The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here and an article by Richard Dawkins here).
However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.
The reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity. Dawkins and Hitchens are not unaware of this problem. Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State. His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood. What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. The preamble to the treaty speaks of:
“assuring to the Holy See in a permanent manner a position in fact and in law which guarantees it absolute independence for the fulfilment of its exalted mission in the world,”
and states that
“in order to assure the absolute and visible independence of the Holy See, it is required that it be guaranteed an indisputable sovereignty even in the international realm, it has been found necessary to create under special conditions Vatican City, recognizing the full ownership and the exclusive and absolute power and sovereign jurisdiction of the Holy See over the same”
Geoffrey Robertson argues that
“The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage.”
But this misunderstands how States are created. Many States are indeed created by the unilateral declaration of one State. This is how colonialism in Africa and Asia ended. This is how the States in the Commonwealth achieved statehood. They were all granted independence by unilateral declaration – in many cases, by national Statutes – of the colonial powers. Independence means the right to control a portion of a globe without being subject to the legal authority of another entity. The way this is achieved in the case of territories previously under the control of another State, is by that other State renouncing the claims that it has to that territory.
But the independence and Statehood of the Vatican are not created solely by unilateral declaration but are also recognised by other States, indeed by most States of the world. The Vatican is a member of a number of international organizations, including the Universal Postal Union, the International Telecommunications Union and the World Intellectual Property Organization. Although the UPU is open to territorial entities which are not States (see commentary to Art. 1 of the UPU’s constitution), the only territorial entities that may be Members of the ITU and WIPO are States. In addition, the Vatican is party to many multilateral treaties including, the Convention on the Rights of the Child (yes that one) and the 1949 Geneva Conventions on the protection of victims of armed conflict.
So, since the Vatican is a State then the head of that State, the Pope, is entitled to head of State immunity under international law. This immunity is recognised by Section 20 of the UK’s State Immunity Act which extends to “a sovereign or other head of State”, the same immunities accorded to diplomats. These immunities are absolute in the case of criminal proceedings. In other words there are no exceptions to the immunity. The International Court of Justice’s decision in the Arrest Warrant Case (Congo v. Belgium) 2002 confirms that this type of immunity continues to apply even when it is alleged that the head of State has committed international crimes. So an allegation that the Pope may be responsible for crimes against humanity will not suffice to defeat his immunity. It should be noted that the immunity of a head of State from criminal prosecution in foreign States is there for very good reasons. In the first place, those State agents charged with the conduct of international relations are given immunity in order to allow international relations and international cooperation to continue to take place. Secondly, the immunity of foreign heads of States assures that just as States may not engage in regime change by armed force they may not achieve this end by criminal prosecutions either. It respects the fundamental autonomy of each State to determine who it is governed by.
Even assuming that the Vatican were not a State under international law that does not mean that the Pope will not be granted immunity from criminal process in the UK. First of all, the UK courts in determining the question of immunity will not be asked to determine whether the Vatican is a State under international law. Under Section 21 of the State Immunity Act, the question whether the Vatican is a State is to be resolved, conclusively, by the Secretary of State for Foreign and Commonwealth Affairs. So as long as the Foreign Office is of the view that the Vatican is a State, the Courts are bound to accept that. The State Immunity Act aside, deference to the executive on matters of Statehood is in line with longstanding case law of the English Courts. It is almost certain that the Foreign Office will certify that the Vatican is a State, as the US executive did in a case against the Vatican in the US. Britain maintains diplomatic relations with the Holy See and has an Ambassador with the Holy See. It may be argued that this is not quite the same as recognising the Vatican as a State – and it isn’t. The embassy is to the Holy See and not to the Vatican. Nonetheless, as far as I know Britain has not objected in the past to the Vatican’s claims to be a State nor has it, as far as I know, opposed the Vatican’s accession to treaties that are only open to States.
A second reason that the Pope will be entitled to immunity from criminal process in the UK even if the Vatican were not a State is because there is general acceptance of the international legal personality and in particular of the “sovereign” status of the Holy See. The relationship between the Vatican and the Holy See are complex. Crawford’s book referred to above, deals with this question very well. What is clear is that the Holy See as the central authority of the Catholic Church is not just the government of the Vatican. In addition, it has a special status in international law and has international legal personality which precedes the creation of the Vatican in 1929. What is important here is the nature of that international legal personality. Like the Sovereign Order of the Knights of Malta, the Holy See is deemed to have a sovereign status akin to Statehood. This includes possession of the immunities that States are entitled to. It may be significant that Section 20 of the State Immunity Act provides immunity for “a sovereign or other head of State.” Does sovereign in that context allow for entities like the head of the Holy See, the Pope, even if he were not a head of State? It may be interpreted in this way and should be. It could be argued the word “other” in that provision, militates against this interpretation. However, even if S. 20 does not allow for the immunity of Head of the Holy See, that would not preclude the argument that customary international law does.
The suggestion that the Pope could be indicted by the International Criminal Court will fail for similar reasons. Although the Vatican is not a party to the Statute of the ICC, the ICC will have jurisdiction over acts committed on the territory of States parties. But, even if these acts amounted to crimes against humanity – and that would be very hard to prove – the Pope would still be entitled to immunity as the head of a non-Party State. The indictment of Sudanese President Bashir is not a precedent here unless those mounting this campaign are able to get the Security Council to refer the case to the ICC. I have written on these issues at length on this blog and elsewhere so I won’t go into the details of the argument. However, the immunities of non-parties to the ICC Statute is recognised by Article 98 of the ICC Statute
So the campaign to get the Pope arrested has generated enormous media coverage but the legal analysis deployed in support is very weak indeed. Don’t expect to see the Pope in handcuffs anytime soon.