I. INTRODUCTION

In June 2010, the European Coalition on Oil in Sudan (ECOS) published a report: “Unpaid Debt – The Legacy of Lundin, Petronas and OMV in Block 5A, Sudan 1997-2003” (“Unpaid Debt”). 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.”cccxciii 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’”.cccxciv

 

When submitted to proper scrutiny, Unpaid Debt is not a reliable evidential source for the purpose of a criminal investigation or trial. The report lacks transparency, exhibits confirmation bias, portrays a misleading view of the conflict, relies on recycled hearsay sources from other reports and fails to accord sufficient weight to the community work Lundin was conducting in Block 5A and the way in which it operated. It also includes reference to documents and Plaintiffs put forward in the Talisman proceedings to the US Courts, that were held not to link that company to any of the alleged crimes that were committed. Furthermore, the satellite imagery relied upon in the report, in an effort to demonstrate evidence of population displacement, is incorrect and misleading. In short, 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. For the reasons set out herein, and in accordance with international standards of criminal procedure, admission of this report would not be permitted before international courts and tribunals.

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II. FLAWS IN METHODOLOGY

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A. LACK OF TRANSPARENCY IN THE RESEARCH AND AUTHORSHIP OF THE REPORT

Information as to who was responsible for researching and writing Unpaid Debt is not provided in the report.cccxcv This lack of transparency prevents any detailed scrutiny of the potential bias of those preparing and authoring the report, which in turn undermines its probative value as a source of evidence in a criminal investigation. It is not possible to question the underlying source-providers of information or indeed authors/researchers in the context of any future criminal trial.

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The funding of the research and writing of Unpaid Debt also lacks transparency. Insufficient detail isprovided as to which particular NGOs funded the research. The report states only that: “This ECOS publication was supported by Fatal Transactions.”cccxcvi Fatal Transactions was a network of NGOs in Europe and Africa which believe that “if natural resources are exploited in a responsible way, they can be an engine for peace-building and contribute to the sustainable development of the country.” These NGOs received funding from the European Union but have not been identified – nor is the manner or extent of their support explained.

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B. BIASED, CURSORY AND NARROW INTERPRETATION OF THE CONFLICT IN SUDAN

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 CPA 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,cccxcvii and when that claim failed, Lundin.

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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. This confirmation bias undermines the report’s reliability.

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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”cccxcviii 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 the conflicts had been on-going both before and after Lundin’s oil exploration in Block 5A. This entrenched approach undermines the impartiality and credibility of the report.

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C. LACK OF PRIMARY EVIDENCE AND RECYCLED SOURCES

The majority of the material relied upon in Unpaid Debt is taken from a secondary, recycled source, namely Human Rights Watch’s 2003 report “Sudan, Oil and Human Rights.” There are 66 references in the main text to HRW03 as a source for information in Unpaid Debt. Large tracts of HRW03 have been condensed into a few lines, often simultaneously citing other reports by other organisations. Allegations made in HRW03 are cited uncritically, with no evidence of verification of the accuracy or authenticity of the claims made. This use of layered, unattributed hearsay undermines the probative value and reliability of the report as an evidential source in a criminal investigation.

 

“New” primary material in Unpaid Debt comes from the following sources: (i) anonymous Government ministers in Khartoum in 2006 – 2008;cccxcix (ii) a confidential interview with an anonymous senior manager of an oil companycd and (iii) an archived filmed ECOS interview with Peter Gadet from 2002 who was deeply implicated in the conflict.cdi The report also relies upon selective satellite imagery of the agricultural land use in Block 5A before, during and after Lundin’s presence, which is analysed below.

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Gadet, was also a source of information in Christian Aid’s 2001 report, Scorched Earth – see Chapter 6. These new sources are deeply problematic as they fail to demonstrate either reliability or impartiality.

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The report also seeks to rely on information from the Lundin’s Vice President of Corporate Responsibility. However, such reliance is misleadingly selective and taken out of context. cdii

 

In terms of secondary evidence, the majority of the interviews cited in Unpaid Debt were conducted with southern factional leaders, who later served in the South Sudanese Government after 2011. None of these interviewees are impartial given their direct involvement in the conflicts.

