INTERNATIONAL LAW – USE OF FORCE AND ESPIONAGE

INTERNATIONAL LAW – USE OF FORCE AND ESPIONAGE
Unit 11

Greenpeace A non-governmental environmental organization
offices in over 40 countries an international coordinating body in Amsterdam its goal is to "ensure the ability of the Earth to nurture life in all its diversity”

Greenpeace Focuses on: Global warming Deforestation Overfishing
Anti-nuclear issues

Greenpeace Research Bringing problems to the attention of the public
Non-violent direct action

Rainbow Warrior

Rainbow Warrior a former UK Ministry of Agriculture, Fisheries and Food trawler later purchased by Greenpeace active in supporting a number of protest activities against seal hunting, whaling and nuclear weapons testing in the late 1970s and early 1980s

Rainbow Warrior campaigning against nuclear testing in the Pacific
evacuated some 300 Marshall Islanders from Rongelap Atoll, polluted by radioactivity from past American nuclear tests in the Pacific travelled to New Zealand to lead a flotilla of yachts protesting against French nuclear testing in the French Polynesia

South Pacific

Pacific

French Polynesia

Location of Rainbow Warrior

Rainbow Warrior Greenpeace intended to monitor the impact of nuclear tests and place protesters on the island to monitor the blasts The French Government infiltrated the organisation and discovered these plans

Rainbow Warrior sabotaged and sunk just before midnight on July 10, 1985 by two explosive devices attached to the hull by operatives of the French intelligence service Photographer Fernando Pereira returned to the ship after the first explosion to try to retrieve his equipment; killed when the ship was sunk by the second larger explosion

Rainbow Warrior sunk

Rainbow Warrior A murder enquiry began and a number of French agents were tracked and arrested. The revelations of French involvement caused a political scandal and the French Minister of Defence Charles Hernu resigned. The captured French agents imprisoned, later transferred to French custody.

Rainbow Warrior They were confined to a French military base for a brief period before being released. After facing international pressure France agreed to pay compensation to Greenpeace later admissions from the former head of the DGSE revealed that three teams had carried out the bombings.

Rainbow Warrior In addition to those successfully prosecuted, a two-men team had carried out the actual bombing but their identities have never been officially confirmed. On 22 Sept. 1985, the French Prime Minister Laurent Fabius read a statement saying: "Agents of the French secret service sank this boat. They were acting on orders."

Rainbow Warrior In 2006, Antoine Royal, brother of the French former presidential candidate Segolene Royal, revealed in an interview that their brother, Gerard Royal, a former French intelligence officer, had been the agent who put the bombs on the Rainbow Warrior

Rainbow Warrior 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.

Rainbow Warrior 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."

Rainbow Warrior Towed north with a patched hull on 2 Dec. 1987.
Ten days later, it was given a traditional Maori burial. Now home to a complex ecosystem, it has become a popular dive destination In a few years, it became an integral part of the environment it helped protect.

Memorial to the Rainbow Warrior at Matauri Bay, Northland

Rainbow Warrior “Her voyage into history was cut short by two limpet mines in 1985, when frightened politicians in Paris ordered French agents to sink the ship in New Zealand, believing this would stop our protests against nuclear weapons tests. One crew member was murdered in the attack – photographer Fernando Pereira.

Rainbow Warrior “It was a massive miscalculation, catalyzing opposition throughout the Pacific, strengthening Greenpeace, and hardening our resolve to rebuild and return. A supporter in Auckland coined the phrase that became a motto of opposition: “You Can’t Sink a Rainbow.”

