10 May 2021
Leading international lawyers find basis of the Swedish Prosecutor’s investigation into Lundin in Sudan fundamentally flawed
- A new independent report finds that the basis of a Swedish Prosecutor’s criminal investigation into the activities of Lundin Oil (now Lundin Energy) in Sudan between 1997-2003 is fundamentally flawed.
- The investigation was prompted by the publication of a 2010 report by campaigning organisation, European Coalition on Oil in Sudan (ECOS).
- ECOS accuses the Company of complicity in war crimes in southern Sudan.
- These allegations were first raised by Christian Aid in 2001 and were exposed to be without foundation at the time.
- Holding foreign oil companies responsible for a decades-long conflict is a serious misrepresentation of Sudan’s history.
- The NGOs operating in southern Sudan were beholden to the separatist rebel group, the Sudan People’s Liberation Movement/ Army (SPLM/A) who were in control of 80% of the area.
- The bias displayed by the NGO reports, and their flawed methodology, would make them inadmissible in international criminal courts.
- The Swedish Prosecutor must uphold international criminal law standards when applying universal jurisdiction to a war crimes investigation.
London, 10 May 2021: Today, a leading group of international criminal lawyers publishes an independent Report on the Lundin Case. It finds that the basis of the investigation conducted by the Swedish Prosecutor’s Office against Lundin Oil, its former CEO and Chairman of the Board, is fundamentally flawed.
In June 2010, the campaigning organisation, the European Coalition on Oil in Sudan (ECOS), accused Lundin of complicity in alleged war crimes in southern Sudan, by recycling allegations against the Company first made in 2001 by Christian Aid. ECOS supported a similar case against the Canadian oil company Talisman for damages that was struck out by a US court as the claim failed to establish that Talisman “acted with the purpose to support the Government’s offences”.
The Christian Aid allegations were fully investigated by Lundin, independent media and EU Heads of Mission at the time in May 2001. They were exposed to be without foundation – and the Swedish Government took no steps to investigate Lundin.
“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.” 
In 2003, the World Bank further found that:
“The conflict began before the discovery of oil in commercial quantities. Oil is therefore not a prime cause of the conflict, but the future distribution of oil revenue is one of the main outstanding issues in the IGAD peace negotiations.”
Notwithstanding the fact that nothing material had changed since Lundin’s exoneration in 2001, the Swedish Prosecutor announced a preliminary investigation in 2010. It was only in 2016, that the Company Chairman and the former CEO were formally declared to be under suspicion. This investigation has now lasted more than 10 years and is still ongoing.
Steven Kay, QC, Head of Chambers, 9 Bedford Row and co-author of the Report on the Lundin Case said:
“The pressure to bring a case against Lundin surfaced at episodes of political convenience since these events 20 years ago. But over the past 11 years, the Prosecutor has changed the original contents of his suspicion sheet on several occasions – an approach which suggests the evidence to back up his case is lacking.
It’s not a case where there’s better evidence 10 years later. If the facts and the allegations were true and correct, the evidence would have been there at the time.”
Lundin began operating as part of an international consortium in Block 5A, Unity State, Sudan in 1997 following the Khartoum Peace Agreement (KPA). The KPA 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.
The EU and the 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.
However, the KPA did not hold, and Lundin eventually sold its interest in Block 5A to Petronas Carigali in 2003 without ever having produced any oil commercially. At no point, during its time in Block 5A did the Swedish Government advise, direct or otherwise intervene to halt the oil activities.
Four reports from NGOs form an important part of the investigation conducted by the Swedish Prosecutor. However, the Report on the Lundin Case, published today, raises serious concerns about their independence and the reliability of the information cited. Many of the reports rely on biased and/or anonymous hearsay evidence and make assertions on the basis of unattributed sources using poor methodology.
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.
Of significance is the reliance by NGOs on the Sudan People’s Liberation Movement/ Army (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. Their relief agency controlled access for NGOs and other international entities in issuing visas and travel permits. NGOs had to seek visas from them. Such control inevitably impacted the reliability and impartiality of the subsequent reports published by the NGOs.
The spiritual wing of the SPLM/A, the New Sudan Council of Churches (NSCC) was expressly thanked in Christian Aid’s Scorched Earth report published in 2001 and in the Human Rights Watch 2003 report. The NSCC developed especially close links with American evangelicals, through its skilful framing of the civil war as a religious conflict.
Rupert Boswall, a Senior Partner at RPC Solicitors and co-author of the report said:
“Simply put, these reports are advocacy documents implicating the oil industry in conflicts of which they were not a part. Evidence of bias, unreliability, flawed research and the absence of accountability make any use of such NGO reports in future criminal proceedings unconscionable. These reports would not be admissible in an international criminal investigation or a prosecution.”
It is of grave concern that a report of such low quality (ECOS) underpins the Swedish Prosecutor’s decision to open a preliminary investigation in this matter. It is incumbent on a prosecutor to seek out sources of objective evidence, independent witnesses and corroboration in respect of crimes alleged by NGOs, since they cannot in any sense be considered impartial. This approach has not, however, been taken to date.
Moreover, the scope of the Prosecutor’s investigation is flawed. 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 alleged primary crimes. Owing to the security situation in South Sudan and budgetary constraints, it has decided that it is unable to carry out any investigations in South Sudan or East Africa.
However, unless the primary crimes can be proved, there is no foundation for the allegations against the Company. Thereafter, complicity between the Company and the Government of Sudan must be proved in relation to the specific alleged primary crimes.
After 11 years, the Prosecutor has yet to reach a conclusion. Whilst the Company 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.
As Sweden seeks to take on the responsibility of prosecuting international crimes under the laws of universal jurisdiction it ought to apply international standards.
To download the Executive Summary and the full version of the Report, please visit the report website at https://www.reportlundinsudan.com/
For more details, please email: firstname.lastname@example.org
Notes to editors:
- “A Report on the Lundin Case” was commissioned by the Board of Directors of Lundin Energy AB to assist it and the Company’s stakeholders in understanding the full context in which the Company found itself operating in Sudan between 1997 – 2003 and the reasons behind 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 QC, Gillian Higgins, and John Traversi of 9 Bedford Row 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.
- 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.