INTERNATIONAL LAW

1
INTERNATIONAL LAW USE OF FORCE AND ESPIONAGE

• Unit 11

2
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

3
Greenpeace

• Focuses on
• Global warming
• Deforestation
• Overfishing
• Anti-nuclear issues

4
Greenpeace

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

5
History Beginnings

• In 1971, a small team of activists set sail from
  Vancouver, Canada, in an old fishing boat. These
  activists - the founders of Greenpeace - believed
  a few individuals could make a difference.
• Although their boat was intercepted before it got
  to Amchitka, the journey sparked a flurry of
  public interest.

6
History Beginnings

• The US detonated the bomb, but the voice of
  reason had been heard.
• Nuclear testing on Amchitka ended that year, and
  the island was later declared a bird sanctuary.
• Years later, Greenpeace won a ban on all nuclear
  weapons testing

7
History 1980s

• 1985 A French Secret Service agent - Christine
  Cabon - infiltrated the Greenpeace office in
  Auckland, posing as a volunteer.1985 French
  Secret Service agents blew up the Rainbow
  Warrior, in Auckland harbour, at 23.38hr on 10th
  July. One of the crew, the photographer Fernando
  Pereira, drowned as the ship sank.

8
Rainbow Warrior
9
Rainbow Warrior
10
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

11
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

12
South Pacific
13
Pacific
14
French Polynesia
15
French Polynesia

• 1946 Polynesians granted French citizenship
• the islands' status changed to an overseas
  territory
• the islands' name changed in 1957 to Polynésie
  Française (French Polynesia).
• In 1962, France's early nuclear testing ground of
  Algeria became independent and the Maruroa atoll
  in the Tuamotu Archipelago selected as the new
  testing site Tests - conducted underground after
  1974.
• 1977 French Polynesia granted partial internal
  autonomy 1984 the autonomy was extended.

16
French Polynesia

• In Sept. 1995, France stirred up widespread
  protests by resuming nuclear testing after a
  three-year moratorium
• The last test 27 Jan. 1996.
• On 29 Jan. 1996, France announced that it would
  accede to the Comprehensive Test Ban Treaty, and
  no longer test nuclear weapons

17
Location of Rainbow Warrior
18
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

19
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

20
Rainbow Warrior sunk
21
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.

22
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.

23
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."

24
Rainbow Warrior

• In 2006, Antoine Royal, brother of the French
  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

25
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.

26
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."

27
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.

28
Memorial to the Rainbow Warrior at Matauri Bay,
Northland
29
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.

30
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
  Cant Sink a Rainbow. 

31
Skimming

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

32
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 victims family and
  Greenpeace
• F) The UN Secretary-Generals arbitration
  decision regarding the dispute between France and
  New Zealand
• G)The conviction and sentencing of French agents
  involved in the attack

33
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-Generals arbitration decision
  regarding the dispute between France and New
  Zealand
• French liability to the victims family and
  Greenpeace

34
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

35
Exercise

• Check the facts given in the passage on p. 180.
  Twelve of the facts stated are wrong can you
  find the mistakes?

36
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.

37
The main events

• August 1985 French Government agreed to
  extradite all other agents involved in attack.

38
The main events

• September 1985 France admitted responsibility
  for ordering atttack. Claimed Mafart and Prieur
  should therefore not be held liable.

39
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.

40
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.

41
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.

42
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.

43
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

44
Settlement of disputes between France and victims

• November 1985 France to family of dead man
  apology, compensation.

45
Settlement of disputes between France and victims

• December 1985 France to Greenpeace admitted
  liability, paid damages

46
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

47
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

48
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)

49
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)

50
Vocabulary consolidation

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

51
Oral practice

• Describe the main events of the Rainbow Warrior
  affair

52
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. 181-2.

53
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.

54
Contravention of International Law

• 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 governments
  Memorandum presented to de Cuellar conceded in
  section 5 that the abuse of New Zealand
  sovereignty had been illegal.

55
Contravention of International Law

• 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 29-31 of the 1907 Hague
  Convention deal with spying in wartime, there is
  no peacetime equivalent.

56
Convention (IV) respecting the Laws and Customs
of War on Land.The Hague, 18 Oct. 1907.

• 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.

57
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.

58
Article 30

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

59
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.

60
Contravention of International Law

• 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.

61
Contravention of International Law

• 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.

62
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?

63
Answer the following questions

• Was the French attack on the Rainbow Warrior an
  example of international delinquency (line 5)
  or belligerency (line 5)?

64
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

65
Answer the following questions

• 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?

66
Surveillance ( /s?r've?.?ns/ or /s?r've?l?ns)

• 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

67
surveillance

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

68
Surveillance v. spying

• Surveillance watching and observing
• Spying watching and observing secretly

69
Answer the following questions

• 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?

