Copyright (c) 2009 All rights reserved. http://works.bepress.com/jackson_maogoto Recent documents in Jackson Nyamuya Maogoto en-us Thu, 06 Aug 2009 12:48:02 PDT 3600 http://works.bepress.com/jackson_maogoto/38 http://works.bepress.com/jackson_maogoto/38 Sat, 29 Dec 2007 23:23:06 PST This article has as its aim an exploration of the development of the superior orders defence within both the national and international arena. It discusses the case law at both national and international levels as well as reflect on the various legal provisions as encapsulated in international instruments and national military manuals. It concludes with an overview of the military and international law paradox. On the one hand, military law tutors and soldiers are trained to comply with commands in order to ensure organisational integrity and efficiency; on the other hand, international law seems to suggest, by the tenor of its standard, that soldiers should stop and consider the lawfulness of their orders. Jackson N. Maogoto Working Papers (COPYRIGHT PROTECTED) http://works.bepress.com/jackson_maogoto/37 http://works.bepress.com/jackson_maogoto/37 Sat, 29 Dec 2007 23:21:02 PST In 1976, without effective local opposition, Indonesia absorbed and annexed East Timor as its twenty-seventh province, but the integration remained controversial at the international level.In the course of the next three decades and in the face of heavy-handed tactics by Indonesian forces keen to wipe out a guerrilla resistance and effectively "pacify" East Timorese battle raged killing thousands. Indonesian police forces regularly detained and tortured innocent civilians and brutally suppressed peaceful protests. Massive violence committed by Indonesian backed militia forces on East Timor increasingly hardened the international community's support for East Timor's independence. The turning point was the Dili Massacre in 1991 in which over 250 unarmed youth were mowed down by Indonesian military personnel at the Santa Cruz Cemetery. This Article has as its modest aim an exploration of the nexus of the principle of self-determination and the geopolitics that contributed to East Timor's tortured march to independence. In particular the Chapter will seek to examine the tenets of self-determination and its practical dynamics which yielded little protection to the aspirations of the East Timorese. Jackson N. Maogoto Working Papers (COPYRIGHT PROTECTED) http://works.bepress.com/jackson_maogoto/36 http://works.bepress.com/jackson_maogoto/36 Sat, 29 Dec 2007 23:18:30 PST This Article argues that with the benefit of compounded learning of the Third World's diverse societies and the variegated socio-political issues, this knowledge can be ploughed back into the process of developing considered, creative new options for a satisfactory collective future as a means of facilitating entrenched antagonisms giving way to shifting, overlapping coalitions and novel accommodations. The underlying theme is premised on the basis that thorny issues should and ought to be approached from different angles. This allows different groups/stakeholders to learn that having a diversity of perspectives represented in their discussions demonstrably improves outcomes (in terms of reaching workable accommodations) because it enlarges the range of options on the table and opens up new ways of thinking about old stalemates. Jackson N. Maogoto Working Papers (COPYRIGHT PROTECTED) http://works.bepress.com/jackson_maogoto/34 http://works.bepress.com/jackson_maogoto/34 Sat, 29 Dec 2007 23:08:50 PST This article seeks to discuss some of the broad questions, particularly in the light of ever-expanding military uses of outer space and the significance, particularly to the major powers, of the military and strategic value associated with space technology 'superiority'. This article first looks at the historical efforts of the two main protagonists - the United States and the Soviet Union / Russia - to develop space military technology, in recognition of the unique strategic values this offered. It then highlights the relevant provisions of both international space law and the regime prohibiting the use of force under the United Nations Charter that may apply to the weaponization of outer space and proceeds to discuss the interaction of these legal principles to gauge whether and how they might (if at all) have a practical effect in curbing the growing threat posed by space weaponization, including in circumstances of a cyber - attack. The authors conclude that, in light of the unique features of outer space and the very significant consequences that could emerge from a space arms race or, even worse, a 'space war', the principles that do exist may not be specific enough to provide appropriate regulation for the increasingly diverse ways in which outer space could be used during the course of armed conflict. There is therefore a growing need to reach a consensus on additional space law regulation directly applicable to the increasing threat represented by the weaponization of outer space and its potential for use as a direct theatre of war. Jackson N. Maogoto Working Papers (COPYRIGHT PROTECTED) http://works.bepress.com/jackson_maogoto/32 http://works.bepress.com/jackson_maogoto/32 Sat, 29 Dec 2007 21:30:29 PST Using the crisis in the Darfur region of Western Sudan as the reference for analysis, this article argues for a re-conceptualized notion of State sovereignty--one that views sovereignty not as control but as responsibility--as the starting point for designing appropriate legal and policy responses to the Darfur situation that has so far defied easy solution. The article proceeds from the assumption that while sovereign States have the primary responsibility for the protection of their people from avoidable catastrophe, this responsibility should shift to the international society whenever the State in question manifests an inability or unwillingness to protect its citizenry. Seen as such, sovereignty should not be a barrier to holding the perpetrators of heinous crimes in Darfur accountable, or to possible models of international intervention including the lawful use of armed force. Jackson N. Maogoto Human Rights & Humanitarian Law http://works.bepress.com/jackson_maogoto/31 http://works.bepress.com/jackson_maogoto/31 Sun, 02 Dec 2007 22:06:57 PST Even when states agree on the kinds of changes necessary to initiate or restore democracy in a particular country, they may disagree sharply on the role the international community should play in seeking such changes. Such differences reflect strong philosophical and political differences over the extent to which external actors may legitimately seek changes in the domestic politics of other states. In practice, therefore, cases in which broad international agreement on measures to be taken against undemocratic regimes can be