[ABANDONED] Repeal "LEO Force Restrictions"

[The Adeptorum]

THE ADMINISTRATUM OF THE MOST HOLY EMPEROR
OFFICE FOR INTERNATIONAL LAW AND COMPLIANCE

Date: 12/01/2022

After careful examination of the promulgated GA#590 "LEO Force Restrictions", this Office has found it to be in direct contradiction to GA#79 "Ban On Ex Post Facto Laws". As such, this Empire considers it to be INVALID and NON-ENFORCEABLE.

For this reason, and believing in the spirit of international cooperation, this Holy Empire presents the following draft for consideration:

Understanding the importance of international instruments in the legal system dedicated to protecting the rights of sentient beings but,

Observing that Section c(iii) of this resolution creates considerable material obligations that would result in insurmountable economic pressure on small, economically fragile, and less-advanced Member Nations, effectively creating an unfair financial burden and obstacle to compliance,

Noting that the resolution does not contain any provisions for LEOs to exercise reasonable force under the circumstances they are aware of,

Concerned about the inexistence of a statute of limitations or guidelines determining how quickly a review of use of force must occur,

Worried that such omission might impose a perpetual burden over LEOs that going forward would be unsure whether some use of force will later be deemed criminal,

Hereby repeals General Assembly Resolution #590 "LEO Force Restrictions".

In Lux Pariter!

Understanding the importance of international instruments in the legal system dedicated to protecting the rights of sentient beings but,

Observing that Section c(iii) of this resolution inadvertently creates considerable material obligations that would result in an insurmountable economic pressure over Nations with smaller economies or less technologically advanced, effectively mandating those Member States into noncompliance,

Considering that Sections b(i), d(ii) and e require legal actions to be taken upon past facts, presenting member Nations with a requirement for ex post facto application of the law,

Noting that many Nations adopt a legal system based in the Romano-Germanic tradition, upholding the principle of nullum crime sine (prævia) lege, where the law cannot retroact in detriment of the defendant,

Remarking that even Nations whose legal systems follow the Anglo-Saxon tradition and the common law have instruments in place to stop legislation from retroacting in detriment of the defendant,

Having this Assembly issued a ban on laws of this kind through GA#79, or "Ban On Ex Post Facto Laws",

Hereby repeals General Assembly Resolution #590 "LEO Force Restrictions".

Understanding the importance of international instruments in the legal system dedicated to protecting the rights of sentient beings but,

Observing that Section c(iii) of this resolution inadvertently creates considerable material obligations that would result in an insurmountable economic pressure over Nations with smaller economies or less technologically advanced, effectively mandating those Member States into noncompliance,

Considering that Sections d(ii) and e could allow for legal actions to be taken upon facts that happened before its promulgation,

Noting that many Nations adopt a legal system based in the civil law, upholding the principle of nullum crime sine (prævia) lege, where the law cannot retroact in detriment of the defendant,

Remarking that even Nations whose legal systems follow the common law have instruments in place to stop legislation from retroacting in detriment of the defendant,

Having this Assembly previously shown support against ex post facto laws through GA#79, or "Ban On Ex Post Facto Laws",

Concerned about the inexistence of a statute of limitations,

Hereby repeals General Assembly Resolution #590 "LEO Force Restrictions".

In Lux Pariter!

[Tinhampton]

Would this proposal's reference to "Romano-Germanic" and "Anglo-Saxon" legal systems (as opposed to civil law and common law?) constitute real-world references or merely generic references?

[Ainocra]

Hmmmm intriguing argument. I feel as if it may have some traction.

Support

[Untecna]

Would this proposal's reference to "Romano-Germanic" and "Anglo-Saxon" legal systems (as opposed to civil law and common law?) constitute real-world references or merely generic references?

Yes, I believe that would go under that.

Further, I currently have not decided a standing.

[Desmosthenes and Burke]

The Ambassador's point about clause c(iii) may have some validity. It does seem the target proposal does seem to imply an opened ended interminable storage mandate on every body camera recording, which would, in fact, be logistically impossible sooner or later, even for large wealthy nations.

We would ask the ambassador, however, do describe how they think sections b(i), d(ii), and e violate a prohibition on ex post facto or, the more aptly named nullum crime sine lege principle.

