INTERNATIONAL LAW USE OF FORCE AND ESPIONAGE SUMMARY

Facts of the case French secret agents attacked Rainbow Warrior while it was moored in Auckland Harbour, New Zealand Greenpeace supporters wanted to stop nuclear tests in the Pacific Fernardo Pereira, the Greenpeace photographer was killed by drowning in the attack Rainbow Warrior was sunk

Facts of the case 12 July 1985, 2 DGSE agents using false names were arrested in New Zealand Charged with passport and related offences 23 July, further charged with conspiracy to commit arson, wilfully damaging the Rainbow Warrior by explosives, and with the murder of Fernando Pereira Pleaded not guilty; remanded in custody Identified as Alain Mafart and Dominique Prieur

Facts of the case 26 July: police warrants to arrest agents who had left New Zealand prior to explosions 13 August: New Zealand demanded extradition of all involved French government’s reply: it could not extradite French nationals Other agents – never apprehended

Facts of the case 4 Nov charges altered to manslaughter and wilful damage 22 Nov agents pleaded guilty Sentenced to 10 years imprisonment for manslaughter and 7 years for wilful damage, to run concurrently 28 Nov.French Defence Minister urged negotiations for the agents’ return to France

Facts of the case 26 Aug publication of results of investigation of the French Government into the possibility of official involvement: No evidence their mission involved anything other than surveillance 6 Sept. France notified New Zealand that the agents should enjoy guarantees of international law 22 Sept.France acknowledged that the agents had obeyed orders and should be exempted from blame

Facts of the case 6 Sept. New Zealand notified France it would take legal steps to secure compensation from France 26 Sept. New Zealand PM prohibited extradition and political interference in the legal proceedings 16 Dec. New Zealand would consider repatriating agents if they continue to serve their prison sentences 19 May 1986 New Zealand suspended negotiations in protest at economic sanctions by France (France impeded New Zealand imports)

Facts of the case On 12 Sept European Parliament condemned secret service activity; demanded explanation from France 19 June France and New Zealand agreed to refer all matters to arbitration by the UN Secretary General 6 July 1986 the ruling was completed; signed on 9 July: Transfer Mafart and Prieur to French custody; France must not impede New Zealand exports to EC

Facts of the case 12 Nov France reached settlement with the family of Fernardo Pereira: formal apology, compensation, reimbursement to insurers 19 Dec. France and Greenpeace agreed to negotiate damages

Facts of the case Greenpeace and the French Republic agreed to submit Greenpeace's claims against France to international arbitration. The arbitral tribunal, seated in Geneva -composed of 3 members (Prof. Claude Reymond, Sir Owen Woodhouse and Prof. Francois Terre) rendered an award in 1987 in favor of Greenpeace, ordering France to pay it some $ 8.1 million

Facts of the case David McTaggart, Greenpeace's chairman, described the award as "a great victory for those who support the right of peaceful protest and abhor the use of violence."

Contravention of International Law Officially inspired military operation with strictly limited intentions Low-level uses of force International delinquency Infringement of New Zealand sovereignty

Contravention of International Law Agents – involved in spying 1907 Hague Convention deals with spying in wartime; no peacetime equivalent Espionage – illegal but tolerated in many countries ‘reciprocally tolerated espionage’

Contravention of International Law Concept of state criminality – not supported by law States – liability for reparations A state which sends agents to commit acta jure imperii abroad is liable rather than the agents who should enjoy immunity from local courts Individuals – increasingly recognised as subjects of international law Liability of individuals for war crimes and crimes against humanity New Zealand – superior orders – no defence

Contravention of International Law 1907 Hague Conventions: ‘soldiers privileges’, conditional on obedience to lawsustoms of war At lower thresholds of conflict governments apply their own criminal law The agents – no POW status according to 1977 Geneva Protocol International law – inadequate to deal with perpetrators of sporadic violence across State boundaries Impossible to establish immunity from local jurisdiction for perpetrators making illegal entries with the official purpose of committing unlawful acts

Contravention of International Law International doctrine of non-intervention The Rainbow Warrior: challenges the principle that either a State or its agents – but not both- are liable for acts contrary to law outside the Geneva Conventions