I. INTRODUCTION

On 24th November 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.”cccxlviii

 

There were no oil revenues from Lundin’s Block 5A concession paid to the Government of Sudan. The report is a highly selective piece of advocacy on a complex conflict which was in fact driven by many factors in Sudan, such as personal ambitions, the pursuit of wealth, ruthlessly pursued rivalries, questions of ethnic divisions and political ambitions, national identity, structural inequalities and crippling external debt. Lundin’s role in Sudan formed only a small part of the 752 pages and yet it has been the only oil company to be the subject of a criminal investigation out of the nine companies cited in the report. This is a clear indicator that there is consensus amongst the world’s prosecution authorities that the report and its premise are not supported by the evidence.

 

Notably the report, which was based on limited fieldwork, fails to demonstrate a rigorous methodology in terms of both evidence collection and the selection of interviewees. It was never written for the purpose of being adduced in a criminal investigation or trial. For these reasons, it should not be relied upon in criminal proceedings as a reliable source of evidence.

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II. LIMITED FIELDWORK AND SELECTIVE INTERVIEWEES

HRW conducted fieldwork in “southern Sudan, Khartoum, Nairobi and elsewhere from February 1999 to November 2002.”cccxlix Many of the interviewees were senior figures connected to southern forces. The partiality of such interviewees impacts their reliability as evidential sources. Surprisingly, there are very few interviews with displaced people in the report and no interviews with individuals inside Block 5A.

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Approximately 150 interviewees are listed in the report,cccl including five outside the time frame stipulated.cccli Block 5A was not visited. Other locations, from which evidence was gathered, were from within rebel-held territory, which again impacts the reliability of the information obtained. This reliance on partial evidence is emblematic of HRW’s approach in this report, when attempts are made to rely on such material in criminal proceedings.

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III. METHODOLOGY

There are serious deficiencies in the methodology applied in this report as set out below.

 

(a) Compilation of the Report

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The report was written by Jemera Rone, a HRW researcher on Sudan, assisted by eleven other individuals.ccclii There is no information as to whether any of the eleven assistants travelled to Sudan to conduct fieldwork. Furthermore, there is no information in the report to suggest that Jemera Rone visited Block 5A specifically or conducted any interviews in this area.

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(b) Lack of Rigorous Methodology in the Conduct of Interviews

 

Most of the interviews conducted took place in 1999. It is notable that apart from five displaced women interviewed in 1999, no other displaced individuals are cited as having been interviewed and none took place in Block 5A. Time on the ground was limited largely to 1999 and mainly from 14-20 August in Bahr el-Ghazal, Nyal and Ganyiel, Western Upper Nile.cccliii This was before the construction of the All Weather Road. Other interviews were conducted in Kenya and in USA.

 

In terms of flawed methodology, HRW provides no information on the following reliability markers:

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How were the interviewees selected?

• Who provided access for the research teams to meet with the interviewees?

• How did the interviewers travel to the location of interview and who accompanied them?

• Who provided security, and how?

• Were visas required for the interviewees? If so, how were they obtained and from where?

• Where were the precise locations in which the interviews took place?

• Was there any protocol in place to govern the conduct of the interview?

• In which language did the interviews take place? Was an interpreter present, if so, how was the interpreter selected?

• What were the qualifications of the interpreter?

• Were questions and answers accurately translated? Were rebel representatives present and/or

• providing security at the interview?

• What questions were posed?

• Was the interview recorded? If so, how?

• Was any reward, monetary or otherwise offered to the interviewees?

• Were the interviewees offered the prospect or promise of compensation?

 

The shortcomings of the methodology of this report cannot be cured as Jemera Rone is now deceased.

 

IV. LACK OF LUNDIN-SPECIFIC EVIDENCE

HRW03, in terms of Company-specific evidence, includes one interview with the Company,cccliv one letterccclv and one fax.ccclvi A search for references to witnesses who saw alleged actions by the Company, or the effect of those alleged actions, produces few results. Of those identified, they are vague hearsay accounts.ccclvii This is a contrast to the actual steps taken by Lundin to check facts as to the events taking place in Sudan. It is on this basis that HRW accuses Lundin of ‘wilful blindness’ccclviii to the conflict and asserts that the Company was complicit in the violation of human rights. HRW03 assumes a position on Lundin’s activities and thereafter makes unfounded allegations against the company. HRW criticises the Company for a lack of transparency, whilst failing to apply those same standards to its own research and report writing. This is notwithstanding the Company releasing its detailed report in May 2001.

