KRM 220 Exam - Section B Part 2 PDF

11 ● •Enforced sterilization may amount to genocide - If intened to be ○ A genocidal context to prohibit men from being able to procreate with the intent to destroy their ethnic group. Study unit 7 Define the concept ‘child soldier’ and discuss the complexities associated with defining the conce...

11 ● •Enforced sterilization may amount to genocide - If intened to be ○ A genocidal context to prohibit men from being able to procreate with the intent to destroy their ethnic group. Study unit 7 Define the concept ‘child soldier’ and discuss the complexities associated with defining the concept. International community defines child soldier as “any person under the age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers, and those accompany such groups, other than purely as family members” Problem with defining child soldier: 1. Childhood is culturally constructed and varies across societies; 2. In many non-Western societies a person may be regarded as an adult once certain ceremonies and rite of passage have been done; 3. Girl child becomes an adult when with her marriage and young man after the death of his father. 4. Many societies regard children as competent ‘young adult’ 5. Military participation is conceptualised as part of becoming an adult and under-18year olds are encouraged to take part in military activities. 6. Implications for disarmament, demobilization and reintegration (DDR) programmes Provide reasons why children become involved in armed conflict. 1. 2. 3. 4. 5. 6. 7. Forced recruitment Family considerations- push and pull factors Hopes of earning money Power, glamour and excitement Out of disaffection with a political, social, economic systems that have failed them Lack of educational opportunities Ideology and political socialisation exert strong influence over youth’s decision to join armed forces 12 Discuss the recruitment process of child soldiers and the notion of ‘voluntary’ recruitment. Question of accountability ● Is there voluntary recruitment in the case of child soldiers ○ If so, can they be held responsible for their actions? International community on voluntary recruitment ● Due to: ○ Desperation ○ Manipulation ○ Lacking cognitive skills to make a choice ● Possibility that children actually join an armed group on a voluntary basis ○ War often creates new social, economic and political systems and relationships that may compel children to enlist on a voluntary basis. ■ If we assume children have some form of free choice, can they be held responsible for their actions? ● Under 18 combatants - Play an active and critical role in political and military movements, with little direct coercion from adults. ● Voluntary factors - Can serve as a window into young people’s underlying concerns, grievances, needs and aspirations. Discuss the criminal responsibility of child soldiers. ● Article 12 of the UN Convention of the rights of children ○ ● ● Addresses the right of children to ‘express…views freely in all matters affecting [them]’, which some have interpreted as an indirect recognition of children’s agency, suggestions that children also have accountability when it comes to participating in armed conflict are often countered by the international community UN stated that former child soldiers are victims of criminal policies for which adults are responsible ○ Shared view that children should not be detained or prosecuted, but treated as victims by virtue of their age and forced nature of their association Amnesty international 13 ○ Before any model of justice can be applied, an assessment of the child’s awareness of the choices open to him or her should be concluded. Provide an overview of the retributive and restorative justice models in prosecuting child soldiers. Two models of justice that address the issue of child soldiers in relation to the issue of culpability 1. šRetributive model a. Wrongdoers should be held accountable for their crimes through punishment b. Severity of punishment should be proportional to the seriousness of the crime c. If criminals are not punished, a climate of impunity is created i. Child soldiers pose a threat in exactly the same way as adults combatants ii. Model has been applied following the 1994 genocide in Rwanda and in the Congo iii. Trying children in courts could significantly add to their potential stigmatisation and might lead to difficulties with reintegration. 2. Restorative justice model a. Attempts to make restitution b. Is harmonious with many African societies’ norms of justice c. However, many of the existing restorative justice processes are currently not tailored to children d. Acknowledgement for the need for accountability and some form of justice e. Retributive justice should be a last resort necessity for justice is not reflected in child-centred DDR programmes i. By emphasising the innocence of child soldiers, it may not fully satisfy the needs of the victims or the general community to which these children return ii. Holding former child soldiers accountable for their actions might help direct victims and community members find peace and move forward. 