Taking the Vatican to the cleaners: the ICC lawsuit

Representatives of the Holy See may well have seen this in their crystal ball gazing, but not all could have seen the manner of it. The US- based human rights group Centre for Constitutional Rights is filing a suit on behalf of the Survivors Network of Those Abused by Priests (SNAP) in the International Criminal Court. The complaint urges the ICC to 'take action and prosecute the Pope' for 'direct and superior responsibility for the crimes against humanity of rape and other sexual violence committed around the world.'

The documentation by SNAP is extensive – 20,000 or so pages of supporting materials including 'reports, policy papers, and evidence of crimes by Catholic clergy committed against children and vulnerable adults.'

The legal problems behind this action are formidable, though the dilemma is something of a lawyer's wet dream. For one thing, there is a dispute as to whether the Vatican even qualifies as a 'state' in international law. Implicit in the charge of crimes against humanity is the state element behind the policy. To put it simply – no state, no crime.

The criteria for statehood are set out in the Montevideo Convention on the Rights and Duties of States (1934), which resulted from the Seventh International Conference of American States. The occasion is more known for its declaration by President Franklin Roosevelt of Washington's infamous 'good neighbour policy' than the dry legal detail. Yet it is that detail that has dominated international debate on the subject of statehood for decades. Those requirements for statehood remain: a permanent population; a defined territory; government and capacity to enter into relations with other states.

There is more than ample evidence suggesting that the Roman Church is, in fact, a state. Historically, it has been a force of secondary colonisation – a state that is not a state, yet exerting dominion through channels that are not formally recognised as such. Last year, the notable human rights lawyer and advocate Geoffrey Robertson, in The Case of the Pope: Vatican Accountability for Human Rights Abuse, put forth the case that the Vatican had run a global clandestine system of exoneration and protection for paedophile priests. He also sought to tackle a few of the legal issues facing aspiring litigants.

The curious situation for SNAP and friends is that they would want the ICC to treat the Vatican like a sovereign state as a preliminary to showing 'crimes against humanity'. But the sword of sovereignty cuts both ways. If the Vatican is recognised as such, it can plead state immunity on behalf of its highest officials, at the very least during their time in office. In the case of Doe v Roman Catholic Diocese of Galveston-Houston and Joseph Cardinal Ratzinger, the US Department filed a 'suggestion of immunity' via the insistent legal advisor John Bellinger III. The Bellinger designation was simple – the Pope was 'the sitting Head of State of the Holy See… a foreign state'.

The court agreed, though many jurists would be more circumspect in accepting the overarching judgments on whether a state is designated as such. (Incidentally, the Obama administration has followed the Bellinger line as well.) Even if the Holy See was designated as a state, there is no such thing, in this day and age, as complete immunity from civil process. Activities that cause personal injury through negligence can often be sued for in local courts, notwithstanding the sovereign nature of an entity.

The plaintiffs in this case are seeking something greater. They want redress for criminal charges, many of which also took place after the ICC's mandate to investigate crimes commenced – July 1, 2002. Nor has the Vatican acceded to the ICC's jurisdiction.

For Robertson, the sights for legal accountability should be set on Pope Benedict XVI, who can be charged like an employer over the actions of his agents or employees 'irrespective of any direct authorisation'. Under Canon 331 of the Code of Canon Law, the Pope is granted sovereign control, a wordy provision claiming that, 'By virtue of his office he possesses supreme full, immediate and universal ordinary power in the church, which he is always able to exercise freely.' Clerical authority is one thing – but to attain a verdict through international channels on the subject of whether it was criminally exercised will be hard to do – at least for now.