Report 23: The prosecution’s supplementary statement of facts
Following the company’s defense, the prosecution had the opportunity to provide supplementary comments on the defense presentations and further explain the allegations against Ian Lundin, Alexander Schnider and Orrön Energy AB. Initially, the prosecution emphasised that most of the sequence of events described during the respective defense presentations was consistent with the prosecution’s account. This included the timing and location of road construction, the execution of seismic surveys, and the company’s evacuation from the area, attacks that occurred, and its return.
The prosecution then highlighted some disagreements, particularly the importance of distinguishing the situation before and after the regime sought to establish control over the SPLA areas in and around Block 5A. They also clarified some discrepancies in the number of people living in block 5A. According to new evidence brought to light, there were approximately 300 000 people living in areas covered in Block 5A as stated in Metoc’s report ‘’Environmental Assessment for Seismic and Drilling Activities, Sudan Block 5A’’ from August 2001. Furthermore, Lundin Petroleum’s own website from October 2016 stated that at the time of Lundin Oil AB’s presence in Block 5A, its population was estimated to be around 100,000 to 250,000.
Furthermore, the prosecution revisited the relationship between the company and the Sudanese regime and how it changed over time as Lundin Oil AB gave the Sudanese regime and the security service Petsec increased influence. They then shifted focus to the issue of the nexus, examining the civil war between the Sudanese government and SPLM/A, the impact on local conflicts in Block 5A and the role of oil. The prosecution cited the same report that had previously been discussed by the defense, “Conflict Survey and Mapping Analysis,” to support their arguments. The report noted that SPLA-controlled areas were excluded and interviews were influenced by the presence of security. It also linked grassroots conflicts to the civil war and noted intensified violence and tactics which were reported on in ‘’The Scorched Earth.” The defense had previously used this report to emphasize historical ethnic conflicts beyond the north-south divide.
The prosecution concluded with a discussion of complicity charges aimed at showing Lundin Petroleum AB’s (now Orrön Energy AB) possible involvement and complicity in facilitating the Sudanese regime’s actions through infrastructure development and security agreements. They underscored the seriousness of the charges brought against the company and its executives. Following the prosecution’s presentation, the defense had an opportunity to comment on the substance of the case and the prosecution’s comments.
HSE Reporting on Lundin Petroleum AB’s Relationship with the Sudanese Regime
The prosecution returned to reports from Sudan Ltd.’s security personnel, H&SE, to demonstrate the different approaches the company took with the regime. A security analysis dated 1 May 1998 showed that the state security force Petroleum Security and OEPA (Oil Exploration Production Authority) opposed H&SE personnel having independent contact with local leaders in Block 5A. Furthermore, the regime hindered H&SE’s information-gathering efforts. The same report strongly recommended that IPC-Khartoum seek a political solution to the pressures being put on them to end such liaisons.
This would later change as the company, on Ian Lundin’s initiative, made contact with the regime, eventually involving them in providing security for the company’s operations in Block 5A. By the end of 1998, the consortium and the government had agreed that the army would provide security for future operations. Members of the H&SE staff who had previously expressed concerns about the government’s actions were deported from Sudan at the end of March 1999, shortly after the company allowed Sudan to second personnel from Petroleum Security to Sudan Ltd. A security report from February 2000 mentioned that the military used the company’s aircraft to cross the Bahr el Ghazal to secure a bridgehead.
During the period from May 1999 to December 2000, Petroleum Security prohibited H&SE and IPC personnel from meeting any SSIM leaders, as was reported in the Security Report dated 26 December 2000. Furthermore, the “Rubicon Report” dated 15 November 2001 highlighted the regime’s paranoid attitude towards former military personnel in the region and the limited contact of H&SE with the local population. Petroleum Security had attempted to expel H&SE personnel on multiple occasions, accusing them of espionage, attempted murder, and collaboration with SPLA. H&SE personnel were not allowed to operate in the field without the presence of Petroleum Security.
The Nexus Issue
Both the Lundin and Schneiter defense teams had previously expressed concerns regarding the prosecution’s explanations of the nexus between the conflict in Block 5A and the broader civil war. Per Samuelsson sought clarification on this point, specifically questioning where in the description of the criminal act a statement about this nexus could be found. To clarify, the prosecution referred back to point 1 in the description of the criminal act, which stated that a prolonged armed conflict had been ongoing in Sudan between the government and the armed group SPLA. During this period, the armed conflict encompassed the criminal acts detailed in the pleadings, including indiscriminate attacks against civilians. The prosecution emphasised that the events in Block 5A were intrinsically linked to the ongoing armed conflict. 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. Ultimately, the prosecution agreed to return to the issue during their scheduled presentation later in the trial. For more details please refer to our previous report here.
