Report 13: Part Three of Ian Lundin’s defense’s opening presentation

This week’s proceedings saw Ian Lundin’s defense continue its presentation. They addressed the reporting from international organizations in the area, questioning its reliability. If you haven’t read last week’s report, you can find a description of the international community’s approach to oil extraction in Sudan here. The defense also spent time describing the conflict in Block 5A and adjacent areas, detailing how it had been influenced by military groups. They specifically addressed commander Peter Gadet’s relationship with the SPLA and the Sudanese military’s involvement in the conflicts.

Reporting from international organisations in the area

The defense presented various reports produced by international human rights and aid organisations active in the area during the time period covered by the indictment. The defense indicated that these reports were obtained from Relief Web, which coordinated the reports of international organisations. They pointed out that it was not entirely clear where these organisations obtained their information or how it was verified, and that the organisations were not consistently present in all areas because they would have to evacuate due to ongoing fighting. They contended that the reports often included sweeping descriptions of attacks without clearly specifying exactly when and where they had occurred.

According to the defense, the reports noted that international organisations collaborated with SRRA, which was SPLMA’s aid organisation (read more about this in our previous report) in areas controlled by SPLMA. Furthermore, the defense claimed that another organisation contributing to the reporting was the Relief Association in Southern Sudan (RASS), the aid organisation of the armed group SSIM. The defense acknowledged, however, that the reporting was relevant to the case as it provided information about the events in the area during the period covered by the indictment.

Reports from organisations such as the World Food Program (WFP), UNOCHA, UNICEF, and Operation Lifeline Sudan (OLS), a consortium of United Nations agencies and about 35 NGOs operating in Sudan, were cited by the defense. These included reports published on a regular basis throughout the year, as well as summary annual reports. Referring to a longer annual report from the WFP in 1999, the defense pointed out the inclusion of a special acknowledgment to SRRA for contributing information from their fieldwork, expressing gratitude for their “extremely valuable input.” The report described aerial bombardments and ground force movements in Unity State that displaced a significant proportion of the population, who fled to swamps and relief centers in the region and beyond. The defense argued that the report did not specify when and where these bombings had occurred and that they had not been mentioned in previous reports.

The defense also highlighted a report from UNOCHA dated 31 July, 2001, which the prosecution had discussed during its presentation. The defense argued that the prosecution had claimed that the report featured a statement by Kofi Annan expressing concern about the impact of military offensives on the civilian population in Block 5A. The defense pointed out, however, that upon closer inspection the press release revealed that the statement referred to military operations in the Bahr al Ghazal area, which did not affect Unity State or Block 5A.

Peter Gadet’s relationship with the SPLA and the prosecution’s interpretation of certain terms

In describing Peter Gadet’s relationship with the SPLA, the defense characterized him as a catalyst for numerous conflicts and hostilities in Block 5A from 1999 to 2003. His group was engaged in clashes with an SSIM faction, resulting in the plundering of their base camp. While certain reports suggested that Peter Gadet may have been allied with SPLA, Sudan Limited security reports indicated that he was not affiliated with them. It was noted that Gadet, for unclear reasons, found himself in conflict with Paulino Matiep’s SSUM, leading to multiple skirmishes and the deaths of family members on both sides. An internal security report on January 18, 2000, stated that Gadet was not part of the SPLA.

The defense explained how the Sudanese military became involved in certain conflicts in which Peter Gadet was also engaged. They contended that the Sudanese military was compelled to defend itself against ambushes and attacks by Peter Gadet’s forces. The defense referred to a March 5, 2002 Talisman report which detailed conflicts between armed groups, including attacks on civilians in the Nhialdu area. The report stated: “This area has always been of strategic importance and has been the main operating area for Peter Gadet since his defection from Paulino Matiep in May 1999.” Its assessment was that the attacks on Bentiu resulted in civilian casualties, justifying the Sudanese military’s intervention to dislodge Gadet from his base. The defense also asserted that the military attempted to mediate between the various armed groups and initiate peace talks.