14 f. Severity of punishment should be proportional to the seriousness of the crime g. Victims’ quest for justice cannot be secondary to the rehabilitation of child soldiers Discuss girl’s involvement and initiation into armed conflict ● Recruitment ○ Voluntary recruitment: religious or political beliefs, to obtain food, shelter, medicine and to seek revenge ○ Join as they perceive the armed group as providing protection from violence or protection from unwanted marriages & sexual abuse ○ Girls may choose to join armed forces in search of empowerment and emancipation in societies and cultures that enforce rigid and confining gender roles. ○ Many girls are forcibly abducted into armed groups ○ Girls in particular, are highly valued by armed groups: ■ Highly obedient ■ Easily manipulated ● ○ They can swell the ranks if there is a shortage of adults, and ensure a constant pool of forced and compliant labour. Girls and boys do not require payment, do not have families to support, and their presence may pose moral challenges to enemy forcesš ● ● Training ○ Involved in some form of military training to support the armed group. ○ Support the everyday functioning of armed groups that included pillaging techniques following an attack, loading and dismounting arms, defence techniques, accompanying male soldiers, sabotage, midwifery, welcoming, rousing, singing and dancing for special events. Role allocation ○ Girls required to perform an array of tasks to support the activities of the armed group 15 ● ○ Duties often varied according to their age, physical strength, and the circumstances of the armed group, but tended to involve domestic work, sexual slavery, and combat activities. ○ Girls’ roles were multiple and fluid, most often carrying out a variety of roles and tasks simultaneously. ○ Girls are often the last members to be released by rebel groups, demonstrating their high value and worth Role allocation ○ ○ ○ Domestic & supporting work: ■ Armed groups cannot function without domestic work. ■ The domestic activities and loads carried by girls are invaluable to the very survival and success of a fighting force. ■ Failing to perform one’s domestic duties in a timely or efficient manner often led to harsh punishment, and in some cases, death. ■ Girls’ responsibilities included cooking, washing dishes, fetching water and firewood, laundering, and taking care of younger children. ■ Girls in fighting forces often deliberately excelled at their domestic and/or supporting roles in order to avoid being sent into combat. Sexual Slavery: ■ Nearly all abducted girls are raped and girls associated with fighting forces almost universally report sexual violence. ■ Girls were at extremely high risk for sexually transmitted diseases including HIV/AIDS, as well as an array of reproductive health problems. ■ Many girls were reportedly forced to ‘marry’ individual males within the fighting forces, essentially becoming the (sexual) ‘property’ of specific males. ■ The sexual exploitation of girls also came in the form of sexual labour Combat activities: ■ Combat activities were a significant part of the duties of many girls associated with fighting forces. ■ Girls were forced to participate in combat only in situations where there was a lack of military power on the side of the fighting forces. 16 ■ A minority of girls also gained powerful positions as leaders and commanders of other combatants. ■ Critical and related military functions: trainers for incoming recruits, intelligence officers, spies, recruiters, medics, first aid technicians, and weapons experts. ■ ‘wives’ and ‘fighters’ should not be viewed as exclusive categories Discuss the victimisation, culture of violence and insecurities experienced by girl child soldiers. ● ● ● ● ● ● ● ● ● ● ● ● ● Women and girls experience armed conflict differently than men and boys Females usually being the most insecure, disadvantaged and marginalised. For girls in fighting forces, the chronic quest for safety and security, regardless of the nature of their roles, is particularly challenging due to the vulnerability exacerbated by their gender, age and physical disadvantage. Extreme forms of violence that appeared to pervade both the formal and informal cultures of the armed groups Both the formal structures and the informal practices of the armed groups ultimately point to a pervasive and overarching culture of violence whereby violence and the threat of violence appeared to permeate every aspect of girls’ daily lives The violence and victimisation experienced by girls ranged along a continuum from verbal abuse to outrageous acts of cruelty and reflected the patriarchal power relations and gendered oppression inherent in the armed group Girls, who were ultimately subservient to male authority, suffered severe physical abuse at the hands of those who commanded them. They were also witnesses to brutal forms of violence against men, women and children, both combatants and civilians. An aura of terror, repeatedly articulated, was a key factor in ensuring cohesion and obedience within the group. Girls’ experiences of violence brought forth a profound sense of insecurity on a multitude of levels The security of girls in fighting forces was constantly at risk within a multitude of domains. Girls’ experiences reveal that as child combatants, they were often simultaneously perpetrators and victims of violence. The plight of girl combatants was complex: as they perpetrated acts of violence, they concurrently remained victims of coercion, terror and deception Girl combatants appeared to continually drift between committing acts of violence, and simultaneously being victims of violence by others 17 ● Discuss the exclusion of girl child soldiers from Disarmament, Demobilisation and Reintegration (DDR) Programming. ● Much attention has been directed towards the demobilisation of child combatants, the reunification of families, the reconstruction and expansion of national educational systems, and the integration of young people into productive community life. ● There are clear indications that girls formerly associated with fighting forces continue to be marginalised within such initiatives ● DDR programmes are characterized by gendered exclusion by privileging male combatants at the expense of women and girls in fighting forces. ● DDR is crucial to increasing security, public safety and protection in the aftermath of conflict, as well as promoting peace. ● DDR programming was planned specifically for male combatants; there was no official recognition of girls’ military status, girls often had no guns to hand in, and were regarded as too young to be considered as soldiers. Moreover, girls were