Extraditon to South Africa & human rights

There has been much negative reaction by members of the South African public in response to reports that a man, extradited to Cape Town from a European Country to face trial in South Africa, is being held in pre-trial custody in conditions which are superior to the mostly dreadful conditions experienced by the overwhelming majority of awaiting-trial prisoners in this country.

Their objections are, of course, based on the salutary principle that all people should be treated equally before the law. The objection to foreigners accused of committing crimes in this country receiving preferential treatment to those received by South African awaiting-trial prisoners is understandable, but misguided.

Conditions in most South African prisons are generally regarded to be deplorable. Awaiting-trial prisoners in this country are often held in grossly overcrowded facilities. Apart from anything else, the overcrowded conditions make it very difficult, if not impossible, for the authorities in charge of prisons to prevent awaiting-trial and convicted prisoners from becoming victims of serious crime. It is no exaggeration to say such conditions violate a whole host of the human rights of those being held in custody in those facilities.

Whilst Britain also has what it regards as an overcrowding problem in its prisons, the conditions which apply in British prisons are, for the most part, vastly superior and far more humane than those to be found in most South African prisons.

In my view, the above disparity is something which any European Court, faced with an application for extradition of one of its citizens to South Africa, is obliged to consider prior to granting any such application. The human rights of all European citizens are guaranteed and protected by the European Convention of Human rights. No European Court can grant any order which results in the violation of the human rights enjoyed by any of its citizens. In this regard, if someone wishes to avoid extradition to South Africa from a European Country, they would be perfectly entitled to raise the fact that their extradition to South Africa is likely to expose them to horrendous awaiting-trial or post-conviction prison conditions which are in violation of their human rights.

A European Court faced with any such objection would be compelled to examine the conditions applicable in South African prisons to establish whether there is any merit to such claims. If it is found that that the human rights of the person, whose extradition to South Africa is being sought, would be placed at risk if extradition were granted, the Court would be entitled to refuse the application. Alternatively, the Court could seek guarantees from the South African authorities that the conditions which the person to be extradited would be exposed to in South African prisons would be in accordance with European or international standards.

To my knowledge, the person whose extradition was recently sought did not pertinently raise the issue of South African prison conditions as a defence to extradition. However, and as I understand it, the South African authorities nonetheless quite rightly guaranteed that the person concerned would receive access to medical treatment of a standard comparable to that he would have received in the United Kingdom. This is a variation on the theme I refer to above. But for such assurances, the extradition would probably not have been ordered.

If I recall correctly, the issue of whether an accused could expect to receive a fair trial in a South African Court was raised in the English Court and, quite rightly, that objection was dismissed.

There is nothing unusual about the prosecution from a country or state seeking the extradition of a European citizen offering guarantees which make it possible for a European Court to order extradition without compromising the human rights of the accused person involved.

The most striking example of this is where DA’s from American states like Texas, which has the death penalty, have to guarantee that the death penalty will not be sought prior to obtaining an order for extradition from a Court in a European Country, where the death penalty is not permitted on human rights grounds.

Applying this approach, there is nothing to stop a European whose extradition to South Africa is sought from similarly seeking guarantees from South African authorities about both the conditions of his pre-trial custody and about the conditions applicable to his custody in prison should he be convicted and sentenced.

South African authorities applying for extradition could easily offer appropriate guarantees in regard to pre-trial custody. Any number of suitable arrangements which would be acceptable to a European Court could be put in place.

As far as the prison conditions which await a European, whose extradition to this country was successful, after conviction is concerned, the picture is more complicated. As is apparent from recently publicised pictures of two young convicts which were taken in a Gauteng prison, prison conditions in South Africa tend to vary.

There is one easy solution to this problem. The deal the South African prosecution can offer is that any sentence handed down by a South African Court would be served in the prisons of the country from which the extradition order is sought. That, together with appropriated guarantees of safe and humane pre-trial custody, would leave the foreign Court with little or no room to refuse extradition.

Yes, this does lead to a situation where such foreigners will always be entitled to better treatment than locals, but instead of bemoaning this, we should seek to correct this inequitable situation by ensuring that all our prisons meet international standards of human rights for all who pass through them. Or we could just do nothing and simply hope for some form of divani intervention.

