JACKSON MAOGOTO | The University of Manchester (original) (raw)

Papers by JACKSON MAOGOTO

Two years ago a newspaper article of a few paragraphs reporting on an attempted coup caught the a... more Two years ago a newspaper article of a few paragraphs reporting on an attempted coup caught the attention of the reader. The paragraphs referred to a private military firm being hired to assist in the overthrow of the government. Such an event sat uncomfortably with the reader and led to some informal discussions with colleagues. It did not seem right that a private individual could hire an army to overthrow a government. It goes against the premises of Western liberal worldview in which the state is the center and all powers ...

. John's J. Legal Comment., Jan 1, 2006

The on-going challenge in economic development and globalization, particularly for developing cou... more The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict - namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China's impressive economic record is threatened to some extent by the increasing inequality in Chinese society and the enormous environmental costs of its economic growth. The Fair Trade movement seeks to address these larger and ultimately more important issues by changing the trade concerns from their narrow, traditional and highly questionable economic rationalist presuppositions to the broader societal implications of increased trade. This paper will address these broader issues, crucial for China's stability, and offer a model for Fair Trade.

The UN Charter reflects the drafters' singular focus on creating a political system to govern con... more The UN Charter reflects the drafters' singular focus on creating a political system to govern conflicts between states. It does not directly address the subtler modes in which terrorists began to operate in the post-World War II period. The drafters did not contemplate the existence of international terrorists nor their tenacity and access to technology. In view of the fact that terrorist groups appear to have reached a global sophistication, there is little doubt that international terrorism presents a threat with which traditional theories for the use of military force are inadequate to deal with, and were not contemplated when the UN Charter was drafted. This Article is premised on the theme that the right to self-defence is enrolled in a process of change. The focal point of state practice in the Article is the United States, which has long sought to articulate, through official policy, use of force as a counter-terrorism measure.

No longer is State conduct immune from international scrutiny, or even from sanction. Mechanisms ... more No longer is State conduct immune from international scrutiny, or even from sanction. Mechanisms are being created through which -sovereign- conduct is held accountable to international norms without the ability simply to claim lack of continuing consent to those norms. This demonstrates that the nineteenth century notion of a second-tier social contract is no longer appropriate to the conduct of international relations. International criminal law runs directly to the individual. This Article has as its modest aim an examination and analysis of the role of the development of human rights and humanitarian norms in reshaping the content and contour of Westphalian sovereignty. In particular it seeks to espouse paradigms based on the impact of human rights and humanitarian norms through which sovereignty should be viewed and understood in contemporary times.

In the international law system, internal mechanisms are the appropriate responses to terrorist a... more In the international law system, internal mechanisms are the appropriate responses to terrorist acts through domestic criminal law. The weakness of domestic criminal law is however evident in the face of transnational terrorists groups whose scope spreads across many borders. The challenge is compounded when States actively or passively support terrorism. Though traditionally State responsibility has been the vehicle through which pressure is exerted on States sponsoring terrorism, the lethal capabilities of terrorists demonstrated by the September 11, 2001 attacks has fundamentally changed the landscape. The consequences of breaches arising out of a failure by a State to effectively curtail terrorist organisations based or operating out of its territory have expanded sharply, permitting not just financial reparations or other traditional benign countermeasures, but even the extensive use of deadly military force. With the linkage between the terrorist and the sponsoring state becoming crucial to providing States with the justification for a response against rogues States, this Article discusses the issue of State-sponsored terrorism and the use of military force in combating terrorism in the context of the UN Charter regime on the use of force by States.

