Report 15: Part Five of Ian Lundin’s defense’s opening presentation

During this week`s proceedings, Ian Lundin`s defense continued its presentation. They started off by finishing their last section on roads. The defense then spent most of this week`s proceedings addressing various NGO reports and describing the UN, the EU and Sweden`s approach to Sudan and oil operations. 

The road in the operational area MOK in Nhialdiu 

The defense stated that as the aiding and abetting charges outlined in point 9g, h, and j of the indictment contain various allegations about the construction and cost of the road in Nhialdiu or the operational area MOK (as it has also been called), it was necessary to provide certain facts regarding the road in question. They argued that when discussing the road, it was crucial to know where the road was built, when the road was built, who funded the road, and why the road was built.  

The defense claimed that the road was built as a longer detour from the all-weather road and that it went through the area referred to as MOK by the prosecution. However, according to the defense, the exact location of the MOK area was unclear. They then showed satellite images in Google Maps where one could see a road, now known as B58, through South Sudan and pointed out that the detour road from the all-weather road to Nhialdiu appeared to be flooded. They stated that they were uncertain as to whether the road displayed on the screen in the courtroom was the road in question, but it appeared to be so. The defense further argued that it was difficult to specify exactly when the road was constructed. However, the road was mentioned in the company’s internal security report from April 2002. Hence, the defense concluded that it was likely built in the spring of 2002. They then continued to discuss the question of who funded its construction. According to the indictment, Lundin Oil helped finance it. However, the defense argued that although the company submitted a bid to construct the road and its bid was considered the most favourable, the original plan was for Lundin Oil to build one part of the road while the Ministry of Energy would build the other part. The defense asserted that this plan did not materialise and supported this claim by presenting a document indicating that the company constructing the 24-kilometre road invoiced the Ministry of Energy, with Lundin Oil receiving a copy. According to the defense, there was, nevertheless, no formal contract between Lundin Oil and the company that constructed the road. The defense further claimed that the accepted bid did not result in a contractual agreement for the road. They also argued that it was constructed according to other compensation provisions. The defense then presented other documents from February 2003 related to an inspection of the road and a draft of an inspection protocol. In one section of the protocol, it is stated that the company never formally received a contract to construct the road, but also that Lundin Oil would pay for the first 12 kilometres of what was intended to be a 22-kilometre road. The defense stressed that the road instead was 24,8 kilometres long, thus longer than what was stated in the bid. As to why the road was built, the defense stated that there was no definitive answer. However, their position was that the road was built to benefit civilian society and was important for the civilian population. They referred to a UN press release from the summer of 2019 entitled “Renovated road in Rubkona represents new path to prosperity,” describing how the road was revamped in order to promote economic growth in South Sudan. According to the defense, the investigation therefore suggested that the road was constructed due to its importance to the local population.  

Reports by various NGOs and allegations about displacement 

The defense then presented various NGO reports from the time period covered by the indictment. The allegations that the Sudanese military had attacked and displaced civilians to enable oil operations were, according to the defense, first made public in October 1999 through UN Special Rapporteur Leonardo Franco`s reporting. The defense highlighted a lack of sources in Franco’s report concerning the allegations but still mentioned several specific events that had allegedly taken place. The report stated, among other concerns, that the Sudanese military had allegedly burned down 6000 homes to clear areas around the oil fields and killed civilians. The defense questioned the credibility of Franco`s report by first noting that he never visited Block 5A. They also claimed that if one were to compare this information with other reports referenced in the preliminary investigation, it appeared that the allegations in Franco`s report stemmed from Christian Solidarity Worldwide, which published a press release in June 1999 stating that 6000 homes had been burned down. The defense then showed another press release stating that representatives of Christian Solidarity Worldwide had visited the area. A report from June 1999, published after the trip, mentioned that the participants had visited various areas. According to the defense, the report showed that SPLM/A representatives were on the trip and therefore it could be concluded that Christian Solidarity Worldwide`s information was obtained together with SPLA. The defense then contended that they would later show that the interviews upon which the allegations were based were staged by the SPLMA. The defense further pointed out that the filmmaker, Damien Lewis, was also on that trip and wrote the article “Fight for Sudan’s Oil is Killing Civilians,” which was widely quoted in several subsequent NGO reports.  

