Can the Pope Be Sued? Maybe…

by Julian Ku

I don’t know if I buy this article’s suggestion that the various Catholic Church priest-pedophile scandals amount to a “crime against humanity” under international law, but I do think the Pope’s right to “head of state” immunity under international law is a tough question.  In the U.S., the Pope has been granted head of state immunity (thanks to President Bush and then Legal Adviser John Bellinger), but it is far from clear that he enjoys such status in other countries or under international law generally. And can he at least be deposed, as these U.S. litigants are demanding?

Well may the pope defy “the petty gossip of dominant opinion“. But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state – and of the pope to be a head of state and hence immune from legal action – cannot stand up to scrutiny.

[Bellinger’s opinion] hinges on the assumption that the Vatican, or its metaphysical emanation, the Holy See, is a state. But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with “sovereignty in the international field … in conformity with its traditions and the exigencies of its mission in the world”.

The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage. …

12 Responses

  1. Not all subjects of international law which are immune from the jurisdiction of other states are states themselves. The Holy See has been a subject of international law for centuries – pretty much from the inception of the subject ‘international law’ – and quite independently from the existence or not of a Vatican state going along with it. To be more precise, the Holy See was recognized as an international subject also during the 1870-1929 period, and of course Mussolini’s Italy could not by itself create such international personality [though there are also countries formed by treaty, if I am not mistaken technically Austria is one of them]. – The point is that the Lateran treaty *restored* the previous situation of having both a Vatican State and the Holy See, but it changed nothing with respect to the Holy See.

    Even if you disagree with the concept of the Holy See  as an independent subject of international law, you might want to have a look at state practice around the world: Vatican / Holy See Ambassadors (Nuntii) are present in many countries and recognized as diplomats all around the world. The question whether they are Ambassadors of the Holy See or of the Vatican City state is somewhat controversial (According to the Holy See, they are Ambassadors of the Pope himself; but they sign treaties both on behalf of the ‘Holy See’ and of ‘Vatican City’, depending on content) – but the point is that they are certainly recognized as immune from prosecution as diplomats.

    And the Pope has had immunity as and of himself, not as head of state but as head of the Holy See, for centuries – again, pretty much from before the subject international law was even invented… The Lateran Treaty has very little to do with this, and nuntii and international recognition for him existed much earlier than that.

    A completely different question is whether individual bishops / priests are immune from prosecution. They are not (unless they are holy see diplomats), and they can and should be prosecuted for crimes just like any other citizen.

    As to the Archbishop of Canterbury – his actual office is in Westminster, London, not Canterbury – if the UK decided to ‘launch it in the international stage’ by creating a little alternative Vatican city in London… I suppose that they would have to gain recognition by other states for this new subject of international law; if other states did, the trick could work (Montevideo criteria are quite demodé these days…). But I doubt it would ever happen, for the simple reason that the Queen is formally the head of the Anglican communion, not the Archbishop of Canterbury. And she already has Head of State immunity!

    (For more info on the Vatican as a state vs. the Holy see, the best place to start from in English is James Crawford’s classic book, The Creation of States, CUP).

  2. The status of the Holy See and/or the Vatican is extremely complex. The UN recognizes it as a non-UN member state and it is generally thought that the Holy See is a subject of international law – probably actually the first such subject distinct from the Empire before 1648. It is not an ideological position of Catholics or Christians in general, as shown by the recognition it enjoys from Muslim countries (Iran has an ambassador to the Holy See, for instance). The fact that for certain periods of its existence the Holy See has not had a territory over which to rule has never been considered much of a problem. Its status as a subject of international law and its immunity does not depend on that, nor on Italy’s actions during the 1920s – but rather on usus and opinio juris over the past five centuries…
    See, for instance: Arangio-Ruiz, Revue Belge de Droit International, 29 (1996) 354 and Acquaviva, Vand. J. Int’l Law, 38 (2005) 215.

    This does not mean complete immunity for crimes against humanity, of course, at least before ‘certain international tribunals’…and in the face of such allegations brought before fair and independent courts, any Pope should probably waive his own immunity…

  3. If I may chime in, adding to what Francesco and Guy said above, it is dubious in the extreme that the actual crimes in question can be qualified as crimes against humanity, particularly within the meaning of the Rome Statute. I am actually amazed that someone as eminent as Geoffrey Robertson could make this argument in such unqualified terms.

    Specifically, one would need to prove that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute. The Elements of Crimes further interpret this contextual element as requiring a state or organizational policy to commit these crimes. So, even if there was a widespread and systematic attack against a civilian population (which is truly doubtful), and even if there actually was a policy by the Vatican/the Church/the Holy See to cover up the sexual abuse of children by priests (probably yes), there certainly is no evidence of a policy to actually promote or encourage the sexual abuse of children. At any rate, even if such an argument could be made, it would be far from obvious, as it has in fact been presented.

    Then, of course, there’s the fact that the Vatican is not a party to the Rome Statute, and has not waived the personal immunity of its head of state (cf. Bashir, whose immunity was arguably removed by the Security Council, but that’s a long story).