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Secondary sources from other advocacy reports are relied upon, namely Christian Aid, Human Rights Watch, Amnesty International and journalists connected to these organisations.cdiii Unpaid Debt ignores the obvious weaknesses of relying on unverified, secondary hearsay accounts. Such accounts are cited as immutable truths, without corroboration or further investigation. The use of these sources undermines the probative value of the report and demonstrates its confirmation bias.

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Unpaid Debt also refers to an earlier 2002 ECOS report prepared by Diane de Guzman and Egbert Wesselink: “Depopulating Sudan’s Oil Regions, January to March 2002.”cdiv This report fails to set out its methodology in terms of either the fieldwork conducted or the interviewing of individuals and recording of their testimonies. The report refers to interviews conducted by Diane de Guzman with “displaced people in Ruweng County and Western Upper Nile in February and March 2002.”cdv These locations were not proximate to the Company’s operations. Ruweng County is closer to Block 1 than Lundin’s operations in Block 5A and Western Upper Nile is vast in size and notably difficult to navigate given the lack of roads. Large parts to the west were SPLM/A territory, as was Ruweng county in the north-east: a fact not referenced in the report. These were areas in which Peter Gadet was operational. Peter Gadet is also referenced in Unpaid Debt from ECOS archive footage in 2002.cdvi No indication is given in the report as to how access to Peter Gadet was obtained, on what terms or how his obvious tendency to bias could be mitigated. Reliance on Peter Gadet as a source of evidence against the oil industry in Sudan is unacceptable and inexplicable.

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D. INADEQUATE INFORMATION ON THE METHODOLOGY

Unpaid Debt does not provide any details of the methodology used in the gathering of the information in the report. The following questions remain unanswered:

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• How were the interviewees selected and contacted?

• How was their identity confirmed?

• Who conducted the interviews?

• Which interviewees were not relied upon and why?

• Was an interpreter engaged, and if so, how was that interpreter selected and what

• professional qualifications did the interpreter have?

• Did the interpreter accurately translate the questions asked and accurately translate the answers given?

• What was the full record of the questions asked of the interviewees?

• How were the interviews recorded and by whom?

• Was the record of interview affirmed by the interviewee?

• Was the interviewee offered or given any reward, monetary or other, for providing his/her account?

• What assistance was provided to find the interviewees, to travel to locations and by whom?

 

The lack of answers to these questions undermines the credibility, reliability, fairness, and impartiality of Unpaid Debt.

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E. INSUFFICIENT FIELDWORK IN SUDAN

Unpaid Debt does not detail any fieldwork conducted in Sudan, save for a visit in 2007, in respect of which no details are provided. No interviews conducted from that visit are cited.

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There are no details of any visit made by ECOS to Block 5A, Lundin’s site, or the All Weather Road in order to verify the claims that are made in secondary source materials.

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F. USE OF MISLEADING IMAGES

The sourcing, use, and description of images in Unpaid Debt is misleading. The report does not state that the images included were not taken for the purpose of the report during fieldwork in the region.

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III. LACK OF IMPARTIALITY OF EGBERT WESSELINK

Egbert Wesselink, a Dutch national affiliated with Pax Christi and a vocal critic of the oil industry in Sudan, and the Company, was one of the key individuals behind both Unpaid Debt and the earlier 2002 ECOS report “Depopulating the Oil Regions”, which was authored by Diane de Guzman and edited by Wesselink.cdvii

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At the time Unpaid Debt was written,cdviii Wesselink was a co-ordinatorcdix for ECOS and Senior Advisor to Pax Christi International (PAX) an international Catholic Peace movement, which functioned as ECOS’ secretariat, following the latter’s formation in 2001.cdx From 2011, ECOS gradually ceased to function.

