Report 11: The plaintiffs’ counsel’s presentation and Ian Lundin’s Defense’s opening presentation
The first day of this week’s hearing took a surprising turn. The plan had been for the plaintiffs’ counsel to present their case this day. After the court’s decision to separate the victims’ claims for damages from the criminal proceedings in the Lundin Oil trial, (See more about the decision here) it was unclear what the day’s hearing would be about. After a longer delay of 30 minutes due to technical problems, the hearing began with Judge Tomas Zander asking the plaintiffs’ counsel to begin their presentation of the case.
Thomas Bodström Reports Judge Tomas Zander for Conflict of Interest
Thomas Bodström, counsel for one group of plaintiffs, began by stating that they would like to begin with a claim: “On an objective basis, there are special circumstances that are likely to undermine confidence in Judge Tomas Zander’s impartiality in the case.” Bodström further announced “We report Judge Tomas Zander for conflict of interest according to Chapter 4, paragraph 13 point 10 in the Swedish Code of Judicial Procedure.” Judge Zander looked a little surprised and asked Bodström to elaborate on his argument. Bodström continued, explaining that there had been two proceedings, one in October 2022 and one in March 2023, during which the question of the powers of attorney for the plaintiffs being filed before the commencement of the trial was never raised. Bodström then referred to other similar cases that had been handled by the same district court, the same department, and the same judge, Tomas Zander, where powers of attorney were not required to be submitted until the point at which the plaintiffs were heard. Bodström also described how during these preparatory meetings, the question of whether the plaintiffs’ attorneys should assist the prosecution was raised. Bodström claimed that Judge Zander had questioned whether the plaintiff’s attorneys “really would do it.”
Thomas Bodström also explained how difficult it had been to get current powers of attorneys in connection with the compensation claim. He noted that they had to be obtained in an outright war zone without stable internet connection or reliable mail. Bodström further stated that the powers of attorney could be given orally or in writing at the hearing as all plaintiffs are scheduled to be heard during the trial. Bodström referred to similar complex international law cases handled by the court, including the Iran case (see our reports from the Iran case here) and the Rwanda trials. Bodström argued that in these cases, powers of attorney had not been requested at such an early stage in the trial. Based on this, Bodström stated “We had every reason to believe that it would be handled in the same way.” Judge Tomas Zander asked if the other plaintiff’s attorney, Percy Bratt, also stood behind this claim. Percy Bratt responded that they were not behind the claim.
This unexpected turn in the day’s planned hearing resulted in a long silence and Judge Zander began to whisper to his fellow judge. After a long silence and further whispering, Judge Zander asked Thomas Bodström: “I need clarification. We understood that it [the conflict of interest claim] only applies to me and not to the court as such, as everyone participated in the decision? Is that correct?” Bodström replied: “That’s correct, because it is related to your dealing with the previous trials.” After a long and tense silence, Judge Zander stated: “Well, in that case we must assess the claim. We thank you for today and we will see if we will be able to continue.”
This created great confusion for all involved as no one knew if and when the hearing would continue. Everyone waited patiently outside the courtroom, and no one dared to go to lunch or even have a coffee to risk missing out on a possible announcement over the loudspeakers that the proceedings in courtroom 34 would continue.
After a long wait, the audience was finally called back into the courtroom and were then met by a new senior judge who replaced Tomas Zander. Since Bodström chose to direct the accusation only against Judge Zander, the other members of the court remained in the room. Bodström now had to argue his claim again to the new judge who would decide the matter. In addition to the question of the powers of attorney had been handled in previous cases, Bodström noted that the timing of the separation of the claims also was problematic. Bodström argued that “The decision on the separation comes at a time before hearing the plaintiffs and our statement of the case. It can be separated appropriately after our presentation or when the plaintiffs have been heard, only then can it be decided whether it should be separated.” The judge stated that Bodström’s arguments seemed to be questioning the decision itself rather than raising a conflict of interest matter. Bodström responded: “We will appeal the decision itself, but regardless of what the appeal would lead to, this is also grounds for a conflict of interest.”
Ian Lundin’s defense attorney Torgny Wetterberg entered the discussion and stated that “There is nothing in what Bodström has stated that constitutes a conflict of interest. What you can say is that Bodström is trying to cover up his own shortcomings.” Wetterberg concluded by stating: “We oppose this and there is nothing to question Zander’s impartiality in this case.” Alexandre Schneiter’s attorney Per E. Samuelsson also took the opportunity to comment on Bodström’s claim. Samuelsson began by stating that the claim was in reality an appeal of the decision itself. He further criticized Bodström’s arguments, saying “It is one of the worst supported arguments in a courtroom I have heard since I started as lawyer in 1982.”
After the brief exchange of words between the parties, the judge decided that there would be a break and that he would deliver the verdict after the break. Everyone waited tensely outside the courtroom to hear what the court would decide. When everyone was called in again, the judge announced the decision. “The district court has found that the circumstances that the plaintiffs, through lawyer Thomas Bodström, have stated cannot be considered sufficient to disturb the trust in Judge Tomas Zander’s impartiality in the case.” Thomas Bodström conveyed his dissatisfaction with the decision. This resulted in the court subsequently announcing that the decision regarding the conflict of interest could only be appealed in connection with the final decision of the judgement.