According to the defense, conflicting information made it difficult to reach a clear answer as to which group Peter Gadet was allied. In an internal security report from February 2000, it was stated, “Gadet has aligned himself with SSDF in an anti-government coalition. It is too early to tell at this stage what the truth is.” A security report from August of the same year reported rumors that Gadet might receive a resupply of weapons and ammunition from the SPLA. However, the report ultimately deemed this scenario unlikely due to the distrust between Gadet and the SPLA’s leader, John Garang. A subsequent internal report revealed that Gadet had allegedly been denied a resupply of weapons and ammunition by SPLA. The defense concluded that it remained unclear whether Peter Gadet was involved with the SPLA.

The defense subsequently addressed the use of the term ‘cleared.’ According to the defense, it was not employed to describe areas as ‘cleansed,’ as the prosecution had claimed. On the contrary, it was used to describe them as ‘cleared for operations’ – in other words, indicating that they were cleared from a security perspective. The defense cited as an example an internal security report, which stated: “The town has been cleared by the GOS.” They argued that this meant that the government had deemed the town to be free from Gadet’s men. The defense concluded: “What we want to emphasize is that ‘cleared’ was used to convey that an area was approved from a security perspective.”

The defense then examined terms such as ‘perimeter zone’ and ‘buffer zone,’ arguing that the prosecution had suggested that these were zones in which only military forces were present. The defense, however, argued that they instead referred to areas in which militia groups should not have been present. They referred to various internal security reports that showed that these areas were actually ‘no-go zones’ for the local militias rather than areas to be cleansed of civilians as the prosecution had claimed. The defense also argued that the term ‘buffer zone’ had been misinterpreted by the prosecution, who had implied that these zones were part of a military strategy of driving away civilian populations. The defense contended that reports from Talisman showed that these ‘buffer zones’ were actually areas where trade was not permitted and had been introduced in consultation with the civilian population. Here, Judge Zander sought to clarify this by asking: “So ‘buffer zones’ does not involve any displacement of civilian populations?”  To which the defense responded that their position was that civilian populations had not been displaced.

The conflict in Block 4

The defense dedicated a section of their presentation to shed light on the situation in Block 4, which bordered Block 5A. They described the extensive conflicts that occurred in this area, emphasizing that the Sudanese military had a significantly larger presence there than in Block 5A. The defense explained that Mankien and Mayong were areas mentioned by the prosecutors and were sometimes referred to as villages and other times as regions. The defense interpreted this ambiguity to suggest that larger areas essentially fell outside the regions specified in the charges.

The defense further noted that the account of the conflict primarily relied on security reports from Talisman and argued that Sudan Limited had not been privy to these reports, which rendered them irrelevant to what Sudan Limited knew or considered regarding the matters mentioned. The defense suggested that although there may have been an informal exchange of information between the two oil companies, contrary to the prosecutors’ claims this was not done via any sort of formal process. Read more about the prosecution’s claim that there was an exchange of information between the oil companies in one of our previous reports.

The defense described the situation in Block 4 as significantly different from that in Block 5A due to the Sudanese military’s much larger presence in Block 4. The military had garrisons and bases there, and exercised control over significant portions of the area. The situation in Block 5A, to the contrary, was dependent on the various armed groups maintaining peace among themselves. It was mentioned that SPLA was active near Block 4, and a Talisman report from 1998 stated: “Garang has said that the oilfield is a target for the SPLA.” The information indicated that the Nuer groups in the area were not affiliated with John Garang’s SPLA, but there were risks in the form of tribal fighting. Talisman’s information suggested that the closest SPLA presence was in the Bahr al Ghazal areas, which did not fall within Block 5A.

