Nearly 20 years have passed since the publication of Christian Aid’s “Scorched Earth: Oil and War in

Sudan" report in March 2001, which contained serious and wide-ranging allegations of suspected complicity in alleged international crimes by Lundin Oil (formerly IPC, later Lundin Petroleum, later Lundin Energy all to be referred to below as Lundin or the Company) and other oil companies in Sudan.

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These allegations were investigated immediately by Lundin, by independent journalists invited by the Company to its operations and by European Union Ambassadors, whilst in Sudan in May 2001. Christian Aid's allegations were front-page news in Sweden for weeks. Following media criticism regarding lack of actions by Swedish authorities, questions were raised in the Swedish Parliament and Sweden's Minister of Foreign Affairs was encouraged to open an investigation.

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Christian Aid's allegations were exposed to be without foundation. The Company published a comprehensive response to their report, which refuted the allegations line by line. The independent journalists who visited Sudan did not support the accusations and neither did the EU Ambassadors following their visit in May 2001. In 2001, the Sudan desk officer at the Swedish Ministry of Foreign Affairs recorded the following:

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"The EU ambassadors’ conclusions [from their visit to Sudan] are that … no evidence can be provided that Sudanese government troops have forced people to flee their villages in the oil fields or that the Government of Sudan carr[ied] out a scorched earth tactic to prepare for the oil industry…most of the allegations made by the various groups and individuals thus seem[s] to be inaccurate and based on hearsay rather than independ[ent] and objective observations…the oil companies have improved the infrastructure …in the area, which in turn, improved local people's access to marketplaces, health and water." i

 

The Swedish Government took no steps to investigate Lundin.

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In 2010, years after Lundin had left Block 5A, the same discredited allegations, were recycled by the European Coalition on Oil in Sudan (ECOS), a campaigning organization, in its report “Unpaid Debt: The Legacy of Lundin, Petronas and OMV in Block 5A, Sudan 1997-2003”. The ECOS allegations targeting the Company only arose after a case it had supported against the Canadian oil company Talisman for damages was struck out as the US court held that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences.”

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Notwithstanding the fact that nothing material had changed since Lundin’s exoneration in 2001, the Swedish Prosecutor announced a preliminary investigation in 2010. This investigation has been unreasonably long; it was not until end of 2016 that the Company Chairman and CEO at the time, were formally declared to be under suspicion. After 11 years, the Prosecutor has yet to reach a conclusion and has changed the original contents of his suspicion sheet on several occasions, which suggests the evidence to back up his case is lacking.

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Lundin’s history with Sudan dates back to the early 1990s when it looked for oil in the Red Sea. No oil was discovered, and the concession was handed back. In the year leading up to the Khartoum Peace Agreement in 1997 (KPA), the Company was invited by the Government of Sudan to create an international consortium to search for oil in the southern part of Sudan.

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The Company was granted concession rights for Block 5A in collaboration with the Malaysian company Petronas, the Austrian company OMV and the Sudanese state oil company Sudapet. Block 5A lay south of blocks 1, 2 and 4 where discoveries of oil had previously been made. At that time, existence of a petroleum system in Block 5A had yet to be found.

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Lundin entered Block 5A in 1997 following the formulation and agreement of principles for peace in the Political Charter dated 10th April 1996. The Khartoum Peace Agreement (KPA), signed on 21st April 1997, included provisions on the distribution of oil revenues between the Government of Sudan and the producing states as well as southern states and contained assurances that all parties would refrain from armed conflict. Following discussions with central and local authorities and the signing of the KPA, Lundin assessed and expected that it would be operating in a peaceful environment.ii The EU and UN supported a policy of constructive engagement and actively encouraged oil companies and others to invest in Sudan. There were no UN or European sanctions that stopped companies from doing so. It was agreed by all parties that the economic benefits from oil would help Sudan to develop and improve the wellbeing of its people.

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Throughout the six years Lundin was active in Block 5A, it maintained close ties with the local communities, including through its Community Development and Humanitarian Assistance Program (CDHAP). At no stage did the Swedish Government advise, direct or otherwise intervene to halt the oil activities. Sweden’s Prosecution Authority did not play any role at the time either. The United Nations and European Union did not make any demands that the Company cease its activities in Sudan.

 

Lundin eventually sold its interest in Block 5A to Petronas Carigali in 2003 without ever having produced any oil commercially. Its activities had been minimal compared with the other oil companies operating in Sudan.

