Yet More on Arresting the Pope

In more news on the prosecute the Pope front (see Dapo’s earlier post), Christopher Hitchens, that glorious contrarian and one of the originators of the whole idea, has an article in Newsweek in which he elaborates on the legal strategy that, shall we say, the anti-Pope movement will adopt in advance of the Pope’s planned visit to the UK (h/t Julian Ku at Opinio Juris).

Let me say at the outset that, to my mind, it is clear that the Catholic Church has been indelibly tarnished by the priestly rape of children in many countries, and the systematic attempts to cover-up the abuse by the hierarchy. A credible case has also been made that the current Pope has himself shamefully participated in the cover-up. In short, I have no love lost for the Catholic Church.

Likewise, on a lighter note, I have always enjoyed the writings of Christopher Hitchens, who is often enlightening on many an issue, and never fails to entertain. His skills as a polemicist are beyond question, as numerous clips on Youtube of him demolishing worthy and unworthy opponents can attest. And let’s not forget his famous critique of the purported saintliness of Mother Theresa, which I thoroughly recommend.

Hitchens, in short, is never boring. But with this particular piece, which touches on several questions of international law, I must confess that he truly comes off as quite the know-it-all dilettante. The piece is full of such glaring holes and inaccuracies that one must really question the wisdom of publishing it. Now, I don’t of course expect people who are not (international) lawyers to know anything about international law – but then they at least should exercise more caution in writing about legal issues. So, let’s start off with Hitchens’ argument, given with the benefit of legal advice from Geoffrey Robertson QC:

If His Holiness tries to travel outside his own territory—as he proposes to travel to Britain in the fall—there is no more reason for him to feel safe than there was for the once magnificently uniformed General Pinochet, who had passed a Chilean law that he thought would guarantee his own immunity, but who was visited by British bobbies all the same. As I am writing this, plaintiffs are coming forward and strategies being readied (on both sides, since the Vatican itself scents the danger). In Kentucky, a suit is before the courts seeking the testimony of the pope himself. In Britain, it is being proposed that any one of the numberless possible plaintiffs might privately serve the pope with a writ if he shows his face. Also being considered are two international approaches, one to the European Court of Human Rights and another to the International Criminal Court. The ICC—which has already this year overruled immunity and indicted the gruesome president of Sudan—can be asked to rule on “crimes against humanity”; a legal definition that happens to include any consistent pattern of rape, or exploitation of children, that has been endorsed by any government.

In Kentucky, the pope’s lawyers have already signaled their intention to contest any such initiative by invoking “sovereign immunity,” since His Holiness is also an alleged head of state. One wonders if sincere Catholics really desire to take refuge in this formulation. The so-called Vatican City, a political nonentity covering about 0.17 square miles of Rome, was created by Benito Mussolini in 1929 as part of his sweetheart deal between fascism and the papacy. It is the last survival of the political architecture of the Axis powers. Its bogus claim to statehood is now being used to give asylum to men like Cardinal Law.

In this instance the church damns itself both ways. It invites our challenge—this is where the appeal to the European Court of Human Rights becomes relevant—to its standing as a state. And it calls attention to the repellent origins of that same state. Currently the Holy See has it both ways. For example, it is exempt from the annual State Department Human Rights Report precisely because it is not considered a state. (It maintains only observer status at the United Nations.) So, if it now does want to claim full statehood, it follows that it should receive the full attention of the State Department for its “lay” policies, and, for that matter, the full attention of the Justice Department as well. (First order of business—why on earth are we not demanding the extradition of Cardinal Law? And why is this grave matter being left to private individuals to pursue?)

As far as the issues of the Vatican’s statehood (not the Holy See’s, which has a separate personality) and the Pope’s personal immunity, I need do no more than refer to Dapo’s excellent post. It is simply disingenuous to argue that the Vatican is somehow a creation of Mussolini, as it not only neglects the historical existence of the Papal States over many centuries, but also reflects a deep misunderstanding of how states are actually created in international law. Hitchens also disregards the fact that the community of states has long recognized the special status and international personality of the Holy See.

And, honestly, it is simply laughable to assert that the inclusion, or not, into the US State Department’s Annual Human Rights Report has anything to do with statehood. Likewise, while UN membership frequently conveys an imprimatur on statehood, it is certainly not a prerequisite for it, as Switzerland or Germany during the Cold War can well attest. Let’s not also forget the fact that for political reasons the UN accepted as members even some entities which were NOT states, such as Soviet Ukraine.

As Dapo explains, immunity is simply an impossible hurdle to overcome for any legal action taken directly against the Pope. Immunity is also not some vestige of Westphalia that is to be excised in the brave new world of human rights. It is a crucial mechanism for facilitating international dialogue and cooperation. Just like any diplomat, or visiting head of state, in the UK the Pope would be entitled to immunity from legal process. Hitchens also fails to realize that the two examples for the proposition that immunity should not apply – Pinochet and Bashir – are completely distinguishable. At the time that he was visiting the UK, Pinochet was but a former head of state, and was not on any kind of diplomatic mission (note that the immunity to which Hitchens refers was actually domestic), while Bashir’s immunity was removed by the Security Council when it referred the Darfur situation to the ICC, or at least arguably so.

Pursuing a case before the ICC would have no better prospect of success. Not only would the immunity issue persist, since the Vatican is not an ICC state party, but it is difficult, if not impossible to argue that the Pope is responsible for a crime against humanity.

Specifically, one would need to prove that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute. The Elements of Crimes further interpret this contextual element as requiring a state or organizational policy to commit these crimes. So, even if there was a widespread and systematic attack against a civilian population (which is truly doubtful), and even if there actually was a policy by the Vatican/the Church/the Holy See to cover up the sexual abuse of children by priests (probably yes), there certainly is no evidence of a policy to actually promote or encourage the sexual abuse of children. At any rate, even if such an argument could be made, it would be far from obvious, as it has in fact been presented.

Finally, the reference to possible action before the European Court of Human Rights is simply mind boggling. Who, exactly, would the application be brought against? Unless I am mistaken, the Vatican is not a state party. Or should people sue the UK for giving the Pope immunity? Recall how that went even for allegations of torture in Al-Adsani v. UK. It is simply fanciful to suggest that the European Court would rule that, say, the UK violated the Art. 6 ECHR right of victims of access to court by according the Pope immunity. And even if it did, what good would that actually do for the victims? (Not to mention the fact that by the time the Court decided the case Pope Benedict would already have joined the celestial choir).

Let me conclude by saying that, as a matter of law, these are really not issues about which reasonable lawyers could disagree – and how rare is that? No lawyer, no matter how good, whether a QC ten times over or Hugo Grotius incarnate would be able to achieve a different outcome. The whole ‘let’s prosecute the Pope’ idea simply will not happen. It’s an obvious non-starter.

What really bothers me is that, instead of openly admitting that he is doing this for some good PR (fine by me), Hitchens creates the impression that a Pope in the dock is a realistic prospect. This, in turn, may create unreasonable expectations and false hopes among the victims, which will only be dashed once the inevitable occurs, potentially causing even more anguish and disappointment. The only workable legal strategy rests on two simple pillars: (1) prosecute any rapist priest, and any higher-ranking accomplices; (2) sue the (local) Church for damages unto oblivion. No other option is viable, and it is simply irresponsible to suggest otherwise.