The news broke this week that the two vanguards of the New Atheist Church, Richard Dawkins and Christopher Hitchens, are seeking expert legal advice regarding the merits of having an arrest warrant issued for the arrest of Pope Benedict during his visit to Britain this September. The purported charge – crime against humanity. This charge relates to the Pontiff’s alleged complicity of sexual abuse during his period in office as Cardinal in 1985.
Whilst the Atheists are rejoicing, the Catholic Church is desperately trying to restore some form of normality. As I am neither an Atheist, nor a Catholic, I hope I can provide an objective viewpoint, whilst also providing some legal opinion.
The question of Britain exercising their “universal jurisdiction” is not in issue. This is possible as per their obligations under international treaties including the Fourth Geneva Convention and the Rome Statute of the International Criminal Court (both incorporated into British law by primary legislation). The core issues appear to be: 1) Does the alleged cover-up constitute a crime against humanity? 2) Under which British Statute will the Pope’s alleged crime be found? 3) Will the Pope enjoy immunity? 4) If all fails in Britain, can the Pope’s case be referred to the International Criminal Court?
The first question is evidential. There is a plethora of case-law, both national and international, regarding crimes constituting crimes against humanity. Whilst the charge does not present a prima facie crime against “humanity” compared to egregious crimes committed by despots and tyrannical rulers, the Rome Statute clearly defines the term. Article 7(g) states:
“…sexual slavery,…or any form of sexual violence of comparable gravity”.
Despite the Pope’s alleged offence being ancillary, it is still a crime under international law in that he has assisted in concealing the commission of that offence. Is, however, this terminology used by Dawkins mere hyperbole for the ears of his own ‘flock’? I think so. There hasn’t yet been full disclosure of all the issues in relation to the 1985 incident, but the foreword of Article 7 of the Rome State includes important words:
“For the purposes of this Statute, “crime against humanity” means any of the following when committed as part of a widespread or systematic attack directed against any civilian population”.
Furthermore, the term is defined more specifically in the Explanatory Memorandum of the Statute as not being “isolated or sporadic events”. If proven, the acts are of course wrong and deeply embarrassing for the Vatican. “Systematic” they most definitely were not.
The New Atheist’s case is weakened yet further in relation to under which statute the arrest warrant should be issued under. The International Criminal Court Act 2001 is ruled out – Section 51 states that the Act applies to acts committed within the UK, or outside the UK by a British national. The Criminal Justice Act 1988 only applies to acts of torture (see Section 134/135). The Geneva Conventions Act 1957 is the only option, providing of course that they prove that the alleged crime was a “crime against humanity”.
The third issue presents more abstruse legal argument, and does not appear to be ground that has been covered previously. The Vatican has said it will vigorously defend the Pontiff, and has indicated that the New Atheists will be barred by the maxim of immunity ratione personae – immunity for acting Heads of State. However, despite the Pontiff being the head of the Vatican, is the Vatican legally recognised as a state by customary international law?
The New Atheists state that the Vatican is a construct of Mussolini, and was given its status as “permanent observer” at the United Nations as a placatory gesture and out of deference for the Pontiff. Moreover, the Vatican (or Holy See) does not enjoy status as a “state” by any international treaties and does not have sovereignty over its borders. If, however, a court were to find in favour of the Vatican having “state” status, then the Pontiff would usually only leave office at the time of his death, and would therefore receive impunity.
Lastly, can the case be referred to the International Criminal Court? Answer: yes, but with extreme difficulty. The Vatican (even if it is considered a state under international law) is not a Member State of the Court, and it would therefore require a United Nations Security Council Resolution to refer the case to the Prosecutor. If the five permanent members of the Security Council are struggling to reach a multilateral agreement regarding sanctions on Iran, something tells me there will be intransigence from one, if not all, of the members for the arrest of the Pope.
One positive for the Atheists about referring the case to the ICC is that the Rome Statute is that acting Heads of State cannot enjoy immunity (see Article 27) – just ask Omar al-Bashir!!
Say the case does end up on the desk of the Prosecutor, he will most likely show judicial deference and decide not to prosecute such a religious man. Also, lest us forget the raison d’etre of the Court – to establish a permanent tribunal for the most serious of international crimes, set up following the success of the two tribunals for crimes committed in Rwanda the Former Yugoslavia. This alleged crime that the Pope has committed is not a “crime against mankind itself”.
If the arrest warrant is issued, our Government will not have constitutional power to intervene despite probable calls from the Catholic community and Lords Spiritual. I would implore Government to respect the independence of our judiciary, irrespective of the high-profile arrestee.
The thought of the Pontiff appearing before the Old Bailey is unbelievable (in both meanings of the word). Nevertheless, should it play out as Dawkins and Hitchens are planning, I would not castigate them. Their motives are questionable and partly hedonistic; however, no person is above the rule of law and no person should receive impunity for a crime against humanity , not even the descendant of Saint Peter.
“Be you never so high, the law is above you”.
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