Arrest the Pope? Heaven forbid!

So apparently ahead of the Pope’s visit to the U.K. there have not only been massive protests engendered by the Catholic priest sex scandals uncovered lately (though I’m sure the $22.5 million price tag is incentive too), but an effort by British lawyers to indict the Pope under international law for alleged systematic cover-up of sexual abuse by priests.  Apparently,

Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.

Geoffrey Robertson, former U.N. appeals judge who ruled on the illegality of conscripting child soldiers and invalidity of amnesties for war crimes, published an op-ed in the London Guardian on Saturday demanding that the Pope be tried because, as a Cardinal, he knew of these abuses and did nothing.  Robertson argues that: A. The Vatican is not really a state since it was created by Mussolini in 1929, and B. International law now counts widespread and systematic sexual abuse against children as a crime against humanity, which even heads of state can be prosecuted for in the International Criminal Court.

It seems to me these are really two separate issues, though both intriguing to ponder.  In the first case, what makes a state legitimate? On the domestic level Hobbes and Weber are right when they claim a state is legitimate if it has, in the last instance, the right in a given territory to resort to force against citizens thereof.  Vatican City has an army (Swiss Guards), police force (Corpo della Gendarmeria), a legislative body, judiciary, and a head of state.  This seems to meet most of the basic requirements for a stable, legitimate state from the domestic front.

If Robertson is basing his argument on Vatican City being created wholesale by Benito Mussolini with the 1929 Lateran Treaty, doesn’t this open up another can of worms entirely for the international community? How many states today are either creations (with little historical basis) of great powers  or were given legitimacy because of great power recognition? For instance, North and South Korea were created in 1945 after agreement between the U.S. and U.S.S.R, and  Taiwan came into being in 1949 after the Kuomintang evacuated the Chinese mainland.

Point being, these states exist because they are recognized, either by the majority of other states as legitimate governments or at least a few great powers.  Vatican City is no exception.   It is a legitimate state because other states recognize it as such, and it has control over its small territory.

In comparison, the Principality of Sealand declared its independence from the U.K. in 1967, has a rudimentary government, its own currency… but no international recognition.

Are Robertson and, perhaps, British judges willing to broach the subject of what makes a state a legitimate entity – and likely lose – if they attempt to indict Pope Benedict? I simply can’t see a victory on this front.  The Vatican is no more or less legitimate than any other state created because of great power actions, and then recognized by the international community.

On the second topic at hand – whether a sitting head of state can be indicted for international crimes – this seems to be more an issue of political prudence than anything else.  As an ex-Catholic, I’m no fan of the Church, and every new scandal brings to light how widespread sexual abuse has been amongst the clergy.  This latest one, sparked by findings in Ireland, lays bare that the hierarchy has known about it for decades and swept it away.  Yes, Pope Benedict and the clergy who knew about this should face trial like any other systemic human rights abusers.  Will they?

Again, doubtful.  When world leaders like Milosevic and Karadzic were arrested and put on trial they had been international pariahs for years.  Pinochet’s indictment by Spain came at the end of his life, long after the end of his tyrannical reign.  While there is legal precedent for arresting a head-of-state like Benedict, would the British government be able to withstand the enormous social pressure from Catholics worldwide? For that matter, until priests are allowed to marry and deal with their sexual desires as other adults do, how much will arresting the Pope address the systemic problems of the Catholic Church?

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