The defense stated their intention to delve into the conflicts around the Nhialdu area, as it lay partially in Block 4 and perhaps partly in Block 5A. According to a February 2002 Talisman report, the Sudanese government had taken control of Nhialdu, with a Sudanese government TV team reportedly present on the scene to announce the victory. The report revealed that the Sudanese military’s attack on Nhialdu was directed against Peter Gadet, who was operating in the area. The attack was in response to Gadet’s indiscriminate grenade attacks on Bentiu, prompting the military to launch an offensive. The report also noted that the security situation had led to a lack of information since journalists and NGOs were not permitted to enter the area. Mark Reading, a Talisman employee, expressed concern that due to the absence of reliable sources, there was a risk that any information being reported could be exaggerated. He noted: “This means that all sorts of outrageous reports are likely to emerge. It is stressed that our reports state only what we know and no conjecture. Too often, unfortunately, people react to single-source unfiltered information.” The defense asserted that such reports did indeed emerge, and that they would examine these in detail later in their presentation.

On 26 January, 2001, according to a security report by Sudan Limited, a group likely belonging to Peter Gadet allegedly attacked a rig site, one of Ginpoc’s drilling locations in Block 4. A clash with the Sudanese military, triggered by the military’s increased presence in the area, ensued and lasted over two hours. The report noted that this event did not impact the security situation for Sudan Limited’s operational areas, as Mayom was situated far away. The next day, drilling commenced in Thar Jath in Block 5A by Sudan Limited, unaffected by the conflict situation. The report further mentioned the difficulty in obtaining information about Gadet’s group, estimating that it was composed of around 600 men but acknowledging other reports that suggested a potentially larger force. It stated: “It was assumed that the attack was by Peter G’s forces,” highlighting that the area had been significantly reinforced by the army in recent weeks, making an attack likely given its proximity to Gadet’s area of operations. The defense argued that Gadet caused significant concern, primarily in Block 4, but that this did not substantially impact Sudan Limited’s operations.

The defense described how, according to a Talisman report, the Government of Sudan carried out bombings in the Rier area on 22 May, 2002. The report indicated that Peter Gadet had previously relocated from the Mar-Mar area in response to the latest government offensives towards Mankien. The report stated: “The intended target for the bombing around Rier would almost certainly have been Gadet forces moving northwest from the southeast to Mankien.” The defense noted that they would not further analyze the bombing, as Alexandre Schneiter’s defense would address it, and would present additional information that called into question whether the bombing had even taken place. They added that there were indications suggesting that Norwegian People’s Aid had fabricated the attack.

The defense further highlighted that Talisman’s reports on the security situation in Block 4 showed that the Sudanese military conducted investigations into events perpetrated by members of their forces. The Sudanese government was reported to have investigated its soldiers at a higher level, leading to arrests and accountability for their actions. A Talisman report from 2002 read: “During last week’s field visit, it was learned that the military is conducting an investigation into alleged atrocities by their forces in the capture of Blu.” It also mentioned that a group of civilian women was transported to Blu to identify the men, who were subsequently held accountable for their actions. The defense argued that this information was relevant to the prosecution’s claim that the Sudanese military had carried out attacks against civilians.

The regime-allied militia groups and their organisation

On the last day of the week’s proceedings, the defense addressed the prosecution’s use of the term ‘regime-allied militia group.’ They argued that the prosecution had mentioned these groups during their presentation and that the term was used in point 6 of the statement of the criminal act. The defense once again pointed out that the prosecution had not defined this term, which made it hard for the defense to understand what they meant by it.

Based on the prosecution’s presentation, the defense interpreted the references to regime-allied militia groups as referring to the SSIM, SSUM and Murahelin. While the prosecution had argued that the Sudanese regime controlled these groups through their military, the defense on the other hand maintained that the government had neither the opportunity nor the capacity to do so. They were so disorganised that exercising control over them was difficult. The defense therefore argued that these groups did not meet the requirements to be considered an organised group under international law and denied any military coordination between the Sudanese government and the SSUM, SSIM and Murahelin.

In response to the defense’s claims about the prosecution, Judge Zander offered the prosecution the opportunity to comment, encouraging them to address these issues immediately rather than wait until their scheduled presentation. The prosecution responded that the groups mentioned by the defense were indeed the ones they had referred to, but in their view, these regime-allied groups could be considered organised groups under international law. At the same time, they emphasized that this was not a critical issue because the armed conflict between the SPLA and the Sudanese government had a nexus to the events that occurred in Block 5A. The prosecution clarified that regardless of whether the armed groups were organised, disorganised, or consisted only of a few individuals, this had no bearing on the issue of the armed conflict. The decisive factor in the prosecution’s view was that there was an ongoing conflict between Sudan and the armed group SPLA, which met the requirements of an armed group under international law, and therefore an armed conflict existed.    

