Should Pope Benedict XVI be arrested?
That’s what an advocacy group called Survivors Network of those Abused by Priests (SNAP) is calling for. Just before the pope left Rome for a pastoral visit to his native Germany, SNAP filed a petition with the International Criminal Court accusing the pope, the Vatican secretary of state, and two other Vatican officials of “crimes against humanity” and urging prosecution at The Hague. The wholly unsubstantiated charge is that these men have enabled the sex crimes committed by Catholic priests over several decades.
The ICC is a fairly new institution in international law, having been established only in 2002. Unlike the International Court of Justice, which was established as the judicial arm of the United Nations and resolves disputes between nations, the ICC has jurisdiction over individuals who have committed the worst human-rights abuses — genocide, war crimes, and crimes against humanity — or who have waged a war of aggression.
The ICC was intended to eliminate politics and impunity in the international legal system and provide a legitimate forum for those cases in which, for example, an ousted tyrant might evade justice in domestic courts. In practice, however, the ICC is seen in some quarters as having become politicized. Just last year, the African Union released a paper complaining that virtually all of the court’s activity was directed against leaders in that continent.
Possibly SNAP hoped the ICC would regard its petition as an opportunity to show that it is not just going after Third World leaders. Who knows? If that is so, SNAP has insulted the ICC’s judicial and prosecutorial integrity. What we do know is that SNAP is using the court as an instrument to achieve its real purposes: to tarnish the pope’s reputation and to ensure publicity for itself just by having a petition pending against him.
It is worthy of note that matters can be brought before the ICC in several ways: The court’s prosecutor may decide to pursue a case on his own initiative; the U.N. Security Council may refer a case to the court; a nation may refer a case to the court; or a private party may petition the court to open an investigation. This petition process is very susceptible to politicization. Anyone can file a petition, and anyone can be the subject of one.
The ICC has received requests to consider about 9,000 cases in the nine years since it was founded, but it has opened only six investigations. Of those six, three were referred by nations, two were referred by the Security Council, and one was opened on the prosecutor’s own initiative. The ICC has never proceeded on a case based upon a petition like the one filed by SNAP. As for the balance of the requests, some have received public notice in passing. A few — like the one from SNAP — have garnered the frenzied media attention that scandalous allegations tend to generate. Of course, media frenzy was exactly what SNAP wanted, and most media outlets dutifully and uncritically cooperated. The petition’s allegations were taken at face value, and no searching media light was cast upon the motives or tactics of the petitioners.
If there had been some critical analysis, it would have shown that SNAP’s petition never alleges that any of the four named individuals personally committed crimes against humanity. Their responsibility would have to be premised on some novel version of the theory of respondeat superior. Yet a SNAP spokesman said the organization’s goal is to jail the pope, and “our long-term chances are excellent.”
The very suggestion of that kind of vicarious liability for the pope and other top Vatican officials indicates a complete lack of understanding about the structure of the Catholic Church. The universality in matters of liturgy and doctrine provided by the Holy See’s communion with the whole of the Church is a primary source of the Church’s catholicity. However, diocesan bishops and religious superiors enjoy tremendous autonomy when it comes to day-to-day affairs and administration. The people at SNAP are well aware of this, but nevertheless exploit the myth of a centralized Vatican “politburo” style of authority in an attempt to justify their petition.