International Criminal Court

Intro

The group of survivors of sexual abuse by Catholic clergy who are trying to prove that acts committed by pedophile priests meet the definition of crimes against humanity and fall under the International Criminal Court’s jurisdiction continue to wait for a decision from ICC Office of the Prosecutor.

The Center for Constitutional Rights (CCR) in New York filed the complaint with the court in The Hague on behalf of the Survivors Network of those Abused by Priests (SNAP) in early September 2011.

The groups charge that Vatican officials “tolerate and enable the systematic and widespread concealing of rape and child sex crimes throughout the world,” according to the groups’ press release.

Pam Spees, a human rights attorney with CCR who is working with SNAP on the complaint, said it is still in the “preliminary examination” phase, when the prosecutor examines the case and evidence to determine if a formal investigation should be opened.

Meanwhile, they are sifting through the hundreds of inquiries they have received from abuse survivors since filing their complaint to see if any additional abuse allegations can be added to the case.  Spees and Barbara Blaine, president and founder of SNAP, said they have received “well over 500” inquiries from people in 65 countries.

Legal experts say that unless they can prove the abuse constitutes crimes against humanity, their complaint urging the ICC to investigate Pope Benedict XVI and top Vatican officials for crimes against humanity could be dismissed.

SNAP, headquartered in Chicago, and CCR specifically hold Pope Benedict XVI and three other high-ranking Vatican officials responsible for the crimes through both command responsibility and direct cover-ups of crimes.

They also submitted more than 20,000 pages of reports, policy papers and evidence of crimes committed against children and vulnerable adults by clergy.

The other officials are Cardinal Tarcisio Bertone, Vatican secretary of state; Cardinal Angelo Sodano, dean of the College of Cardinals and former secretary of state, and Cardinal William J. Levada, head of the Congregation for the Doctrine of the Faith, the Vatican office to which bishops refer abuse cases.

It is estimated the abuse has involved tens of thousands of victims across the globe.  That number may increase as more victims come forward.

The Rome Statute, the treaty which created the ICC, limits its jurisdiction to “the most serious crimes of concern to the international community as a whole,” including genocide, crimes against humanity, war crimes and crimes of aggression.  Crimes against humanity are defined as any of a number of acts, including physical or mental torture, rape, and other forms of sexual violence, “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

While rape and sexual abuse are among the crimes listed and children are a civilian population, there is debate among international law experts about whether abuse by priests and an alleged cover-up by the Church’s leaders meet all the criteria of a crime against humanity, and fall under ICC jurisdiction.

 

Jurisdiction  -  Was there a plan or policy?

The filing asserts that the incidence of abuse meets the definition of a crime against humanity.  Attacks were both widespread because of the large scale of the attacks and the number of victims, and systematic because of what is described as a consistent pattern of incidents.

An “attack directed against a civilian population” is defined as a course of conduct involving multiple commissions of any of the acts listed under the definition of crimes against humanity, “pursuant to or in furtherance of a State or organizational policy to commit such attack.”  Moreover, the state or organization must actively promote or encourage the attack.

SNAP and CCR allege that the organization  -  the Vatican  -  had such a policy.  Specific actions by high-level officials in dealing with some instances of child molestation, and deliberate failure to act in others, helped ensure the abuse would occur.  The complaint describes practices such as priest-shifting (moving accused priests to other parishes), silencing victims and whistleblowers, discouraging and forbidding notification of civil authorities of suspected and confirmed cases of sexual abuse of children, and placing the Church and perpetrators’ interests ahead of children’s.

This inaction and deliberate concealment constitute a policy that promoted or served to encourage attacks, SNAP and CCR contend.

Vatican representatives had no comment about the filing.  Jeffrey Lena, the lawyer who represents the Church in the sexual abuse scandal in the United States, told the Associated Press in September that the case is a “ludicrous publicity stunt and a misuse of international judicial processes.”

But Lieve Halsberghe, head of the SNAP movement in Belgium, said in a recent interview that the ICC is a “totally appropriate” venue.

“A lot of people will think that what we did in The Hague was over the top,” she said.  But they had to take the issue to the international court.

“We’re talking about rape and torture,” she said.

Halsberghe said the abuse meets the definition of crimes against humanity.  “It’s global,” she said.  “You can’t have a crime that’s more widespread than this because Catholic priests are sent all over the world.”

Victims and their lawyers maintain that Church hierarchy shielded abusers from the law through priest-shifting, thus spreading the abusers and abuse around, creating more victims in their wake.

The abuse itself was a widespread or systematic attack on a civilian population.  But to be a crime against humanity, it must have been committed as part of a state or organization’s policy. The Vatican must have known about the abuse and intentionally allowed it to continue.