Skimming Skim the text on p. 177
Find the main themes of paragraphs 1-7 and give each one a suitable heading

Decide the correct order of the following
A) The role of Europe in resolving the dispute B) The role of the New Zealand Government in the case C) French economic measures against New Zealand D) The involvement of the French government in the attack E) French liability to the victim’s family and Greenpeace F) The UN Secretary-General’s arbitration decision regarding the dispute between France and New Zealand G)The conviction and sentencing of French agents involved in the attack

Correct order: The conviction and sentencing of French agents involved in the attack The involvement of the French government in the attack The role of the New Zealand Government in the case French economic measures against New Zealand The role of Europe in resolving the dispute The UN Secretary-General’s arbitration decision regarding the dispute between France and New Zealand French liability to the victim’s family and Greenpeace

Summary Write a summary of the facts of the Rainbow Warrior affair
It may be in the form of a table, chart or diagram Remember to include only the main points of the text, use your own words and cut out all words which are not necessary for the meaning

Exercise Check the facts given in the passage on p Twelve of the facts stated are wrong – can you find the mistakes?

The main events July 1985: French secret service agents Mafart and Prieur charged in New Zealand with passport offences, conspiracy to committ arson, wilful damage and manslaughter in connection with Rainbow Warrior attack. Pleaded not guilty, remanded in custody.

The main events August 1985: French Government agreed to extradite all other agents involved in attack.

The main events September 1985: France admitted responsibility for ordering atttack. Claimed Mafart and Prieur should therefore not be held liable.

The main events November 1985: Mafart and Prieur tried for arson, murder and wilful damage. Pleaded not guilty, convicted, sentenced to life imprisonment. French Defence Minister wished to negotiate their return to France.

Negotiations between France and New Zealand
September 1985: Negotiations began. New Zealand would take proceedings against Mafart and Prieur for compensation. Insisted on no political interference and refused to extradite agents. In December New Zealand agreed to consider repatriation of agents on condition they served rest of prison sentence in France.

Negotiations between France and New Zealand
Early 1986: France began economic sanctions against New Zealand. New Zealand complaint against sanctions accepted by European Community Commission. France did not admit sanctions.

Resolution of dispute between France and New Zealand
September 1985: European governments wished to see dispute settled quickly. Attack condemned by European Parliament. UK Government took action to settle dispute.

Resolution of dispute between France and New Zealand
June-July 1986: Dispute referred to UN Secretary General for arbitration. Ruling: France: apologise, compensate New Zealand, remove economic sanctions. New Zealand: apologise, transfer Mafart and Prieur to French custody

Settlement of disputes between France and victims
November 1985: France to family of dead man: apology, compensation.

Settlement of disputes between France and victims
December 1985: France to Greenpeace: admitted liability, paid damages

Mistakes: Section A July 1985: charged with murder, not manslaughter (line 5) August ’85: the French Government refused to extradite the agents (line 10) November ’85: they were not tried for arson and they were tried for manslaughter, not murder (lines 11-13); they pleaded guilty (13); they were sentenced to 10 years’ for manslaughter and 7 years’ for wilful damage, not to life imprisonment

Mistakes: Section B September ’85: New Zealand would take proceedings against the French State, not their agents (lines 23-4) Early ’86: New Zealand complaint accepted by European Community Trade Commissioner, not Commission (31-2); France admitted sanctions (in April ’86) (line 32

Mistakes: Section C September ’85: UK Government did not take action, they ‘took little part in the dispute’ and only ‘called on France’ to settle compensation (36-7) June-July ’86: New Zealand did not have to apologise, they only had to transfer the agents (44-5)

Mistakes: Section D December ’85: France did not pay damages in December ’85; they could not agree on the amount of damages and referred the question to arbitration in July ’86 (49-52)

Vocabulary consolidation
What different crimes were the French agents accused of? Scan the text for words and phrases connected with criminal law

Oral practice Describe the main events of the Rainbow Warrior affair

International law and the Rainbow Warrior
What issues of International Law do you think the Rainbow Warrior affair involves? In what ways do you think France or French agents violated International law? Read the text on p

Contravention of International Law
The Rainbow Warrior sinking did not have serious consequences for peace. It was an officially inspired military operation with strictly limited intentions. Nevertheless, since the UN Charter was signed international lawyers have increasingly addressed the problem of low-level uses of force.

