Social and religious conservatives opposed the formation of the International Criminal Court (ICC) because they feared overzealous prosecutors eventually would target religious leaders such as bishops and even the pope. ICC proponents mocked such criticism and said the ICC was only for “the worst among us, war criminals like Hitler.” Little did anyone know that such fears would come so close to fruition so soon after the ICC came into existence.
Geoffrey Robertson, a United Nations judge and Australian tort lawyer from London, is calling on the Brown government to arrest the pope when he comes to Britain in September and send him to trial in the ICC at The Hague for crimes against humanity. Mr. Robertson’s charges stem from what he sees as the pope’s complicity in the sexual abuse by priests against young men.
The campaign highlights the growing danger to sovereign states and, increasingly, to individuals, too, when international law is removed from the realm of nations and handed to elite groups of experts that promote particular agendas and a supranational authority.
Human rights lawyers went straight to work debating the possibility of arresting the pope, parsing out what changes in today’s understanding of international law would need to be put in motion to make it happen. Would the pope have sovereign immunity as long as he is head of state? Some argue that immunity would be waived if enough eminent jurists deemed the Vatican no longer a state under international law.
Others, including Hurst Hannum of Tufts University’s Fletcher School, say it would be “a stretch” to use the ICC, whose purview - genocide, crimes against humanity, war crimes and the crime of aggression - deal primarily with warfare. In that case, the principle of “universal jurisdiction” would do. It was used to great acclaim in ousting former Chilean president Augusto Pinochet from Britain in 1998. Never mind that the principle violates the much older and well-established principle of sovereignty as it is enunciated in the U.N. Charter.
While some may downplay it, human rights lawyers such as Mr. Robertson regularly work to overcome such obstacles. Taking the pope to The Hague may sound outlandish or even conspiratorial, but not when it is seen as part of a broader trend in international law.
According to this trend, definitions of words and phrases in binding legal documents, such as the Rome Statute that created the ICC, can be changed if enough experts say so. Thus, the term “crimes against humanity,” Mr. Robertson insists, can be used as long as jurists can show that the sexual abuse of children by Catholic priests was carried out on a “widespread or systematic scale,” the way that child soldiers were used in the wars in Sierra Leone and the way sex slaves are traded internationally.
What inspires this particular campaign? Mr. Robertson argues that the main reason for prosecuting the pope is to get more money for victims of clergy sexual abuse in cases where dioceses have gone into bankruptcy. He specifically points out the fact that the diocese of Los Angeles already has paid $660 million in damages and Boston has paid $100 million.
As one prominent law professor told us, “Without in any way minimizing the seriousness of the alleged offenses of Catholic priests, it would be a grave mistake to the laws of human rights to permit a trivializing of the responsibility to protect, and to play into the hands of American contingency-fee lawyers.”
But it’s not just about money. In a fox-guards-the-henhouse way, Mr. Robertson, who is touting himself as a U.N. judge to promote his cause, is pursuing what apparently is a long-held desire to oust the Vatican from special-observer status at the U.N.
It’s essential to note that Mr. Robertson’s current position as a U.N. judge is not policy-related at all, but administrative. Along with four others, he is a member of a committee that selects other jurists who arbitrate disputes between U.N. management and staff.
With this kind of U.N. bureaucratic overreach occurring on a host of international legal fronts from security to social policy, it is no wonder that the United States and the other world powers have eschewed membership in the ICC. Like China, India and Russia, the United States is rightly skeptical of putting the fate of its citizens in the hands of a global bureaucracy that cares little for national sovereignty.
If the trend isn’t corrected, prosecution of the pope may not be such a stretch, after all. This is the time for U.N. member states to call on the secretary-general to rein in the wild horses of his secretariat.
Austin Ruse is president of Catholic Family & Human Rights Institute (C-FAM). Susan Yoshihara is C-FAM vice president for research and author of “Waging War to Make Peace: U.S. Intervention in Global Conflicts” (Praeger, 2010).