Allegations of the Company’s potential complicity in alleged war crimes come from a small number of NGOs: Christian Aid’s March 2001 ‘Scorched Earth’ report and two years later, Human Rights Watch published “Sudan, Oil and Human Rights”, the main premise of which claimed that “oil now figures as an important remaining obstacle to a lasting peace”. The June 2010 publication of the European Coalition on Oil in Sudan (ECOS) report – Unpaid Debt: The Legacy of Lundin, Petronas and OMV in Block 5A, Sudan 1997-2003 (Unpaid Debt), is based on secondary material. One of ECOS’s 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.”

 

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.

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Of significance is the reliance by NGOs on the SPLM/A for their conclusions. The SPLM/A was in charge of the majority of the regions visited by the NGOs and had the means to manipulate and control the narrative against the Government of Sudan. Such control inevitably impacted the reliability and impartiality of the subsequent reports published by the NGOs.

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The SPLM/A was originally founded in 1983 as a guerrilla movement with Ethiopian backing to fight against the Government of Sudan. In 1991 it split into two rival factions that resulted in years of interfactional violence in southern Sudan. The SPLM/A was never a coherent fighting force and had various allegiances ranging from Cold War Marxist collaborations to Christian ‘victims’ in the fight against militant Islam in the late 1990s/2000s. The political wing of the SPLA was the SPLM; the relief arm was the Sudan Relief and Rehabilitation Agency (SRRA), and the New Sudan Council of Churches (NSCC) was the ‘spiritual wing’ of the movement. The SRRA controlled access to SPLA areas for NGOs and other international entities in issuing visas and travel permits. NGOs had to seek visas from the SRRA and agree terms to access southern Sudan.

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The NSCC partnered with organisations such as Norwegian Church Aid, DanChurch Aid, Christian Aid, and the Mennonite Central Committee, as well as religious groups to win financial and material support for clergy, church members, and the greater southern Sudanese community.

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The NSCC was expressly thanked in Christian Aid’s Scorched Earth report published in 2001 and in Human Rights Watch 2003 report ‘Sudan, Oil and Human Rights’. The NSCC developed especially close links with American evangelicals, through its skilful framing of the civil war as a religious conflict.

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Many of the NGO reports contain only generalised statements about the movement of people and fail to provide substantive facts or information to establish the causes and exact timing of the alleged displacement. Moreover, none of the NGOs visited the Company’s areas of operation in Block 5A. Some of the reports rely on only a handful of interviews and/or unnamed sources and provide no linkage evidence to the Company. There are also serious methodological failings including the following: some interviewees are anonymous, and it is not clear whether formal interviews were ever conducted and recorded; no information is provided as to the qualifications of the interpreters; there is no evidence as to how information was collected and whether interview protocols were adhered to; the identity of the interviewers and their competence to conduct the interviews is unknown; no information is provided as to the duration of any of the interviews or how individuals were selected. Neither is information provided as to the steps taken, if any, to verify the true identity of the interviewees and whether or not they were ever offered an opportunity to confirm what had been attributed to them.

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Many interviews are vague, unverifiable and constitute hearsay. They contain secondary, recycled sources and lack transparency, demonstrate confirmation bias and portray a misleading view of the conflict. Satellite imagery relied upon by ECOS to demonstrate population displacement is incorrect and misleading.

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Simply put, these reports are advocacy documents implicating the oil industry in conflicts of which they were not a part. Pursuant to the standards of international courts, such reports would not be admissible in an international criminal investigation or a prosecution. Over the years, international criminal tribunals have shown an increasing wariness about relying on such material prepared by advocacy groups, NGOs and other international organisations. The nature and methodology of such reports prevents those accused of crimes from being able to rigorously challenge the case against them in contravention of their fundamental human rights. Evidence of bias, unreliability, flawed research and the absence of accountability make any use of such NGO reports in future criminal proceedings unconscionable.