Report 61 – Gordon Mac Donald Smith, Kher Pouk Mayain & Julian Heawood
Courtroom 34 did not see much of an audience this week. In fact, only one out of three days took place in court, where Kher Pouk Mayain testified about his experiences fleeing from his home with his family because of ongoing attacks. Gordon Mac Donald Smith and Julian Heawood both worked as consultants for Lundin Oil, but both have since passed away. Their police interviews, conducted in 2017 and 2014 respectively, were played before the court and described their time in Block 5A, which was not without incident.
The recorded testimony of Gordon Mac Donald Smith
Gordon Mac Donald Smith was hired in October 1998 as a consultant for Lundin Oil. He consulted on work programs relating to seismic operations. Smith told police he was headhunted by Keith Hill and worked for Lundin Oil until the end of June 1999. When asked about what he knew of the conflict in Sudan, he said he knew about the situation “from a British perspective,” saying he was aware of the US sanctions against Sudan but not much else. He was briefed about the Khartoum Peace Agreement (KPA) being in place at the time, and that the Sudanese army would stay north of Bentiu.
Smith testified that the employees in both Khartoum and Block 5A reported to him regarding seismic activity and drilling on a daily and weekly basis, and he was responsible for carrying out the approved work programs, advising the government and partners of progress and issues, as well as managing health and safety concerns. As he expanded on his role, however, he clarified that it was mainly Keith Hill who was responsible for communications with external parties such as the Sudanese government and partners. Smith reported directly to Hill, mostly via phone calls, and provided weekly summary reports to him. Hill was mainly in charge of communicating with the partners, which Smith said was more appropriate “as he was vice chairman of the board at the time.” Smith did not remember who Hill reported directly to but thought it could have been Ian Lundin.
Smith told police that the internal reporting practices in Khartoum and Block 5A were largely done through informal channels such as verbal discussions and phone calls, unless something significant occurred which would result in a written report to the Geneva office. In 1998, the relevant leads for drilling and seismic activity were Thar Jath and some others, although he could not recall which ones. “It was clear that Thar Jath was the one to chase after,” he said. Smith provided a brief explanation of the internal process: the proposals for the work program would first come from the Geneva office. Many different parties, including geologists and geophysicists and operational parties, contributed to the work program. He said he was not directly responsible for it, nor did he give any input on it. “The contracts were largely decided when I came along.” After going through OCM and TCM meetings, the final decision was made at the JMC meeting, where the program would have been presented by himself or Hill, he says.
The police showed Smith various JMC meeting notes, maps, and reports, but he was unable to recall much about these meetings or events. He said that any mention of security in the reports was simply to “put a marker down” to remind the government of their contractual obligation to provide security for the company. In his own reports, he said, he condensed the information a lot, referring specifically to the security situation. The relationship between militias and the military was relevant to flag, but “at the end of the day it had no real effect on operational, apart from a little bit of a delay,” and the relationship between militias would change week to week. Smith could not recall whether he would have sent such a report to Lundin or the Geneva office.
When asked how the area was secured for the prospective oil operations, Smith told the police that per the agreement between the company and the regime, the Sudanese government was to provide security for the company. He said there was “not a lot of will” on behalf of the government. However, Petronas Security set up a joint security detail comprised of equal numbers of government-allied militia, local police and National Islamic Front forces. He noted, “Countries don’t like Westerners knowing everything. Or they might be embarrassed to say that they don’t have full control over an area.” There were some incidents with the militias, Smith said, but it seemed to be more about “messing around” as the situations “melted away quickly” without anyone getting hurt. He said the militias seemed to be targeting each other rather than the company.
A recurring theme in this trial has been the lack of trust between the regime and the company in various areas. The defense has raised questions about the extent to which the company had control over the government’s actions. The issue of individuals defecting from government forces, allied, and non-allied militias further complicated the relationships.
