Report 12: Part Two of Ian Lundin’s Defense’s opening presentation  

Gavel on a dark background

During this week’s proceedings, Ian Lundin’s defence focused extensively on elucidating the international community’s stance on oil extraction in Sudan and detailing the diverse armed groups operating in the region. Additionally, they continued outlining their perspective on the nature of the conflict. If you missed last week’s report, you could find a recap of the defence’s viewpoint on the conflict in Sudan and the Lundin company’s limited operations in Block 5A. 

The International Community’s Approach to Oil Extraction in Sudan

The defence presented different reports to depict the international community’s approach to oil production in Sudan during the years 1997-2003. Ian Lundin’s defense attorney Thomas Tendorf, noted that the criminal case concerned an allegation that the government of Sudan used indiscriminate violence against civilians in order for the Lundin company to continue operating in the region. Tendorf stated, “We are not in a tribunal of opinion but a criminal court. This is important because we will come across opinions and not facts in the case.” The defence described how there were different opinions regarding oil production in developing countries, but no one was necessarily right or wrong. Some argued that oil companies should not operate in countries where there was an ongoing conflict. Others, however, believed that oil production could be desirable in a developing country in order to encourage and implement peace talks.  To support this optimistic perspective, the defence referred to a statement from the UN Security Council from 2001 on the lifting of the United States’ unilateral sanctions against Sudan which noted that the oil production and the oil companies’ operations had resulted in improvements in Sudan and could enable peace in the country.  

The defence argued that the international community was overall positive toward oil production during the time period covered by the indictment. They further claimed that no criticism was directed at all from the international communities towards the oil companies active in Sudan and that no demands were made for them to wind down their operations. The defence also noted that no investigations were started regarding alleged violations of international law within the framework of the oil operations carried out in the south of Sudan. The defence argued that NGO criticisms of the oil industry s were known and assessed by the international community and asserted that these reports, while acknowledged, did not dissuade the international community from criticising Sudan’s broader democratic and human rights issues. The defence thus claimed that the criticism from the international community was not connected to the oil industry as the prosecution had presented. The defence also noted that the UN Security Council could have intervened by imposing sanctions as it had in other parts of the world. Although the UN had imposed sanctions on Sudan in 1996, they did not apply to the oil operations in the country. The defence believed that this indicated that the UN had its eyes on the situation in Sudan but did not consider it necessary to impose sanctions regarding issues related to oil production.  

The defence further argued that the European Union’s approach to oil operations in southern Sudan did not deviate from the UN’s. During the period covered by the indictment, several fact-finding missions were carried out in which EU ambassadors visited Sudan, including a fact-finding mission in May 2001, where the EU ambassadors visited Block 5A to assess the situation in light of the criticisms made by NGOs. The defence pointed out that this visit resulted in a report from the EU ambassador stating that the oil companies deserved praise for having improved the situation for people living in the area. The defence read a 2010 email from the former lead prosecutor, Magnus Elving, in which Elving referred to this statement and noted that the report was positive towards the oil company’s operations. The defence added that it was hard to imagine that this could happen at the same time that serious crimes were taking place. 

The defence also addressed Sweden’s approach to oil extraction in Sudan. They referred to a Swedish parliamentary debate from the 3rd of April 2001 where the Swedish politician Bernt Ekholm stated that the extraction of oil in developing countries could be stopped, but that prospecting for oil did not have the same negative effects and could, therefore, continue. Here, the defence sought to stress that Sudan Limited was prospecting for oil but was not an oil producer. They described the Swedish government as being aware of international concerns about Sudan and of the NGO criticism of the Swedish oil operations there, especially since Lundin Oil was a Swedish company. The Swedish government’s position was debated in parliamentary hearings on April 3, 2001, and May 2, 2001, where Anna Lindh, the minister for foreign affairs, expressed her position on the issue as follows: “The day the UN says that it would be good if the companies stopped oil extraction, I will support that proposal.” The defence observed, “She would not have expressed herself in that way if the NGO reports highlighted during the trial were to be believed.”

