrayed in this video, which shows excerpts of the documentary. A group of young boys, dressed in military clothing surrounded him, and they engaged in what seemed like small talk. In the documentary Bengt Nilsson addressed these boys as child soldiers, fighting for a militia. After the interaction, Mr. Lundin was questioned about his feelings regarding child soldiers protecting the oil fields. In the version of the documentary shown on television, Ian Lundin stated: “Protecting the oil fields is a very broad formulation. I have children myself, and I find seeing children in this age carrying weapons to be very upsetting.” However, when the prosecution presented the raw footage of the same interview, it became apparent that Ian Lundin had been asked the same question twice, initially responding: “This is obviously very disturbing. What has happened is that they have been taken by the militias which operate in this area.”
The prosecution then chose to show a letter from Ian Lundin to the UN’s special rapporteur, Gerhardt Baum, to highlight further discrepancies between the company’s internal communication and public statements. In this letter, Ian Lundin wrote that there were no checkpoints posted along the all-weather road to Thar Jath. The prosecution claimed that this was inaccurate since checkpoints along the road were shown in the documentary that had just been shown. However, Judge Tomas Zander appeared to disagree with this statement and interrupted the prosecution, stating that he had not seen such a checkpoint in the video.
This prompted the prosecution to withdraw their statement and they instead referred to the previously mentioned “Security and Road agreement” from 1999, wherein the government and Lundin Oil AB had agreed upon installing checkpoints along the road. This did not satisfy Judge Zander, however, who chose to engage in a discussion with the prosecution regarding the contents of the agreement. The disagreement resulted in a proclamation from Ian Lundin’s attorney, Torgny Wetterberg, who stated that: “The prosecution is alleging that we have been lying, and we want the prosecution to take that back.” He claimed that Ian Lundin had been honest with Gerhardt Baum, citing excerpts from the letter which described military troops being posted along the road. He then emphatically added, “The information is demonstrated in the damn letter!” This outburst prompted Judge Zander to intervene and remind everyone that the prosecution and defense are allowed to hold opposing positions. He then urged the prosecution to continue their presentation.
Seismic Operations in Nhialdiu – Points 9 f and 9 g of the Indictment
The prosecution dedicated most of the week to describing Lundin Oil AB’s interest and proposed operations in Nhialdiu, an area situated in the western parts of Block 5A. They alleged that Nhialdiu was a stronghold for rebel leader Peter Gadet during 2001/2002 and thus was not controlled by the Sudanese government or regulated militia. The prosecution noted that the defense has denied that the company ever planned to perform any seismic activity in Nhialdiu. The prosecution, however, maintained that Lundin Oil AB, ever since their establishment in Block 5A in 1997 and up until they left the area in 2003, had had a strong interest in the region, and presented multiple internal documents to prove this.
The prosecution continued to present their evidence in support of points 9 f and 9 g of the indictment. They held that Alexandre Schneiter, on 11 July 2001, demanded that the Sudanese Government create conditions for Sudan Ltd.’s planned seismic activity in Nhialdiu, which was not controlled by the Government or Government-regulated militia. According to the prosecution, he did this by informing representatives of the Sudanese government about the company’s plan to conduct seismic operations in Nhialdiu in 2002.
To prove this, the prosecution showed the minutes from the meeting between representatives from the Sudanese government and Lundin consortium on the 11th of July 2001, referenced in the indictment. The minutes showed that Alexandre Schneiter welcomed the audience and opened the meeting. He then presented the status of the company’s seismic acquisition, relying in part on additional documents handed out to the meeting participants. The prosecution held that in these handouts, one could see multiple instances of operational area MOK being referred to as an area where seismic activity would take place. Through comparison with maps used by the company, the prosecution argued that one could see that operational area MOK was situated in Nhialdiu.
