The Minister of Foreign Affairs (MoFA) is a nation in The North Pacific with high endorsements and influence, but is not a security councillor. The Delegate informed the MoFa and the Minister of Defence (MoD) that they will be busy and have reduced activity for a three day period. Unbeknownst to the Delegate or to the Security Council, on the third day of the absence, the MoFA convinces the Vice Delegate that it would be best if the Vice Delegate seized the Delegacy as there is a small gap in endorsements. The Minister of Foreign Affairs tells the Vice Delegate that this is an extreme situation and emergency and says that he has received reports that we are likely to face invasion from a large scale force while the Delegate is missing. The Minister of Foreign Affairs has no such evidence and does not specify that the Delegate warned him of this absence. The Vice Delegate readily agrees and without consulting with anyone orders The North Pacific Army to deploy to the region to endorse the Vice Delegate. The Vice Delegate is not in the NPA High Command. NPA General Dragon and NPA General Dad refuse to follow this order and expressly disagree with it. The Vice Delegate tries to convince them of the security threat but to no avail. As they continue to disobey, the Vice Delegate says they are fired and will be court marshalled. Remaining NPA officers and soldiers comply with this request and pushes the Vice Delegate into the Delegacy. The Vice Delegate assigns border control to the Minister of Foreign Affairs. After being busy for only 24 hours, The Minister of Defence comes online and disagrees with this decision and orders that the NPA withdraw their endorsements from the Vice Delegate and to ignore any orders the VD may give.
The Vice Delegate announces on the regional forum that the Minister of Defence is no longer the Minister and appoints himself as Minister of Defence. The Speaker calls for an immediate vote on the recall of the Vice Delegate and sends a telegram to the region alerting them to this vote and why he feels it is necessary. Panic ensues in the region with endorsements being exchanged and withdrawn left right and centre. Immediately before the update, the Minister of Foreign Affairs ejects and bans the Vice Delegate from the region and slingshots himself into the Delegacy. After a brief purge, the Minister of Foreign Affair's endorsements are lower than that of the elected Delegate, who returns to find themselves back in the Delegacy and very confused about what has transpired.
Discuss any potential criminal offences or breaches of law that have occurred in this scenario. I would encourage you to refer to specific sections of the legal code, constitution and bill of rights if they are relevant. Previous case law may also be of value to this scenario. Where you lack information or require further information you should elaborate on what detail you require.
This is broken down into looking at the criminal law for each actor, addressing each seemingly relevant offence, and then looking at some other matters that, though most touching on the criminal law issues, also raise points of their own.
Criminal law
The Minister of Foreign Affairs
In the circumstances, the Minister of Foreign Affairs ("MoFA") has likely commited a number of criminal offences, particularly: treason, fraud, and gross misconduct.
Treason
Treason is dealt with in the Legal Code at s1.1 which provides:
Section 1.1: Treason:
2. "Treason" is defined as taking arms or providing material support to a group or region for the purpose of undermining or overthrowing the lawful government of The North Pacific or any of its treatied allies as governed by the Constitution.
This is offence that can be committed in a number of ways, but the most relevant in relation to the MoFA is "taking arms [...] for the purpose of underming or overthrowing the lawful government of The North Pacific" which comprises of two elements: taking arms, being the act or conduct of the offender; and, the purpose of the act being to undermine or overthrow the lawful government of the region, being the mental element of the offence (it is perhaps arguable that this can be further broken down into purposes of "undermining" and "overthrowing" but that is ultimately unnecessary in the present circumstances). The alternate methods of commission, relating to providing material support or to the purpose being directed at a treated ally, do not appear to arise in the circumstances.
"Taking arms" is not defined in the Legal Code and it not been considered in detail in either a request for review or a criminal case, however, in the circumstances of NationStates it is submitted that the use the ejection and banning powers would suffice, given that if forms such a core part of what is regarded as military gameplay. To go further, it would seem readily arguable that the capture of the Delegacy, which again forms a core part of military gameplay would be "taking arms".
