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Is the Pope Criminally Culpable?

April 20, 2010 · Filed Under Religion 

Geoffrey Robertson, a senior barrister, has produced an article that is part-legal opinion, part-polemic, part-five-minute-Google-search and part-history lesson.  It’s titled Prosecute the Pope and it’s published in its most complete form on a website known as The Daily Beast.  I am not sure whether he created that title himself or if it was put there by an editor, but there is no indication that he feels that it misrepresents his argument.

It appears that Christopher Hitchens, someone for whom I have no respect has hired Robertson for an unknown purpose, probably to frustrate the Pope’s upcoming visit to the U.K.  This much is clear from a post by Richard Dawkins explaining his involvement in the ‘plan.’ Robertson is someone I had respected greatly.  So let’s look at the article itself.

Well may the pope defy “the petty gossip of dominant opinion.” But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state—and of the pope to be a head of state, and hence immune from legal action—cannot stand up to scrutiny.

This a standard introductory paragraph intended to draw in the reader as well as summarising two core points: that the Pope may be guilty of “crimes against humanity” and that the sovereign status of the “Vatican” is poorly justified.

The truly shocking finding of Judge Murphy’s Commission in Ireland, tasked with investigating child sex abuse in Dublin’s archdiocese, was not merely that “sexual abuse was endemic in boys’ institutions,” but that the church hierarchy protected the perpetrators and, despite knowledge of their propensity to reoffend, allowed them to take up new positions teaching other vulnerable children after their victims had been solemnly sworn to secrecy.

In this paragraph he cites the “Murphy Report,” a commission set up in Ireland to investigate sexual abuse issues in the area of Dublin.  It is true what Robertson says, that the “finding” was that all these things had occurred.  It is not clear if Robertson is saying he agrees with these findings or just that they were findings and leaves the reader to infer what weight they should attach to the Commission, presumedly great weight.  Most readers would probably conclude that he believes that it is good evidence.

This, of course, amounted to the criminal offence of aiding and abetting sex with minors.

This is, it seems, a correct summary of the law and adds rhetorical punch to this paragraph but it also brings up a contradiction – if the report is correct then there must be significant evidence of criminal wrongdoing among Dublin’s bishops, including those still alive, yet no charges have been laid let alone convictions secured.  Could it be that some of the Commission’s conclusions are unsound and that evidence of individual wrongdoing is weak, as evidenced by the failure for charges to be laid?

In legal actions against Catholic archdioceses in the U.S., it has been alleged that this reflected Vatican policy as approved by Cardinal Ratzinger (as the pope then was) as late as November 2002—sexual assaults were regarded as sins that were subject to church tribunals and guilty priests were sent on a “pious pilgrimage” whilst oaths of confidentiality (“papal secrecy”) were extracted from their victims.

This is also true.  These things were “alleged.”  As to whether they are a fair reflection of the evidence is another thing entirely.

In the U.S., 11,750 allegations of child sex abuse have so far featured in actions settled by archdioceses (in Los Angeles for $660 million and in Boston for $100 million), but some dioceses have gone into bankruptcy and some claimants want Vatican accountability—two reasons to sue the pope in person. But in 2005, a test case in Texas failed because the Vatican sought and obtained the intercession of President George W. Bush, who agreed to claim sovereign (i.e., head of state) immunity on the pope’s behalf. Bush lawyer John B. Bellinger III certified that Pope Benedict XVI was immune from suit “as the head of a foreign state.

The claims that “some claimants want Vatican accountability” is true as well.  It’s not clear that such desires are consistent with the actual evidence of Vatican complicity, at least as far as this article is concerned.  And it’s also true that the claims failed because of head of state immunity halting the legal actions.  It is not mentioned whether the legal action itself would have failed on its merits anyway, as some have argued.  I think the intention of Robertson is to feed information to the reader that can be interpreted in multiple ways so that if people conclude he means that the action would have succeeded but for the immunity claim he can respond that he did not claim such a thing.

The third Mr. Bellinger is notorious for his defense of Guantanamo and Bush administration torture policies, and his opinion on papal immunity is even more questionable.

This sentence looks like an ad hominem attack.  Even if the legal claims Bellinger made in these matters were flawed it does not follow that his papal immunity claims must also fail.  Robertson makes this clear as he separately asserts that Bellinger’s papal immunity claim is flawed when considered on its individuals merits.  But the question then becomes, if the papal immunity claims are unsound in and of themselves, why was it was relevant to mention these other widely criticised legal actions, if not to taint the man and therefore indirectly (and illogically) weaken his arguments?

He then goes on for three paragraphs arguing that the Holy See is not a sovereign state under international law.  I am not willing to simply reject these claims but by the same token I am unwilling to just accept them.  There are some articles I have read that appear, to me, to argue strongly against Robertson’s claims.  The articles are by Neil Addison on the Religion Law Blog, ‘Skeptic Lawyer,’ Ivor Roberts at Times Online, and Dapo Akande on European Journal of International Law blog.