French action clearly fell within the broad concept of ‘international delinquency’ encompassing acts short of belligerency such as ‘violation of the dignity of a foreign State, violation of foreign territorial supremacy, or other internationally illegal act’. The attack and the infringement of New Zealand sovereignty were universally condemned as contrary to international law, and the French government’s Memorandum presented to de Cuellar conceded in section 5 that the abuse of New Zealand sovereignty had been illegal.

The French government initially claimed that its agents had merely engaged in ‘surveillance’. A more accurate description, given the covert nature of the job, would be ‘spying’. Unfortunately, as Richard Falk observed: ‘traditional international law is remarkably oblivious to the peacetime practice of espionage’ and while Articles of the 1907 Hague Convention deal with spying in wartime, there is no peacetime equivalent.

Convention (IV) respecting the Laws and Customs of War on Land
Convention (IV) respecting the Laws and Customs of War on Land.The Hague, 18 Oct Art. 29. A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Article 29 Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of dispatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and, generally, of maintaining communications between the different parts of an army or a territory.

Article 30 A spy taken in the act shall not be punished without previous trial.

Article 31 A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

Many jurists, however, would agree with Falk who characterised espionage as illegal but tolerated in many countries. By contrast, Julius Stone argued that spying itself was not illegal – as distinct from the collateral activity such as territorial intrusion. Stone advocated ‘reciprocally tolerated espionage’ for the superpowers as a kind of confidence-building measure.

But such an approach is inappropriate to New Zealand and France for whom, as far as one can tell, reciprocal spying is hardly an assumed aspect of their relationship. In the event the New Zealand authorities ignored the ‘surveillance’ by French agents and concentrated on the attack itself.

Reading for general understtanding
What two main issues of International Law does the author identify? Which of the two issues did New Zealand use as basis for their case against France?

Answer the following questions:
Was the French attack on the Rainbow Warrior an example of ‘international delinquency’ (line 5) or belligerency (line 5)?

Answer the following questions
Which of the following do you think are examples of ‘low-level uses of force’ (line 4)? 1) the invasion of a foreign State A bomb attack on a foreign aeroplane A declaration of war on another State

Which word in line 7 of the text means a violation? What do you suppose is the difference between surveillance (10) and spying (11)? What other word is used in the text for spying?

Surveillance ( /sərˈveɪ.əns/ or /sərˈveɪləns)
monitoring of the behavior and activities for the purpose of influencing, managing, directing, or protecting. an ambiguous practice, sometimes creating positive effects, at other times negative. usually refers to observation of individuals or groups by government organizations

surveillance Close observation of a person or group, especially one under suspicion. The act of observing or the condition of being observed.

Surveillance v. spying Surveillance: watching and observing
Spying: watching and observing secretly

Is peacetime spying legal or illegal? Does the author suppose that France and New Zealand generally spy on each other? What is the UN Charter called in your language?

2. ___: to say you are sorry 3. ___: the state of being at war
Fill in the following: belligerancy, conspiracy, negotiations, settlement, to apologise, arbitrator, concurrently, to extradite, manslaughter, delinquency, infringement 1. ___: to give a person who is suspected of or has committed a crime in another State to the authorities of that State for trial or punishment. It is governed by treateis between the two States and does not apply to political offenders 2. ___: to say you are sorry 3. ___: the state of being at war

5. ___: the breach of a law or violation of a right
Fill in the following: belligerancy, conspiracy, negotiations, settlement, to apologise, arbitrator, concurrently, to extradite, manslaughter, delinquency, infringement 4. ___: the crime of unlawful killing in various circumstances, e.g. where death is caused by accident or unlawful act but without the intention to kill 5. ___: the breach of a law or violation of a right 6. ___: the discussion of terms and conditions to reach an agreement 7. ___-: criminal behaviour

Fill in the following: belligerancy, conspiracy, negotiations, settlement, to apologise, arbitrator, concurrently, to extradite, manslaughter, delinquency, infringement 8. ___: taking place at the same time, e.g. two prison sentences which take place at the same time 9. ___: an independent third party who is chosen by both sides involved in a dispute to try to settle it, as an alternative to court proceedings. 10. ___: an agreement between two or more persons to do something which will involve at least one of the parties committing an offence or offences. For example, two people agree that one of them shall steal while the other waits in a car to escape after the theft. The agreement to commit the crime is itself an offence.

