Daily Archives: April 4, 2010

Surely the facts are not in dispute — exept by the Holy See :

“Protests are growing against Pope Benedict XVI’s planned trip to Britain, where some lawyers question whether the Vatican’s implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
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 U.K. taxpayers an estimated 15 million pounds ($22.5 million).
The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.”

Eons late and billions of dollars short.

“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.”

The key word here is “systematic.”

“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 U.N. Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?”

Why indeed? Well we all know the answer to that, don’t we? Those who claim to speak for the Big Invisible Bi-Polar Daddy Who Lives in the Sky have always been afforded special privileges — when they’re not in a position to directly wreck havoc though “crusades,” the “Inquisition,” et. al.

“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 U.N. 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 U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.”

And here we go –

“Well may the pope defy “the petty gossip of dominant opinion”. But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state – and of the pope to be a head of state and hence immune from legal action – cannot stand up to scrutiny.
The truly shocking finding of Judge Murphy’s commission in Ireland was not merely that sexual abuse was “endemic” in boys’ institutions but that the church hierarchy protected the perpetrators and, despite knowledge of their propensity to reoffend, allowed them to take up new positions teaching other children after their victims had been sworn to secrecy.
This conduct, of course, amounted to the criminal offence of aiding and abetting sex with minors. In legal actions against Catholic archdioceses in the US it has been alleged that the same conduct reflected Vatican policy as approved by Cardinal Ratzinger (as the pope then was) as late as November 2002. Sexual assaults were regarded as sins that were subject to church tribunals, and guilty priests were sent on a “pious pilgrimage” while oaths of confidentiality were extracted from their victims.
In the US, 11,750 allegations of child sex abuse have so far featured in actions settled by archdioceses – in Los Angeles for $660m and in Boston for $100m. But some dioceses have gone into bankruptcy and some claimants want higher level accountability – two reasons to sue the pope in person. In 2005 a test case in Texas failed because the Vatican sought and obtained the intercession of President Bush, who agreed to claim sovereign (ie head of state) immunity on the pope’s behalf. Bush lawyer John B Bellinger III certified that Pope Benedict the XVI was immune from suit “as the head of a foreign state”.
Bellinger is now notorious for his defence of Bush administration torture policies. His opinion on papal immunity is even more questionable. It hinges on the assumption that the Vatican, or its metaphysical emanation, the Holy See, is a state. But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with “sovereignty in the international field … in conformity with its traditions and the exigencies of its mission in the world”.
The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage. But it did not take long for Catholic countries to support the pretentions of the Holy See, sending ambassadors and receiving papal nuncios in return. Even the UK maintains an apostolic mission.
The UN at its inception refused membership to the Vatican but has allowed it a unique “observer status”, permitting it to become signatory to treaties such as the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at UN conferences where it promotes its controversial dogmas on abortion, contraception and homosexuality. This has involved the UN in blatant discrimination on grounds of religion: other faiths are unofficially represented, if at all, by NGOs. But it has encouraged the Vatican to claim statehood – and immunity from liability.
This claim could be challenged successfully in the UK and in the European Court of Human Rights. But in any event, head of state immunity provides no protection for the pope in the international criminal court (see its current indictment of President Bashir). The ICC Statute definition of a crime against humanity includes rape and sexual slavery and other similarly inhumane acts causing harm to mental or physical health, committed against civilians on a widespread or systematic scale, if condoned by a government or a de facto authority. It has been held to cover the recruitment of children as soldiers or sex slaves. If acts of sexual abuse by priests are not isolated or sporadic, but part of a wide practice both known to and unpunished by their de facto authority then they fall within the temporal jurisdiction of the ICC – if that practice continued after July 2002, when the court was established.
Pope Benedict has recently been credited with reforming the system to require the reporting of priests to civil authorities, although initially he blamed the scandal on “gay culture”. His admonition last week to the Irish church repeatedly emphasised that heaven still awaits the penitent paedophile priest. The Holy See may deserve respect for offering the prospect of redemption to sinners, but it must be clear that in law the pope does so as a spiritual adviser, and not as an immune sovereign.”