OOC: Aside from the real world reference, this reads like an honest mistake to me. Are you sure you understand what ex post facto actually is?

Also, it does not appear to be in the current rule set as a prohibition, but every passed resolution is legal by virtue of being passed no matter how blatantly illegal it would be if submitted now. That has, in the past, been interpreted as a prohibition on using illegality of a passed resolution as an argument for its repeal. Gensec will have to weigh in if they still consider such to be problematic.

[The Adeptorum]

Would this proposal's reference to "Romano-Germanic" and "Anglo-Saxon" legal systems (as opposed to civil law and common law?) constitute real-world references or merely generic references?

OOC: As the terms are synonyms, I didn't consider those mentions as being real-world references. I'll change the draft for it to contain only "civil law and common law".

We would ask the ambassador, however, do describe how they think sections b(i), d(ii), and e violate a prohibition on ex post facto or, the more aptly named nullum crime sine lege principle.

IC: Our general concern is that as currently worded the resolution could open Nations' legal systems to the possibility of LEOs being punished for actions committed before the time of its promulgation by the lack of a clear statement about the devised rules only being effective posthac promulgation. One could argue that the nullum crime sine lege principle is only applicable in criminal law, but we would weight that the risk of LEOs livelihoods being ruined by the wrong application of the aforementioned sections over actions taken when there was no rule set in law is enough of a reason to apply the principle in this case.

Also, it does not appear to be in the current rule set as a prohibition, but every passed resolution is legal by virtue of being passed no matter how blatantly illegal it would be if submitted now. That has, in the past, been interpreted as a prohibition on using illegality of a passed resolution as an argument for its repeal. Gensec will have to weigh in if they still consider such to be problematic.

OOC: The way I word things around the draft is RP as the Holy Empire has the tendency to be extremely direct and over the top, even if always with good intentions at heart. I will amend the text in such a manner that the present contradiction isn't taken as a direct argument for repeal, in accordance with previous Gensec deliberations. I've added a simple statement about the lack of a statute of limitations, as it is concerning to me that the simple use of extreme force could lead to eternal accountability. The reason for it to be concerning isn't there simply because I still do not know the best way word it.

EDIT: In retrospect, an amendment seems like a better solution even if in canon my nation does not recognizes the merit of this resolution (but abides by it as required by International Law). In any case, my nation would still require some diplomatic work in order to receive the endorsements required for presenting a proposal.

[Imperium Anglorum]

First, you don't need to do a poor version of Track Changes on your draft. In fact, it's normally better to have the current version of the draft there entire; if you really want to keep draft history, put older drafts in a spoiler (please don't use the original post, because then the spoilered drafts get caught up when someone clicks 'quote').

Would this proposal's reference to "Romano-Germanic" and "Anglo-Saxon" legal systems (as opposed to civil law and common law?) constitute real-world references or merely generic references?

I would call these real world references.

As to the 'civil' vs 'common' law, you ought also to know that within Roman law, there is a civil law and a criminal law. The Roman civil law is very different from the Roman criminal one (being done under a formulary then cognitio extra ordinem system, while the latter was done ad populum then before quaestiones and then before imperial inquisitors). Similarly, 'Anglo-Saxon' law has separate civil and criminal sections: the civil sections were historically brought under the forms of action and the criminal ones by indictment.

There are other systems of law, all of which have a 'civil' section as well, as the state usually imposes standards for public justice that are different from those that just resolve disputes between private citizens. The word 'civil' therefore isn't well-identified.

[The Adeptorum]

First, you don't need to do a poor version of Track Changes on your draft. In fact, it's normally better to have the current version of the draft there entire; if you really want to keep draft history, put older drafts in a spoiler (please don't use the original post, because then the spoilered drafts get caught up when someone clicks 'quote').

Would this proposal's reference to "Romano-Germanic" and "Anglo-Saxon" legal systems (as opposed to civil law and common law?) constitute real-world references or merely generic references?

I would call these real world references.

As to the 'civil' vs 'common' law, you ought also to know that within Roman law, there is a civil law and a criminal law. The Roman civil law is very different from the Roman criminal one (being done under a formulary then cognitio extra ordinem system, while the latter was done ad populum then before quaestiones and then before imperial inquisitors). Similarly, 'Anglo-Saxon' law has separate civil and criminal sections: the civil sections were historically brought under the forms of action and the criminal ones by indictment.

