Investigation
The Swedish Prosecutor announced a preliminary investigation on 21st June 2010, two weeks after the publication of the European Coalition on Oil in Sudan (ECOS) report “Unpaid Debt”. The investigation was opened despite the fact that nothing material had changed since Lundin’s exoneration in 2001.
This investigation has been unreasonably long. It was not until the end of 2016 that the Company Chairman and CEO at the time, were formally declared to be under suspicion.
A close analysis of the NGO allegations raises serious concerns about their independence and the reliability of the information cited. These allegations form an important part of the investigation conducted by the Swedish Prosecutor. Many of the reports rely on biased and/or anonymous hearsay evidence and make assertions on the basis of unattributed sources using poor methodology. It is of grave concern that a report of such low quality underpins the Swedish Prosecutor’s decision to open a preliminary investigation in this matter.
After 11 years, the Prosecutor has yet to reach a conclusion and has changed the original contents of his suspicion sheet on several occasions, which suggests the evidence to back up his case is lacking.
When held to international standards, the considerable evidence of bias, unreliability, flawed research and the absence of accountability in the NGO reports submitted to the Swedish Prosecutor make their use in the criminal proceedings unconscionable.
Political background
Between 1994 and 2006, the Swedish Government comprised the Social Democrats who were running a minority government with confidence and support from the Green Party (Miljöpartiet) and the Left Party (Vänsterpartiet); collectively known as the Red-Greens (in Swedish, “De Rödgröna”). The Red-Greens were the Government during the entire period of Lundin’s involvement in Block 5A from 1997 to 2003.
In the 2006 election, the Red-Greens lost their majority to the Centre-Right Alliance Coalition, who appointed Carl Bildt as Foreign Minister. Carl Bildt had been a Board member of the Company since 2000 but had resigned from this role in 2006 following his appointment as minister and sold his shareholding in the Company.
At this point, certain Red-Green politicians began a campaign against the Company, publicly accusing it of complicity in international crimes in Sudan. This appeared to be a means by which to attack Carl Bildt and thus the Centre-Right Alliance Coalition. The Social Democrat Members of Parliament Morgan Johansson and Peter Hultqvist were the most vocal in this attack.
With the publication of ECOS’s “Unpaid Debt” report in June 2010, the Social Democrats and the Left Party continued to raise the matter in Parliament, stating that Lundin should fulfil “its obligations under the [2005] CPA and pay reasonable compensation to the victims of the war in Block 5A.” These allegations were made three months before the 19 September 2010 general election in Sweden.
Notwithstanding a number of attempts to discredit Carl Bildt by linking him to allegations made against Lundin, the Centre-Right Alliance coalition won the 2010 election, although no longer with an outright majority. Certain Red-Green politicians continued the campaign against the Company.
The next general election took place in 2014, which the Social Democrats won by a small margin. They have been ruling in a minority coalition ever since. Morgan Johannson became (and remains) the Minister of Justice and Peter Hultqvist became (and remains) the Minister of Defence.
In the absence of independent evidence or an inquiry, the willingness of prominent politicians – notwithstanding their own party's position when in government and in the face of comprehensive and detailed refutation by the Company - to make serious allegations against Lundin and indirectly Carl Bildt, has been a disturbing aspect of the political backdrop to this case.
International Criminal Law
The Swedish Public Prosecutor is obliged to act, and be seen to act, independently and objectively when considering whether or not to open a preliminary investigation into alleged crimes.
Opening a preliminary investigation into complicity in international crimes allegedly committed outside Sweden, raises profound questions, inter alia, as to (i) the credibility and motivations of ECOS in preparing the Unpaid Debt report, (ii) the nature of Sweden’s obligation, if any, to investigate allegations of crimes abroad, (iii) the expertise and capability on the part of the Swedish Public Prosecutor to investigate events which took place abroad between 1997 to 2003, particularly in a conflict-torn country such as Sudan, (iv) the limitations of the relevant Swedish and international law, including Sweden’s obligations under the European Convention on Human Rights, and (v) the public interest in doing so, especially as no investigation had been initiated when the Christian Aid allegations received significant publicity in 2001.
Moreover, the scope of the Prosecutor's investigation is flawed. For example, the Prosecutor’s office has made it clear that it does not intend to call any representative from the Government of Sudan or its military to testify to alleged primary crimes. However, unless the primary crimes can be proved, there is no foundation for the allegations against the Company. Thereafter, complicity between Lundin and the Government of Sudan must be proved in relation to the specific alleged primary crimes.
The Prosecutor has decided that owing to the security situation in South Sudan and budgetary constraints, it is unable to carry out any investigations in South Sudan or East Africa.
The approach of the Prosecutor in this case shows a willingness to afford unreasonable credence to biased allegations against the Company. It is incumbent on a prosecutor to seek out sources of objective evidence, independent witnesses and corroboration in respect of crimes alleged by NGOs, since they cannot in any sense be considered impartial. This approach has not, however, been taken to date. Furthermore, a prosecutor must be careful not to align himself with the narrative of the NGOs and should investigate a case independently of intermediaries who might supply evidence and a skewed case theory.
The dangers of not taking such care are well known to those experienced in other cases involving NGOs. This was a fundamental error, committed in recent years by the Prosecutor in the trial of President Kenyatta at the ICC, which ultimately resulted in the withdrawal of the charges and the collapse of the case.
Unfairness of the Investigation
The Company maintains that none of its representatives committed or were complicit in any alleged international crimes in Sudan. It never ordered by direct or indirect means that any actions be taken by any forces or militias that contributed to the conflict in Sudan, nor did it control any such actions. It held no authority or power that could even cause it to influence events or acts that took place between rival factions in Sudan that had been in conflict with each other for decades, and indeed, remain so today.
It was not until November 2016, more than six years after the investigation was opened and nearly 20 years after Lundin entered Block 5A, that the Chairman and CEO were named as suspects.
Lundin and its representatives have co-operated fully with the Prosecutor by providing documents voluntarily requested as part of the investigation and the Chairman and former CEO have agreed to multiple interviews. Lundin has always believed that common sense would prevail, and that the investigation would eventually be closed.
However, as time has passed, it has become increasingly concerned at the entire approach adopted by the Prosecutor on many levels, including the application of the correct principles of law.
Whilst Lundin and its representatives have co-operated with the investigation, it has been clear that the inordinate length and continuation of this process is a breach of the right to a fair trial within a reasonable time under Article 6 of the European Convention on Human Rights. Applications have been made by the Chairman and former CEO to the Swedish Court to have the investigation stopped on these grounds. Notwithstanding Sweden's status as a signatory of the Convention, the Swedish Court has to date declined even to recognise a power to stop the investigation on human rights grounds and an appeal on this issue of principle is ongoing.