Report 27: Testimony of Tomas Malual Kap

The week before a long-awaited summer break began with testimony from plaintiff Tomas Malual Kap. The media, which had been present during the first week of the plaintiffs’ hearings, were nowhere to be seen as the sun dressed Stockholm District Court in light. Inside Courtroom 34, however, it was dim. Large screens showing a recording of Tomas Malual Kap, the Nuer translators, and the counsel for the injured parties covered the windows.

The hearing began with Judge Thomas Zander welcoming Tomas Malual Kap to the Court and thanking him for appearing at the trial in person. After a short introduction, Advokat Percy Bratt, counsel for one group of plaintiffs, was given an opportunity to briefly introduce Tomas Malual Kap. He described that the plaintiff was born in 1962 in a village located between Koch and Kuach Lual. In 1988, he moved with his family to Kuach Lual and became paramount chief over the county. His main task as paramount chief was to settle disputes between county residents and try allegations of theft and violent crime. He was also responsible for protecting his residents against looming starvation or food shortages. This meant he had close contact with the UN regarding food distribution in the area. Furthermore, it was his job to stay informed of other threats, such as attacks, damages, or other risks that impacted the civilian population.

Questioning by the prosecution

After the introduction, the prosecution was given the opportunity to begin their questioning. Initially, two photos of Tomas Malual Kap were presented on the screen. One showed a scar on the bottom and top of his left foot. The other showed a map which the prosecution hoped would assist the Court in following the questioning of the plaintiff.

After a few initial questions regarding Tomas Malual Kap’s present life and childhood, the prosecution moved on to the events of 1999. “That is when the unrest began,” Tomas Malual Kap stated. Previously they had lived as farmers, taking care of their cattle and land. But in 1999, Tomas Malual Kap described, the Sudanese government and affiliated militia came and began attacking the villages in his area.

The first attack he could remember occurred in a village named Guk in the spring of 1999. Here, he clarified that for them, the spring months were October, November, and December. He had been informed through radio communications and word of mouth that the attackers were part of the Sudanese army and Paulino Matiep’s militia group. He stated that unarmed civilians were attacked, and that people lost their lives. He himself had not been able to observe the soldiers, since he was running for his life. Later, the same night, he and others returned to inspect the damage and found dead bodies left where the attack had taken place.

After the attack, Tomas Malual Kap and his family were forced to leave Guk and fled to Kuach Lual. However, he stated, they could not stay there long. In the end of 1999, Kuach Lual was attacked as well. “They found out that we had fled to Kuach Lual and attacked us there. We had to flee to a different area.” He explained that they had chosen Kuach Lual because there was an airfield located there where the civilian population could receive food distribution from the UN.

Tomas Malual Kap stated that during the attack, they had been shot at by foot soldiers as well as bombed from the sky. One of the bombs dropped on the area had not detonated. After the attack, Tomas Malual Kap and others walked to the undetonated bomb to inspect it. He described that it had plummeted into the ground, and therefore he did not know the exact size of the bomb. He also said that they were afraid to move too close to the bomb in case it exploded.

After the attack on Kuach Lual, Tomas Malual Kap and his family fled yet again. This time, they ended up in a wooded area located approximately three hours away from Kuach Lual by foot. Many other civilians had sought refuge in the forest, but the living conditions were harsh. “It was a horrible way to live.” Tomas Malual Kap and his family stayed there for approximately two months, before another attack took place. Upon being asked to describe the attack, Tomas Malual Kap stated: “It was terrible. People were running in every direction.” According to him, the perpetrators belonged to the Sudanese army and affiliated militia groups. “They come from Rier. The road comes from Rier, and moves through Leer, Mirmir and continues to Mayandit. The oil rigs and their base are in Rier.”

