Joseph Brean, National Post Published: Monday, April 12, 2010
Pope Benedict XVI waves during Sunday Angelus prayer at his residence of Castelgandolfo, south of Rome, April 11, 2010
A movement to arrest Pope Benedict XVI for international crimes against humanity when he arrives in Britain later this year went noisily public on Sunday, as celebrity atheist Richard Dawkins denied a report that he personally vowed to make the arrest.
Just as former Chilean dictator Augusto Pinochet was arrested at a London hospital on a Spanish warrant under the novel legal concept of “universal jurisdiction,” lawyers are assembling the case that Pope Benedict could be held on charges of crimes against humanity, specifically child sexual slavery.
The Sunday Times called it a planned “ambush” that could embarrass the British government and force an awkward confrontation with the courts over diplomatic immunity. Internationally, the Vatican is treated as a sovereign state for many purposes, including the signing of treaties, but its legal status is uncertain, and it sits at the United Nations only as an observer.
On his blog on Sunday, Prof. Dawkins denied telling The Sunday Times anything so “personally grandiloquent” as wanting to slap the cuffs on the pontiff himself, but he expressed wholehearted support for the idea, which he credits to fellow deity slayer Christopher Hitchens.
Prof. Dawkins, an evolutionary biologist who has described the Roman Catholic Church as a “profiteering, woman-fearing, guilt-gorging, truth-hating, child-raping institution,” wrote on his blog that he was “especially intrigued” by the challenge of the Pope’s presumed diplomatic immunity as a sovereign head of state.
Likewise, Mr. Hitchens, the British-born American writer, was quoted in news reports as saying the Pope “is not above or outside the law. The institutionalized concealment of child rape is a crime under any law and demands not private ceremonies of repentance or church-funded payoffs, but justice and punishment.”
The Pope plans to visit Britain in September, visiting London, Glasgow and Coventry.
Prof. Dawkins wrote that Mr. Hitchens took the proposal last month to Geoffrey Robertson, a top human rights lawyer who once represented Salman Rushdie and served as appeal judge with the United Nations Special Court for Sierra Leone.
Mr. Robertson, an occasional columnist for the left-wing Guardian newspaper, first proposed it last week in a column, saying the Pope’s claim to sovereign immunity “could be challenged successfully in the U.K. and in the European Court of Human Rights.”
He phrased it as a provocative conditional, that if child sex abuse by priests was “part of a wide practice both known to and unpunished by” the Catholic Church, then it falls within the crimes against humanity law of the International Criminal Court.
In some cases, such as the ICC’s warrant against Sudan’s President Omar al-Bashir, heads of state can be ordered to surrender for trial. But in practice, the legal principle of sovereign immunity is the highest hurdle for the “arrest the Pope” movement.
If it can succeed anywhere, though, Britain seems as good a prospect as any, with a judiciary that is famously willing to issue controversial warrants.
For example, last year, a court heard arguments over a war crimes warrant against Israeli defence minister Ehud Barak, which was never executed. Soon after, a low-level magistrate issued a warrant for former Israeli foreign minister Tzipi Livni, only to see it quashed when it emerged she had cancelled her visit.
Prime Minister Gordon Brown promised to tighten the laws to prevent politically motivated abuses, but with an election looming in May, immediate legislative action is unlikely.
“The Pope is certainly a head of state, who has the same juridical status as all heads of state,” said Giuseppe Dalla Torre, head of the Vatican’s legal tribunal, in a recent interview with Italy’s Corriere Della Sera.
In a 2005 sex abuse civil case against the Pope and a Texas archdiocese, a judge took the advice of the U.S. Justice Department and ruled the Pope is immune as “head of a foreign state, the Holy See.”
In an interview with the Associated Press, Mr. Robertson said that, unlike in the United States, British courts do not simply accept the legal opinions of their political leaders.
“The Vatican is not a state. It was a construct of Italian dictator Benito Mussolini,” Mr. Robertson said.
Legally, the Vatican was created in 1929 by the Lateran Treaty, which settled disputes between the Kingdom of Italy and the Holy See, the Church’s worldly power structure.
It is regarded by many countries as a state, and maintains diplomatic relations in traditional ways with ambassadors and papal nuncios, but it is too small to host embassies.
In a recent Los Angeles Times article, two law professors evaluated the Vatican’s claim to statehood based on four criteria in international law. They argue that it has neither significant territory nor a permanent population. It has a functioning government, but no justice or education system, and only ceremonial defence.
As to the fourth criterion, an ability to engage in international relations, the authors write this is “decided by whether other states treat it like one.”
When the Bishop of Rome goes to London, more than mere etiquette will hang on that question.