The Sinking of the Rainbow Warrior

The sinking of the Rainbow Warrior was an operation by the “action” branch of the French foreign intelligence services, the Direction Générale de la Sécurité Extérieure (DGSE), carried out on July 10, 1985. It aimed to sink the flagship of the Greenpeace fleet, the Rainbow Warrior in the port of Auckland, New Zealand, to prevent her from interfering in a nuclear test in Moruroa.

The Rainbow Warrior Case was a dispute between New Zealand and France that arose in the aftermath of the sinking of the Rainbow Warrior. It was arbitrated by UN Secretary-General Javier Pérez de Cuéllar in 1986, and became significant in the subject of Public International Law for its implications on State responsibility.

On July 10, 1985, the Greenpeace ship Rainbow Warrior, which was due to sail to Moruroa Atoll to protest French atmospheric nuclear-weapons tests there, was sunk by two bomb explosions while berthed in Auckland Harbour, N.Z. Subsequent revelations that French intelligence agents had planted the bombs caused a major international. This day’s attack on the Rainbow Warrior was carefully calculated to avoid casualties. The first would be small: a “warning shot” to give people time to get off the boat; the second would sink it.

A support team of agents posing as tourists would ensure that the explosives and the frogmen spent as little time together as possible. In July 1985 a team of French agents sabotaged and sank the Rainbow Warrior, a vessel belonging to Greenpeace International, while it lay in harbour in New Zealand. One of the 11 crew members on board has been killed. He has been named as Portuguese photographer Fernando Pereira [1] . Two of the agents, Major Mafart and Captain Prieur, were subsequently arrested in New Zealand and, having pleaded guilty to charges of manslaughter and criminal damage, were sentenced by a New Zealand court to ten years’ imprisonment [2] . A dispute arose between France, which demanded the release of the two agents, and New Zealand, which claimed compensation for the incident. New Zealand also complained that France was threatening to disrupt New Zealand trade with the European Communities unless the two agents were released.

The two countries requested the Secretary-General of the United Nations to mediate and to propose a solution in the form of a ruling, which both Parties agreed in advance to accept. The Secretary-General’s ruling, which was given in 1986, required France to pay US $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities [3] . The ruling also provided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next three years on an isolated French military base in the Pacific. The two States concluded an agreement in the form of an exchange of letters on 9 July 1986 (“the First Agreement”) [4] which provided for the implementation of the ruling. Under the terms of the First Agreement, Major Mafart and Captain Prieur were to be transferred to a French military facility on the island of Hao for a period of not less than three years. They will be prohibited from leaving the island for any reason, except with the mutual consent of the two governments [5] .

New Zealand Versus France: Conciliation And The Secretary-General’s Regime:

In terms of legal interest, a central aspect of the legal process arising from the Rainbow Warrior incident was the resolution of the claims made by New Zealand against France. In itself, the outcome was of interest as an example of the use of the office of UN Secretary-General in the role of conciliation, following the inability of the parties to reach a negotiated settlement.

State Responsibility (1st Issue)

The issue was in principle one of State responsibility and thus a matter of applying rules of international law; but, as already noted, some of the arguments and therefore the resolution impinged on the operation of other legal orders, most obviously national criminal law within New Zealand and France, and less directly rules and procedures within the EC legal order. Conciliation is an established method of dispute settlement in international law; usually the proposed settlement made by a conciliator is not legally binding on the parties, but in this case France and New Zealand agreed in advance to accept the Secretary-General’s rulings [6] .

On 6 July 1986, the Secretary-General of the United Nations

Issued the following:

Ruling

The issues that I need to consider are limited in number. I set out below my ruling on them, which takes account of all the information available to me. My ruling is as follows:

Apology

New Zealand seeks an apology. France is prepared to give one. My ruling is that the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the “Rainbow Warrior” by French service agents which took place on 10 July 1985.

Two Agents (2nd Issue)

The two French service agents it is on this issue that the two Governments plainly had the greatest difficulty in their attempts to negotiate a solution to the whole issue on a bilateral basis before they took the decision to refer the matter to me.

The French Government seeks the immediate return of the two officers. It underlines that their imprisonment in New Zealand is not justified, taking into account in particular the fact that they acted under military orders and that France is ready to give an apology and to pay compensation to New Zealand for the damage suffered.

The New Zealand position is that the sinking of the “Rainbow Warrior” involved not only a breach of international law, but also the commission of a serious crime in New Zealand for which the two officers received a lengthy sentence from a New Zealand court. The New Zealand side states that their release to freedom would undermine the integrity of the New Zealand judicial system. In the course of bilateral negotiations with France, New Zealand was ready to explore possibilities for the prisoners serving their sentences outside New Zealand.

But it has been, and remains, essential to the New Zealand position that there should be no release to freedom, that any transfer should be to custody, and that there should be a means of verifying that. The French response to that is that there is no basis either in international law or in French law on which the two could serve out any portion of their New Zealand sentence in France, and that they could not be subjected to new criminal proceedings after a transfer into French hands.

On this point, if I am to fulfil my mandate adequately, I must find a solution in respect of the two officers which both respects and reconciles these conflicting positions.

My ruling is as follows:

(a) The Government of New Zealand should transfer Major Alain Mafart and Captain Dominique Prieur to the French military authorities. Immediately thereafter, Major Mafart and Captain Prieur should be transferred to a French military facility on an isolated island outside of Europe for a period of three years.