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V. LIMITATIONS OF ACCURATE DATA

HRW03 acknowledge the challenge and limitations of gathering accurate data in the “chaos of war, continual civilian displacement, famine and scarcity, and the skeletal transportation and communications systems”.ccclix Accepting that relief agencies produce estimations to support their operations and for requesting donor assistance, HRW03 state figures are “only reliable as estimates in the absence of better information on population”. This position is supported by the WFP in 1999 who also acknowledge the shortage of reliable data in emergency situations as “local leaders or controlling groups learn how the assessment and allocation systems work and how, through manipulation, they may secure more resources”. The WFP cite southern Sudan as an example where this happens.ccclx

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Despite this, HRW03 refer to various statistics to support their allegations of displacement in the ‘oil fields’ of Western Upper Nile – referenced in the Chapter on Lundin. It is important to reiterate that Lundin did not produce oil so there were no ‘oil fields’ for Lundin’s activities.

 

For example, HRW reference a report thus: “U.N. OLS (Northern and Southern Sectors), “Joint Weekly Report: October 13, 1999,” Nairobi, October 13, 1999. The 30,000 escaped into the garrison towns ofBentiu (16,000), Rubkona (4,830), and Mayom (2,900). There were others in need in the government areas of Pariang (4,770), Tong and Gezira (900), and Dorkhan and Kuersilik (600). Those in Pariang included persons who fled from the government military operations outside of Pariang in May 1999.” ccclxi

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The UN report referenced by HRW03 does not include these figures.ccclxii It states:

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“WFP cannot access 30,000 food-insecure beneficiaries targeted for monthly food rations. A further 1,200 malnourished children in selective feeding centres in Mayom, Rub-kona and Bentiu face a food shortage when the WFP stocks (10 MTs) held by CARE in the centres runs out.”

 

The weekly reports before and after also do not refer to these numbers of displaced so it is unclear how HRW established its figures.ccclxiii The reports do not refer to the fighting as linked to oil activities.

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The OLS report prior to this, week beginning 6th October 1999, also refers to people returning to locations they had previously left, which shows a continual movement of people during these periods:

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“A rapid assessment mission consisting of members from UNICEF, WFP, Coordinating Committee of Voluntary Service (COSV) and local counterpart staff was sent to Koch, Boaw and Paboung in Leech State, Western Upper Nile on 28 September 1999. The team reported its findings during an Emergency Preparedness meeting held on 29 September. The team found that the population in Koch that had earlier been displaced by fighting in the area, was beginning to return to the area. There were reports of crops damaged by floods and looted by local militias. In Boaw, the team found a local population hosting large numbers of IDPs. There was concern over the strain the IDPs are placing on the local food security situation of the area.”ccclxiv

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In fact HRW03 provides no substantive evidence to support allegations of displacement in Block 5A that they framed in a numerical context. For example, in its section titled: “Lundin Hides the Situation of Armed Conflict in Block 5A”, a WFP press release from July 1999 is referred to but the actual report speaks to the region of Western Upper Nile, not Block 5A. This is a vast region of which Lundin were present in a small section (see Chapter 4). The WFP report says: “War between two rebel factions in this important area of southern Sudan is blocking WFP from delivering food aid to 150,000 people in rebel held towns in the region.”

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The report goes on to say: “This is the second year running of major inter-factional fighting in Western Upper Nile. For many months in 1998, access by humanitarian agencies was severely hampered, and important agricultural activities were disrupted. Insufficient rainfall followed by floods exacerbated the situation, causing even more suffering for the population, many of whom died or lost livestock and other belongings.”ccclxv This press release, as well as the other OLS reports HRW03 reference, do not cite oil activities as the cause of the fighting. In fact the report records “it is the latest chapter in the conflict.”ccclxvi