He continued describing the attack. “They came with military vehicles and on foot. They left the vehicles behind so that we would not hear them. And then they came on foot and began shooting at us.” Once again, Tomas Malual Kap stated that he had not seen the soldiers because he was running away from them. However, the same night he and others had returned to look for human remains and wounded civilians. That night he saw a man who had been shot dead in the attack. They carried the wounded on their backs and fled together back to Koch and Kuach Lual.

When they returned to Kuach Lual, nothing remained. All the houses had been burned down. Tomas Malual Kap and others began constructing new temporary housing for the children. “Their land had been taken by the company,” Tomas Malual Kap stated. He also explained that they had returned to the area to be able to receive food deliveries from the UN, who used the nearby airfield.

For a few months, they could enjoy some respite in Kuach Lual. However, during the dry season of 2001, another attack allegedly occurred. This time Tomas Malual Kap described that eight bombs had been dropped from an Antonov-airplane. The next day, foot soldiers had moved in and began shooting at the civilian population. To escape the attack, Tomas Malual Kap and his family fled to an area called Mirmir.

While in Mirmir, Tomas Malual Kap and others commenced building an airfield in the nearby town of Bieh. The airfield was built during 2001. However, after three or four months in Mirmir, he once again suffered an attack from the Sudanese government and affiliated militia. “They were clearing the road to be able to travel through the area,” Tomas Malual Kap described, talking about the Sudanese government’s army. He stated that the attack had taken place a few days after a food delivery had been made at the airfield in Bieh.

Tomas Malual Kap testified that during this attack, he was shot in the foot while running to escape the soldiers. He was able to make it to a riverbed by himself, and after crossing the water he got help from other civilians who carried him to safety. He stated that the attack occurred sometime in the spring of 2001. After questions from the prosecution, Thomas Malual Kap clarified that what he meant by spring was the months of October, November and December. During the attack, he explained, bombs had been dropped over an area where he and other civilians were hiding.

Since he had been shot, he could not return to the area where the attack had taken place. However, after the soldiers had left, others had returned who told him that his brother and nephew had been killed in the attack. One of them had suffered a bullet through the neck and the other died from a bullet through the chest.

This line of questioning concluded the first day of Tomas Malual Kap’s testimony. The following week, the questioning would continue for an additional two days.

Alleged attack of the World Food Programme’s delivery in Bieh, 2002.  

The next week, a few minutes after ten, the prosecutor swiftly began her questioning. “I wish to begin the hearing by clarifying a few statements you made last week.” The prosecutor summarized the information provided by Tomas Malual Kap the week before, mainly regarding the attack wherein he had suffered a shot to his foot. Tomas Malual Kap confirmed the information, nodding solemnly when the prosecutor brought up his brother and nephew who he had told the Court were killed in attacks in 2001.

The prosecution then decided to focus a majority of their time on two attacks. One of them, Tomas Malual Kap had said, took place in Bieh in February 2002 during another food delivery by the World Food Programme. “Everyone was hungry, because we had nothing. We were there, the civilians, to receive food. And then the attack came. In this attack maybe 30 people lost their lives. That is what happened.”

Tomas Malual Kap explained that he was present at the delivery as an employee of the World Food Programme, to organize the food distribution. He was asked, but could not remember, how much time had passed since he was shot in the foot during the attack in 2002, although he did add that he had trouble walking and had to be carried while hiding from the attack. He noted that he had been well enough to work but was walking with a slight limp.

The prosecutor then asked Tomas Malual Kap to clarify how the attack had been carried out. He stated that the ones who carried out the attack were the Sudanese government and regime allied militia groups led by Paulino Matiep. He could not state the name of their weapons but added: “We know that they used weapons. This time they came with ground troops and planes.”

Suddenly, the questioning was interrupted by a phone call to one of the Nuer translators. After a brief pause, the prosecution continued, confirming that the ground troops came from Rier. According to Tomas Malual Kap, Rier was only one day’s march away from Bieh where the attack allegedly took place. He stated that he had seen one gunship present during the attack in 2002. When asked if it had landed, he said: “No. If it had landed, we all would have been killed.”

