Pursuant to the Court's ruling, Petitioner submits the entirety of the logs he previously provided for in camera review for consideration as part of the public record. The original logs are in three parts, shown in the following images:

https://pastebin.com/pzsfXucv
https://pastebin.com/fu8EZgZF
https://pastebin.com/PY7hGv1T

Petitioner also submits the annotated copy of the logs he previously provided to the Court:

https://docs.google.com/document/d/1jHYV...sp=sharing

These logs should not be in this case because it is clear that they do not support the allegation for which the Cabinet cited them that Petitioner "attempted to sabotage military operations of The South Pacific, outside of normal raiding and defending dynamics."  They show a fairly typical if frank discussion between regional representatives after an incident that caused tensions between the regions. Discussions like this happen all the time in NationStates. They are not attempts to sabotage regions, they are diplomacy. However, given that the Cabinet maintains its allegations based on these logs, Petitioner requests the Court consider them and provides them in open Court as required by the Judicial Act now the Court has concluded no redaction is needed.

Reply

For Immediate Release
09 September 2018

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The Court provides notice to the general public that the ruling on HCRR1803: Review of the Proscription of Ever Wandering Souls will be released on 12 September at 08:00 EST. The Court will thereafter entertain questions and doubts regarding the legal reasoning expressed in its opinion, and the process it followed in the consideration of the review request, but it will not consider questions regarding the political ramifications of the same, nor will it express opinions of a political nature on any other unrelated subject.

Former Delegate of the South Pacific
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I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

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(This post was last modified: 09-12-2018, 08:45 AM by Kris Kringle.)

Reply

The cabinet of The East Pacific has requested that we state the following for the public record: The dispute between The East Pacific and The Black Hawks came to a satisfactory resolution. In the reissue of the proscriptions that are planned after the delivery of the court's opinion, the Cabinet of the South Pacific does not intend to include any mention of The East Pacific.

Reply

Counsel is advised that the courtroom is not a venue for the conduction of foreign policy. If the Cabinet wishes to entertain requests from a foreign power, it has its own public venue where such posts may be made.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
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Reply

HIGH COURT OF THE SOUTH PACIFIC
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HCRR1803
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REVIEW OF THE PROSCRIPTION OF EVER WANDERING SOULS

APPEAL TO CONTEST THE PROSCRIPTION OF EVER WANDERING SOULS ON 24 JULY 2018

12 SEPTEMBER 2018

CHIEF JUSTICE KRINGLE delivered the opinion of the Court, signed also by JUSTICE BELSCHAFT.

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Summary of the Opinion

It is the opinion of the Court that the reasons listed by the Cabinet to account for the proscription of Ever Wandering Souls are not sufficient to justify its continued validity, and therefore the proscription should be overturned. The Court disagrees with the assertion that the Appellant’s interactions with Imkitopia constituted undue interference over military affairs and that the Appellant was the sole reason for the blacklisting of The Black Hawks by the East Pacific and the West Pacific. In addition, while the evidence from Item E does show questionable behaviour, it is not as conclusive as the Cabinet asserts.

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Much like in a recent case, this Court finds itself in the position of reviewing a government action that seeks to prevent the participation of an individual in the affairs of the region. In Review of the Ban on Malayan Singapura, the Court overturned a ban imposed by the Local Council, arguing that due process had not been followed and. In this case, the Cabinet has deemed there to be sufficient evidence to prevent Ever Wandering Souls from participating in this region. It is incumbent upon the Court to determine if the evidence considered by the Cabinet is indeed sufficient for the proscription to remain in effect, or if it should be overturned, and Ever Wandering Souls allowed to have a chance at participating in this region.

I

Ever Wandering Souls (hereafter “the Appellant”) was proscribed by the Cabinet of the South Pacific on 24 July 2018. This measure was taken pursuant to the Proscription Act (hereafter “the Act”), citing a number of reasons that, in the Cabinet’s view, amounted to Acts of Hostility under Article 1 of the Act. The Court has deemed it prudent to review each of the accusations levied against the Appellant, to consider the arguments brought up by both sides to this case during the course of Public Argument, and to determine if, both individually and collectively, they justify the present proscription.

