NGO REPORTS

The Swedish Prosecution Authority’s decision to begin this investigation relied heavily on four NGO reports alleging violations of international humanitarian law in southern Sudan and a link to Lundin. However, these reports do not accurately or factually describe what occurred at the time on the ground where Lundin was active, nor do they align with the assessments of what actually happened according to the UN or EU. Furthermore, none of these reports were compiled in a way that would allow them to hold up to scrutiny or be used as reliable evidence in the Swedish legal process. More importantly, no evidence has been provided linking Lundin to the alleged primary crimes in this case.

Following the publication of one of the first NGO reports in 2001, a Swedish Ministry for Foreign Affairs report summarised a visit by several EU ambassadors to oil concession areas in southern Sudan — including Block 5A where Lundin operated — that took place between 6 and 8 May 2001. It noted that “no evidence can be presented that Sudanese government forces have forced people to leave their villages in the oil fields or that the Sudanese government is seeking to implement a scorched earth policy to pave the way for the oil industry, … thus, most of the accusations made by different groups and individuals appear to be incorrect and based on hearsay rather than independent and objective observations”.

International tribunals themselves exercise great caution in using NGO reports as evidence in trials due to issues of unreliability. Where they have been allowed as evidence, the courts have limited reliance on the reports to undisputed secondary factual issues rather than circumstances of direct relevance to the assessment of an accused’s guilt.

The Swedish Prosecutor specifically referred to the European Coalition on Oil in Sudan (ECOS) report from 2010 (“Unpaid Debt”) — produced seven years after Lundin had left Block 5A — as a reason for the investigation when he announced it on 21 June 2010, a mere two weeks following publication of the report.

Other relevant reports are the Human Rights Watch report from 2003 (“Sudan, Oil, and Human Rights”), the Christian Aid report from 2001 (“Scorched Earth – Oil and War in Sudan”) and Amnesty International’s “Sudan – The Human Price of Oil” report published in May 2000. None of those reports prompted an investigation by the Swedish Prosecutor at the time.

It is important to note that at that time neither the UN nor any of the EU Member States decided on any sanctions against Sudan, or indeed against the international oil companies operating in Sudan. Lundin maintained a dialogue with the Swedish government upon entering and during its presence in Block 5A, and at no stage did the government advise or direct Lundin to halt its operations. Lundin’s investment and operations in Block 5A were fully aligned with the policy of constructive engagement endorsed by Sweden, the EU and UN at the time.

These NGO reports cannot be relied upon because:

  • There are extensive flaws in the methodology, accuracy, credibility and reliability of these particular NGO reports.
  • No evidence has been provided linking Lundin to the alleged primary crimes.
  • There are significant official statements from Sweden, the European Union, the United Nations and other sources at the time which contradict the NGO reports.
  • The collaborative nature of the relationship between relevant NGOs and the Sudan People’s Liberation Army (SPLA), the guerrilla group fighting the Government of Sudan, was not disclosed in any of the reports in question.
  • Some of these NGOs also had close links to influential SPLA-affiliated entities, including:
    • The Sudan People’s Liberation Movement (SPLM), the SPLA’s political wing;
    • The Sudan Relief and Rehabilitation Agency (SRRA), the SPLM/A’s humanitarian and relief operation; and
    • The New Sudan Council of Churches (NSCC), which is commonly characterised as the SPLM/A’s spiritual organisation.
  • Senior SPLM/A and other sources cited in these particular NGO reports are alleged war criminals who have been condemned by the UN and others in the post-independence period, i.e., since 2011.