Discussion points Do you think Greenpeace were right to try to stop France from performing the nuclear tests? Was the French Government entitled to stop Greenpeace from taking action? Were the French agents right to follow the orders of their government in the circumstances? Should Mafart and Prieur be held personally liable for their acts or not?

Task Study the text on p

Acta jure imperii ‘acts by right of dominion’
the imperial, public acts of the government of a state Often distinguished from acta iure gestionis, the commercial activities of a state

Foreign sovereign immunity
A doctrine precluding the institution of an action against the government of a country without its consent. The principle of absolute sovereign immunity has eventually been replaced by the doctrine of "restrictive sovereign immunity”

Restrictive sovereign immunity
a principle that the immunity of a foreign state is restricted to claims involving the foreign state's public acts and does not extend to suits based on its commercial or private conduct. Until 20th c., mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states.

Nurenberg Charter Art. 6 The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: (…) (b) WAR CRIMES: (…) (c) CRIMES AGAINST HUMANITY (…)

Nurenberg Charter Article 8
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires

1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) Art 44. Combatants and prisoners of war 1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war. 2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.(…)

Powers Case, 1960 The U-2 incident occurred during the Cold War on May 1, 1960, during the presidency of Dwight Eisenhower and the leadership of Soviet Premier Nikita Khrushchev, when a US U-2 spy plane was shot down over the airspace of the Soviet Union

Powers Case, 1960 The US government at first denied the plane's purpose and mission, but then was forced to admit its role as a covert surveillance aircraft when the Soviet government produced its intact remains and surviving pilot, Francis Gary Powers, as well as photos of military bases in Russia taken by Powers.

Powers Case, 1960 Coming roughly two weeks before the scheduled opening of an East–West summit in Paris, the incident was a great embarrassment to the US and prompted a marked deterioration in its relations with the Soviet Union.

Powers Case, 1960 Powers pleaded guilty and was convicted of espionage on August 19 and sentenced to three years imprisonment and seven years of hard labor. He served one year and nine months of the sentence before being exchanged for Rudolf Abel on February 10, 1962

Caroline case a series of events beginning in 1837 that strained relations between the US and Britan A group of Canadian rebels, seeking a Canadian republic, were forced to flee to the US after leading the failed Upper Canada Rebellion in Upper Canada (now Ontario)

Caroline case They took refuge on the Canadian side of the Niagara River, which separates Ontario and New York and declared themselves the Republic of Canada American sympathizers supplied them with money, provisions, and arms via the steamboat SS Caroline.

Caroline case On December 29, two Canadian loyalists, acting on information and guidance from Alexander McLeod, crossed the international boundary and seized the Caroline, towed her into the current, set her afire, and cast her adrift over Niagara Falls, after killing one black American

Caroline case Three years later, McLeod was arrested by the US and charged with murder, but his incarceration infuriated Canada and Great Britain, which demanded his repatriation; suggesting that any action taken against the Caroline had been taken under orders, and the responsibility lay with Great Britain, not McLeod himself.

Caroline case The incident - used to establish the principle of "anticipatory self-defense" in international politics, which holds that it may be justified only in cases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation".