The Nature of the Conflict  

The defence spent a long time describing their view of the nature of the conflict. They explained that the southern parts of Sudan consisted mainly of the Dinka and Nuer ethnic groups and referred to a February 2002 report by UN Volunteer that identified 56 ethnic groups and 600 different ethnic subgroups. The defence claimed that “Whatever numbers you will find, it is always mainly about two groups, Nuer and Dinka, who have been in conflict with each other for a long time.” To support this argument, the defence referred to a book called “The Nuer” by E.E. Evans-Pritchard, stating that they would read different chapters from the book describing Evans-Pritchard’s experience during his time living with the Nuer people. When the defense presented this book, they did not mention when it had been published, which caused the prosecutor Henrik Attorps, to interject, “I just have a short question: when is the book from?” The defence responded that it was from 1940. They then continued to refer to different chapters from the book, saying that it depicted long-standing disputes between the Dinka and Nuer, but also disputes within the Nuer people. The defense read aloud Evans-Pritchard’s descriptions: “Within a tribe, also fighting frequently results from disputes about cattle between its section and between individuals of the same section, even in the same village.” Navigating through different chapters of the book, the defence highlighted disputes not only between the Dinka and Nuer but also within the Nuer community itself. Citing a passage that underscored internal tribal conflicts, they argued that historical records depicted a lack of peaceful coexistence between these ethnic groups. The defence further bolstered its stance by referencing UN reports, pointing out the SPLA’s split into Dinka and Nuer factions in the 1990s. Quoting a UN special rapporteur from February 1994, they argued that the conflict escalated following this factional split, reinforcing their assertion that hostilities between the Dinka and Nuer were both prolonged and severe. The defence stated, “With this, we want to show that there have been conflicts between these two groups for a long time and of a serious nature.” 

Turning to a 2002 report from UNICEF, the defence contended that the report did not align with the prosecution’s assertion of a criminal act. Stressing the importance of defining the conflict’s nature, the defence argued that the prosecution’s claim of a specific armed conflict, which they described as the North and South conflict, necessitated scrutiny. They insisted that alleged violence against civilians should be contextualised within the framework and could not be attributed to the many other conflicts unfolding in Sudan during the same period. The defence claimed that long before 1997, and during and after the period covered by the indictment, there were conflicts between Nuer and Dinka that were separate from the North-South conflict.   

The defence also stated that the prosecution’s presentations did not give any clear answers on where the alleged attacks by the Sudanese regime had occurred. The defence claimed that there were sporadic reports of attacks, with some occurring in the southern parts of Sudan and others in the northern parts. What emerged from the investigation, the defence claimed, was that the intensity of the fighting in the north and south had varied during the indictment period. The defence referred to reports detailing several ceasefires between the GOS and the SPLMA in order to argue that the alleged military attack by the GOS presented by the prosecution would have taken place during periods of ceasefires between the government and the SPLMA. The defence supported this argument by displaying on the courtroom screens an image of a calendar with red markings indicating that the alleged attacks overlapped with ceasefires of various kinds. The defence concluded this chapter of its presentation by stating that there had been ceasefires for a very long time in the area and that there was not a correlation between the claims made in the prosecution’s allegations.  

The defence also wanted to respond to the accusations made by the prosecution that the GOS had used a divide-and-rule strategy. The defence argued that there had been fighting independent of other armed conflicts in Sudan and that the government had not used a divide-and-rule strategy. The defence asserted that the prosecution had claimed that the Khartoum Peace Agreement was a part of the divide-and-rule strategy to take control of the area. The defence argued that the investigation did not support the claim that the Sudanese government took control of areas in southern Sudan as the prosecution stated. To take such control of Block 5A would have required large military groups, for which the defence argued the government did not have resources. They claimed that the only control established by the Khartoum Peace Agreement was that it established peace between various groups in the area and the government, which was the very purpose of the agreement. The defence also referred to different reports to show that the GOS tried to mediate between different warring parties to bring peace to the area. An internal security report from 1999 described how “The army and the security attempted to persuade Peter Gadet to stand his forces down.” It was further noted that they spoke with rebel commander Tito Biel to make him not attack Peter Gadet and that the Vice President of Sudan, Riek Machar, held peace talks, which were expected to last for several weeks. A subsequent report from October 2001 stated that “The peace existing between the various factions has continued and is supported by the government authorities and the army.” The defence then referred to several reports that described how the government held peace talks and tried to mediate between the different groups. The defence concluded by stating that “All these examples directly contradict that the government would have encouraged fighting in Block 5A. On the contrary, it shows that they tried to counter this and make peace between the different groups.” 

