I. INTRODUCTION

This chapter considers the changing political context in which the Company's activities in Sudan have come under scrutiny in Sweden by certain politicians following the Company’s departure from Block 5A in 2003. The chapter also addresses the opening of the investigation by the Swedish Prosecutor and its course to date.

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II. PUBLIC SCRUTINY OF THE COMPANY FROM 2006

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 the Company’s involvement in Block 5A from 1997 to 2003. As described in Chapter 4, during this time, Sweden supported a policy of constructive engagement in Sudan.cdxcii When, in 2001, Christian Aid's allegations attracted enormous publicity and led to questions in Parliament, the Swedish Foreign Minister contemplated publicly initiating an investigation but ultimately no investigation was commenced. Neither did the Swedish Prosecutor open an investigation.

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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 Lundin since 2000 but had resigned from this role in 2006 following his appointment as minister and sold his shareholding in the Company.

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At this point, certain Red-Green politicians began a campaign against Lundin, publicly accusing the Company 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, notwithstanding his active and welldocumented peace advocacy efforts in Sudan and his high reputation as a former Prime Minister and UN Secretary General Special Envoy to the Balkans.

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The Social Democrat Members of Parliament Morgan Johansson and Peter Hultqvist were the most vocal in this attack.cdxciii Carl Bildt was referred to the First Committee on the Constitution

(Konstitutionsutskottet or KU) in January 2007, and an examination was requested of his holding of shares and options in the Company.cdxciv As a result, the Committee held public questionings of Carl Bildt on 17 April and 30 May 2007. Public questioning of Prime Minister Fredrik Reinfeldt was held on 19 April 2007, followed by the Company’s CEO on 16 April and 8 May 2007.

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During his questioning, Carl Bildt informed the Committee that he had travelled to Sudan twice as an “independent director” for Lundin in July 2001 and January 2002. These trips were part of meetings regarding the political developments in Sudan and the greater region. He confirmed that the meetings did not concern concrete business transactions, discussions of which the members of the Board do not generally attend, but instead concerned his participation in supporting a peace process.cdxcv

 

Carl Bildt described meeting the President of Sudan and informing him that Sudan would not be able to take advantage of its oil resources if it continued with the war against the south.cdxcvi

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During his time with the President, he emphasised that if the President wanted to develop his country’s oil resources, he would have to participate in the peace process. Carl Bildt also clarified that he was not involved in the negotiations of the contract between Sudan and Lundin for oil exploration and highlighted that such contracts were not part of the Board’s role.cdxcvii

 

In his public questioning, Carl Bildt clearly stated that companies operating in a high-conflict zone – if they are working in line with accepted Corporate Social Responsibility (CSR) principles and are actively engaged with a range of stakeholders - help to raise the standard of living for local populations.cdxcviii

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Despite Carl Bildt's clear testimony and Morgan Johansson's own party's support for constructive engagement at the time the Company was operating in Sudan, Johansson, who was serving as a member of the Committee, maintained his deeply critical stance stating that: “Carl Bildt should understand that it is not appropriate for a foreign minister to have financial interests in a company like Lundin Petroleum, which has received widespread criticism from human rights organizations for its operations in Sudan [regarding] involvement in displacement of peoples.”cdxcix

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Morgan Johansson went on to make the defamatory statement that Lundin is a “company with an

extremely bad reputation when it comes to human rights. In Sudan, the company is linked to displacement and attacks on the civilian population.”d

 

In addition, Peter Hultqvist submitted several official written questions (interpellations) to the Swedish Parliament. His first question, posed on 2 March 2007, asked whether Carl Bildt intended to take any action against international companies that continued their involvement in Sudan.di His second question, submitted on 29 March 2007, asked whether Carl Bildt would appoint an investigative mission to Sudan similar to the one conducted in Canada in respect of the oil company Talisman (see John Harker’s 2000 report: Human Security in Sudan: The Report of a Canadian Assessment Mission, January 2000).dii The third question, submitted on 18 April 2008, specifically targeted Lundin. Hultqvist asked whether Carl Bildt would take any measures referring to the Lundin’s Block 5B concession, stating that the Company had initiated drillings together with Sudapet in January 2008, in Block 5B.diii He also asked if the Company had complied with the OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones.div

 

In 2008, Peter Hultqvist wrote an inflammatory article entitled “Bildt’s Oil Connections are Financing Genocide” (“Bildts oljekontakter finansierar folkmord”).dv Not only did Hultqvist condemn profits from oil operations as “blood money” that “finances war, abuse and devastation”, but he also alleged that Carl Bildt’s interest in Lundin and contact with Bashir directly damaged the credibility of Swedish foreign policy.dvi All these statements contradicted the previous Swedish Government policies (led by Hultqvist's own party) encouraging constructive engagement in Sudan and failed to take into account that Lundin did not, at any stage, make any revenue from oil extraction during its time in Sudan.