A. Consideration of the South Pacific as an Enemy Force

Item A of the declaration of proscription (hereafter “the proscription”) asserted that the Appellant “outright considers TSP an enemy force [1]”. In their initial appeal, the Appellant contended that “Item A does not meet the standard for an act of hostility [2]”. To that effect, it was argued that the Appellant does not in fact consider the South Pacific an enemy force and, even if that were the case, a belief would not meet the threshold for an act of hostility under Article 1 of the Act.

The Counsel for the Cabinet (hereafter “Cabinet’s Counsel”) acknowledged that Item A was not meant to support any particular claim of hostility, but rather to “establish hostility in the colloquial sense”. To the extent that Item A neither supports an argument for hostility under the Act, nor was it meant to support such an argument, the Court will disregard Item A as an argument towards the determination of hostility, and will consider it merely a contextual clause.

B. Attempt to Manipulate the Special Forces

Item B of the proscription indicates that the Appellant “attempted to manipulate the SPSF (…) into firing SPSF soldiers deemed detrimental to [The Black Hakws] [3]”. This assertion was disputed by the Appellant in their initial appeal, and subsequently by their counsels (hereafter “Appellant’s Counsel”).

In the initial appeal, the Appellant presented a two-fold argument. It was argued that a discussion between the Appellant and Imkitopia, then Minister of Military Affairs of the South Pacific, on 20 September 2016, did not rise to the level or coercion or manipulation, but was instead part of a legitimate exploration of the potential for future cooperation between the South Pacific and The Black Hawks. It was further argued that, regardless of the specific contents of the discussion, the Appellant was acting as a representative of, and pursuant to, the legitimate interests of The Black Hawks, and therefore “covering potential roadblocks to such a cooperation, and what it would take in the eyes of either potential ally to clear said roadblocks, are entirely ‘normal’ elements of the ‘raiding and defending dynamic’ [4]”.

Article 1, Section 4 of the Proscription Act indicates that, to qualify as an act of hostility, the act must be an attempt to “sabotage military operations of The South Pacific, outside of normal raiding and defending dynamics [5]”. While the Court will not endeavour to interpret in a comprehensive manner the full meaning of said clause, it does understand that the clarification that the act must fall “outside of normal raiding and defending dynamics [6]” compels it to apply a higher standard, wherein the act could not be reasonably interpreted to be a legitimate and regular action consistent with the dynamics of military gameplay. Instead, the action must be an unreasonable way to pursue goals by any given individual or organisation, as would be seen by a reasonable person.

Cabinet’s Counsel argued that the Appellant sought the removal of Roavin for his actions in an operation in the region Spanish Kingdom, on 19 September 2016. This operation was the liberation of the aforementioned region by a multiregional coalition, including the South Pacific Special Forces, from occupation of the Sekhmet Legion. This liberation was made possible, in part, because Roavin tricked Lone Wolves United, who were supporting the occupation force, into diverting resources to a different operation. As Cabinet’s Counsel explained, the Appellant “then reached out to Imki, utilizing argumentum ad misericordiam to argue quite heavily in favor of dismissing Roavin for his actions in Spanish Kingdom [7]”.

Appellant’s Counsel responded that the Appellant did not coerce Imkitopia into removing Roavin, or any soldier for that matter; instead, it was contended that the Appellant merely “raised concerns about a particular soldier and suggested that removal of that soldier would make entering into a longer term relationship easier [8]”.

The Court had the opportunity to review the contents of the conversations between the Appellant and Imkitopia. One discussion, held on 25 August 2016, does seem to support the assertion of the Appellant and Appellant’s Counsel that there was a wider exploration of the possibility of closer cooperation between the South Pacific and The Black Hawks. This is evident given that the Appellant asked Imkitopia about the Special Forces’ policy on the ejection of natives (“how strict is the natives policy [9]”), tagging of World Factbook Entries (“so you don’t have to undo the WFE at the end? [10]”) and operational security (do you have a way to spread word to your updates without letting [Roavin] know what update we’ll be aiming at ahead of time? [11]”).

