Volume 10, Issue 2 (Fall 2005)

This volume contains three articles and two comments on current international and comparative law issues. Available online at HeinOnline, Westlaw, or LexisNexis.

Forgiveness and Punishment In Post-Conflict Timor. 10 UCLA J. Int’l L. & For. Aff. 297.

This article explores the post-conflict justice system of Timor Leste, formerly known as East Timor. In 1999, after decades of Portuguese rule and twenty-five years of Indonesian occupation, the people of Timor Leste finally voted for their country’s independence in an UN- administered referendum. Upon announcement of the referendum’s results, the tiny island erupted in violence, resulting in massacres, forced deportations, and “scorched earth operations” orchestrated by Indonesian military, police, and militia forces. In response to the violence, Timor Leste’s government created both a Serious Crimes Panel (SCP) and Commission for Reception, Truth, and Reconciliation (CNRT), which established a unique two-track post-conflict jus- tice system that simultaneously delivers both criminal and reconciliatory justice for crimes committed in Timor Leste during Indonesia’s occupation. Informed by the author’s experiences as a legal intern with the SCP and by interviews the author conducted with SCP personnel, the Commission, and ordinary Timorese, this article examines the rationale underlying Timor Leste’s unique two- track justice system. It looks at why the UN decided that “serious” international crimes were to be accounted for via criminal justice despite Timor Leste ‘s traditions of reconciliatory justice and the expressed preferences of local Timorese politicians. In doing so, this article examines how Timor’s two-track post-conflict justice system has functioned and whether it has achieved the goals envisioned by the UN or Timorese. It also addresses the larger question underlying all these issues of whether decisions on post-conflict justice should be made by the post-conflict society itself or by the international community.

Pulling At The Threads Of Westphalia: “Involuntary Sovereignty Waiver” – Revolutionary International Legal Theory Or Return To Rule By The Great Powers? 10 UCLA J. Int’l L. & For. Aff. 361.

This paper explores the nature of sovereignty, its 17th century fusion with the state as a new political entity, its evolution over time, and challenges to its systemic primacy in the 21st century by thinkers such as Dr. Richard Haass, whose involuntary sovereignty waiver theory is deconstructed as a viable alternative to UN Security Council military intervention preventing human rights abuses, terrorism, and proliferation of weapons of mass destruction. The article also explores Haass ‘s recommendation that the world return to a Concert of Powers system modeled on that which developed from the 1815 Congress of Vienna, and evaluates use of the anticipatory self- defense doctrine as a method of executing involuntary sovereignty waiver theory. This paper also discusses the interplay between internationalist, realist, and neoconservative schools within the Bush foreign policy apparatus and evaluates the efficacy of Haass ‘s theory being employed by each.

Putting The Cart Before The Horse: The Palestinian Constitutional Drafting Process. 10 UCLA J. Int’l L. & For. Aff. 443.

While the world has been closely watching the constitutional drafting processes in Afghanistan and Iraq, the Palestinians have stalled in their own process for a constitution for a future state of Palestine. This may sound dire, particularly as Western politicians, and especially the Bush administration, advance the necessity of a constitution-drafting process as a mechanism for healing internal conflicts and of constitutions as a requirement for democracy. Looked at more closely, however, the stalling of the constitution drafting and adoption process, which collectively I will call the “constitutional process, “will serve the long term interests of Palestinians, and particularly Palestinian women. This article argues that the Palestinian and Western leaderships are putting the cart before the horse by embarking on the constitutional process prior to statehood and, by doing so, harming the growth of constitutionalism and women’s rights in Palestine.

COMMENT: Drawing a Green Line: On the Potential for an Environmental Challenge to Israel’s Separation Barrier. 10 UCLA J. Int’l L. & For. Aff. 503.

The separation barrier (the “Barrier”) being built by Israel in the West Bank and along the Green Line, controversial for a host of political, security and human rights reasons, is an enormous infra- structure project with severe environmental implications. This paper explores the potential of raising environmentally based challenges to the Barrier, in Israeli courts, as an avenue for delaying, altering or stopping the project. Because the Barrier is largely being built in the Occupied Territory the paper examines the legal regime applicable to belligerent occupation in general and the West Bank in particular. The paper next analyzes one of the most important Israeli High Court of Justice (“HCJ”) cases on the Barrier, Beit Sourik Village Council v. Commander of the IDF Forces in the West Bank. Because both international law and Israeli administrative law apply to the Israeli military’s actions in the West Bank, the paper reviews the status of a right to an adequate environment under both international law and Israeli administrative law. In light of these analyses, the paper explores the possible impact that an environmental challenge to the Barrier may have.

COMMENT: In Aid Of Transitional Justice: Eroding Norms Of Revenge In Countries With Weak State Authority. 10 UCLA J. Int’l L. & For. Aff. 541.

This paper relies on the literature on law and social norms to note the often overlooked power of revenge norms in certain areas, and to suggest ways in which states with relatively scarce police and judicial resources can abate the destructive potential of such norms in regions over which they cannot establish direct administrative control. The analysis proceeds in two main parts. It begins with a theoretical discussion of revenge, exploring motivations behind vengeful action, the connection between individual motivation and revenge norms, and ways in which such norms can change. The second part applies the theoretical framework developed in the first part in the context of two states where revenge norms still inflict high social costs-Afghanistan and Albania. Each case study illustrates different types of challenges that administrators could face in attempting to implement the approach recommended here. The paper concludes with a summary of the broad principles to be taken into account during any attempt at the abatement or transformation of revenge norms.

Available online at HeinOnline, Westlaw, or LexisNexis.

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