In terms of the MoFA's actions, they have used the ejection power against the Vice Delegate in order to capture the Delegacy and then have proceeded to use it further against other nations, so they have "taken arms". They have also engaged in other conduct in advance of this, however, that conduct does not appear to be clearly within what is contemplated by "taking arms".
The mental element of the offence requires that the action be taken "for the purpose of undermining or overthrowing the lawful government of The North Pacific". This is, effectively, a requirement of specific intention, however, in relation to Fraud the Court specifically addressed "intentional" when considering the purpose of a deception as being "for some benefit or to damage another individual" (see: Legal Code, s1.3, cl 12) in
Re: the Standard of Proof and Intent. In that case the Court considered that the this could be satisfied by an objectively reckless intention, that is where the consequence would be something a reasonable person could have expected and by which a Defendant can be reasonably expected to have expected or recklessly ignored the risk of. While plainly addressing Fruad in particular, the wording of the Treason and Fraud clauses are substantially similar (indeed, insofar as they differ, it is arguable that the Fraud clause's specific inclusion of "intention" could make it more strict) and it can, therefore, properly be said that the recklessness standard applies in respect of both.
While the meaning of "undermining" has been the subject of judicial consideration in
TNP v Ravania, it does not, in the circumstances, provide much assistance given the substantially different circumstances and that the Court's conclusion was that "exposing disharmony" was not sufficient to amount to undermining, rather some stricter definition is required that is proportionate to the harsh penalty of the offence.
Other than the consideration above, there has not been detailed consideration of "undermining" or "overthrowing". "Undermining" is suggestive of something less than the toppling of the regional government as the purpose and, while it plainly requires something more than was rejected in
Ravania, it is suggested that this can be met by purposes of preventing officials from carrying out their lawful duties, of damaging confidence in the regional government, and of interfering with the fundamental rights of nations. "Overthrowing" is perhaps more obvious, it suggests a purpose of ending the regional government and legal order as it presently exists and, in particular, by means that are not provided for as part of that legal order.
Ultimately, the MoFA's actions are such that it is difficult to see how, taken together (that is to say, including the acts in relation to other offences), they would not be sufficient to allow for a strong inference that the MoFA was deliberately seeking to undermine or overthrow the lawful government. The MoFA has deliberately misled the Vice Delegate into seizing the Delegacy, has ejected the Vice Delegate from the region, and has ejected a number of other nations. Even absent a conclusion that the MoFA was deliberately acting to undermine or overthrow the lawful government, it is evident that their actions would undermine the lawful government such that a reasonable person could expect that to be the consequence and that it could be reasonable expected that the MoFA had so expected or had recklessly ignored that risk, with the effect that they satsify the recklessness requirement.
The MoFA appears, therefore, to have committed treason.
Fraud
Fraud is addressed at s1.3 of the Legal Code:
Section 1.3: Fraud:
12. "Fraud" is defined as an intentional deception, by falsehood or omission, made for some benefit or to damage another individual.
This offence, again, can be committed in a number of different ways, namely:
- Intentional deception, by falsehood, made for some benefit
- Intentional deception, by omission, made for some benefit
- Intentional deception, by falsehood, made to damage another individual
- Intentional deception, by omission, made to damage another individual
The elements of the offence are: "deception" which can be either an act, if done "by falsehood", or an omission, if done... "by omission"; "intention[]" being a mental element of the deception; and a second mental element, being a purpose of either "for some benefit [for the Defendant]" or "to damage another individual".
As noted above, Fraud has been specifically considered by the Court in
Re: the Standard of Proof and Intent and the Court reached a number conclusions as to the offence.
As to "deception" the Court concluded this required the provision of false information ("by falsehood") or the withholding of true information ("by omission") as to a matter of fact: something that can be determined to be true or false. Further, the fact must be "material", in that it must be something that could be reasonably expected to affect the audience's future actions, and it must be "plausible", in that it must be something that could be reasonably expected to be believed by the audience. In connection with plausibility, it is submitted that this requirement doesn't apply in the case of omissions, as there is in fact nothing for the audience to believe.