And as for the argument that he who chooses to commit a crime here should be prepared to do the time here, this can only apply to those who are also caught while still here.

Once we have to go to a British Court, cap in hand, to ask for their assistance to bring a foreign accused to justice, one cannot expect that Court to close its eyes to the injustices we inflict on our own prisoners.

 Nor can we expect a British Court to deprive a British citizen who at the time of the extradition application is on British soil, of that person’s European human rights simply because he is accused of being foolish enough to choose to commit a crime in country where human rights for prisoners are still a work in progress. After all, the English Court must start from the position, must it not, that all accused persons are presumed to be innocent?

 

 

 

MH 370: I'm sceptical about reports of rapid descent.

http://siegfriedwalther.blogspot.com/2014/04/mh370-24-april-2014-update.html

CNN has been reporting a new revelation which some aviation analysts are describing as a game changer. You will recall that about an hour into the flight MH 370, then flying at cruising altitude of 35 000 feet (Flight Level 350) signed off from Malaysian ATC in the Gulf of Thailand and then disappeared from Radar after the transponder was switched off.

New reports from an "insider" now suggest, for the first time, that at the time the transponder was switched off, military radar picked up the Airliner entering a steep dive to the left, and descended rapidly from FL 350 to around twelve thousand feet before disappearing from radar. Ten thousand feet is the altitude pilots head for during emergency descents since its an altitude where one can breath normally.

Apparently, some analysts who say that this information is a game changer, now suggest that this could be a pointer to some catastrophic technical or structural failure on board as opposed to the theory I favoured from day two on common sense grounds, and which a week later, I was belatedly joined by other aviation experts.

Whilst I still favour the theory of cockpit incursion or pilot involvement or a combination of both for reasons set out in two previous blogs, published on this site, it would be foolish to completely exclude the possibility of catastrophic failure or, such a decompression.

That said, my theory remains unchanged and I urge caution in regard to the latest "revalations."

First of all, radar mostly cannot determine an aircrafts altitude or speed without receiving such information from the aircraft's transponder which was off. Admittedly military radar does have better capability than civilian radar, but I understand that one needs to be reasonably close to the radar in order for any reliability to be attached to the readings.

Secondly, the timing of the turn, which occurred after handing off from one area controller, and before being handed over to the other, (which allowed the aircraft considerable time to slip away) is a little too convenient.

Thirdly, my previous point gets even stronger if one factors in the simultaneous switching off of the transponder and the aircraft's automated reporting systems. Quite frankly, the odds of all three these occurrences, all of which are suspicious, coincidentally being accompanied not only be a catastrophic failure, but one which also disabled these systems too, must be extremely remote. Any catastrophic event with all those consequences, and which prevent communication with ATC during descent, would have to be sufficiently catastrophic to bring the airliner down within the hour, which, by all accounts did not happen.

Finally, in order to reach the present search area in the Indian Ocean on the available fuel, the aircraft could not possibly have remained at 10 000 feet for any length of time. The air is too dense here and the much higher fuel consumption would have rendered any such lengthy flight impossible.

But here's the killer point, even if we assume that all the above did occur and that the aircraft was forced by some technical emergency to descend to 10 000 feet, this does not explain why the aircraft, then, instead of landing, must have, (if all the satellite pictures and news reports are correct), then ascended back to over thirty thousand feet in order to allegedly end up where the search planes are now looking. This could only occur with the assistance of a hijacker or a pilot with ill intentions.

Game changer then. Sorry, I'm having none of it from these so-called aviation experts unless you can produce a wreckage much closer to Malaysia. So far, nobody favours any such theory.

So, all this means two things. No game change, and do take the "rapid descent" story with a massive pinch of salt for now. Of course, new and proper information could still surprise us all.

Why there has to be a referendum in Crimea.

I believe that the current impasse between the USA and Russia over the Ukraine and Crimea can be resolved by permitting a proper referendum in Crimea about whether Crimea should opt for independence, remain as part of Ukraine, or be re-incorporated into Russia.