There are other systems of law, all of which have a 'civil' section as well, as the state usually imposes standards for public justice that are different from those that just resolve disputes between private citizens. The word 'civil' therefore isn't well-identified.

OOC: I'll change the organization of this draft as proposed, I'm just too used to legal texts being edited and published like that IRL and got carried away. You are completely right about the term "civil" not being well-identified or well-defined, especially in this draft context. Would you have any suggestions to present the distinction between the two systems without any real-world reference? As a side note, I took care during the first writing for the text to not ignore the existence of other systems of law by stating that "many nations" and "the nations that use the common law system", which lets implicit that other nations might use different systems from the ones already stated.

[Tsaivao]

OOC: I am a little bit confused about how clause d(ii) in the target exhibit legal actions to be applied retroactively against LEOs. Clause d(ii) and by extension d(i) are basically for explaining how a law enforcement officer is to only consider extensive force or harm, along with a mandate for giving potential victims of said force first-aid after the fact (in other words, shoot if you have to, don't let them bleed out if you can).

Clause e definitely could be problematic, however this is a compel rather than a mandate, so technically this clause is not legally-binding (based on past precedent with similar terms for "advises" and "requests" and what-not). The other problem with this is it being in the imperfect past tense; it is a little unclear whether nations should punish LEOs who "have administered force [in their lifetime]" or those who "have administered force [after the passage of this resolution]", and I think that's definitely a grammatical issue that should not have made it into the final draft. You're on to something there, and I'm wondering what GenSec thinks of that.

As for clause c(iii), I don't necessarily think this is repeal-worthy so much as it is rather blunt and poorly-considered. There are far more expensive requirements for universal living wages, healthcare, housing, and lots more that, more than likely, would be assisted in providing for in some way or fashion (plus the sanctions of the WACC would be a lot more expensive than the cost of most things I think). Basically, "we've gotten away with a lot more"

[Imperium Anglorum]

Considering that Sections d(ii) and e could allow for legal actions to be taken upon facts that happened before its promulgation,

How does it do this?

Noting that many Nations adopt a legal system based in the civil law, upholding the principle of nullum crime sine (prævia) lege, where the law cannot retroact in detriment of the defendant,

C Marcius Blythe. Sed, lex Clodia de Civibus Romanis Interemptis.

[Tsaivao]

C Marcius Blythe. Sed, lex Clodia de Civibus Romanis Interemptis.

Honestly the Latin boner that legalese (and by extension, this repeal) keeps adopting is why I don't ever plan on being a lawyer. OP, can we make an effort to spell things out in more plain English for my poor smooth bird-brain?

[Xanthorrhoea]

OOC:Clause e definitely could be problematic, however this is a compel rather than a mandate, so technically this clause is not legally-binding (based on past precedent with similar terms for "advises" and "requests" and what-not).

Is there a specific ruling on the word “compels”? I would class it amongst stronger verbs such as “requires” and “mandates”. “Compels” carries an implication of being forced to comply, rather than simply being requested. In my reading, this would very much be binding (accounting for the fact that I have practically zero knowledge of Gen Sec’s history and precedents beyond ~6 months ago).

[Tsaivao]

OOC:Clause e definitely could be problematic, however this is a compel rather than a mandate, so technically this clause is not legally-binding (based on past precedent with similar terms for "advises" and "requests" and what-not).

Is there a specific ruling on the word “compels”? I would class it amongst stronger verbs such as “requires” and “mandates”. “Compels” carries an implication of being forced to comply, rather than simply being requested. In my reading, this would very much be binding (accounting for the fact that I have practically zero knowledge of Gen Sec’s history and precedents beyond ~6 months ago).