Tomas Malual Kap told the Court he and others hid to avoid the bullets. Afterwards, in the middle of the night, they returned to the area to identify the dead. They collected the bodies, buried them and then returned to Koch. He had known two of the injured, one of whom had been burned to death. “Most of them were children,” he added.  

The prosecutor returned to the statement regarding the burned man, asking “You told us that the soldiers were shooting at you, but how did the man’s house catch on fire?” Tomas Malual Kap clarified that the soldiers had set the houses and fields aflame after the attacks. He told the Court that even the UN headquarters were burned down. “They left nothing in Bieh,” he concluded. He had not seen the soldiers set fire to anything and therefore could not describe how the soldiers had done it, but when Tomas Malual Kap and the other survivors returned after the attack they could see everything burning.

Before turning to a new line of questioning, the prosecutor asked: “And do you know if there were any members of SPLA present at the food delivery?” Tomas Malual Kap answered with a firm “No, not one.”

Alleged attack of peace negotiations in Koch, 2002

The prosecutor then turned her focus to Tomas Malual Kap’s place of residence after the attack – the village of Koch. The prosecution had some trouble specifying where in Koch Tomas Malual Kap and his family had lived, but Tomas Malual Kap later stated that they resided in the north part of town. While in Koch, he had suffered yet another attack from regime allied militia and government troops.

This attack took place at the time of a peace negotiation between civilians who had had a disagreement. Tomas Malual Kap was present at the Presbyterian church in Koch to negotiate a peace treaty between the two conflicting parties. Politicians, church officials and other civilians participated in the negotiations. Fellow plaintiffs in the Lundin trial, James Kuong and Matthew Deang had also been there, according to Tomas Malual Kap. However, the negotiations were interrupted by a gunship and an Antonov bomber attacking the area surrounding the church.

“I ran to hide in the pits we had dug out.” He explained that they had prepared the pits as shelter, because they knew that attacks could take place. After the attack they emerged to see damage surrounding them. However, one man was missing. Tomas Malual Kap described how he and others had looked for him all day, finally finding his mutilated body one day after the attack. “There are no good ways to die. But his way was horrible – his head was gone,” Tomas Malual Kap said, after which a tangible silence spread through the courtroom.

Geographical and other clarifications

After a brief pause, the prosecutor continued, apologizing for her mispronunciation of areas and cities in South Sudan. She seemed eager to receive more clarity regarding the geographical locations mentioned in Tomas Malual Kap’s testimony. Among other details, a certain attention was paid to an area called Gang. Tomas Malual Kap had stated that after suffering an attack in 2001 he and his family had fled to Gang, which the prosecutor had thought was controlled by the Dinka people. Tomas Malual Kap corrected her and said that the Dinka controlled a separate area, across the river from Gang. When asked in which direction Gang was located, the interpreter described it as being “on the other side of the sunset.”

However poetic this phrasing might have been, it caused confusion in the Court, which finally resulted in a reprimand from Judge Zander reminding the interpreters to use Swedish terms while translating. In this case, they were referring to east and west.  

The prosecutor then continued to ask if men and women had suffered in the same way from the conflict. Tomas Malual Kap answered that women and children suffered the most. He described that they were without food and shelter, forced to endure harsh climates and a lack of health care.

Questions regarding the Talisman proceedings    

The prosecution spent the final part of their questioning asking about information given during the previous Talisman proceedings. First, the prosecution established that Tomas Malual Kap had been one of the initiators of the lawsuit against Talisman. Tomas Malual Kap stated that in the beginning, he and the other plaintiffs had been optimistic and hopeful that they would receive justice. However, as the proceedings went on, they felt disappointed with the interpreters, who they believed to have been hired by the company Talisman. He also described that they had known that the Lundin company played a part in the Talisman proceedings, but that they had thought Talisman was in charge of both companies. 