Now the prosecution had a chance to return to the nexus issue and clarify any disparities. They emphasised that oil and oil operations constituted an additional link between the international law violations and the conflict, as well as a significant part of the conflict between the Sudanese regime and the SPLA. On the one hand, the regime had a vested interest in extracting oil to win the war, retain power, and improve the country’s economy. On the other hand, the revenue from oil increased the incentives for an independent south. The SPLA opposed the regime’s control over oil operations in southern Sudan and made recurrent threats and attacks against these operations. The prosecution pointed out how the distribution of oil revenues was regulated in the Khartoum Peace Agreement (KPA) of 1997 and was an important part of the peace negotiations and the final peace agreement, the Comprehensive Peace Agreement (CPA) of 2005.
The prosecution further explained that the connection of oil to the violence in and around Block 5A from 1997 to 2003 constituted a significant part of the conflict. Up until 1997, Block 5A was relatively spared from the civil war. However, power struggles and clashes between Riek Machar and Paulino Matiep arose in close conjunction with the commencement of Sudan Ltd.’s operations. The military entered the area in violation of the KPA after Sudan Ltd discovered oil in the spring of 1999. Furthermore, the prosecution argued that the military’s actions in Block 5A were aimed at facilitating the Lundin companies’ oil operations and were under the regime’s control. The perspective on oil operations among local militia leaders changed based on their loyalties. Regime-allied militia leaders were supportive of the oil operations and the company, while the rebels strongly opposed oil operations under the regime’s control.
After establishing oil as a crucial element of the nexus, the prosecution proceeded to address the involvement of militia groups in the conflict, describing it as a “war by proxy.” The main actors in the civil war were the government of Sudan and the SPLA, who fought against each other. Additionally, the war was waged through allied groups and proxy forces that they attached to themselves in various ways, primarily through weapons, ammunition, and non-aggression pacts. These alliances were rarely solid, as seen in Block 5A. Loyalty shifted several times, and even among themselves, the groups could fight against each other. It often depended on who they were aligned with, and who offered them the best deal in supplying weapons and ammunition. The prosecution highlighted that both sides exploited and intensified existing conflicts between groups and communities over issues such as land and water.
The prosecution referred to the same 2002 Conflict Survey and Mapping Analysis authored by UNICEF, UNDP, and Sudan’s Ministry of Higher Education, which Ian Lundin’s defense had also cited during their presentation. Utilising this report, the prosecution substantiated their assertions that the primary conflict in southern Sudan involved the regime and the SPLM/A, who manipulated grassroots conflicts to further their own agendas within the context of the civil war, effectively engaging in proxy warfare. Moreover, the prosecution highlighted how the parties to the civil war exacerbated and intensified local conflicts across the country through their actions. It was thus difficult to separate the various local conflicts between groups over natural resources from external political factors directly linked to the non-international armed conflict in Sudan.
Moreover, the prosecution presented several security reports regarding the Western Upper Nile/Block 5A areas from the company as well as Talisman to rebut the defense arguments that the company was not aware of the role of the oil, the use of proxy forces, or the linkages between Sudan Ltd operations and the regime’s actions in the areas. That the regime cooperated with different militia groups to win the war against SPLA was a well-known fact of which the company was aware. A December 1999 report by Christine Batruch stated that the SSDF, along with Paulino Maitiep and Tito Biel, were being armed by the regime to fight the SPLA in furtherance of the regime’s agenda.
To elucidate the shifting loyalties among various militia groups and the role of oil in the conflict, the prosecution presented a report by the Control Risk Group (CRG). Control Risk Group conducted an analysis entitled “The Social Impact of Oil Exploration in Blocks 5A/B in Sudan” in 2002, which was shared with the members of the Block 5A consortium. The prosecution had previously mentioned one version of the report that the Lundin Oil Group received in October 2002 and which was discovered in their possession during a police raid on Lundin Oil’s headquarters in Geneva. However, the Austrian oil company OMV had turned over their version of the report from August 2002 to the prosecution. Both reports were based on the same facts but OMV’s version was more detailed and included more information.
The main findings in OMV’s version of the report showed that oil contributed to the uncertainty in Block 5A because both sides in the conflict saw control of the oil fields as a strategic military objective. The report stated that without the oil, it would be much easier to negotiate a local peace agreement. Moreover, the civil war in Sudan was best understood as a series of overlapping local, regional, and interregional conflicts. There was no doubt that oil had complicated and exacerbated these conflicts both nationally and regionally, particularly in Block 5A. Furthermore, the development of oil operations in Block 5A was deemed to be of the highest priority for the regime. Given the economic significance of oil and the potential for future revenues from Block 5A, the regime would do everything possible to consolidate and expand military control over oil-producing areas. The Khartoum Peace Agreement had established that the military was not to operate south of the river Bahr El-Ghazal. Thus, the stationing of the military in Block 5A was seen as an infringement on the south’s territory. The prosecution also referred to a March 2003 report by Christine Batruch, ‘’Lundin Petroleum in Sudan,’’ which described how the situation in Block 5A changed when representatives from the Nuer people decided that the Khartoum Peace Agreement had been violated.
