Report 16: The Last Part of Ian Lundin’s defense’s opening presentation
Ian Lundin`s defense completed the final segment of its opening presentation this week, which focused on explaining Ian Lundin`s position on the charges of aiding and abetting in point 9 of the indictment. On the last day of this week’s hearing, the prosecution also had the opportunity to develop their position on the existence of a non-international armed conflict and the nexus to the alleged criminal acts in the indictment.
Lundin´s position on point 9a of the indictment
According to point 9a, Ian Lundin, sometime between 3-17 May 1999, decided that the Lundin companies should present demands to the Sudanese government (GOS) that the military should take over responsibility for securing and creating the necessary conditions for Sudan Ltd.’s operations. It is further alleged that, following this decision, these demands were presented to the GOS, which accepted the request at a Joint Management Committee (JMC) meeting on 8 June 1999. Per the indictment, it was by initiating this agreement that Ian Lundin aided and abetted the GOS`s subsequent crimes.
The defendant denied that he made the decision outlined in point 9a of the indictment and further denied all the other allegations in the same paragraph. The defense also argued that the indictment lacked a sufficiently detailed description of the link between the act of aiding and abetting and the alleged principal offense. As to the alleged demand that Lundin made to the GOS regarding security in Block 5A, the defense argued that the allegations were incorrect and that no such demand was made. The defense emphasised that, prior to May 1999, no one had been assigned responsibility for securing and creating conditions for Sudan Ltd.’s activities. Regarding the allegation that Sudan Ltd. representatives made a claim to the GOS, the defense contended that there had not been any discussions about the Sudanese military undertaking offensive military operations in Block 5A, let alone attacks against the civilian population to create conditions for the company’s operations. According to the defense, what had been discussed was the possibility of passive protection by having Sudanese military act as a guard force. However, they noted that such a guard force was not deployed in 2000 and that the guard force deployed in 2001 had nothing to do with the JMC meeting of 8 June 1999. Furthermore, the defense highlighted that the GOS did not accept any such alleged demand, either at the JMC meeting or on any other occasion.
They then showed documents from the JMC meeting, which stated that the Sudanese army would function as a guard force. According to the defense, this indicated that the discussions about a defensive guard force did not include killing civilians or conducting offensive military operations. They also noted that none of the Sudanese individuals present at the JMC meeting on 8 June 1999 were military or government representatives, but rather civilians with appropriate education. The defense also pointed out that Ian Lundin, during the period of May 3-17 1999, had not made any decisions or otherwise acted on matters related to the activities or safety of the operations in Block 5A. He could not, therefore, have influenced the GOS in any respect.
Lundin´s position on point 9b and c of the indictment
Point 9b asserts that sometime around 8 November 1999, Ian Lundin, on behalf of Sudan Ltd., entered into a Security and Road Agreement with the GOS. It is further alleged that he did so with the understanding that the agreement meant that the Sudanese military and regime-led militia would have to carry out offensive military operations, in preparation for the construction of an all-weather road between Rubkona and Thar Jath.
The defense argued that although it was correct that Ian Lundin had signed the Security and Road Agreement, the agreement did not entail the Sudanese military conducting offensive military operations or attacks against civilians. According to the defense, the agreement concerned passive security. They also noted that the agreement was never signed by all parties and therefore was not binding. The defense pointed out that Lundin had not entered into the agreement with the understanding that it meant that Sudanese forces would conduct offensive military operations, including systematic attacks against civilian population. The defense also denied that his signing of the agreement influenced any subsequent actions taken by the GOS, its military, or regime-led militia.
The defense then moved on to point 9c of the indictment, which alleges that Ian Lundin, at a JMC meeting on 25 November 1999, demanded that the GOS create conditions enabling the company’s operations. This was done by representatives of the company presenting a proposed work programme for 1999/2000 at the meeting. The work programme included the construction of an all-weather road from Rubkona to Thar Jath and planned seismic activity in the Jikany area. It further alleged that Lundin, prior to the meeting, had decided on the proposal for the programme and that it would be presented at the JMC meeting.
The defense stated that it was correct that the work programme included the construction of an all-weather road and plans to conduct seismic activities, which were presented at the JMC meeting. However, the defendant denied that the presentation stated that seismic activity would be carried out in the Jikany area. To support this, the defense displayed on the courtroom screens documents from the JMC meeting and stated that there were no details of where the seismic activities were to be carried out.
