Michael Hamar

Could the Pope Be Arrested in Britain?

Filed By Michael Hamar | April 12, 2010 2:00 PM | comments

Filed in: Living, Politics
Tags: crimes and criminal offenses, immunity, Roman Catholic Church, sexual abuse by priests, Vatican City

Two recent news stories raise the question of whether or not Pope Benedict XVI could PopeHands.pngpotentially face criminal charges if he proceeds with his trip the the United Kingdom later in the year. The first is from the Los Angeles Times and it raises the issue of why the Vatican and specifically the Pope should not be afforded immunity as a sovereign nation/head of state. The reality is that the Roman Catholic Church is a religion, not a sovereign nation, and that the Vatican does not meet the definition generally applied to what constitutes a nation within the meaning of international law. As such, the Pope should not be allowed to claim immunity from prosecution because he is a "head of state."

The second story was in the Sunday Times of London and focuses upon the planned effort of Richard Dawkins to have Benedict XVI arrested when he arrives in Britain in September - unless, of course, Benedict cancels the trip. Before looking at the two stories, it is helpful to look at some self-explanatory legal definitions of conspiracy, obstruction of justice and molestation within the criminal law context.

Conspiracy: An agreement by two or more people to commit an illegal act or to commit a legal act using illegal means. Proving conspiracy requires evidence that the parties agreed to the plan before taking action.


Obstruction of Justice: An attempt to interfere with the administration of the courts, the judicial system, or law enforcement officers, including threatening witnesses, improper conversations with jurors, hiding evidence, or interfering with an arrest. Such activity is a crime.


Molestation: The crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children, and variations of these acts.


The Los Angeles Times piece looks at the ridiculous manner in which the Vatican claims to be a sovereign nation and that the Pope is a head of state and, therefore, immune from criminal prosecution. The article makes - in my view - a convincing argument and set forth why Benedict XVI's claims of immunity need to be rejected. Here are some highlights:


[I]s the spiritual leader of the world's Roman Catholics really a "head of state" as well? Benedict XVI is the head the church's governing body -- known as the Holy See -- which claims many of the privileges of a sovereign country. In recent decades the Holy See has welcomed ambassadors, signed international treaties and used its status to influence developments at the United Nations.


That the Holy See is often treated as a state is deeply troubling, for several reasons. For one thing, the Catholic Church isn't truly a sovereign nation; to allow it to play one on the international stage perverts the meaning of statehood. Moreover, the church's claim to statehood gives it even more political influence than it would otherwise wield and grants outsized power to only one of the world's many religions. And its claim is particularly worrisome now that the church -- embroiled in a disturbing scandal that has reached from Boston to Berlin -- is claiming the sort of immunity enjoyed by prime ministers and presidents.


This persists despite its [the Vatican's] lack of most of the key legal characteristics of statehood. It's true that Vatican City runs a popular post office and mints its own currency. But international law requires that a "state" have four attributes: territory, a permanent population, a functioning government and the ability to engage in international relations.


As to the question of territory, there exists only the small parcel of land known as Vatican City. But as any visitor knows, Vatican City is in the middle of Rome and is little more than half the size of the Mall in Washington, D.C. In any event, the Holy See continues to claim that its international status is based on its religious authority, not its territorial enclave. To say that Vatican City possesses a permanent population of the sort envisioned by international law is even more of a stretch.


For decades the strange practice of treating the Catholic Church as a state has been bad for women's equality, gay rights and reproductive freedom. The Holy See's fictive statehood allows it to promote its retrograde views on gender and sex in diplomatic settings and during treaty negotiations. Now, the unfolding sexual abuse scandal reveals another dark side of the Holy See's claim to statehood: the extraordinary immunities claimed by the pope in the face of conspiracy accusations that span the globe.


Turning to the Times of London story, the theory on which the Pope could be criminally prosecuted is laid out - again in a argument that seems to make straight forward legal sense. Frankly, I hope Dawkins and his allies are successful. Clearly, Benedict XVI and the Catholic hierarchy engaged in a conspiracy to obstruct justice and shield predatory priest from appropriate criminal prosecution by civil authorities. There is little question that I or any readers who engaged in such a conspiracy to cover up rampant sexual abuse of minors on a global scale would find ourselves indicted before we knew what had hit us. Here are some highlights:

RICHARD DAWKINS, the atheist campaigner, is planning a legal ambush to have the Pope arrested during his state visit to Britain "for crimes against humanity". Dawkins and Christopher Hitchens, the atheist author, have asked human rights lawyers to produce a case for charging Pope Benedict XVI over his alleged cover-up of sexual abuse in the Catholic church. The pair believe they can exploit the same legal principle used to arrest Augusto Pinochet, the late Chilean dictator, when he visited Britain in 1998.