The defense also referred to the Harker report from January 2000, “Human Security in Sudan: The report of a Canadian Assessment Mission.” They pointed out that the Canadian investigators had spent time at Talisman`s company base in Heglig and visited several villages in the surrounding area. However, the defense emphasised that the report did not explicitly mention that the investigators visited villages in Block 5A. The defense further questioned the report’s conclusions about war and displacement as it was unclear as to how these conclusions were drawn. The defense claimed that a general problem with the Harker report was that it was difficult to determine how the information was obtained and how it had been verified by the rapporteur.     

Another NGO report cited by the defense was “Unfinished Business in Upper Nile” authored by Mariam Ayoti on behalf of International Ecumenical Church Agencies, whose objective was to interview victims in the oil areas. The defense claimed that the author herself acknowledged that interviews were conducted in the presence of members of the rebel aid organisation SRRA, which made the interviewees feel uncomfortable. Moreover, the author openly acknowledged that the statements made by the interviewees could seem incoherent. Consequently, the defense emphasised the inconsistency in the report´s information, highlighting the challenge of determining the specific events, including what, when, or how they occurred. They also asserted that the report was not based on information collected by interviewees, but rather on other previous NGO reports.  

Turning to Amnesty International’s report from May 2000, “Sudan – The Human Price of Oil,” the defense claimed that the report lacked references and thus was difficult to scrutinise. The defense argued that there were no sources for the report’s allegations that mass executions were carried out to protect the oilfields. They also claimed that there was no specificity and mention of when, where and how the areas around the city of Bentiu were cleared. The report asserted that oil companies were complicit in human rights abuses by turning a blind eye to what was happening. The defense highlighted that despite these grave allegations, Amnesty, in its conclusions, stated that it could not identify a causal link between the alleged abuses and the oil activities. The defense also emphasised that despite the serious allegations, Amnesty did not urge oil companies to leave the area.  

The defense then presented the Christian Aid report “The scorched earth”, which was one of the reports that the prosecution used in their presentation. The defense noted that the Christian Aid report prompted Lundin Oil to produce its own report “Lundin Oil in Sudan” in order to investigate the allegations. The company’s report ultimately concluded that none of the allegations made by Christian Aid were accurate. The defense explained that the Christian Aid report indicated that the Sudanese army was using the tactic of burning both the earth and tens of thousands of homes to create conditions for oil operations, including in Block 5A. The report further mentioned that an aid worker witnessed villages that had been burned to the ground. The defense claimed that the source was an “independent aid worker” who flew over the area and listed the burned villages. They further pointed out that the report contained specific details of four attacks that were said to have happened in Block 5A. The defense stated that although 22 villages were named in the report, only these four alleged attacks were described. This information was, according to the defense, based on an interview conducted in Nhialdio in May 2000. Even if there had been fighting in the north after rebel groups attacked, the defense stated that the Lundin Oil report found that the allegations were not accurate as the company’s own security advisers, who had been present in the region throughout that time period, had not witnessed the occurrence of forced displacement. The defense then considered the four different attacks one by one, ultimately concluding that all allegations were inaccurate and none of their findings were consistent with the information in the Christian Aid report. The defense further argued that the allegations made in the Christian Aid report were then disseminated in later NGO reports.  

The defense also referred to a report written by the European Coalition on Oil in Sudan entitled “Depopulating Sudan`s Oil Regions” which was based on trips into the field conducted in late March 2002. However, they stated that the authors of the report did not in fact visit Block 5A during these trips. The report described how the military`s combat aircraft had killed and displaced thousands and that the bridge over the river had only enabled the Sudanese army to rape, kill and displace civilians. The defense, however, claimed that according to a UNICEF report, the bridge could instead be described as essential for increased humanitarian interventions in the region.  

The defense also referred to another Christian Aid report from May 2002 that stated that the Sudanese Government (GOS) had allegedly engaged in widespread and deliberate displacement of civilians. The defense pointed out that the report itself clarified that a previously reported figure of 200,000 displaced civilians in the area (the information the field team received from SPLM/A) actually appeared to be inaccurate and that the team’s revised estimate was closer to 50,000 civilians. The defense pointed out that the report, however, still did not describe how they arrived at that conclusion.  