The police then asked whether Smith knew about the KPA being in place and that it expressly asserted that the military was to remain in the north. Smith told police he was aware of a truce but since it was stipulated in the agreement for the operation, he just assumed the military would be present. Any issues relating to security, he testified, he let the security personnel handle.
When asked about the conflicts and the ongoing fighting, Smith said it was a sensitive situation. He believed that the conflicts were the same as they had been, between tribal and clan factions. “They are tribal and have always competed. They were stealing cattle from each other and saw the oil company coming to Sudan and wanted to get their hands on some revenue.” Smith painted the ongoing conflicts in Sudan as caused by ethnic differences between the different clans and tribes rather than influenced by the oil operations. “They [the militias] were there before, when the [oil] discoveries were made around Heglig.” Cattle, he told police, was the primary monetary system, and it was common for locals to fight over them.
It was in April 1999 that Lundin Oil realized they had found a lot of oil, although Smith could not remember the exact amount. After informing the Geneva office of the oil discovery, Adolf Lundin travelled to Sudan. The discussion about the next steps for the operation was informal, Smith told police. Shortly after, in June of that year, he left and had no more involvement.
During his interview, Smith told police about an attack against the rig site at Thar Jath. He said they received a call one evening, but did not specify from who, advising them that the army was moving in. “Next thing is a bit of a blur, some of the militia in the camp manages to disarm the guards. Three National Islamic Force guards were tied up and assassinated.” He recalled that two guards died but was not sure what became of the third. The next day, Smith said, the rebels left the camp, and the army took control of the area. The rig had been destroyed, but the hardware was untouched.
The questions surrounding defections of individuals like Gadet and Matiep, and to which side they belonged at what point in time, has continued to be a contentious issue at both sides of the bench, and could play a role in the court’s deliberations depending on whether a link can be established between the violence against civilians by the government or not. This confusion is also mirrored in reports regarding the attack on the rig, leaving the instigating side unclear (you can read more about the attack here). Smith said that Hill would have had to inform Lundin and the partners, but there was much confusion surrounding how the security forces were structured and how they had become disarmed by the government when they made their entrance into the Block. Smith said that the incident at the rig was never “resolved,” adding that the stress everyone would have been under could be a reason. When asked if he heard anything more about the incident, he said he never did, and that he never tried to find anything more about it either. Smith had no memory of discussions or follow-ups regarding the army entering the Block afterwards.
When asked about his opinion on the attack, Smith told the police that he was worried when he found out. Despite the government being contractually obliged to provide security, and thus be present in the area, he said that the security arrangement they had had been working and that the army moving in might create issues with the stability of the Block and the operations. Smith and his team were evacuated in one of the Canadian helicopters. He told police that the helicopters were advised to fly low at high speed. Smith told police that the pilot was shot but managed to survive, and they landed safely.
The police showed Smith a weekly report from 18 May 1999 regarding the criteria needed for Lundin to reenter the block. He said he knew nothing of the criteria and that he would not have been involved in setting them. The report also mentioned that it was likely that there would be a few more days before the Jikany factions might submit to Matiep, but Smith could not remember whether this concerned an area of interest. At this time, he was “pretty sure” that everyone had been evacuated from the Block. Smith said the information could have come from locals, NGOs, and embassies. The report concluded that the army was not in control of the full Block, only the rig site. He did not believe the army would have told them about the situation. If they had done so, it was likely it would have been discussed at the JMC, but he was not aware of such information. Hill would have been copied in on any security updates within the Block. After the incident, the rig was secured with around 200 guards around it.
Smith said he received reports on the security situation daily in connection with the decommissioning of the rig and the seismic operations after the attack on the rig, and he would have spoken to Hill if there was anything significant to note regarding the security situation. Smith said that he did not speak to either Adolf or Ian Lundin, or Alexandre Schneiter, except for the visits they made once or twice. The police also inquired about his relationship with other people in the company. Firstly, they asked about Alexandre Schneiter, whom he visited socially in Dubai together with Hill. Schneiter, he told police, was the exploration manager in Geneva. He looked for exploration opportunities for oil on the technical side, mainly concerning geology and geophysics. When they spoke by way of sharing updates, it was informal.
