Guest Post: The Case of the Pope: Vatican Accountability for Human Rights Abuse

The Case of the Pope: Vatican Accountability for Human Rights Abuse

Geoffrey Robertson QC

Penguin, 2010, £6.99

Cries to arrest high-profile figures, such as Henry Kissinger or Tony Blair, for ‘crimes against humanity’ are relatively commonplace among the placards of street protesters. But it is much rarer to find a sustained legal examination of the validity of such a course of action.

In his latest book, The Case of the Pope: Vatican Accountability for Human Rights Abuse, Geoffrey Robertson QC delivers a robust polemic aimed at just such an examination. The book is timed neatly to coincide with the first ever state visit by the Pope to the UK. It was initially born out of a column Robertson wrote last April, in which he set out to deconstruct the argument that the Vatican’s claim to statehood, and its corollary that the Pope, as its head of state, can claim immunity from legal action.

Robertson is certainly well placed to make the argument. Head of Doughty Street Chambers, he has appeared in an impressive number of leading cases concerning criminal, constitutional, and international law issues. He defended the last two cases brought for blasphemy in the UK against Salman Rushdie (R (ex parte Choudhury) v Bow Street Magistrates Court [1991] 1 QB 429) and Gay News (R v Gay News Ltd [1979] AC 617). More recently he appeared in Bowman v United Kingdom [1998] 26 EHRR 1, in which the European Court of Human Rights declared an electoral law inhibiting campaigns by Catholic pressure groups to be incompatible with the article 10 right to freedom of expression.

The central thesis which Robertson elucidates in The Case of the Pope is that the Catholic Church has been able to construct for itself the edifice of both statehood and a parallel jurisdiction within states under the guise of Canon law. The former has the effect of conferring immunity from liability for civil prosecution under the principle of state immunity. The latter has been used by the Catholic Church as a mechanism to bypass either civil or criminal prosecution and ensure the ‘pontifical secrecy’ of the victim.

Litigants who have suffered from abuse at the hands of Catholic clergy are thereby frustrated from bringing a claim of vicarious liability against the Vatican itself. This is problematic for two reasons; financial and psychological. First, the diocese in which the abuse was committed simply may not have enough money to make bringing such a claim worthwhile. Robertson points out dioceses which have declared bankruptcy in the US to avoid an otherwise potentially crippling liability. Second, many victims of abuse want the vindication that bringing a claim directly against the Pope would bring. This is especially as the current Benedict XVI, as Cardinal Ratzinger, was the Prefect of the Congregation for the Defence of the Faith (CDF) between 1981 and 2005, and had responsibility for dealing with issues concerning alleged abusers.

The charge is therefore levelled against Benedict that, during his prefecture of the CDF, and under his direct authority, a policy was pursued whereby abuse complaints which were brought against priests were hushed up, with a combination of sending priests to far-flung parishes and refusing to submit complaints to the proper secular authorities for investigation. Robertson goes to some length in setting out the material condemning Benedict, and the infamous 2001 ‘Ratzinger letter’ and the so-called ‘New Norms’ laid down in 2010 are both set out in appendices. Indeed, Robertson goes so far to say that, even if one does accept the argument for Vatican statehood, then there is still a prima facie case that the Pope may be guilty of crimes against humanity, and subject to jurisdiction under international law.

While the book is astute at answering the technical legal issues which arise, the reader is left pondering a wider question posed in the opening pages, namely: “What moral blindness has made a church renowned for its benevolence so reluctant to root out and punish all the child abusers in its midst?” Robertson’s book provides a welcome dose of logic and rationality amidst the shrill voices of both sides of the debate. Ultimately, whether or not you agree with Robertson’s final conclusion, a contribution to the debate from such a distinguished international lawyer is to be welcomed.

Thom Dyke is a barrister

First published in Solicitors Journal

4 thoughts on “Guest Post: The Case of the Pope: Vatican Accountability for Human Rights Abuse

  1. I am more inclined to the Andreas Moser view. I know of no ummunity from prosecution for priests who commit crimes within our natonal territory. Of course, obtaining the evidence is an entirely different matter. There is also the reluctance of the authorities to investigate.

    By the way, it struck me that during his visit to the U.K., the Pope expressed regret at the abuse which had taken place but I did not hear mention of any specific action or payment of compensation. Of course, I am open to correction if anyone knows differently.

  2. Clearly there is no legal barrier to prosecuting any of the local representatives of the church, at least in countries where no special legal privilege of immunity os conferred on the organisation. Certainly there should be no immunity from criminal prosecution in the UK or USA for that matter. The sole exception to that might be if any Vatican representatives have diplomatic status. I’ve no idea if that is the case in the UK, but in any case it will be a small number of people.

    Prosecuting somebody resident in the Vatican is clearly another thing altogether, which is presumably what this is about. If the Vatican is truly considered to be a state, then presumably International law applies, which is as much a matter of international politics as it is of any rule of law. It is difficult to imagine many countries taking it upon themselves to arrest and prosecute the pope or any senior church representative resident in the Vatican in the way that national courts have tried to arrest the likes of Pinocet. They would also have to find a very serious charge to apply and that is surely a far stricter test in these sort of conditions than a purely domestic one.

    Of course there is possibly another route. Nobody is actually born in the Vatican as far as I’m aware (and maybe nobody is conceived there either). That means, I assume, that the various residents all still carry their original nationality (unless its formally renounced). Many countries impose their domestic criminal law on their nationals wherever they happen to be residing.

    Of course we clearly have had various state legal systems, especially in countries like Ireland, allowing the Catholic church to run systems running parallel to domestic law. I assume if this had happened in the UK to a large extent, and the various legal authorities were known to tolerate cover-ups, this would be subject to judicial review.

    This is all theoretical of course. It’s difficult to imagine the circumstances under which secular western states would seek to bring criminal sanctions against senior clergy in the Vatican although we have the interesting case of the Vatican bank being investigated, so maybe that idea is wrong. I suppose some might cynically conclude from that that states care more for financial rectitude than it does with a duty of care to people.

    No – this one is clearly in the arena of politics and not law, whatever people might wish. There is no willpower to carry through any action of this sort and when it comes to International law, there is much less independence of the judiciary than there is in the purely domestic.

  3. Thanks Andreas for your link – appreciated…and, as always to the commentary from Obiter J and Steve

    I really do appreciate that you take time and energy to add to analysis and discussion…… Thank you

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