Dagens Juridik op-ed: Evidence and Facts in the Lundin case
Narratives have come to play an outsized role in international criminal justice. By encouraging victims and NGOs to tell their stories and raise the alarm about possible injustices being committed in conflict zones, there has been a proliferation of voices calling for action.
But we need to be careful that we do not confuse these alarm signals with the collection of evidence and facts. The preparation of evidence for an international criminal trial is painstakingly difficult.
The lack of temporal and geographic proximity to the events themselves makes it especially challenging to establish what actually took place. It is increasingly difficult for Prosecutors to develop their own case theories, resist the pressure placed on them by activists to respond, and ignore dominant narratives that often portray only one side of the conflict.
As the field of international justice has developed, the courts have seen first-hand the problematic nature of using intermediaries in collecting witness statements and relying on NGO reports as reliable sources of information. Despite the best efforts of humanitarian organisations to remain objective in conflict zones, it is sometimes impossible to do so. Especially if they are dependent on one side to gain access to conflict zones or if the political narrative fits into their world view.
This is not to say that all NGOs or aid agencies fall into this trap. But in my 25 years of working as an international criminal lawyer, I have seen this happen more than once. The work of the Prosecutor in international justice is to distinguish between evidence and narrative.
The Report on the Lundin case which has been published today gives an example of how narratives can distort the story of a 60-year conflict in Sudan and cast a long shadow over a Swedish company for more than two decades. In this case, the wrongful narrative that was framed by certain NGOs was that the conflict in southern Sudan was “because of the oil”.
It is impossible to pinpoint the cause of the brutal Sudan conflict which saw the North fight the South, and the South fight the South. It would be more accurate to say that there was not one conflict, but rather multiple conflicts that shifted with time and allegiances. People fought over access to aid, resources, land and revenge. Such conflicts combined with famine, drought and desertification caused displacement of people.
Lundin Oil (now Lundin Energy) entered its concession zone called Block 5A in 1997 following the Khartoum Peace Agreement. At the time, the international community promoted a policy of constructive engagement, hoping that the arrival of foreign direct investment would cement the peace and spur the country’s development. Just like Lundin, many other global oil and related services companies set up operations in Sudan to participate in the development of what was seen to be a key industry for a state propped up by international aid.
One group that was not a signatory to the KPA was the Sudan People’s Liberation Movement/ Army (SPLM/A). It controlled huge swathes of land and the flow of aid money and movement in the South. And while it was not in control of Black 5A where Lundin operated, it had no control over future oil revenues, which would be received among the people of the South without SPLM/A oversight.
And so, the SPLM/A developed a narrative around the conflicts, co-opting the mainly Christian NGOs through its humanitarian and spiritual wings by reframing the conflict as both religious and oil wars. Neither were true. But it was a highly effective strategy to mobilise the evangelical Christian world and engage the international community, under President Bush’s leadership, to secure international support for secession from Khartoum. Today, the new state of South Sudan is run by the SPLM/A and the southern rebels.
The false allegations of a scorched earth policy carried out by the Government of Sudan with the complicity of the oil companies received widespread public attention in the Swedish and international media. But investigations at the time by the Company, independent journalists and EU Ambassadors found that there was no evidence to support these allegations. The World Bank in 2003 stated: “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.”
Despite this, legal activism intervened, and one of the NGOs, the European Coalition on Sudan, supported a civil claim for compensation in the US courts against Talisman, a Canadian company, that was operating in a neighbouring block to Lundin. This case was dismissed in 2009 as the Plaintiffs failed to establish that Talisman “acted with the purpose to support the Government’s offences.”
Next, ECOS turned its sights on Lundin – a marginal actor in Sudan – and found fertile political ground as Sweden geared up for an election in 2010. Sweden also has universal jurisdiction laws that might give it an opportunity to use the criminal law to target an oil company.
Accusations of war crimes complicity are not a trivial matter. The Swedish Prosecution Authority has led an eleven-year investigation into events twenty years ago. Truth is not to be found in the narrative. It is to be found in evidence and facts.
By Steven Kay, QC, Head of Chambers at 9 Bedford Row.
Steven Kay is a leading international criminal lawyer with a global reputation who has been involved in landmark cases that have established modern international criminal law including the first UN trial at the Yugoslavia Tribunal (Dusko Tadić) that created modern international criminal law; the first trial of a former Head of State (ex-President of Serbia, Slobodan Milosevic); the first trial at the ICC of an incumbent Head of State (President Uhuru Kenyatta of Kenya).
The Report on the Lundin Case, an independent review by the Chambers of 9 Bedford Row and Rupert Boswall a Senior Partner at RPC Solicitors, and commissioned by the Board of Lundin Energy.