Smith spent most of his time in the Khartoum office, except for when he went out on field trips. Others in the office included Richard Ramsey, who was part of the security department, and Dr. Alan Bagi, who was Smith’s deputy. Smith said security information was received from locals, NGOs, and embassies. However, NGOs were reluctant to speak with them. Dr. Bagi would step in if Smith was away, Smith told police. He was local and could therefore engage with local and political issues more appropriately. “The locals didn’t want to talk to a Westerner,” he noted. Further, Smith told police that any security issues would have to be forwarded to Petronas Security, GNPOC, and OEPA. Anything that would change the cost outlook, Smith said, would have to be run by them. GNPOC would be informed of militia activity, and they would inform the company. It was up to the security guys to go through the information. Smith said that the information was as good as they could get. He continued by stating that the security departments in the different blocks would communicate on security issues. Smith also told police that the companies would trade seismic data.
The testimony of Kher Pouk Mayain
Judge Tomas Zander commenced Wednesday’s hearing by welcoming Kher Pouk Mayain to Stockholm District Court. He acknowledged that more than two decades have passed since the events and that Mayain might not remember everything and that he should tell the court if this is the case. Mayain expressed his gratitude to the court for seeking the truth about the horrible things he and others experienced.
The prosecutor, Martina Winslow, commenced the examination in chief by asking him about his background. Mayain was born in 1963, in Leer. He is part of the Dok community, which he said is the name of all people in the Leer area. At sixteen years of age, he moved to Khartoum where he stayed until 1994 when he returned to Leer. He finished upper secondary school in Khartoum and continued his education in 1997 in Mankien. He told the court that the Belgian NGO, BSM, provided a one-year course to be a veterinarian. They also provided housing for those attending the course.
Mayain told the court that there was an ongoing conflict between Paulino Matiep and Peter Yaka in the area during the time he was in Mankien. In January 1997, having obtained a certificate from BSM, he moved back to Leer, where he worked as a veterinarian with the Red Cross. At the time he returned to Leer, Mayain had a wife and three children and cattle; however, he told the court that his youngest son never made it past two years.
Mayain told the court that life in the village was really good. He received some money and worked as a volunteer. He was happy because he was helping his people. The war, Mayain said, had not yet reached Leer; however, people were worried that it soon would. They were right.
Mayain proceeded to explain what it was like when the conflict reached his village. It was in the afternoon on 29th June 1998. No one was prepared because they believed the fighting was on the other side of Bentiu. He told the court about the warnings civilians received in Leer by the local government via an organization named RAS. They used microphones to warn people to flee. Mayain and his wife grabbed their children and fled into a nearby forest together with other civilians, where they stayed for seven days before they returned to Leer. Upon their return, his wife and children became sick. It was the rainy season in Sudan, he said, and they had slept outside on wet ground, without food for seven days. He testified that it was a very difficult period.
The village had been burned to the ground by the soldiers – all but one luak, a hut belonging to a man in the village. He had built three huts himself, all of which were burned down. The remaining hut had not been touched, and that was where Mayain and his family sought shelter. He told the court that he did not see many dead people when they returned but he knew many had died, some of whom he knew personally.
The prosecutor asked him to elaborate on the attack: how it was carried out and by whom. RAS, the organization that warned the civilians to leave the village, was a part of the SPLA rebel forces. Mayain told the court that Riek Machar was in charge of the SPLA and that it was a government-allied militia that attacked them, led by Paulino Matiep with Peter Gadet as head of operations. The purpose of the attack was to gain control of the area so that they could keep it “keep it clear for the commercial company in Thar Jath.” Mayain told the court about the violence the militia brought with them. “If they found an elderly person who could not run, they burned that person alive inside the luak”. The government military used bombs to burn the houses down. Mayain testified that he had witnessed one building burn down.
