Pope May Face Arrest

If a UN judge gets his way. And a certain segment of the British public. Summary:

The AP ran a story on Geoffrey Robertson's campaign to prosecute Pope Benedict for crimes against humanity at the International Criminal Court (ICC). I found the story at the blog Opinio Juris, where Julian Ku seems sympathetic to the idea of using international law in this way, although he doubts it would happen. Without in any way minimizing the anguish of the victims of the sex abuse scandal, this latest campaign to use international law against the Vatican by a prominent UN official deserves close scrutiny. Generally, members of the UN Secretariat are supposed to be impartial in matters concerning UN membership. Why did the Secretary General appoint Robertson to a privileged position – one of five jurists responsible for the UN's new internal justice system – when he has been publicly critical of one of the UN special observers? Would a vocal critic of the ILO be given such a post? Better question: will Robertson, who is in charge of the system that punishes misdoings by UN staff and management, escape accountability on this score?

The UN judge speaks:

The Vatican says the pope, as a "head of state," is immune from legal action. But U.N. judge Geoffrey Robertson says the Vatican is wrong—and that the pope could be tried for systemic sex crimes.

Well may the pope defy “the petty gossip of dominant opinion.” But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state—and of the pope to be a head of state, and hence immune from legal action—cannot stand up to scrutiny...

Head of state immunity provides no protection in the International Criminal Court.

In legal actions against Catholic archdioceses in the U.S., it has been alleged that this reflected Vatican policy as approved by Cardinal Ratzinger (as the pope then was) as late as November 2002—sexual assaults were regarded as sins that were subject to church tribunals and guilty priests were sent on a “pious pilgrimage” whilst oaths of confidentiality (“papal secrecy”) were extracted from their victims...

This is a dodgy portrayal at the very best. Church law handles cases one way, and operates within the structure of the Church. But as has been stated repeatedly in recent days, at no point did Church law attempt to stand in the way of civil actions against abusive priests. Heck, we can't in almost every country on earth at the present time. Unless someone wishes to make complaints about affairs within the Vatican itself (which may legitimately done) or in the old Papal States, or possibly Italy/some other place which recognizes Church law in a more forceful sense than the USA, then please don't act as though in house policies really prevented the police from enforcing the law in the past. Mark Shea was right on when he said "I think that the solution to many of these problems remains what it has always been: If we laypeople think that somebody like Father Murphy belongs behind bars, then hey! We own all the cops, guns, lawyers, courts, and jails. But, in fact, we laypeople opted to do nothing about Father Murphy when we knew all too well what sort of creep he was." Robertson continues:

...in 2005, a test case in Texas failed because the Vatican sought and obtained the intercession of President George W. Bush, who agreed to claim sovereign (i.e., head of state) immunity on the pope’s behalf. Bush lawyer John B. Bellinger III certified that Pope Benedict XVI was immune from suit “as the head of a foreign state.”

The third Mr. Bellinger is notorious for his defense of Guantanamo and Bush administration torture policies, and his opinion on papal immunity is even more questionable. It hinges on the assumption that the Vatican or its metaphysical emanation, the Holy See, is a state. But the Papal States were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Benito Mussolini endowed this tiny enclave—0.17 of a square mile containing 900 Catholic bureaucrats—with “sovereignty in the international field... in conformity with its traditions and the exigencies of its mission in the world.”

The notion that statehood can be created by another country’s unilateral declaration is risible. If it weren’t, Iran could make Qom a state overnight and the U.K. could launch the city of Canterbury on to the international stage by the same process. But it did not take long for Catholic countries to support the pretentions of the Holy See, sending ambassadors and receiving Papal Nuncios in return. Even the U.K. maintains an apostolic mission that, until 2005, was always filled by British Catholics.

And that last bit would appear to be false. If they are referring to the post of Ambassador to the Holy See, the current holder of that office, Francis Campbell, is the first Catholic in the position since the Reformation. If Robertson is accurate in his challenge to Vatican statehood, though, then the basis for the Vatican policy of acquiescence to the loss of the papal states falls away. We are facing a fundamental challenge to the operations of the Church in the modern age. I don't know if I can emphasize this enough: this cuts at the roots of the Church's independence and existence in the modern world, possibly forcing a reordering of our relationship with the wider world, if Robertson succeeds with this campaign or it is taken up by others. And the rest:

The U.N. at its inception refused membership to the Vatican (U.S. Secretary of State Cordell Hull said emphatically that it could never attain statehood) but has allowed it a unique and anomalous “permanent observer status,” permitting it to become signatory to treaties like the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at U.N. conferences, where it promotes its controversial dogmas on abortion, condoms, and homosexuality. This has involved the U.N. in blatant discrimination on grounds of religion, as other faiths are unofficially represented, if at all, by NGOs. But it has encouraged the Vatican to claim statehood—and the immunities from liability that attach to heads of state.

This claim could be challenged successfully in the U.K. if the pope is served with a writ when he visits there in September. Unlike overly deferential American judges, British courts do not accept the executive’s word on who gets immunity. Had Chile's General Pinochet gone to New York instead of London, the White House would have stopped his extradition proceedings immediately rather than allowed him to be detained for 18 months while the courts determined that as a former head of state he could not claim immunity from torture charges.

In any event, head of state immunity provides no protection in the International Criminal Court (hence its current indictment of President Bashir). The ICC statute defines a crime against humanity to include rape and sexual slavery and other similarly inhumane acts causing serious harm to mental or physical health committed against civilians on a widespread or systematic scale if condoned or tolerated by a government or a de facto authority. The U.N. Appeal Court in Sierra Leone has held that recruitment of children as soldiers or sex slaves for an army amounts to a crime against humanity.

If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto authority—i.e. the Catholic Church—then under the command responsibility principle of international law (laid down by the U.S. Supreme Court) the commander can be held criminally liable. He falls within the temporal jurisdiction of the ICC so long as that abusive practice and the policy to tolerate it continued after July 2002, when the court was established.

Pope Benedict has recently been credited with reforming the “papal secrecy” system he allegedly approved in 2002, so that guilty priests may now be reported to civil authorities, although initially (and disgracefully) he blamed the scandal on “gay culture.” His admonition last week to the Irish church repeatedly emphasised that heaven still awaits the penitent pedophile priest. The Holy See may offer the prospect of redemption to its gravest sinners, but it must be clear in law that the pope does so at his own risk—as a spiritual adviser, and not as an immune sovereign.

And AP took up the story on the upcoming visit to Britain:

Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.

The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.

Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.

Well. This next bit is...interesting.

"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.

Read it all.