Allegations
The Case
Lundin Oil, its former CEO and Chairman of the Board are suspected of complicity in alleged war crimes committed in Block 5A in southern Sudan 1999-2003. From the outset, Lundin has always maintained that none of its representatives committed or were complicit in any international crimes in Sudan.
The allegations were first raised in a Christian Aid report in 2001 and were investigated by the EU, the media and the Company. The allegations were exposed to be without foundation. The Swedish government took no steps to investigate Lundin.
The same discredited allegations were recycled by the European Coalition on Oil in Sudan (ECOS) in 2010, a year after the civil claim they supported against Canadian oil and gas company Talisman, which operated in a neighbouring block, was dismissed in the US courts for failing to establish that Talisman “acted with the purpose to support the Government’s offences.”
Notwithstanding the fact that nothing material had changed since Lundin’s exoneration in 2001, the Swedish Prosecutor announced a preliminary investigation in 2010. These recycled allegations from the NGOs form an important part of the investigation conducted by the Swedish Prosecutor.
The Report on the Lundin Case finds that the allegations and basis for this investigation are seriously flawed.
Over the past 11 years, the Prosecutor has changed the original contents of his suspicion sheet on several occasions – an approach which suggests the evidence to back up his case is lacking.
2001
Nearly 20 years have passed since the publication of Christian Aid’s “Scorched Earth: Oil and War in Sudan" report in March 2001, which contained serious and wide-ranging allegations of suspected complicity in alleged international crimes by Lundin and other oil companies in Sudan.
These allegations were investigated immediately by Lundin, by independent journalists invited by the Company to its operations and by European Union Ambassadors, whilst in Sudan in May 2001. Christian Aid's allegations were front-page news in Sweden for weeks. Following media criticism regarding lack of actions by Swedish authorities, questions were raised in the Swedish Parliament and Sweden's Minister of Foreign Affairs was encouraged to open an investigation.
The Company published a comprehensive response to their report, which refuted the allegations line by line. The independent journalists who visited Sudan did not support the accusations and neither did the EU Ambassadors following their visit in May 2001.
Christian Aid's allegations were exposed to be without foundation.
At no time did the Swedish government advise, direct or intervene to halt the oil operations. Neither did the UN make any such demands. The Swedish Government took no steps to investigate Lundin.
“The EU ambassadors’ conclusions [from their visit to Sudan] are that … no evidence can be provided that Sudanese government troops have forced people to flee their villages in the oil fields or that the Government of Sudan carr[ied] out a scorched earth tactic to prepare for the oil industry…most of the allegations made by the various groups and individuals thus seem[s] to be inaccurate and based on hearsay rather than independ[ent] and objective observations…the oil companies have improved the infrastructure … in the area, which in turn, improved local people’s access to marketplaces, health and water.”
2010
The allegations continued to be recycled even after they had been dismissed in 2001. In 2003, Human Rights Watch published “Sudan, Oil and Human Rights” (HRW03), a 752-page report, the main premise of which claimed that “oil now figures as an important remaining obstacle to a lasting peace” and that “oil revenues have been used by the government to obtain weapons and ammunition that have enabled it to intensify the war and expand oil development.” There were no oil revenues from Lundin’s Block 5A concession.
In June 2010, the European Coalition on Oil in Sudan (ECOS), a campaigning organisation, published a report: “Unpaid Debt – The Legacy of Lundin, Petronas and OMV in Block 5A, Sudan 1997-2003” (“Unpaid Debt”). It is based on secondary material.
One of its main purposes was to establish that “Lundin…as a matter of international law may have been complicit in the commission of war crimes and crimes against humanity.” Crucially, on 21st June 2010, District Attorney Magnus Elving at the International Prosecutor’s Office in Stockholm announced his decision to initiate a preliminary investigation into violations of humanitarian law in Sudan from 1997-2003. One of the reasons for this decision was the “recently published report…‘Unpaid Debt’”.
Unpaid Debt constitutes a central plank in ECOS’s concerted effort to work for “compensation and reparation for the injustices caused by Sudan’s oil wars.” These efforts have included a mischaracterization of Sudan’s troubled past and were designed to obtain money from international businesses perceived to have rich treasuries. Indeed, while there were provisions in the 2005 Comprehensive Peace Agreement to compensate victims of the conflict, ECOS understood there were no chances of obtaining any compensation from parties of the conflict. ECOS thus targeted companies both financially viable and reputationally vulnerable, firstly Talisman, and when that claim failed, Lundin.
ECOS’s predetermined approach in Unpaid Debt that injustices flow from so-called “oil wars” for which Lundin should be held responsible is pursued tirelessly from the outset, with no regard for other perspectives on accountability.
In line with its aim to seek compensation and reparations, Unpaid Debt sets out a particularly narrow view of the conflict and the role played by oil. The report’s claim that it was the exploitation of oil in Block 5A that “set off a vicious war in the area” expressly ignores the true origins and complexity of the conflict and provides the reader with a misleadingly narrow account which fails to address the reality of the conflict and its development – namely, that conflicts were ongoing before and after Lundin’s oil exploration in Block 5A.