Questions from the plaintiff’s counsel

When the plaintiff’s counsel got their opportunity to question Tomas Malual Kap, they asked him how the conflict had affected his mental health. Tomas Malual Kap seemed hesitant to answer, stating that “it is difficult to describe.” Instead, he spoke briefly of the effects he had noted in others, explaining that “it was a very difficult time – some suffered bad thoughts.”

Cross-examination by Alexandre Schneiter’s defense attorney

The following day began with the cross-examination of the plaintiff by Alexandre Schneiter’s defense. Based on the nature of the defense’s questioning, their strategy seemed to be to discredit the witness by highlighting inconsistencies in his testimony in relation to previous statements made either in the Talisman proceedings or in the interviews with Swedish police.  

The defense attorney began by confirming that Tomas Malual Kap had been heard under oath during his deposition in the Talisman case. Then he asked about the interpreters who had been present during the deposition. Tomas Malual Kap had previously stated that he believed that the interpreters had been hired by Talisman and that they therefore had provided a faulty interpretation. However, Alexandre Schneiter’s defense attorney showed a quote from the deposition where Tomas Malual Kap’s attorney had stated: “I just want to say for the record that my interpreter has indicated that the witness did not use any words for south or north in giving that answer.” The defense for Alexandre Schneiter then stated: “Here your attorney is clearly saying my interpreter, which to me sounds like he is on your side?” Tomas Malual Kap responded by saying that it was his attorney who had said this and not him.

Alexandre Schneiter’s defense attorney then continued by confirming that Tomas Malual Kap felt that the interpretation in the present trial worked well.

The questioning followed the same pattern. First, the defense attorney would ask Tomas Malual Kap to confirm information he had given to the Court in the previous days of questioning by the prosecutor. Then, he would ask him if he remembered speaking about these circumstances previously and what he had stated then. Lastly, he would present the records from previous testimony given either at the Talisman depositions or during interviews with the Swedish police and question disparities between the two accounts.

For example, Tomas Malual Kap was questioned about his knowledge of the Lundin Oil company. Tomas Malual Kap stated that he had known Lundin was active in his area while the Talisman proceedings were underway. The defense then presented statements made by Tomas Malual Kap during the Talisman proceedings, where he was asked if he had ever heard of a company called Lundin Oil. His answer then had been no, never. Tomas Malual Kap explained that the discrepancy must have been a result of faulty interpretation.

Then the defense moved on to the issue of a container Tomas Malual Kap had described the previous week. He had stated that he had seen a container he assumed had been left behind by Talisman. He confirmed that he had not seen any signs or logos on the container. The court was then presented with protocols from the Talisman deposition which showed that he had previously stated that the container did have a sign on it. He had said that although he could not read the English text, other people had told him that the sign read Talisman.

Tomas Malual Kap defended himself, explaining that it had been a very long time since the Talisman depositions, which had taken place in 2004. He also said that he had no way of knowing what was written in the protocols and that he had always stated that he never saw any signs. Finally, he said that he had been told by his lawyer to repeat what he had heard others say that they had seen. Still, he maintained that he himself never saw any signs.

After a brief break, Alexandre Schneiter’s defense continued their questioning, this time focusing on an attack in Guk that Tomas Malual Kap had described the week before. He was asked to confirm details, such as how long he had been in the area before the attack took place. He stated that he had been in Guk for a few days before the attack and that he had fled when the soldiers came to the area. When asked if he had seen any soldiers he responded, “You cannot turn around a person who is coming to kill you.” He was also asked to confirm if anyone had been killed in the attack, which he did by stating that they had found multiple dead bodies when they returned to the area after the attack.

Following the by now predictable pattern, the defense displayed Tomas Malual Kap’s previous statements regarding this incident. In an interview with the Swedish police, Tomas Malual Kap had been asked if he had been present in Guk before the attack and if anyone had died as a result of it. At the time, Tomas Malual Kap had responded that he had been in Koch at the time of the attack but had walked to Guk when he found out about the incident. He had also stated that no one had been killed.