Furthermore, the prosecution explained what they meant in describing the Sudanese government as acting ‘together’ with regime-allied militia groups, as was stated in the statement of the criminal act as charged. Here, the prosecution clarified that the word ‘together’ should not be understood as meaning that the Sudanese government and the regime-allied militia groups had always carried out attacks together. Sometimes they were done together, but in other instances the groups attacked on their own initiative.

As to the issue of control over the armed groups, the prosecution observed that the defense had described the situation as a second-tier conflict. This, the prosecution stated, was the very core of what was meant by war by proxy and the strategy of divide and rule. They noted that they had described these issues repeatedly during their presentation, but that in light of the defense’s characterization, they would address this further in their upcoming presentation. They further clarified that they were not claiming that the Sudanese regime or the military would have given regular orders or assignments to the militia groups as they did with regular armed forces. Rather, what they alleged was that the regime used various proxy forces – including militia groups – to achieve its goals. In the case of Block 5A, they asserted that the regime used proxy forces to take control of the area in order to enable the Lundin companies to operate and thereby obtain oil revenues. The prosecution also emphasized that the militia groups did not necessarily share the regime’s goals and may very well have had their own goals based on the second-tier conflicts, but that they were lured over to the regime’s side by money, weapons, and ceasefires with the military.

This sparked much discussion in the courtroom as both the Lundin and Schneiter defense teams felt that the prosecution’s explanations of the nexus between the conflict in Block 5A and the civil war were unclear. Per Samuelsson sought clarification about the nexus, asking where in the description of the criminal act a statement about the nexus could be found.

To explain, the prosecution returned to point 1 in the description of the criminal act, which stated that an armed conflict had been going on for a long time in Sudan between the government and the armed group SPLA. From that time, the armed conflict also came to involve the criminal acts described in the pleadings, including indiscriminate attacks against civilians. The central point, as the prosecution maintained, was that the events that took place in Block 5A had a nexus with the ongoing armed conflict. The prosecution then noted that in order to explain yet again where the nexus exists, they would essentially need to repeat their opening presentation. The defense, however, took issue with this, saying that they still did not understand what the nexus was. The judge also invited the prosecution to return to this issue and clarify the confusion so that the court and all parties were clear as to what the questions before the court are.

The prosecution continued to explain their position that the situation in Block 5A was connected to the wider armed conflict going on in the country between the SPLA and the government, and therefore a nexus did exist. During the time period in question, there was an increased interest in Block 5A from both parties to the armed conflict. Here, the prosecution returned to the issue of what characterizes a war by proxy, reiterating that not all groups involved necessarily need to have the same goals. They likely have their own interests. However, the prosecution emphasized that a key feature of a war by proxy is that these interests can be exploited to achieve a larger overall purpose, which is what occurred. The prosecution concluded that there was a connection – and thus a nexus – between the conflict between the SPLA and the government and the events that occurred in Block 5A. Ultimately, they agreed to return to the issue during their scheduled presentation later in the trial.

The defense, however, expressed that they still did not understand the prosecution’s explanation of where the nexus existed, and argued that getting clarification was essential in order for them to be able to put on an appropriate defense. Alexander Schneiter’s attorney pointed out that the prosecution’s claim about the nexus was new and was not present in the statement of the criminal act as charged, stating “We will only deal with what appears in the statement of the criminal act as charged. This is a criminal trial so we will deal with this and nothing new that comes to light now.”

Next report

This week marked the last week of trial proceedings for this year. The court will now take a break due to the holidays and the proceedings will resume on 9 January, 2024. We will continue to report on Ian Lundin’s defense presentation and their arguments in the case as the trial continues in 2024.