The NGO Reports
A close analysis of the NGO allegations raises serious concerns about their independence and the reliability of the information cited. Many of the reports rely on biased and/or anonymous hearsay evidence and make assertions on the basis of unattributed sources using poor methodology.
Many of the NGO reports contain only generalised statements about the movement of people and fail to provide substantive facts or information to establish the causes and exact timing of the alleged displacement. Moreover, none of the NGOs visited Lundin’s areas of operation in Block 5A. Some of the reports rely on only a handful of interviews and/or unnamed sources and provide no linkage evidence to the Company.
There are also serious methodological failings including the following: some interviewees are anonymous, and it is not clear whether formal interviews were ever conducted and recorded; no information is provided as to the qualifications of the interpreters; there is no evidence as to how information was collected and whether interview protocols were adhered to; the identity of the interviewers and their competence to conduct the interviews is unknown; no information is provided as to the duration of any of the interviews or how individuals were selected.
The use of unreliable witnesses lacking in credibility is of major concern. Peter Gadet, a rebel commander, whose allegiances switched throughout the period, was cited in the NGO reports. In Amnesty International’s 2000 report that pre-dated the Christian Aid report, he was the only interviewee. Peter Gadet’s value as a source is questionable insofar as he has been placed on the EU’s sanctions list following reports of atrocities committed in 2014. The US also added him to their sanctions list in May 2014.
Amnesty International failed to disclose the detail of the true background of this source. Such disclosure, had it been made, would have caused impartial observers to look critically at Peter Gadet’s allegations against the Sudanese government and foreign oil companies and concluded it was nothing more than self-serving propaganda.
John Dor, Governor of Unity State told the Lundin Board after the publication of the Christian Aid report in 2001 that he dismissed allegations of forced displacement and said it was for “fear of Peter Gadet [that] many citizens prefer to take refuge in Bentiu or Rubkona towns temporarily.” He referred to the “feverish campaign against oil companies” which in the end “may end up harming the very people everybody claims to have a moral responsibility to represent.”
Pursuant to the standards of international courts, these NGO reports would not be admissible in an international criminal investigation or a prosecution. Over the years, international criminal tribunals have shown an increasing wariness about relying on such material prepared by advocacy groups, NGOs and other international organisations.
The nature and methodology of such reports prevent those accused of crimes from being able to rigorously challenge the case against them in contravention of their fundamental human rights. Evidence of bias, unreliability, flawed research and the absence of accountability make any use of such NGO reports in future criminal proceedings unconscionable.
SPLM/A propaganda war
The NGOs and advocacy groups who made allegations against the possible complicity of Lundin were influenced in their reporting by the rebel group, the Sudan People’s Liberation Movement/Army (SPLM/A). This reality has never been acknowledged by the advocacy groups.
The SPLM/A did not want the Government of Sudan to receive oil revenues and sought a deliberate policy of targeting oil companies, which mainly included an international propaganda campaign driven by advocacy, NGO and religious groups, underpinned by a deliberately misleading narrative around ‘oil wars’.
The reality was far more complex and importantly, none of these groups ever visited the Company’s area of activities. Crucially, a World Bank publication from 2003 made the following finding: “The conflict began before the discovery of oil in commercial quantities. Oil is therefore not a prime cause of the conflict, but the future distribution of oil revenue is one of the main outstanding issues in the IGAD peace negotiations.”
The SPLM/A was originally founded in 1983 as a guerrilla movement with Ethiopian backing to fight against the Government of Sudan. In 1991 it split into two rival factions that resulted in years of inter-factional violence in southern Sudan. The SPLM/A was never a coherent fighting force and had various allegiances ranging from Cold War Marxist collaborations to Christian ‘victims’ in the fight against militant Islam in the late 1990s/2000s. The political wing of the SPLA was the SPLM; the relief arm was the Sudan Relief and Rehabilitation Agency (SRRA), and the New Sudan Council of Churches (NSCC) was the ‘spiritual wing’ of the movement. The SRRA controlled access to SPLA areas for NGOs and other international entities in issuing visas and travel permits. NGOs had to seek visas from the SRRA and agree terms to access southern Sudan.
The NSCC partnered with organisations such as Norwegian Church Aid, DanChurch Aid, Christian Aid, and the Mennonite Central Committee, as well as religious groups to win financial and material support for clergy, church members, and the greater southern Sudanese community. The NSCC was expressly thanked in Christian Aid’s Scorched Earth report published in 2001 and in Human Rights Watch 2003 report ‘Sudan, Oil and Human Rights’.
Advocacy groups such as Christian Aid, ECOS and other NGOs were intentionally led to believe by those seeking to separate southern Sudan from Sudan that a religious war was being waged by an Islamic government in the north against the Christians in the south of the country. Southern Sudanese leaders were financially supported by international NGOs and the American evangelical communities which encouraged the US government to take the southern side in this conflict. Whether on purpose or not, the advocacy groups and the churches overlooked evidence that the separatist SPLA leaders in the south were more intent on personal gain than catering to their people and their lands.
The violence has continued long after South Sudan seceded in 2011 and became an independent state. Many of the South Sudanese leaders today sit uneasily in a fragile government coalition, aimed at keeping the peace between the different tribes and factions who have clashed, competed, and fought with each other before and since independence. South Sudan now ranks as one of the most corrupt states in the world.