1769. Sir John, welcome
back to our inquiry on Sierra Leone. I note that Mary Tudor once
said, "When I am dead and opened, you shall find Calais lying
in my heart." I suspect that some of my senior colleagues
may well find Sierra Leone lying in their heart at that time.
(Sir John Kerr) Come, come, Mr Chairman. She lost
Calais. Democracy regained Sierra Leone.
1770. We will consider that later on. Sir
John, you may be relieved to learn that the Committee is at least
coming to the end of its inquiry and as we seek to learn the lessons
we recognise that one of the key areas of misunderstanding was
the proper construction of the UN Security Council Resolution
1132. Would you agree that very strong weight in that construction
should be given to the views of the UN legal advisers who, after
all, are dealing daily with these questions of framing and construing
Security Council Resolutions?
(Sir John Kerr) No, Mr Chairman, I do not really.
When we discussed this in one of our meetings in the spring among
the points I made was that it is the Security Council that is
responsible for the reading of its own Resolutions. I think a
large majority of members of the Security Council read it the
way that we read it. I think there was no doubt that the scope
of the arms ban imposed by Security Council Resolution was geographic.
The reference was to Sierra Leone, not to any particular group
of people in Sierra Leone. It was quite clear, and I think you
yourself, Mr Chairman, in the House drew attention to that, and
I agree with you.
1771. So you are telling the Committee in
effect that one should disregard the views of the senior UN legal
advisers?
(Sir John Kerr) No. I think the view you are describing
is a view that emerged in the spring after the restoration of
the Kabbah Government in Sierra Leone. At that stage you will
recall that there was discussion about the amendment of the Resolution
and in the end another resolution was passed, again by British
suggestion and on a British draft, 1171. That was necessary because
the legitimate regime had been restored. There was some discussion
as to whether it was necessary, and it was in that discussion
that the Assistant Secretary General (Legal Affairs) produced
an opinion which I think the Committee have, which was designed
to establish that it was not necessary to make a change. We did
not agree with that and the Security Council did not agree with
that. The Security Council decided that it was necessary to make
a change because the scope of 1132 was a geographic scope, so
the fact that the right regime was back in Freetown did not mean
that one could, under the existing Security Council Resolution,
supply arms to that regime. Any supply of arms to Sierra Leone
was banned by 1132; hence the need for 1171.
1772. Are you saying that the view of the
UN legal advisers was not shared for example by the United States?
(Sir John Kerr) I am afraid that I cannot remember
what view the United States took in that debate at that time;
I am sorry.
1773. Just to refresh your memory on this,
our UN lawyers said in terms this: While ECOMOG does not benefit
from an explicit general exemption from the application of paragraph
6 of Resolution 1132, it must enjoy an implied partial exemption
for the purposes defined by the Council in that resolution and,
in what amounts to a clear rejection of the Foreign Office interpretation,
the document continues that 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.
(Sir John Kerr) I read again at the weekend the
transcript of the discussion that you and I had at a previous
hearing. I explained that the British Government did not buy the
doctrine of an implicit partial exemption for ECOMOG; we did not
find that in the text of the Security Council Resolution. I also
explained that even if we had found that, if we had bought that
argument, we would still have wished to cast our net very wide.
We were imposing a licensing requirement by our piece of legislation,
but the point I was making in answer to I think you, sir, was
that we did not agree that there was any implicit partial exemption
for ECOMOG. The ECOWAS decision of course did include an exemption
for their forces ECOMOG. That did not carry through into the Security
Council Resolution.
1774. And you are not embarrassed by this
ambiguity at all?
(Sir John Kerr) I read you at I think two of our
previous hearings, Chairman, the view of the legal adviser in
the Foreign Office which was quite clear about this. We also discussed
whether the staff of our mission in New York were properly equipped
with legal advice. You may remember that, with the legal adviser
sitting behind me, I was very clear about the competence and skill
of our legal advisers, and they are very good. We were quite clear
as to what the Resolution meant. I do not think it is unprecedented
for there to be debate about the precise meaning of the language
of the Security Council Resolution. It is for the Security Council
to define that. We have seen just such a debate in recent weeks
over the precise meaning of Security Council resolutions on Iraq,
but the fact that the Iraqi Government has chosen to read them
in a particular way does not lead us to be embarrassed about their
drafting.
1775. Can you then help the Committee in
this way. If, as you say, the legal meaning was clear, there was
no ambiguity in that Resolution, no misunderstanding, why was
it then that Foreign Office Ministers and in the press release
the focus of that Resolution was put as sanctions against the
junta?
(Sir John Kerr) I can do no better than remind
you of how the Foreign Secretary answered the same question on
the 28 July, question 659: "The embargo did apply to the
junta, so the newsline was correct and Legg does not state that
it is incorrect. The primary purpose was to prevent the junta
having access to arms. That is not inconsistent with the fact
that it was not only to the junta to which the arms embargo applied.
I understand why the newsline was drawn up in that way. A newsline
is intended for the press. It is intended to focus the press on
the main point here and in the minds of the News Department last
October the main point was that we were taking action against
the military junta. I must say I do take with a pinch of salt
the idea that anybody would take a newsline as a full and comprehensive
statement of the legal position."
1776. Would they not place rather greater
weight on what Ministers say? The Ministers throughout were saying
that the Resolution was aimed at the junta. Was that not adding
to the misunderstanding?
(Sir John Kerr) I do not think it was a misunderstanding
there, Mr Chairman. I think Ministers were well aware, and I think
you will find that if you look at documents 18, 29, 30 or 33 which
you have, that the scope of the Resolution was geographic, nor
do I think that Ministers were misleading. The purpose of the
Resolution was to bring down the junta and restore the legitimate
government which was in exile.
1777. Can you point out to the Committee
any pressline or, more importantly, any statement by Ministers
in which they stated in terms that the Resolution of the Security
Council was of general application?
(Sir John Kerr) I am afraid I have not been looking
other than for the documents which Sir Thomas Legg looked at and
which you have. Mr Chairman, could I repeat that the face of the
Security Council Resolution is perfectly clear. As you yourself
have acknowledged, its scope is geographic. It bans the supply
of arms to Sierra Leone, full stop. The documents that I have
referred to show that Ministers were well aware of that and that
the pressline was prepared in full knowledge of that.
1778. Even though the pressline prepared
in full knowledge of that did not say it, even though Ministers
(though they well knew it) did not say it, can you at least understand
why Colonel Spicer was somewhat confused?
(Sir John Kerr) No, I am sorry, I find that one
of the very difficult things to understand in Colonel Spicer's
evidence. The law of the land is the Order in Council. The Order
in Council, which in our view follows the precise geographic scope
of the Security Council Resolution, is perfectly clear. If one
is in the business of supplying arms it seems that the natural
first thing one would do is to look at the law of the land and
establish whether what one was doing is legal or illegal.
1779. In retrospect you do not think it
unfortunate that although the terms as you say were absolutely
clear, that is, that the Resolution was of general application,
at no time did the pressline say it, at no time were Ministers
briefed to say it was that?
(Sir John Kerr) I take my stand with the Foreign
Secretary when he says: "I do take with a pinch of salt the
idea that anyone would take a newsline as a full and comprehensive
statement of the legal position."