The prosecution then referenced the previously mentioned agreement from May 1999, where Ian Lundin had demanded that the Sudanese military take responsibility for security for all the company’s future operations. The prosecution stated that Alexandre Schneiter at the time of the July 2001 meeting, at least possessed reckless intent as to the methods used by the Government to provide the agreed upon security, in that he was aware of the risk that the Sudanese military was using illegal methods of warfare and was indifferent to this risk. The prosecution then presented multiple internal documents that followed the meeting on July 11th, 2001, sent by and to Alexandre Schneiter, which detailed the ongoing preparation for seismic activity in Nhialdiu.
Following this description, the prosecution then moved on to detailing point 9 g of the indictment, which accuses both Ian Lundin and Alexandre Schneiter of aiding and abetting the Government of Sudan’s war crimes by once again demanding that the Government create conditions for the company’s operations in Nhialdiu. This was done through Alexandre Schneiter presenting the proposed work programme for 2002, which included the aforementioned seismic activities, to the Government. According to the prosecution, Ian Lundin’s complicity stems from him having approved the contents of this work programme.
To prove this, the prosecution showed minutes from a meeting between the Government of Sudan and the Lundin consortium on the 25th of October 2001. These showed Alexandre Schneiter requesting the Government’s approval for the 2002 Work Programme, which, according to the prosecution’s analysis of handouts used during the meeting, included performing seismic activity in Nhialdiu.
The prosecution reiterated that the issue with conducting seismic activity in Nhialdiu was that rebel leader Peter Gadet was in control of this area. They alleged that in order for the military to fulfill the May 1999 security agreement, the Government would first have to gain control of Nhialdiu before seismic operations could be conducted safely. Furthermore, they maintained that Alexandre Schneiter and Ian Lundin were aware that the way in which the Government took control of such areas included indiscriminate attacks on civilians. The prosecution noted that they would show that, following the approval of the work programme, the Sudanese military initiated offensive military operations in Nhialdiu in December 2001.
The prosecution then continued by presenting evidence of events that took place in 2003. However, they were once again interrupted by Ian Lundin’s defense attorney Torgny Wetterberg, who asked: “Wait a minute, are we still talking about the 25th of October 2001 or have we moved on?” To which prosecutor Henrik Attorps responded: ”No, as I mentioned, we have moved on. Maybe you need to sit up a bit straighter and listen.” This bit of sarcasm was not appreciated by Judge Zander, who clarified that he too had trouble keeping up with the prosecution’s presentation and that perhaps Attorps should be mindful of maintaining a cordial tone during the proceedings.
Before the prosecution could continue their presentation, however, Alexandre Schneiter’s defense attorney Per Samuelsson interrupted. “My opinion is that the prosecution is arguing too much. The prosecution’s presentation should be about putting facts on the table and not drawing conclusions.” He then asked whether the prosecution claimed that Nhialdiu had been discussed during the meeting on the 25th of October 2001. In response to this, the prosecution clarified that they had no knowledge of what was said in the meeting – they were not there. However, they held that through reading the written evidentiary material, one could conclude that by the 25th of October 2001, the Government of Sudan and Lundin Oil AB had agreed that the company would perform seismic activity in Nhialdiu during 2002. Judge Zander stated that it was well within the prosecution’s right to present these evidentiary facts and that the defense would get their opportunity to contest the allegations at a later date.
Unrest in Block 5A During 2001/2002
During 2001, the Lundin companies had been able to conduct operations quite successfully. The prosecution alleged that this was due to the military success of the Government, which had resulted in the Block being largely under governmental control. However, during 2002, some militia leaders changed allegiances, disrupting the security situation in the Block once again. Most importantly, Riek Machar (previous leader of the SSDF, who had been responsible for providing security for Block 5A in 1999) formally allied his forces with Peter Gadet’s SPLA – who at the time was the primary opponent of the Sudanese government. Furthermore, previously regime-allied SSIM commander Peter Paar also aligned himself with rebel forces in February 2002.
Consequently, at the same time as Lundin Oil AB was preparing to expand their operations in areas of Block 5A not controlled by the Sudanese military, the opposition to the Government grew stronger. This was noted by Sudan Ltd. personnel, who suffered an attack from Peter Paar’s SSIM forces. On the 20th of December 2001, a Sudan Ltd. helicopter was hit by ground fire from SSIM troops, seriously wounding the pilot.