The defense further argued that Ian Lundin had not decided on or approved the draft work programme or the later work programme that was presented at the JMC meeting. The defense also claimed that Lundin was not present at the meeting and that the presentation at the JMC meeting only meant that Sudan Ltd. and the Consortium presented a work programme for the 2000 season. They stressed that the presentation of the programme did not imply that the company made any demands of the GOS to kill civilians to enable road construction and seismic activities in the Jikany area. The defense refuted the claim that offensive military operations were carried out by the Sudanese military to enable the construction of the all-weather road or seismic activities, noting that due to the security situation, no seismic activities were conducted in 2000.
Lundin´s position on point 9d of the indictment
Point 9d asserts that Ian Lundin, at a meeting on 21 February 2000, demanded that the GOS create conditions for operations in Block 5A and that a transportation route between Bentiu and Thar Jath be commissioned by 15 March 2000. Once again, it is alleged that he made this demand with the knowledge that the Sudanese army, together with regimented militia, would have to conduct offensive military operations to fulfill those demands.
Following the evacuation of Block 5A in May 1999, Sudan Ltd. initiated considerations for resuming operations towards the end of 1999. The defense referred to an internal security report, describing that the security situation along the rig road was calm, but that the area towards Thar Jath was still troubled by flooding due to the rainy season. On 13 January 2000, a helicopter attack in Bentiu occurred, resulting in a reassessment of the security situation by Sudan Ltd.´s security experts. The defense stated that an incident report from 2000 indicated that Bentiu was considered unsafe, which led to new safety recommendations being made. The defense highlighted the challenge of resuming operations since the only vehicular access to Block 5A was via the ferry at Bentiu. On 16 February 2000, the area of Thar Jath was, according to the defense, accidentally attacked by Sudanese aircraft. Referring to the report “Airborne Mortar Attack: Thar Jath”, they asserted that the incident resulted in a meeting on 20 February 2000 in Khartoum, attended by the Minister of Defense, the Minister of Energy, and Ian Lundin. The defense pointed out that according to the same report another meeting was held the following day, i.e., on 21 February 2000, and it was this meeting that point 9d referred to and that Ian Lundin was said to have attended. However, they emphasised that Lundin did not in fact attend this particular meeting. To prove this, the defense presented notes from the meeting, which stated that the participants were IPC personnel. They underscored that in point 23 of the meeting notes, Lundin was listed as a representative of Lundin Oil, not as IPC personnel.
The defense further argued that during the 21 February 2000 meeting, Sudan Ltd. presented conditions for starting up operations in Block 5A in the first half of 2000. Referring to an eight-point report entitled “Recommendations for re-activating petroleum operations in Block 5A”, the defense highlighted several key points. The first point stated that Sudan Ltd. wanted to obtain written assurance from the GOS that the planned activity would be given the highest priority in order to start the operations safely. According to the defense, this concerned whether a guard force could be prioritized to ensure safety. However, the defense asserted that they could not find a reply from the Ministry and therefore concluded that it was unclear whether the company had ever received a response. The second point indicated that the seismic operations had been cancelled for the season. The defense pointed out that this was the document on cancelled seismic activities that they had previously mentioned in connection to point 9c of the indictment. The fourth point set a deadline for the rig road to be fully operational by 15 March 2000, corresponding to the information in point 9d of the indictment. The defense argued that the reason for this particular date was that the company did not consider it to be economically justifiable to start up operations for the season beyond this date. The fifth point stated that no more security incidents could occur, which the defense argued was contrary to the allegation that the company required offensive military operations to be carried out. The eighth point stated that civilian vehicles would be given military protection for travel between Rubkona and Thar Jath. Here, the defense stressed that the GOS had absolutely not been required to carry out offensive military operations. Instead, they claimed that what was conveyed at the meeting were the security assessments made by security officials of the conditions necessary for starting up operations. In summary, the defense asserted that Ian Lundin denied making the demand referred to in point 9d and all other circumstances mentioned in the same paragraph.
Lundin´s position on point 9i, j, and k of the indictment
Point 9i refers to the “Assignment and Novation Agreement” that Sudan Ltd. entered into on 8 January 2002 with the GOS, whereby the company undertook to pay for the construction of an all-weather road between Jarayan and Leer. Prior to that, Ian Lundin had allegedly decided that Sudan Ltd, should enter into the agreement.
