Melbourne Law School - Theses
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ItemRe-constructing a legal system in East Timor : challenges to introducing international legal norms and principles into post-conflict states under UN administration( 2007)The Report of the Panel on United Nations Peace Operations 2000 (Brahimi Report) proposed that the UN rely on a legal code as a potential response to problems of the kind encountered by transitional authorities in Kosovo and East Timor. These problems included limited or compromised local judicial capacity, loss of confidence in the pre-existing legal system, and the administration's lack of familiarity with local law and procedures. This research seeks to analyse the Brahimi Report's proposition in one of the two cases it refers to, relying on field work conducted in East Timor. Specifically, this paper seeks to identify the problems that were encountered by the UN justice teams and examine whether the availability of a model legal code would have significantly affected such issues. I also consider the connection between the problems encountered and the transitional authority's development and application of a mechanism for dealing with international crimes perpetrated. A final question it considers is if a model code would not have been enough to respond to the primary difficulties encountered, are there different approaches which might have been more successful, and could such approaches be useful in assisting future UN missions undertake judicial reconstruction and administration? As mentioned, the context of this research is an analysis of the UN-led judicial reconstruction and administration process undertaken in East Timor. The paper begins with a critique of the academic literature and proceeds to an analysis of research data collected over a nine-month period in rural East Timor. This data relies on firsthand observations of formal court proceedings, traditional dispute resolution procedures, the workings of the civilian police force and penitentiary system, and information obtained during 120 interviews conducted by the author. These interviews provide a unique and powerful insight into the impact that externally imposed judicial reform had on group that, while representing the principal socio-economic demographic, is often overlooked in academic studies, due to its isolation. It is this combination of academic analysis and primary field research that makes this paper an innovative and original contribution to the international legal discourse. The central argument is that the most significant problems affecting the judicial rehabilitation process in East Timor stemmed from incompatibilities between the legal models developed by the transitional administration and the legal cultures and resource endowments of East Timor. In many cases, these incompatibilities concerned provisions in the introduced law drawn from international human rights and criminal justice standards. The availability of a model legal code, based upon such standards, would not have resolved these problems. The central issue is the tension between the UN's commitment to upholding international legal principles and human rights, and the practicality and effectiveness of introducing such norms into post-conflict environments. Until this is resolved, the question of how to approach judicial administration, and how to respond when international standards are incompatible with the domestic legal tradition or national aspirations, will remain unanswered.
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ItemStandards for effective transitional justice decision-making: lessons from South Africa and East Timor( 2007)This thesis examines the valuation of transitional justice. It argues the need for and advances a more theoretically expansive set of ideal standards that can be used to assess the process and substantive outcomes of transitional justice decision-making. In so doing, it advocates a victim-inclusive and sustainable model of justice. Effective decision-making is understood in ideal terms as being :(l) politically and publicly inclusive; (2) methodically planned; (3) politically purposive; and (4) legally comprehensive in the sense of equally recognising state obligations and victim rights.