Today at 8 p.m. Pope Benedict XVI will step down after announcing that he would be the first Pope in 600 years leave the papacy by a means other than natural expiration. This decision is history making in many ways and a momentous opportunity for the Church to remake itself. Unfortunately, there are those out there who have taken this opportunity to target the Church for their own purposes. One group in particular, albeit quite on the fringe, has called for the prosecution of the Pope Emeritus for his handling of, among other things, the sexual abuse scandal around the world, in particular Canada, as well as other alleged abuses committed by the Church over the last hundred years or so.
The prospect, no matter how far fetched, of criminal charges (or even a civil case) against a former pontiff is an excellent opportunity to discuss sovereign immunity and its application to acting and former heads of State. The Pope is head of State of the Vatican State after all, so the legal framework applied to State immunity is the proper one for considering the issue.[1]
The Law
The basic text on the issue of immunity, at least when referring to diplomatic agents, is the Vienna Convention on Diplomatic Relations of 1961. This is a good place to start our analysis even though heads of State are not strictly speaking diplomatic agents. Article 31 reads in pertinent part:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
This provision clearly provides for the immunity from suit, including criminal charges, of the members of the diplomatic staff of a consular mission sent from one State to another. A similar rule governs in the case of United Nations Personnel. Sections 18 and 19 of the Convention on Privileges and Immunities of the United Nations of 1946 reads in pertinent part:
Officials of the United Nations shall :
(a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; […]
In addition to the immunities and privileges specified in section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
Like the envoys of States, the envoys of the United Nations cannot be subject to legal process (as regulated by the particular regime of the treaty). This second treaty, however, highlights something that is not mentioned in the Vienna Convention, that the immunity comes in two guises. One is the prohibition on legal action against a person holding a diplomatic/UN office and the other is action against the person for their official acts: personal and functional immunity respectively. These rules also apply to high-ranking State officials such as the head of State.[2]
Article 18(a) makes explicit the otherwise general rule that a person working for a State or organization may not be held liable for their official acts that are attributable to that State or organization. The International Court of Justice in the Arrest Warrant case recognized this rule observing:
after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.[3] (emphasis added)
The language makes clear that the “private” capacity means that official acts are outside the reach of other States’ jurisdiction. In other words, when a person leaves office he or she gives up their personal immunity but retain their functional immunity.
An exception exists for the rule regarding functional immunity once a person leaves office: the commission of international crimes subject to universal jurisdiction. This is not the place to enter into a detailed discussion of what crimes are “international”. It should be enough for present purposes to note that the crimes universally recognized as “international” are genocide, war crimes and crimes against humanity.[4]
The Charges
The charges leveled at Benedict are that he, as head of the Church, did not take sufficient care to protect children from abuse by members of the clergy. He is not accused of personally abusing any children or committing or being an accessory to any other abuse related crime. The charges are essentially that he did not do enough as Pope to prevent abuse or make reparations for harm allegedly caused by the Church. If he is to be liable to legal action it must be shown either that the alleged crimes were private acts by the Pontiff or that they amount to international crimes.
Private Acts
The first step in the analysis is to determine whether the alleged acts constituting crimes were taken by Pope Benedict XVI as part of his official duties, or rather, if they were private acts. It should be clear from the nature of the charges that the alleged criminal acts were not private in nature. Benedict is not accused of having personally harmed anyone, but rather of having been a poor leader thereby allowing harm.
Administration of a Sate or public organization is not a private act for which an individual enjoying functional immunity can be prosecuted. To hold otherwise would mean that functional immunity has no effect as any action taken in favor of the State or organization would be private. This is not to say that if there were proof of collusion between the administrator and the direct perpetrators of a crime that no action would lie, only that in the absence of such direct involvement functional immunity bars prosecution.
Therefore, as Pope Emeritus, Benedict will enjoy function immunity preventing legal action on allegations relating to his alleged mismanagement of the Church.
International Crimes
Does institutional child abuse amount to an international crime? The clear answer is no, it does not.
International crimes are those that threaten the international community as a whole and they are comprised of particular elements. Genocide requires the specific intent to destroy a group in whole or in part. War crimes require the existence of an armed conflict. Crimes against humanity require a widespread and systematic attack against a civilian population as such. The allegations, while serious and grave, do not fit these definitions.
What we have, instead, is individual instances (albeit a great number of them) of abuse spread around the world in a sporadic and unconnected manner. Many members of the clergy and hierarchy failed in their duties to protect innocent individuals, and they should be held to account for their actions. However, that does not mean that the crimes, no matter how horrible, are international crimes. This is not to say that the Church is not in any way responsible, only that the invocation of jurisdiction over an ex-Pontiff is not the proper and legal way to search for justice.
[1] Some might say that the Pope gets immunity as the leader of the Church, a religious institution. This is not the case.
[2] Arrest Warrant Case, ¶ 51 (2002).
[3] Ibid., at ¶ 61.
[4] These crimes can be found in the statutes of the UN international criminal tribunals and the International Criminal Court.
The {New} International Law 