by Julian Ku
I don’t know if I buy this article’s suggestion that the various Catholic Church priest-pedophile scandals amount to a “crime against humanity” under international law, but I do think the Pope’s right to “head of state” immunity under international law is a tough question. In the U.S., the Pope has been granted head of state immunity (thanks to President Bush and then Legal Adviser John Bellinger), but it is far from clear that he enjoys such status in other countries or under international law generally. And can he at least be deposed, as these U.S. litigants are demanding?
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.
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[Bellinger’s opinion] 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. …