The central theme of the Article is the fact that in the face of reality, the democratic ideal fi... more The central theme of the Article is the fact that in the face of reality, the democratic ideal finds itself caught between two opposing forces, the idea not to impose alien values and processes on sovereign nations (as this amounts to deprivation of political independence and self-determination), but at the same time not to accept assertions of sovereignty simply because a ruler has the brute strength to assert it. The end of the Cold War saw the ascendance of liberal democracy as the basis of a new world order but this ascendance is seen as strengthening a restrictive practice of democracy and threatening to the recognition of democratic heterogeneity. The developing world is especially wary of the new world order democratic discourse which is seen as promoting a conservative and protective form of liberal democracy hostile to the evolution of other popular and participatory democratic processes and thus part of a subtle Western expansionist agenda. The section argues for a recognition that liberal democracy in its advance to other countries should adopt a composite and heterogeneous, dimension that acknowledges democratic diversity thus freeing it from its narrow and restrictive liberal roots. To succeed as an unchallenged universal concept, democracy should value diversity and communality.

The need for more dramatic targets has led to the new and somewhat exaggerated emphasis on a unil... more The need for more dramatic targets has led to the new and somewhat exaggerated emphasis on a unilateral right of pre-emptive self-defence by the United States. What is most striking about the new US policy is that it portrays state-sponsored terrorism and rogue states possessing weapons of mass destruction as a new problem, and unilateral action as the only way of dealing with them. It is dangerous to marginalise the UN and increase the role of multilateral global coalitions or unilateral action in policing "evil-doing" as this has the potential to supplant what initially was designed as the role of the United Nations. If decisions regarding the use of force become nationalised, this may lead to anarchic, piecemeal, random, and unilateral enforcement of the desirable shared goal of stamping out terrorism.

The tragedy which befell Rwanda in 1994 deserves a special place in the bloodstained pages of his... more The tragedy which befell Rwanda in 1994 deserves a special place in the bloodstained pages of history. The Rwandan genocide merits distinction primarily because of its shocking efficiency, its scale and its proportional dimensions among the victim population. The Security Council's resolution establishing the ICTR articulates a set of decisions, assumptions, wishes, and objectives. Primarily, the States that voted in favour of the creation of the ICTR indicated that the root of the problem was individual violations of international criminal law. Only one State that voted for the resolution did not equate ipso facto ICTR actions with justice. That State considered the ICTR only one of the many tasks at hand for the international community. The ICTR was merely a vehicle of justice, 'but it is hardly designed as a vehicle for reconciliation.... Reconciliation is a much more complicated process' (Czech Republic). Interestingly, Rwanda, which voted against the resolution, spoke of the problem in terms of a culture of impunity. The UN paid little to no heed to the subtle, but extremely different way in which the problem was characterised and the implications this would have on the type of tool needed to deal with that problem.

In contradistinction to the traditional soldier of fortune contemporary Private Military Firms (P... more In contradistinction to the traditional soldier of fortune contemporary Private Military Firms (PMFs) do not fit the conventional image of private security services as being sold mainly by gang leaders, mafias, or war lords and by (foreign) individuals or mercenaries-. PMFs however range from well-established firms with thousands of years of collective experience in war zones, to start-ups that did not exist before the end of the Cold War but mushroomed as a result of the vacuums created by states downsizing their militaries. Although in form resembling their antecedents, PMFs have developed a modus operandi compatible with the needs and strictures of the post-Cold War, State-based international system leading to both implicit and explicit legitimacy. Firstly, they are serious players, recognized within international business circles and markets. Secondly, their legitimacy is bolstered by strong personal and professional links to the governments and militaries of their respective home States. This article has as its modest aim an exploration of the thorny legal issues raised by the commodification of force. It discusses the nature of the contemporary PMF noting that it bears vestiges of yester year mercenaries. It then grapples with their uncertain status under international law despite the fact that they potentially pose problems for state authority and the direct control of states over the use of force. At the heart of the argument is the reality that PMFs maintain the ability to inflict violence on a scale previously reserved to sovereign nations and the real potential to violate humanitarian norms. Yet, they are largely inadequately regulated under existing domestic and international frameworks thus bear hazy legal liability and sanction.