Most of the population of Crimea are Russian speaking and Crimea was in fact Russian a generation or so ago until Khrushchev of the former USSR granted it to the Ukraine.

Why that was done is a mystery to me since Russia has always sought a "warm" water port for its Black Sea Fleet. At present, its fleet is still in Crimea by agreement with the Ukraine.

However, since Crimea is presently part of the state of Ukraine, there are various conditions which must apply to the referendum.

Firstly, since any vote for independence or for reincorporation into Russia is constitutional in nature, a simple majority in any such referendum will not suffice. In order to change the status quo, the majority should be anything from 60% to the traditional two thirds mark. Perhaps a compromise of something between that would be in order.

Since Russia seems confident of overwhelming support of the people of Crimea, this should not present a problem to it.

Secondly, the referendum must permit the people of Crimea the choice to remain a part of the Ukraine. The present "illegal" referendum to be held tomorrow is illegal for many reasons, including its failure to permit the Crimeans a choice to remain a part of the Ukraine.

Thirdly, the referendum should be conducted under UN supervision and international monitors should be permitted.

Fourthly, the referendum should permit sufficient time and a proper democratic environment for people to conduct a proper campaign. The present conditions, in which armed Russian soldiers or militia are marching about, are intimidatory and not conducive to the conduct of a free and fair poll.

If Russia is so confident of the overwhelming support it claims and, to be fair, seems to have amongst the majority in Crimea, it should have no difficulty in agreeing to the above as a compromise.

The present referendum is a farce which will not be recognised internationally.

That said, I think the West has failed to recognise the fact that the spread of the EU towards Ukraine, and the growing number of NATO countries in former Soviet Bloc countries leaves Russians feeling uneasy. Russians see the Ukraine, and particularly Russian speaking parts of it, as part of their so-called "area of influence." A failure to appreciate that Russians feel a certain solidarity with Russian speakers in this area of influence -former Soviet republics which border on Russia - will do nothing to resolve the present impasse.

Malaysian airliner MH370: How close to the mark?

http://siegfriedwalther.blogspot.com/2014/04/mh370-24-april-2014-update.html


On Sunday evening already, I concluded that Cockpit Incursion or Crew (Pilot) Sabotage was the most likely cause of the missing airliner. This now seems to have become the governing theory.

Today is Friday, and little has changed. I argued on Sunday that the Airliner, if it maintained its course, ought to have crossed the Vietnam mainland after 1hour and fifteen minutes. I argued that any period in the Gulf of Thailand in excess of that must then be regarded as suspicious since the aircraft would clearly be in the wrong place.

The initial reports were that the airliner was last seen in the Gulf of Thailand, midway between Malaysia & Vietnam, after TWO HOURS. If this was so, I argued that the last forty five minutes of the flight on radar was suspicious since the airliner was in the wrong place.

Based on this, I was able to exclude catastrophic failure as a likely cause, since catastrophic failure is usually a sudden event which occurs quickly and seldom allows the pilots a chance to communicate with ATC. Since the pilots had 45 minutes of flying at cruising altitude, I concluded it was safe to exclude catastrophic failure. Had there been such a failure it would not have lasted forty five minutes. During the said "missing" 45 minutes, the pilots would have had sufficient chance to use one of the many communication systems on boards to communicate with ATC. Even the aircraft's sophisticated automated systems would have had a chance to send automated reports during those forty five minutes. No such reports were apparently sent we were told.

This is not to say that catastrophic failure can be excluded altogether, rather that it must move to the bottom of the pile of usual causes.

Mechanical failure can also be excluded for the same reason. Any mechanical failure which permits the aircraft to fly for another forty five minutes is also one which must allow the crew and the aircraft's automated alert message system a chance to communicate with ATC.