There was a second conversation on 20 September 2016, which is the discussion subject of Item B. In this conversation, which occurred in the aftermath of the operation in Spanish Kingdom, Imkitopia explained to the Appellant Roavin’s role in the operation, and provided an assurance that he would not be allowed to participate in future raids, as a soldier in the Special Forces. The Appellant acknowledged the assurance, but also stated that Roavin’s actions, which resulted in the liberation of Spanish Kingdom, difficulted the future possibility of cooperation between the South Pacific and The Black Hawks. This remark is particularly telling:

I take your word when you say this won’t happen again, and Roavin will not be let near anything remotely raid related… but you’ve got to consider that for me, that’s the exact same thing I told my bosses before this happened, and now I’ve also got to fight past TGW bragging in GP that SPDF helped them sabatouge an operation TBH was on. [12]

Cabinet’s Counsel contends that there was already a relationship between the two regions, and that the Appellant pressured Imkitopia to expel Roavin from the Special Forces due to his actions in Spanish Kingdom. Whether there was already a relationship is beyond the scope of the Court to determine, but it does stand to reason that a relationship within its first month of existence, assuming it started upon the first discussion between the Appellant and Imkitopia, would be more prone to evaluations and reconsiderations than a relationship that has endured the test of time. As far as the second point is concerned, the Appellant does suggest that Roavin should be expelled, saying that “the longer [Roavin] stays connected to your org in nothing but name while acting fully as a warden (…) the harder it is for me to justify the already-strained relationship with the south pacific defence force [13]”. Imkitopia’s immediate response, however, lends credence to the view that this was nothing more than a legitimate exposition of concerns between the representatives of two regions:

This is a mess and I concede I made a mistake being too hasty allowing Roavin to do it without thinking about his motives but I was not the only one to make mistakes in this situation. (…) All I can say is I’m sorry and it wont happen again but if you don’t want to work with us again that is yoru choice. [14]

This does not seem to be the response of someone who is being pressured into a certain action. In fact, in a response to the proscription, posted on the Gameplay forum, Imkitopia indicated that the incident with the Appellant “was not an issue in any way, shape or form and nobody cared about it at the time [15]”.

The Court sees no reason to dispute the testimonies of the two individuals who participated in the discussion mentioned in Item B, both who argue that there was no undue pressure or sabotage outside of normal raiding and defending dynamics. Based on the evidence the Court has been able to examine, the discussion referenced in Item B does seem to pertain to the legitimate exchange of concerns between two regional officials, rather than being an act of hostility under the Proscription Act.

C. Blacklisting of The Black Hawks by the West Pacific and the East Pacific

The proscription asserts that the Appellant “is the singular reason why [the West Pacific] proscribed his entire region, relating to ill-suited conduct during a joint raid [16]” and further that he “is the singular reason why [the East Pacific] (an ally) proscribed his entire region, relating to blackmailing the EPSA military commander [17]”. These assertions refer to Items C and D of the proscription, respectively, but they will be addressed separately, since the main points of each are also separate.

Article 1, Sections 1 through 3 of the Proscription Act indicate that the actions explained therein, should they be committed against “allies and partners” of the South Pacific, shall qualify as acts of hostility. Cognizant to this, the Court sought to ascertain whether the West Pacific and the East Pacific qualify as either an ally or a partner. Said determination was simple regarding the East Pacific: recently a treaty was signed with it; therefore, it does qualify as an ally, as the term is customarily understood, and falls under the provisions of the Act. Since the West Pacific is not an ally, the Court asked Cabinet’s Counsel if the Cabinet considers it a partner. In his response, Cabinet’s Counsel responded in the negative, further saying that “the militaries of the South Pacific and the West Pacific have, on occasion, worked together on interregional operations, but for the most part, the two regions don’t interact much [18]”.

Insofar as the West Pacific is neither an ally nor a partner, as conceded by Cabinet’s Counsel, Item C cannot be considered an act of hostility. It can be considered contextual information for Item D, which does concern an ally of the South Pacific, in terms of the pattern of behaviour exhibited by the Appellant, and the Court has sought to treat it as such.

