Could the Pope be prosecuted?

It’s no secret that the majority of sexual abuse claims regarding the Catholic Church have failed to be investigated by either legal authorities or the Church itself, but the Pope’s recent trip to the UK has spurned a debate of, shall we say, almighty proportions.

In a letter to the Catholics of Ireland dated 19 March 2010, Pope Benedict XVI wrote:

“To priests and religious who have abused children: You betrayed the trust that was placed in you by innocent young people and their parents, and you must answer for it before Almighty God and before properly constituted tribunals.”

What “tribunal” is he talking about? Can the Pope himself be charged with anything? What about the entire Holy See, or a representative, as suggested by Patrick Wall, an American lawyer and former Benedictine monk?

In the United Nations system, the Holy See is “a Non-member State having received a standing invitation to participate as observer in the sessions and the work of the General Assembly and is maintaining a permanent observer mission at Headquarters.” The 1933 Montevideo Convention on the Rights and Duties of States sets out four criteria for statehood that are widely recognized as international customary law:

    1. A permanent population
    2. A defined territory
    3. Government
    4. A capacity to enter into relations with other states.

The terms “Holy See” and “Vatican” are often used interchangeably, but this is inaccurate. “Holy See” refers to the authority, jurisdiction, and sovereignty of the Pope and his advisers, whereas the “Vatican” was more or less created to supply the Holy See with a territory and population. So does the Holy See fulfill the four criteria listed above? You tell me. In contending that the Holy See is indeed a state, the strongest argument is that it currently maintains diplomatic relations with 177 other states. Why does any of this matter? Because the Pope has traveled outside of his own territory. Many states have laws granting immunity to heads of state, but with the Holy See itself unable to decide whether or not its a state, who’s to say the Pope should be afforded immunity?

The Rome Statute of the International Criminal Court (ICC) defines crimes against humanity as “particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy…or of a wide practice of atrocities tolerated or condoned by a government…” The Rome Statute includes widespread rape as crime against humanity. I’m a college student – not a lawyer, judge, or legal body – so I don’t feel that I’m in a position to assert that such crimes were committed by the Holy See, but enough people have come forward with complaints that there exist sufficient grounds for opening an investigation into the Holy See’s tolerance of sexual abuse. Because the UN recognizes the Holy See as a state, I’m going to go ahead and say that I (tentatively) agree that the Holy See is a state, and that the Pope is the head. Customary international law regarding immunity for state officials suggests that any person who, in performing an act of state, commits a criminal offense is immune from prosecution. However, in issuing multiple arrest warrants for Sudan President Al-Bashir, the ICC effectively threw head of state immunity out the window.

So, is a case against the Pope or other officials of the Holy See acting in an official capacity entirely hopeless? No. Is it actually going to happen? Yeah, right.

— Cate Minall, follow me on Twitter @cminall!

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  1. #1 by Louis Grube on 20 September 2010 - 15:26

    It seems that a relevant concern would be whether or not priests are considered agents of the catholic church in the technical sense. I don’t know much about the vatican and it’s governmental system, but the difference between crimes against humanity on the one hand and regular crimes by citizens (are priests citizens of the vatican?) would be that the priests are acting in some official capacity on the behalf of the vatican. Take for example the difference between the local priest down the street in a small town in Ohio and a priest who is assigned to the UN as an observer. The local priest may not have been openly committing the acts, he may not have ever even been to the vatican, and he may not have ever asserted any right to citizenship given him by the vatican either. This person is categorically different from the priest at the UN on official “state” or at least “state-like” business on behalf of the Vatican.

    You also talk about the ICC’s idea of crimes against humanity, specifically pointing to the part that says ” They are not isolated or sporadic events, but are part either of a government policy…or of a wide practice of atrocities tolerated or condoned by a government…” This is why it would seem that the priests would have to be acting as agents not of the catholic religion, but of the “state” government that manages the Vatican. Mere practitioners of a religion in places besides the vatican would be acting as citizens of those states, and their connection to the vatican would doubtfully hold enough weight to build a case against the Vatican.

    Great discussion of the issues!

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