Re. the Vatican’s status –

“In this originally uninhabited area (the ager vaticanus) on the opposite side of the Tiber from the city of Rome, Agrippina the Elder (14 BC – 18 October AD 33) drained the hill and environs and built her gardens in the early 1st century AD. Emperor Caligula (37-41) started construction of a circus (AD 40) that was later completed by Nero, the Circus Gaii et Neronis, usually called, simply, the Circus of Nero. The Vatican obelisk was originally taken by Caligula from Heliopolis, Egypt to decorate the spina of his circus and is thus its last visible remnant. This area became the site of martyrdom of many Christians after the Great Fire of Rome in AD 64. Ancient tradition holds that it was in this circus that Saint Peter was crucified upside-down. Opposite the circus was a cemetery separated by the Via Cornelia. Funeral monuments and mausoleums and small tombs as well as altars to pagan gods of all kinds of polytheistic religions were constructed lasting until before the construction of the Constantinian Basilica of St. Peter’s in the first half of the 4th century. Remains of this ancient necropolis were brought to light sporadically during renovations by various popes throughout the centuries increasing in frequency during the Renaissance until it was systematically excavated by orders of Pope Pius XII from 1939 to 1941.
In 326, the first church, the Constantinian basilica, was built over the site that early Roman Catholic apologists (from the first century on) as well as noted Italian archaeologists argue was the tomb of Saint Peter, buried in a common cemetery on the spot. From then on the area started to become more populated, but mostly only by dwelling houses connected with the activity of St. Peter’s. A palace was constructed near the site of the basilica as early as the 5th century during the pontificate of Pope Symmachus (reigned 498–514).
Popes in their secular role gradually came to govern neighbouring regions and, through the Papal States, ruled a large portion of the Italian peninsula for more than a thousand years until the mid 19th century, when all of the territory of the Papal States was seized by the newly created Kingdom of Italy. For much of this time the Vatican was not the habitual residence of the Popes, but rather the Lateran Palace, and in recent centuries, the Quirinal Palace, while the residence from 1309–77 was at Avignon in France.
In 1870, the Pope’s holdings were left in an uncertain situation when Rome itself was annexed by the Piedmont-led forces which had united the rest of Italy, after a nominal resistance by the papal forces. Between 1861 and 1929 the status of the Pope was referred to as the “Roman Question”. They were undisturbed in their palace, and given certain recognitions by the Law of Guarantees, including the right to send and receive ambassadors. But they did not recognize the Italian king’s right to rule in Rome, and they refused to leave the Vatican compound until the dispute was resolved in 1929. Other states continued to maintain international recognition of the Holy See as a sovereign entity. In practice Italy made no attempt to interfere with the Holy See within the Vatican walls. However, they confiscated church property in many other places, including, perhaps most notably, the Quirinal Palace, formerly the pope’s official residence. Pope Pius IX (1846–78), the last ruler of the Papal States, claimed that after Rome was annexed he was a “Prisoner in the Vatican”. This situation was resolved on 11 February 1929 between the Holy See and the Kingdom of Italy.
The treaty was signed by Benito Mussolini on behalf of King Victor Emmanuel III and by Cardinal Secretary of State Pietro Gasparri for Pope Pius XI. The Lateran Treaty and the Concordat established the independent State of the Vatican City and granted Roman Catholicism special status in Italy. In 1984, a new concordat between the Holy See and Italy modified certain provisions of the earlier treaty, including the position of Roman Catholicism as the Italian state religion.”

Got that? Good. Let’s continue. . .

“But Jeffrey Lena, the California attorney who argued – and won – head of state immunity for Benedict in U.S. 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 in a statement to the AP.
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.”

Good!

“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 U.S. officials about the torture claims of a former Guantanamo detainee.”

And we’re ever-so-grateful for that.

“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.”

Though it would be the most appropriate.

“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.”

Massive systematic rape isn’t as bad as massive systematic murder apparently.

“Robertson is more in favor of challenging the immunity question.
“Head of state immunity provides no protection in the International Criminal Court,” said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
“If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority – i.e. the Catholic Church … then the commander can be held criminally liable,” Robertson said.”

Well good luck with that. Cause Our Commandesr in Chief have NEVER been held criminally liable for anything, despite their manifest crimes.

“Even though the Vatican – like the United States – did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.”

Aha — “wiggle room.”

“In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.”

Cha cha cha.

“Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
“My guess is the weight of opinion would allow the pope to enjoy immunity,” said Hannum. “It’s not automatically clear that the Holy See is a state, although it’s treated as one for almost every purpose.”

Well we could always give it a shot.

“Last year, a Palestinian bid to have Barak – the Israeli defense chief who also served as prime minister until 2001 – arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.”

And did anything much happen to him?

Nope.

“In 2001, activists brought Israel’s then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain’s expected May 6 election.
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.”

Maybe Almodovar could make a “Citizen’s Arrest.”

As for The Church — time to get back to basics.

Take it away kids!