The prosecution provided an intricate overview of the shifting allegiances among various militia groups and their leaders, including Maitiep, Gadet, Diu, Biel, Paar, and Machar, from September 1997 to March 2003. Drawing from multiple security reports from Talisman and Lundin Oil’s own documentation, the prosecutor sought to establish a clear connection – a nexus – between the conflict involving the SPLA and the government and the incidents occurring in Block 5A. This included an examination of the role played by oil and Sudan Ltd.’s operations in fuelling the conflict, and how the regime indiscriminately attacked and displaced civilians in Block 5A and nearby areas.
Moreover, these reports indicated that the company and its executives were aware of the adverse social consequences resulting from their oil operations in Block 5A. Additionally, the prosecution underscored how the company’s relationship with the military exacerbated the internal armed conflict. It was evident from the evidence presented that this conflict transcended mere skirmishes among local armed factions; rather, it represented a proxy war between the regime-controlled north and the rebellious SPLA-controlled south.
Complicity
The prosecution then addressed the issue of complicity, arguing that the alleged crime of complicity in grave international crimes culminated in efforts to gain control of areas within Block 5A to facilitate oil operations. This focus on efforts to gain control explains why the time periods in which the alleged crimes were committed and those in which actual operations were conducted in Block 5A do not overlap. The prosecution offered the example of the construction of the all-weather road: the offence took place during the process of gaining control of the area in order to build the road, not during the construction phase or afterwards. The acts of participation were mainly linked to the planning and decision-making phrases of the operations, and the roles of Ian Lundin, Alexandre Schneiter, and the company, in approving and implementing work programmes, rather than the actual execution of those plans.
The prosecution referenced two actions regarding Lundin Petroleum AB’s internal approval of the work programme and budget for Sudan Ltd.’s operations in Block 5A. They first presented the company’s security report from 15 September 2002, which described a visit to Khartoum on 11-12 September 2002 during which the CEO Ashley Heppenstall and COO Alexandre Schneiter reviewed the company’s upcoming work programme and budget. Secondly, the prosecution highlighted the 2003 budget proposal from 16 September 2002, which Ken Barker forwarded to Lundin Petroleum AB’s CEO Ashley Heppenstall for approval before it was sent to the consortium partners. These records demonstrated that the company was aware of and approved Sudan Ltd. and the consortium’s work programme for their operations in Block 5A.
The prosecution also emphasised the significance of the JMC meetings as a response to the Schneiter defense’s argument that those meetings were of no importance and that only the OMC meetings were held to make significant decisions. From the minutes of the JMC meetings in May 1997 and 25 October presented by the prosecution, it was evident that work programmes were proposed and approved at the meeting. The handout regarding the JMC meetings on 25 November 1999 showed that the “proposed work programme” was discussed by the members. Furthermore, if the JMC had comments on a work programme approved by the Operating Committee, the operator was obliged to promptly present them to the Operating Committee for consideration and decision-making. The prosecution argued that this showed that the JMC meetings were of crucial importance.
Security and Road Agreement
The prosecution then addressed Ian Lundin’s defense’s objections regarding the Security and Road Agreement. According to the prosecution, the crime of complicity occurred when Ian Lundin entered into the Security and Road Agreement on behalf of Sudan Ltd. Moreover, a fax from Lundin Oil’s personnel from their headquarters in Geneva showed that the company was involved in negotiations over the agreement. This, in the prosecution’s view, indicated that decisions were made not only on a local level but at the highest levels of the company. Furthermore, the importance of this agreement was emphasised during an OMC meeting on the 19th of October 1999. During the meeting, it was decided that the company would not make any commitments regarding the 2000 work programme until the Security and Road Agreement had been signed by the regime, underscoring the importance of this agreement for the consortium.
The prosecution referred to a January 2000 security analysis showing that Lundin Petroleum AB were planning their operations per an agreed security annex, “Reference A: Security and Operational Plan Block 5A, 1999/2000 Dry Season.” It was also evident that the military had been apprised of the content of the security annex and had planned its operations accordingly. Point 14 stated: “In response to Reference A, the Sudanese Army informed IPC that it would provide a force of 1000 men to protect IPC’s Security requirements.” The prosecution underscored that the military had received this information for a particular reason.
The prosecution continued to discuss the subsequent agreement with the road constructor which was transferred to the Sudanese government through an “Assignment and Novation Agreement’’ on the condition that consortium members agreed to finance it. The prosecution continued to address the contract for constructing the road between Rubkona and Thar Jath, aiming to demonstrate the company’s involvement and complicity in facilitating actions by the Sudanese regime through infrastructure development and security agreements, and underscoring the gravity of the charges brought against the company and its executives.
The defense’s comments
Ian Lundin’s defense then made brief comments on the adjustments made to amend the indictment. Based on the investigation, the defense stated that it had been unable to find any identifiable cohesive armed groups that could rightly be designated by the terms used in the indictment: “SSIM/SPDF based in Kwosh and Leer” or “SSIM based in Kwosh/Thoan” or “regime-allied parts of SSIM.” They were furthermore unable to establish an equivalence between SSIM and SPDF as the prosecution had.
