international law – use of force and espionage

INTERNATIONAL LAW INTERNATIONAL LAW – USE OF FORCE AND – USE OF FORCE AND

ESPIONAGEESPIONAGE

Unit 11Unit 11

GreenpeaceGreenpeace

AA non-governmental environmental non-governmental environmental organizationorganization

offices in over offices in over 4040 countries countries an international coordinating body in an international coordinating body in

AAmsterdammsterdam its goal is to "ensure the ability of its goal is to "ensure the ability of

the the Earth Earth to nurtureto nurture life life in all itsin all its diversity”diversity”


FFocuses onocuses on:: Global warmingGlobal warming DeforestationDeforestation OverfishingOverfishing Anti-nuclear issuesAnti-nuclear issues


ResearchResearch Bringing problems to the attention of Bringing problems to the attention of

the publicthe public Non-violent direct actionNon-violent direct action

History: BeginningsHistory: Beginnings

In 1971, a small team of activists set In 1971, a small team of activists set sail from Vancouver, Canada, in an sail from Vancouver, Canada, in an old fishing boat. These activists - the old fishing boat. These activists - the founders of Greenpeace - believed a founders of Greenpeace - believed a few individuals could make a few individuals could make a difference. difference.

AlthoughAlthough their boat was intercepted their boat was intercepted before it got to Amchitka, the journey before it got to Amchitka, the journey sparked a flurry of public interest. sparked a flurry of public interest.

History: BeginningsHistory: Beginnings

The US detonated the bomb, but the The US detonated the bomb, but the voice of reason had been heard. voice of reason had been heard.

Nuclear testing on Amchitka ended Nuclear testing on Amchitka ended that year, and the island was later that year, and the island was later declared a bird sanctuary. declared a bird sanctuary.

Years later, Greenpeace won a ban Years later, Greenpeace won a ban on all nuclear weapons testingon all nuclear weapons testing

History: 1980’sHistory: 1980’s

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

Rainbow WarriorRainbow Warrior


a former UKa former UK Ministry of Agriculture, Ministry of Agriculture, Fisheries and Food trawler later purchased Fisheries and Food trawler later purchased by Greenpeaceby Greenpeace

active in supporting a number of protest active in supporting a number of protest activities againstactivities against seal hunting, whaling seal hunting, whaling and nuclear weapons testing and nuclear weapons testing in in the late the late 1970s and early 1980s 1970s and early 1980s


campaigning against nuclear testingcampaigning against nuclear testing in the in the PacificPacific

evacuated some 300evacuated some 300 Marshall Islanders Marshall Islanders from Rongelap Atoll,from Rongelap Atoll, polluted by polluted by radioactivity from past American nuclear radioactivity from past American nuclear teststests in the Pacific in the Pacific

travelled totravelled to New Zealand New Zealand to lead a flotilla to lead a flotilla ofof yachts yachts protesting against French protesting against French nuclear testing in the French Polynesianuclear testing in the French Polynesia

South PacificSouth Pacific

PacificPacific

French PolynesiaFrench Polynesia

French PolynesiaFrench Polynesia 1946 Polynesians granted French citizenship 1946 Polynesians granted French citizenship the islands' status changed to anthe islands' status changed to an overseas overseas

territoryterritory; ; the islands' name changed in 1957 to the islands' name changed in 1957 to Polynésie Polynésie

FrançaiseFrançaise (French Polynesia). (French Polynesia). In 1962, France's early nuclear testing ground ofIn 1962, France's early nuclear testing ground of

AlgeriaAlgeria became independent and the became independent and the Maruroa atoll Maruroa atoll in the Tuamotu Archipelago selected as the new in the Tuamotu Archipelago selected as the new testing site; testing site; TTests ests - - conducted underground after conducted underground after 1974.1974.

1977 French Polynesia granted partial internal 1977 French Polynesia granted partial internal autonomy; 1984 the autonomy was extended. autonomy; 1984 the autonomy was extended.

French PolynesiaFrench Polynesia

In SeptIn Sept.. 1995, France stirred up 1995, France stirred up widespread protests by resuming widespread protests by resuming nuclear testing after a three-yearnuclear testing after a three-year moratoriummoratorium

The last testThe last test:: 27 Jan 27 Jan.. 1996. 1996. On 29 JanOn 29 Jan.. 1996, France announced 1996, France announced

that it would accede to thethat it would accede to the Comprehensive Test Ban TreatyComprehensive Test Ban Treaty, and , and no longer test nuclear weaponsno longer test nuclear weapons

Location of Rainbow WarriorLocation of Rainbow Warrior


Greenpeace intended to monitor the Greenpeace intended to monitor the impact of nuclear tests and place impact of nuclear tests and place protesters on the island to monitor protesters on the island to monitor the blasts the blasts

The French Government infiltrated The French Government infiltrated the organisation and discovered the organisation and discovered these plansthese plans


sabotaged and sunk just before midnight sabotaged and sunk just before midnight on July 10, 1985 by two explosive on July 10, 1985 by two explosive devices attached to the hull by devices attached to the hull by operatives of the French intelligence operatives of the French intelligence service service

PhotographerPhotographer Fernando Pereira Fernando Pereira returned returned to the ship after the first explosion to to the ship after the first explosion to trytry to retrieve his equipmentto retrieve his equipment; ; killed when killed when the ship was sunk by the second larger the ship was sunk by the second larger explosionexplosion

Rainbow Warrior sunkRainbow Warrior sunk


A murder enquiry began and a number A murder enquiry began and a number of French agents were tracked and of French agents were tracked and arrested. arrested.

