Noli me tangere: why you can’t arrest the Pope

I’m pleased that Richard Dawkins and Christopher Hitchens are raising the question of the Pope’s potential legal liability for his apparent role in allowing the abuse of children by priests to continue by failing culpably to take action against them. The key evidence against the Pope is the 1985 letter he wrote declining to defrock Stephen Kiesle, who had raped children.

I admire both Dawkins and Hitchens immensely, and agree that the Pope should be held accountable for his own actions and for the policies of his church. I support their efforts to have him subjected to international law in just the same way as any ruler. And few things give me greater pleasure than the knowledge that, although baptised and confirmed in the Church of Rome, I am now excommunicated from it. I hope I’ve made it clear that I am no fan, and no defender, of the Pope. But I don’t see how he can be arrested or put on trial when he visits England later this year.

Geoffrey Robertson QC, who with Mark Stephens is considering possible legal avenues of redress, places great emphasis on the question of the Pope’s immunity as a head of state, arguing that it does not apply, either because the Vatican is not a state or because in any event, there is no immunity from prosecution in the International Criminal Court. I think he has a decent argument on the first point, and he’s right on the second – see article 27 of the Rome Statute.

But before any question of immunity arises, the prior question is whether there’s any offence for which the Pope can be arrested or with which he can be charged in the first place. Only if there is does he have any need of immunity.

The starting point must be to ask whether he might have committed a crime against humanity as defined by article 7 of the Rome Statute. The Pope could potentially be liable under article 28 as Kiesle’s “superior”

a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i)     The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii)     The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii)     The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

But what crime against humanity? Article 7(1) defines a crime against humanity to include rape, sexual violence or other inhuman acts of a similar character

committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack

and article 7(2)(a) makes clear that a “widespread or systematic attack” means

a course of conduct involving the multiple commission of acts … against any civilian population, pursuant to or in furtherance of a State or organizational policy.

But was child sex abuse the Vatican’s organizational policy? According to the explanatory memorandum to the Rome Statute (as quoted by Wikipedia – I can’t find it online) crimes against humanity

are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

So there may be an argument that by in effect tolerating acts which were part of a consistent pattern of inhumanity committed by people liked by their common vows and vocation, Pope Benedict has crossed the article 7 threshold. It’s very far from clear, though. In fact as Paul Behrens has argued, it’s a bit of a stretch.

What’s more, the Rome Statute, signed in 1998, only came into force in 2002 – and article 24 makes it clear that there can be no criminal liability for conduct committed before then. So the ICC could only act in respect of anything the Pope did long after the “Kiesle letter”.

In the absence of a request from the ICC to arrest the Pope, what other possibilities are there? First, and most obviously, another state could request his extradition for offences under its jurisdiction, in which case the police here might be able to arrest him and put him before a magistrate. If a state did make a request, he might have need to worry. But no state has requested his extradition, and there is no European Arrest Warrant against him. So that won’t work.

Might he have committed an offence under our own law?

Crimes against humanity committed here are an offence here under section 51 of the International Criminal Court Act 2001, and importantly under section 52 it is also an offence in England and Wales to engage in conduct ancillary to a crime against humanity committed anywhere. But in either case, the offence can only be committed either by conduct in England and Wales, or else by a British citizen or resident abroad. And the provisions only apply to conduct that took place after 2001 or (under the new section 65A(3) and (6) inserted by section 70 of the Coroners and Justice Act 2009) at the earliest 1991. Again, therefore, the Pope seems to be in the clear, at least as regards any potential offence disclosed by the Kiesle letter. If that weren’t enough, section 53(3) makes it clear you need the Attorney’s consent to prosecute.

At this point, I can hear some readers thinking, how come a warrant was granted recently for the arrest of Tzipi Livni recently, the former Israeli foreign minister? The key difference in that case was that the warrant was sought in respect of an alleged offence under the Geneva Conventions Act 1957, which provides for universal jurisdiction. A war crime under that Act can be committed by anyone, anywhere. Whatever else the Pope might be guilty of, it isn’t war crimes.

The final legal avenue might be the legislation criminalising sex offences against children abroad. Section 72 of the Sexual Offences Act 2003 (as substituted oddly enough by section 72 of the Criminal Justice and Immigration Act 2008) makes it an offence to aid or abet sex offences against children abroad – but only since the original Act came into force in 2004 and again, you can only commit an offence under this section if you are, or (in the case of acts committed after the 2008 amendment came into force) subsequently become a British citizen or resident. So again, far too late for any offence allegedly evidenced by the Kiesle letter, and not applicable unless the Pope moves here.

As I’ve said, Geoffrey Robertson’s argument about state immunity seems to me reasonable – if the Pope ever did need to rely on the defence, he might well fail either because the Vatican isn’t a state in international law or (more likely) because state immunity is no defence against crimes against humanity or similar gross violations of human rights. The point, though, is that the Pope doesn’t have to rely on state immunity: there’s nothing he needs to be immune from. If Mark Stephens and Geoffrey Robertson can come up with anything, I’ll take my hat off to them. Of course I’ve only covered the law of England and Wales, and the Pope will be visiting Scotland too – if I find any significant difference in the law there, you’ll be the first to know.

Richard Dawkins isn’t going to try to arrest the Pope, and I’d advise anyone else against an attempt – they might well commit a common assault. I suppose he ought to turn the other cheek rather than press charges, but I wouldn’t bet on it. Anyway, there’s little prospect of his being held in the Tower of London.

Noli me tangere, the Pope might legitimately say.