Can the Vatican Be Subject to ICC Prosecution?

by Julian Ku

Well, the Center for Constitutional Rights certainly thinks so

Human rights lawyers and victims of clergy sexual abuse filed a complaint on Tuesday urging the International Criminal Court in The Hague to investigate and prosecute Pope Benedict XVI and three top Vatican officials for crimes against humanity for what they described as abetting and covering up the rape and sexual assault of children by priests.

The formal filing of nearly 80 pages by two American advocacy groups, the Center for Constitutional Rights and the Survivors Network of those Abused by Priests, is the most substantive effort yet to hold the pope and the Vatican accountable in an international court for sexual abuse by priests.

The actual CCR filing can be found here.  I think there are massive jurisdictional issues here, as well as substantive issue related to the ICC’s jurisdiction.  I’m not quite buying that the abuse scandals constitute a “widespread or systemic attack directed at a civilian population.” But CCR lawyers are very good (if a little radical, but maybe that’s why they are good).  I still am predicting no court action on this.  But CCR has already gotten most of what they want out of this filing, in terms of media coverage and public awareness.

http://opiniojuris.org/2011/09/13/can-the-vatican-be-subject-to-icc-prosecution/

19 Responses

  1. Response…
    it is widespread or systematic, so widespread would fit — as alleged.
    Also, the conduc of some priests may fit within “sytematic.”
    What about “pursuant to or in furtherance of a … organizational policy to commit such attacks.”  Was it the “policy”?
    And what about art. 12(2)(a) and (b) — not if allegedly on U.S. terr. by U.S. nationals.  Covered if on U.S. terr. by a national of one of the 115 parties to the Rome Stature of the ICC.

  2. I myself would love for this to go ahead, however, the widespread or systematic cover-up or a common crime is not a crime against humanity. The Vatican simply did not order its priests to commit this horrible acts. Though it still is a very effective (and creative!) way to raise awareness and pressure the Vatican.

  3. Response…
    I suppose that one might argue that a policy of covering up can migrate to a policy of encouraging and then to a policy to commit?  Or is this too far a stretch?

  4. If words have meaning, this will be a crime against humanity subject to the jurisdiction of the ICC.  Too many acts and omissions, too long, in too many places.
    Best,
    Ben

  5. Whether the ICC has jurisdiction to prosecute the Vatican is questionable. Vatican City is not a State Party to the Rome Statute. The only way the ICC can have enforcement authority to prosecute is through the Security Council referring the matter to the court or the Vatican itself willing to accept the ICC’s jurisdiction (both hugely unlikely). 

    Politically, it is also unlikely. The ICC is funded primarily by the European Union. I cant see member states sanctioning such a prosecution/ It undoubtedly would provoke world-wide outrage for an institution that is still battling for its future.

    Of course, in a perfect world, the Vatican would have to face justice but unfortunately, cases like these are often more determined by what is expedient rather than what is right.

  6. Response…
    i missed the point about “the Vatican” — only individuals can be prosecuted in the ICC.   See art. 1 and art. 25(1).
     I was thinking about possible criminal responsibility of priests.

  7. please read the brief for more on jurisdiction – go to ccrjustice.org

  8. I skimmed the jurisdiction section of the complaint and, for obvious reasons, they see how there could be jurisdiction over the specific individuals against whom the case is done.  That may be the way this works because of their nationalities and/or the place things occurred.  Thus the rule can be vindicated and I would not be so categorically negative on the jurisdiction point.  On the political point, yes but that can cut different ways.
    Best,
    Ben

  9. Kevin, it may not be asked too much from a jurist to distinguish here between the person of the pope (and which pope? the one who since decades did more than everybody else within the Roman Catholic Church to prosecute child abusers strenuously and effectively?!), the Vatican City State, and the Holy See.
    -
    Secondly, this media stunt, devoid of any substance, is among the most ludicrous things I have seen in international law for quite some time.
    -
    Thirdly, and speaking as a canonist now, thus changing my caps, there can indeed be made a case against high-ranking Catholic prelates for aiding and abetting, and conspiracy to defeat justice. This is true for some US American and Chilean bishops, and for virtually the entire Irish episcopal conference. On part of the Roman Curia, the disciplinary section of the Congregation for the Doctrine of the Faith (colloquially still sometimes dubbed the “Ufficio”) does an amazingly good job under the conditions that are, after decades of sweeping-under-the-carpet and protection of perpetrators on the diocesan and national levels. But I must admit that they do not reach up high enough.
     

  10. Alex,

    I don’t know if this is the most ludicrous thing I’ve seen, but I certainly don’t expect it to go anywhere — and I’m sure CCR knows that.  It’s clearly designed to raise the profile of the systematic abuse, which I think is a good thing.

    As for the legal aspects, the mode of participation would clearly be command responsibility — which applies to civilian superiors as well as military ones.  In a strictly hierarchical organization like the Catholic Church, the necessary effective control would be easy to prove, as would the failure to take reasonable steps to prevent or punish.  And there seems to be little problem proving the knowledge of at least some higher-ups.