As to "intentional" and the purpose requirement, the Court, as noted above, held this can be satisfied by an objective recklessness standard. It is sufficient for it to be that the Defendant can be reasonably be expected to know that their statement or omission lacks truth, in connection with "intentional", and to expect that the consequence will follow, in connection with the purpose.
The MoFA has provided untrue information to the Vice Delegate, as to the invasion, and this information is both material, as it is evident that the Vice Delegate could reasonably be expected to act if an invasion was expected, and plausible, on account of the source of the information being a senior government official (the MoFA) who could reasonably be expected to become aware of such information. Further, they have omitted the true information that the Delegate's reduced activity was announced and expected to end on that day, which is also material, as it can reasonably be expected to affect the Vice Delegate's actions in deciding whether to take the Delegacy as well as their decision making more broadly (and as noted above, I do not consider the plausibility requirement can apply (at least, not without alteration) to omissions).
The MoFA both knows that there is no invasion and that it lacks truth to omit that the Delegate will cease to be "missing" later that day and so meets the "intentional" requirement.
As to purpose, it appears, having regard to the whole of the MoFA's conduct, that it was to their own benefit in that it allowed them to seize the Delegacy; further, the MoFA used the deception to cause the Vice Delegate to take actions that are unlawful (explored below) and that can properly be regarded as being to harm him. While these purpose can be inferred from the MoFA's conduct, it is also the case that their acts are such that the objective recklessness standard would be satisfied, as the consequences above (or, the latter of them at least) can be reasonably expected from the actions such that the MoFA can be reasonably expected to have expected them.
They have, therefore, committed fraud.
Gross Misconduct
Gross misconduct is addressed at s1.8 of the Legal Code:
Section 1.8. Gross Misconduct:
23. "Gross Misconduct" is defined as the violation of an individual's legally mandated sworn oath, either willfully or through negligence.
Gross misconduct is, probably, the widest offence in the region and can be committed in a multitude of ways, given the wide range of matters dealt with in the oaths. In terms of the strict requirements of the offence, it requires: "violation of an individual's [...] sworn oath", which can be by act or omission, depending on the terms of the oath; that the oath be "legally mandated" which forms a circumstantial element of the offence; and that the violation be "willful" or "through negligence" which are mental elements.
Beginning with the "legally mandated" requirement, it is suggested that this, at minimum, relates to oaths that a person is required to take under the Constitution, the Bill of Rights, or the Legal Code (whether it extends to oaths required by rule is a matter that the Court has taken no decision on and which seems to be arguable). Two oaths are required under this definition: the oath of office (replicated below) which is required by the Constitution, art 7, cl 8 and the Legal Code, s4.1; and, the citizenship oath (replicated below) which is required by the Legal Code, s6.1, cl 2.
Moving to the mental elements, "willful" is again addressed by the Court in
Re: the Standard of Proof and Intent which held that it was synonymous with "intentional" and, as noted above, that "intention" can be met by an objective recklessness. "Negligence" has not been discussed by the Court, however, it logically requires something less than what is required by "willful" and I note that the offence was originally addressed only at the conduct of officials with specific duties to meet, so I would suggest it likely amounts to a failure to take care that a person is meeting a duty placed on them, though plainly it must be of a degree that warrants criminal sanction.
In terms of violation, the first relevant oath is the oath of office:
I, [forum username], do hereby solemnly swear that during my term as [government position], I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein.
As noted, this can likely be violated in any number of ways, but it is, particularly, suggested that violation relevant in the circumstances are the requirement not to abuse power and the requirement to act within the restraints of legally granted power.
The second oath is the citizenship oath:
I pledge loyalty to The North Pacific, obedience to her laws, and responsible action as a member of her society. I pledge to only register one nation to vote in The North Pacific. I pledge that no nation under my control will wage war against the North Pacific. I understand that if I break this oath I may permanently lose my voting privileges. In this manner, I petition the Speaker for citizenship in The North Pacific.