I seem to recall there being a huge debate about this a few years ago actually, I'm not sure though. I do remember reading a particular proposal that was made illegal due to lacking any binding clauses despite using the term "Compel". Once again I call upon GenSec to clarify and maybe make a dictionary of what is actually adequately considered binding lol

[Princess Rainbow Sparkles]

Understanding the importance of international instruments in the legal system dedicated to protecting the rights of sentient beings but,

Observing that Section c(iii) of this resolution inadvertently creates considerable material obligations that would result in aninsurmountable economic pressure over Nations with smaller economies or less technologically advanced on small, economically fragile, and less-advanced Member Nations, effectively mandating those Member States into noncompliance, creating an unfair financial burden and obstacle to compliance;

I support these grounds for repeal but suggest the above revisions because: (1) the clause did not "inadvertently" create considerable material obligations, it did so deliberately, and (2) while I think the economic burdens were not properly considered by LEOFR I don't think you can fairly claim the resolution 'effectively mandates' noncompliance.

Some of the above is just suggesting word-smithing, for your thought and consideration.

Considering that Sections d(ii) and e could allow for legal actions to be taken upon facts that happened before its promulgation,

Noting that many Nations adopt a legal system based in the civil law, upholding the principle of nullum crime sine (prævia) lege, where the law cannot retroact in detriment of the defendant,

Remarking that even Nations whose legal systems follow the common law have instruments in place to stop legislation from retroacting in detriment of the defendant,

Having this Assembly previously shown support against ex post facto laws through GA#79, or "Ban On Ex Post Facto Laws",

Concerned about the inexistence of a statute of limitations,

Hereby repeals General Assembly Resolution #590 "LEO Force Restrictions".

I think this needs work. While I can see the problems with a lack of a statute of limitations, I think the problem is that officers will never be sure going forward whether some use of force will later be deemed criminal. I can't agree with the argument that LEOFR requires member nations to punish conduct which predates the resolution's enactment. LEOFR does not explicitly require reaching back to acts from before the enactment, and I think a reasonable reading of the law is that it only applies prospectively to conduct which occurs after the enactment of "these Articles" (consistent with the principles of GA #79).

Put simply, while member nations could possibly choose to interpret LEOFR as calling for criminalizing conduct which predates the resolution, I'm not convinced that's a necessary interpretation. If member nations interpreted LEOFR this way it would be a self-inflicted wound. The fact that some members might choose to disadvantage themselves - by interpreting a law in a way they really don't have to - is not a sound basis for repeal.

Going forward, I'd prefer to see this repeal effort focus on the fact that LEOFR does not have any provisions allowing officers to use reasonable force based on the circumstances they are aware of. And that there is no guidelines in LEOFR for how quickly a review of use of force must occur. And there is no statute of limitations limiting the time in which an officer might be retrospectively determined to have used excessive force.

Those are my initial thoughts.

[Imperium Anglorum]

Noting that many Nations adopt a legal system based in the civil law, upholding the principle of nullum crime sine (prævia) lege, where the law cannot retroact in detriment of the defendant,

C Marcius Blythe. Sed, lex Clodia de Civibus Romanis Interemptis.

Honestly the Latin boner that legalese (and by extension, this repeal) keeps adopting is why I don't ever plan on being a lawyer. OP, can we make an effort to spell things out in more plain English for my poor smooth bird-brain?

Wholly simplified, ex post facto laws were recognised under Roman law. An example of that is the lex Clodia de civibus romanis interemptis, which was passed by plebeian tribune Publius Clodius Pulcher in 58 BC, which imposed an ex post facto penalty on any person – magistrates included – who killed Roman citizens (like those who had participated in the Catiliniarian conspiracy) without trial.

The power of the comitia tributa or concilium plebis to make such laws was unlimited, as the Roman people exercised total and absolute legislative sovereignty. Any prohibition on ex post facto laws would be implicitly repealed or excepted by passage of the later ex post facto law by the Roman people. That the comitia had the power to do this was nowhere questioned, even in relation to matters such a religion (eg lex Domitia de sacerdotiis) or wholesale constitutional reform.

---

I can't agree with the argument that LEOFR requires member nations to punish conduct which predates the resolution's enactment. LEOFR does not explicitly require reaching back to acts from before the enactment, and I think a reasonable reading of the law is that it only applies prospectively to conduct which occurs after the enactment of "these Articles" (consistent with the principles of GA #79).

Put simply, while member nations could possibly choose to interpret LEOFR as calling for criminalizing conduct which predates the resolution, I'm not convinced that's a necessary interpretation. If member nations interpreted LEOFR this way it would be a self-inflicted wound. The fact that some members might choose to disadvantage themselves - by interpreting a law in a way they really don't have to - is not a sound basis for repeal.