The defense continued to cite reports from organisations such as ICI Foundation, Human Rights Watch, and International Crisis Group. They claimed that the more “recent” reports referred to earlier reports that listed the same information about army attacks on the civilian population. The defense therefore highlighted that there were no new first-hand sources as the more recent reports were based on the information in the first reports (e.g., the first Christian Aid report). What did exist, however, was information from witnesses about factional fighting amongst the rebel groups. The defense also emphasised that the 2003 Human Rights Watch report referred to earlier reports multiple times and that it therefore contained only five “new” interviews. The defense claimed that none of these five interviewees stated that they had been attacked by the Sudanese Army. The defense further noted that the Human Rights Watch report referred to the May 2000 Amnesty report and they argued that what was stated in the Amnesty report – that thousands of people had been displaced due to oil extraction – was not accurate as Amnesty, according to the defense, did not conduct any interviews with internally displaced persons. Moreover, although the Human Rights Watch report stated that oil companies had benefited from areas being cleared for their operations, the defense claimed that they had shown that there was no concrete evidence or events proving that there had been any systematic attacks by the military aimed specifically at civilians and displacement of people. 

The Civilian Protection Monitoring Team 

The defense then proceeded to shed light on the Civilian Protection Monitoring Team (CPMT) and its activities. They highlighted the agreement signed in March 2002 between the GOS and SPLM/A, leading to the formation of the US-led CPMT, which was tasked with monitoring and investigating attacks on civilians. The prosecution used several CPMT reports in their presentation to show documented abuses (read more about this in our previous report). The defense, however, stated that before reading the CPMT reports, one must understand the US’s relationship with Sudan. The defense summarised the US view of Sudan with Madeline Albright`s, the former US Ambassador to the UN, words that the country was a “viper’s nest of terrorists.” The defense then detailed historical events, including US trade sanctions against Sudan and a 1998 bombing of a pharmaceutical factory in Khartoum that the US suspected of producing nerve gas, and whose owner was believed to have contact with terrorist groups. Although there was no proof that chemical weapons were in fact being produced in the factory, the defense pointed out that the US continued to oppose Sudan. They described how in October 1999, a US official met with rebel leaders and afterwards urged the Canadian government to impose sanctions on Sudan in order for Talisman to cease its operations in Sudan. The defense stated that this request resulted in the Canadian government tasking John Harker to travel to the region to investigate the situation. The Harper reports could thus, according to the defense, be attributed to the US. They emphasised that this background was important in understanding the initial reports from the CPMT, which were critical of Sudan, and further argued that the CPMT was fundamentally not a peace agreement but rather had the aim of protecting civilians. The defense contested the prosecution`s claims that the government had promised to cease attacks on civilians, asserting that the commitment was instead to refrain from such attacks. According to the defense, it was thus a difference between to “cease” and to “refrain” from attacking civilians. However, they emphasised that, as far as they knew, the GOS had not deliberately engaged in attacks on civilians. The defense then referred to a peace agreement between the SPLA and GOS from February 2003 which stated that the parties should stop using propaganda against each other. The defense pointed out that this suggested that the initial reports were influenced by the propaganda, and further argued that one should be careful when reading these reports as they show the US’s involvement in Sudan.  

The defense then continued to go through several CPMT reports. They contested a particular report`s conclusions regarding the displacement of civilians by a militia force in Lel in January 2003, highlighting the lack of clarity as to who was behind the attack. The defense indicated that they had previously sought clarification from the prosecutor regarding who they believed committed the attack but had not received an answer. The defense noted that a draft of the indictment used the phrase “unknown perpetrators under the leadership of Peter Gadet attacked the village of Lel,” which the prosecution did not include in the indictment. The defense then referred to another report from the CPMT where new information emerged about burned and cleared villages. The defense argued that the report failed to specify the villages in question or elucidate the extent of GOS’s involvement. They further contended that other reports presented by the prosecution lacked signatures and therefore were not official CPMT reports. In a final CPMT report, the defense noted that it was new American military personnel that signed the reports of abuses against civilians in the spring of 2003 but also that the allegations now targeted SPLA. The defense further argued that the CPMT´s reports after 2003, due to new personnel, became more objective and directed increased criticism toward SPLA. Based on their examination of the reports, the defense concluded that the displacement of civilians as alleged by the prosecution had not occurred and that the allegations were not reported as committed against civilians by the GOS, as indicated in the indictment`s description of the criminal act.  