Evidential status of NGO reports

International criminal tribunals have specifically exercised great caution in both allowing and relying on NGO reports as evidence “and have not given them substantial weight in proceedings” because:

  1. NGO reports often rely on hearsay, political propaganda, secondary information or even more remote sources.
  2. The opportunity to ask questions of those who provided underlying information in reports is often denied as many of the sources relied upon are anonymous. This is not remedied by the possibility of being able to put questions to the author(s) of a given report, even if that opportunity is made available during the proceedings.
  3. Excessive time tends to elapse between the compilation of the information in a given report and the events to which the prosecution refers in related proceedings. Whether the observations of a report’s author have been affected by media reporting should also be taken into account.
  4. NGO reports tend to lack a clear explanation of the methodology used to select interviewees; to compile, record and verify information received; and to conduct interviews.
  5. The questioning of the sources of information in NGO reports is not to the standard required within criminal processes — for example: there are no records of the accuracy and impartiality of questions asked by interpreters or the influence of leading questions.

The above issues are very relevant to the specific NGO reports being relied on by the Swedish Prosecutor in his investigation of alleged “complicity” against Lundin under Swedish law and are further explained below in relation to this case.

Serious flaws in the NGO reports relied on in this case

None of the NGO reports on which it is believed the Swedish Prosecutor relies have been prepared in a manner that could constitute reliable evidence in a Swedish court:

  1. Conflicts of interest & lack of transparency: None of the reports refers to the level of cooperation that was necessary between the NGOs and local, SPLM/A-aligned militants fighting the Government of Sudan in order for the NGOs to visit and carry out their work. They do not set out the relationship between the NGOs and other vested interest groups or the extent to which this fact led to heavily biased reporting. Additionally, report authorship is sometimes unknown.
  2. Source information & hearsay: Most of the reports contain little or no information about many of the sources used for their claims. Many sources are anonymised or unknown, so cannot be evidentially assessed. The reports rely extensively on hearsay, including media reports, political propaganda and other unsubstantiated accounts. There is little or no evidence of the reliability of the information provided and no indication of claims having been independently verified.
  3. Interview methodology: It is often unclear how the identities of those interviewed were confirmed; how the selection of interviewees was carried out; which types of questions were asked during the interviews; how these questions were answered; who conducted the interviews; whether interpreters were used and, if so, how they were selected; and if interviewees received any incentive or reward for the answers provided.
  4. Generalisation: Information in the reports regarding alleged acts of violence is often imprecise as to time, place or alleged perpetrator and is not possible to confirm as to its veracity or indeed any connection to the alleged conflict in question, as required under both Swedish and international law.
  5. Inter-reliance: There is a significant degree of inter-reliance between the NGO reports. Allegations stated in one report are often recited in subsequent reports, without evidence of checks having been made as to the veracity and reliability of the original information and sources, to such an extent that inaccurate and unverified information becomes received wisdom.

Specific examples

Conflicts of interest & pre-determined agendas

There are legitimate grounds for concern about whether the NGO reports are tainted by conflicts of interest and pre-determined agendas. ECOS, for example, was formed in 2001 with the stated purpose of forming a public opinion to stop what it called the “war of oil” in Sudan. The ECOS report declares that it is part of a concerted effort to work for “compensation and reparation for the injustices caused by Sudan’s oil wars”. This characterisation of the conflict was not evidence-based and was in complete contrast to the long history and facts of the conflicts in Sudan.

Some NGOs and authors of the reports have also clearly and significantly supported the SPLM/A in the conflict and have deliberately participated in SPLM/A’s advocacy/propaganda. These include ECOS, Egbert Wesselink, PAX, and Christian Aid — all of which have strived for independence of southern Sudan. Christian Aid, in particular, was closely involved with the New Sudan Council of Churches (NSCC), which academic commentators over the years have characterised as “clearly on the side of the SPLM-SRRA” and which was once referred to by SPLM/A Chairperson John Garang as the “spiritual wing of the movement”. In the “Scorched Earth” report, Christian Aid expressly thanked the NSCC and, based on financial records from the year 2000, the organisation also provided financial support to the NSCC.