said to be involved with ‘women’s work’ that did not qualify for demobilisation benefits. ● Given that girls’ salient roles within armed groups were not formally acknowledged or recognised, the vast majority of girls in fighting forces were excluded from DDR. As a result, many girls experienced ‘spontaneous reintegration’ whereby in the aftermath of the conflict girls were forced to assimilate directly into their communities, return to new communities, or drift to camps for the internally displaced in search of alternative forms of support. ● Without formal mechanisms of assistance, spontaneous reintegration left most girls to fend for themselves and their children under particularly extremely challenging circumstances ● Provide an overview of health issues; social exclusion and community rejection; and educational issues experienced by girl child soldiers ● Health issues ○ War-affected girls suffer severe physical and psychological health problems post-conflict. 18 ○ ○ ○ ○ ○ ○ Chronic head and stomach aches, problems from war-related wounds and beatings, malaria, tuberculosis, cholera, diarrhoea, parasitic infections and malnutrition. Girls also experienced gender-specific health problems that were directly related to wartime sexual violence. Gynaecological problems as a result of rape included genital injury, infections, vesico-vaginal fistula, and complications from self-induced or clandestine abortions. Girls were also at high risk for sexually transmitted diseases including HIV/AIDS. There are devastating psychological after-effects of wartime sexual violence. Despite these many health problems, services, particularly reproductive health services, are seldom available to girls. The lack of accessible health facilities, and lack of money for transport, medical treatment and drugs has meant that the health status of survivors of sexual violence is often poor. ● Social exclusion & community rejection ● Family and/or community support is undeniably critical to war-affected children’s long term well-being and overall successful reintegration. ● A trusting relationship with a caring adult, as well as living with parents, may be a critical factor in children’s recovery from the scourge of war. ● Girls appeared to have higher rates of rejection by community members than their male counterparts. ● Girl’s reintegration into the community post-conflict appears to be impacted by the pattern of how she was taken into a fighting force, the military role she played and the way in which she returned ● Behaviour girls learned within the armed groups, which ultimately helped them survive the armed conflict, may hinder their reintegration into their communities. ● Behaviours that severely violate accepted gender norms—such as being aggressive, quarrelsome, using abusive language, abusing drugs and smoking—appear to have an impact on a girl’s ability to readapt to her community and on the community’s response to her. ● Girls appeared to suffer rejection not only as a result of their former affiliation with the armed group, but also because they had been victims of sexual violence ● Given the importance placed upon virginity at marriage, girls were often deemed ‘unmarriageable’ following disclosures of rape ● Two important factors: spiritual and religious rituals 19 ○ Rituals can thus facilitate the process of healing, reconnect the child to the community, facilitate social reintegration, and positive psychosocial effects. ○ Community-cleansing rituals helped children to successfully reintegrate into their communities.91 Rituals were said to provide the children with a feeling of acceptance, importance, and an opportunity to begin fresh following the scourge of war. ■ ○ ● Cleansing rituals may be exclusionary. Girls also ensured their post-conflict reintegration through the creation of informal support structures and peer-support networks Educational issues ○ In the aftermath of conflict, thousands of girls and boys have no skills beyond those they had acquired in fighting or in surviving the conflict. ○ Girls continue to be the least educated sector of the population in most developing countries. ○ From a child rights perspective, education is regarded as essential for instilling stability and normalcy in the lives of children who have experienced the trauma of civil war. ○ Other forms of education is widely seen as a significant ‘life-affirming activity’ that can restore hope and purpose among children who have been emotionally and often physically overcome by the scourge of war. Study unit 8 Distinguish maritime terrorism from piracy. ● Often lies in the eye of the beholder - How one state perceives these threats may be vastly different from how another state perceives them. ● Lack of definitional consensus has significant implications and impedes sound policy development. ○ Difficult to prevent and deal with ● Overlap of characteristics of maritime terrorism and piracy ● NB to gain a better understanding and appreciation for those maritime threats and the challenges they pose to the policymakers and seafarers 20 ● Maritime terrorism - Violent act carried out by those on sea ○ ● Acts of war by rouge individuals with specific ideology Piracy - Violent act carried out by those on sea ○ Criminal activities committed in sense of gaining profit Define maritime terrorism according to the International Maritime Bureau and the Council for Security Cooperation in the Asia Pacific. ● IMB (international maritime bureau) defines piracy as any “act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in furtherance of that act.” ● Maritime terrorism is defined by CSCAP (Council of security cooperation in the Asian pacific) as: ○ The undertaking of terrorist acts and activities ○ Within the maritime environment ○ Using or against vessels or fixed platforms at sea or in the port, or against anyone of the passengers or personnel against coastal facilities or settlements, including tourist resorts, ports areas and port towns or cities. Discuss the motives for maritime terrorism. ● Maritime terrorism is political in aims and motives. ● Terrorists may conduct maritime attacks to fund onshore operations Provide an exposition of the targets and modus operandi utilised by maritime terrorists. ● Targets chosen fall into four categories: a. Ships as iconic targets – symbolic to the target state that the attack is directed towards (naval warship) b. Ships as economic targets – those that when attacked may disrupt the economic activity of the adversarial state (e.g. oil tankers). 