Pilot error could also be excluded, I felt, since I could not imagine a pilot error which would cause the pilots not to communicate with ATC for forty five minutes on any platform or one which would prevent the automated systems from broadcasting messages. The absence of:

1. ATC transmissions by Pilots for forty-five minutes;
2. The suspicious timing of the transponder being switched off, and no other unit being switched on in its place for forty five minutes, and
3. The apparent failure of the aircraft's automated systems to broadcast any messages to satellite to indicate any problems for forty five minutes 

           all happening at the same time for forty-five minutes suggests a deliberate attempt to interfere with these systems. All this suggested Hijack or Pilot Sabotage as the most likely cause of the disappearance and I went so far to aver that whoever interfered with these systems had knowledge of aircraft's systems.

It then transpired that the initial reports might have been wrong in that the aircraft's transponder went off after only an hour, shortly after handover from Malaysian ATC to Vietnam ATC. The aircraft said goodbye to Malaysian ATC, but never contacted Vietnam ATC and the aircraft's transponder was switched off.

This, I thought was the kiss of death to my theory since it permitted Mechanical Failure & catastrophic failure to return as theories.

Worse still, the false passport theory was also generally dismissed as being unrelated.

And yet, there remained various clues to suggest that my theory of Pilot Sabotage could yet hold water:

1. The Gulf of Thailand is shallow and relatively small and surrounded by many highly populated countries. The Gulf is also relatively shallow. So the failure to find the aircraft's wreckage again suggested that the aircraft may indeed have flown for some time after it disappeared from radar due to the transponder being switched off; Boats, people on the beaches in surrounding areas, search planes etc should have found something after four days.
2. Reports began to emerge that the aircraft may have turned around to attempt a return to Malaysia.  The longer the aircraft took to turn around, and to attempt a return, the more my theory in favour of pilot sabotage / cockpit incursion /hijacking must return to being the most prominent theory.
3. The timing of the transponder switch-off, immediately after being handed over to another area controller in Vietnam, is also a factor to be considered. It will be a while before Vietnam's area controller notices that the aircraft has not made contact. This would allow a pilot a chance to switch off the transponder without drawing attention of either the former area controller or the new controller for several minutes.
4. Further suggestions came to light that military radar spotted an unidentified aircraft heading from the Gulf of Thailand and crossing over Thailand. (Again, the aircraft is flying and is in the wrong place.)
5. Finally, it was suggested that there was one automated aircraft transmission to satellite which also placed the aircraft somewhere heading towards the Indian Ocean. This system apparently also stopped transmitting.
6. Apparently the latest is that aircraft automated messages indicate aircraft was flying on a new and recognised route towards the South West. This seems self evidently deliberate. Aircraft don't usually change course without being programmed to do so by changing the autopilot heading hold or changing the route the Autopilot Nav is using.

Taken together, and if some or all of the above are true, then it serves to exclude Pilot Error, Catastrophic failure, Mechanical failure as likely causes and it elevates Pilot Sabotage or Hijacking or Terrorism(with or without pilot involvement) by people who know aircraft systems well.

If I am correct, I still don't have any theory as to the reason for the said conduct or as to what eventually occurred. Was it pilot suicide by one of the pilots? If so, why wait so long? Was it a failed attempt to gain an airliner to use it as a missile by flying it into a US base in the Indian Ocean? Was it a bomb that eventually went off by accident. Has the plane landed somewhere and are the passengers currently hostages? I understand that many relatives are praying for this possibility which seems to be their only hope, albeit an unlikely one. I hope for a miracle!

Who knows what actually occured? These are the real questions which cannot be answered before the aircraft is found.

Missing Malaysian 777, Cockpit Interference likely scenario

See Map Below & Timeline on it:

Whilst it is inadvisable to speculate about the causes of any air crash prior to the wreckage being recovered and a proper investigation is conducted, certain of the facts which have come to light scream that a deliberate unlawful act occurred.


Most likely, this involved one of the pilots, perhaps both. Others may also have been involved.

 

We are informed by the Malaysian authorities that the aircraft may, according to Military radar, have turned to return to Kuala Lampur.

 

If the crew experienced a sudden emergency, their failure to communicate with ATC would not be strange. However, it is difficult to conceive of an emergency which would have prevented one of the crew from using one of the on-board systems to communicate for an entire forty five minutes.

 

If indeed the pilots felt it necessary to return to Kuala Lampur, communicating their intentions prior to doing so is standard protocol. Perhaps an emergency prevented this from occurring immediately.  But failing to communicate the change in intentions for forty-five minutes is almost unprecedented.