 

Sudan before independence in 2011 was the largest country in Africa, occupying eight per cent of its landmass, thinly populated in most rural areas, but suffering continually from ecological disasters that caused not only death but also the displacement of people. This led to the movement of people seeking to improve their socio-economic opportunities and basic survival. Increased conflicts for water, grazing land and fishing rights as well as cattle raids, particularly between the major southern ethnic groups, the Dinka and Nuer, were a constant feature in Sudan’s instability. The inter-factional conflicts in the 1990s and the new millennium were responsible for ninety-percent of internally displaced people in southern Sudan. As well as natural disasters, religion and ethnicity were exploited by elites and foreign actors for their own political agendas. The 1990s saw the issue of secession framed around conflicts between the ‘Islamic north’ and ‘Christian south’, have increasing resonance to international audiences.

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The KPA was superseded by the Comprehensive Peace Agreement of 2005 (“CPA”), setting the stage for the separation of this massive state into two: Sudan and South Sudan. Hopes that peace would come to the south with the two states solution have been defeated. The violence has continued long after South Sudan seceded in 2011 and became an independent state. Many of the South Sudanese leaders today sit uneasily in a fragile government coalition, aimed at keeping the peace between the different tribes and factions who have clashed, competed, and fought with each other before and since independence. South Sudan now ranks as one of the most corrupt states in the world.

 

That allegations of suspected responsibility for the conflicts were made, and continue to be perpetuated against Lundin, mainly by Christian-led NGOs, is not a surprise when it is understood that conflicts in Sudan were carefully manipulated so as to be seen as a Muslim north vs. Christian south conflict in which oil was claimed to play a central role, despite evidence to the contrary.

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The rebel group, the Sudan People’s Liberation Movement/Army (SPLM/A), developed the narrative around ‘oil wars’, alongside that of religious persecution, in their propaganda war as these themes had international resonance. They were successful in influencing western religious evangelists and NGOs who perpetuated this narrative in their reporting.

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One of the reasons for the conflict between the Government of Sudan and the SPLM/A was about the degree of autonomy of the south from the north, and eventually the creation of the new state of South Sudan, with oil companies - acting legally and legitimately to assist the country's development - caught in the crossfire. A review of events shows that the conflicts in Sudan were between different people, in different areas, at different times, for different reasons. To put the context of this kaleidoscopic conflict into one that holds foreign oil companies as responsible is a clear misrepresentation of the history of Sudan.

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Advocacy groups such as Christian Aid, ECOS and other NGOs were intentionally led to believe by those seeking to separate southern Sudan from Sudan that a religious war was being waged by an Islamic government in the north against the Christians in the south of the country. Southern Sudanese leaders were financially supported by international NGOs and the American evangelical communities which encouraged the US government to take the southern side in this conflict. Whether on purpose or not, the advocacy groups and the churches overlooked evidence that the separatist SPLA leaders in the south were more intent on personal gain than catering to their people and their lands.

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This Report is based upon our research and assessment of the background to the criminal investigation against Lundin representatives and a review of the wider context in which the Company invested and operated in Sudan from 1997 to 2003 as part of a consortium of companies. It contains a historical overview of peace and conflict in Sudan. It also explains the policy of constructive engagement, transparency and cooperation adopted by the EU and UN, within which Lundin operated at the time. It assesses the political background to the public scrutiny of the Company and the Swedish Prosecutor’s decision to open a criminal investigation in 2010 and maintain it for over 10 years. It assesses the reports of NGOs and other organisations which form the basis of the Swedish Prosecutor’s investigation, examining the reception and evaluation of such reports in international tribunals. The Report raises serious concerns about the independence and reliability of the information included in the NGOs’ advocacy reports, which forms the basis of the continuing investigation by the Swedish Prosecutor and explains that by the standards of international courts, these reports would not be admissible in an investigation or a prosecution. Contrary to the claims of the NGOs, there is evidence of Lundin’s commitment to support and provide much-needed infrastructure for the local population that undermines the allegations the company has faced.

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Aside from the inadequate foundation for this investigation, there is a stark issue of natural justice for Lundin representatives who find themselves under suspicion. Having this unfounded suspicion hanging over their lives for so long and the potential of a criminal trial more than twenty years after the disputed events is a significant breach of their human rights to a fair trial within a reasonable time.

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This Report was commissioned by the Board of Directors of Lundin to assist it and the Company’s

stakeholders in understanding the full context in which the Company found itself operating at the time and the Swedish Prosecutor’s decision to open an investigation in 2010 into allegations of complicity in international crimes in Sudan. It has been prepared by Steven Kay KC, Gillian Higgins, and John Traversi of 9BR Chambers, London and Rupert Boswall, a Senior Partner of RPC, London, independent international lawyers with specialist expertise in international criminal prosecutions, human rights, corporate conduct, and the Rule of Law.

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Whereas the Report has been commissioned by the Company’s Board of Directors, its content, analysis and conclusions are solely those of the authors and not of the Company or any other concerned parties.

 

Steven Kay KC

Rupert Boswall

London

10 May 2021

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