 

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.”dvii

 

These allegations were made three months before the 19 September 2010 general election in Sweden. A few weeks later, more politicians came out against Lundin. Thomas Bodström, the Social Democrat who had previously acted as the Minister of Justice from 2000 to 2006, issued a statement arguing that:

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“Carl Bildt should take a “timeout” because there is significant doubt that he can represent Sweden in the government”. Bodström would later become plaintiffs' counsel in the investigation against the Company.

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Two days later, Prime Minster Fredrik Reinfeldt responded to these criticisms of Carl Bildt, focusing on the fact that the claims were typical of a party entering an election period. Fredrik Reinfeldt told the news agency TT that “[i]t shows that this is an election year, when even the lawyer Thomas Bodström takes time away from his preparations to move to the U.S. to try to politicize party lawsuits.”dviii

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Other Social Democrats joined in the attacks on Carl Bildt,dix and the Social Democratic Group in European Parliament (PES), demanded that Bildt “take a time out”.dx The Left Party demanded his

resignation.dxi

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Five days before the general election in September 2010, the film "Carl Bildt – A Trustworthy Man?" (“Carl Bildt – en trovärdig man?”) was released by Left Party member Maj Wechselmann, a candidate for the European Parliament in 2009.dxii Wechselmann had bought footage from another filmmaker, Bengt Nilsson, from his trip to Sudan in 2001, which she used “in an extremely dishonest way”.dxiii According to Nilsson, the documentary contains a large amount of falsified information, with the sole purpose of discrediting Carl Bildt.dxiv For example, Wechselmann presented interviewees as victims of the Government forces when, in reality, they had been attacked by the SPLA, something that Nilsson had explained to her. Nowhere in the documentary does Wechselmann even mention the SPLA. Nilsson thu concludes that “[w]ith her falsified version of the war in Southern Sudan, Maj Wechselmann joins the strong Christian lobbying group that tries to make the war appear as if the SPLA was without blame and barely active […] This is a forgery of history that is part of a much larger plan that deals with the power struggle between Christianity and Islam in Africa.”dxv

 

Notwithstanding these attempts to discredit Carl Bildt by linking him to the allegations made against Lundin, the Centre-Right Alliance coalition won the 2010 election, although no longer with an outright majority. However, certain Red-Greens politicians continued the campaign against the Company.

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In October 2011, Wechselmann released another documentary entitled “You Decide!” ("Det är upp till dig!”).dxvi The documentary features individuals associated with ECOS and the “Unpaid Debt” report, namely Egbert Wesselink (ECOS/PAX) and Phil Clarke (MSF/Bloodhound). The film also purports to feature Rev. Matthew Deang, a plaintiff in the US Talisman court case and linked to the ECOS report.

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However, closer scrutiny reveals that the individual featured is in fact James Ninrew, not Matthew Deang, an error left uncorrected by the film-maker. James Ninrew was also an interviewee in the ECOS report and a plaintiff in the case against the oil company Talisman. He has been at the forefront of the initiative led by Egbert Wesselink to encourage the prosecution of Lundin and the pursuit of an associated financial claim.

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Wechselmann also refers to the Darfur crisis, and includes a lengthy segment on celebrities who had engaged in that cause, even though Lundin had sold its shares in Block 5A the year the conflict in Darfur (a different and distant region of Sudan) started. Statements from interviewees are also taken out of context and selectively edited to make it seem (incorrectly) as if Carl Bildt was not telling the truth during his questioning by the First Committee in April 2007.

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Dagens Nyheter, a Swedish daily newspaper was highly critical of the documentary stating that

“Wechselmann has combined images and reports together, but it is often unclear where they come from”.dxvii The daily Aftonbladet reported that the film had too few references to sources and used an editing technique for storytelling that focused more on effect than on precision.dxviii

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.

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It is disturbing that there has been a willingness by prominent politicians – notwithstanding their own party's position when in government and in the face of comprehensive and detailed refutation by Lundin - to make serious allegations against the Company and indirectly Carl Bildt without independent evidence or inquiry. The seriousness of these allegations requires that they be made with considerable caution in their expression, particularly given (i) the highly politicised conflict situation in Sudan, (ii) the multifaceted motivations of those backing both Christian Aid and ECOS reports and (iii) the fact that from 2010 onwards, an investigation was being pursued by the Public Prosecutor. Regrettably, that caution has been lacking.

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III. THE 2010 INVESTIGATION

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.dxix

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.

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Properly and objectively considered, no investigation of Lundin was warranted. In the event, however, a mere two weeks after the ECOS report was published on 8th June 2010, the Prosecutor announced the opening of a preliminary investigation by way of a press release on 21st June 2010.dxx Two days later, the Company repeated its public denial of any involvement or complicity "directly or indirectly" in any alleged wrongdoing in Sudan. The Company noted that it had not been contacted by the Prosecutor and said that it would co-operate with the investigation.

