## Facts

- On July 10, 1985, the Greenpeace vessel *Rainbow Warrior* was bombed and sunk while moored in Auckland Harbour, New Zealand; photographer Fernando Pereira drowned.
- Two explosive devices were used; the operation was carried out by agents of France’s external intelligence service (DGSE).
- New Zealand arrested DGSE agents Major Alain Mafart and Captain Dominique Prieur; on November 4, 1985 they pleaded guilty in a New Zealand court to charges including manslaughter and wilful damage, and each received a ten-year prison sentence.
- France publicly acknowledged responsibility; a September 22, 1985 communiqué confirmed that the sinking was carried out by DGSE agents acting on instructions.
- New Zealand sought reparation (including an official apology and monetary compensation) and wanted the agents to remain subject to the New Zealand sentences; France sought their removal from New Zealand custody and disputed any requirement that New Zealand sentences be served in France.
- After diplomatic negotiations failed, in June 1986 both governments jointly referred “all the problems between them arising from the Rainbow Warrior affair” to the UN Secretary-General (Javier Pérez de Cuéllar) for a ruling, and each undertook to accept and carry it out.
- The Secretary-General received written submissions from both States and issued a binding ruling on July 6, 1986.

## Issues

1. Whether France bore international responsibility for an operation by its agents against a civilian vessel in New Zealand’s internal waters, and whether the conduct violated New Zealand’s territorial sovereignty.
2. What reparation France owed New Zealand, including the form of satisfaction (apology) and the amount and payment of financial compensation.
3. How the two convicted French agents were to be dealt with, including whether they could be transferred out of New Zealand and what restrictions would apply if transferred.
4. Whether trade and political matters raised by the parties formed part of the overall dispute to be addressed in the settlement.
5. Whether any later dispute about the interpretation or application of the arrangements made to implement the ruling had to be submitted to binding arbitration.

## Decision

- The Secretary-General treated France’s conduct—an operation by French service agents under official orders against a civilian vessel in New Zealand’s internal waters—as a violation of New Zealand’s territorial sovereignty engaging France’s international responsibility.
- France was required to provide an official apology to New Zealand.
- France was required to pay financial compensation to New Zealand in the fixed amount of US$7 million.
- The two French agents were to be removed from New Zealand and transferred to a French military facility on Hao Atoll (French Polynesia) for a period of three years, subject to conditions intended to ensure effective deprivation of liberty.
- France assumed responsibility for keeping the agents on Hao under the agreed restrictions; departures were limited to narrowly defined circumstances.
- New Zealand, in return, accepted the transfer and undertook not to seek the agents’ extradition during the three-year period so long as France fulfilled the confinement regime.
- The ruling required that any later dispute concerning the interpretation or application of the agreements concluded as a result of the ruling be submitted to an arbitral tribunal at the request of either State.

## Legal Principles

- Acts of state agents carried out on official instructions are attributable to the State for purposes of international responsibility, including covert security operations.
- A deliberate operation on another State’s territory or in its internal waters, causing death and property damage, breaches territorial sovereignty and gives rise to responsibility.
- Reparation for an internationally wrongful act may include satisfaction (such as an official apology) and compensation in money.
- Where parties consent, a third party (here, the UN Secretary-General) may issue a binding ruling to settle an interstate dispute outside formal judicial proceedings.
- A settlement may include detailed, enforceable terms on the treatment of individuals (such as transfer and confinement conditions) to reconcile an injured State’s interest in enforcement of its criminal process with the responsible State’s concerns about custody.
- States may bind themselves to submit later disputes about the meaning or operation of implementing agreements to compulsory arbitration.

## Conclusion

In his July 6, 1986 ruling, the UN Secretary-General resolved the dispute arising from France’s state-directed sinking of the *Rainbow Warrior* in New Zealand’s internal waters by ordering satisfaction and compensation and by creating a binding regime for the transfer and three-year confinement of the two convicted DGSE agents on Hao Atoll, with any later disagreements over the implementing arrangements to be decided through arbitration.


Differences Between New Zealand & France Arising from the Rainbow Warrior Affair, Ruling of the Sec’y-Gen. of the U.N. (July 6, 1986), 26 I.L.M. 1346 (1987).