The revelations of French involvement The revelations of French involvement caused a political scandal and the caused a political scandal and the French Minister of DefenceFrench Minister of Defence Charles Charles HernuHernu resigned. resigned.

The captured French agents imprisoned, The captured French agents imprisoned, later transferred to French custody. later transferred to French custody.


They were confined to They were confined to aa French French military basemilitary base for a brief period before for a brief period before being released. being released.

After facing international pressure After facing international pressure France agreed to pay compensation France agreed to pay compensation to Greenpeace to Greenpeace

later admissions from the former head later admissions from the former head of the DGSE revealed that three of the DGSE revealed that three teams had carried out the bombings. teams had carried out the bombings.


In addition to those successfully In addition to those successfully prosecuted, a two-mprosecuted, a two-meen team had carried n team had carried out the actual bombing but their out the actual bombing but their identities have never been officially identities have never been officially confirmed. confirmed.

On 22 SeptOn 22 Sept.. 1985, the French Prime 1985, the French Prime MinisterMinister Laurent Fabius Laurent Fabius read a statement read a statement sayingsaying: "Agents of the French secret : "Agents of the French secret service sank this boat. They were acting service sank this boat. They were acting on orders."on orders."


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


Greenpeace and the French Republic Greenpeace and the French Republic agreeagreedd to submit Greenpeace's claims to submit Greenpeace's claims against France to international arbitration. against France to international arbitration. The arbitral tribunal, seated in GenevaThe arbitral tribunal, seated in Geneva - -composed of composed of 33 members (Prof members (Prof.. Claude Claude Reymond, Sir Owen Woodhouse and ProfReymond, Sir Owen Woodhouse and Prof.. Francois Terre) rendered an award in 1987 Francois Terre) rendered an award in 1987 in favor of Greenpeace, ordering France to in favor of Greenpeace, ordering France to pay it some $pay it some $ 8.1 million. 8.1 million.


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


TTowed north with a patched hull on 2 Decowed north with a patched hull on 2 Dec.. 1987. 1987.

Ten days later, it was given a traditional Ten days later, it was given a traditional Maori Maori burial. burial.

Now home to a complex ecosystem, Now home to a complex ecosystem, itit has has become a popular dive destinationbecome a popular dive destination

In a few years, In a few years, it it became an integral part became an integral part of the environment it helped protect.of the environment it helped protect.

Memorial to the Rainbow Warrior Memorial to the Rainbow Warrior atat Matauri Bay, Matauri Bay, Northland Northland


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


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

SkimmingSkimming

Skim the text on p. 177Skim the text on p. 177 Find the main themes of paragraphs Find the main themes of paragraphs

1-7 and give each one a suitable 1-7 and give each one a suitable headingheading

Decide the correct order of the Decide the correct order of the followingfollowing

A) The role of Europe in resolving the disputeA) The role of Europe in resolving the dispute B) The role of the New Zealand Government in the B) The role of the New Zealand Government in the

casecase C) French economic measures against New ZealandC) French economic measures against New Zealand D) The involvement of the French government in the D) The involvement of the French government in the

attackattack E) French liability to the victim’s family and E) French liability to the victim’s family and

GreenpeaceGreenpeace F) The UN Secretary-General’s arbitration decision F) The UN Secretary-General’s arbitration decision

regarding the dispute between France and New regarding the dispute between France and New ZealandZealand

G)The conviction and sentencing of French agents G)The conviction and sentencing of French agents involved in the attackinvolved in the attack

Correct order:Correct order: The conviction and sentencing of French agents The conviction and sentencing of French agents

involved in the attackinvolved in the attack The involvement of the French government in the The involvement of the French government in the

attackattack The role of the New Zealand Government in the The role of the New Zealand Government in the

casecase French economic measures against New ZealandFrench economic measures against New Zealand The role of Europe in resolving the disputeThe role of Europe in resolving the dispute The UN Secretary-General’s arbitration decision The UN Secretary-General’s arbitration decision

regarding the dispute between France and New regarding the dispute between France and New ZealandZealand

French liability to the victim’s family and French liability to the victim’s family and GreenpeaceGreenpeace

SummarySummary

Write a summary of the facts of the Write a summary of the facts of the Rainbow Warrior affairRainbow Warrior affair

It may be in the form of a table, chart It may be in the form of a table, chart or diagramor diagram