    The key question, then, would be the contextual elements of crimes against humanity — particularly, as Jordan rightly notes, the state or organizational policy requirement.  That requirement, I think, would doom the charges: the attack on civilians was clearly widespread, but I don’t see how it can be argued that sexual abuse was actual policy, even under the permissive Kenya standard.

  11. I am just not sure that the “widespread” but not “actual policy” ideas are reconcilable unless there is a sense that “toleration” of this behavior was part of the actual policy.  Otherwise we are in Sargent Schultz I see nothink land again.  When you hear stories of known pedophile priests being moved around nationally (quid internationally from developed to developing countries).  I see this as a dynamic structure that is hierarchical also.
    Best,
    Ben

  12. Jordan, I should have clarified when I spoke about “The Vatican”. I intended for the general term to apply to the highest individuals of this hierarchy (the Pope and 3 top Vatican officials etc).

    Benjamin, Im trying to understand how the Pope and three other Vatican officials will come under territorial jurisdiction. Is this what we are talking about: The ICC may have jurisdiction because Vatican officials aided and abetted criminal acts that took place in countries (Ireland for example) that are State Parties to the ICC? If so, I suppose then territorial jurisdiction can then be satisfied. But what about satisfying temporal jurisdiction? The CCR lawyers would have to prove that these crimes persisted in (and met the gravity of threshold requirement) after July 2002 (not before) as this is when the ICC became operational. Im from Ireland and I am not sure this can satisfied. I may be wrong but the pervasiveness of clerical abuse seemed to take place before this date.

  13. Sorry, but assuming a charge of CAH, the Pope and other Vatican officials in question have (in addition to Vatican nationality?) the nationality of two ICC member states – Germany and Italy, which apparently failed to prosecute them. Germany and Italy are actually barred by their own domestic systems to prosecute the Pope, considering him a Foreign Head of State (unwilling AND unable). So I do not see the problem with jurisdiction ratione personarum. Of course, the problem is the contextual elements of CAH.

  14. I certainly disagree with Jon w.r.t. to the “raising the profile” bid (which in my thesaurus is entered as synonym to “clown show”); but the disagreement is due to the differing perspective that we may have:

    I watch it from above and see that ONLY “Rome” (id est, the Congregation for the Doctrine of the Faith under Ratzinger, the last two popes, and some other dicasteria in subservient function) has taken these cases seriously and has actively prosecuted them, while the bishops and other ordinarii loci and the national level ecclesiastical institutions have for far too long a time protected the culprits, have intimidated witnesses, and have frustrated the attempts of victims to attain justice.
    To a certain degree in the past, even temporal institutions shared these vices spiritual. So, the situation was and is the exact contrary of what these CCR clowns purport.

  15. Response…
    Well, Alexander, you are raising points about cover-up and tolearation or permission as de facto policies and the issue becomes whether such shifted to a de facto organizational policy to commit — perhaps still a stretch.
    However, if the Prosecutor can “prove” that such a de facto policy by circumstantial evidence, it becomes more interesting.  Sometimes the mens rea standard is “knowledge” or “intent,” but if you can “prove” such by circumstantial evidence it can come down to – he/she must have known or intended 

  16. But even if the Pope should have known that his priests were committing abuses and did nothing to prevent it, could we really claim that that constitutes a policy of abusing children? I mean it seems pretty clear to me that the abusive acts were made not because the Vatican wanted them to be done, but because the priests themselves wanted to do them in an un-coordinated fashion. Is it really legal or at least wise/prudent to make such a jump??

    I think there was a widespread and systematic policy of covering common crimes, but that’s it. So there would be no ICC jurisdiction.

  17. I agree that this is essentially a media exercise. But it’s still interesting to think of the legal dimensions. I’ve considered some of them over at my blog, that pick up of some of the issues you discuss.

    @KJH: I’d be curious to know if you are even vaguely convinced that the modes of liability suggested by the CCR are in fact ineffective. If there’s command responsibility, you must establish the underlying crime. However, without the Vatican, there just isn’t any policy that would allow to establish crimes against humanity. Basically, it’s 25(3)(a), or nothing at all IMHO.

    Which leads me to suggest that the only way to argue this logically is to say that the cover-up itself is the crime, not the underlying acts. That would certainly be a stretch, but would solve the difficult issue of omission and modes of liability.

    Any thoughts?

  18. Dov, the best thing of your too lengthy posting over there, are the four lines about the ICC’s alleged “boy scout mentality”. I like the irreverence of the formulation, and I like the sensible concern behind it; a concern which judge Kaul had only recently enounced in his dissenting opinion to the Kenyan summonses decisions.
    (Kaul has since partially recanted, in a later decision on admissibilty, where he sided with the other two judges, but he had a point, au fond, which ought to be taken serious.)

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