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Thereafter Lundin co-operated fully with the Prosecutor by providing documents voluntarily requested as part of the investigation. The Company has always believed that common sense would prevail and that the investigation would be closed. However, as time has passed, it has become increasingly concerned at the entire approach adopted by the Prosecutor on many levels. The Company considers that the investigation has proceeded on an incorrect basis as to the applicable law for complicit liability, yet its applications to the Swedish Prosecution Authority in 2014 and 2015 as to the correct applicable law were rejected. The Prosecutor is seeking under Swedish law to exercise "universal jurisdiction" over alleged crimes against international law but is applying standards that are materially different than those under international law.

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Although Lundin made representations to the Prosecutor demonstrating that, far from being complicit in alleged international crimes, the Company was a constant advocate for peace, investing in the development of the country and improving living standards for the local community, the investigation has continued.

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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. The approach of the Prosecutor shows a willingness to give an unreasonable credence to the inherently unlikely allegations made against the Company by certain NGOs who have acted as advocacy groups. It is incumbent on a prosecutor to seek out sources of objective evidence, independent witnesses and corroboration in respect of crimes alleged by NGO bodies, since they cannot in any sense be considered impartial. Any 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 biased evidence and a case theory.

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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. See Annex 7.dxxi

 

In this case, insufficient weight has been given to the independent observers and experts whoseevidence was inconsistent with the advocacy reports of Christian Aid and ECOS and consistent with Lundin’s own experience on the ground.dxxii

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The Swedish Prosecutor's approach to evidence gathering and evaluation gives the impression of bias against Lundin. Furthermore, the scope of the Prosecutor's investigation is fundamentally flawed in other ways. 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 the alleged primary crimes. However, unless the primary crimes can be proved, there is no foundation for the allegations against Lundin. Thereafter, complicity between the Company and the Government of Sudan must be proved in relation to the specific alleged primary crimes.

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As previously stated, no Company representatives witnessed any of the crimes alleged to have taken place in Block 5A (or elsewhere) and, consistent with the findings of the EU Ambassadors, could find no evidence on the ground to support the allegations made.

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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. Crucially however, the security situation also prevents Lundin from conducting its own evidence gathering in South Sudan.

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In August and September 2018, Lundin made submissions to the Ministry of Justice that the criteria for authorisation to prosecute were not satisfied, contending that the Prosecution’s investigation is not in accordance with Sweden’s international obligations; and that it is impossible for Sweden to investigate the alleged crimes adequately given the passage of time and the Prosecution’s own acknowledgement that it was not possible for Swedish personnel to travel to Sudan/ South Sudan.

 

The Ministry of Justice did not engage with Lundin’s arguments and it subsequently came to light that the Company’s submissions had been ‘cancelled’, meaning that they had not been considered, which was in clear contravention of the audi alteram partem rule.dxxiii Morgan Johansson (the Minister of Justice) and Peter Hultqvist (Minister of Defence), despite their obvious lack of independence as  accusers of the Company, both took part in the governmental decision-making process, which granted approval in principle for a prosecution.dxxiv

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Lundin sought judicial review of the Ministry of Justice’s decision to authorise the investigation, by way of an application to the Supreme Administrative Court, arguing that Morgan Johansson had a conflict of interest and should have recused himself from the decision. In 2019, this application was dismissed on the basis that the suspects had no standing before the court. The court did not engage with the conflict of interest issue.

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There has been inequal treatment as between the Prosecution and the Defence in the Prosecutor’s handling of the investigation, which is contrary to natural justice. The Prosecutor has sought to restrict the Lundin’s legal team’s access to details regarding the plaintiffs, has resisted disclosure of the audio recordings of the plaintiff interrogations, and refused to accept the lawful application of privilege to Company materials. The Company was compelled to go to court on each occasion to ensure unrestricted access to the plaintiffs’ details by its legal team, force disclosure of the recordings and preserve privilege.

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Furthermore, the bias of the Prosecutor was shown by his unlawful disclosure to the plaintiffs' lawyers of confidential information provided by Lundin to the Prosecutor. The Company applied for the Prosecutor to be removed from the investigation as a consequence but whilst the Swedish Prosecution Authority admitted in February 2018 the unlawfulness of Prosecutor Elving's actions, he was not removed. A further application to the Parliamentary Ombudsman also failed to secure any action against the Prosecutor to redress this unlawful behaviour.

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Subsequently when Prosecutor Elving stood down from the lead role, his successor Prosecutor Attorps also disclosed information unlawfully to the plaintiffs' lawyers to which the Company has again objected, without consequence.

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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 Ian Lundin and Alex Schneiter 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.