 

I refuse to accept that the pilots were unable to use one of the many means of contacting ATC to advise of the emergency during this period. The aircraft’s transponder code can be changed to indicate cockpit intrusion or some other emergency such as failed radios. We know that the transponder was probably working since this is how the flight was tracked and identified.

Apart from various radios, an on board “texting” system also exists.  

 

I can only conclude that if neither pilot was involved, other parties, must have prevented the pilots from using any of these methods to communicate during the controversial last forty five minutes of the flight. Alternatively, it seems one or more pilots chose not to use these methods to communicate.

The fact of the matter is, if one or both pilots wished to make an aircraft disappear, the moment to do so in this flight would be after hand-off from Kuala Lampur but before communicating with Vietnamese ATC.

More later....

 

 

 

 

 

Malaysian Flight MH370 777 Missing

See Blog of http://siegfriedwalther.blogspot.com/2014/04/mh370-24-april-2014-update.html
for last and latest update


Malaysian 777 missing on flight from Kuala Lampur to Beijing, China. Reports suggest aircraft went missing two hours into flight. If so, reports from a Vietnamese Naval officer that  the aircraft went down in near Vietnam in Gulf of Thailand makes no sense. It would take no more than one hour and fifteen minutes for the 777 to cross the Vietnam coast from Kuala Lampur. i.e. Unless the aircraft had problems or was forced to turn around.

Edit: It now seems that the airline dropped from radar one hour after take-off. That would indeed place it in the Gulf of Thailand, around 15 min cruise flight from crossing Vietnam's coast. Estimate it crashed around 200km from point it would have crossed mainland, all things being equal.

The lack of any ATC transmission or any electronic transmissions from any automated systems suggests, unfortunately, a likely catastrophic event or mid-air break up.

Structural damage? Terrorism. Another Air France 447 type incident is unlikely despite the similarities. There were too many accidents like that prior to 447 to prevent all airlines from learning the lessons about how to deal with pitot tube failure and about how to handle airliners at high altitude.

The fact that two passengers were on false passports is worrying. Can't imagine that anyone on a false passport would pick China of all countries to try and mislead authorities. The price for failure would be very high. Leads me to wonder whether they intended to reach their destination.

Anyhow. Will have to wait for more evidence before trying to work out what occurred.

Watch this space.

Ban Ransoms to Hostage Takers

See 15 May 2014 update below: Sale of human beings a crime against humanity.
See 31 May 2014 update re: recent US prisoner swop

The recent call by the UN Security Council that governments should refrain from paying ransoms to organisations which take hostages represents a common sense position which I support.

At the outset, I should point out that I have thankfully never been taken as a hostage, nor have I ever endured the unspeakable horror of having a loved one held as a hostage. If I were to find myself in either of those situations tomorrow, I wonder whether I would still have the courage of my stated convictions or whether necessity and convenience would tempt me to view my predicament in isolation.

Those who pay ransoms have argued that doing so is cheap at the price if one considers the value of a human life.  The argument is not without merit. In addition, it is difficult to condemn those who have been compelled by circumstance to lean towards complying with the hostage taker’s demands.

Hostage taking cannot, however, be viewed in isolation. Hostage takers require ransoms to reward their efforts. If everyone adhered to a no-ransom policy, hostage taking would end. No doubt, the resolve of all those who adhere to a no-ransom policy would initially be tested, and a few lives might initially be lost in the cause. But if everyone stayed the course and refused to pay up, hostage situations would be a thing of the past.

Every person who is now a hostage or who is confronted with a loved one who is a hostage has reason to direct their anger not only towards the perpetrators, but also towards those who reward them. Every ransom paid to the terrorist organisations who kidnap foreigners encourages future such operations.

Britain and the United States do not pay ransoms as a matter of policy. Some European governments do, however. It should come as no surprise that some terrorist groups have now started to make a point of not wasting their time by kidnapping hostages from countries that do not pay ransoms.