Dawkins and Hitchens believe the Pope would be unable to claim diplomatic immunity from arrest because, although his tour is categorised as a state visit, he is not the head of a state recognised by the United Nations. They have commissioned the barrister Geoffrey Robertson and Mark Stephens, a solicitor, to present a justification for legal action. The lawyers believe they can ask the Crown Prosecution Service to initiate criminal proceedings against the Pope, launch their own civil action against him or refer his case to the International Criminal Court.


"There is every possibility of legal action against the Pope occurring," said Stephens. "Geoffrey and I have both come to the view that the Vatican is not actually a state in international law. It is not recognised by the UN, it does not have borders that are policed and its relations are not of a full diplomatic nature."


Andrew Sullivan sums up the situation well from a morality perspective when he stated as follows on his blog:


The Pope cannot blame the local bishops this time - they desperately tried to get the priest fired. He cannot claim he was out of the loop: his signature is on the letter. He cannot get an underling to take the fall: it's his name and his office behind the unconscionable delay and behind the actual, despicably callous and self-serving reasons to protect a man who tied children up and raped them. It's over now.


When we look at this Pope we see a man who knew that one of the priests he had authority to fire had restrained and raped children. Yet he did nothing for years, and finally sided with the priest. He had more sympathy for the relatively young age of the rapist, rather than the innocence and trauma of the raped children. We see a man utterly corrupted by power and institutional loyalty. So when does he resign?


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Yeah, I don't see this happening. The Crown isn't likely to stir up the Catholic - Protestant rivalries dating back to before Henry VIII.

The Pope probably has a letter in a drawer someplace relinquishing office if he is captured by the English Crown. He'll fall on his sword for Mother Church and any prosecution would be a hollow victory.

The arguments in the LA Times article are flawed given that there are no requirements concerning the territorial size or population of sovereign states recognized by international law. Like it or not the Vatican City State meets all the requirements for sovereignty under international law. The other small nations like San Marino & Liechenstein I doubt would support any effort to strip the Vatican of its sovereignty. The Vatican not only has diplomatic relations with most of the world's nations, but contrary to Dawkins' argument it is recognized as a sovereign state by the United Nations:

http://www.un.org/en/members/nonmembers.shtml

Unlike the example Dawkins gives of former Chilean dictator Pinochet at the time of his arrest in the UK, Benedict XVI is still the head of a sovereign state so cannot be arrested in the same manner. An international tribunal would have to issue such an arrest warrant which I do not see happening at this time. All of this is interesting to speculate on but that's about all that will come out of it.

Not going to happen. It's all well and good to quote the law - but this is certainly a case where politics will trump the legal system

Renee Thomas | April 12, 2010 4:54 PM

Apt selection of a stock photo to go with the piece. I can hear Ratzinger now:

"Everything that has transpired has done so according to my design . . . "

I do not deny that politics may trump the law in terms of any criminal prosecution of Benedict XVI. However, it is not accurate to say that the UN recognizes the Holy See as a sovereign nation. In fact, the United Nations does NOT recognize the Holy See as a sovereign state. Rather, it is afforded the status of a "Permanent Observer," the other such Permanent Observer entity being the Palastinian State which at present does not exist as a sovereign nation.

The list of sovereign MEMBER nations is here: http://www.un.org/en/members/index.shtml

The two permanent observers are listed here: http://www.un.org/en/members/nonmembers.shtml

Chapter II, Article 4 of the UN Chrter states:
Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

The Holy See is not a member nation. Other portions of the UN's own website seems to likewise note the differences between these distinctions in status: "The MEMBERS of the UN are sovereign nations . . . Just as individuals in a democracy have equal voting rights regardless of whether they are rich or poor, powerful or weak, all countries in the General Assembly have the same voting rights.

In short, the UN itself distinguishes between sovereign NATIONS which are members and the non-nation Permanent Observers.

I would also note that another definition of sovereign state is as follows:

"a state which administers its own government, and is not dependent upon, or subject to, another power."

In terms of the Holy See, it has no municipal utilities of its own nor - as the Los Angeles Times notes - fire department. It is an enclave within the city of Rome/Italy.

Michael: An interesting argument but one I'm afraid will not wash. Sovereign nations do not have to be members of the United Nations in order to be recognized as being sovereign nations under international law. While the so-called State of Palestine is unique in that it is a quasi-sovereign state, the Vatican City State's status as a Permanent Observer is the same as has existed for others during the UN's 60+ year history. For example, here are other sovereign states that just like the Vatican City State is today were once themselves Permanent Observers at the UN:

Switzerland (1948–2002)
Republic of Korea (1953–1991)
Federal Republic of Germany (1955–1973)
Bhutan (1968-1971)
Democratic People's Republic of Korea (1973–1991)
German Democratic Republic (1972–1973)

Were these 6 nations also not sovereign states under international law because they were Permanent Observers during the years listed? I think not. Besides, click the UN link listing the Vatican and you'll see that it is listed as being a "Non-member State" while Palestine is called a "Non-Member Entity".

