FHESS RESEARCH NOTE 18 — CAREₒ AND ZORGBEVOEGDHEID (LEGALLY ATTRIBUTED CARE CAPACITY) WITHIN THE ROME STATUTE

FHESS RESEARCH NOTE 18 — CAREₒ AND ZORGBEVOEGDHEID (LEGALLY ATTRIBUTED CARE CAPACITY) develops a configurational reading of distributed legal capacity, functional care, resistance, attribution and interim action within the Rome Statute. I — CAREₒ, CONFIGURATION AND ATTRIBUTIONAL READABILITY The research starts from observable acts, words, positions, functions, temporal changes and institutional responses. Their relations are opened as configurations in which different readings can be distinguished, tested and sharpened. FHESS thereby preserves a methodological distinction between what a legal text expressly names, what becomes readable through configurational analysis, and the concepts introduced by FHESS to represent relations found across differentiated legal and institutional positions. The Rome Statute expressly names INDIVIDUAL CRIMINAL RESPONSIBILITY in Article 25. FHESS reads this statutory wording as participating in a CRIMINAL RESPONSIBILITY REFERENCE GRAMMAR through which conduct, material elements, mental elements and possible individual attribution become legally readable. The Research Note investigates this attributional grammar in relation to other capacities distributed across the Rome Statute, including capacities concerning the reception and analysis of information, prosecutorial determination, the establishment of truth, incriminating and exonerating evidence, preservation of testimony and evidence, differentiated judicial functions, protection of victims and witnesses, procedural fairness and the mental element. Within this configuration, CAREₒ (CARE READING OF WHAT MUST REMAIN AVAILABLE) directs the research towards the person, function, capacity, condition or possibility whose continued availability, restoration or functional survival becomes researchable. CAREₒ represents both what is presently available and what may become unavailable when a corresponding care function is absent, interrupted or inaccessible. It therefore operates both as a finding and as a search instrument: EMPIRICAL FINDING → CAREₒ READING → REPRESENTATION OF POSSIBLE LOSS → SHARPENED SEARCH → FURTHER FINDING → SHARPENED CAREₒ READING. This produces an important relation between CAREₒ and attribution. CAREₒ OPENS A NECESSARY SECONDARY SCHULDGRAMMAR where preservation, restoration or functional survival requires differentiation of conduct, causation and possible individual responsibility. “Secondary” identifies the position of SCHULDGRAMMAR in the research entry; it expresses no reduction of its legal or scientific importance. Attribution can become essential to competent CAREₒ. Forensic impartiality is already integrated within the CARE reference grammar before the attributional inquiry is opened. CAREₒ begins from what must remain functionally available and therefore preserves the readability of both inculpatory and exculpatory material from the outset. Balanced evidentiary inquiry enters the configuration as an internal condition of CAREₒ and continues within the necessary secondary SCHULDGRAMMAR as CARE for evidentiary balance and attributional integrity. A plant threatened by aphids provides a simple externalisation. CAREₒ begins from the functional survival of the plant. Investigation can subsequently differentiate the aphids and their causal contribution with increasing precision. Detailed attribution answers WHO CONTRIBUTED TO THE DAMAGE? while CAREₒ preserves the prior functional question WHAT DOES THE PLANT REQUIRE TO REMAIN FUNCTIONALLY ALIVE? PLANT → FUNCTIONAL SURVIVAL AT RISK → CAREₒ → INVESTIGATION → APHIDS BECOME READABLE → DIFFERENTIATION → NECESSARY SECONDARY SCHULDGRAMMAR → KRINEIN → FUNCTIONALLY ADEQUATE RESPONSE. II — RESISTANCE, RESPONSE AND FUNCTIONAL READABILITY SOCIOREFLEXIVE RESISTANCE ANALYSIS (RESISTANCE MADE READABLE AND RETURNED TO THE FIELD) investigates how RESPONSE, WEERSTAND and VERWEER become observable across persons, functions, reference grammars and institutional positions. The term retains a historical research relation to the observability of response in Pavlovian experimental research and Bekhterevian reflexology. FHESS adds a configurational CAREₒ operation: WHAT FUNCTIONAL CAPACITY MAY THIS RESISTANCE BE PRESERVING, RESTORING OR ATTEMPTING TO KEEP AVAILABLE? The resulting movement can be represented as: RESISTANCEₒ → READABILITY → CAREₒ REPRESENTATION → SHARPENED SEARCH → RETURN TO THE FIELD → FURTHER RESPONSE / ANSWER / KRINEIN. RESPONSE (DIALOGICAL FEEDBACK) enters the relation between positions. ANSWER (ENDOLOGICAL FEEDBACK) emerges from the endological reading of the configuration. Both can become new empirical material. PSYCHOSOCIAL RESISTANCE ANALYSIS (FUNCTIONAL RESISTANCE WITHIN SOCIAL FRAMING) names the field