KRM 220 - Exam - Section B part 3.pdf

20 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 devel...

20 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 ● 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 21 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). 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. 22 ● ● ● 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 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 23 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 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 24 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 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 25 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 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. 26 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; 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 27 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 ○ 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 the impact of torture. Discuss 28 ● 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. 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 Convention against Torture regarding the ● 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. 29 ● 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. ● 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