The U.N. at its inception refused membership to the Vatican (U.S. Secretary of State Cordell Hull said emphatically that it could never attain statehood) but has allowed it a unique and anomalous “permanent observer status,” permitting it to become signatory to treaties like the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at U.N. conferences, where it promotes its controversial dogmas on abortion, condoms, and homosexuality.

I’ve quoted the aforementioned paragraph for specifically one word, that is, ‘ironically.’  I feel that this is the first point where he makes it clear that these claims are not allegations to be later determined by a court but established facts, because one can only state it is ‘ironic’ that the Holy See entered into those international obligations if the Pope, and by extension, the Vatican, is criminally responsible – something in previous and later paragraphs he is far more careful in qualifying as allegations.  This is important because I suspect that as a human rights lawyer he knows full well the seriousness of such a statement and the need to make it clear his claims are not yet established.  Although the phrasing would sound absurd, he really only had two possibilities, saying it was “potentially ironic” or not adding the comment at all.

If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto authority—i.e. the Catholic Church—then under the command responsibility principle of international law (laid down by the U.S. Supreme Court) the commander can be held criminally liable. He falls within the temporal jurisdiction of the ICC so long as that abusive practice and the policy to tolerate it continued after July 2002, when the court was established.

Here he is back to his previous tone, stating “if,” or “as long as,” etc. acts of abuse are widespread and systematic then certain serious consequences will flow.  I would hope that this paragraph is a sound summary of international criminal law especially as Robertson served as an appeal judge in a U.N. war crimes tribunal, but by this point of the article I had begun to personally question his objectivity and concluded that his focus was mainly to advocate a narrow set of interests rather than to present the law in a detached and scholarly manner.

The first line talks about abuse needing to be “not isolated or sporadic.”  Whilst this seems like a sound principle for situations involving mass summary executions or other kinds of murder it may be that his statement is not a fair application of the principle to matters involving sexual abuse.  It could be that all sexual abuse is wide-spread as that is the nature of the crime.  If, say, 1% of all priests were abusers then 1% of all priests in a given archdiocese would be abusers and thus one could claim abuse was spread widely (i.e. uniformly), but does that mean it’s therefore widespread in the sense he is using the word?  It depends on whether the use of the word widespread implies a distribution or an magnitude.

This paragraph also touches on causation and control.  He claims that it is necessary, for a successful prosecution to establish a “policy to tolerate” a “widespread practice” of sexual abuse “known” to those who are in control.  How analogous the role of the pope is to a military commander (and thus subject to the ‘command’ responsibility principle) and how obedient those under his authority and “control” were are complex questions and this article does not appear to make a serious attempt to grapple with them.

Pope Benedict has recently been credited with reforming the “papal secrecy” system he allegedly approved in 2002, so that guilty priests may now be reported to civil authorities, although initially (and disgracefully) he blamed the scandal on “gay culture.”

Another paragraph and, of course, another allegation.  Here he makes another allegation without clearly citing evidence that would clearly substantiate it.  I am not sure where he got the allegation that Ratzinger “blamed the scandal” solely on “gay culture,” or even partially so.  I believe this is a serious attack on the Pope that, I believe, warrants detailed justification in the same text in which the serious accusation is made.

His admonition last week to the Irish church repeatedly emphasised that heaven still awaits the penitent pedophile priest.

I strongly suspect that this is not a fair or balanced assessment of the long and detailed speech on sexual abuse in Ireland that Pope Benedict XVI gave.  It is important that it be mentioned that many in civil society accept the possibility of reform and genuine remorse of child abusers (even if many don’t) as many of those convicted are given definite sentences and offered parole, things that many human rights lawyers agree with.

The Holy See may offer the prospect of redemption to its gravest sinners, but it must be clear in law that the pope does so at his own risk—as a spiritual adviser, and not as an immune sovereign.

This paragraph is far more clear about the nature of the claims he is making as he goes beyond mere allegation, to, as in his ‘ironic’ remark, established fact as the Pope is only at risk if he is in fact responsible for such crimes.

So, why did Robertson write such a piece?  It may be that this article is a logically sound and rhetorically devastating attack on the Pope and Holy See and as a result of my biases I am incapable of seeing it for what it truly is.  I suspect, though, particularly given the published responses to some of his claims, such as his arguments against the sovereignty of the Holy See, that this piece was created solely for the purpose of furthering Hitchens’ desire to prevent the Pope’s state visit to the U.K. by addressing not the courts or a community of scholars but the public at large who are in many cases unable or unwilling to critically assess the information they are given, especially from authority figures like Robertson, and even more so when such information readily confirms their biases.

My belief is that many will respond to this article by using Robertson’s reputation as a basis to make even more outrageous and false claims against the Catholic Church and Pope, especially those who dislike the organisation not just because of its genuine failings but by those who have a pathological hatred of the Catholic Church and its Pope for less than logical reasons.

It’s good and well to advocate someones interests but not though vague or unjustified allegations that many readers will instead conclude are established facts.  In some areas, I believe, this piece falls into that territory.

I may be completely wrong and that’s why I’m qualifying my claims by making it clear that they are my own personal impressions.  This article has resulted in me, at a subjective level, attaching little weight to whatever Robertson says, including areas I in the past I trusted him, such as human rights matters and international criminal justice.

 

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