In 2001, a dry season road from Jarayan to Leer was built. At an earlier stage in its presentation, the defense had stated that they did not have any definite information about who constructed the road, but claimed that it was built under the auspices of Sudan Ltd. or the GOS. The defense further claimed that the road was desired and appreciated by the civil society and the local population. As the dry season road could not be used during the rainy season, there was, according to the defense, a need for the road to be converted to an all-weather road. The Consortium therefore considered the issue of the road conversion during the OCM meeting on 10 July 2001, as part of the planned community development work. In late November or early December 2001, Sudan Ltd., represented by Ken Barker, entered into an agreement with a contractor for the conversion of the road. However, at the end of December the seismic activities were suspended, and the block was evacuated due to safety concerns. The defense explained that the work was interrupted and resumed on numerous occasions. The defense then went on to state that Ian Lundin denied making the decision alleged in point 9i. According to the defense, what was accurate was that on 8 January 2002, Sudan Ltd. signed the agreement, thereby transferred an existing agreement for the conversion of an existing dry season road to the Ministry of Energy. They argued, however, that the agreement provided for a continued commitment to pay the contractor for building the road, not the GOS. Finally, the defendant denied all other circumstances in point 9i.
Before addressing point 9j, the defense pointed out that they would now focus on the route to Leer and then return to the route to MOK, which is also included in point 9j. Point 9j asserts that at some point after 8 January 2002, Ian Lundin decided that Sudan Ltd. should reinforce its commitment to pay for the all-weather road to Leer, and that this decision was communicated to the GOS on 22 March 2002.
The defense then referred to two draft letters one dated 5 March 2002 and another one dated 22 March 2002, that the prosecution had shown during its presentation (see our previous report). As to the first draft, the defense contended that the draft agreement seemed to be incomplete. They emphasised that it was unclear from the evidence in the case whether the draft had been sent as a letter. Regarding the second draft, they pointed out that it lacked a letterhead with the company’s logo and was also unsigned. After displaying the draft in the courtroom, the defense concluded that it contained numerous serious inaccuracies, making it unlikely that it had been sent. They also argued that the draft did not result in an agreement, as the terms set out were never agreed upon. The defense then outlined Ian Lundin`s stance on the allegations concerning the route to Leer, stating that Lundin denied making the decision referred to in point 9j and all other circumstances mentioned in the paragraph. Lundin further denied that a document corresponding to the draft of 22 March 2002 was sent to the Ministry of Energy, and that he had decided that Sudan Ltd. would continue to fund the all-weather road and that such at demand had been made to the GOS.
The defense proceeded to point 9k, which alleges that Sudan Ltd., sometime between 13-20 October 2002, entered into a supplementary agreement to the agreement of 8 January 2002 with the GOS in which the company confirmed its previous commitment to pay for the all-weather road between Jarayan and Leer. It is further alleged that Ian Lundin made the decision with knowledge that the agreement meant that the Sudanese military, together with regime-led militia, would conduct offensive military operations.
The defense asserted that by October 2002 Ian Lundin had stepped down as CEO of Lundin Petroleum, reducing his involvement at the subsidiary level. The defense referred to a draft of the “Addendum to the Assignment and Novation Agreement: dated 8th January 2002,” arguing that it was not possible to tell whether the document was the final draft or an earlier version that had subsequently been amended. The defense contended that the agreement was like the Security and Road Agreement – “it was never signed.” They then presented Ian Lundin´s position on the allegations. Lundin denied making the decision referred to in point 9k and all other circumstances mentioned in the paragraph. Lundin further denied that any “supplementary agreement” with the wording indicated by the prosecution or with any other wording was ever concluded.
Lundin´s position on point 9g, h, and j
The defense then continued to elucidate point 9g of the indictment, in which Ian Lundin and Alexandre Schneiter are accused of aiding and abetting the GOS´s war crimes by demanding at a 25 October 2001 JMC meeting that the GOS create the necessary conditions for the company’s operations in Nhiladiu/the operational area MOK. This was done through Schneiter presenting the proposed work programme for 2002, which included seismic activities, to the GOS. According to the indictment, Lundin`s complicity stems from him having approved the work programme.
The defense pointed out that Lundin did not attend the meeting and refuted the claim that he approved the work programme before it was presented or made the demand referred to in point 9g. While acknowledging that the work programme presented at the JMC meeting contained plans to carry out seismic activities, they denied that it mentioned that seismic activities would be conducted in the Nhiladiu/operational area MOK. To prove that all seismic activities were suspended, the defense presented a January 2002 fax entitled “Block 5A Sudan: Suspension of operations,” in which the company informed the Ministry of Energy that “we are suspending operations until further notice.” Lundin further denied that the presentation at the JMC meeting implied that the company had demanded that the GOS create conditions for Sudan Ltd.`s activities. Lundin also denied that he intended for the Sudanese military to conduct offensive military operations in order to execute the work programme. Here, the defense underscored that at times when the situation in the area became unstable, Sudan Ltd. had decided to suspend its activities indefinitely. This showed that fighting had in fact caused the company to have to suspend its operations, rather than creating conditions that enabled its activities. They also highlighted that the company in several meetings and letters to representatives of the GOS communicated that the company urged the parties to find peaceful solutions to the conflicts, not military operations.