Again, there are any number of violations that stem from the terms of this oath, but in the circumstances the term of note is that it requires obedience to the law.
The whole of the conduct of the MoFA has been in violation of these oaths. As to the oath of office, it is arguable that he had abused his power by relying on his office to represent to the Vice Delegate that there was to be an invasion and the independent criminality of that conduct is more than sufficient for it to be gross and excessive; further, he has acted without the scope of his legally granted power in accepting and utilising the ejection power (as will be explored further below). As to the citizenship oath, as it is noted, substantial aspects of the MoFA's conduct is independently criminal and so not in obedience to the law, but they has also breached other aspects of the law including: the Constitutional requirement that the Delegate holds in the in-game position of Delegate (Constitution, art 3, cl 1), by causing the Vice Delegate to take the Delegacy and then taking it themself; the Constitutional requirement that the Vice Delegate holds the second most endorsements in the region (Constitution, art 3, cl 10), by causing the Vice Delegate to take the Delegacy and by ejecting the Vice Delegate; the Bill of Rights requirement that the ejection power may only be exercised when expressly authorised by the Constitution or the Legal Code (Bill of Rights for all Nations, art 8) in conjunction with the Legal Code provisions concern the power (Legal Code, s7.3), by ejecting the Vice Delegate and other nations.
It is, in the circumstances, difficult to see how any of the above could be done except willfully. The MoFA will have therefore committed gross misconduct.
The Vice Delegate
In general, I would note that the Vice Delegate has been an unwitting pawn in the MoFA's game, however, it does not follow from this that they have not committed any offence. Offences that can be satisfied by the objective recklessness standard or the negligence standard do not strictly require the Defendant to actually intend the offence, so the Vice Delegate could be guilty on those bases. I will not repeat the analysis of the individual offences here, but will focus on their application to the Vice Delegate's actions.
Treason
The Vice Delegate has captured the Delegacy and, as discussed above, this likely can satisfy the "taking arms" element of the offence. The substantial question in the circumstances is as to the Vice Delegate's purpose.
On the information available, while it appears clear the the Vice Delegate was not involved in the MoFA's plan, given that the MoFA lied to the Vice Delegate and ejected them from the region, it is not clear whether the Vice Delegate was a rogue actor. The Vice Delegate's failure to consult beyond the MoFA and their actions in assuming command of the NPA and dismissing its leadership in a manner that (as explored below) is unlawful, is perhaps suggestive that they were not acting benevolently.
It is, in the circumstances, arguable that the recklessness standard is satisfied, in that unlawful acts of the kind in question can properly be thought to undermine the lawful government of the region and would be reasonably expected to do so, such that one may reasonably expect the Vice Delegate to have so expected. However, as it is the case that the Vice Delegate does not appear to have been aware of the truth as to the invasion and the Delegate's absence, there appears to be a possibility that, dependant on the Vice Delegate's testimony, one could not be satisfied to the criminal standard that that was so.
Nonetheless, the Vice Delegate may have committed treason.
Fraud
The Vice Delegate did try to communicate information that was false to others, namely the NPA High Command, as to the security threat. However, in the circumstances the evidence appears to be that the Vice Delegate did not know the information to be false and, indeed, it was plausible information given its source.
Thus, while the deception element of fraud is satisfied, given that it is the same false information as that provided by the MoFA, is still material (as one would reasonably expect a security threat to affect the actions of the NPA High Command) and is still plausible (arguably moreso, given it now has the apparent backing of the MoFA and the Vice Delegate), the requirement for intention does not appear to be met to a criminal standard. The plausibility of the information given to the Vice Delegate here affects the assessment as to the reasonable expectation as regards its truthfulness and, in my estimation, does so to the extent that it cannot be said, on the criminal standard, that it can be reasonably expected that the Vice Delegate knew the information to be false.