Tomas Malual Kap explained that the discrepancies must have been the result of a misunderstanding. He stated that the police had asked him where he lived, which was Koch, but explained that he had been visiting Guk at the time of the attack. He added that he had no reason to lie and that if anything wasn’t correct it was the fault of the interpreters and the one who had typed up the protocols – not him.

Finally, the defense attorney turned his attention to the fact that Tomas Malual Kap had described how he had been shot in the foot during an attack. In the testimony he had given to the Court, Tomas Malual Kap had stated that the attack had taken place in 2001 and that his family had been with him. Tomas Malual Kap described that ground troops had moved in with military vehicles. He had fled the attack, and while running he had suffered a gunshot wound to the foot. In previous interviews with Swedish police, however, Tomas Malual Kap had stated that he was shot in the foot in an attack in 2002, a discrepancy which both the prosecution and defense had addressed. Tomas Malual Kap explained that the detail must have been lost in translation. This did not satisfy the defense attorney, however, who continued presenting multiple passages from the interview. The passages showed that Tomas Malual Kap had stated multiple times that the gunshot wound occurred in 2002 and that his family had not been with him. Tomas Malual Kap explained that there must have been a misunderstanding and that the police probably mixed up two different attacks – one which had occurred in 2001 and one which had occurred in 2002. He maintained that he had been shot in 2001, without his family present, but that he had experienced a different attack in 2002, albeit without suffering any injuries.  

Cross-examination from Ian Lundin’s defense attorney

Ian Lundin’s defense attorney Torgny Wetterberg got the opportunity to conduct the final cross-examination before the summer break. He began with asking Tomas Malual Kap about the fact that he had stated that his brother and his brother’s son had been killed sometime between October-December 2001, in the same attack in which he suffered the gunshot wound to the foot. Torgny Wetterberg then presented records from the earlier interview with Swedish police, showing that at that time Tomas Malual Kap stated that his brother and nephew were killed in Koch in 2000. Furthermore, in the Talisman deposition, Tomas Malual Kap had described that it was his sister’s son who had been killed in the attack, with no mention of his brother’s son. Tomas Malual Kap explained that the information was wrong and that his brother and brother’s son had been killed in a previous attack, occurring in 1999.

Torgny Wetterberg then chose to ask about the undetonated bomb that Tomas Malual Kap had said he had seen in Koch in 2000. Tomas Malual Kap confirmed that he could not describe the size of the bomb because it had been planted deep into the ground. However, Torgny Wetterberg revealed that he previously had said to the Swedish police that the bomb was approximately 30 cm long and had a pointy head. Tomas Malual Kap explained that he had stated both times that the bomb had been placed in the ground, and that he hadn’t been able to see the whole bomb because it had been covered by dirt.

The final minutes of the hearing were spent discussing Tomas Malual Kap’s claim that he had lost 960 cows as a result of the conflict. This amount also forms the basis of one of Tomas Malual Kap’s claims for damages in the civil trial, which has been separated from the criminal trial as of December 2023. During the questioning, Tomas Malual Kap admitted that of those 960 cows none were actually his, but instead had belonged to other individuals living in his area. He himself had lost 217 cows, but they were not included in the 960 cows mentioned in the claim for damages. Some discrepancies were also noted regarding the year in which the cows had been lost, with the defense showing that Tomas Malual Kap had stated the loss had occurred in 1998, 1999 and 2001. Tomas Malual Kap simply stated that his cows had been taken in 1999. He also added that it was up to the Court to decide if justice would be served and damages awarded or not.

Conclusion

The testimony and cross-examination of Tomas Malual Kap concluded with Judge Thomas Zander thanking the plaintiffs for their patience and for coming to the Court to participate in the trial.

The court proceedings will resume on 13 August 2024 with the testimony of Gatkuoth Liah Diu.