Mayain testified that Omar Al-Bashir was scheduled to visit the village and that militia soldiers cleaned up after the attack, although this visit never came to fruition. However, Mayain explained to the court how many people still fled out of fear. He and his family walked to the dock in Leer, where a boat would take them to Khartoum; however, a journey that would take a healthy person four hours took Mayain and his family four full days because his wife and children were still very sick. He told the court that they lost their youngest son on this journey.
By January 1999, he believed the situation in Leer had improved and decided to return to continue his work, saying he enjoyed helping his people. He also had hopes of rebuilding his home for his family, who was at the time still in Khartoum. His work was cut short due to another military attack in May of the same year, and he fled to Bentiu and then to Khartoum because of the lack of work opportunities. However, the situation in Khartoum was not much better, resulting in him and his family fleeing to Ethiopia, where they stayed until 2003 when they moved to Canada.
The prosecutor questioned Mayain about how he knew it was a government-allied militia, headed by Gadet, conducting the attack. As one of the people in charge in the area, Mayain explained to the court, he knew, as did the village leaders. He also said that people who had been captured after the attack had said it was Gadet. The court heard Mayain describe a strategy of capturing an area, leaving the area open and capturing the area again, a strategy the court has heard in previous testimony that the militias and military used. He continued by explaining that this war was between militias and rebels. Civilians did not have access to weapons, and he said that the rebels did not have lots of weapons. The government-allied militias, however, had sufficient weapons supplied to them by the regime. When asked about the motives behind the attack, Mayain explained, “The government was cooperating with a company. They wanted the oil company to have the oil area. The rebels did not want the government to take control of the area.” The court heard previously about the rebels opposing government control of areas of oil operation, seeing control of such areas as entailing control of assets capable of benefiting one side in the civil war.
Prior to the examination by the plaintiffs’ counsel, the prosecutor asked Mayain if he was familiar with a pastor named George who had been active in Leer between 1997 and 1998. Mayain explained that he was Catholic at the time, but told the court that George was a pastor in the Presbyterian Church.
Percy Bratt asked Mayain about the loss of his cattle during the attack in 1997 and what he observed during the second attack in 1999. His family lost 30 cows, which caused significant difficulties in his ability to sustain himself and his family. Further, Mayain testified that he witnessed the first attack but did not himself witness people being killed in the second attack. The reason he knew they were killed, he explained, was because he lost friends and family members in the attack.
Testimony of Julian Heawood
On 20 April 2016, Julian Heawood was interviewed by Swedish police in the UK. As he passed away before he could testify in this trial, the court heard his recorded interview. Heawood was born in Uganda but moved to England with his family just months later. He obtained a degree in geophysics in Brisbane, Australia and had a long career working as a consultant on seismic surveys for various oil companies. The interview focused on his time working as a consultant for International Petroleum Corporation (IPC) between February to May 1998, which later became Lundin Oil after merging with another oil company the same year. He had previously worked for Petronas, an oil company also part of the consortium in Block 5A.
Heawood told the Swedish police that he knew very little about Sudan prior to his first trip. He knew about the conflict in very general terms, that the south and north were in conflict and “did not like each other.” His role at IPC was as a geophysical consultant, and he was hired on a contract basis. His task was to run a seismic survey, acquire geophysical data, and ensure that the job was done safely. The safety standards of the contract were poor, he said. He was hard on safety matters for his team, so much so that IPC had received complaints about him. Heawood said that IPC ended up providing the necessary equipment and joined the AIG, which stipulated safety measures for geophysicists in the field. This was a positive development, he said.
