Prosecuting the Pope for Crimes Against Humanity
If the systemic rape and abuse of children is not a crime against humanity, then what is?
by Perry Bulwer
A complaint recently filed with the International Criminal Court (ICC) asking it to investigate crimes against humanity by Pope Benedict and three top Vatican officials faces some hurdles, but as a last resort it is a creative legal strategy. As Barbara Blaine, president of Survivors Network of Those Abused by Priests (SNAP), which initiated the complaint, stated:
We have tried everything we could think of to get them to stop and they won’t. If the Pope wanted to, he could take dramatic action at any time that would help protect children today and in the future, and he refuses to take the action.
Catholic apologists will take issue with that statement and insist the Pope personally, and the church in general, has taken action to protect children, but considering the actions taken in the U.S. and Ireland in that regard they are clearly insufficient, ineffectual, and undermined by the deception of bishops and directives from the Vatican. Long before Benedict became Pope, he was well aware, as was his predecessor John Paul II, that clergy sex crimes against children was an on-going problem for decades. But instead of doing the moral thing to protect children by exposing and reporting crimes by priests, Vatican policies were intended to protect the church by covering up abuses and transferring criminal priests to other parishes or countries, which led to many more children needlessly abused because of that institutional neglect and deception. That is the basis of the complaint to the ICC, as explained by Pam Spees, attorney for the Center for Constitutional Rights (CCR), which filed the complaint along with SNAP:
The Vatican officials charged in this case are responsible for rape and other sexual violence and for the physical and psychological torture of victims around the world both through command responsibility and through direct cover up of crimes. They should be brought to trial like any other officials guilty of crimes against humanity.
However, given some of the legal obstacles the complaint must overcome before the ICC agrees to take on the case, Spees "conceded she was “not hopeful” the court would launch an investigation." That does not mean the complaint has no chance. There are various arguments that can be made to overcome some of the obstacles that might prevent the ICC from taking the case. Herman van der Wilt, professor of international law at Amsterdam University, identified two reasons why he thought the complaint does not stand much chance: crimes against humanity must be perpetrated by a State or state-like organization, and the ICC has no mandate to investigate crimes committed before July 1, 2002.
As a professor of international law, van der Wilt is probably smarter and more knowledgeable than I am on the subject, but it seems to me that the Holy See, which "refers to the composite of the authority, jurisdiction, and sovereignty vested in the Pope and his advisers to direct the worldwide Roman Catholic Church", does have international recognition as a sovereign state.
So too does Vatican City, which meets all eight criteria used to define an independent country. By that definition, Vatican City is also a sovereign State, so either way the systemic crimes against children within the Church do qualify as crimes against humanity committed by a State, so I'm not really sure what the professor was thinking on that issue.
As for the obstacle of time, the fact that many of those crimes occurred before the ICC's mandate began in 2002 is a tougher one to overcome, but not impossible. Civil statutory time limitations for initiating sexual abuse claims have worked mostly to protect the Catholic church from lawsuits, while denying victims justice. However, courts have sometimes suspended those time limitations temporarily in some jurisdictions to allow victims to sue within a specified period, or ruled them invalid in the case of some individuals with special circumstances. I am not suggesting the ICC has a mechanism for overcoming its prohibition against investigating crimes prior to 2002, just that clever arguments can be made to overcome that prohibition.
The scandal in Philadelphia comes to mind as an example of how clergy crimes that occurred before 2002 could still be investigated by the ICC, indirectly. A grand jury report details how the Philadelphia Archdiocese allowed 37 priests credibly accused of child abuse to remain in ministry, and failed to inform the local and national review boards set up by the U.S. bishops to help keep them accountable. The head of the Philadelphia review board, Ana Maria Catanzaro, said the archdiocese pre-screened which cases they reviewed, hiding problem priests, because it was more concerned about lawsuits and liability than protecting children. Although many of the crimes committed by those 37 priests occurred before 2002, the cover-up and neglect by Cardinals and Bishops continued long past 2002. In my opinion, the prohibition against pre-2002 investigations can be overcome with that or similar arguments. Besides, there are many cases after 2002 that the ICC could investigate.
The covering up of crimes by Bishops and Cardinals is a fairly straightforward argument to make with plenty of evidence to back it up. Certainly, the 20,000 pages of documents CCR lawyers submitted to the ICC to support their complaint contain some of that evidence. The other basis of the complaint is that the Pope and the other officials named in it had command responsibility, meaning that they are responsible for the crimes of their subordinates. Command responsibility has been used mostly in war crimes cases, since it is usually applied to organized groups like military, para-military or police units where there is an obvious chain of command. However, command responsibility can also be applied to a civilian state organization and the CCR lawyers have done an excellent job making the case that the Pope and the other church leaders are responsible for the systemic crimes against humanity committed by priests around the world. If you are not convinced, I urge you to read the full complaint and decide based on the evidence of horrific crimes provided within it whether or not you agree with Jeffrey Lena, the Vatican's U.S. lawyer who called the complaint a “ludicrous publicity stunt and a misuse of international judicial processes.” That is typical of statements by Catholic spokespersons and apologists, whether lawyers, church officials, or laypersons. But what is more ludicrous, abuse survivors and advocates fighting anyway they can to protect children and hold perpetrators and their enablers accountable to civil and criminal law, or spokespersons for a church that claims to be the moral authority for the world denigrating those survivors of horrific spiritual and physical abuse by priests, who represented God to them, as nothing more than publicity seekers?
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