  4. I’d like to point out that the Federal Republic of Germany was given statehood through a series a concessions by the occupying powers. Does it mean that modern Germany is “risible”? I think not.

  5. I’d agree with the earlier comments. My understanding of international law has always been that the Holy See and the Order of Malta are the quintessential, and possibly only, examples of non-territorial sovereigns under international law. “Sovereign” meaning that they have inherent international legal personality, on equal basis with states, instead of having such attributes because of some treaty.

    Of course, we wouldn’t be having this conversation if the Holy See/Vatican had taken its responsibility as a sovereign and prosecuted its own “subjects” for their crimes. I seem to recall that the relationship between the courts of Inquisition and the civilian courts was a tricky one, with ample difference between theory and practice, but surely it must be possible to organise trials (i.e. judicial proceedings that meet the requirements of art. 6 ECHR) through the Congregation for the Doctrine of the Faith if the Pope were so inclined. That way, he can have his cake and eat it, too. He’d be able to protect the integrity of the Church, punish the sinners as well as protect the victims against the vagaries of the US adversarial system all in one fell swoop. But alas…

  6. Reviving the Inquisition is a very interesting thought – but I think huge problems would ensue if the Vatican decided to claim that it has the right to put priests to trial in Piazza del Sant’Uffizio in Rome INSTEAD of the relevant state where the abuses were committed… (It could presumably do it AS WELL, but only for its own citizens, which normal priests are usually not unless they reside in the Vatican or are diplomats…) — Plus, we’d be basically going back to Medieval times, and separate jurisdictions for separate ‘statuses’ of every individual, something we kind of had a French Revolution against … What could and should happen is for priests to be tried wherever the abuse was committed, and for the church to always cooperate fully and immediately with national jurisdictions to that effect. But, alas…

  7. Yes, that is one of the problems caused by the hazy nature of the Holy See: Who are “its own citizens”? As long as that is established, the principle of ne bis in idem would normally prevent national jurisdictions from trying someone who has already been tried by the Vatican authorities in a non-sham trial.

    The reason why I’ve been thinking in this direction is that this seems like a way out that would satisfy all parties. To the extent that the Vatican authorities have been covering up these crimes, they haven’t done so out of excessive concern for the criminals, but out of concern for the authority and reputation of the church. (Simply put…) I’d imagine that is also why they would never want the Pope or other high church officials to appear in (US) court, where some lawyer would question them as if they were Joe Ordinary, and where they might be forced to admit they were wrong. I’d say that, as long as the church cleans up its own messes, it is as close to infallible as any human organisation. Hence the need for some kind of internal cleanup that would preempt all sorts of national witch hunts.

  8. The origin of the modern status of statehood for the Vatican is far from unique and certainly not risible. Modern states have originated in many ways.

    Are there not numerous examples in the eighteenth and twentieth centuries of states purporting to grant statehood and create a new state, de-annex formerly soverign territories and amalgamate soverign states into unitary nation states.

    For example, in UK law, the Government of Ireland Act 1920 created the Irish Free State and with the Statute of Westminster 1931 laid the basis for the subsequent Irish Constitution of 1937 and the declaration of the republic in April 1947.

    In Irish law the view is that the modern Irish State is created by the act in referendum of the soverign Irish people in 1937.

  9. In my view, no claim against the Pope can be successful. All that stuff with suing the Pope is too much ado for nothing. Even if the Pope were sued and condemned in the UK this decision would not be enforceable in Vatican and in all probability in many other countriesas well. So the only outcome would be that the Pope would not visit the UK – what a big problem for him! What is more, it is beyond doubt that the Pope enjoys international immunity.
    By no means, to remain silent as to child  abuses cannot amount to international crime. This will stretch the  scope of the concept of “international crime” too far.

    Last but not least, from the practical standpoint, It does not seem to be plausible that any state would put the Pope into a jail, because some of its citizens were allegedly harmed by persons who pertain to the Catholic Church. In my opinion, it would not be just if the Pope should be responsible for the illegal behaviour of any priest.

  10. Another point of view could be added according to the very name of this blog: would one jurisdiction over-rule the “opinio iuris” of almost 200 countries?

    And some ideological criticism: what are doing those who claim so hardly for the lack of Holy See’s immunity (and its Head) in the matter of the deliberate slow assassination of Mr. Guillermo Fariñas in Cuba? “Ubi ratio ibi ius”…

  11. It’s a great idea to sue the Pope.  Let’s extend the idea to other noteworthy beneficiaries of legal exemption–for example, the United Nations and its army of peacekeepers, many of whom have been responsible for a continuing series of well documented sexual outrages against children in numerous countries since at least 1989.  By Robertson’s reasoning, the Secretary-General of the U.N. should be held accountable for these abuses and sued in the International Criminal Court.

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  1. […] being the best forum for so doing. However, there are also problems inherent with this effort. As a commenter at Opinio Juris states: …it is dubious in the extreme that the actual crimes in question can be qualified as crimes […]