Potential undue influence & lack of transparency

Undisclosed close collaboration between NGOs & SPLM/A-linked organisations

None of the reports refers to the level of cooperation that was necessary between the NGOs and the Sudan People’s Liberation Movement / Army (SPLM/A) and the affiliated Sudan Relief and Rehabilitation Agency (SRRA) in order for the NGOs to visit and carry out their work in SPLM/A-controlled southern Sudan. Of particular note and as Northeast Africa scholar Douglas H. Johnson has previously asserted, the SRRA’s office in Nairobi “doubled as a liaison office for the SPLM/A” and NGOs operating in SPLM/A-controlled Sudan had “no option but to work through this office, which approves all projects and handles travel”.

The fact that many NGO reports are based on visits to areas controlled by the SPLM/A — visits that were therefore monitored by the SPLM/A — inevitably impacted the reliability and partiality of the finished reports. In Christian Aid’s “Scorched Earth” report, for example, allegations about acts of violence that supposedly took place in Block 5A come from statements by just six individuals in interviews conducted outside Block 5A in an SPLA-controlled area in 2000. The interviews with alleged victims and eyewitnesses in “Scorched Earth” were organized by SPLA-affiliated organizations and were not conducted according to standards required for legal proceedings.

NGOs’ use of alleged war criminals as sources

At least two figures cited as ostensibly reliable sources in NGO reports have since been condemned as alleged perpetrators of human rights abuses by the US and / or EU:

  • SPLA Commander Peter Gadet: A well-known point of contact for NGOs and journalists, the late Peter Gadet was interviewed for Christian Aid’s “Scorched Earth” report and ECOS’s “Unpaid Debt” report. He also served as the sole interviewee of Amnesty International’s “Sudan – The Human Price of Oil” report published in May 2000. Peter Gadet was placed on the EU’s sanctions list following reports of atrocities committed in 2014. The US added him to their sanctions list in May 2014 for “the targeting of civilians and fomenting ethnic violence”, which the US State Department said was “contributing to the mounting humanitarian and human rights catastrophe unfolding in South Sudan”.
  • Former Governor of Unity State Taban Deng Gai: Christian Aid also relied on information provided by Taban Deng Gai as the basis for a number of allegations in the “Scorched Earth” report. In 2020, he was added to the US sanctions list for his role in “serious human rights abuses”.

Failure to disclose the author(s) of the report

ECOS does not state who was responsible for researching and writing “Unpaid Debt”, which prevents any detailed scrutiny of the potential agenda of those preparing the document and undermines its value as a source of evidence in a criminal investigation.

Timing of reports

Both the Human Rights Watch and ECOS reports were published after Lundin had departed Block 5A — the ECOS report seven years afterwards. Christian Aid did not travel to Block 5A to research the report it published in March 2001 and did not visit Lundin’s places of work. Nevertheless, when the Christian Aid report was published, Lundin investigated and consulted with people outside the company who were present on the ground in Block 5A. Lundin invited journalists to the company’s operations in Block 5A, including two Swedish journalists from the largest daily newspaper, Dagens Nyheter, and a Swiss TV crew who participated in different field trips in the area. Lundin also invited representatives of the Swedish government to visit the area at the time. Lundin’s investigation showed that Christian Aid’s information was incorrect. Notably, Christian Aid’s report did not prompt the initiation of any investigation by the Swedish Prosecution Authority at the time of its release.

Reliability & credibility of sources

The reports contain very real issues with respect to the identity, credibility, accuracy, objectivity and reliability of the sources cited in them. The Christian Aid report, for example, bases allegations of widespread violence on interviews with just a handful of people (as noted above). While some sources are identified, others are anonymous. No information is provided regarding the identity or qualification of the interviewer, how the identities of the interviewees were verified, or how the reliability of the testimonies and translations were verified. The Christian Aid report also refers to newspaper articles as sources without specifying if, and if so how, the information was verified.