In general, I agree. The main question here is whether or not nations would choose to interpret a law retroactively. They would not. The main reason is the presumption against retroactivity. Scalia and Garner, Reading Law (2012) 261 (s 41). It would not be a favoured interpretation. Beyond that, there would be the roleplay argument against it as well: that the ban on ex post facto laws by resolution would prohibit member nations from choosing such an interpretation. I would, however, want to avoid getting into the mess of policing interpretation of resolutions – when confined by the interpretation of every other resolution – which would be an extremely difficult burden to put on repeal authors.

[The Adeptorum]

OOC: Okay, some intense bullshitery happened IRL and I couldn't get back to it sooner. I'll try to answer you all without writing a wall of text, lessgo:

1. I'm not a native English speaker, so all corrections and suggestions regarding wording are welcome.

2. Yes, Imperium Anglorum is correct on all their points about Roman Law. Taking their observations into consideration, the draft should only include that the WA has nations that uphold the principle that "there is no crime without a previous law that defines it". There is no need to draw the existence of different legal systems or Latin into this proposal.

3. After reading this thread, the resolution, and the proposal 1000x I do not think I have any strong arguments against Section d(ii).

4. I'm not well versed enough on GenSec matters to know if a nation could choose to interpret the resolution retroactively, which is why the current wording worries me. I would argue they probably cannot, but the argument that policing interpretations would be a mess is compelling. Strategically speaking, dropping the argument against ex post facto laws seems to make the most sense as:

* The WA already has a resolution on that matter.
* It brings the complication of policing interpretations, even though I think we could do better with the wording in booth Sections d(ii) and e
* There are more powerful arguments that do not require bringing such a mess upon me right now.

5. I'll adopt Princess Rainbow Sparkles wording for the argument against c(iii) and some of their suggestions.

6. Please check the updated draft.

[Greater Thamesholm Concilliar Republic]

Noting that the resolution does not contain any provisions for LEOs to exercise reasonable force under the circumstances they are aware of

“Greater Thamesholm supports this repeal.
Criminals cannot be allowed to deliberately purchase the most realistic replicas of guns available to terrorise police.

They cannot be free to shout threats of graphic violence from vehicles with tinted windows (for if you can’t see inside the car, how can you know it contains no weapons?)

Nor should evil men be able to persistently threaten women and the elderly on the street.

If all these types of criminal were arrested at gunpoint the law abiding citizen and even the reformed convict would be safer.

Our police officers receive background checks, all convictions, arrests and cautions must be declared.
Anyone convicted of a felony is not accepted along with anyone convicted of a misdemeanour aged over nineteen
nor is anyone convicted of any sexual offence ever.

They are well-educated:
50.5% of officers have degrees (a requirement for new recruits since 2010) and all constables have five or more General Certificate of Education Basic Levels or equivalent, over 96.9% of officers have Advanced Levels.

In addition our officers all have training in the appropriate use of force.
For new recruits this is either a four year bachelors degree in Policing, or a bachelors degree in a different subject followed by a one-year graduate diploma in policing.
The policing degree and graduate diploma were introduced in 2010 though back then the graduate diploma was six months.


In less advanced times, it was one year in the classroom and a two year probationary period on the street, supervised but with powers of arrest.

Despite this, any officers serving with that limited education now would have more than 11 years of experience.”

[Outer Sparta]

Currently opposed given the lack of a good repeal argument. Since you seem like a new player (unless you had nations in the past), I would suggest looking at past repeals and see how they are structured and such.

[Apatosaurus]

Include "The General Assembly," at the start of the proposal.

[Separatist Peoples]

Concerned about the inexistence of a statute of limitations or guidelines determining how quickly a review of use of force must occur,

"This is not what a Statute of Limitations is, and even if it was interpreted as such, reviews are not themselves criminal prosecutions subject to such statutes. Even if they were, the statutes of limitations on such acts are generally either extremely long or non-existant."

[Greater Thamesholm Concilliar Republic]

Maybe send this to the WA right now.

[The Adeptorum]

Maybe send this to the WA right now.

For everyone interested in this topic, please follow and support this draft: viewtopic.php?f=9&t=514759 as I'm dropping this one.

Thank you!