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No reference is made in either of the ECOS reports to time spent by Egbert Wesselink on the ground in southern Sudan, or more specifically in Block 5A. There are no references to attempts made by Wesselink to corroborate any of the secondary source materials cited in either report. Neither are his close contacts with the SPLM/A detailed in either report. In 2005, he gave an interview in a publication for the Dutch Humanistic Peace Council, where he says, in translation, that he has ‘his data through personal contacts with rebels of the SPLM’.cdxi This lack of transparency in Unpaid Debt calls into question the impartiality, and interpretation of events by both Wesselink and ECOS.cdxii In reality, ECOS, PAX and Wesselink were allies in the quest for the independence of south Sudan,cdxiii although silent before and thereafter on the SPLM/A’s involvement in the conflicts.cdxiv

 

In 2012, Wesselink purchased shares in Lundin in order to have access to the Company’s Annual General Meetings and be able to address its shareholders.cdxv He tabled a number of proposals for resolutions to be presented at the AGM in 2012,cdxvi in an attempt to force the Company to accept responsibility for the alleged crimes made in Unpaid Debt, all of which were emblematic of his pursuit of the Company.

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Wesselink also travelled that year to Sudan to engage Lundin and the South Sudanese in a “reconciliation process with Christian overtones”cdxvii demanding the attendance of the CEO and one of its board members:

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“Carl Bildt and Ian Lundin should travel to South Sudan and ask for forgiveness… They should manage the situation in the classic Christian manner, ‘You confess, you repent and you open up for atonement’.”cdxviii

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Wesselink’s evident lack of impartiality coupled with his drive to attempt to force Lundin to accept

responsibility for war crimes renders him a biased and unreliable author and source of evidence.

 

IV. TALISMAN

 

(i) INTRODUCTION

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In 2001, the Presbyterian Church of Sudan and others filed a lawsuit against the Canadian oil and gas producer, Talisman Energy, under the US Alien Tort Claims Act (“Talisman Energy case”). It was claimed  that Talisman aided the Government of Sudan in the commission of genocide, war crimes and crimes against humanity.

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According to the claim, Talisman worked alongside the Sudanese Government in the creation of buffer zones around certain oil fields. It was alleged that this conduct effectively assisted human rights violations and the perpetration of international crimes in order to gain access to oil by displacing the population living in the areas around the oil fields and attacking their villages. Talisman had purchased the rights to develop in Blocks 1, 2 and 4 in October 1998. cdxix

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The District Court of New York dismissed the claim on 12th September 2006.cdxx In a decision on 2nd October 2009, the US Court of Appeals for the Second Circuit affirmed the District Court’s decision.cdxxi The Court of Appeals held that it had to examine international law to decide what standard was applicable in order to establish aiding and abetting liability for human rights violations.

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The court determined that under the Alien Tort Claims Act, and in accordance with the standard under the International Criminal Court Rome Statute, the plaintiffs must show that “Talisman acted with the ‘purpose’ to advance the Government’s human rights abuses.”cdxxii The court held that applying international law, the mens rea standard for aiding and abetting liability under the Alien Tort Claims Act is “purpose rather than knowledge alone.”cdxxiii The Court held that the Claimants had failed to establish on the evidence that Talisman “acted with the purpose to support the Government’s offences.”cdxxiv

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The Court referred to the Plaintiff’s extensive reliance on hearsay evidence, which failed to “build the links in the chain of causation” between Talisman and the injuries of the Plaintiffs.cdxxv The Court determined that the volume of the Plaintiff’s evidence rested on a dozen or so pieces of evidence to which they referred repeatedly.cdxxvi

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The Court held that in addition to the Plaintiffs’ failure to show Talisman’s substantial assistance to the Government’s violation of human rights, the Plaintiffs failed to present sufficient evidence to find Talisman liable for any displacement from Government attacks on civilians. The claim that Talisman aided and abetted the Government failed for several reasons including the Plaintiffs’ failure to present evidence that would raise a question of fact as to whether Talisman performed any act that assisted the Government in violation of international law. In terms this meant that the claim had been based upon allegations that were not supported by the evidence.

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Before the June 2010 publication of Unpaid Debt, the US Court of Appeals for the Second Circuit had already dismissed the case against Talisman. This decision was further challenged by the petitioners to the US Supreme Court and their application dismissed in October 2010.

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ECOS’s report Unpaid Debt seeks to rely on case documents and individuals who were Plaintiffs from the Talisman case as sources of evidence to impugn Lundin and recycled this material into its report .

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Other NGOs, for example Human Rights Watch – and single-issue campaigners Bloodhound,cdxxvii have also relied on a number of these Plaintiffs as sources of evidence.

