Wednesday, January 11, 2006

Complicity in crimes by a Head of State

PrawfsBlawg discusses a recent case in Texas arguing that the Pope was complicit in sexual abuse, because he covered up such incidents before he became Pope. It seems, however, that the Pope is being sued in tort, rather than for criminal liability.

The Court reportedly held that the Pope had Head of State immunity, even if he was complicit. I am not sure how complicity works in tort, but in criminal law, if you are complicit in the crimes of another, you are basically responsible as if you had committed the crime yourself.

This raises the interesting question of whether the Pope should have such immunity. As we all know, after the Pinochet case, crimes against humanity can be tried even when committed by a Head of State. I am unsure whether less serious crimes can be tried whilst the HoS remains such, although Silvio Berlusconi has been arguing against that proposition in his bribe judging case.

This is of course a special case. Given that the Pope is appointed for life, should he retain this HoS immunity for life also? Does such an appointment wipe away any sins of the man, before he becomes the Pontiff? Or should such immunity be dropped because there is no chance of prosecution after his term ends?

This case also raises the very interesting question of why the Holy See is even a 'State', although it is recognised as such by international law. Geoffrey Robertson for one argues, as I recall, that this is a ridiculous state of affairs (see Crimes Against Humanity - a WONDERFUL read). I found it funny that during the Rome Statute for the ICC negotiations, the Holy See tried to include drug smuggling as a crime against humanity. This probably would have been fine, except for the slight problem that the Court is located a half an hour's drive from Amsterdam. This just goes to show how out of touch the Holy See actually is.

In any case, I think if they can prove there WAS complicity in the crime on the part of Ratzinger, there is no reason why he should not face the penalties imposed by the Court, although whether he is subject to that jurisdiction, or could be forced into the jurisdiction for a hearing, is of course unlikely.

3 Comments:

Blogger Dash Brannigan said...

This all seems very Billy Connolly to me. Chances are the Pope has been named in the suit to push an agenda and shock value.

Just a quick question however, has any head of state been convicted of something of this nature while still head of state. From my recollection of history most, if not all, cease to be head of state then get dragged through the courts. Not that they fall of the ladder per se but have the ladder chopped out from under them, usually with a very big axe. So it would seem that the Pope is kind of immune from this stuff, as you said your self, Pope for life. But then what does this say for an Anti-Pope if we ever have another.

No as for the Vatican wanting to make drug trafficking a crime, never mistake agenda pushing for stupidity. I would think that the Vatican would have some very cunning politicians in its ranks. Also seeing as they have been an international power for so long they have a very good pedigree.

8:45 pm  
Blogger Not my real name said...

Yes, the Pope probably has been named for shock value just as, I think, Donald Rumsfeld was indicted in Belgium or Germany (I can't remember which) under their universal jurisdiction law. However, it is irrelevant why someone was named, they were included in the action and the law must deal with the action regardless of the political reasons for the action being brought.

Quick reponse - yes, but not for major crimes. Berlusconi has a few cases meandering through Milanese courts at the moment, for, I think, bribe judging and electoral offences.

I don't think I am confusing anything, I understand the political ability of the Holy See. I am merely pointing out that it should not be recognised as an international State. So, (1) it should not be a State, (2) the head should not be immune for criminal acts, (3) he is head of an organisation which owes fiduciary duties to those (such as school kids) under the care of the organisation and (4) if he covers up a criminal and tortious act when supposed to be acting as a fiduciary, there is no reason he should not be held liable for the act. I think that's how my argument runs!

However, you are correct, the fact that the Vatican has behaved as a State (territorial invasion and defence, raising money, owning property etc) means it will continue to be recognised. Much harder to boot a State out of the international system than let one in.

9:43 pm  
Blogger Dash Brannigan said...

Your right that the Pope being named in the action for shock value is of little concern inside the court room (cept they need room for his hat). However, the court room does not operate in a vacuum. Now I would assume that in most civil actions the court room is the final stop, where two parties seek final arbitration. So why someone is named really forms an important part of the process and tactics involved there in. So I would say it is of vital importance, not so much within the court room but through the entire process.

Also it is of ONLY political use that the Pope was named because I’ll tell you why. See before he was Pope or a Cardinal he was a Priest (and before that a Nazi Youth). Now being a Priest means that he has taken a vow of poverty! So sueing him personally for the money would be trying to get blood out of a stone.

Just a quick question though, why shouldn’t the Vatican be recognised as a State? You make that assertion but haven’t given evidence or reason as to why. Now given the Pope’s fiduciary duties etc. and couple with that he acts as God’s representative/agent on Earth…. See where I’m going with this like I said it’s very Billy Connolly…

Oh interesting factoid, the ATM's in the Vatican are the only ones in the world that are in Latin.

11:03 pm  

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