The interview revealed Heawood to be a man with great concern for the safety of his team as well as for the greater community in which he conducted his work. Prior to commencing the seismic survey, he inspected the equipment, located both on the production line as well as back in their camp, to ensure it was calibrated and safe. Safety testing was conducted regularly throughout the survey as well, Heawood said. He went on to explain that two audits were conducted prior to the commencement of any seismic activity, one for the safety of the crew and the environment, and the other for the technical aspect. This audit was to determine whether the prospective lines provided by the head office were feasible. Heawood delved into a brief explanation of how a survey was conducted, starting with the contractor providing a provisional map with provisional lines indicating where the head office wants to conduct seismic operations. The Highland crew, which he was a part of, then went out to survey any obstacles which would require reconsideration of the lines. Such obstacles could be rivers, roads, pipelines, or populated areas.
Heawood recalled a scouting trip he participated in, in conjunction with people visiting from IPC, although he could not tell the police when or who visited. He did recall disagreeing with the scouting trip being done by helicopter, saying that one can only properly scout potential seismic from the ground. He was unsure whether this trip was done prior to or during his survey.
Heawood circled back to the aforementioned “obstacles” and with great importance stated that it was important that the surrounding communities were “aware of what you do. There is nothing worse for a seismic crew than to have local people who are hostile or resent your presence. If you can’t win them over and make sure they welcome you and like you, then they can do all sorts of damage, and they didn’t do that in this particular job.” He added that “It is very important you get permission from them before you go anywhere near.” The AIG standards stipulated the specific safe distances from populations, roads, and buildings from which seismic could be conducted, and he said that seismic was purposefully done away from populated areas.
Heawood explained that the “permit man” would be tasked to speak with and inform the locals and then report back. He himself would drive out to villages and speak with the locals himself at times, which was how he knew there were many refugees from other villages around. He opted out of having a security guard accompany him if he could because “bringing a security person, especially with a weapon – it changes the atmosphere.”
He said there were villages around the operational area with people who had fled from other areas. “We were both trying to keep from external danger which was getting pretty bad.” The external danger Heawood referred to, he explained, was “fighting, shooting, burning.” He saw the results of it and was shot at twice, he said. The motives for fighting, he said, could have been tribal, political, or something else. Security measures against external threats were standard. Security was provided by a company called Rapport which employed locals as security guards. The effectiveness of security was very limited to stopping harm or damage. Rapport had its head office in the UK, and the local security guards would report back to the office on a daily basis. Heawood would address any security concerns to Rapport, and they would report back on the security situation in relevant areas. Heawood told the police that they had to suspend operations two or three times due to fighting in the area, and that they were scared for their lives, much like the locals were.
When asked whether he saw any abandoned villages, Heawood confirmed that he had seen two, maybe three, burned villages. Some were near the seismic lines, and some were not; however, he stated that no seismic activity would have been undertaken through the villages, burned or not, because of the AIG’s safety stipulations, he explained. The police asked Heawood for an estimate of how many people and villages were in and around the seismic area, but he could not recall. He stated that some villages they visited were full as a result of the influx of refugees. Heawood could not recall the name of any village but was asked by police to circle the approximate area in which the villages were located on a map they provided. Heawood’s attorney interjected at this point, asking whether they could produce the other map and report they had referred to while asking for the location of the burned down villages and where the helicopter landed during the recognizance trip, which the police said they were unable to do as they had not brought them. The attorney then noted that it was not productive to ask Heawood to indicate locations he could not quite remember based on reports they could not produce.
Heawood stated that he wrote daily, weekly, and monthly reports during his time on the seismic survey. This was followed by a final report at the conclusion of the survey. The reports would have been addressed to Michael Noble and Keith Hill, the general manager of the Khartoum office. Hyde Research was also an addressee of the reports, he said. The police officers showed Heawood two seismic maps and asked him to explain the different lines. The red lines, he said, meant that they had been tested, drilled, and recorded. The clear lines meant that work had not yet been done on them, and the green lines had had work done on them but had not been recorded. The black lines remained to be done, he said. At the conclusion of the survey, his crew had finished the seismic survey as requested.
The interview concluded with Heawood asking the Swedish police if they could tell him about the offence they were investigating and who was accused, to which they responded that they were investigating human rights crimes in Sudan and whether executives of Lundin Oil were aware of them.