This article seeks to bring to light the various aspects pertaining to the militarization and wea... more This article seeks to bring to light the various aspects pertaining to the militarization and weaponization of space. It will give an overview of initiatives by the space-faring nations in developing space weaponry, discuss the space law regime and in particular expose its defects in effectively addressing space warfare. It will then proceed to generally juxtapose space warfare with the U.N. Charter regime on the use of force. The article exposes various questions, but does not seek to undertake the ambitious goal of supplying solutions; after all, as the article will demonstrate, the problems are readily evident, but the solutions absent.

The political climate is ripe for the United Nations system to successfully and effectively provi... more The political climate is ripe for the United Nations system to successfully and effectively provide global collective security. Now that relations have improved between the 'East' and 'West' the United Nations will indeed be able to broaden its role, and perhaps operate to its full capacity - to call into being the 'New World Order', characterised by a Security Council able to respond swiftly and effectively to aggression and massive human rights violations through 'police action'. However the significant and documented international humanitarian law violations by UN forces in the 1990s has raised the stakes. Thrice in the last decade of the 20th Century, national adjudicative mechanisms failed to uphold justice for the victims of international humanitarian law violations by UN forces. The stakes are high; the credibility of UN sanctioned military operations, the accountability of UN troops to international humanitarian law standards and the adherence to the international rule-of-law regime envisioned in the drive to the permanent International Criminal Court. The UN's distinction in its status as a superior legal and moral entity means that it should be held to an even higher standard than the traditional subjects of the laws of war.

The tragedy of East Timor in 2000 coming so soon after that of Kosovo focused attention on the we... more The tragedy of East Timor in 2000 coming so soon after that of Kosovo focused attention on the weaknesses of previous United Nations missions that have been ad hoc, reactive, and narrowly focused on solving the international emergency of the moment. The United Nations and its Members need to focus on the need for timely intervention to save civilian populations from mass slaughter. It must adopt a new role as the assertive custodian of human rights because the use of its enforcement powers in the domestic affairs of rogue States may have a deterrent effect. Therefore, it should lead the way in defining its interventionist role in the emerging international norm of humanitarian intervention.

Individual criminal responsibility, and command responsibility in particular, are important becau... more Individual criminal responsibility, and command responsibility in particular, are important because, to deter human rights abuses, potential perpetrators must perceive prosecution as a possible consequence of their actions. Historically, the doctrine of command responsibility has been an important tool to hold accountable leaders who plan, participate in, or acquiesce in large-scale human rights abuses. The scope of the command responsibility doctrine remains one of the most important issues in prosecuting human rights atrocities. The scope of the doctrine determines the degree to which a leader can insulate himself from criminal culpability when the criminal acts were committed by others but were caused by either the leader's lack of diligence or acquiescence leading to subordinates not having scant regard for the dictates of human rights or international humanitarian law. This Article discusses Slobodan Milosevic's responsibility as a superior in light of the Kosovo indictment.

This Article has as its central theme the decentralization of the state's control over legitimate... more This Article has as its central theme the decentralization of the state's control over legitimate military force with the consequential diffusion of governmental control that stands to fragment state sovereignty. It argues that the increasing centrality of PMFs to the prosecution of war is creating a changed national security landscape with PMFs increasingly influencing governmental policy both overtly and covertly. PMF heads many of whom are former high ranking military and civilian personnel now advise governments and in some cases sit on government advisory boards. Additionally they also offer governments a conduit for pursuing covert foreign policy aims and circumvention of various legislative and legal oversights. The formidable military capability of PMFs and the growing reliance of state militaries on their services means that PMFs' now stand to threaten, if not influence governments.

'Disappearances' and political killings are often committed in states where government forces are... more 'Disappearances' and political killings are often committed in states where government forces are fighting an armed opposition movement, or where an armed conflict has broken out. The victims may include captured guerrillas and soldiers, civilians thought to support them, members of dissident groups and many others who are killed on the mere pretext of having a role in the conflict. The use of -disappearances- and extra-judicial executions, rather than outright official execution, serves several internal purposes for repressive regimes. It allows them to get rid of actual, potential, and perceived opponents without the publicity of a public trial or the risk of creating martyrs through the imposition of death sentences. It also terrorises broad sections of the population, by creating a chilling effect on political activity in general. Most significantly, the use of the mechanisms of disappearance and extra-judicial killings allows the government to avoid accountability for its actions.