Remeber to include only the main Remeber to include only the main points of the text, use your own points of the text, use your own words and cut out all words which words and cut out all words which are not necessary for the meaningare not necessary for the meaning

ExerciseExercise

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

The main eventsThe main events

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


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


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


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

Negotiations between Negotiations between France and New ZealandFrance and New Zealand

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

Negotiations between Negotiations between France and New ZealandFrance and New Zealand

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

Resolution of dispute Resolution of dispute between France and New between France and New

ZealandZealand September 1985: European September 1985: European

governments wished to see dispute governments wished to see dispute settled quickly. Attack condemned by settled quickly. Attack condemned by European Parliament. UK European Parliament. UK Government took action to settle Government took action to settle dispute.dispute.

Resolution of dispute Resolution of dispute between France and New between France and New

ZealandZealand June-July 1986: Dispute referred to June-July 1986: Dispute referred to

UN Secretary General for arbitration. UN Secretary General for arbitration. Ruling: France: apologise, Ruling: France: apologise, compensate New Zealand, remove compensate New Zealand, remove economic sanctions.economic sanctions.

New Zealand: apologise, transfer New Zealand: apologise, transfer Mafart and Prieur to French custodyMafart and Prieur to French custody

Settlement of disputes Settlement of disputes between France and victimsbetween France and victims November 1985: France to family of November 1985: France to family of

dead man: apology, compensation.dead man: apology, compensation.

Settlement of disputes Settlement of disputes between France and victimsbetween France and victims December 1985: France to December 1985: France to

Greenpeace: admitted liability, paid Greenpeace: admitted liability, paid damagesdamages

Mistakes: Section AMistakes: Section A

July 1985: charged with July 1985: charged with murder,murder, not not manslaughter (line 5)manslaughter (line 5)

August ’85: the French Government August ’85: the French Government refusedrefused to extradite the agents (line 10) to extradite the agents (line 10)

November ’85: they were November ’85: they were notnot tried for tried for arson and they were tried for arson and they were tried for manslaughtermanslaughter, not murder (lines 11-13); , not murder (lines 11-13); they pleaded guilty (13); they were they pleaded guilty (13); they were sentenced to sentenced to 10 years10 years’ for manslaughter ’ for manslaughter and and 7 years7 years’ for wilful damage, not to life ’ for wilful damage, not to life imprisonmentimprisonment

Mistakes: Section BMistakes: Section B

September ’85: New Zealand would September ’85: New Zealand would take proceedings against take proceedings against the French the French StateState, not their agents (lines 23-4), not their agents (lines 23-4)

Early ’86: New Zealand complaint Early ’86: New Zealand complaint accepted by European Community accepted by European Community Trade CommissionerTrade Commissioner, not , not Commission (31-2); France admitted Commission (31-2); France admitted sanctions (in April ’86) (line 32sanctions (in April ’86) (line 32

Mistakes: Section CMistakes: Section C

September ’85: UK Government September ’85: UK Government did did not take actionnot take action, they ‘took little part , they ‘took little part in the dispute’ and only ‘called on in the dispute’ and only ‘called on France’ to settle compensation (36-7)France’ to settle compensation (36-7)

June-July ’86: New Zealand did June-July ’86: New Zealand did notnot have to apologise, they only had to have to apologise, they only had to transfer the agents (44-5)transfer the agents (44-5)

Mistakes: Section DMistakes: Section D

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

Vocabulary consolidationVocabulary consolidation

What different crimes were the What different crimes were the French agents accused of?French agents accused of?

Scan the tex for words and phrases Scan the tex for words and phrases connected with criminal lawconnected with criminal law

Oral practiceOral practice

Describe the main events of the Describe the main events of the Rainbow Warrior affairRainbow Warrior affair

International law and the International law and the Rainbow WarriorRainbow Warrior

What issues of International Law do What issues of International Law do you think the Rainbow Warrior affair you think the Rainbow Warrior affair involves?involves?

In what ways do you think France or In what ways do you think France or French agents violated International French agents violated International law?law?

Read the text on p. 181-2.Read the text on p. 181-2.

Contravention of Contravention of International LawInternational Law

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


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


The French government initially claimed The French government initially claimed that its agents had merely engaged in that its agents had merely engaged in ‘surveillance’. A more accurate description, ‘surveillance’. A more accurate description, given the covert nature of the job, would be given the covert nature of the job, would be ‘spying’. Unfortunately, as Richard Falk ‘spying’. Unfortunately, as Richard Falk observed: ‘traditional international law is observed: ‘traditional international law is remarkably oblivious to the peacetime remarkably oblivious to the peacetime practice of espionage’ and while Aricles 29-practice of espionage’ and while Aricles 29-31 of the 1907 Hague Convention deal with 31 of the 1907 Hague Convention deal with spying in wartime, there is no peacetime spying in wartime, there is no peacetime equivalent.equivalent.