A report from neighboring Canadian oil company Talisman, published on the 31st of December 2001, also stated that: “This is now becoming a rapid and fluid situation that will require careful monitoring. It is likely that we will witness the heaviest fighting since Talisman became involved in the area three years ago.” The report further clarified that the heaviest fighting was expected to erupt within Lundin Oil AB’s concession area. Reports from Sudan Ltd.’s personnel concluded: ”The developing conflicts could last years.” Despite these worrying conditions, the prosecution maintained, Lundin Oil AB continued their plans for expanding their operations in 2002.
The Government of Sudan Demands that Lundin Oil AB Build a Road to Nhialdiu
The prosecution argued that, in order to fulfill their obligation to provide security for Lundin Oil AB’s proposed seismic activities in Nhialdiu, the Government demanded that Lundin Oil AB finance a road to the area. They showed a report sent to Alexandre Schneiter from Sudan Ltd. personnel, which stated that: “The army is requesting a road to Nhialdiu before they can put security in place […]. A wide dry season road would be feasible, but an all-weather road would be too expensive at this juncture.”
At this point, Alexandre Schneiter’s defense council Per Samuelsson interrupted once again, questioning what grounds the prosecution had for stating that the Government’s demands were presented after the previously mentioned meeting on the 25th of October 2001, since the report actually covered events taking place between the 21st-28th of October. Presumably, his point was that the prosecution could not prove the request from the government stemmed from agreements made during the meeting on the 25th. Prosecutor Henrik Attorps attempted to explain why they had drawn this conclusion but was cut off by Per Samuelsson who proclaimed: “I do not care about your explanations!” At this point, Judge Zander intervened and said: ”Well, you did ask…” However, he was not able to finish his sentence either, because Samuelsson continued: “If the prosecution is presenting their own conclusions and not the facts, they must make this clear to the Court. My point is that this presentation is deceitful.” Judge Zander did not seem to agree,however, and explained to Samuelsson that the Court was perfectly able to discern between the prosecution’s opinion and the facts. He stated that the Court, as in any other case, would weigh the evidence presented objectively and, following the conclusion of the proceedings, rule on the accuracy of the prosecution’s presentation.
The prosecution then attempted to present further evidence in support of their allegation that the Lundin companies, in response to the Government’s demands, started the process of collecting bids from potential construction companies. The prosecution began reading notes from an interview conducted by Lundin Oil AB’s previous law firm with Richard Archer, a consultant hired by Lundin Oil AB in November 2001 to oversee the company’s tenders, but were once again interrupted by one of Alexandre Schneiter’s defense attorneys. He asked prosecutor Henrik Attorps to read an additional paragraph of the interview, which the prosecution had not touched upon. Attorps, however, did not want to comply at first. After Judge Zander questioned whether the paragraph contained information contradictory to the prosecution’s claims, Attorps did decide to present the requested section. It stated that “Archer was briefed by Ward that the contract for the road to Nhialdiu had not been officially awarded by Lundin, but that Heglig had carried out the works anyway as directed by the Government of Sudan.”
The prosecution later explained that Heglig was the contractor who had been awarded the tender for the road construction project. They further held that, regardless of whether Lundin Oil AB and the Sudanese government had entered into a binding contract or not, the company should be seen as having made an unambiguous declaration to the Government that they were prepared to pay for the requested road to Nhialdiu. Consequently, the prosecution argued that Ian Lundin and Alexandre Schneiter, through their participation in the decision to finance the road, had aided the Government in its efforts to take control of Nhialdiu by force.
In the next report, we will continue to cover the prosecution’s presentation and, among other things, detail the indiscriminate attacks allegedly carried out by the Government in their efforts to secure Nhialdiu for Lundin Oil AB’s operations. We will also describe further plans from the company to build an additional road in the south of Block 5A, despite this area not being under the control of the Government, or Government regulated militias, either.