The East Pacific, alongside the West Pacific, blacklisted The Black Hawks on 27 March 2018, accusing it of “exploiting the GCRs for gains and attempting to manipulate their regional communities to capitulate into demands for support while offering nothing of substance in return [19]”. This blacklisting was rescinded by both regions on June 15. Upon further inquiry, Ark, Minister of Foreign Affairs of the West Pacific, informed the Court that they stood by the concerns expressed by Davelands, who held the office at the time of the proscription:

TBH was blacklisted because of a pattern of behavior over a period of time, and yes, Souls was part of that. But even then, once we had a chance to really go through things and let some time pass, we realised that it was too harsh of a penalty and rescinded it. [20]

In addition to the above, Cabinet’s Counsel conceded that the Appellant never blackmailed a commander of the East Pacific Sovereign Army (EPSA), as the proscription asserted. In his initial brief amicus curiae, Cabinet’s Counsel indicated that “the original proscription announcement should have read ‘bullied’ rather than ‘blackmailed’ [21]”. This is a significant difference, and one that the Court cannot overlook, for two reasons.

One reason is that, while a case could reasonably be made that blackmail is part of a sabotage operation against the East Pacific, an ally of this region, the same cannot be said with bullying, lest further particulars are provided. Since the Cabinet has provided no such particulars, the Court has little context on which to operate. It concedes the claim by Cabinet’s Counsel that Items C and D could conceivably establish a pattern of behaviour, but, in the opinion of the Court, the proscription does not provide sufficient information for that pattern to be evident.

Further, the Court must be sceptic to the accuracy of Item D, and indeed to the entirety of the proscription of the Appellant, if the Cabinet was not sufficiently thorough as to review its statement before publication. This case is not one of misspelling; there is a significant difference between blackmail and bullying. If such a mistake was left unseen by the Cabinet, and only acknowledged during the proceedings of this case, why should the Court trust that the other four items argued as justification for the proscription of the Appellant are accurate and representative of an actual pattern of hostile behaviour? Insofar as the Court cannot trust the Cabinet’s assertion that the East Pacific was subject to sabotage of its military operations outside of normal raiding and defending dynamics, Item D cannot be considered an act of hostility under the Proscription Act, nor can it be considered, alongside Item C, a pattern of behaviour indicative of hostility.

D. Conspiracy to Overthrow the Coalition

Item E of the proscription is an assertion that the Appellant has conspired to overthrow the Coalition of the South Pacific. In particular, it was said that “sensitive intelligence suggests [Ever Wandering Souls] has conspired, or is conspiring to, overthrow the Coalition and ‘cleanse’ it [22]”. There was no further explanation within the proscription statement itself, a point that was raised by the Appellant in their initial appeal:

It’s a fair assessment to state that I do not consider several of those who have held office in TSP to be people I particularly like. All of this noted, expressing such thoughts are not an act of hostility (…). Idle chatter about imaginary futures does not a plan for action make. [23]

The Court was given access to the aforementioned sensitive intelligence, so it could evaluate for itself whether that evidence truly shows a conspiracy to overthrow the Coalition. This evidence was not shared with the Appellant, on grounds that any level of disclosure would severely affect the intelligence capabilities of the South Pacific. This, however, was not to be seen as indication that the Court agrees with the assertions made with respect to the evidence itself. While there was no possibility for the Appellant to dispute the evidence in Item E, the Court still applied a high standard to determine whether conspiracy had taken place.

Given the sensitive nature of the evidence, the Court is not in a position to openly discuss the particulars of its contents. However, it is not convinced that the Appellant actually took part in a conspiracy to overthrow the Coalition. There were indeed conversations that would be troubling, from an intelligence standpoint, but the standard for security concerns is not the same as that employed by the Court. In this case, while the evidence shows that the Appellant is no friend to the South Pacific, it does not show convincing evidence that an actual conspiracy was put into place to overthrow the Coalition or purge current leadership, much less to install an alternative government.

II

In considering the present appeal, the Court has aimed to be fair. It recognises the right of the Cabinet, pursuant to the Proscription Act, to proscribe individuals and organisations that have caused a damage to this region, its allies and partners. While individual actions may not necessarily amount to acts of hostility, Cabinet’s Counsel was right to contend that, taken together, these actions may well describe a pattern that does amount of an act of hostility. If that were the case, the Court would concur with the Cabinet’s judgement and uphold the proscription.

A proscribed party also has a right to appeal their proscription. This is a useful mechanism to ensure that proscriptions respond to facts, rather than facts being a means for an already intended proscription to take place. That does not mean that an appeal will necessarily lead to the proscription being overturned. The Court always rules based on what facts can support, and if facts support the narrative put forth by the Cabinet, then the appeal must, again, be upheld. But, by the same token, if facts do not appear to support a proscription, the Court should not hesitate to overturn it.