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

1907.1907. Art. 29. A person can only be Art. 29. A person can only be

considered a spy when, acting considered a spy when, acting clandestinely or on false pretences, clandestinely or on false pretences, he obtains or endeavours to obtain he obtains or endeavours to obtain information in the zone of operations information in the zone of operations of a belligerent, with the intention of of a belligerent, with the intention of communicating it to the hostile communicating it to the hostile party. party.

Article 29Article 29 Thus, soldiers not wearing a disguise who have Thus, soldiers not wearing a disguise who have

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

Article 30Article 30

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

Article 31Article 31

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


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


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

Reading for general Reading for general understtandingundersttanding

What two main issues of What two main issues of International Law does the author International Law does the author identify?identify?

Which of the two issues did New Which of the two issues did New Zealand use as basis for their case Zealand use as basis for their case against France?against France?

Answer the following Answer the following questions:questions:

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

Answer the following Answer the following questionsquestions

Which of the following do you think Which of the following do you think are examples of ‘low-level uses of are examples of ‘low-level uses of force’ (line 4)?force’ (line 4)?

1) the invasion of a foreign State1) the invasion of a foreign State A bomb attack on a foreign A bomb attack on a foreign

aeroplaneaeroplane A declaration of war on another StateA declaration of war on another State


Which word in line 7 of the text Which word in line 7 of the text means a violation?means a violation?

What do you suppose is the What do you suppose is the difference between difference between surveillancesurveillance (10) (10) and and spyingspying (11)? (11)?

What other word is used in the text What other word is used in the text for spying?for spying?

SurveillanceSurveillance ( ( /sərˈveɪ.əns/ or or /sərˈveɪləns))

monitoring of themonitoring of the behavior and behavior and activitiesactivities for the for the purpose of influencing, managing, directing, or purpose of influencing, managing, directing, or protecting. protecting.

an ambiguous practice, sometimes creating an ambiguous practice, sometimes creating positive effects, at other times negative. positive effects, at other times negative.

usually refers to observation of individuals or usually refers to observation of individuals or groups by groups by government government organizationsorganizations

surveillancesurveillance

Close observation of a person or Close observation of a person or group, especially one under suspicion.group, especially one under suspicion.

The act of observing or the condition The act of observing or the condition of being observed.of being observed.

Surveillance v. spyingSurveillance v. spying

Surveillance: watching and observingSurveillance: watching and observing Spying: watching and observing Spying: watching and observing

secretlysecretly


Is peacetime spying legal or illegal?Is peacetime spying legal or illegal? Does the author suppose that France Does the author suppose that France

and New Zealand generally spy on and New Zealand generally spy on each other?each other?

What is the UN Charter called in your What is the UN Charter called in your language?language?

Fill in the following: belligerancy, conspiracy, Fill in the following: belligerancy, conspiracy, negotiations, settlement, to apologise, arbitrator, negotiations, settlement, to apologise, arbitrator,

concurrently, to extradite, manslaughter, concurrently, to extradite, manslaughter, delinquency, infringementdelinquency, infringement

1. ___: to give a person who is suspected 1. ___: to give a person who is suspected of or has committed a crime in another of or has committed a crime in another State to the authorities of that State for State to the authorities of that State for trial or punishment. It is governed by trial or punishment. It is governed by treateis between the two States and does treateis between the two States and does not apply to political offendersnot apply to political offenders

2. ___: to say you are sorry2. ___: to say you are sorry 3. ___: the state of being at war3. ___: the state of being at war



4. ___: the crime of unlawful killing in 4. ___: the crime of unlawful killing in various circumstances, e.g. where various circumstances, e.g. where death is caused by accident or death is caused by accident or unlawful act but without the intention unlawful act but without the intention to killto kill

5. ___: the breach of a law or violation 5. ___: the breach of a law or violation of a rightof a right

6. ___: the discussion of terms and 6. ___: the discussion of terms and conditions to reach an agreementconditions to reach an agreement

7. ___-: criminal behaviour7. ___-: criminal behaviour



8. ___: taking place at the same time, e.g. two 8. ___: taking place at the same time, e.g. two prison sentences which take place at the same prison sentences which take place at the same timetime

9. ___: an independent third party who is chosen 9. ___: an independent third party who is chosen by both sides involved in a dispute to try to settle by both sides involved in a dispute to try to settle it, as an alternative to court proceedings.it, as an alternative to court proceedings.

10. ___: an agreement between two or more 10. ___: an agreement between two or more persons to do something which will involve at persons to do something which will involve at least one of the parties committing an offence or least one of the parties committing an offence or offences. For example, two people agree that one offences. For example, two people agree that one of them shall steal while the other waits in a car of them shall steal while the other waits in a car to escape after the theft. The agreement to to escape after the theft. The agreement to commit the crime is itself an offence.commit the crime is itself an offence.

Discussion pointsDiscussion points

Do you think Greenpeace were right to try Do you think Greenpeace were right to try to stop France from performing the to stop France from performing the nuclear tests?nuclear tests?

