More than 10,000 people have signed a petition on Downing Street’s web site against the pope’s 4-day visit to England and Scotland in September, which will cost UK taxpayers an estimated 15 million pounds ($22.5 million).
The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn’t a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the UN
Then again, no other top religious leaders enjoy the same UN privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
“It’s a fascinating kind of academic, theoretical discussion,” said Crane, who prosecuted Sierra Leone’s Charles Taylor when he was still a sitting head of state. “At this point, there’s no liability at all.”
But Geoffrey Robertson, who as a UN appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the US news site The Daily Beast and Saturday in the British newspaper the Guardian.
“Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don’t accept these things at face value,” said Robertson on Saturday. “The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini.”
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in US sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
“Those who would claim that ‘universal jurisdiction’ could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction,” he said.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It’s a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel’s former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with US officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope’s immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
“No one would question that the Church’s response to widespread abuses has been atrocious, but it’s very difficult for me to see how that would fit ‘crimes against humanity,’” said Hannum.
Robertson is more in favor of challenging the immunity question.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