Based on the evidence submitted by the Cabinet, it is clear that Ever Wandering Souls is no friend to the South Pacific, and that he has repeatedly expressed a severe dislike for the Coalition, and many of the individuals who form its government. Ever Wandering Souls has made it clear that he wishes to see the Coalition overthrown, and would encourage and applaud anyone who did; that said, under the Proscription Act, this is not sufficient to warrant a designation of hostility.

The Proscription Act provides five specific criteria that describe what may be considered hostile acts, and the opinion of the Court is that the evidence presented does not form a convincing case that acts of hostility, as defined by these criteria, took place. A reasonable reading of the conversation between the Appellant and Imkitopia does not lead to the conclusion that any undue pressure was exerted. The West Pacific is neither an ally nor a partner, and the Court finds itself unable to trust the Cabinet’s claim that alleged bullying of a commander in the EPSA constituted sabotage. The Court also disagrees with the contention that the evidence referenced in Item E shows participation in an actual conspiracy to overthrow the Coalition.

It is not sufficient for an individual to express a desire or wish to commit acts of hostility, or to witness such acts be committed by others; it must be proven that it is substantially more likely than not that they have already committed acts of hostility. The Court does not consider this to be the case; that is not a claim that such acts could not conceivably take place in the future, nor a claim that such acts have not occurred, merely that the evidence presented by the Cabinet does not meet this burden.

In view of this, the Court has no option but to grant the appeal and order that Ever Wandering Souls be permitted to freely and fully participate in the South Pacific.

It is so ordered.

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Sources

[1] Cabinet of the South Pacific. (2018). Proscriptions. Retrieved from http://tspforums.xyz/thread-6362.html
[2] Ever Wandering Souls. (2018). Appeal of the Cabinet’s Proscription. Retrieved from http://tspforums.xyz/thread-6363-post-17...#pid173752
[3] Cabinet of the South Pacific. (2018).
[4] Ever Wandering Souls. (2018).
[5] Assembly of the South Pacific. (2018). Proscription Act. Retrieved from http://tspforums.xyz/thread-6204.html
[6] Assembly of the South Pacific. (2018).
[7] Roavin. (2018a). Brief Amicus Curiae in Support of the Cabinet’s Position [02 August 2018]. Retrieved from http://tspforums.xyz/thread-6363-post-17...#pid173950
[8] Malashaan. (2018). Brief Amicus Curiae in Support of the Appellant’s Position [15 August 2018]. Retrieved from http://tspforums.xyz/thread-6363-post-17...#pid174274
[9] Ever Wandering Souls & Imkitopia. (2016). Retrieved from https://docs.google.com/document/d/1jHYV...sp=sharing
[10] Ever Wandering Souls & Imkitopia. (2016).
[11] Ever Wandering Souls & Imkitopia. (2016).
[12] Ever Wandering Souls & Imkitopia. (2016).
[13] Ever Wandering Souls & Imkitopia. (2016).
[14] Ever Wandering Souls & Imkitopia. (2016).
[15] Imkitopia. (2016). “My issue isn’t with your proscription as I’m no longer involved or have any interest in the affairs of TSP unless they concern Lazarus.” Retrieved from https://forum.nationstates.net/viewtopic...#p34408068
[16] Cabinet of the South Pacific. (2018).
[17] Cabinet of the South Pacific. (2018).
[18] Roavin. (2018b). Brief Amicus Curiae in Support of the Cabinet’s Position [20 August 2018]. Retrieved from http://tspforums.xyz/thread-6363-post-17...#pid174498
[19] The East Pacific & The West Pacific. (2018). Notice of Joint Action. Retrieved from https://forum.nationstates.net/viewtopic...#p33725127
[20] Davelands. (2018). “Please change ‘Is the singular reason why TWP proscribed his entire region,… ‘ to ‘Is a reason why TWP temporarily proscribed his entire region,…’”.
[21] Roavin. (2018a).
[22] Cabinet of the South Pacific. (2018).
[23] Ever Wandering Souls. (2018).

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

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