Was the French Government entitled to Was the French Government entitled to stop Greenpeace from taking action?stop Greenpeace from taking action?

Were the French agents right to follow the Were the French agents right to follow the orders of their government in the orders of their government in the circumstances?circumstances?

Should Mafart and Prieur be held Should Mafart and Prieur be held personally liable for their acts or not?personally liable for their acts or not?

TaskTask

Study the text on p. 184-5Study the text on p. 184-5

Acta jure imperiiActa jure imperii

‘‘acts by right of dominionacts by right of dominion’’ the imperial, public acts of the the imperial, public acts of the

government of a state government of a state Often distinguished fromOften distinguished from acta iure acta iure

gestionisgestionis, the commercial activities of , the commercial activities of a a state state

Foreign sovereign immunityForeign sovereign immunity

A doctrine precluding the institution A doctrine precluding the institution of an action against the government of an action against the government of a country without its consent. of a country without its consent.

The principle of absolute sovereign The principle of absolute sovereign immunity has eventually been immunity has eventually been replaced by the doctrine of replaced by the doctrine of "restrictive sovereign immunity"restrictive sovereign immunity””

Restrictive sovereign Restrictive sovereign immunityimmunity

a principle that the immunity of a foreign a principle that the immunity of a foreign state is restricted to claims involving the state is restricted to claims involving the foreign state's public acts and does not foreign state's public acts and does not extend to suits based on its commercial or extend to suits based on its commercial or private conduct. private conduct.

Until Until 20th c.20th c., mutual respect for the , mutual respect for the independence, legal equality, and dignity independence, legal equality, and dignity of all nations was thought to entitle each of all nations was thought to entitle each nation to a broad immunity from the nation to a broad immunity from the judicial process of other states.judicial process of other states.

Nurenberg CharterNurenberg CharterArt. 6Art. 6

The following acts, or any of them, The following acts, or any of them, are crimes coming within the are crimes coming within the jurisdiction of the Tribunal for which jurisdiction of the Tribunal for which there shall be there shall be individual individual responsibility:responsibility:

(a) CRIMES AGAINST PEACE:(a) CRIMES AGAINST PEACE: (…) (…) (b) WAR CRIMES:(b) WAR CRIMES: (…) (…) (c) CRIMES AGAINST HUMANITY(c) CRIMES AGAINST HUMANITY (…) (…)

Nurenberg CharterNurenberg Charter

Article 8Article 8 The fact that the Defendant acted The fact that the Defendant acted

pursuant to order of his Government pursuant to order of his Government or of a superior shall not free him or of a superior shall not free him from responsibility, but may be from responsibility, but may be considered in mitigation of considered in mitigation of punishment if the Tribunal punishment if the Tribunal determines that justice so requiresdetermines that justice so requires

1977 Protocol Additional to the Geneva Conventions of 12 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I)International Armed Conflicts (Protocol I)

Art 44. Combatants and prisoners of warArt 44. Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into 1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the 2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power 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, an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.except as provided in paragraphs 3 and 4.(…)(…)

Powers Case, 1960Powers Case, 1960

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


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


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


Powers pleaded guilty and was Powers pleaded guilty and was convicted of espionage on August 19 convicted of espionage on August 19 and sentenced to three years and sentenced to three years imprisonment and seven years ofimprisonment and seven years of hard labor.hard labor.

He served one year and nine months He served one year and nine months of the sentence before beingof the sentence before being exchangedexchanged for for Rudolf Abel Rudolf Abel on on February 10, 1962February 10, 1962

Caroline caseCaroline case

a series of events beginning in 1837 a series of events beginning in 1837 that strained relations between thethat strained relations between the US and BritanUS and Britan

A group of CanadianA group of Canadian rebels, rebels, seeking seeking a Canadian republica Canadian republic, were, were forced to forced to flee to the US after leading the failedflee to the US after leading the failed Upper Canada Rebellion in Upper Upper Canada Rebellion in Upper Canada (now Ontario)Canada (now Ontario)


They took refuge on the Canadian They took refuge on the Canadian side of theside of the Niagara River, Niagara River, which which separates Ontario andseparates Ontario and New York New York and and declared themselves thedeclared themselves the Republic of Republic of CanadaCanada

American sympathizers supplied American sympathizers supplied them with money, provisions, and them with money, provisions, and arms via the steamboat SS arms via the steamboat SS CarolineCaroline..


On December 29, On December 29, two two Canadian loyalistCanadian loyalistss, , acting on information and guidance fromacting on information and guidance from Alexander McLeodAlexander McLeod, crossed the , crossed the international boundary and seized the international boundary and seized the CarolineCaroline, towed her into the current, set , towed her into the current, set her afire, and cast her adrift overher afire, and cast her adrift over Niagara Niagara Falls,Falls, after killing one black American after killing one black American


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


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

The Schooner Exchange The Schooner Exchange v. Mv. McFcFaddonaddon (1812) (1812)

The Schooner The Schooner ExchangeExchange, owned by John , owned by John M'Faddon and William Greetham, sailed M'Faddon and William Greetham, sailed from Baltimore, Maryland, on October 27, from Baltimore, Maryland, on October 27, 1809, for St. Sebastians, Spain. 1809, for St. Sebastians, Spain.