In addition, the paying of ransoms to such organisations has two other consequences. The funds, amounting to millions, are often used to purchase arms for other terrorist activities. Secondly the kidnappers often flaunt their ill-gotten gains in front of innocent, impressionable and often poor bystanders, including young people from their communities. The potential to corrupt a new generation of hostage takers is obvious. Should we really be funding the lesson that terrorism and hostage taking pays?

However, it is not only governments who pay ransoms who are in effect sponsoring terrorism and future hostage taking. The role played by insurance companies who specialise in this type of insurance cannot be ignored.

Perhaps it is time for the legality of this type of insurance product to be considered. I say this in full awareness of the fact that many people who do business or perform contract work in certain third world countries will only do so if such insurance is in place. Any laws to render such insurance products and the payment of ransoms by insurers illegal will no doubt face an uphill battle, to say nothing of legal challenges. If successful, however, the rewards for hostage taking will vanish.

Perhaps the only solution is the drastic one of criminalising very act of paying a ransom. Whilst this probably makes sense in theory, the problem is that the enforcement of such a law would by no means be simple.

Those who pay ransoms to save the lives of loved ones are probably unlikely to be found guilty of a crime in countries with a jury system. Jury members would be very sympathetic.

The existing criminal justification ground of necessity could, in any event, be invoked by an accused in any such criminal case.

The defence of necessity was first accepted into most Western legal systems when an accused, who had been stuck on board a lifeboat which had been at sea for some time, raised it his defence against a charge of cannibalism. He had eaten the flesh one of a fellow survivor who had died and relied upon extreme hunger and his need to survive as circumstances which made his actions necessary. (It did not help that he happened to be found and rescued the very next day.)

In a defence to any criminal charge of paying a ransom, the argument would be that the ransom payer was forced into a situation where he was compelled to choose between an illegal act i.e. payment of the ransom or to save the life of a loved one. The argument would be that the criminal act was not serious when viewed against the life saved. This would be a compelling argument, even in criminal systems that do not have a jury.

The only way for the State to overcome this argument would be to rely on the devastating knock-on consequences society suffers as a result of the payment of ransoms. The law criminalising the payment of ransoms would have to specify, and the State would have to prove, that the potential endangerment of the lives of many other innocent people to save the single life of a loved-one is not justifiable. Any such law should also include a penalty which, whilst being harsh enough to serve as a deterrent, would also recognise the horrible predicament any person accused of transgressing it would face.

It is clear that bringing an end to hostage taking by criminalising the payment of ransoms would not be without its fair share of challenges, and it would indeed be a drastic step if implemented. However, we should not let the size of the challenge dissuade us from finding and implementing some or other common sense solution.

Perhaps the key to a solution is to draw a distinction between payments of a ransom by governments and insurers etc. to terrorist organisations, and all other ransoms. 

 

Whatever the case, all that is needed for evil to prevail is for good men to sit about doing nothing. Hostage taking is an evil worthy of being addressed.

UPDATE 15 MAY 2014 - The other argument against payment of ransoms was recently raised by a Nigerian Cabinet Minister. He argued that the payment of ransom was the equivalent of indulging in the sale of human beings, which, is in itself, a crime against humanity. Not an argument I originally considered, but having now considered it, I cannot but agree with it.

In closing, the reader will appreciate that I cannot condemn those who pay ransoms to free family members with the same gusto that I condemn the payment of ransoms.

I have considerable empathy for all those who are, or have been affected by hostage taking. At the very least, we can all agree that a hostage free, ransom free world is something worth striving for and it is to this end that I have put up some ideas for consideration.


31 May 2014 PRISONER SWOP

The recent prisoner swop in which one or more US soldiers captured by the Taliban were exchanged for prisoners which the US held at Guantanamo Bay has caused some to question whether this is a departure from the policy of not negotiating with terrorists.

The US has long had a policy of exchanging prisoners it has captured in exchange for soldiers or operatives which have been captured by its adversaries. I refer to the classic exchange of spies at Checkpoint Charlie between the US & the Soviet Union during the cold war. I don't object to the exchange of prisoners captured conflict situations. I don't see this as a departure from the general US policy of not paying ransoms.