After this unexpected twist in the hearing, the day was able to continue as planned.
The Plaintiffs’ Counsel’s Presentation of the Case
Once the question regarding the conflict of interest was settled, the trial could continue as usual. Tomas Zander was welcomed back into the courtroom and once again asked the plaintiffs’ counsels to begin presenting their case. Percy Bratt, counsel for one of the plaintiffs, began by stating: “The plaintiffs assist the prosecution and agree with what the prosecution stated in their solid presentation of the case. The extensive written evidence already provides unequivocal and strong support for the defendants having a driving role in what appears from the description of the crime.” Percy Bratt added that “The acts of complicity had decisive importance in initiating the offense military operations of the Lundin companies.” Percy Bratt also noted that they have taken note of the decision regarding the separation of the claims and that it is a decision that they will appeal.
The plaintiff’s counsels Thomas Bodström and Anders Sjögren then continued with a longer presentation and took the prosecution’s seats in the courtroom in order to display their presentation on the courtroom screens. Anders Sjögren began by stating that “Our opinion is that we fully support what the prosecution has presented: we believe they have described the case in an excellent way. What we are going to do now is to say something about what we think the case is about, the fourth aspect of the case. It is about placing the plaintiffs in a larger context.” Anders Sjögren noted that the violence had taken different forms, which the prosecution had presented, and was more specifically a warfare that had resulted in attacks against civilians. Furthermore, the claims for compensation were not only about damages but also about recognition of harm done. Anders Sjögren then continued by describing the context the civilians were in during the years 1997-2003. The relevant areas, the importance of rain and dry periods and living conditions were described. The plaintiffs’ particular vulnerability in Block 5A was described where it was stated that air combat forces had been the greatest threat for their clients. Sjögren stated that the regime had systematically attacked civilians through air strikes. Sjögren further noted that these attacks were sudden in their nature, which meant that the civilians rarely had the opportunity to escape the attacks. The civilians were thus described as having had to develop survival strategies, which included digging holes in the ground where they could hide when the sudden attacks took place. Furthermore, Sjögren stated that the plaintiffs would describe in their hearings that their strategies also involved hiding under trees and trying to run as far as possible from the attacks. Fleeing during the rainy season was described as being particularly risky as many areas were flooded.
Sjögren explained that he and Thomas Bodström represent fifteen of the plaintiffs and that Percy Bratt represents the seventeen other plaintiffs. Sjögren then gave a brief description of their fifteen plaintiffs and what they had been through. What almost all plaintiffs had in common was that they were driven from their homes and forced to flee. Many were also described as been involved in assassination attempts by gunships, losing their relatives and livestock. One of the plaintiffs was also described as having been subjected to kidnapping and forced into military service.
Both Thomas Bodström and Percy Bratt noted that they would give a short presentation of their plaintiffs in connection with the plaintiff hearings. This caused discussion as Ian Lundin’s attorney Torgny Wetterberg stated that there is no time for such a presentation and therefore “It should not take place.” Prosecutor Henrik Attorps responded that it had been planned for a long time and thus was included in the schedule for the trial. Judge Tomas Zander ended the discussion by saying that “We will have to come back to this later.”
Ian Lundin’s Defense begin its presentation of the case
On the second day of this week’s hearing, it was time for Ian Lundin’s defense to begin its presentation of the case. The courtroom was filled with journalists and Ian Lundin’s family members. Defense attorney Thomas Wetterberg began by stating “Then it is time for us – it is an interesting and very urgent task to present this case.” He further stated that there was not much of the prosecution’s presentation that they could agree with. “[W]e have very different perceptions of reality.” Wetterberg noted that the prosecution had used a large part of its presentation to present different areas and people and their actions that could be decisive for the case. However, since neither the prosecution nor the defense had been there or met these people, he argued that there were no references for what was being said. ”Almost anything can be said in the courtroom,” he asserted. Here, Judge Zander interrupted to ask Wetterberg to stick to the point and refrain from value judgements. Wetterberg continued by saying that what worried the defense the most was how the prosecution chose to present the facts to the court. He cited as an example the prosecution’s claim that Ian Lundin entered the Security and Road Agreement on behalf of Sudan Limited on the 8th of November 1999. The defense, however, claimed that there was an even more accurate document that the prosecution had chosen not to show. They described an email sent on the 12th of May 2000 from a Sudan Limited employee, Keith Hill, which showed that the agreement was never signed, and which instead read that “The Security and Road agreement was never fully executed.” Wetterberg noted that “We cannot understand, and we are concerned that the prosecution thought it was an email that you were not supposed to see.” This caused Judge Zander to react again to Wetterberg’s statement, telling him: “Stop making that kind of comment, it is not appropriate in a courtroom. You can think it but not say it out loud, that they are deliberately trying to present something that is not true. You can be objective and maintain a good tone in a courtroom without engaging in that kind of squabbling. It is like you are accusing the prosecution of misconduct. Be factual.”
