Should the Pope Face Charges, The Macleans, September 11, 2010

Should the Pope Face Charges

The Macleans
September 11, 2010

http://www2.macleans.ca/2010/09/11/should-the-pope-face-charges/

God in the Dock, meaning God on trial, is a familiar concept in Britain, both from the title of a famous collection of essays by C.S. Lewis and as a general term for skepticism about religious belief and doctrine. But Pope in the Dock? Literally? Perhaps not in our lifetimes, as British lawyer Geoffrey Robertson concedes in The Case of the Pope: Vatican Accountability for Human Rights Abuse, a book set to appear just one week before Benedict XVI makes the first-ever papal state visit to Britain. But, Robertson argues, the once unthinkable idea that Benedict or a successor could be charged with obstructing justice or for "harbouring pedophile priests" is now very thinkable, and—given evolving trends in international human rights law—may soon be practical.

The plain facts of the case to be answered are horrific and undeniable. Since the dam crumbled around the turn of the decade, a cascade of child sexual abuse by Roman Catholic clergy has come tumbling into the open. So many cases emerged that the U.S. Catholic Bishops Conference commissioned an expert study, which concluded in 2004 that, since 1950, 10,667 individuals had made plausible allegations against 4,392 priests, 4.3 per cent of the entire body of clergy in that period. The total bill in settlements with victims is spiralling toward $2 billion and won't stop, Forbes predicts, this side of $5 billion. Depressingly similar stories from other First World countries, including Canada, soon emerged; the situation in Latin America and Africa, where no investigations have ever been made, can only be imagined.

All that is but half of Robertson's case. And for the former president of the UN War Crimes Court in Sierra Leone and author of a landmark judgment on the illegality of recruiting child soldiers, it's actually the lesser half. Any institution can have criminal employees; what matters is its awareness of and response to their illicit acts. Church legislation against clerical sexual abuse dates back to the fourth century, and in 1952 Gerald Fitzgerald, the American founder of the Paraclete order, which treats erring priests of all sorts, brought a specific warning to Rome. "Leaving pedophile priests on duty or wandering from diocese to diocese," he said, was a moral evil and a scandal waiting to break.

But for another half century they were usually left on duty or shuffled about, without warning to their ﬂocks, new or old. The Church dealt with its offenders in secret via a parallel system of justice, its own canon law, as overseen by the Vatican's Congregation for the Doctrine of the Faith, itself overseen by cardinal Joseph Ratzinger from 1981 until he became Pope Benedict in 2005. Insofar, that is, that the Church dealt with them at all. Penalties, in comparison with secular law, were negligible, ranging from spiritual exercises (extra prayers mainly) to the canon law's ultimate "degradation": being returned to the lay state. A church dedicated—in its best incarnation—to the belief that the worst sinners can be saved, and—in its worst mode—to avoiding scandal, did what came naturally to it, what Fitzgerald had warned against.

From New York, confessed molesters were sent to Africa, as they were from Italy, Germany and Ireland. More often they simply moved next door. The archbishop of Dublin, faced with 46 cases of known pedophile priests, reported none to the police, and instead dispatched them to new parishes in full awareness of the risk to children—an awareness made plain by the 1987 purchase of insurance policies to cover future claims.

Canada offers a particularly clear case of Church cover-up. In 1993 the bishop of Pembroke in Ontario wrote the papal nuncio—the Vatican's ambassador to Canada—about his willingness to see a child molester's quiet removal to Rome. Some of his victims were starting to talk; luckily, they were "of Polish descent and their respect for the priesthood and the Church has made them refrain from laying charges." The priest, Bernard Prince, a long-time friend of John Paul II, was a key Canadian channel to the Polish pope. (In Céline Dion's autobiography, there is a photo of Prince introducing her to John Paul in 1984.) Church authorities managed to keep their devout Poles quiet until 2005, when police were finally informed. Thee years later, Prince, then 74, was found guilty of molesting 13 boys. He was defrocked in 2009, 15 years after the Vatican first learned of his crimes.

Any other institution, Robertson insists, would have been overwhelmed by civil monetary damages and criminal investigations. Sovereign immunity has so far saved the Catholic Church.

Not that Robertson thinks Vatican City is a genuine nation. He calls it a Santa Claus state—"no matter how many people believe in it, it doesn't exist"—that somehow finagled its way into international forums, despite lacking the normal preconditions for statehood, notably a "permanent population." But 80 years of exchanging representatives with world governments does mean precedence is in the Vatican's favour, the jurist acknowledges. No matter, Robertson says: statehood is no longer the fortress of immunity it was, not eight years after the International Criminal Court began operations. Today a pope is as open as any other world leader to being brought before the ICC, the ultimate bastion of human rights law, charged with "command responsibility" for crimes against humanity.

The ICC is a court of last resort and throws up high barriers to having a case heard there. First, a nation state must show itself unwilling to prosecute. No problem there, Robertson reckons—the Vatican is hardly likely to bring its absolute monarch to trial. The case must be of "sufficient gravity." Again, the jurist is sure the refusal to hand over criminal pedophiles to civil authorities satisfies the test. It must involve "a crime against humanity." Article seven of the treaty setting up the ICC declares rape, sexual slavery and other sexual offences that are "part of a wide practice of atrocities tolerated by a government or de facto authority" to be exactly that sort of crime. Again, test passed. The defendant has to have been in command over subordinates engaged in such acts, aware of their crimes, and failed to have taken all reasonable and necessary steps to end them. Another pass.

But then, a potential roadblock. The signatories to the ICC treaty later endorsed an additional document titled "Elements of Crime," which says the crimes in question must be in "furtherance of state or organizational policy." Not even Robertson is prepared to argue that the church hierarchy desired the rape of children, however much their policies effectively allowed it.

("Elements" was an American initiative, designed more to protect the likes of Henry Kissinger than Pope Benedict.) For Robertson the document is fundamentally inconsistent with provisions of the treaty that would allow for prosecution. He thinks the waters should be tested: an NGO, acting on behalf of abuse victims, could seek a preliminary ICC hearing, during which the court could consider whether it had jurisdiction. There are similar legal strategies, Robertson details, that he believes would allow successful civil suits against the Holy See, something that in the U.S. has been prevented by the Vatican's sovereign-nation status, even as American dioceses are sued into bankruptcy.

In the end, Robertson comes back to prevailing reality. There is no chance, he writes with unstated regret, that Benedict will find himself in handcuffs a week after The Case of the Pope hits British bookshops. The idea is too new and shocking, and the Pope's personal sanctity unquestioned. After all, as the author notes sardonically, the only two issues on which all three British party leaders agreed in the election debates in April were their complete opposition to papal teaching on homosexuality and abortion, and their sincere eagerness to welcome Benedict to Britain. But Robertson and other human rights jurists passionately believe not only that there is a case for Benedict to answer, but that the diplomatic immunity model of international relations needs to be replaced by a more moral legal order. They think the wind is at their backs, a wind strong enough to rattle stained-glass windows everywhere, and that someday soon not even a pope will be above the law.