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

Abstract

In the context of post-conflict restructuring of the legal system, the use of international law is often perceived as a stabilizing factor, contributing to the protection of fundamental rights and protecting the separation of powers by imposing a more stringent standard for protection of human rights than domestic law does. However, international law operates at various levels and contexts, in some of which it may have a destabilizing effect on the domestic system. Moreover, the courts entrusted with applying international law, 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 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. While this 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 discriminatory so that it does not subvert the very purpose for which this law is invoked. The article describes the dilemma concerning the choice of applicable law in post-conflict East Timor, and the intended and unintended roles that international law has had in shaping that choice, noting the implications for domestic law of unqualified reliance on certain branches of international law. It also places the East Timorese experience in a wider context of post-conflict determinations of applicable law in light of international legal principles.