Oregon Review of International Law : Volume 18, Number 2 (2017)

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https://hdl.handle.net/1794/22774

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    Defending the Principle of Legality in Afghanistan: Toward a Unified Interpretation of Article 130 to the Afghan Constitution
    (University of Oregon School of Law, 2017-09-20) Hashimi, Ghazi
    The 2004 Constitution of Afghanistan is one of the main sources of criminal law in the country, not because it defines crimes and punishments, but because it establishes the fundamental, individual rights and liberties that impact criminal law and procedure. Among these is the principle of legality, as expressed in Article 27 of the Afghan Constitution. The principle of legality is the doctrine that no person shall be held criminally liable for any conduct unless a statute criminalizing that conduct precedes it. This doctrine is based on the idea that it would be unjust to announce that an act is illegal, or increase the degree of punishment for a crime, after that act has been committed. This doctrine however is complicated by Article 130 of the Afghan Constitution, in which courts are directed to use Hanafi Fiqh (jurisprudence) to fill in the statutory gaps when no provision in the Constitution or other Afghan statutes offers a path to justice. This Article explains that, based on Article 130, many criminal courts have used Hanafi jurisprudence to justify convicting individuals for crimes or subjecting individuals to punishments that exist under certain interpretations of Hanafi jurisprudence, but the crimes and punishments are not codified in the Afghan Criminal Code. This Article argues that these interpretations of Article 130 not only violate the principle of legality set forth in Article 27 of the Afghan Constitution, but also contradict international criminal law including the principles of the Rome Statute of International Criminal Court. In addition, this Article asserts that differences in judicial training are at the root of why some jurists interpret Article 130 to allow for this level of discretion and some do not.
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    Alternative Business Structures for Lawyers and Law Firms: A View from the Global Legal Services Market
    (University of Oregon School of Law, 2017-09-20) Hill, Louise Lark
    This Article begins by looking at formulations of law practice from a European perspective, focusing on European Union law and mandates that relate to lawyers and the delivery of legal services. The Article then examines the legal professions within specific countries, highlighting various practice configurations and the positions taken by their respective governments on law firm structures that vary from the traditionally recognized norm. Finally, I conclude in this Article that the changes now being experienced will continue to evolve, both structurally and from a regulatory standpoint. As competition in the marketplace mounts, lawyers will continue to innovate in order to gain market presence and meet client needs. However, all these changes must be accompanied by the implementation of standards to protect the core values of the profession.
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    Facing an Ugly Truth: The Senate’s Report on CIA Torture as Truth-Telling
    (University of Oregon School of Law, 2017-09-20) Seyfarth, Lucia H.
    Known as the “torture report,” the U.S. Senate’s December 2014 report on the CIA’s post-9/11 interrogation program described years of systematic human rights abuses born from an official policy of torture and cruel treatment. The Obama administration ended the program in 2010, marking a transition away from these statesponsored human rights violations. In such a transitional society, it is crucial that the truth be available to the public and to victims to help them move past atrocities; the torture report may be a mechanism for such truth-telling. By considering similar truth-telling reports from other countries as well as the context of the torture report, I assess how this report contributed to transitional justice in four ways: by discovering and acknowledging past abuses, addressing the needs of victims, advancing accountability, and creating institutional reforms and promoting national reconciliation. While not perfect in any respect, the report has affected the way Americans view the CIA program, contributed to legislation banning torture, and created consequences for some of the program’s architects.
©2017 University of Oregon School of Law