The Use and Abuse of International Law: Choice of Applicable Criminal Law in Post-Conflict East Timor

Summary

INTRODUCTION

In the process of empowering domestic institutions, particularly the judiciary, the use of international law is often perceived as a means of stabilizing the legal order, contributing to the protection of fundamental rights, and protecting the separation of powers. Legal scholarship which scrutinizes situations of postconflict reconstruction of legal systems often assumes implicitly, or even expressly, that reliance on international law as the source of substantive norms and processes is beneficial to the domestic system because international law imposes a more stringent standard for protection of human rights than domestic law does. However, international law operates at various levels and in various contexts, and in some of them it may have a destabilizing effect on the domestic system. Moreover, courts are often perceived as the guarantors of the application of international law, shielding individuals from the excesses of government. Yet, in practice, courts no less than other institutions may abuse their power, and such abuse carries particular weight as it is carried out under the guise of law.

This article concerns an incident in which the Court of Appeal of East Timor invoked international legal principles relating to the consequences of illegal annexation when determining the domestic law of East Timor under UN administration and after independence, without giving due regard to their implications in the field of human rights. Rather than enhance the post-conflict reconstruction, this invocation risked destabilizing the emerging political and legal apparatus; it could have brought about a fundamental transformation of East Timor's legal system. While the Court of Appeal's attempt to bring about this change was thwarted by the objection of the legal community and the legislature, the incident demonstrates that the recourse to international law must be discriminative so that it does not subvert the very purpose for which this law is invoked.

Section 1 of this article provides a brief background to the post-conflict process in East Timor. Section 2 describes the dilemma concerning the choice of applicable law in post-conflict East Timor, and the role of international law in shaping that choice, while section 3 examines the role that the Court of Appeal attached to international law with regard to the same question. Section 4 analyses the ruling of the Court of Appeal and the implications for domestic law of unqualified reliance on certain branches of international law.