The Schooner Exchange v. McFaddon (1812)
The Schooner Exchange, owned by John M'Faddon and William Greetham, sailed from Baltimore, Maryland, on October 27, 1809, for St. Sebastians, Spain. On December 30, 1810, the Exchange was seized by order of Napoleon Bonaparte. The Exchange was then armed and commissioned as a public vessel of the French government under the name of Balaou

The Schooner Exchange v. M'Faddon
M'Faddon and Greetham claimed that they owned the Balaou, which had docked at a U.S. port due to bad weather. They believed that the Balaou was illegally seized by the government of France. At the time, France was involved with the War of 1812

The district court in the case found in favor of the French Government, finding that the M'Faddon and Greetham had no right to the Balaou as it belonged to the French government who were allies of the United States

The circuit court, on appeal, reversed the decision of the district court, granting property rights to the M'Faddon & Greetham. The Supreme Court reversed the circuit court's decision, and affirmed the district court's dismissal of the action.

But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state.

Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality (11 U.S. 144).

Reparation (8)? Compensation for injuries or breaches of international obligations

Perpetrators (71, 117)? People who commit acts (which are often crimes)

Threshold (74, 75)? Covert (76)? Access (124)?
Level Secret Right to enter (the territory of a State)

Delicts? (line 7) Intentional breaches of International Law (by a subject of International Law)

Immunity (11, 40, 88, 117, 122) Non-liability (for acts; in respect of jurisdiction/local courts)

Hostilities (49, 65-6) State of war (between States or parties)

Privileges (52, 60-61) Special rights (granted to a particular person or class of persons)

Belligerants (60)? Presuppose (79)?
People who are at war Suppose or requires as a preliminary condition

Recognizable serviceman (81-2)?
A man who can be recognized or identified as a member of the services (armed forces)

Disown (90)? Delictual responsibility (98)?
Refuse to accept as their own, say they have no connection with Responsibility regarding delicts

Self-defence (113-14)? The right to defend oneself (in International law against the actions of another state)

Territorial access (124)? Warships (125)
Access to the territory of a State Ships for use in war

Forbidden area (136) Area where one is not allowed to go

POW (67)? U2? (93) IMT? (43) Prisoner of War
A type of airplane used for spying International Military Tribunal

Abbreviations? Members of armed forces of one State who are captured and taken prisoner by another State in time of war A type of aeroplane used for spying International courts with jurisdiction over war crimes

International practice? (25-6)
A general practice of International Law which is not yet accepted as obligatory and has therefore not yet become a rule of customary International Law

Superior orders (31, 44) (often known as the Nuremberg defense or lawful orders) - a plea in a court of law that a soldier not be held guilty for actions which were ordered by a superior office. The superior orders plea is often regarded as the complement to command responsibility

Superior orders Nuremberg Principle IV:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

The 1998 Rome Statute of the International Criminal Court
Article 33, titled "Superior orders and prescription of law: 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

The 1998 Rome Statute of the International Criminal Court
(a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

Municipal law? (41) The internal law of an individual State, as opposed to International Law

Just war (62) War which is just because it is based on self-defence or national liberation

Just war (62) Principles:
can only be waged as a last resort. All non-violent options must be exhausted before the use of force can be justified. A war is just only if it is waged by a legitimate authority. Even just causes cannot be served by actions taken by individuals or groups who do not constitute an authority sanctioned by whatever the society and outsiders to the society deem legitimate.

Just war A just war can only be fought to redress a wrong suffered. For example, self-defense against an armed attack is always considered to be a just cause A war can only be just if it is fought with a reasonable chance of success. Deaths and injury incurred in a hopeless cause are not morally justifiable.

Just war The ultimate goal of a just war is to re-establish peace. The peace established after the war must be preferable to the peace that would have prevailed if the war had not been fought. The violence used in the war must be proportional to the injury suffered. States are prohibited from using force not necessary to attain the limited objective of addressing the injury suffered.

Just war The weapons used in war must discriminate between combatants and non-combatants. Civilians are never permissible targets of war, and every effort must be taken to avoid killing civilians. The deaths of civilians are justified only if they are unavoidable victims of a deliberate attack on a military target.