in which resistance becomes readable through PERSON >< FUNCTION within a social and institutional configuration. PSYCHO- is used here in a functional sense. SOCIOREFLEXIVE RESISTANCE ANALYSIS names the movement through which the response becomes externally readable and can return to the social configuration as a new condition for inquiry. PSYCHOSOCIAL FIELD → FUNCTIONAL RESISTANCE → SOCIOREFLEXIVE OPERATION → CAREₒ → RETURN TO FIELD → NEW KRINEIN. A pending corruption investigation provides an empirical field in which CAREₒ can be tested while individual criminal responsibility remains open for competent determination. The care object can be the functional integrity, availability and trustworthy operation of the prosecutorial function. POSSIBLE FUNCTIONAL DISTURBANCE → COMPETENT INVESTIGATIVE POSITION → INVESTIGATIVE ACTION → CAREₒ FOR THE PROSECUTORIAL FUNCTION → FACTUAL AND EVIDENTIARY READABILITY → KRINEIN → MULTIPLE OUTCOMES REMAIN AVAILABLE. Investigative acts can preserve, collect, compare and evaluate information. Their CAREₒ readability concerns the capacities these acts preserve for the function and for competent future determination. CAREₒ FOR FUNCTIONAL INTEGRITY → SHARPENED INVESTIGATION → NECESSARY SECONDARY SCHULDGRAMMAR → INCRIMINATING >< EXONERATING READINGS → POSSIBLE ATTRIBUTION → COMPETENT DETERMINATION. An outcome of insufficient evidence or exoneration remains compatible with the CAREₒ reading because the investigation can still preserve institutional integrity, evidentiary readability and trustworthy KRINEIN. The prosecutor’s offer of resignation is first preserved as an observable act. The act changes the PERSON >< FUNCTION relation and makes a functional discontinuity researchable. FHESS then investigates the reference grammar through which RESIGNATION became available as a response from the actor’s position. CONFIGURATION → REFERENCE GRAMMARₓ → RESIGNATION BECOMES AVAILABLE → RESIGNATION IS ACTUALISED. The observable act supports the finding that RESIGNATION was actualised. Identification of the operative reference grammar requires further evidence. Other possible reference grammars and their corresponding responses remain distinguishable research hypotheses. REFERENCE GRAMMARₓ → AVAILABLE RESPONSEₓ → ACTUALISED ACTIONₓ> < FUNCTION discontinuity produced by resignation: REFERENCE GRAMMARₓ → RESIGNATION → PERSON >< FUNCTION DISCONTINUITY → CAREₒ REPRESENTATION OF POSSIBLE LOSS. The research can then examine functional capacity, information, institutional memory, evidentiary access, VERWEERRUIMTE (SPACE FOR DEFENSIVE CAPACITY) and future KRINEIN. FHESS externalises the path from observable material to configurational reading so that each transition remains available for examination and correction: EMPIRICAL ACTION → POSITION → REFERENCE GRAMMAR / HYPOTHESIS → FUNCTION → CAPACITY → POSSIBLE LOSS → PRESERVED READINGS → KRINEIN → CAREₒ READING. The procedure distinguishes what was observed, what relation was found, what grammar is hypothesised, what capacity may be at stake and what competent determination remains open. FHESS also investigates whether an established attributional grammar can become an institutionally easier entry route because categories, positions, procedures and decision points are already organised within it. This is formulated as the MAUPERTUIS HYPOTHESIS OF GRAMMATICAL LEAST RESISTANCE (THE HYPOTHESIS THAT AN ALREADY-ORGANISED GRAMMAR CAN PROVIDE A SHORTER ROUTE FROM FINDING TO INSTITUTIONAL ACTION). POSSIBLE OFFENCE → POSSIBLE PERPETRATOR → EVIDENCE → ATTRIBUTION → DECISION. CAREₒ keeps another opening researchable: FUNCTION → POSSIBLE DISTURBANCE → WHAT CAN BE LOST → INVESTIGATION → DIFFERENTIATION → ATTRIBUTION WHERE REQUIRED → KRINEIN. The empirical comparison concerns which readings and capacities remain available under each entry grammar. III — LEGAL CAPACITY, CARE ACCESS AND FUTURE KRINEIN The functional capacity of the International Criminal Court can itself become a CAREₒ research object. FHESS can therefore ask what must remain available for the ICC and its differentiated positions to receive, investigate, protect, preserve, KRINEIN and act within their legally attributed capacities. CARE FOR THE FIELD >< CARE FOR THE INSTITUTION’S CAPACITY TO CARE FOR THE FIELD. Resistance made readable through FHESS can be externalised and returned to the institutional field, making that readability available to the competent KRINEIN of the Court and its differentiated positions: RESISTANCE MADE READABLE → SOCIOREFLEXIVE RESISTANCE ANALYSIS → CAREₒ REPRESENTATION → COMMUNICATION → POSSIBLE ICC KRINEIN → PRESERVATION OF FUNCTIONAL CAPACITY. Returning a research finding to the institutional field changes the configuration. Subsequent reception, response or other institutional movement can become further empirical material