Legal Aspects of the Rainbow Warrior Affair

Two Direction Generate de la Securite Exterieure – the French Secret Service (DGSE) agents using false names were arrested in New Zealand on 12 July 1985 and duly charged with passport and related offences. On 23 July they were further charged with conspiracy to commit arson, with willfully damaging the “ Rainbow Warrior” by means of explosives, and with the murder of Fernando Pereira, a crew member who drowned in the incident. They pleaded not guilty and were remanded in custody. In mid-August the French press identified them as Alain Mafart and Dominique Prieur. On 26 July New Zealand police also obtained warrants to arrest agents who had left New Zealand prior to the explosions. On 13 August New Zealand demanded extradition of all those involved, but the French government replied that it could not extradite French nationals. The other agents, including three who reported to the Paris police on 25 August, were never apprehended. The charges against Mafart and Prieur were altered to manslaughter and willful damage at the hearing on 4 November 1985. The agents pleaded guilty and were sentenced on 22 November to ten years’ imprisonment for manslaughter and seven years’ for willful damage, the terms to run concurrently. The French Defence Minister told them that the government would work for their release and on 28 November he urged negotiations for their return to France.

An investigation by the French government into the possibility of official involvement, published on 26 August 1985, recognized the identity and affiliation of the agents but found no evidence to indicate that their mission involved anything other than surveillance. On 6 September France notified New Zealand of its concern that Mafart and Prieur should enjoy all the guarantees of international law. After further press revelations France acknowledged on 22 September that the agents had obeyed orders, and protested that they should be exempted from blame.

Meanwhile New Zealand had notified France on 6 September that it would take legal steps to secure compensation from the French State. Further, the New Zealand Prime Minister, David Lange, said on 26 September that he had prohibited extradition of the agents and political interference in the legal proceedings. After the convictions he remarked on 16 December that New Zealand would consider repatriating the agents provided they continue to serve their prison sentences. Negotiations between New Zealand and France, which had begun on 23 September 1985, continued intermittently until 19 May 1986 when New Zealand suspended them in protest at continued economic sanctions by France.

Early in 1986 France began impeding New Zealand imports. New Zealand formally complained to France on 26 February 1986, and on 4 April the European Community Trade Commissioner upheld the complaint. France did not admit to imposing the trade barriers until 22 April.

Other European States were concerned to see the dispute resolved, but efforts at mediation were hardly possible until the facts had been ascertained and the New Zealand proceedings completed. On 12 September 1985 the European Parliament condemned secret service activity-against the “Rainbow Warrior” and demanded a full explanation from France. The UK government took little part in the dispute but on 24 September 1985 called on France to settle compensation without delay. Between 31 May and 2 June, Ruud Lubbers, President of the European Council of Ministers and Prime Minister of the Netherlands, explored with the parties a proposal for independent arbitration.

France and New Zealand announced on 19 June that they had agreed to refer all matters without precondition to arbitration by the UN Secretary-General. The ruling was completed on 6 July 1986 and signed on 9 July. It required France to apologize and pay a fixed sum to New Zealand; required New Zealand to transfer Mafart and Prieur into French custody, and enjoined France not to impede New Zealand exports to the European Community. The terms were carried out on 22-23 July 1986, and France subsequently abided by the ruling on New Zealand exports.

France reached a settlement with the family of Fernando Pereira on 12 November 1985, encompassing a formal apology, compensation totaling 2.3 million francs, and reimbursement of the insurers. France and Greenpeace agreed on 19 December 1985 to negotiate damages – France having admitted legal liability on 10 December. Unable to reach agreement, they referred the matter to a panel of three arbitrators on 10 July 1986. A ruling was still awaited in May 1987.

The “Rainbow Warrior” sinking did not have serious consequences for peace. It was an officially inspired military operation with strictly limited intentions. Nevertheless, since the UN Charter was signed inter­national lawyers have increasingly addressed the problem of low-level uses of force. French action clearly fell within the broad concept of “international delinquency” encompassing acts short of belligerency such as “violation of the dignity of a foreign State, violation of foreign territorial supremacy, or any other internationally illegal act”. The attack and the infringement of New Zealand sovereignty were universally condemned as contrary to international law, and the French government’s Memorandum presented to de Cuellar conceded in Section 5 that the abuse of New Zealand sovereignty had been illegal.

The French government initially claimed that its agents had merely engaged in “surveillance”. A more accurate description, given the covert nature of the job, would be “spying”. Unfortunately, as Richard Falk observed: “traditional international law is remarkably oblivious to the peacetime practice of espionage”; and while Articles 29-31 of the 1907 Hague Convention deal with spying in wartime, there is no peacetime equivalent. Many jurists, however, would agree with Falk who characterized espionage as illegal but tolerated in many countries. By contrast, Julius Stone argued that spying itself was not illegal- as distinct from the collateral activity such as territorial intrusion. Stone advocated “reciprocally tolerated espionage” for the superpowers as a kind of confidence-building measure. But such an approach is inappropriate to New Zealand and France for whom, as far as one can tell, reciprocal spying is hardly an assumed aspect of their relationship. In the event the New Zealand authorities ignored the “surveillance” by French agents and concentrated on the attack itself.

Michael Pugh, “Legal Aspects of the Rainbow Warrior Affairs”, International and Comparative Law Quarterly, Vol. 36, July 1987

Notes:

20. Twelve of the facts stated are wrong - can you find the mistakes?

The Rainbow Warrior Affair: Summary of the Facts