(b) They should be prohibited from leaving the island for any reason, except with the mutual consent of the two Governments. They should be isolated during their assignment on the island from persons other than military or associated personnel and immediate family and friends. They should be prohibited from any contact with the press or other media whether in person or in writing or in any other manner. These conditions should be strictly complied with and appropriate action should be

Taken under the rules governing military discipline to enforce them.

(c) The French Government should every three months convey to the New Zealand Government and to the Secretary-General of the United Nations, through diplomatic channels, full reports on the situation of Major Mafart and Captain Prieur

In terms of the two preceding paragraphs in order to allow the New Zealand Government to be sure that they are being implemented.

(d) If the New Zealand Government so requests, a visit to the French military facility in question may be made, by mutual agreement between the two Governments, by an agreed third party.

(e) I have sought information on French military facilities outside Europe. On the basis of that information, I believe that the transfer of Major Mafart and Captain Prieur to the French military facility on the isolated island of Hao in French Polynesia

Would best facilitate the enforcement of the conditions which I have laid down in paragraphs (a) to (d) above; my ruling is that this should be their destination immediately after their transfer [7] .

France, for its part, points out that New Zealand’s request calls into question France’s international responsibility towards New Zealand and that everything in this request is characteristic of a suit for responsibility; therefore, it is entirely natural to apply the Law of Responsibility.

Treaty (3rd Issue)

The French Republic maintains that the Law of Treaties does not govern the breach of treaty obligations and that the rules concerning the consequences of a “breach of treaty” should be sought not in the Law of Treaties, but exclusively in the Law of Responsibility. France further states that within the Law of International Responsibility, “breach of treaty” does not enjoy any special status and that the breach of a treaty obligation falls under exactly the same legal regime as the violation of any other international obligation.

In this connection, France points out that the Vienna Convention on the Law of Treaties is constantly at pains to exclude or reserve questions of responsibility, and that the sole provision concerning the consequences of the breach of a treaty is that of Article 60, entitled “Termination of a treaty or suspension of its application as a result of breach”, but the provisions of this Article are not applicable in this instance. But even in this case, the French Republic adds, the State that is the victim of the breach is not deprived of its right to claim reparation under the general Law of Responsibility. France points out, furthermore, that the origin of an obligation in breach has no impact either on the international wrongfulness of an act nor on the regime of international responsibility applicable to such an act; this approach is explained in Article 17 of the draft of the International Law Commission on State Responsibility [8] .

According to the arbitrator, Max Huber, it is an indisputable principle that responsibility is the necessary corollary of rights. All international rights entail international responsibility.

Armstrong Cork Company case [9] In the Rainbow Warrior case [10] the Arbitral Tribunal stressed that .any violation by a State of any obligation, of whatever origin, gives rise to State responsibility [11] .

It is true that there were early differences of opinion over the definition of the legal relationships arising from an internationally wrongful act. One approach, associated with Anzilotti, described the legal consequences deriving from an internationally wrongful act exclusively in terms of a binding bilateral relationship thereby established between the wrongdoing State and the injured State, in which the obligation of the former State to make reparation is set against the .subjective. right of the latter State to require reparation. Another view, associated with Kelsen, started from the idea that the legal order is a coercive order and saw the authorization accorded to the injured State to apply a coercive sanction against the responsible State as the primary legal consequence flowing directly from the wrongful act [12] According to this view, general international law empowered the injured State to react to a wrong; the obligation to make reparation was treated as subsidiary, a way by which the responsible State could avoid the application of coercion. A third view, which came to prevail, held that the consequences of an internationally wrongful act cannot be limited either to reparation or to a sanction [13] . In international law, as in any system of law, the wrongful act may give rise to various types of legal relations, depending on the circumstances.

Compensation (4th Issue)

New Zealand seeks compensation for the wrong done to it, and France is ready to pay some compensation. The two sides, however, are some distance apart on quantum. New Zealand has said that the figure should not be less than US Dollars 9 million, France that it should not be more than US Dollars 4 million. My ruling is that the French Government should pay the sum of US Dollars 7 million to the Government of New Zealand as compensation for all the damage it has suffered.

Recommendation

The act of france was not the breach of International Law because International law allow every country that they have the right to do such type of necluar experiments in there own terriorty, for their sovergnity. French governamnet claimed that the Secretary General has granted duoble reparartion for moral grounds.

It’s been a long time since that event, and my memories are kind of hazy. But I think that the French government considered Greenpeace to be “terrorists” because they protested, and planned to sabotage, the French nuclear weapons tests in the South Pacific.

Conclusion

Greenpeace is a cheap organisation dedicated to catching newspaper headlines than doing any solid environmental work. They just seek to show off how much they care about environment, sometimes putting animals before people. Some of you may have heard about the Inuit who lost their livelihood because Greenpeace had seal hunting banned. The seals the Inuit were hunting were actually overabundant and they never hunted more than necessary as they were not corporations. However some media obsessed ass decided that seals looked to cute and to hell with the Inuit and started off a campaign to ban seal hunting.

A British Member of the European Parliament (MEP) was filmed at last year’s climate change summit in Copenhagen congratulating the French for bombing the Greenpeace ship the Rainbow Warrior. The former Tory cabinet minister, and MEP for Yorkshire had also earlier said climate change was “a stinking ruse to put cash and power into the hands of political elites”. Bloom, who sits on the EU’s environment committee, when speaking to the Guardian, accused the green movement of killing “tens of thousands” of people a year. “I am fed up with eco-fascism. How many old people die of hypothermia each year because our fuel is the most expensive in the world as a direct result of greenies not letting us develop cheap sources of power? The green movement has killed thousands of people a year by their misguided understanding of global energy [14] .”