Again, given the question noted as to the Vice Delegate's motivation noted above, it may be that fraud could be proven by reference to their actual knowledge or belief, such that they can be shown to have an actual intention to deceive, but on the available information that cannot be shown.
The Vice Delegate, thus, has probably not committed fraud.
Gross Misconduct
In terms of the actions of the Vice Delegate that constituted the violation of their oaths, there are a number of violations. As to the oath of office, they have failed to act within the restraints of legally granted power, and as to the citizenship oath, they have not acted in obedience to the law. This is because they have: taken the Delegacy, contrary to Constitution, art 3, cl 1 & 10, as noted above; they have purported to dismiss the Minister of Defence ("MoD") and appoint a new Minister (themselves) and so to exercise a power reserved to the Delegate by Constitution, art 3, cl 8; they have assigned regional officer powers to the MoFA, who does not fall within the terms of Legal Code, s7.2, cl 8 or 9, and so acted contrary to cl 6 of that section; and they have purported to dismiss officers of the NPA and to order an operation by the NPA, which is contrary to the law in that such powers rest in the Delegate (as shown by the provisions of the Legal Code, s7.6, cl 41 and ch 8, cl 2.b-c & 4.a-b & c which are all predicated on the Delegate's control of the NPA) and in that the rule making power under Constitution, art 7, cl 12 appears to have exercised in relation to the NPA to create its Code of Governance (though I have to admit the precise status of the Code is something that has often seemed curious to me) which again gives the power to authorise missions and to dismiss officers to one or the other of the Delegate or the MoD.
These violations are numerous and are substantial to the extent that they would satisfy the negligence standard set out above and, indeed, the objective recklessness standard. Further, depending upon other evidence as to the Vice Delegate's motivations, they may also be shown to have actual intention in respect of the offence.
The Vice Delegate has, therefore, committed gross misconduct
The NPA Generals
It does not appear to me to be arguable that the generals have committed any offence. While it may be that there are circumstances in which disobeying an order can amount to the offence of gross misconduct (depending on the status of the NPA oath) or another offence, this could surely only extend to an order that is given lawfully and, as noted above, the orders given by the Vice Delegate were not lawful (indeed, accepting such orders would have been contrary to the NPA's Code of Governance, given its provisions as to the military executive and approval of missions).
The other NPA personnel
While it is arguable that the offence of gross misconduct has been committed (again depending on the status of the NPA oath), in that the other NPA personnel have accepted orders other than as is provided for by the Code of Governance, it would be difficult, to my mind, to establish any intention above that of negligence (with the effect that other offences have likely not been committed) and it could well be the case that such negligence did not reach the level of requiring criminal sanction.
The Minister of Defence, the Speaker, and the Delegate
There appears to me to be no substantial argument as to any offence having been committed by the MoD, the Speaker or the Delegate.
Matters more widely
Granting the MoFA Border Control powers
As has been noted, the granting of the border control power to the MoFA was illegal. The Bill of Rights in art 8 provides that the power of ejection and banning cannot be granted, save where expressly authorised by the Constitution or the Legal Code. The Legal Code addresses this issue at s7.2:
Section 7.2: Regional Officers:
6. Regional Officers may only be appointed and granted powers as explicitly allowed under this section.
[...]
8. The Serving Delegate may assign Border Control powers to any of the three members of the Security Council earliest in the Order of Succession.
9. In the event of a Delegate Emergency, or with the permission of a majority vote of the Regional Assembly, the Serving Delegate may assign Border Control powers to any member of the Security Council.
This section prohibits the granting of regional powers outside of its terms (though one anticipates that emergency powers could permit deviation). As to the border control power, which amounts to the power of ejection and banning, it restricts this in all circumstances to members of the Security Council and, as is noted, the MoFA is not such a member and so cannot be granted such power.
There would likely be some difficulty in pursuing a challenge by way of request for review of such a grant, as it is hard to think of what affect on a nation's rights there is simply from the grant of the power, so the grant alone would probably be amendable to review only on request of the Attorney General. However, as part of challenge to a ejection by the MoFA, one would think that it is plain this point could be raised.