All in all this is an interesting academic discussion but has little basis in international law that I can see, let alone any possible chance of success.

Sparky's right. It's just not going to happen. Neither the US nor British governments would take such a step. Germany, other hand, just might be up to it.

As to John's point, certainly Vatican City is treated as a nation-state, but we'd better be careful here...is Jerusalem itself a nation-state? How about certain other cities with holy shrines in the middle? It raises interesting questions.

Not since the Crusader Kingdom of Jerusalem has the city ever been a nation state. Vatican City is the successor nation to the Papal States which dates back centuries. It clearly is a sovereign state under international law, peculiar as it may be in size and governance. As for Jerusalem, its claimed by both Israel and the Palestinians as being their capital, but I'm not sure what its exact status is under international law. One big difference though is that Jerusalem makes no claims to being a nation state, nor is there anyone I know of seriously advocating such, while Vatican City does make this claim and meets all the requirements under international law.

You know you could really have fun with this too. The Catholic Church has had schisms before in its past, indeed with more than one pope recognized at the same time (Google "Avignon" and "Western Schism"). Imagine a schismatic faction splitting off or perhaps an Anti-Pope and his supporters seizing a building or two in the Vatican. The rebels proclaim that they have "seceded" from Vatican City State and have formed their own nation as well as a new Church or in the case of an Anti-Pope restored the "true" Church. Perhaps a "Republic of Western Vatican City" or some such thing. Other nations recognize this new "nation" and civil war breaks out! The 134 Swiss Guards in their colorful uniforms battle it out. Why we have the potential of Bull Run or Gettysburg in the Pontifical Gardens.

If I were a writer this would be really be a blast to spin a tale out of in a book... :-)

Would it be fan-fucking-tastic to see? Hell yes. Is it going to happen? Not on your life.

Bill Perdue Bill Perdue | April 13, 2010 1:00 AM

Most likely it'll end up like Peter Tatchell's attempted arrest of Mugabe.

A failure in the minds of leagal eagles but a great success for the movement.

unlikely to happen but as noted above it would in fact be wonderful if it did. The so called 'vicar of christ' is not above the law, regardless of what their doctrine says. And, according to the signature on the letters, he is culpable. ARREST HIM!!

In my opinion, any attempt to bring justice to the victimized children and thier families is warranted. Even the attempt is a clear message to the Roman Catholic Church that religion is no shelter for pedophiles.
The church may very well deal with any such priests accused of sexual misconduct quickly and spare more children from suffering at the hands of the church.
Religion has harbored many criminals and despicable acts against humanity as well as being the light and inspiration for many. No other institution would be so tolerated for abuses of this nature! perhaps an "inquisition" of the church is due.

Like it or not the Pope is a Head of State and I know that in the past the US has ignored international law on this point (Noriega of Panama) but the UK recognises the Vatican City State and thus the Pope so he is entitled to full diplomatic immunity.

His acts however questionable now as Pope or previously as Cardinal Ratzinger would be covered by diplomatic immunity.

So although the Roman Catholic Church has acted deplorably and should be condemned for its actions senior cardinals and the Pope will not answer for it in this world.

Well; if the UK lacks the spine to arrest Il Papa; I'm wondering if their gov't has an option similar to one here in the US - the 'citizen's arrest'? It would take all sorts of chicanery and behind the scenes dealing to pull off, but wouldn't the simple act of an arrest of any sort be better than doing nothing at all? And even if a trial and conviction never materialize out of the effort - just the act of momentarily stopping this monster in his tracks is - if nothing else - a delightful fantasy to ponder :)

Bill Perdue Bill Perdue | April 13, 2010 8:20 AM

It doesn't matter if an attempted citizen's arrest is legal or not.

Nor does it matter if the vatican has wormed their into being accepted as a state. No cult, especially the roman cult, should be allowed in interfere in civil life to any extent. None should be recognized as having any legitimacy.

Attempts to do so should be criminalized.

The 1700 year history of the roman cult has been an uninterrupted exercise in criminality. There are no crimes they haven't committed, refined and used repeatedly to accumulate power, land and money. Their power, projected over 1300 years, is one of the chief tragedies of humankind.

Der Papenfuehrer represents catholic criminality perfectly. He and virtually all the curia, bishops and archbishops are accessories to child rapists if not themselves rapists.

All of them have long associations and deep interpenetrations with right wingers, including fascists.

They all increase the likelihood of anti-LGBT violence, misogynistic violence and the spread of HIV-AIDS.

Attempts to arrest Der Papenfuehrer are movement builders. It's a win-win tactic illustrating the lawlessness of capitalist societies, their empty pretense of being democracies, the impotence of 'The Law' when dealing with large criminal organizations and the disgusting mutual support network of cults and the right.

What have we got to lose?

We can only hope that goodness and right will trump the centuries old evils of the catholic church.