Could Britain Arrest the Pope?

It's unlikely, but not impossible.

BY JOSHUA E. KEATING | SEPTEMBER 14, 2010

On Thursday, Pope Benedict XVI will arrive in Britain for the first papal visit to the country in nearly three decades. The visit has been marred by controversy due to ongoing investigations in several countries into the sexual molestation of children by priests. Some prominent atheist writers, including Richard Dawkins and Christopher Hitchens, have called for Benedict to be arrested for his alleged role in covering up the crimes. Do they have a case?

Maybe, but it would be a tough fight. The first obstacle to prosecuting the pope would be sovereign immunity. The Holy See -- the Episcopal jurisdiction of the Catholic Church -- is treated as a state under international law. It has permanent observer status at the United Nations and maintains diplomatic relations with 176 other countries. Under common international law, as well as written British law, the pope is the head of a foreign state and enjoys immunity from prosecution.

The pope's opponents, such as human rights lawyer Geoffrey Robinson, have argued that the Holy See's sovereignty is illegitimate since it was originally conferred only by a bilateral treaty with the Italian government led by Benito Mussolini. But the exact definition of statehood is a fairly vague area of international law, and since Britain has longstanding diplomatic ties with the Holy See, any challenge to the pope's head of state status would almost certainly be rejected. For this reason, the activist group Protest the Pope has scrapped its plan to try to make a citizens' arrest of Benedict on British soil.

But that's not necessarily the end of the story. According to the Nuremberg Principles adopted after World War II, "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law." In recent years, current and former heads of state including Liberia's Charles Taylor and Serbia's Slobodan Milosevic have been arrested and tried for war crimes or crimes against humanity.

The case most relevant to the pope's visit is that of former Chilean leader Augusto Pinochet, who was arrested and charged for his role in the torture of Spanish citizens on a visit to London in 1998 under an international warrant issued by Spanish Judge Balthazar Garzon. Britain's House of Lords, then the country's highest legal authority, ruled that international crimes like torture were not covered under sovereign immunity. (In 2009, Britain's new Supreme Court took over the legal functions of the House of Lords and has yet to rule on the issue of universal jurisdiction for international crimes, which caused more controversy last year when a British judge issued an arrest warrant for former Israeli Foreign Minister Tzipi Livni.)

So would the Pinochet precedent apply to Benedict? "Rape or other sexual abuse of comparable gravity" is considered a crime against humanity by the International Criminal Court when committed on a systematic basis. The thousands of abuse cases that have been documented in multiple countries would certainly seem to fit the bill. On the other hand, no one has accused Benedict of participating in or ordering the abuse. He has, however, been accused of failing to defrock priests or report them to the authorities as well as reassigning known abusers within his former parish in Germany.

Prosecutors would have to make the case that failing to use his authority to prevent the abuse, while he was aware of the problem, constitutes complicity in an international crime wave. This would be uncharted waters for international law and given that it's fairly unimaginable that British authorities will take action against Benedict, they will probably remain so.

Thanks to Michael Scharf, Director of the Frederick K. Cox International Law Center at Case Western Reserve University.

Vittorio Zunino Celotto/Getty Images

 SUBJECTS: RELIGION, BRITAIN, LAW
 

Joshua E. Keating is an associate editor at Foreign Policy.

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BLACKADDER60

3:11 AM ET

September 15, 2010

Wonderfull!

I have for long been of the opinion that the FAILURE to prevent or to prosecute (and thereby to punish) criminals is a crime itself.

Specifically the grossly lenient legal system of western europe is itself a crime against humanity (and civilization)

Only by punishing and punishing severly, criminals can the state claim to maintain law and order.

So let us see an end on all this biased and unjustified criticiszm of China, Iran and the US for their use of capital punishment and instead Europe should emulate these examples of lawenforcement.

 

KENRODMAN

2:58 PM ET

September 15, 2010

Serious Omission

There is a serious omission in this legal analysis - namely the ICJ's Yerodia decision which vacated an arrest warrant issued by a Belgian court for the Congolese foreign minister on charges of incitement to genocide. The ruling upheld the personal immunity of sitting heads of state and diplomats before national courts exercising universal jurisdiction, meaning that as long as Benedict is Pope, he is immune from national prosecution - as are Presidents Mugabe, Qadaffi and Kagame if they travel to the UK or elsewhere in Europe.

The decision allows for prosecution by an international tribunal (Milosevic was tried by a Security Council authorized tribunal tribunal) or after the individual leaves office (Pinochet was a former head of state at the time of his arrest in the UK, as was Charles Taylor when he was surrendered to the Special Court for Sierra Leone). If the Vatican's sovereign status is affirmed and British courts follow the ICJ decision - as other European courts have with respect to criminal investigations of sitting heads of state - that is the end of the story regardless of whatever creative theories of culpability are put forward.

 

BOLANDJD

4:59 PM ET

September 15, 2010

Priests who have committed

Priests who have committed crimes are being criminally prosecuted in their respective countries. There is no justification to arrest the Pope, except that he is the head of the Catholic Church. In the US, at least, far more teachers are convicted of child molestation than Catholic priests. Should the Sec of Education or the president of the NEA be arrested too?

 

JOHNSMITH84

5:57 PM ET

September 15, 2010

Forcible deportation is also an international crime

According to the draft statute of the International Criminal Court, "deportation or forcible transfer of population" if "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" is also a crime against humanity. And the British government should be tried for committing this crime many times, most recently in the Diego Garcia Islands, British Indian Ocean Teritory. Aside from wondering who should and who should not be arrested in Britain for crimes against humanity, the issue of forcible deportation of the Chagossians needs an international legal solution and the question of whether the Queen (and/or the Prime Minister or some other high official) can be arrested on foreign trips needs to be raised. Unfortunately, there is a legal loophole in the draft ICC statute that crimes committed before July 1st 2002 cannot be judged before the court. But what about the systematic torture and other war crimes committed on the orders of George W. Bush during his presidency. When will the ICC issue an arrest warrant for him? Why is international justice so selective?

 

TWOASPERIN

6:49 PM ET

September 15, 2010

He should be arrested for

He should be arrested for impersonating someone who cares...look into his face....do you see love for humanity at all? All visible to me is is deception and greed. I could be wrong, I was once in 1946.

 

CASSANDRAAA

6:46 AM ET

September 16, 2010

Arrest first, apologize

Arrest first, apologize later. After all, what is the Vatican going to do about it?

 

HAMDU

12:48 PM ET

October 10, 2010

Teritory. Aside from wondering

According to the draft statute of the International Criminal Court, "deportation or forcible becertube transfer of population" if "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" is also a crime against humanity. gztlrAnd the British government should be tried for committing this crime many times, most recently in the Diego Garcia Islands, British Indian Ocean Teritory. Aside from wondering who should and who should not be arrested 7rain Britain for crimes against humanity, the issue of forcible deportation of the Chagossians needs an international legal solution and the question of whether the Queen (and/or the Prime Minister or some other high official) can be arrested on foreign trips needsucakbiletitc to be raised. Unfortunately, there is a legal loophole in the draft ICC statute that crimes31ciler committed before July 1st 2002 cannot be judged before the court. But what about the systematic torture and other war crimes committed on the orders of George W. Bush during his presidency. When sinemawill the ICC issue an arrest warrant for him? Why is international justice so selective?