The ejections
The power to eject is constrained by the Bill of Rights in art 8 in the same terms. The Legal Code regulates the power in s5.4 and s7.3:
Section 5.4: Reckless Endorsement Gathering:
22. The serving Delegate may eject or ban any nation in The North Pacific for reckless endorsement gathering that meets all of the following criteria:
- It is not in the Council or holding the office of Delegate or Vice Delegate.
- It has been reported to the Delegate as a possible threat to regional security by the Council.
- It has continued actively gathering endorsements after two warnings against gathering endorsements sent at least two days apart from each other.
- It has more endorsements than 50 fewer than the Vice Delegate's required minimum endorsement count, or 75 per cent of the Delegate's endorsement level, whichever is least.
23. The serving Delegate may eject or ban any nation in The North Pacific for reckless endorsement gathering that exceeds the Vice Delegate's required minimum endorsement count.
24. Nations banned for reckless endorsement gathering must remain banned at least until they update outside The North Pacific.
25. Unless a delegacy emergency is in effect, any Council member who exceeds the Vice Delegate's endorsement count while the Vice Delegate is above the required minimum for their position must stop seeking endorsements until they have fewer than the Vice Delegate.
Section 7.3: Onsite Authority:
11. Violators of NationStates rules, or residents banned offsite by forum administration, may be subject to summary ejection or banning.
12. Residents banned on the basis of forum bans imposed by forum administration may not be banned for longer than the length of the ban imposed by forum administration.
13. Nations recruiting for other regions may be subject to summary ejection or banning.
14. Nations for which the Court has issued an indictment permitting it may be ejected or banned.
15. Nations that have been so sentenced by the Court will be ejected or banned.
16. The official performing an ejection or ban will promptly inform the region and Government.
[...]
19. All actions of the WA Delegate, the Serving Delegate, or of their appointed Regional Officers related to this section will be subject to judicial review.
Outside of the terms of these sections and emergencies, there is no scope for the exercise of the power of ejection. The powers under s5.4 are exercisable only by the serving Delegate, which is defined in the Legal Code at s7.1, cl 4 as being the person holding the office of Delegate (as distinct from the person holding the Delegacy in game, the "WA Delegate", defined at s7.1, cl 5) and so could not be utilised by the MoFA regardless of whether the criteria of reckless endorsement gathering are met. In relation to s7.3, there does not appear to be any basis in the circumstance to think that any of the provisions are met, thus the ejections would appear unlawful; further, as noted above, there would seem to be a proper basis of challenge to any ejection performed contrary to the requirement of Bill of Rights, art 8 that the power of ejection can only be granted when permitted by law.
Any of the ejections would be amendable to review, as is provided both by Bill of Rights, art 8 and Legal Code s7.3, cl 19.
The Recall
The power to recall an official is set out in the Constitution at art 2, cl 5 and is exercisable by the Regional Assembly on any basis, provided there is a two-thirds majority. The scheduling of business in the Regional Assembly, including votes, is largely the responsibility of the Speaker. The Rules of the Regional Assembly allow any citizen to bring a proposal before it and allow the Speaker to schedule a vote on such proposals, but beyond that the matter is left to the discretion of the Speaker under Constitution art 2, cl 8.
The Speaker has set out how they generally exercise their discretion in their Standing Procedures, which includes requiring a period of five days of formal debate then the scheduling a vote for two or more days thereafter, however, the Speaker is free to vary their Standing Procedures at their discretion and may do so on a case-by-case basis. That this is so was affirmed by the Court in
Re: the Use of the Speaker's Power to End Debate. Consequently, the apparent decision of the Speaker to put the matter of the recall of the Vice Delegate to a vote immediately would appear to be wholly lawful and a matter, essentially, for decision by the Regional Assembly rather than the Court.
EDIT: section 5.4 did not post correctly.
EDIT2: "to dismiss" not, "to dimiss"