Likewise, the Human Rights Watch report refers to unidentified or anonymous sources that cannot be verified. It is often unclear which parts of the report are based on personal knowledge and what is based on hearsay, secondary information or political propaganda provided by opponents. The quality and reliability of statements taken and their translation during interviews are not clear, nor is it clear how the identity of the interviewees and their statements were verified. None of the interviews on which the Human Rights Watch report was based, for example, took place within Block 5A.

Reports as ‘received wisdom’

ECOS’s “Unpaid Debt” report is an example of a report essentially based on data originating from previous reports, in particular from Human Rights Watch’s “Sudan, Oil and Human Rights” report and also from Christian Aid’s “Scorched Earth” report. The ECOS report contains 63 references to Human Rights Watch’s report. The Human Rights Watch report, in turn, contains claims about displacement based largely on other NGO sources, such as Christian’s Aid 2001 report.

Misleading or irrelevant photographs & satellite imaging

Photographs contained in some of the NGO reports are often not photographs that pertain to what is indicated in the reports. Instead, the photographs come from photo agencies and were taken at a different time and in a different location than the ones described in the reports.

For example, in Christian Aid’s “Scorched Earth” report, there is an image of two boys standing next to burned-out buildings in a village identified as Pageri. This image is used to suggest the burning of the village was related to the allegations against Lundin. However, Pageri is actually located close to the Ugandan border, approximately 540 kilometres from Lundin’s operations.

It is also clear that the images in the NGO reports have been chosen primarily to be sensational rather than as accurate depictions of a specific event and seem to be a deliberate attempt to mislead and misinform. More specifically, the satellite imaging on which the ECOS report relied as support for alleged forced displacements in Block 5A does not withstand scrutiny by expert third-party analysis and therefore lacks any evidential value.

Statements from governmental and multilateral organisations and others demonstrating the inaccuracy of NGOs’ claims

Official documents and statements show that, during the period from 1997 to 2003, both UN staff and European politicians / diplomats, including staff from the Swedish Ministry of Foreign Affairs, visited the area to investigate whether there was any truth behind the NGOs’ allegations. Other contemporaneous sources also show that the NGOs’ claims simply do not reflect the reality of conditions on the ground when — and where — Lundin was operating in Block 5A. For example:

  • A report from the Swedish Ministry for Foreign Affairs regarding a visit by several EU ambassadors to the oil areas in southern Sudan between 6 and 8 May 2001 noted that “no evidence can be presented that Sudanese government forces have forced people to leave their villages in the oil fields or that the Sudanese government is seeking to implement a scorched earth policy to pave the way for the oil industry, – thus, most of the accusations made by different groups and individuals appear to be incorrect and based on hearsay rather than independent and objective observations”.
  • A “Resolution” of 1 November 2001 from the Africa Caribbean Pacific (ACP)-EU Joint Parliamentary Assembly considered it was “…important that all oil companies operating in Sudan increase the number of local employees from the region where the oil wells are located and increase their commitment to providing healthcare and basic education, as well as developing their own vocational training programs”.
  • On 18 December 2002, a European Commission spokesman (in response to a question from a Member of the European Parliament about whether the EU had considered suspending trade in Sudanese oil until an enduring peace agreement was in place) stated that “the Commission as a general rule is convinced that a policy of engagement rather than of isolation is the best way to have its concerns heard and expectations met. Further sanctions backed by the United Nations as opposed to unilateral sanctions are preferable and more efficient as a foreign policy tool”.
  • On 22 March 2001, Sue Garrood, who worked for the aid organisation German Agro Action (with offices in Bentiu, Rubkona, Mayom and Pariang), confirmed in an interview with German media that oil companies were not responsible for internal displacements. Of the people living in the area, Garrood said, “They never mention the oil companies and we have in this area 3,000 households that we are giving seed tools and agricultural extensions and they are not coming in saying ‘oh it’s terrible we have been displaced because of the oil,’ they will come and say ‘we have been displaced because of the factional fighting”.