The Nurnberg Charter? (32)
Defines crimes against peace, war crimes and crimes against humanity

The Hague Conventions 1907? (55)
Concern the conduct of war, use of force and peaceful resolution of conflicts

The 1977 Geneva Protocol? (65) Additional to the Red Cross Conventions of 1949 concering the treatment and recognition of POWs and regulating the use of some kinds of arms

Sovereign States (3)? States which exercise sovereignty, independent States

State criminality (5)? War crimes? (37, 67)
Criminal behaviour on the part of a State Crimes which violate the laws and customs of war

State immunity for lesser acts contrary to International Law? (40-41)
The non-liability of a State in respect of less serious acts which violate International Law

Soldiers’ privileges (52)
Special rights granted to soldiers (in wartime: immunity from liability for killing)

Guerilla activity (57) Methods of fighting used by guerillas

The foreign government benefiting from his espionage (84-85)
The foreign government which gains some advantage (benefit) from the agent’s spying

Complete the unfinished sentences and choose the correct alternative from the italicised phrases:
In the Rainbow Warrior affair the French Government claimed that their agents (1) should/should not be held liable for their acts on the grounds that (2) they had only obeyed the orders of the government which had later claimed responsibility.

Complete the unfinished sentences and choose the correct alternative from the italicised phrases:
The French argument was based on (3) International Law/ international practice/ municipal law.

Both France and New Zealand accepted that under the Nurnberg Charter individuals who commit war crimes against peace and humanity (4) are/are not personally liable for their acts.

However, Mafart and Prieur (5) were/were not accused of crimes against peace and humanity since (6)______therefore the principles of the Nurnberg Charter (7) were/were not applicable in this case.

Nevertheless, the New Zealand Government (8) accepted/did not accept the argument of superior orders as a defence for Mafart and Prieur.

Liability for acts of violence committed by servicemen in (9) wartime/peacetime is clearly regulated by International Law.

In fact, soldiers who kill foreigners in wartime (10)___

In peacetime, on the other hand, perpetrators of low-threshold violence are (11) always/ never/ sometimes held liable for their acts, and this depends on (12)___ Whether they are popular or unpopular guerillas

Mafart and Prieur clearly (13) had/ did not have P. O. W
Mafart and Prieur clearly (13) had/ did not have P.O.W. status and were therefore treated (14)___ As ordinary criminals

Responsibility for acts of spies (15) is/ is not clearly regulated by International Law. It seems that agents cannot enjoy immunity from local jurisdiction unless (16)___ Foreign governments accept responsibility

In fact, according to the Caroline and McLeod cases, if a government claims responsibility for the acts of its spies, the agents involved (17)___ should not be held liable

This precedent (18) only applies/doesn’t apply, however, when the agent’s presence in the foreign territory is lawful.

Thus, the ruling in Caroline and McLeod (19) applies/doesn’t apply in the Rainbow Warrior case since (20) Agents entered illegally with the purpose of committing illegal acts

The reason for this rule is illustrated by the case of the Soviet submarine in Sweden, which shows that___ Immunity from local jurisdiction derives from consent to territorial access

Under International Law foreign agents (22) can/cannot be held liable for illegal acts against municipal law.

Comprehension On the basis of this analysis, why were the two French agents held personally liable for their acts in the Rainbow Warrior affair?

Answer The agents had only obeyed orders and the French government had accepted responsibility for their acts. However, since their presence on New Zealand territory was unlawful they were not entitled to agent immunity because the doctrine derives from the consent of the sovereign State to territorial access for foreigners.

Describe the legal position regarding liability for criminal acts of agents abroad in International Law The defence of superior orders Liability for acts in time of war: war crimes/soldiers’ privilege Liability for acts in time of peace: low thresholds of conflict Espionage: agent immunity When the government accepts liability: lawful entry/unlawful entry

Discuss in small groups:
1. What is your view of the legal result of the Rainbow Warrior affair? Do you think the affair will have any positive effects for the future? Do you think the affair will have any negative effects?

