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.
Issues of ecclesiastical structure aside, as a legal matter the allegations in SNAP’s petition do not fit the ICC’s jurisdictional mandate. For example, while rape can constitute a crime against humanity, it can only do so when committed as part of a widespread or systematic attack directed against a civilian population. No false rhetoric in SNAP’s petition can compensate for the fact that neither the pope nor the other named Vatican officials are or have been involved in any “systematic attack” against a civilian population.
It is also worth noting that the ICC was designed to punish the “worst of the worst” perpetrators. With respect to sexual abuse, the evidence clearly demonstrates that such crimes were committed not only within the Catholic Church, but also within other religious and civic groups and school systems, and often at rates higher than those for priest offenders. That is no excuse for any of the perpetrators, but it eliminates the ICC as a proper forum for prosecuting them or their superiors. The ICC was not intended as a court in which to prosecute countless leaders of churches, civic institutions, and schools throughout the world.
One has the sense from their press statements that SNAP activists are not bothered by such niceties as the true purpose of the ICC or its jurisdictional mandate. The attorneys representing SNAP, however, work out of the Center for Constitutional Rights, and they cannot so easily be let off the hook. Those attorneys know that their petition does not state a valid claim before the ICC, but they filed it anyway.
The CCR attorneys are misusing this new and fragile instrument of international law as a political tool — in other words, they are using it in precisely the way that the ICC, at its inception, was intended to avoid. Indeed, the filing of the petition itself was organized as a media event — the kickoff to a major “European tour,” replete with SNAP and CCR press conferences in European capitals. The CCR attorneys are not acting as lawyers; they are facilitating a publicity stunt. That is shameful behavior that brings disrepute to the legal profession and, because the petition itself is fallacious, ultimately will not advance the interests of abuse victims.
I find the attorneys’ actions particularly troubling because I worked on a case with the CCR years ago, and I considered Morty Stavis — one of the founders of the CCR and a lawyer active there from 1983 until his death in 1992 — a friend. Morty was too good a lawyer to play such games. The CCR would not be involved in something like this if Morty were still alive.
Notwithstanding the widespread media attention that SNAP’s petition has received, it is little more than a political statement that abuses the international judicial process. In due course, it will be rejected by the ICC and end up in a dusty file drawer somewhere. Unfortunately for those maligned in it, however, it will already have achieved its real political purpose, which is to sully reputations and generate propaganda. This may serve SNAP’s anti-Vatican agenda, but it does not assist abuse victims one bit.
— Ronald J. Rychlak is the MDLA professor of law at the University of Mississippi School of law and an advisor to the Holy See’s Mission to the United Nations.