The UN, the EU, and Sweden`s approach to Sudan  

The defense spent a long time explaining the UN, the EU, and Sweden`s views on Sudan. They stated that a UN Special Rapporteur was not a UN employee, but rather an individual hired by the UN who reported to the organisation. Therefore, according to the defense, the UN Special Rapporteur’s reports did not represent the UN’s official stance. The defense pointed out that the prosecution had presented reports from three different Special Rapporteurs – Gaspar Biro, Leonardo Franco and Gerhart Baum. Biro submitted ten reports between 1993 -1999, and the defense noted that none of these reports mentioned crimes against international law or other crimes related to oil activities in Sudan. They thus argued that it was strange that the prosecution presented a submission by Biro in the Talisman case (an action for damages), considering Biro had not commented on the question of oil companies and civilians. During the years 1998-2000, Franco submitted four reports about the situation in Sudan and mentioned allegations against the GOS related to displacement in “oil producing areas.” The defense emphasised that those allegations were made with no indication of sources and that there was no precise information about the location of the “oil producing areas”. Here, the defense also pointed out that Block 5A had no oil production, therefore it could not be the area referred to as “oil producing areas” in the report. The defense further argued that Franco referred to various NGO reports in his reports, but never visited the oil fields himself. The defense described that Baum`s first report was an oral presentation before the Commission on Human Rights and that he met with representatives from SPLMA and various NGOs. The defense noted that Baum`s reporting on the correlation between oil exploitation and the intensification of the conflict lacked cited sources. According to the defense, the formulations used by Baum indicated that the information was taken from the Christian Aid report. The defense also explained that Baum, prior to his oral report, met with Ian Lundin, during which Lundin expressed that the NGOs claims were inaccurate. The defense underscored that despite this meeting, Baum did not incorporate Lundin Oil`s perspective on the matter in his reporting. Furthermore, the defense highlighted that Baum never visited Block 5A and did not urge oil companies, either in his oral or written reports, to cease operations temporarily or permanently.  

The defense further argued that NGOs hold a distinctive status within the UN system and are often involved in consultative roles. However, the defense highlighted that there were also less flattering elements and presented a SIDA Evaluation Report from 1994, which criticized NGOs. According to the defense, NGOs and aid organisations within the UN system had collaborated in an “NGO working group on the Security Council” to advocate on issues before the Security Council.  

The defense further described a Security Council decision related to Sudan that illustrated that the Security Council closely monitored the situation there during this period, but did not issue any decisions, either binding or non-binding, regarding oil activities in the country. In the decision, as described by the defense, the Security Council had urged Sudan to comply with a request from the African Union to extradite three individuals suspected of attempted murder to Addis Ababa, Ethiopia.  

In response to the various UN reports mentioned by the prosecution, the defense acknowledged that the UN during the period covered by the indictment had criticised Sudan for its disregard of human rights but contended that this was not the focus of the current criminal case. The defense stated that the prosecution had presented eight UN resolutions as evidence. As to one of the resolutions, the defense claimed that it was based on Gerhart Baum`s reports and that it contained a point criticising the situation around “oil fields.” The defense pointed out that there were no such fields in Block 5A. Another resolution, adopted by the General Assembly in December 2002, also referenced “oil areas” in connection to internal displacement. The defense made a similar remark here and stated that it was not clear which oil fields the resolution text was referring to but concluded that the resolution’s text was based on Baum`s reports. The defense further described how during a UN conference in May 2001, in which Sudan also participated, the Brussels Declaration was adopted. Christian Aid and ECOS were also present at the conference, which, according to the defense, suggested that NGOs wanted to influence policymakers. They claimed that according to Sudan`s own programme, it was clear that Sudan encouraged domestic and foreign companies to develop the oil sector. The defense also pointed out that despite criticism from NGOs, UN Secretary General Kofi Annan never criticised oil extraction or initiated investigations into oil-related crimes. The defense stated that the prosecution mentioned that Sudan was subject to international sanctions and had been excluded by the International Monetary Fund (IMF), but that the defense did not share these views. They presented a World Bank report from 1999 which stated that the IMF had lifted its decision of “non-cooperation” against Sudan. They then referred to an IMF report from 2000, arguing that the IMF actually had a favourable assessment of oil production in Sudan as it contributed to the country’s growth and loan repayment capability.   

The defense then described the EU’s position on oil operations in Sudan. They asserted that the EU closely monitored developments in Sudan during the period covered by the indictment and that a political dialogue between the two parties had been ongoing for a long time. The defense argued that the prosecution only referenced one EU document, which condemned civilian bombings. However, those bombings were, according to the defense, carried out during an incident unrelated to the company. The defense claimed that other EU documents encouraged oil companies to employ and educate the local population in Sudan. They emphasised that this position was incompatible with the accusations and argued that the EU was involved in development cooperation with Sudan and held numerous meetings with the country. According to the defense, the EU never mentioned that oil operations had contributed to the conflicts in Sudan, but rather had noted that they posed an environmental risk. The defense further argued that the EU was aware of the NGO criticism of the oil industry and subsequently carried out two fact-finding missions in 2001 to investigate the allegations of displacement and burned villages (read more about this in our previous report). The defense highlighted that the results of these fact-finding missions indicated that the allegations were inaccurate.  

