House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Second Report

WHAT WAS BRITISH POLICY?

11. At the time of the coup, the British Government made it clear that its policy was to support the restoration of President Kabbah's government by peaceful means. This was announced by the Foreign Secretary on 11 July 1997,[22] and was a policy re-articulated in Parliament by Ministers on a number of occasions.[23] Replying to a personal plea by President Kabbah in June, the Prime Minister made it clear that he did not consider military force as the most appropriate response.[24] At the same time, a subtly different policy had been announced by ECOWAS, the Nigerian dominated Economic Community of West African States, which also controlled the ECOMOG forces. ECOWAS adopted a three-pronged approach of diplomatic negotiation, economic sanctions and the use of force.[25] At the United Nations, interested countries, with the United Kingdom in the forefront,[26] worked upon a draft resolution intended to help overthrow the Junta. This was passed by the Security Council on 8 October 1997. The Resolution, No.1132, was very supportive of ECOWAS. For example, its third paragraph read:

"[The Security Council] Expresses its strong support for the efforts of the ECOWAS Committee to resolve the crisis in Sierra Leone and encourages it to continue to work for the peaceful restoration of the constitutional order, including through the resumption of negotiations."

Although that paragraph "encouraged" ECOWAS to work for "peaceful restoration of the constitutional order," it could be argued that this was exhortatory only, while the earlier part of the paragraph, with the support it gave to ECOWAS, whose three-pronged policy was clear, was unequivocal. The Security Council was acting within Chapter VII of the UN Charter. Article 41 of this Chapter does not allow the exercise of force, while Article 42 does so. Normally, a Security Council Resolution which authorises force does so explicitly. Nevertheless, it could certainly be said that, intentionally or not, the basis of the resolution is not without ambiguity.

12. Formal British policy in favour of peaceful resolution of the crisis did not change. For the use of force presented particular dilemmas for the Government. Supporting a military operation led by a Nigerian regime, itself a massive abuser of civil human rights, and subject to international sanctions, was politically untenable. Secondly officials emphasised considerable concern that arming President Kabbah's Kamajors [27] would only intensify and prolong the civil war. Because of these misgivings officials counselled great caution in dealing with the approaches of private military operators and any dealings with the Nigerians.[28] However, there was certainly a debate within the FCO and with the intelligence agencies as to whether force might need to be used if other means did not succeed in restoring President Kabbah. British officials, including Mr Penfold, accepted that the use of force would require a new UN resolution.[29] The possibility of a second resolution endorsing the use of force was being canvassed by them on the very day—5 February—ECOMOG moved against the Junta,[30] but such a resolution was only passed on 5 June after President Kabbah was restored. Officials also accepted that the use of force would have required ministerial authority.[31] Mr Lloyd told us that his officials kept him well informed about the possibility that ECOMOG would take military action whether the Government wanted them to do so or not,[32] and he was well aware that the policy of ECOWAS included the use of force. However, Ministers were not asked to alter British policy towards force until after President Kabbah was restored. This was a debate among officials.[33] The Foreign Secretary was relaxed about his officials "kite flying and brainstorming" about alternatives to the announced policy.[34] Similarly, we have no difficulty with the idea that officials were discussing realistic policy options in a scenario where they could have only a limited direct influence on events. The fact that the United Kingdom had not ruled out the possibility that force might in the future be used also helped put pressure on the Junta.[35] However, as to any use of mercenaries, Mr Lloyd told us there was "never any possibility of the Government sanctioning" that.[36] We return to this issue in more detail later.

ARMS EMBARGO

13. If there was some confusion about the use of force, then the operative paragraph of UN Security Council Resolution 1132 dealing with the arms embargo (paragraph 6) is equally unclear as to the parties in the conflict to which it applied. It reads as follows:

"[The Security Council] Decides that all States shall prevent the sale or supply to Sierra Leone, by their nationals or from their territories, or using their flag vessels or aircraft, of petroleum and petroleum products and arms and related materiél of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, whether or not originating in their territory."

The reference to Sierra Leone here could also be construed in different ways. Did it mean the military Junta? Did it mean any force operating in Sierra Leone? Did it include President Kabbah, still recognised as the democratically elected Head of State of Sierra Leone, but no longer in the country? Did it include ECOMOG forces in Sierra Leone? The Government's argument is that the paragraph applied to all forces operating in Sierra Leone, and that the scope was geographic,[37] but the opinion of the UN Assistant Secretary General (Legal Affairs) makes uncomfortable reading for the FCO. He argued that, while ECOMOG did not benefit from an explicit general exemption under paragraph 6, it must enjoy an implied partial exemption for the purposes defined by the Council in the resolution since "any other interpretation would lead to a paradoxical situation in which the Council, while entrusting ECOMOG with important responsibilities, at the same time deprived it of the means to carry out those responsibilities."[38] Thus, contrary to the FCO, the UN legal advisers take the view that the Resolution must be construed within the overriding aim of restoring the Kabbah government.