Law and the Rainbow Warrior
The Rainbow Warrior affair bolsters the notion that there is an international doctrine of non-intervention. France was obliged to recognise this, and also to make restitution for contravening the doctrine outlawing armed atttack.

Further, the case may have a positive long-term benefit in drawing attention to those areas of deficiency, remarked on by Falk, Lauzchterpacht, Crawford and others, in both the substantive rule of international law and its procedures, especially concerning immunity, low-level force, and peacetime espionage.

Certainly in government torts the international trend in State practice is to restrict State immunity and assert local jurisdiction, to the extent that it has been said to contribute to the ‘demystification of the State as a supreme being’.

Jurists will note that the outcome of the inter-government dispute was based on an individual’s concept of fairness, producing a ruling rather than a legal judgment.

De Cuellar’ resisted any attempt to imbue the case with theoretical significance or to refer to norms – though no doubt legality as well as practicality formed part of his private deliberations.

Yet in so far as the settlement can be considered as an example of State practice, it significantly challenges the principle that either a State or its agents – but not both – are liable for acts contrary to law outside the Geneva Convention.

Answer the following: Are States more or less likely to be held liable for torts in International Law now than in the past? What important point does the author make in lines 18-24? In what way is the Rainbow Warrior settlement new and significant? Do you agree with the author’s opinions?

Answers A) more likely – the trend is to restrict state immunity
B) the Secreary General’s arbitration decision does not have the force of a legal judgement. It is only a single ruling by an individual in a particular case C) both the State and its agents were held liable for the agents’ unlawful acts

List all the words and phrases on the theme of war and force (p
Armed attack, war crimes, crimes against peace and humanity, hostilities, conflict, declaration of a state of war, military personnel, soldiers’ privilege, laws and customs of war, sporadic acts of violence, terrorism, sabotage, guerillas, belligerants’ privileges, just war, POW, air piracy, non-international conflict, perpetrators of sporadic violence, armed conflict, lower thresholds of violence

Moot: Case A Jane Bond is a British Intelligence agent who enters Japan as a businesswoman under a false name. While trying to steal an important military secret she kills a Japanese guard. She is arrested and tried for murder by the Japanese authorities. At this point the British Government claims responsibility for the agent’s acts. Is she personally liable or not?

Case B HMS Union is berthed in New York harbour under the command of Captain Kirk of the Royal Navy. British intelligence informs the Admiral of the Fleet that the Tipperary, a boat carrying arms for the IRA (the Irish Republican Army, responsible for terrorist attacks against Britain) is about to leave the harbour. The Admiral orders Captain Kirk to take any necessary action to stop the Tipperary. Captain Kirk orders his crew to sink the Tipperary. Two crew members of the Irish boat are killed in the attack. The Captain is arrested and charged with murder. Is he personally liable or not?

Moot For each case, appoint people to act as counsel for the aplicant State and counsel for the defendant State. The other members of the class will act as judges or arbitrators in the case they have chosen.

Moot First the applicant state, then the defendant State is represented in court. Decide who has won the case and deliver judgement

Who’s the boss? Speaker, Attorney-General, British Sovereign, Master of the Rolls, President, Lord Speaker, Secretary-General, Prime Minister UN Secretariat House of Commons House of Lords British Commonwealth International Court of Justice European Commission Order of Barristers (UK) Court of Appeal Civil Division (UK)

Abbreviations AG Attorney General MR Master of the Rolls HM QEII
Her Majesty Queen Elisabeth II

Abbreviations CA Court of Appeal HL House of Lords

Abbreviations PM Prime Minister UN United Nations ICJ
International Court of Justice

INTERNATIONAL LAW – USE OF FORCE AND ESPIONAGE

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