Report 8: Part Six of the Prosecution’s Presentation
This week’s proceedings were cut short, spanning only two days because of a scheduling conflict at the prosecutorial office. The prosecution still had time, however, to present evidence regarding point 9 h, 9 i and 9 j of the indictment. Soon, they will have completed their presentation of the preliminary investigation. With only 5 days left scheduled, the prosecution has detailed the evidence which seeks to prove ten of the eleven acts of complicity outlined in the indictment. When the prosecution has finished their presentation, we will publish a cohesive summary of the indictment on our website.
This week’s report will focus on two all-weather roads that the prosecution maintains Sudan Ltd. committed to financing, in areas not controlled by the Government or Government-regulated militias, and the subsequent offensive military operations the Government allegedly carried out in order to secure these areas and enable construction of the roads.
The All-Weather Road to Nhialdiu – Point 9 h of the Indictment
Last week, the prosecution argued that by October 2001, Lundin Petroleum (which in 2001 had changed their name from Lundin Oil AB to Lundin Petroleum) and the Sudanese Government had agreed that the company would conduct seismic operations in Nhialdiu, and that the Government would – per their 1999 agreement – provide security for the project. The prosecution also mentioned the security report, in which Operations Manager Ken Barker notified Lundin Petroleum 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.”
The defense has denied that the company ever agreed to build such a road, citing the lack of a finalized agreement or contract. The prosecution, however, claimed that by looking through the company’s internal reports, one could see that Lundin Petroleum sometime between the 28th of October and the 30th of November had made an unambiguous declaration of intent to the Sudanese Government to finance part of the road. The prosecution also showed budget excerpts which contained funds earmarked for a project called “MOK All Weather Road.” The prosecution had previously compared different maps of Block 5A and argued that the area which the company called “MOK” was situated in Nhialdiu. They had also shown multiple internal reports referring to the road as the “All Weather Road to MOK/Nhialdiu.”
The prosecution also chose to present a report from 2003 which described Sudan Ltd. employees visiting the All-Weather Road to MOK to inspect the progress of the project. Thus, the prosecution claimed it had been shown that the road – despite the contractual issues – had in fact been built.
As previously mentioned, the prosecution stressed that the issue with building a road to Nhialdiu was the fact that rebel leader Peter Gadet controlled the area. Thus, the Government would have to take control of Nhialdiu before the construction could be finalized. Furthermore, the prosecution argued that Ian Lundin and Alexandre Schneiter were at least aware of the risk that the Government and regulated militias would use illicit methods of warfare to gain control, as they had done in the past.
Violence in Nhialdiu
To prove that Nhialdiu was in fact controlled by Peter Gadet, the prosecution cited a report from Rubicon, a security company which had been employed by Lundin Petroleum to conduct security oversight of Block 5A in late 2001. The report stated that the security in Block 5A was provided by Sudan Ltd.’s own H&SE-personnel (which by this point also consisted of employees seconded from the Sudanese security force Petroleum Security), the militia groups SSIM and SSUM, and the military. The military was responsible for the majority of the security operations, which included patrolling the area west of the All-Weather Road, proactively searching for and deterring Gadet’s forces and enabling seismic operations in the area. This area – Nhialdiu – was described as the most sensitive from a security standpoint. The army was heavily armed. The report also acknowledged that the road was being used to transport military troops and supplies within Block 5A.
The following events, including the alleged attacks on civilians and displacement of the population in Block 5A, will be described in more detail in upcoming reports. This report will focus primarily on the purported attacks in the Nhialdiu and Leer area, based on evidence primarily collected from Lundin Petroleum and Talisman’s own internal security reports.
A report from neighboring Canadian oil company Talisman stated that by the 31st of December 2001, army troops were moving toward Nhialdiu and that fighting was to be expected. Sudan Ltd. also took note of the military’s movements into Nhialdiu. In multiple security reports published in January 2002, Sudan Ltd. personnel described a “massive military engagement in the area of Nhialdiu.” It was stated that a “major offensive is in hand against Peter Gadet in Nhialdiu. The size and nature of this offensive is affecting our operations as the All-Weather Road becomes a military target.” In a report from the 29th of January 2002, it was added that the offensive was taking longer than anticipated, and that Nhialdiu still had not been secured.
