Could Britain Arrest the Pope?

On Thursday, Pope Benedict XVI will arrive in Britain for the first papal visit to the country in nearly three decades. The visit has been marred by controversy due to ongoing investigations in several countries into the sexual molestation of children by priests. Some prominent atheist writers, including Richard Dawkins and Christopher Hitchens, have called for Benedict to be arrested for his alleged role in covering up the crimes. Do they have a case?

Maybe, but it would be a tough fight. The first obstacle to prosecuting the pope would be sovereign immunity. The Holy See — the Episcopal jurisdiction of the Catholic Church — is treated as a state under international law. It has permanent observer status at the United Nations and maintains diplomatic relations with 176 other countries. Under common international law, as well as written British law, the pope is the head of a foreign state and enjoys immunity from prosecution.

The pope’s opponents, such as human rights lawyer Geoffrey Robinson, have argued that the Holy See’s sovereignty is illegitimate since it was originally conferred only by a bilateral treaty with the Italian government led by Benito Mussolini. But the exact definition of statehood is a fairly vague area of international law, and since Britain has longstanding diplomatic ties with the Holy See, any challenge to the pope’s head of state status would almost certainly be rejected. For this reason, the activist group Protest the Pope has scrapped its plan to try to make a citizens’ arrest of Benedict on British soil.

But that’s not necessarily the end of the story. According to the Nuremberg Principles adopted after World War II, "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law." In recent years, current and former heads of state including Liberia’s Charles Taylor and Serbia’s Slobodan Milosevic have been arrested and tried for war crimes or crimes against humanity.

The case most relevant to the pope’s visit is that of former Chilean leader Augusto Pinochet, who was arrested and charged for his role in the torture of Spanish citizens on a visit to London in 1998 under an international warrant issued by Spanish Judge Balthazar Garzon. Britain’s House of Lords, then the country’s highest legal authority, ruled that international crimes like torture were not covered under sovereign immunity. (In 2009, Britain’s new Supreme Court took over the legal functions of the House of Lords and has yet to rule on the issue of universal jurisdiction for international crimes, which caused more controversy last year when a British judge issued an arrest warrant for former Israeli Foreign Minister Tzipi Livni.)

So would the Pinochet precedent apply to Benedict? "Rape or other sexual abuse of comparable gravity" is considered a crime against humanity by the International Criminal Court when committed on a systematic basis. The thousands of abuse cases that have been documented in multiple countries would certainly seem to fit the bill. On the other hand, no one has accused Benedict of participating in or ordering the abuse. He has, however, been accused of failing to defrock priests or report them to the authorities as well as reassigning known abusers within his former parish in Germany.

Prosecutors would have to make the case that failing to use his authority to prevent the abuse, while he was aware of the problem, constitutes complicity in an international crime wave. This would be uncharted waters for international law and given that it’s fairly unimaginable that British authorities will take action against Benedict, they will probably remain so.

Thanks to Michael Scharf, Director of the Frederick K. Cox International Law Center at Case Western Reserve University.