Why the ICC likely won't charge pope over Catholic Church sex abuses

Despite efforts by clerical sexual abuse victims to charge Pope Benedict XVI with crimes against humanity, the case likely falls outside the court's jurisdiction.

An attempt to prosecute Pope Benedict XVI in the International Criminal Court (ICC) for clerical sexual abuse around the globe faces daunting legal obstacles that make it unlikely the case will be heard, but will nonetheless put the Vatican's role in the abuse under new public scrutiny.

The complaint, filed Tuesday by the Survivors Network of those Abused by Priests (SNAP) through its attorneys from the Center for Constitutional Rights (CCR), charges that “Vatican officials tolerate and enable the systematic and widespread concealing of rape and child sex crimes throughout the world."

SNAP President Barbara Blaine said in a press statement: “SNAP wants to prevent even one more child from being raped or sexually assaulted by a priest and we hope that victims around the world will know today that they are not alone and that it is safe to speak up and report their abuse. We as victims are mobilizing across the globe, and every survivor is invited to join us.”

In a statement to the Associated Press, the Vatican described the move as a “ludicrous publicity stunt and a misuse of international judicial processes."

A high legal bar

The challenge for SNAP and the CCR will be to show that the ICC has jurisdiction over the case. Created by, but operating independently of, the United Nations, the ICC was founded in 1998 for the purpose of trying individuals for war crimes such as genocide and crimes against humanity.

Experts say the matter of the Roman Catholic Church’s responsibility for cases of child abuse is outside the remit of the ICC. “It’s a publicity stunt, it’s nothing more,” says British attorney Neil Addison, author of legal textbooks including Religious Discrimination and Hatred Law.

“The ICC is supposed to exist for situations of war crime and where there isn’t a legal remedy within the country where the offenses took place. [But] all the child abuse that took place within Ireland took place under the jurisdiction of the Irish courts, the same for the US, and so on,” Mr. Addison says.

“In simple terms, to get a prosecution before the ICC you need to show that what happened was part of a ‘widespread and significant attack directed against any civilian population.’ The ICC is not designed for dealing with normal criminality,” he says.

But the CCR claims that its case against the Vatican authorities is in keeping with the court's purview.

“We have looked at findings from all over the world and feel it fits the criteria for the court,” says Pamela Spees, a senior staff attorney with the CCR. “If nobody ever demands it then it will never happen, it’s certainly not going to happen on its own.”

The CCR says it has provided 22,000 pages of documentation alongside its filing with the court, including copies of judicial reports from Ireland and Canada, grand juries in the US, and depositions.

“We’re not simply talking about a situation where they kept [child abuse] silent – which is bad enough – they knew the sexual violence would continue when shift these guys [accused priests] around,” she said.

Asked if the outcome of seeing Pope Benedict in the dock was likely, Ms. Spees said: “We don’t know that it’s not going to happen and we believe it should."

'An attempt to embarrass the Church'

David Quinn of the Iona Institute religious think tank in Dublin said the ICC move is not serious.

“It’s an attempt to embarrass the Catholic Church and pope. This group believes in taking high-profile cases, which it knows it can’t win. It has named Barack Obama as a witness in a targeted assassination case,” he says.

But this sort of activism is nothing new for international courts, says David Chandler, professor of international relations at the University of Westminster in London.

“The superficial nature of the ICC means this is more of an ethical statement before the international community than a real attempt at a court case,” he says.

And even if the ICC decided to pursue the charges, forcing the Vatican to submit to the ICC could prove impossible. While the Holy See is a sovereign entity, on a par with a nation state, it is not a member of the UN and not party to the 1998 Rome Statute signed that created the ICC.

“The Vatican has sovereign status [as the Holy See]. Whether you’d want to call it a state or not, well, that could be a more absurd claim,” said Mr. Chandler.

A total of 44 UN member states are not at all party to the court’s jurisdiction. Others, such as the US, are signatories to the convention but have not ratified it, barring the ICC's jurisdiction within their borders.

Irish anger at the Church

Nevertheless, the move has a strong resonance in Ireland where clerical abuse has dominated politics for the last two years, following a series of judicial reports damning the Catholic Church – and Irish state bodies including police – for failing to deal with child-abusing priests.

This culminated in a July 21 speech by Irish Prime Minister Enda Kenny, excoriating the Vatican and widely seen as implying it interfered in Irish domestic criminal matters by shielding abusive priests.

“Far from listening to evidence of humiliation and betrayal with St. Benedict's 'ear of the heart,' the Vatican's reaction was to parse and analyze it with the gimlet eye of a canon lawyer,” Mr. Kenny said in parliament.

Simon McGarr, an attorney in Dublin who campaigned for the expulsion of the papal nuncio, the Vatican’s ambassador to Ireland, says use of law to approach the issue of sexual abuse by Catholic priests is complex.

“The Vatican claims statehood and demands the niceties of diplomatic activity be observed when it suits it. The aim of the nuncio campaign was to ensure the same standards of behavior by states applied to the Vatican.”

The nuncio was recalled by the Vatican and reassigned to the Czech Republic without any action being taken by the Irish government.

“It’ll be up to the [ICC] court to decide whether or not the pope, in his capacity as head of state, is as liable as would be if it was another state accused,” said Mr. McGarr.