On December 30, 1810, the On December 30, 1810, the ExchangeExchange was was seized by order of Napoleon Bonaparte.seized by order of Napoleon Bonaparte.

The The ExchangeExchange was then armed and was then armed and commissioned as a public vessel of the commissioned as a public vessel of the French government under the name of French government under the name of BalaouBalaou

The Schooner Exchange The Schooner Exchange v. M'Faddonv. M'Faddon

M'Faddon and Greetham claimed that they M'Faddon and Greetham claimed that they owned the Balaou, which had docked at a owned the Balaou, which had docked at a U.S. port due to bad weather. U.S. port due to bad weather.

They believed that the They believed that the BalaouBalaou was illegally was illegally seized by the government of France. At seized by the government of France. At the time, France was involved with thethe time, France was involved with the War of 1812War of 1812


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


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


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


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

Reparation (8)?Reparation (8)?

Compensation for injuries or Compensation for injuries or breaches of international obligationsbreaches of international obligations

Perpetrators (71, 117)?Perpetrators (71, 117)?

People who commit acts (which are People who commit acts (which are often crimes)often crimes)

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

LevelLevel SecretSecret Right to enter (the territory of a Right to enter (the territory of a

State)State)

Delicts? (line 7)Delicts? (line 7)

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

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

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

Hostilities (49, 65-6)Hostilities (49, 65-6)

State of war (between States or State of war (between States or parties)parties)

Privileges (52, 60-61)Privileges (52, 60-61)

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

Belligerants (60)? Belligerants (60)? Presuppose (79)?Presuppose (79)?

People who are at warPeople who are at war Suppose or requires as a preliminary Suppose or requires as a preliminary

conditioncondition

Recognizable serviceman Recognizable serviceman (81-2)?(81-2)?

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

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

Refuse to accept as their own, say Refuse to accept as their own, say they have no connection withthey have no connection with

Responsibility regarding delictsResponsibility regarding delicts

Self-defence (113-14)? Self-defence (113-14)?

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

Territorial access (124)? Territorial access (124)? Warships (125)Warships (125)

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

Forbidden area (136)Forbidden area (136)

Area where one is not allowed to goArea where one is not allowed to go

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

Prisoner of WarPrisoner of War A type of airplane used for spyingA type of airplane used for spying International Military TribunalInternational Military Tribunal

International practice? (25-International practice? (25-6)6)

A general practice of International A general practice of International Law which is not yet accepted as Law which is not yet accepted as obligatory and has therefore not yet obligatory and has therefore not yet become a rule of customary become a rule of customary International LawInternational Law

Superior orders (31, 44)Superior orders (31, 44)

(often known as the Nuremberg (often known as the Nuremberg defense or lawful orders) defense or lawful orders) -- a a plea plea in a in a court of law that a soldier not be held court of law that a soldier not be held guilty for actions which were ordered guilty for actions which were ordered by a superior office. by a superior office.

The superior orders plea is often The superior orders plea is often regarded as the complement toregarded as the complement to command responsibilitycommand responsibility

Superior ordersSuperior orders

Nuremberg Principle IV:Nuremberg Principle IV: "The fact that a person acted "The fact that a person acted

pursuant to order of his Government pursuant to order of his Government or of a superior does not relieve him or of a superior does not relieve him from responsibility under from responsibility under international law, provided a moral international law, provided a moral choice was in fact possible to him."choice was in fact possible to him."

The 1998 Rome Statute of the The 1998 Rome Statute of the International Criminal CourtInternational Criminal Court

Article 33, titled "Superior orders and Article 33, titled "Superior orders and prescription of law:prescription of law:

1. The fact that a crime within the 1. The fact that a crime within the jurisdiction of the Court has been jurisdiction of the Court has been committed by a person pursuant to committed by a person pursuant to an order of a Government or of a an order of a Government or of a superior, whether military or civilian, superior, whether military or civilian, shall not relieve that person of shall not relieve that person of criminal responsibility unless:criminal responsibility unless:

The 1998 Rome Statute of the The 1998 Rome Statute of the International Criminal CoInternational Criminal Courturt

(a) The person was under a legal (a) The person was under a legal obligation to obey orders of the obligation to obey orders of the Government or the superior in question;Government or the superior in question;

(b) The person did not know that the (b) The person did not know that the order was unlawful; andorder was unlawful; and

(c) The order was not manifestly unlawful.(c) The order was not manifestly unlawful. 2. For the purposes of this article, orders 2. For the purposes of this article, orders

to commit genocide or crimes against to commit genocide or crimes against humanity are manifestly unlawful.humanity are manifestly unlawful.

Abbreviations?Abbreviations?