According to point 9h, sometime between 28 October and 30 November 2001 Sudan Ltd. made a commitment to the GOS to construct and partially fund an all-weather road between the Rubkona-Thar Jath road and Nhialdiu/operational area MOK. According to the allegations, Ian Lundin had previously decided that Sudan Ltd. would undertake this construction and that he made the decision with knowledge that the agreement meant that the Sudanese military, together with regime-led militia, would conduct offensive military operations. Lundin denied making such a decision, as described in point 9h. The defendant further denied that Sudan Ltd. made any commitment to the GOS to construct a road to the Nhialdiu area/MOK area of operations or to partially pay for such a road (read more about this here). He further denied all other circumstances in point 9h.
The defense then moved on to point 9j, which alleges that at some point after 8 January 2002, Ian Lundin decided that Sudan Ltd. should reinforce its commitment to pay for the all-weather road to Nhialdiu/operational area MOK. This decision was communicated to the GOS on 22 March 2002. Here, the defense essentially restated their arguments regarding point 9j and the all-weather road to Leer. Ian Lundin thus denied having made the decision about the all-weather road to MOK and all other allegations contained in point 9j.
The nexus between the existence of a non-armed international conflict and the alleged crimes in the indictment
After Ian Lundin`s defense had finished its presentation, Judge Zander gave the floor to the prosecution to clarify (read more about this here) the nexus issue. The prosecution explained that the nexus lay in the question of oil, involving the main conflicting parties, the GOS and SPLA, in the ongoing armed conflict. The prosecution stated that this involved the direct engagement of GOS military forces, but also the indirect one through the connection between militia groups that participated in the conflicts in Block 5A. The prosecution emphasised the significance of oil in fueling the conflict, citing the GOS interest in oil extraction for economic and political reasons. Moreover, the armed conflict intensified due to GOS control over the oil operations in southern Sudan and SPLA ́s opposition to this control. The prosecution highlighted that the start of oil exploitation in Block 5A renewed the main parties’ interest in the area, and GOS actions in Block 5A were aimed at enabling the Lundin Companies’ oil operations in areas under its control. According to the prosecution, beyond the oil connection, the regular army was actively involved in combat and the warring groups in Block 5A were affiliated with either the GOS or the SPLA.
Moving on to the second Sudanese civil war (1983-2005), the prosecution explained the direct combat involvement of GOS and SPLA and their alliances with various groups. According to the prosecution, alliances were forged through weapons and ammunition, among other concerns, and both sides exploited and intensified existing conflicts between different groups and communities. The prosecution described these second-tier conflicts as involving individual groups who had their own goals, in addition to the overall goals of the GOS and SPLA. The prosecution referred to these groups as “proxy forces” whose loyalties often changed, often depending on who was willing to provide them with weapons. The prosecution explained that in Block 5A, fighting occurred between the GOS and rebel groups allied with SPLA, as well as conflicts within and between militia groups on the same side. Besides the use of proxy forces, the prosecution contended that the GOS relied extensively on the “divide and rule” tactic, exploiting the divisions within the southern ethnic groups to maintain control and power.
The prosecution also addressed the affiliations of specific rebel leaders such as Peter Gadet, Paulino Matiep and Tito Biel, describing how their loyalties shifted during the indictment period, which in turn impacted the dynamics in Block 5A. Despite these changes, they believed that the leaders remained loyal to either the GOS or the SPLA. They claimed that there was always a connection to one of the main parties, which could be proved by the fact that local leaders were supplied with weapons and ammunition by either GOS or SPLA.
The prosecution also contested Ian Lundin`s defense’s view of the term “oil fields,” disagreeing with their interpretation that it did not encompass activities in Block 5A (read more about this in our previous report).
Once the prosecution finished its presentation, the defense teams had an opportunity to comment. Ian Lundin`s defense perceived the prosecution’s arguments as a repetition of earlier statements, which the prosecution confirmed. Alexandre Schneiter`s defense had a different tone, stating: “We do not buy this description and will come back to our position later.” They further argued that the prosecution`s approach was too binary, and that the situation was far more complex than groups aligning solely with the GOS or the SPLA.
Next report
Since Ian Lundin`s defense has now finished its opening presentation, a new stage in the trial will begin. The trial will continue on the 13th of February, when Alexandre Schneiter`s defense is scheduled to begin presenting their case.