The defence also wanted to respond to the prosecution’s allegation that the GOS control over the area of Block 5A and their attacks against civilians enabled Sudan Limited’s operation in the area. The defence argued that the government’s operations in response to the armed groups destroyed the opportunities for Sudan Limited to operate in Block 5A. They thus concluded that it was the government’s fighting of the armed groups that resulted in the oil operation not being able to be carried out as planned. The defence stated that the attacks that involved the military were due to them being subjected to ambushes and attacks by armed rebel groups. The defence thus claimed that the Sudanese military was exposed to attacks, which was different from them conducting offensive military operations as described by the prosecution. The defense argued that if this had been a strategy used by the government, it was, in any case, not one that created better conditions for the company to conduct its business.      

The defence noted that what could be deduced from the investigation was that fighting became more violent. They provided different explanations for why the fighting may have worsened: the increased availability of weapons in the area, the armed conflicts in the neighbouring countries, and competition for natural resources such as pastures and water were cited as reasons. Furthermore, the defence emphasised that the security reports described power struggles between the different leaders of militia groups, which could have led to more fighting. Alcohol use amongst the groups was also stated to have been a cause of the increased conflicts, which the defence argued should not be underestimated. The defence thus claimed that there were several reasons for the increased conflicts in the area and that it was not clear in the investigation that the oil operations would have affected the conflicts to a greater degree.      

The Different Armed Groups in the Area

The defence then continued to describe the different armed groups that were operating in the region. The defence stated that there was no investigation in the case into what the armed groups looked like and how organised they were. It was noted that within the groups, there had been a large number of individuals, some of whom acted independently while others were in groups, but there was no evidence that showed exactly how the different groups operated. The defence referred to internal security reports that described the various armed groups as inexperienced and disorganised. While the prosecution had alleged that some of the armed groups were allied with the Sudanese regime, the defence claimed that it was not clear from the prosecution’s presentation what regime allied actually meant and that there was no actual evidence of closer cooperation between the Sudanese military and the armed groups. They thus claimed that when a certain armed group had been named as regime allied, it did not necessarily mean that they were acting in concert with or on behalf of the Sudanese government’s military. The defence stated that, to the contrary, it had been shown in the investigation that neither the government nor the Sudanese military had any control over the armed groups.   

The defence described the SPLMA as having an aid organisation called Sudan Relief and Rehabilitation Agency (SRRA), which operated in the areas controlled by that group. They argued that the NGOs working there needed to cooperate with the SPLMA to gain access to those areas and to provide aid. The SPLMA had reportedly issued an ultimatum to the NGOs that wanted to operate in the region to agree to their terms in a Memorandum of Understanding and threatened that they would not be able to ensure the NGOs security if they did not agree to the terms. The defence asserted that this resulted in criticism from, among others, the EU Commission, which issued a statement on the 29th of February 2000 condemning “the explicit threat made by the SPLMA to the safety of humanitarian agencies who do not sign the Memorandum of Understanding between NGOs and the Sudan Relief and Rehabilitation Agency (SRRA) before March 1st. Such a threat is completely unacceptable.” The defence claimed that some organisations did not agree to the SPLMA’s terms and thus had to leave the area, while other organisations did comply.    

The defence explained that the SPLMA’s conditions stated that organisations were not allowed to decide for themselves how aid would be provided or distributed without the SPLMA’s approval. The organisations, therefore, could not act neutrally in providing aid based on the principle of greatest need. The defence emphasised that it was under these circumstances that aid organisations conducted their activities in the area. They stated that it was a well-known fact that the aid organisation SRRA was not neutral and that it was problematic that the only information that NGOs received came from SRRA. The defence asserted that NGOs received information regarding the number of internally displaced persons, where the people fled from, and why, from SRRA. The defence thus emphasised that this information was not from a neutral aid organisation. The defence concluded this chapter of its presentation by stating that it was important to keep this in mind when reading different reports from organisations describing the conflict in the area.   

Next report 

In the next report, we will continue to cover the defence’s presentation and, among other things, detail their description of the different armed groups fighting in the area. We will further report on the defence’s description of the attacks that occurred in the area, which are referred to in different internal security reports.