achieved are the exception rather than the rule. Democratic entitlement as a universal human right is a complex and multifaceted issue. The 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. Jackson N. Maogoto Human Rights & Humanitarian Law http://works.bepress.com/jackson_maogoto/30 http://works.bepress.com/jackson_maogoto/30 Sun, 02 Dec 2007 22:03:13 PST The consequence of the state of lawlessness that permitted States to wage war even on flimsy reasons was not fully appreciated until World War I when primitive barbarism and modern technology came together to result in enormous bloodshed and massive atrocities. The deep impression on public opinion opened the door to vigorous condemnation of aggression and a move at the international level to outlaw it. Though aggression continues to pose one of the greatest threats in the efforts to create a peaceful and stable world public order, the definition of aggression steeped as it is in political and legal quagmire continues to prove elusive. Despite being at the centre of discussion in the development of international law for many decades, just as it eluded the League of Nations in the past, so the definition of aggression continues today to elude the United Nations. Progress is more marked by the volumes of international documents produced rather than any seeming linear progression towards a singular and generally accepted definition. Not even the overwhelming support for the international criminal court in 1998 proved sufficient to translate into a consensus amongst States on the issue of defining this crime. Jackson N. Maogoto International Criminal Law http://works.bepress.com/jackson_maogoto/29 http://works.bepress.com/jackson_maogoto/29 Sun, 02 Dec 2007 21:59:35 PST This Article examines the conflict in the former Yugoslavia which gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTFY). The ICTFY established the beginning of a new pattern in the genuine international implementation of international criminal and humanitarian law and the move back to the international model inaugurated at Nuremberg which had in the Cold War era been boldly supplanted by national prosecutions. The Article seeks to show that even this ad hoc tribunal was the by-product of international realpolitik. It was 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. The ad hoc tribunal was established after efforts to reach political settlement had proved futile and had in fact shielded the bellicose Serbs from firm and decisive international action, allowing them to further their nationalist agenda at the expense of other entities of the Yugoslavian federation. The ICTFY was not established because of the primary view by the UN or the powerful States that control it over the intrinsic value on punishing war criminals or upholding the rule of law but rather the shame that resulted from a misguided conception that the Balkan crisis would be effectively resolved through a political settlement. Jackson N. Maogoto Human Rights & Humanitarian Law http://works.bepress.com/jackson_maogoto/28 http://works.bepress.com/jackson_maogoto/28 Sat, 01 Dec 2007 04:35:38 PST This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures and implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms--law enforcement and conflict management. Part III moves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. The part offers a discussion of the "extradite or prosecute" mechanism that lies at the heart of multilateral anti-terrorism conventions and a discussion of the bases of international criminal jurisdiction that provide a framework for domestic anti-terrorism statutes. It concludes with an analysis of the practice of apprehension of terrorists in international space, of which the U.S. has been a leading proponent, and offers a discussion of the complex legalities attendant to this controversial means. In Part IV, the article tackles the complexities and technicalities of the conflict management paradigm. It commences by examining the international legal uncertainties inherent in treating terrorists as combatants. The analysis moves on to cover the use of both limited lethal military force in the form of targeted assassinations and large scale military force in the form of pre-emptive strikes and retaliation. In a bid to highlight the transformation from the Cold War era to the post Cold War era, the part focuses on U.S. practice and world reaction both pre- and post-Cold War. The part concludes with an examination of the post-September 11 scenario and evaluates whether any perceptible changes in law or state practice are taking place following the military campaigns in Afghanistan ("Operation Enduring Freedom") and Iraq ("Operation Freedom Iraq"). Jackson N. Maogoto Use of Force & Terrorism http://works.bepress.com/jackson_maogoto/27 http://works.bepress.com/jackson_maogoto/27 Sat, 01 Dec 2007 04:29:05 PST The issues that the Article tackles are obviously complex and lengthy, however the Article has as its modest goal the exploration of the general arguments that the use of force to counter terrorism raises under the UN Charter regime on the use of force. In Part II, the Article gives an overview of the UN and terrorism noting the ambivalence in addressing the issue that has contributed to the confusion over a precise definition in large part reflective of the basic disagreement over the elements of terrorism itself. Part II then adopts a definition for the purposes of this Article. In Part III, the Article addresses the dramatic post-September 11 developments which witnessed the use of lethal military force in Afghanistan and Iraq in the name of countering terrorism. The Part begins with a general overview before carrying out a more detailed and specific enquiry into the legal and factual issues of both military campaigns. Part IV of the Article turns to the core of the discussion-the use of military force as a countermeasure against terrorism. The premise of post-September 11 is that terrorist groups shall not receive a shield from the territorial integrity of a state which is unwilling to put an end to terrorist activity or colludes to enhance terrorist capabilities. The Part delves into the recognised and permissible uses of force in self-help-self-defence and reprisals. These concepts engender considerable confusion considering that in the context of force in counter-terrorism, the terms are often used imprecisely; actions may be labelled "reprisals" or "retaliation" when, in fact, the proper characterization could appear to be self-defence and vice versa. This discussion seeks to delineate the basic principles of these concepts and thus prevent an undue muddle when the Article tackles the important matter of self-defence as enshrined in the UN Charter and whether anticipatory-self-defence is permitted under the UN Charter. Jackson N. Maogoto Use of Force & Terrorism