FP Explainer

Could Britain Arrest the Pope?

It's unlikely, but not impossible.

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.

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FP Explainer

Is Fidel Castro Still in the Cuban Military?

No, but he's still in charge.

Cuba's seemingly revived former president, Fidel Castro, has been on something of a media blitz lately. He criticized Iran's president, Mahmoud Ahmadinejad, in a bizarre interview with the Atlantic's Jeffrey Goldberg that also included a trip to see a dolphin show and an introduction to Che Guevara's daughter (the aquarium's veterinarian); he accused the CIA of sponsoring Osama bin Laden; and he hosted a five-hour meeting with protégé Hugo Chávez, who described the 84-year-old revolutionary as being in "magnificent" health. Perhaps most significantly for Cuba watchers, at a recent speech, Castro eschewed the Adidas tracksuits he has lately been favoring and dusted off the full military uniform that he famously wore while in power. Moreover, Castro was introduced at the event as comandante en jefe rather than the less formal compañero. Does this mean than Castro is back in charge of Cuba's military?

No. When Castro stepped down as president in 2008, he also gave up his position as commander in chief of the Cuban military to his brother, Raúl, after undergoing treatment for an undisclosed disease, likely diverticulitis. The uniform that Castro wore last week, notably, did not feature the insignia indicating rank that he wore while in office. As for the title, Castro is still commonly referred to as "commander in chief of the revolution," an honorific title that he was first given during the 1959 revolution.

But that doesn't mean that his role is purely ceremonial. Even after leaving the presidency, Castro never stepped down as first secretary of the Cuban Communist Party. According to Cuba's Constitution, the party is the "highest leading force of society and of the state." In Marxist-Leninist political systems like Cuba's, the leader of the party is the country's highest leader, with authority over civilian and military institutions. Soviet leaders from Joseph Stalin to Mikhail Gorbachev all governed as party secretaries. Castro, in fact, wasn't even given the title of president until a constitutional overhaul in 1976.

Theoretically, this means that Castro has the authority to demote his brother or other top officials and reinstall himself as Cuba's head of state and military commanders. Although mostly commenting on public events through speeches and newspaper column, Castro does seem to take a more active political role from time to time. He claims to have personally chosen members of his brother's cabinet, for instance.

Despite Castro's recent burst of activity, most Cuba watchers think he is unlikely to retake his old job.The octogenarian seems to be trying to reinvent himself as an international elder statesman and is content to let his brother handle the affairs of state. All the same, as long as Compañero Fidel is formally in charge of the party, Raúl might still want to run things by him.

Thanks to Jaime Suchlicki, professor of history at the University of Miami.

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