The defense also described Sweden`s approach to oil operations in Sudan, noting that Sweden never initiated its own investigation regarding the allegations. They argued that extensive email correspondence between Swedish authorities and Lundin Oil illustrated that the Swedish government was informed about the situation in Sudan. According to the defense, this also indicated that the human rights situation did not constitute an obstacle to conducting oil activities in Sudan. The defense noted that in several parliamentary debates, the Swedish government expressed its stance on the company’s activities in Sudan (read more about this in our previous report). They also pointed out that although the company had invited the foreign minister, Anna Lindh, to visit Block 5A, she never did so. The defense emphasised that this suggested that the Swedish government believed that there was no need to investigate Block 5A.  

Measures taken by Lundin Oil following the reports of forced displacement  

The defense then continued to describe the actions taken by Lundin Oil in response to receiving information from NGO reports about human rights violations related to oil activities in Sudan. The defense stated that when allegations began to emerge about the use of forced displacement in oil-producing areas to enable oil activities, Lundin Oil hired an operations manager, Christine Batruch, who established a fact-finding mission in Sudan in November 1999. The defense then displayed an email on the courtroom screens in which Batruch reported her conclusions from the fact-finding mission to Ian Lundin. Batruch had concluded that she had found no evidence of displacement and that the causes and intensity of the fighting in Unity State were difficult to ascertain. The defense further described how Batruch, based on the material from the fact-finding mission, later wrote the “Report on Lundin Oil AB operations in Sudan” in which she made recommendations for the company to implement.  

The defense then explained that the security situation in Sudan deteriorated in 2000, which led to a temporary cessation of the company’s oil operations. Consequently, Batruch wrote a report in May 2000 in which she summarised these developments. The defense further explained that during this time, Lundin Oil was mentioned in new NGO reports and in the media. According to the defense, Batruch pointed out that the new reports were of varying quality. They cited in particular her comments on the Amnesty International report “The Human Price of Oil” in which Batruch wrote that most of Amnesty’s recommendations had already been implemented by Sudan Limited, e.g., human rights training for security personnel.  

As the defense described, Batruch transitioned to a position as the company’s Head of Corporate Responsibility in 2001 and established regular contact with various NGOs. They argued that following the Christian Aid report alleging human rights violations, Lundin Oil conducted their own investigation and found that the allegations did not correspond to their observations. The defense presented a March 2001 email from Ken Barker, head of Sudan Limited`s operations in Sudan, to Ian Lundin which stated that “the primary problem in the area had traditionally been inter-factional fighting.” The defense then explained that in March 2001, Ian Lundin visited Block 5A and summarised his observations in a report. They described how Ian Lundin talked to locals in the area and stated that the people believed that the road was beneficial and that the small camps of soldiers present were there as a preventive force and did not engage in civilian attacks. The defense also explained that the company implemented a code of conduct in 2001 and that by implementing the code, Lundin Oil undertook to ensure certain values, such as the protection of human rights. The defense pointed out that several different people, both within and outside the company, carried out checks and visited the area. The defense emphasised that based on these individuals own observations and information obtained from the local population, they could conclude that the allegations made in the Christian Aid report were inaccurate.  

The defense also stated that in 2001, Christine Batruch established regular contact with the Swedish government, primarily with Pereric Högberg from the Ministry of Foreign Affairs. According to the defense, this contact consisted of information exchange and consultation. They claimed that Batruch regularly updated the Ministry on Sudan Limited`s activities. The defense asserted that it also appeared from the communications that the Ministry was actively following the situation in Sudan and was aware of the reports from the UN Special Rapporteurs and various NGOs. Here, the defense sought to stress that the Ministry of Foreign Affairs was well-informed about the situation in Sudan and that in communications between Lundin Oil and the Ministry, the Ministry never stated that the company should cease operations.  

Next report  

In the next report, we will continue to cover the defense´s presentation and report on Ian Lundin´s position on the aiding and abetting charges in point 9 of the indictment. We will also describe the prosecution’s position on the existence of a non-international armed conflict and the nexus to the alleged criminal acts in the indictment.