Wetterberg then continued by describing things that had concerned them factually during the prosecution’s presentation. An example of this was the prosecution’s claims regarding different letters sent from employees of Sudan Limited. The defense argued that this occurred about twenty times during the prosecution’s presentation. One instance was when the prosecution stated that Adolf Lundin had sent a letter on November 9, 1999. The defense displayed that letter on the courtroom’s screens to point out that the company’s logo was not included and that it had not been signed. Wetterberg argued: “It is a question of a draft of a letter.” He further stated that he could not say whether it had been sent or not but stressed that it was not a letter. Related to this, Wetterberg added “We have reason to clarify our opinion and position on this. Ian Lundin denies all involvement alleged by the prosecution during their presentation, even if we do not explicitly object in our presentation or previously communicated approach to the prosecution.”
As the defense began a new chapter in their presentation, handouts were given to all parties. Prosecutor Henrik Attorps asked if the prosecution could get more than one handout. The defense attorney Wetterberg responded that the defense had only received one copy of the handout of the prosecution’s presentation. The plaintiffs’ counsel Thomas Bodström offered to give his copy to the prosecution. Wetterberg then observed that “Then the prosecution will get an extra even though we did not get one.” Judge Tomas Zander put an end to the discussion by stating that Bodström had the right to give away his paper to the prosecution.
The defense continued its presentation by criticizing the prosecution’s statement of the criminal act as charged. The defense argued that that the statement did not make clear where or when the attacks had occurred, by whom they were committed, and finally, why they had occurred. To support this argument, they referred to emails that were sent by the previous lead prosecutor, Magnus Elving. The emails referred to showed that Magnus Elving was trying to find support to prove the Sudanese regime’s attacks and that the report from Human Rights Watch could be helpful. The defense stated that in their presentation, they would argue that the report from Human Rights Watch and other NGO’s could be problematic. The defense stated that they would show “that things are not always as you think they are.” They then referred to another email that Magnus Elving had sent in 2010 in which he stated that the police had problems with finding “concrete links between the criminal attacks in Sudan and the oil industry.” The defense claimed that this could be the reason for the prosecution’s vague description of the criminal act. They asserted that the general categories of crimes described in the prosecution’s description made it difficult to understand which criminal acts were alleged. They further stated in regard to the indictment that “In particular, it should be noted that although there is a reference to the plaintiffs, there are no names given in point 7 in the indictment or elsewhere in the indictment apart from the enumeration of the plaintiffs.” Point 7 in the indictment states that the Sudanese government’s warfare during the offensive military operations included systematic attacks against civilians, including the plaintiffs.
The defense further noted that the prosecution’s description of the criminal act included references to different geographical areas. They argued, however, that the maps that the prosecution presented did not provide a clear answer as to where those areas were located and that their location differed on the various maps. As an example, they mentioned that the village of Bentiu was inside the area of Block 5A on one map but outside Block 5A on another map used by the prosecution. The defense also showed different reports that in some places referred to a location where an attack had occurred as a larger area and in other places the same location was referred to as a village. The defense therefore claimed that it was unclear what the prosecution meant when they referred to a specific location.
The Lundin company’s limited operation in Block 5A
On the second day of the Lundin defense’s presentation, only two prosecutors were present in the courtroom. The defense’s first chapter of their presentation was entitled “Oil operations in Sudan.” After the defense attorney Thomas Tendorf provided a brief historical overview of the different oil companies that have operated in the region during the years, he described how Sudan Limited entered the Exploration and Production Agreement (EPSA) with representatives from the Sudanese regime in 1997. The defense explained they would refer to the different Lundin companies as Sudan Limited throughout their presentation, even though they had had different names during the years. The defense stated that “EPSA had contractual terms that were internationally recognized and which, among other things, gave Sudan transparency and a share of any profit in case of possible oil production.” The defense stressed that Sudan Limited’s operations were very limited in comparison to other companies in the area. They also pointed out that Sudan Limited was not an oil producer and did not generate any revenue for Sudan. They therefore claimed that since Sudan Limited did not have any oil fields, the various reports describing events that occurred on ‘oil fields’ must be referring to Block 1 and Block 2 and not Block 5A. To support this argument, the defense referred to a report from a company called Wood McKenzie, whom they described as experts on these kinds of operations. This report stated that “Lundin was a minor contributor to the overall drilling activity, having drilled just 4 wells in Block 5A.” It further noted that “Lundin did not produce any oil or gas from its discoveries in Block 5A.”
The defense argued moreover that the small size of Sudan Limited’s business operations compared to other oil companies in the region led to the procurement of external contractors. The defense also sought to point out that Sudan Limited employed local employees, which was also evident from EPSA. They stated that Sudan Limited had 220 local Sudanese employees in their workforce linked to the seismic operations in 1998. They described the local workforce as being important to the company and noted that Sudan Limited gradually trained them so that they would not have to hire external companies in the future. The defense stated that Sudan Limited thus did not perform the business operations’ physical work, concluding that “When we look at all the people that were operating in the region, a very small group of people from Sudan Limited were there.”
In the next report, we will continue to cover the defense’s presentation and, among other things, detail the defense’s view of the conflict in Block 5A and their description of the nature of the conflict.