14. Sir John Kerr told us that the British view of the meaning of Resolution 1132 was shared by "a large majority of members of the Security Council,"[39] and this view is given considerable credibility by the wording of part of paragraph 7 of the Resolution (dealing with the oil embargo) which refers to "applications by the democratically-elected Government of Sierra Leone."[40] The fact that one paragraph distinguishes the Kabbah government specifically implies that the reference in paragraph 6 to Sierra Leone is, indeed, geographic. This point was made to us by Mr Lloyd.[41] Nevertheless, the drafting is hardly clear. Vice Admiral West spoke of "confusion."[42] President Kabbah himself believed that the Resolution did not apply to his government in exile. He wrote to the Prime Minister that his "Government holds the position that Security Council Resolution 1132 (1997) was not directed against the legitimate Government of Sierra Leone."[43] If the United Kingdom played a principal role in drafting the Resolution,[44] the quality of British drafting is more than a little in doubt.

15. It is most regrettable, but quite understandable, that debate has arisen about the precise meaning of the UN Resolution. That ambiguity is the first of many lapses in the Sandline saga. We note Sir John Kerr's view that it is not unprecedented "for there to be debate about the precise meaning of the language of the Security Council resolution."[45] Imprecision and ambiguity are to be avoided in quasi-legal texts and, although we fully accept that the British Government is only one of many contributors to these documents, we recommend that the United Kingdom should not normally agree to any Security Council resolution which relates to an arms embargo, and which therefore needs to be translated into United Kingdom law, unless the resolution is clear and unambiguous.

16. Doubt about the meaning of the UN Resolution was exacerbated by the way in which its meaning was glossed by the FCO to Parliament, the media, its own diplomatic staff and President Kabbah's government in exile. On 9 October, the official telegram to Posts announcing the Resolution referred to "an international ban on the supply of arms....to the junta."[46] Fourteen months later the Foreign Secretary stated that this was "plainly wrong."[47] The same words were contained in the press line in the FCO's daily bulletin of the same day.[48] The communiqué at the end of the Commonwealth Heads of Government Meeting (CHOGM) on 27 October referred to Resolution 1132 as imposing "weapons....sanctions on the military junta in Sierra Leone."[49] On 9 January 1998, another FCO daily bulletin said baldly that the Resolution "imposed sanctions against the Junta."[50] This daily bulletin (which announced the appointment of Mr John Flynn as Special Representative for Sierra Leone) was sent to the Foreign Minister of Sierra Leone with a covering letter by Ms Grant—then Head of AD(E).[51] The covering letter did not qualify the statements made in the daily bulletin. Thus, extraordinarily, a senior Foreign Office official wrote to the Sierra Leone Foreign Minister making it clear that the UN sanctions applied to the Junta but without disclosing that, in the British government's view, they also applied to the very government to whose Foreign Minister she was writing. On 12 March, Mr Lloyd told the House that Resolution 1132 "imposed sanctions on the military Junta."[52] Thus public statements and internal documents emphasised only one area of application for the sanctions.

17. Legg suggests that the official policy of drying up arms supplies to all parties in Sierra Leone "was not published abroad....partly because of sensitivities about the possible role of ECOWAS....and about the role of Nigeria within ECOWAS and ECOMOG."[53] Certainly, the United Kingdom had no wish that the European Union and Commonwealth arms embargoes on Nigeria should be circumvented.[54] The other reason Legg adduces for the way policy was promulgated was because officials and Ministers "genuinely saw the embargo as aimed at the Junta."[55] This was emphasised to us by the Foreign Secretary and by Sir John Kerr,[56] but is prima facie at variance with their interpretation of Resolution 1132—and is clearly at variance with the United Kingdom Order in Council implementing sanctions, as we will discuss later.[57]

18. Despite the way information was presented, Ms Grant and Sir John Kerr told us that there was no confusion among FCO personnel about policy,[58] and Sir John Kerr referred to a number of documents, available to the Committee, which he claimed made the geographical scope of the embargo "absolutely clear."[59] This is not the case. There was in fact just one document, and only one, which made it absolutely clear that the arms embargo applied to all parties in the Sierra Leone conflict. That was the Sierra Leone Sanctions Order itself which, as we shall see, received a minimal circulation in the Foreign Office. Moreover, there is evidence that there was confusion in the FCO. For example, an early draft of a letter to send to Lord Avebury (who had written to the Department with evidence that Sandline was involved in breaching the embargo) was corrected by legal advisers in the FCO to remove sentences which implied that Sandline's activities were not contrary to Resolution 1132.[60] Nor was Mr Penfold told that his disclosures that Sandline had negotiated an arms contract with President Kabbah (for example, in his minute of 2 February) revealed that an offence might have been committed.[61]