Members of armed forces of one Members of armed forces of one State who are captured and taken State who are captured and taken prisoner by another State in time of prisoner by another State in time of warwar

A type of aeroplane used for spyingA type of aeroplane used for spying International courts with jurisdiction International courts with jurisdiction

over war crimesover war crimes

Municipal law? (41)Municipal law? (41)

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

Just war (62)Just war (62)

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

Just war (62)Just war (62)

PrinciplesPrinciples:: can only be waged as a last resort. All non-can only be waged as a last resort. All non-

violent options must be exhausted before violent options must be exhausted before the use of force can be justified. the use of force can be justified.

A war is just only if it is waged by a A war is just only if it is waged by a legitimate authority. Even just causes cannot legitimate authority. Even just causes cannot be served by actions taken by individuals or be served by actions taken by individuals or groups who do not constitute an authority groups who do not constitute an authority sanctioned by whatever the society and sanctioned by whatever the society and outsiders to the society deem legitimate. outsiders to the society deem legitimate.

Just warJust war

A just war can only be fought to redress A just war can only be fought to redress a wrong suffered. For example, self-a wrong suffered. For example, self-defense against an armed attack is defense against an armed attack is always considered to be a just causealways considered to be a just cause

A war can only be just if it is fought with A war can only be just if it is fought with a reasonable chance of success. Deaths a reasonable chance of success. Deaths and injury incurred in a hopeless cause and injury incurred in a hopeless cause are not morally justifiable. are not morally justifiable.

Just warJust war

The ultimate goal of a just war is to re-The ultimate goal of a just war is to re-establish peace. establish peace. TThe peace established he peace established after the war must be preferable to the after the war must be preferable to the peace that would have prevailed if the war peace that would have prevailed if the war had not been fought. had not been fought.

The violence used in the war must be The violence used in the war must be proportional to the injury suffered. States proportional to the injury suffered. States are prohibited from using force not are prohibited from using force not necessary to attain the limited objective of necessary to attain the limited objective of addressing the injury suffered. addressing the injury suffered.

Just warJust war

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

The Nurnberg Charter? (32)The Nurnberg Charter? (32)

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

The Hague Conventions 1907? The Hague Conventions 1907? (55)(55)

Concern the conduct of war, use of Concern the conduct of war, use of force and peaceful resolution of force and peaceful resolution of conflictsconflicts

The 1977 Geneva Protocol? The 1977 Geneva Protocol? (65)(65)

Additional to the Red Cross Additional to the Red Cross Conventions of 1949 concering the Conventions of 1949 concering the treatment and recognition of POWs treatment and recognition of POWs and regulating the use of some kinds and regulating the use of some kinds of armsof arms

Sovereign States (3)?Sovereign States (3)?

States which exercise sovereignty, States which exercise sovereignty, independent Statesindependent States

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

Criminal behaviour on the part of a Criminal behaviour on the part of a StateState

Crimes which violate the laws and Crimes which violate the laws and customs of warcustoms of war

State immunity for lesser acts State immunity for lesser acts contrary to International Law? (40-contrary to International Law? (40-

41)41) The non-liability of a State in respect The non-liability of a State in respect

of less serious acts which violate of less serious acts which violate International LawInternational Law

Soldiers’ privileges (52)Soldiers’ privileges (52)

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

Guerilla activity (57)Guerilla activity (57)

Methods of fighting used by guerillasMethods of fighting used by guerillas

The foreign government The foreign government benefiting from his espionage benefiting from his espionage

(84-85)(84-85) The foreign government which gains The foreign government which gains

some advantage (benefit) from the some advantage (benefit) from the agent’s spyingagent’s spying

Complete the unfinished sentences Complete the unfinished sentences and choose the correct alternative and choose the correct alternative

from the italicised phrases:from the italicised phrases: In the Rainbow Warrior affair the In the Rainbow Warrior affair the

French Government claimed that French Government claimed that their agents (1) should/should not be their agents (1) should/should not be held liable for their acts on the held liable for their acts on the grounds that (2) grounds that (2)

they had only obeyed the orders of they had only obeyed the orders of the government which had later the government which had later claimed responsibilitclaimed responsibility.y.

Complete the unfinished sentences and Complete the unfinished sentences and choose the correct alternative from the choose the correct alternative from the

italicised phrases:italicised phrases:

The French argument was based on The French argument was based on (3) (3) International Law/ international International Law/ international practice/ municipal law.practice/ municipal law.

