Something About The Law

The Times Online carried this piece a week ago:

NEW revelations about Pope Benedict XVI’s alleged role in covering up accusations of sexual abuse by Catholic clergy have exposed the Vatican to the risk of lawsuits brought by victims around the world.

Mounting anger at the Catholic Church’s failure to act on predatory priests in the US, Europe and Mexico has plunged the papacy into an institutional crisis described by an American Catholic newspaper last week as “the largest in centuries”.

Aside from the fact that such an issue is finally coming to light (which is a good in itself) we are interested in the legal ramifications of suing the Pope. On the one hand, he could be sued as the head of an international organisation (divesting the same of any religious credentials and treating it like any group of people) on charges of vicarious responsibility and negligence for the acts of his members.

There’s a general consensus among legal scholars that an employee is someone who works for the employer, who controls the details of the work. Attorneys for the Vatican are expected to argue that diocesan bishops do not work for the pope, and that the Holy See does not exercise the day-to-day control over their work necessary to create an employment relationship.

On the other hand, a body of lawyers believe that the Pope cannot be sued for the acts committed by the “subjects” (the clergy) of his “State” (the Vatican). By this logic the Holy See and the Order of Malta are the quintessential, and possibly only, examples of non-territorial sovereigns under international law. “Sovereign”, meaning that they have inherent international legal personality, on equal basis with states, instead of having such attributes because of some treaty.

As far as I understand it the question begs several lateral formulations:

(a) If you decide to sue, should you sue the Pope in his capacity as head of the Catholic Church, the Church itself or all the individual priests severally guilty of the misconduct?

(b) Would the law applicable be international law (because sexual abuse amounts to an international crime, recognised by numerous treaties and judicial decisions: as this article seems to suggest) or the national law of the United States (or whichever country?

(c) How would prosecutors deal with the question of the Pope’s immunity as “head of state” of the Vatican?

The answer to the first formulation must largely be based on utilitarian concerns over what is the most effective way to (a) obtain adequate compensation for the damage and (b) stop such damage occuring in future. In view of these twin considerations the Pope does seem the best person to sue, although principally it would be far more reasonable to sue individual priests for their acts (this would also act as a deterrent for future actions, something that suing the Pope cannot achieve unless one hopes that the Vatican’s internal policing will be cleaned as a result).

The second question is usually disposed of by mentioning that since you prosecute the Pope as head of the Vatican (an international organisation if not a country per se) you must rely on international law. Most proponents of this approach naturally gravitate towards international criminal law as being the best forum for so doing. However, there are also problems inherent with this effort. As a commenter at Opinio Juris states:

…it is dubious in the extreme that the actual crimes in question can be qualified as crimes against humanity, particularly within the meaning of the Rome Statute… 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 upthe 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.

The question of the Pope’s immunity as head of state of the Vatican is the last tricky issue. From the Guardian:

The UN at its inception refused membership to the Vatican but has allowed it a unique “observer status”, permitting it to become signatory to treaties such as the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at UN conferences where it promotes its controversial dogmas on abortion, contraception and homosexuality. This has involved the UN in blatant discrimination on grounds of religion: other faiths are unofficially represented, if at all, by NGOs. But it has encouraged the Vatican to claim statehood – and immunity from liability.

Head of state immunity would, in any case, not apply to the Pope under International Criminal Law, that has long held heads of states individually responsible for the ordering of acts (especially of a sexual nature: see the trials of the ICTR and the ICTY) that amounted to crimes against humanity. Which again brings us back, circular-fashion, to whether the acts are a crime against humanity.

I suspect the opening of the papacy to prosecution would amount to the opening of the floodgates to a lot of subsequent litigation, much of it based on old grievances. Last winter I had the privilege of taking part in a debate, the motion for which stood “This House Will Prosecute the Pope for the Spread of AIDS”. I was arguing for the motion, and the case we constructed won by a fair margin. Our substantives were, predictably, the prohibition on the use of contraceptives, denial of equal rights and recognition to homosexuals, conservative attitudes towards sexual awareness and retrogressive missionary practices in poor countries. This is only one instance of the diverse applications such a prosecution could be brought to. And the Pope is not alone in this regard: religious leaders from all around the world have been accused of crimes, but their investigations stalled, simply because of the social hesitation and realpolitik involved in putting ‘saints’ into gaol.

Something about the Law is going to follow this development with considerable interest.

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