19. The Foreign Secretary told us that the statement that the embargo applied to the Junta was correct and "that is not inconsistent with the fact that it was not only to the Junta to which the arms embargo applied."[62] We understand why the Government might have wanted to emphasise that the arms embargo was aimed at the Junta while neglecting the fact that it applied equally to the democratically-elected Kabbah government which the United Kingdom wished to see restored. But half-truths are a dangerous commodity in which to trade. We were surprised, in this context, therefore, that Ms Grant denied that it was a matter of political convenience to stress that the embargo applied to the Junta, so avoiding awkward questions about arms supplies to the Nigerians or to President Kabbah.[63] The way policy was presented led to confusion within the FCO and without. We therefore agree with Legg that, as a result at least in part of government action, it was a reasonable—if incorrect—conclusion, and one likely to be held by observers of the West African scene, that the embargo was confined to the Junta—or at least that it did not apply to the exiled President Kabbah.[64] We conclude that the government policy on individual arms embargoes must never again be stated in a way which could mislead Parliament, the public and even the FCO's own staff. We recommend that the FCO take all appropriate steps to ensure that this is achieved.

Order in Council

20. Any UN embargo needs to be implemented in British law. This is done by means of Orders in Council under section 1 of the United Nations Act 1946. In the case of the Sierra Leone embargo, one Order in Council applied in the United Kingdom and separate Orders in Council in the Dependent Territories, Channel Islands and Isle of Man.[65] The principal draft Order in Council applying in the United Kingdom was approved by Mr Lloyd.[66] The Orders in Council were made at a Privy Council on 30 October 1997, were laid before Parliament the next day and came into operation on 1 November. They made it an offence, punishable by up to seven years imprisonment, to:

(b) agree to supply or deliver;

any of a long list of arms and military equipment to "any person connected with Sierra Leone."

21. Sierra Leone was defined in the Orders in Council as:

(b) any other person in, or resident in, Sierra Leone;

(d) any body, wherever incorporated or constituted, which is controlled by any of the persons mentioned in sub-paragraphs (a) to (c) above; or

(e) any person acting on behalf of any of the persons mentioned in sub-paragraph (a) to (d) above."

While the UN Security Council Resolution did not define Sierra Leone, the Orders in Council thus did so, thereby creating a significant pitfall for anyone inside or outside the FCO who read the UN Resolution but not the Order in Council. It is worrying that the submission by officials to Mr Lloyd did not draw his attention to the extent and particularisation of definition which the Order in Council contained as compared with the UN Resolution.[67] Nevertheless, whether or not the UN Resolution was ambiguous, British law was perfectly clear. President Kabbah was recognised as heading the lawful Government of Sierra Leone and any supply of arms to him or his supporters in Sierra Leone by British citizens or from British territory was a criminal offence—as was any act promoting the supply of arms to him.

22. Even if British law was apparently clear, ambiguity in the Security Council resolution could still have created difficulties. This is because an Order in Council under the United Nations Act 1946 follows a call by the Security Council upon HMG "to apply any measures to give effect" to a resolution it has made. The Act says that the Order in Council "may make such provision as appears to Her Majesty necessary or expedient for enabling these measures to be effectively applied." Sir Franklin Berman, the chief FCO legal adviser, echoed these words in justifying the application of the arms embargo to the legitimate government of Sierra Leone in exile. He wrote that "in implementing arms embargoes in domestic law it is standard practice to include provisions which will enable the embargo to be effectively applied."[68] This implies a degree of latitude. But it would be possible for a litigant to argue that an Order in Council was ultra vires if it went beyond measures for which the Security Council resolution had called. That argument might well have been heard if the Sandline case had come to court. This is another powerful argument for ensuring precision in drafting the Security Council resolutions which will be applied in British law.

23. The way in which the Order in Council was dealt with was unacceptable. The first problem is that, although serious new criminal offences were being created, the Order in Council was subject to no parliamentary procedure. Had it been necessary for a Minister to appear before a Standing Committee on Delegated Legislation or to defend the Order on the floor of the House of Lords, it is likely that wider attention would have been given to its true meaning and extent. Of course, the FCO was only following the procedure laid down in the 1946 Act, but it is one which we find unsatisfactory. We appreciate that it is important for embargoes to come into operation as soon as possible, but it is perfectly possible for a piece of delegated legislation to come into force before it is approved by Parliament. We note that Export of Goods Control Orders (EGCO) are to be made subject to the negative procedure. Sir Richard Scott argued in his report on the Arms to Iraq affair[69] that such Orders should be subject to affirmative resolution, but the Government prefers negative procedure because of the frequency of EGCO amendments.[70] There are many fewer Orders made under the United Nations Act, and we therefore believe that affirmative resolution is appropriate in this case. We recommend that the United Nations Act 1946 be amended so that delegated legislation made under section 1 is subject to affirmative resolution in both Houses of Parliament, and that any sanctions order approved by an FCO Minister is brought specifically to the attention of the Foreign Affairs Committee.