21 c. Ships as mass casualty targets – ship carrying a large amount of passengers (e.g. cruise ship) d. Ships as weapons – by driving the ship into another ship, potentially one that has volatile cargo ● ● An attack on any of these targets has the potential to cause chaos and spread fear among the population Methods of attack: a. Terrorists often use small boats to carry out attacks against unsuspecting ships because of: ■ Their speed and acceleration ■ Manoeuvrability ■ Ability to evade radar detection ■ Less expensive and less conspicuous ● Unlike pirates, terrorists are less likely to board the ship. ● Considering that terrorists are politically rather than economically driven, they are more likely to destroy the ship to send a political message to their adversaries ■ Less likely to board the ship b. Pirates methods of attack ■ Stalk ■ Site ■ Stop ■ Shock ■ Smother ■ Secure ■ Search ■ Snatch ■ Scram Discuss the defining characteristics of maritime terrorism. ● ● ● Violence or the threat of violence in pursuance of their acts A need for funding to sustain their operations; And a land-based component to support these activities 22 Discuss the nature of maritime terrorist threats. ● ● ● ● ● ● ● ● Legal and jurisdictional weakness Geographical necessity Inadequate security Secure base area Maritime tradition Charismatic and effective leadership State support Promise of reward Study Unit 9 Define torture according to the UN Convention against Torture and Cruel, Inhumane and Degrading Treatment or Punishment (CAT). ● Torture - Means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person: information or a confession. ○ Punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ○ It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. ■ Claiming suffering mentally in prison Discuss the four conditions that are required for an act to qualify as torture. 1. It must result in severe mental and/or physical suffering. a. Has to be severe but isn’t standard for everyone b. Mental EG - threatening to harm a person’s family 23 2. It must be inflicted intentionally a. For such purposes as obtaining information, a confession, or punishment, intimidation, or motivated by reasons of discrimination. 3. It must be committed by, or with the consent or acquiescence of a public official. a. Can be committed directly by state official or with consent of state official b. Can also occur if a state official omits or fails to do something that could have prevented the infliction of severe mental and/or physical suffering upon another person by nonstate actors. 4. It excludes pain and suffering as a result of lawful actions a. The fact that something is ‘lawful’ does not mean that it is necessarily consistent with the objectives of CAT i. Corporal punishment but CAT treaty signed Discuss the duties of South Africa under CAT. 1. The duty to prevent torture and CIDT a. Because we signed Convention b. Legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction c. Encourages the state to use the established and accepted means at its disposal (legislative, administrative and judicial) to prevent torture and then provides the mandate to use any other measures that are effective in preventing torture 2. The duty to abide by the peremptory norm a. Fundamental principle within international law and accepted by international community as a norm b. No jurisdiction that torture may be used i. Even if there is 1. a state of war 2. the threat of war 3. internal political instability 4. any public emergency 5. orders from a superior officer 24 3. The duty to protect foreign nationals a. When people’s safety and lives are endangered, they have the right to leave that state and be permitted entry into the first country they come to where they fear no persecution b. Allow foreign nationals entry and protection provided that they have a well founded fear of persecution should they remain in the country of origin. c. Non-refoulement is a principle of customary international law that prohibits states from returning a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 4. The duty to criminalise torture in domestic law a. A duty to take effective legislative, administrative, judicial or other measures to prevent acts of torture 5. The duty to either prosecute or extradite 6. The duty to educate and train all personnel a. States Parties to take a range of measures to prevent torture b. Information and education on preventing is NB i. Specifically officials who are involved in the custody, interrogation and treatment of individuals subject to arrest, detention or imprisonment that must be properly trained in this regard 7. The duty to investigate a. Ensuring that there is no safe haven for perpetrators of torture is a central objective of the Convention b. Obligated to arrest or take other legal measures against those suspected of torture 8. The duty to accept complaints and protect witnesses and victims a. Gives everyone who claims to have been tortured or subjected to CIDT the right to complain and to have the case examined promptly and impartially by the competent authorities b. Protect from secondary victimisation c. Any complaints mechanism should thus be accessible to victims 25 9. The duty to ensure redress to victims of torture a. Each State Party ensure that the victim of torture obtains redress under the legal system of that State Party. The victim must have an enforceable right to fair and adequate compensation and is entitled to be given an opportunity to rehabilitate as fully as possible b. moral, monetary and medical i. Must be adequate c. Restitution ‘should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.’ d. Compensation places the emphasis on monetary compensation that must be appropriate and proportional to the gravity of the violation that has occurred. To determine compensation the following variables are important: physical or mental harm; lost opportunities, including employment, educational and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services. e. Rehabilitation should include medical and psychological as well as legal and social services. f. Satisfaction should include any or all of the following: i. - effective measures aimed at stopping continued violations; ii. - verification of the facts and full and public disclosure of the truth of the violation, provided that such a disclosure does not pose a risk to the victim, the family of the victim or witnesses; iii. - a search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; iv. - an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; 26 v. - a public apology, including acknowledgement of the facts and acceptance of responsibility g. Guarantees of non-repetition should include any or all of the following: i. - ensuring effective civilian control of military and security forces; ii. - ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality iii. - strengthening the independence of the judiciary; - protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; iv. - providing, as priority and on a continued basis, human rights and international humanitarian law education to all sectors of society, and training for law enforcement officials as well as military and security forces; v. - promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; vi. - promoting mechanisms for preventing and monitoring social conflicts and their resolution; vii. - reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law 10. The duty to reject statements obtained under torture a. Cannot assume true 11. The duty to report on measures taken a. Common core document that describes human rights Provide examples of methods that can be utilised to impose physical or psychological suffering. ● Common methods of physical torture: ○ ○ Beating Electric shocks 27 ○ ○ ○ ○ ○ Stretching Submersion Suffocation Burns Rape and sexual assault. ● Psychological forms of torture and ill-treatment(very often have the most long-lasting consequences for victims): ○ ○ ○ ○ ○ ○ Isolation Threats Humiliation Mock executions Mock amputations Witnessing the torture of other Identify the potential victims of torture. ● ● Nobody is immune to torture, although being a member of a particular political, religious, ethnic group or minority very often set individuals aside as targets for government endorsed violence. Frequent victims of torture include: ○ Political leaders ○ Journalists ○ People in detention or prison Discuss the impact of torture. ● Victims of torture do not suffer alone. ● Victims’ families and friends are greatly affected. ● Local society is damaged both through trauma inflicted on it’s members, but also through instilled awareness that basic human rights are neither guaranteed nor respected. ● The use of torture sends a strong warning to those within a political, social or religious opposition, but also to normal citizens who cannot rightly claim to live in a free or safe society. 28 Identify the potential offenders of torture. ● Those most likely to be involved in torture include persons such as: ○ Prison wardens/ detention officers ○ Police ○ Military ○ Paramilitary forces ○ State controlled and anti-guerilla forces Discuss South Africa’s responsibilities regarding the Convention against Torture ● Enact legislation criminalising torture. ● Enact legislation implementing the principle of the absolute prohibition of torture, prohibiting the use of any statement obtained under torture and establishing that orders from superiors may not be invoked as a justification of torture. ● South Africa must ensure that under no circumstances are persons expelled, extradited or returned to a state where they may be subject to torture. ● All necessary measures should be taken to prevent and combat the ill-treatment of non-citizens detained in repatriation centres Consideration must be given to bringing to justice persons responsible for the institutionalisation of torture as an instrument of oppression under apartheid and grant adequate compensation to all victims. All deaths in detention and all allegations of acts of torture or cruel, inhuman or degrading treatment committed by law enforcement personnel must be promptly, thoroughly and impartially investigated to bring the perpetrators to justice. ● ● ● Strengthen legal aid to assist victims of torture, cruel, inhuman or degrading treatment or punishment to seek redress. ● Translate and disseminate CAT in all appropriate languages, and disseminate in particular to vulnerable groups. ● Implement measures to improve the conditions in detention facilities, reduce the current overcrowding and meet the fundamental needs of all those deprived of their liberty, in particular regarding health care. 29 ● Children must at all times be detained separately from adults. ● Establish an effective monitoring mechanism for persons in police custody. ● Adopt legislation and other effective measures to prevent, combat and punish human trafficking, especially that of women and children. ● Ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities. ● Submit statistics to the Committee on the prevalence of torture and the prosecution of perpetrators. ● Distribute the Committee’s Concluding Remarks widely in the appropriate languages