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

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

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

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

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

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

Whether they are popular or Whether they are popular or unpopular guerillasunpopular guerillas

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

As ordinary criminalsAs ordinary criminals

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

Foreign governments accept Foreign governments accept responsibilityresponsibility

In fact, according to the Caroline and In fact, according to the Caroline and McLeod cases, if a government McLeod cases, if a government claims responsibility for the acts of claims responsibility for the acts of its spies, the agents involved (17)___its spies, the agents involved (17)___

should not be held liableshould not be held liable

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

Thus, the ruling in Caroline and Thus, the ruling in Caroline and McLeod (19) applies/doesn’t apply in McLeod (19) applies/doesn’t apply in the Rainbow Warrior case since (20)the Rainbow Warrior case since (20)

Agents entered illegally with the Agents entered illegally with the purpose of committing illegal actspurpose of committing illegal acts

The reason for this rule is illustrated The reason for this rule is illustrated by the case of the Soviet submarine by the case of the Soviet submarine in Sweden, which shows that___in Sweden, which shows that___

Immunity from local jurisdiction Immunity from local jurisdiction derives from consent to territorial derives from consent to territorial accessaccess

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

ComprehensionComprehension

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

AnswerAnswer

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

Describe the legal position regarding Describe the legal position regarding liability for criminal acts of agents liability for criminal acts of agents

abroad in International Lawabroad in International Law The defence of superior ordersThe defence of superior orders Liability for acts in time of war: war Liability for acts in time of war: war

crimes/soldiers’ privilegecrimes/soldiers’ privilege Liability for acts in time of peace: low Liability for acts in time of peace: low

thresholds of conflictthresholds of conflict Espionage: agent immunityEspionage: agent immunity When the government accepts When the government accepts

liability: lawful entry/unlawful entryliability: lawful entry/unlawful entry

Discuss in small groups:Discuss in small groups:

1. What is your view of the legal 1. What is your view of the legal result of the Rainbow Warrior affair?result of the Rainbow Warrior affair?

Do you think the affair will have any Do you think the affair will have any positive effects for the future?positive effects for the future?

Do you think the affair will have any Do you think the affair will have any negative effects?negative effects?

Law and the Rainbow Law and the Rainbow WarriorWarrior

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

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

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

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

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

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

Answer the following:Answer the following:

Are States more or less likely to be Are States more or less likely to be held liable for torts in International held liable for torts in International Law now than in the past?Law now than in the past?

What important point does the author What important point does the author make in lines 18-24?make in lines 18-24?

In what way is the Rainbow Warrior In what way is the Rainbow Warrior settlement new and significant?settlement new and significant?

Do you agree with the author’s Do you agree with the author’s opinions?opinions?

AnswersAnswers

A) more likely – the trend is to restrict A) more likely – the trend is to restrict state immunitystate immunity

B) the Secreary General’s arbitration B) the Secreary General’s arbitration decision does not have the force of a decision does not have the force of a legal judgement. It is only a single legal judgement. It is only a single ruling by an individual in a particular ruling by an individual in a particular casecase

C) both the State and its agents were C) both the State and its agents were held liable for the agents’ unlawful actsheld liable for the agents’ unlawful acts

List all the words and phrases on List all the words and phrases on the theme of war and force (p. the theme of war and force (p.

178, 181-2, 184-5)178, 181-2, 184-5) Armed attack, war crimes, crimes Armed attack, war crimes, crimes

against peace and humanity, hostilities, against peace and humanity, hostilities, conflict, declaration of a state of war, conflict, declaration of a state of war, military personnel, soldiers’ privilege, military personnel, soldiers’ privilege, laws and customs of war, sporadic acts laws and customs of war, sporadic acts of violence, terrorism, sabotage, of violence, terrorism, sabotage, guerillas, belligerants’ privileges, just guerillas, belligerants’ privileges, just war, POW, air piracy, non-international war, POW, air piracy, non-international conflict, perpetrators of sporadic conflict, perpetrators of sporadic violence, armed conflict, lower violence, armed conflict, lower thresholds of violencethresholds of violence

Moot:Moot:Case ACase A

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

Case BCase B HMS UnionHMS Union is berthed in New York harbour under is berthed in New York harbour under

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

MootMoot

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

MootMoot

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

Who’s the boss?Who’s the boss?Speaker, Attorney-General, British Sovereign, Speaker, Attorney-General, British Sovereign,

Master of the Rolls, President, Lord Chancellor, Master of the Rolls, President, Lord Chancellor, Secretary-General, Prime MinisterSecretary-General, Prime Minister

UN SecretariatUN Secretariat House of CommonsHouse of Commons House of LordsHouse of Lords British CommonwealthBritish Commonwealth International Court of JusticeInternational Court of Justice European CommissionEuropean Commission Order of Barristers (UK)Order of Barristers (UK) Court of Appeal Civil Division (UK)Court of Appeal Civil Division (UK)

AbbreviationsAbbreviations

AGAG Attorney GeneralAttorney General MRMR Master of the RollsMaster of the Rolls HM QEIIHM QEII Her Majesty Queen Elisabeth IIHer Majesty Queen Elisabeth II


LCLC Lord ChancellorLord Chancellor CACA Court of AppealCourt of Appeal HLHL House of LordsHouse of Lords


PMPM Prime MinisterPrime Minister UN UN United NationsUnited Nations ICJICJ International Court of JusticeInternational Court of Justice

international law – use of force and espionage

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