Just a few weeks later, though, the government officially announced that it had captured the area following renewed wide-scale attacks, as described in a security report from Talisman dated the 22nd of February 2002. Talisman’s personnel reported that it was believed that the military’s offensive had been fully supported by gunships. In a subsequent report, they described the offensive in more detail, stating: “The GOS [Government of Sudan] announced the capture of Nhialdiu. This area has always been an area of strategic importance. In the last three months, the SSUM have launched many attacks into the area. On the early Government/SSUM attacks, at least four in total, Paulinos force [SSUM, eds. remark] were used as a vanguard, with the better trained Government of Sudan playing a more prominent role.” Talisman personnel also stated that they thought the Government sought to remain in Nhialdiu and occupy the area, which they assumed would put increased pressure on Lundin to finance the road to Nhialdiu.
In a report from non-governmental organization IRIN from the 28th of February 2002, it was stated that “Many civilians had sought sanctuary in Nhialdiu following previous outbreaks of fighting in Western Upper Nile. As a result of the renewed Government offensive, they were now being pushed further afield.” The report also noted that the Government of Sudan seemed to offer little hope for an end to the fighting, quoting a government representative: “We would like to warn civilians and organizations to stay away from the region of the current fighting.”
The offensive against Nhialdiu was further documented in a report written by Sudanese security force Petroleum Security: “Nhialdiu was the rebels’ strong hold and last resort. It took the army much time and effort to emancipate, thus the liberation accomplished three fierce campaigns resulting in the army takeover of the area and the bitter defeat of the rebels who flew westward.”
The All-Weather Road to Leer – Point 9 i of the Indictment
The prosecution alleged that while the security situation in Block 5A was deteriorating due to the circumstances described in the previous report, Lundin Petroleum decided to finance an additional all-weather road in the south of Block 5A. On the 8th of January 2002, Sudan Ltd. entered into an agreement called “Assignment and Novation agreement” with the Sudanese Government. The agreement stipulated that Sudan Ltd. was to pay for an All-Weather Road to Leer, an area to the south of Block 5A. The prosecution claimed that since the previously regime-allied militia commander James Lia Diu had defected to the rebels, the Government no longer had control of Leer and its surroundings. Therefore, the road could not be built until the government had taken control of the area. As such, in order to achieve control, the Government allegedly started conducting offensive military operations in a large area of Block 5A – including Leer – along the route of the road in January 2002.
A security report from Sudan Ltd. personnel dated the 20th of January 2002 was presented by the prosecution to describe the deteriorating security situation in the Block at the time of the Assignment and Novation agreement. In the report, it was stated that “the political and military situation in Block 5A is very volatile. It is not conducive to oilfield operations at the present time. […] The developing conflict could last years.” The author also stated that the fighting was partly related to control over oil revenues and recommended that the Lundin Petroleum consortium partners consider declaring force majeure until such time as operations could be carried out in a peaceful secure environment.
By the 22nd of January 2002, Lundin Petroleum published a press release stating that they were announcing a temporary suspension of their operations in Block 5A. However, the prosecution noted that the company did not invoke force majeure against Sudan. The prosecution also claimed that even though Lundin Petroleum suspended their ground operations, they were still committed to financing the road construction projects and thus continued their cooperation with the Government.
Violence in Leer
The prosecution argued that, following the new alliance between rebel leaders Riek Machar and John Garang of the SPLA, as well as the defection of James Lia Diu from the Government to rebel forces, new intensified attacks took place in large parts of Block 5A. In February 2002, Sudan Ltd.’s internal security reports note multiple reports of violence and strife. One report from the 15th of February states that “this level of air activity is unprecedented and indicates heavy fighting.”
On the 7th of February, internal security reports stated that “The security situation in the Block remains grim with fighting reported from Leer in the south to Thuan in the north. This represents exceptional circumstances even for Block 5A.” The same day, previously mentioned Canadian Oil Company Talisman also reported that “The continued military buildup goes on. Gunships have been active in Block 5A. Some reports suggest that they have been in action around the Leer and Nimne areas. Any air activity would be a normal pre-cursor before ground troops move in. […] It looks almost certain that this will be a protracted situation that will mean an inevitable humanitarian crisis.” In subsequent reports, Talisman observed that the nature of the conflict had changed, by February encompassing a full-scale intervention by the Sudanese military instead of simply militias targeting each other.
The Attack on Bieh
The prosecution spent quite a while describing one attack in particular, which at the time it took place had also gained a lot of attention from international media and concerned nations such as Norway and the United States. A report from the US State Department on the 21st of February 2002 noted that: “The pattern of senseless and brutal attacks by the Government of Sudan on innocent civilians continues. On the 20th of February a helicopter attacked a World Food Programme food distribution operation in the village of Bieh. The helicopter fired 6-8 rockets, killing seventeen people, and wounding many others.” The prosecution noted that this attack led to the United States suspending all discussions with Sudan regarding the peace process.