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(ii) UNFAIR RELIANCE ON TALISMAN COURT DOCUMENTS

The documents ECOS’s relies upon from the court record, “include Talisman’s security reports, testimonies from militia commanders who were active at the time, as well as army orders to forcibly remove the population away from the oil areas.”cdxxviii These documents became public as a result of the US Court proceedings and were not known to the Company at the time of their creation, a fact conceded by ECOS.cdxxix More importantly, nor were they even relevant to the Company’s operations.

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There are 49 references in Unpaid Debt to Talisman court case documents. Reliance upon Talisman court documents in this manner against Lundin is misconceived. For example, when exhibiting a description of Talisman’s security structure in 2000 in Unpaid Debt,cdxxx which had been taken from Talisman’s Corporate Social Responsibility Report,cdxxxi ECOS boldly and without foundation asserted that it understood that “Lundin Consortium’s security arrangements would have been similar to this structure.”cdxxxii This is incorrect as the two companies had separate and different security arrangements.

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This willingness to make assumptions without foundation, demonstrates ECOS’s lack of rigour in its approach to reporting on the conflict. The use of selective documents in an attempt to cast a shadow over Lundin’s actions in Sudan, at a time when the US Court of Appeals had already dismissed the case against Talisman, is unfair.

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V. NO WEIGHT ATTRIBUTED TO LUNDIN’S COMMUNITY DEVELOPMENT PROGRAMMES

ECOS summarily dismisses Lundin’s submissions concerning their advocacy work in support of peace with the Government of Sudan and other stakeholders including Riek Machar, NGOs, IGAD, the Arab League and a number of US organisations. On 8th June 2010, the Company issued an open letter to its shareholders in which it refuted “all the allegations and inferences of wrongdoing attributed to Lundin Petroleum in the report.” See Annex 6. While Unpaid Debt refers to Lundin’s account of its engagement in “extensive discussions with Government representatives requesting explanations regarding allegations of scorched earth, population displacement, aerial bombing, civilian targeting and a number of other human rights violations,”cdxxxiii these explanations are dismissed summarily by ECOS, noting only that “no results of these extensive discussions have been reported or observed.”cdxxxiv ECOS was unable to dispute the undeniable truth of the substantial efforts made by Lundin to bring peace to the region. This attitude reveals ECOS’s biased approach. See Chapter 4 for more details of the Company’s engagement in peace initiatives.

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Lundin’s community development work is also dismissed by ECOS without due consideration. The

report references the Company’s explanation that the Community Development and Humanitarian Assistance Program was ‘designed to improve the local infrastructure (road construction), the supply of freshwater (delivery and drilling of water wells), health (mobile tent clinics and refurbishment of hospital), and education (supply of school equipment and meals to over 500 children).cdxxxv

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VI. SATELLITE IMAGERY EVIDENCE

A cornerstone of the evidence ECOS relies upon against Lundin is an analysis of several satellite images of areas around the Company’s operations and the All-Weather Road.cdxxxvi These satellite images refer to a study prepared by PRINS Engineering for ECOS.cdxxxvii

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At the request of the Company, an independent agency, Hatfield Consultants LLP (Hatfield) has analysed the Satellite Mapping of Land Cover and Use in relation to Oil Exploitation in Concession Block 5A in South Sudan. 1987–2006 (Prins 2009) (“PRINS Report”), referred to in ECOS, to:

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i. determine the credibility of the report and the consequent accusations;

ii. attempt to replicate PRINS’ findings using academically accepted techniques; and,

iii. provide a summary of their expert opinion on the weight of evidence present

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In short, the Hatfield Report undermines the credibility attributed by ECOS to the PRINS Report.

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i. THE ACCUSATIONS FROM THE ECOS REPORT USING SATELLITE IMAGERYcdxxxviii

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The ECOS report states that the PRINS Report demonstrates that anthropogenic activity in dry regions of Africa can be identified by the use of space-borne sensors that detect land use caused by humans and livestock. ECOS’ theory is that during the dry season, human activity will break the soil crust, leaving a surface of high reflectance that can be traced easily by satellites.cdxxxix Lower reflectance, according to the PRINS Report, shows evidence of a decrease in farm activity in the region and, by inference, evidences displacement of civilian farmers in the region of the oilfields.