Put the pope in the dock ?

Now I'm not a QC (a "senior" lawyer for my non British audience) but I am a lawyer and I do recognise a rubbish legal argument when I see one which was certainly the case in a recent article in The Guardian Newspaper by Geoffrey Robertson QC called "Put the Pope in the Dock"

The Article suggested that the status of the Vatican State "as a state" was bogus and could be challenged in the UK Courts and the European Court of Human Rights and in addition that Pope Benedict could be tried by the International Criminal Court for "Crimes against humanity" involving the Sex abuse scandal by some Catholic Priests

It's difficult to know where to start in the legal inaccuracies in Geoffrey Robinsons article but the following comment certainly takes the legal biscuit.

" 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."

Well with all due respect to Geoffrey Robinson Sovereignty and Statehood is a matter of fact in International law and whether it is created unilaterally or multilaterally is irrelevant, all that matters is whether independent statehood is recognised by other independent states. Whether Geoffrey Robinson likes it or not the independence of the Vatican State and of the Holy See is recognised diplomatically by a majority of countries including the UK, the USA, all the member countries of the European Union and members of the Council of Europe. The Holy See Issues passports which are recognised internationally and during the Second World War the Italian Government recognised the Neutrality of the Vatican and did not interfere with the Holy Sees' contact with Governments with which Italy was at war. Similarly when Germany occupied Rome after the fall of Mussolini it did not occupy the Vatican and neither did the Allies when they entered Rome.

The legal status of the Vatican as an independent state may be regarded by some as ridiculous and it can be described as anomalous but it is nevertheless a legal fact and it is frankly fatuous for a lawyer to suggest otherwise, but the article goes further

"This claim [that the Vatican is a State] could be challenged successfully in the UK and in the European Court of Human Rights"

Now I realise that many Human Rights lawyers grant to the European Court of Human Rights a degree of infallibility that even the most Papist minded Catholic would consider excessive but the European Court of Human Rights can only act within the limits of its own jurisdiction and it has absolutely no power to determine whether the Vatican is or is not a state it only has jurisdiction to determine whether the European Convention on Human Rights has or has not been breached by the member states of the Council of Europe.

Nowhere in the Convention is there any suggestion that the Court has jurisdiction to decide on whether or not a state exists and to propose that the ECHR should make such a determination is to suggest that a Court should act illegally by exceeding its own powers and its own lawful jurisdiction. Similarly the UK Courts have made it clear on more than one occasion that it is up to the UK Government to decide whether or not a State is granted Diplomatic recognition. Since the UK Government recognises the statehood of the Holy See and the Vatican that is the end of the matter so far as the UK Courts are concerned.

Finally Geoffrey Robinson suggests that the Pope personally could be brought before the International Criminal Court for unspecified Crimes. The ICC came into being on 1 July 2002 when the "Rome Statute" was brought into force and it can only prosecute crimes committed on or after that date so any allegations prior to that date are irrelevant so far as the ICC is concerned. In addition the ICC has jurisdiction over the crimes of "genocide", "crimes against humanity", "war crimes", and "the crime of aggression" and I am assuming that not even Geoffrey Robinson is accusing the Pope of Genocide, War Crimes or International Aggression. To the best of my knowledge the Swiss Guard have not launched an invasion of any country recently so that leaves us with the possibility of a prosecution for "Crimes Against Humanity"

Article 7 of the Rome Statute defines "Crimes against Humanity" as follows (my emphasis)
"For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Even the worst facts, or exaggerations, regarding sex abuse by Catholic Priests would find it difficult to define it as a "widespread or systematic attack directed against any civilian population," and to attempt to try to bring such acts within the definition of "crimes against humanity" demeans the entire concept of such crimes

Normally I wouldn't comment on an article or Blog written by another person because, at the end of the day, we are all entitled to our own opinion but when a Lawyer writes an article or Blog and invokes the law then people are entitled to assume that they are quoting the law accurately not just engaging in personal prejudice and polemic masquerading as legal fact.