For the past five decades, countless individuals worldwide have lost their lives as a result of forced -disappearances- and extra-judicial executions usually through covert or overt governmental programs. Overtly, various government forces have performed systematic and deliberate killings and the practice has been institutionalised as a means of eliminating opponents and potential opponents. The impunity with which the security forces are allowed to kill political opponents and criminal suspects creates the conditions in which many other people are killed by members of the security forces for criminal motives or simply at will. Although this may be premised on a policy of increased security by granting greater powers to armed forces, occasionally it has taken the form of legislation that in reality has created an opportunity for forced -disappearances- and extra-judicial executions.

People first, nations second. That's the new global creed that is beginning to jell at the United... more People first, nations second. That's the new global creed that is beginning to jell at the United Nations. At the 54th Annual UN General Assembly Session in September 1999, both President Clinton and UN Secretary-General Kofi Annan made historic claims that any country's sovereignty could be violated by other nations under certain conditions occasioned by 'deliberate, massive, organised and systematic violations of human rights'. This is in a world stage where the East Timor Crisis and the accompanying humanitarian intervention forms a vivid backdrop to the past failures of the UN in creating a nexus between international aspirations and pragmatic realities in the protection of fundamental human rights. Could the notion that sovereignty does not entitle a government to slaughter its own people and that outsiders have a duty to take action finally herald the UN's crossing of the rubicon between peace-keeping and peace-making?

The International Criminal Tribunals for the Former Yugoslavia and Rwanda establish the beginning... more The International Criminal Tribunals for the Former Yugoslavia and Rwanda establish the beginning of a new pattern in the genuine international implementation of international criminal law and the move back to the international model inaugurated at Nuremberg. But even these tribunals were first and foremost, the by-products of international realpolitik. They were born out of a political desire to redeem the international community's conscience rather than the primary commitment of the international community to guarantee international justice. In the early stages, there was a persistent lack of political will by Member States to act, or to act with enough assertiveness with regard to the conflicts, notwithstanding the exposition of deliberate and systematic patterns of massive violations of human rights. The Yugoslav and Rwanda Tribunals were not established because of the United Nations, or the powerful States that control it. They were not established because of an intrinsic value on punishing war criminals or upholding the rule of law. Rather, the mobilisation of shame by non-governmental organisations and especially the grisly pictures beamed to the world by the television camera created a public relations nightmare and made liars of the centres of Western civilisation.

Nation-States and their authority referred to here as national sovereignty is under threat from f... more Nation-States and their authority referred to here as national sovereignty is under threat from forces within the global economy. Although globalisation is considered to be a recent phenomenon that has now attracted the attention of writers, its origins lie with those of the nation-state as the nation-state clawed its way to dominate the international community. Nation-states achieved their pre-eminence and dominance of the international community on the backs of free enterprise and capitalism; and now this dependence threatens their very existence. Now belatedly nation-states are attempting to regulate the global economy through the IMF and the World Bank and other means. This paper examines the effect that the global economy has upon the traditional understanding of sovereignty.

he Article has as its modest aim a general reflection on the enshrinement of democracy as a unive... more he Article has as its modest aim a general reflection on the enshrinement of democracy as a universal entitlement and the movement of international law in a pro-democratic direction The Article will seek to highlight the general uncertainties that continue to plague the democratic entitlement. The Article deliberately focuses on the United Nations system with reference also being given to regional efforts. The Article does not discuss the legal justifications and nature of measures to address undemocratic regimes. While such measures are significant in pro-democratic discourse, it is beyond the scope of the Article's general aim of exposing the thorny issues that surround democratic entitlement as a universal right.

. John's J. Legal Comment., Jan 1, 2006