24. If the 1946 Act restricted parliamentary debate, it would still be reasonable to expect the FCO to give the Order in Council full publicity. Instead, it was treated in a disgracefully casual manner. First of all, the territorial department concerned, AD(E), was not even directly consulted in its drafting. This was something which Ms Grant regarded as "most unfortunate" and the Foreign Secretary called it an "extraordinary working practice" which ought to be changed.[71] Nor was Mr Penfold, the High Commissioner affected, consulted.[72] Furthermore, when the Order in Council was made, there was no public announcement and no attempt was made to notify the principal officials concerned. Legg found that "most of the main players....have affirmed that they had either no, or only a vague and very general, awareness of the existence of the Order."[73] Ms Grant, for example, told us she had not seen the Order, even though she was the Head of the Department to which the Order applied.[74] Nor, as we describe later, did Mr Penfold see the Order: in fact, the FCO has stated that "until recently, it was the practice to circulate copies of the relevant resolutions, rather than copies of the Orders in Council, or summaries of them, to the relevant High Commissions or Embassies."[75] We return later to discuss whether some of these officials should have been aware of the Order or should have surmised the policy behind it. For the meantime, it is worth quoting the excoriating passage with which this part of the Legg report concludes:[76]

"We do not consider that they can be blamed for their ignorance. Nobody in the FCO had a clear responsibility to ensure that all officials involved had a clear understanding of the law, made under the authority of Parliament, which now bound all British citizens, including of course themselves, and nobody actually did so. No doubt all concerned should have ascertained the law for themselves, with the help of legal advice as necessary. But Government has a responsibility to give citizens, and its own officials, reasonable publicity and explanation of the laws it makes under delegated powers, especially laws creating serious criminal offences. That was not done in this case."

We concur with this view, and we emphasise our belief that the FCO did have the responsibility to ensure that all relevant officials knew the law. We note that new arrangements are in hand to disseminate information about UN sanctions more efficiently in the future,[77] and we recommend that the territorial departments concerned within the FCO should be consulted fully during the drafting of any future British legislation which affects any specific foreign territory, and that, when the legislation is finalised, its text, and any necessary explanatory material, is brought to the personal attention of all FCO officials who deal with that territory, both at home and overseas.

25. Sierra Leone came hard on the heels of a scandal involving alleged arms supplies to Rwanda in 1996 in defiance of a UN embargo. Following that, the then Government set up an inter-departmental committee to "examine rigorously the UK's procedure in relation to trafficking in arms...." This Committee reported in December 1996, and its conclusions were accepted by the then Government in the following January.[78] Two of the conclusions are particularly pertinent to the Sandline affair. They were that:

(b) This committee should also consider the preparation of a public document, which would set out the basis and scope of all current arms embargoes and which would be kept up to date."

We questioned Sir John Kerr about the inter-departmental committee and the proposed public document. He was not able to give answers to oral questions,[79] but wrote to us subsequently explaining that the role of the inter-departmental committee is fulfilled by the (previously existing) Sub-Committee on Security Export Controls of the Official Committee on Strategic Exports Controls. However, the second recommendation (of an up-to-date public document outlining arms embargoes) was being fulfilled by an annual announcement to Parliament.[80] We do not consider this to be adequate. We are concerned that, in effect, the recommendations of the Committee were never implemented. We recommend that any change in arms embargo policy is announced to Parliament immediately, and that the FCO web site and the Library of the House of Commons should include continually updated information setting out the basis and scope of all current arms embargoes.

22 HC Deb c.625. Back

23 QQ479-82; 1976. Back

24 Legg Doc.5 (the documents attached to the Legg report were submitted in confidence to the Committee and constitute unpublished evidence). Back

25 Q1484. Back

26 Q1484. Back

27 Traditional hunters, used by President Kabbah as irregular fighters. Known as Civil Defence Units. Back

28 Legg para. 3.21; doc.38. Back

29 QQ1240; 1483. Back

30 Q1642. Back

31 Q1641 and Appendix 9, pp.307-309. Back

32 Q1996. Back

33 QQ1807-8; 1508-11. Back