Hauling the Pope before the International Criminal Court

Yesterday, the Center for Constitutional Rights requested that the International Criminal Court, a tribunal headquartered in The Hague, prosecute the Vatican, Pope Benedict XVI, and three cardinals for “crimes against humanity” in connection with the clergy sex-abuse scandal.  The complaint alleges that the Vatican tolerated the systematic and widespread rape and torture of children and vulnerable adults throughout the world and that Pope Benedict XVI and three cardinals bear personal responsibility for these crimes as a matter of direct authority and respondeat superior.

There are serious legal problems with CCR’s complaint.  First, sexual abuse by clergy does not fit easily within the definition of a “crime against humanity” contained in the ICC’s founding treaty, the Rome Statute of 2002.  The Rome Statute defines a “crime against humanity” as “a widespread or systematic attack directed against a civilian population,” a definition that suggests something like a wartime atrocity.  Second, the Vatican is not a state-party to the Rome Treaty.  That’s not necessarily a show-stopper, as the ICC has jurisdiction over crimes committed in the territory of other state-parties, but it does complicate matters.  For example, as a non-state party, the Vatican would have to consent to an ICC investigation on Vatican territory, something the Vatican is unlikely to do.  Third, the ICC works on the complementarity principle: it acts only if national courts show themselves unable or unwilling to prosecute offenses.  Prosecutions of clergy sex abuse cases are occurring in national courts ; it is hard to argue that victims cannot receive justice in domestic tribunals.  Finally, there are problems with asserting direct or even respondeat superior liability against Pope Benedict and the three cardinals.  It’s not clear that the Pope and the cardinals have sufficient day-to-day authority over priests to make out a failure-to-supervise claim, and the abuse of parishioners is not an act within the scope of priests’ employment.

For these reasons, most experts think that the ICC will dismiss CCR’s complaint. As the always worthwhile Opinio Juris points out, however, CCR has some very good lawyers, and the organization already may have gotten what it wanted out of this complaint, anyway: publicity for the victims of clergy sex abuse.  – MLM

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