70
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

71
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

72
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.

73
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?

74
Task

• Study the text on p. 184-5

75
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

76
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

77
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.

78
Nurenberg CharterArt. 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 ()

79
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

80
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 war1. 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.()

81
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

82
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.

83
Powers Case, 1960

• Coming roughly two weeks before the scheduled
  opening of an EastWest summit in Paris, the
  incident was a great embarrassment to the US and
  prompted a marked deterioration in its relations
  with the Soviet Union.

84
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

85
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)

86
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.

87
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

88
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.

89
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".

90
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

91
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

92
The Schooner Exchange v. M'Faddon

• 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

93
The Schooner Exchange v. M'Faddon

• 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.

94
The Schooner Exchange v. M'Faddon

• 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.

95
The Schooner Exchange v. M'Faddon

• 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).

96
Reparation (8)?

• Compensation for injuries or breaches of
  international obligations

97
Perpetrators (71, 117)?

• People who commit acts (which are often crimes)

98
Threshold (74, 75)? Covert (76)? Access (124)?

• Level
• Secret
• Right to enter (the territory of a State)

99
Delicts? (line 7)

• Intentional breaches of International Law (by a
  subject of International Law)

100
Immunity (11, 40, 88, 117, 122)

• Non-liability (for acts in respect of
  jurisdiction/local courts)

101
Hostilities (49, 65-6)

• State of war (between States or parties)

102
Privileges (52, 60-61)

• Special rights (granted to a particular person or
  class of persons)

103
Belligerants (60)? Presuppose (79)?

• People who are at war
• Suppose or requires as a preliminary condition

104
Recognizable serviceman (81-2)?

• A man who can be recognized or identified as a
  member of the services (armed forces)

105
Disown (90)? Delictual responsibility (98)?

• Refuse to accept as their own, say they have no
  connection with
• Responsibility regarding delicts

106
Self-defence (113-14)?

• The right to defend oneself (in International law
  against the actions of another state)

107
Territorial access (124)? Warships (125)

• Access to the territory of a State
• Ships for use in war

108
Forbidden area (136)

• Area where one is not allowed to go

109
POW (67)? U2? (93) IMT? (43)

• Prisoner of War
• A type of airplane used for spying
• International Military Tribunal

110
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

111
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

112
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

113
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."

114
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

115
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.

116
Municipal law? (41)

• The internal law of an individual State, as
  opposed to International Law

117
Just war (62)

• War which is just because it is based on
  self-defence or national liberation

118
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.

119
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.

120
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.

121
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.

122
The Nurnberg Charter? (32)

• Defines crimes against peace, war crimes and
  crimes against humanity

123
The Hague Conventions 1907? (55)

• Concern the conduct of war, use of force and
  peaceful resolution of conflicts

124
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

125
Sovereign States (3)?

• States which exercise sovereignty, independent
  States

126
State criminality (5)? War crimes? (37, 67)

• Criminal behaviour on the part of a State
• Crimes which violate the laws and customs of war

127
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

128
Soldiers privileges (52)

• Special rights granted to soldiers (in wartime
  immunity from liability for killing)

129
Guerilla activity (57)

• Methods of fighting used by guerillas

130
The foreign government benefiting from his
espionage (84-85)

• The foreign government which gains some advantage
  (benefit) from the agents spying

131
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.

132
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.

133

• 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.

134

• 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.

135

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

136

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

137

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

138

• 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

139

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

140

• 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

141

• 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

142

• This precedent (18) only applies/doesnt apply,
  however, when the agents presence in the foreign
  territory is lawful.

143

• Thus, the ruling in Caroline and McLeod (19)
  applies/doesnt apply in the Rainbow Warrior case
  since (20)
• Agents entered illegally with the purpose of
  committing illegal acts

144

• 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

145

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

146
Comprehension

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

147
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.

148
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

149
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?

150
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.

151

• 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.

152

• 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.

153

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

154

• 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.

155

• 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.

156
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 authors opinions?

157
Answers

• A) more likely the trend is to restrict state
  immunity
• B) the Secreary Generals 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

158
List all the words and phrases on the theme of
war and force (p. 178, 181-2, 184-5)

• 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

159
MootCase 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 agents acts. Is
  she personally liable or not?

160
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?

161
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.

162
Moot

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

163
Whos the boss?Speaker, Attorney-General,
British Sovereign, Master of the Rolls,
President, Lord Chancellor, 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)

164
Abbreviations

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

165
Abbreviations

• LC
• Lord Chancellor
• CA
• Court of Appeal
• HL
• House of Lords

166
Abbreviations

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