Prosecuting the Pope

5 Oct

The inaction of the Pope in relation to claims of sexual abuse of children by priests has enveloped the international media for some months. It has been established that the Pope and much of the hierarchy of the Catholic Church are complicit in the active concealment of cases of paedophilia in the clergy. A typical case of a priest abusing children would be resolved by the Church using canon law, which generally imposes no substantial punishment, and the perpetrator would be moved to a different parish. Local law enforcement agencies are neither informed of nor involved in the matter wherever possible, and the priest inevitably returns to repeated abuse once more after moving.

Geoffrey Robertson, QC, has remarked at Sydney’s Festival of Dangerous Ideas that some action must be taken by the international community, and that he does not regard the Vatican as a proper state. In contrast, the high-profile American criminal lawyer Alan Dershowitz argued that although the Church’s actions and inactions should be condemned, they are essentially misunderstood and the Church is developing an effective albeit inadequate response to the problem.

The Pope

The well-publicised views of Richard Dawkins and Christopher Hitchens that the International Criminal Court is a suitable mechanism by which to address the Pope’s actions have, at times, been shared by Mr Robertson. In April, The Guardian published his article “Put the Pope in the Dock“, the content of which does not explicitly call for prosecution of the Pope but justifies it. Despite this, Robertson explained how he did not think international criminal law should be used against the Pope on yesterday’s Q and A program:

TONY JONES: Geoffrey, I’m just going to interrupt you there and I’m going to bring you back to the point that Paul Kelly made because it does seem to me that you are the person in the world who is making the case the pope should be made accountable for crimes against humanity, as you put it in your article in The Guardian [emphasis added]. Do you believe the pope should be indicted for those crimes or not?

GEOFFREY ROBERTSON: No, I don’t.

Mr Robertson appears to have changed his mind somewhat in this respect.

His debating opponent at the Festival, Alan Dershowitz, maintained his softer views of the actions of the Church, as he explained to Tony on the Lateline of September 30:

“I think Pope Benedict has probably done more to protect young children since becoming Pope than any previous Pope. It’s a very complicated matter and it has to be obviously seen in context. I don’t think it’s right for non-Catholics to get deeply involved in the governance of the Church. It relates to issues of separation of Church and State. I think it would be a terrible mistake to put the Pope on trial.”

No matter whether the Pope should be charged with crimes against humanity as Mr Robertson suggested in his book The Case of the Pope, the legal possibility of such an action is the subject of considerable doubt.

In relation to the question about whether the crimes allegedly committed by the Pope could be the subject of prosecution, Mr Dershowitz considers crimes against humanity to include only war crimes, as he explained on Lateline:

TONY JONES: Let’s start with his basic proposition that the widespread or systematic sexual abuse of children is a crime against humanity – that’s the way he puts it. And so, he says covering it up, incidentally, and protecting the perpetrators also amounts to a criminal offence. This is the basis of it, he says in international law.

ALAN DERSHOWITZ: Well he’s wrong. International law deals with war crimes, it deals with systematic efforts by governments to do what happened, for example, in the former Yugoslavia and Rwanda, in Darfur and Cambodia. This is not in any way related to that. And I think – I’m afraid to call this a war crime or some kind of international crime – it will water down the very important concept of crimes against humanity. This is not a crime against humanity, this is a series of crimes by individual priests and others throughout the world and failures by institutions to come to grips with it quickly enough. But it’s very different from systematic attempts to use rape or murder as a genocidal – part of a genocidal program.

Geoffrey Robertson, however, took a different view when asked if the Pope’s actions constituted crimes against humanity:

“Crimes against humanity can be committed in peacetime as well as in war. In Kenya at the moment we have the ICC investigating electoral violence. It’s been voted on. Australia voted in favour of making crimes against humanity committed in peacetime.”

Robertson is undoubtedly correct — crimes against humanity were deemed by the UN to have taken place in South Africa while apartheid policies were in place, and there was certainly no war. It is due to this fact that crimes it is alleged the Pope had committed could be prosecuted in the ICC. Although this is the case, these charges could not be brought against him as he is the Pope and therefore a head of state.

Mr Dershowitz is correct on the question of whether the Pope is entitled to legal immunity as a head of state. Mr Robertson’s argument here is:

“I don’t agree and Alan Dershowitz didn’t agree when we – he agreed with me that the Vatican is not a real state. It’s a palace with gardens. It’s as big as a golf course and it’s not a real state in international law. It has to have a permanent population. There are no Vaticanians. There are a few dozen celibate priests. No one gets born in the Vatican except by unfortunate accident. So it’s not a real state…”

Robertson has elsewhere expressed his belief that “the notion that statehood can be created by another country’s unilateral declaration is risible”. All modern states are formed either through unilateral assertions of independence (eg Kosovo, Belgium, Indonesia, the Netherlands and the United States) or — in the cases of more credible claims — by mutual agreement between the new state and its prior owner. Vatican City and Australia are examples of the latter. The Vatican signed a treaty with Italy that ensured its independence, and its statehood is recognised by the vast majority of the world’s countries, which is a vital component of being a legally legitimate country. The fact that Robertson has the capacity to compare it to a golf course has no bearing on its statehood. As a result of its status as a country, the Pope retains immunity from prosecution in the ICC, and the debate about possible legal action is utterly irrelevant. Nevertheless, individual priests could be charged for their crimes under civil law*, and could be extradited from their new parish if necessary.

Even if we could prosecute the Pope, would it help?

Vatican City

*By civil law, I mean the opposite of canon law and not what is also called public law.

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