According to a report from Canadian oil company Talisman, Bieh was located northwest of Leer and within Block 5A.
The prosecution then showed several reports from the Norwegian government, the UN, World Food Programme, and IRIN, all condemning the attack. The report from the Norwegian Government stated that “This is not a single incident, but an alarming Government behavior.” In another report it was noted that the Sudanese authorities had approved the WFP’s food distribution operation beforehand. Furthermore, multiple reports detailed how the Government of Sudan denied the attack and blamed the SPLA for spreading lies.
To prove that Lundin Petroleum had knowledge of the attack and subsequent condemnations, the prosecution showed reports written by Lundin Petroleum’s CSR-advisor Christine Batruch on the 25th of February and 4th of March 2002, which summarized the reports concerning the Bieh incident.
Security reports from Talisman published on the 5th of March 2002 stated that apparently a Government helicopter flew around the area and then disappeared. Later, a gunship attacked the area with rockets, killing 17 civilians. A subsequent report from Talisman noted that since the last report more information had been received and that the death toll had risen from 17 to 24.
The previously mentioned security report written by Petroleum Security on the 26th of February also described the attack on Bieh. This report, presumably since it was written by the Sudanese security force, did not paint the same picture as the international reports. They instead claimed that “There are many explanations about this incident, but the most confirmed is the one stated by the Ministry of Foreign Affairs which related the incident to some technical mistakes which happen often during fighting.” It was then mentioned that an imperative step to achieving peace in the region was to finalize the two road construction projects to Leer and Nhialdiu before the start of autumn.
Sudan Ltd. Renegotiates the “Assignment and Novation”-agreement – Point 9 j of the Indictment
The prosecution alleged that at some point after the 8th of January 2002, Ian Lundin decided that Sudan Ltd. should reinforce their commitment to pay for the All-Weather Road to Leer as well as the All-Weather Road to Nhialdiu. The prosecution claims this decision was communicated in a letter from Ian Lundin to the Sudanese Government on the 22nd of March 2002.
The prosecution first showed a letter dated the 5th of March, from Ken Barker, Operations Manager for Lundin Petroleum, which stated that the existing “Assignment and Novation” agreement should be terminated and that the parties should instead enter into a new three-party agreement with the Government of Sudan and the contractor. This new agreement stated that Sudan Ltd. would reimburse the Sudanese Government for the costs incurred in the construction of the All-Weather Roads to Leer and Nhialdiu when Sudan Ltd. was able to fully resume operations in Block 5A. Furthermore, it was clarified that Sudan Ltd. would recommence operations when it was satisfied that continued long term operations could be carried out without further security risks. The difference between the old agreement and the new one seemed to be that the Government of Sudan would be responsible for employing a contractor to perform the works, not Sudan Ltd.
When this letter was presented, Ian Lundin’s defense attorney Torgny Wetterberg protested and stated that the letter was simply a draft, implying that it had not been sent. The prosecutor acknowledged the letter had not been signed, but that regardless of whether this version of the letter had been sent or not, it described meetings and discussions that had taken place between representatives of the Government and the company regarding the agreement. Mr. Wetterberg responded: “The prosecution can claim whatever they want, but to call this a letter is not truthful. You can say that it is a draft you allege is a letter, but it is not a letter.” Judge Tomas Zander listened to the defense’s complaints, but settled for stating that he assumed the defense would expand on their arguments in their upcoming presentation and that the prosecution’s argument concerned the contents of the document, not its character.
The prosecution then proceeded by showing a letter from Ian Lundin to a representative of the Sudanese Government, also regarding the road construction agreements, sent on the 22nd of March 2002. In the letter, Mr. Lundin confirmed that the consortium partners had agreed that the construction of the road to Leer and Nhialdiu should proceed in order to assist with the overall peace process and to provide much needed infrastructure for civilians living in the area. He also reiterated that Sudan Ltd. “will reimburse the Government for the costs of construction of the roads as incurred.” As mentioned in the disputed letter from Ken Barker, Mr. Lundin also stated that financing would not be provided until the consortium was able to resume operations. This required “a secure working environment which is sustainable, preferably with a peace agreement.” The prosecution emphasised in particular the use of the word ‘preferably’ in this context.
The proceedings ended with a brief discussion surrounding the upcoming schedule and a notice from the Court that it would soon rule on a petition from the defense, who have requested that the private lawsuit regarding the plaintiff’s action for damages be conducted in a separate proceeding. If the Court’s decision is available, it will be detailed in next week’s report along with the prosecution’s presentation.