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In the HRW03 section titled: “Numbers of Nuer and Dinka Desplaced [sic] from Oil Blocks in Western Upper Nile”, the sources are similarly not possible to corroborate or full details provided to substantiate the figures provided. Of the seventeen sources cited, five are emails from various WFP staff, four are WFP reports that are selectively presented and in one instance wrong – as shown above, six refer to sources not possible to locate.ccclxvii Of the ones readily available, none mention oil as a cause for displacement but rather spoke to general insecurity occurring across southern Sudan at this time.ccclxviii

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VI. ATTACKS ON FOOD RELIEF – NO CONNECTION WITH LUNDIN

HRW describes in outline the effects of attacks by the SPLM/A on food and non-food relief in locations in southern Sudan, which followed from the reduction in donor funding for relief aid.ccclxix Crucially, however, HRW seeks to conflate these attacks with the activities of oil companies operating in that part of Sudan, in a chapter titled “Human Rights Consequences of Oil Development”.ccclxx

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Drought, famine and insecurity had been substantial contributory factors to a deteriorating humanitarian situation and movement in search of relief. To focus, as HRW does, on the actions of the Government of Sudan alone as causing the “displacement, disruption and hunger caused by the fighting” is misleading and biased. To include this account in a chapter entitled “Oil Fuels the War” is a clear misrepresentation of the situation on the ground.

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VII. OIL AND WAR – A SELECTIVE PORTRAYAL

HRW03 asserts that the increased oil revenues were used to fund military spending.ccclxxi This assertion ignores, first, the fact that Lundin did not produce any oil during its time in Sudan and second, Sudan’s economic situation in the early 2000s.

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Following a long period in which Sudan had been unable to service its international debt and a consequent period in the international economic wilderness, at about the time the new oil refinery at Al Shajarah, South of Khartoum, became operational, Sudan entered into an agreement with the IMF for debt service payments in 1999.ccclxxii The IMF package included conditions such as a reduction of military spending as a percentage of GDP and Sudan acceded to increases in the domestic budget for e.g. civil service salaries, investment in agriculture and the purchase of foreign currency reserves.ccclxxiii Even with the increase in governmental revenues in 1999-2002, the dire economic circumstances of the country meant that the increase was sufficient only to keep the country afloat.ccclxxiv IMF reports do not support the HRW stance that the revenues funded military expansion.ccclxxv

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Oil was an emerging economic resource of the country and was caught up in self-serving narratives to prevent revenues to the government as developed by the SPLM/A and advocacy groups, even though the origins of the conflicts are complex and disputed.

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The presence of oil in this equation made for the development of a one-sided narrative among NGOs that could be advanced, namely that the conflict was about oil and companies involved in its extraction were complicit in causing and perpetuating the conflicts and its consequences. It is also important to reiterate that Lundin did not produce any oil during its time in Sudan so to equate oil revenues with the Company’s operations is a similar misrepresentation of the facts.

Logistical difficulties in navigating the terrain, the influence of the seasons and the absence of roads in many parts of the country are not addressed in HRW03. The different factions and militia fighting operated across vast distances, often with little or no communications capacity and only intermittent weapons capacity.

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HRW’s historical portrayal of the conflict, whilst acknowledging SPLM/A actions against the civilian population, presents a one-sided view. Significantly, the report does not state that the SPLM/A were conducting an insurgency against the Government of Sudan but hastens to describe the actions of the government as a “textbook counter-insurgency campaign.” ccclxxvi In reality, there were conflicts occurring between competing and opportunistic groups, being waged in southern Sudan. The fluidity of these groups and defections affected the balance of power and thus the ebb and flow of the conflict.

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VIII. DISPLACEMENT

HRW’s claims about displacement are based largely on other NGO sources such as ECOS’s “Depopulating Sudan’s Oil Regions” (2002) and Christian’s Aid “Scorched Earth: Oil and War in Sudan” (2001) report. Neither of these documents are based on comprehensive fieldwork. See Chapters 8 and 6, respectively. HRW also relies on a series of UN reports,ccclxxvii none of which were based on site visits to Block 5A.

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The claims of HRW03 that “oil areas targeted for population clearance are those where a concession has been granted and a pipeline is imminent and/or nearby” is wholly unsupported by evidence and misleading.ccclxxviii There is no evidence of clearing people to enable a pipeline associated with Lundin’s Block 5A concession. The pipeline was a significant distance from any of Lundin's exploratory activities as the map below shows.ccclxxix Furthermore, Lundin did not extract oil commercially.