André Klip with the law school at Maastricht University in Holland said the case would likely not proceed in court because of flaws in the complaint.  It is doubtful the alleged abuse can be termed crimes against humanity because of the requirement that the attack on civilians be committed as part of a state or organizational policy to commit the attack, with leaders having knowledge of the attack.

Despite the scale of the attacks, “there was no conspiracy between the priests to commit abuse,” Klip said.  “They were individual cases.”

A widespread cover-up still would not prove there was a “policy”, as victims claim.

Kevin Jon Heller, a law professor at Australia’s University of Melbourne, called the Church’s alleged actions “a systematic cover-up of heinous molestations,” but said even a deliberate cover-up does not count as “a widespread or systematic attack” committed “pursuant to or in furtherance of a State or organizational policy.”

Showing Church officials deliberately pursued a policy to molest children is an extremely high threshold, Heller said, which is not met by simply putting priests’ welfare above children’s, or moving them around to different parishes.

Matthew Simon, with The Hague Institute for the Internationalisation of Law, said the Vatican had more of a loose policy to silence abuse accusations than a policy to commit the acts.  Historically, arguing that someone was guilty because they concealed acts hasn’t resulted in many convictions.

A deliberate plan to move abusers around to protect them from the law would be closer to a “policy,” but Simon said evidence indicates Vatican leaders told subordinates at national and local levels to handle the scandal while they looked the other way.

 

Command responsibility and crimes against humanity

Niccolò Figà-Talamancaa, secretary-general for the NGO No Peace Without Justice, said if the  crimes fall under ICC jurisdiction, Vatican leaders theoretically could be held responsible under the principle of command responsibility.

The Rome Statute addresses command responsibility in both military and civilian contexts.  A commander, someone acting as a commander, or a superior, are responsible for crimes within the court’s jurisdiction which were committed by forces or subordinates under the commander’s or superior’s control or authority, as a result of failure to exercise control.

Further, the commander or superior either knew or should have known about the crimes, and “failed to take all necessary and reasonable measures . . . to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution, according to the Rome Statute.

The prosecutor must consider whether the person knew about the crimes, failed to prevent them, and shielded subordinates from responsibility, according to Figà-Talamanca.

Command responsibility will be challenging to prove.  “You must prove the pope knew the crimes were committed, that he knew they were committed on such a large scale, and that he didn’t do anything about them,” Klip said.

And it is not enough that Vatican officials knew there was abuse occurring.  SNAP and CCR must prove pedophile priests’ misconduct in individual cases, and that the Vatican knew about individual cases.

Vatican spokespeople and officials have said the Church is less centralized than many believe.  Decisions about accused pedophile priests are made by bishops, and not by Vatican hierarchy which has little control at the parish level.

Halsberghe called this “rubbish” because “the pope is the boss of all of them.”

“Cardinals vow to be eternally faithful to them,” she said of popes in general, “and every bishop is directly under them.”

Further, documents show they did not handle cases in a decentralized way, she said.

Figà-Talamanca said it is possible to be decentralized yet maintain control over subordinates.  Decentralization does not matter if there was a system that prevented accountability.

“It’s not a matter of how loosely organized it is,” he said.  “It’s a matter of whether those in charge had the tools and opportunities to do something about the abuse, and whether they turned a blind eye or not.”

 

Jurisdiction  -  time and place; whether enough has been done domestically

Brianne McGonigle Leyh, an attorney and researcher at Utrecht University in Holland specializing in international criminal law, human rights and victims’ rights, said victims have the right to file communications with the prosecutor.  But the prosecutor receives thousands of complaints, and must choose which cases to open.

The jurisdictional hurdles could be significant.  One is that most of the alleged crimes were committed before the Rome Statute’s implementation in 2002, which eliminates those crimes as ones that the prosecutor can investigate.

Halsberghe dismissed this as a barrier, as abuse has occurred since 2002, and is ongoing today.

If there was, in fact, an intentional cover-up as part of Church policy, it was initiated before the Rome Statute, Klip said  -  implying it would fall outside the window of time over which the ICC has jurisdiction.

Second, the ICC prosecutes crimes committed either on the territory of a state or by a national of a state that is party to the Rome Statute.  In terms of crimes committed on the territory of the state, the prosecutor must decide that the countries where the sexual abuse occurred are either unwilling or unable to handle the cases.  Not only must they have prosecuted them as far as they are able, but a national court must pursue the same defendants for the same conduct, according to Heller.  As far as he knows, no state is trying to prosecute the pope or the other Church figures named in the ICC filing.

Alternatively, the prosecutor can pursue charges against a perpetrator if the person is a citizen of a country which is party to the Rome Statute.  The Vatican is not party to the Rome Statute, and the ICC does not have jurisdiction over the Vatican.  Therefore, “citizens” of Vatican City  -  such as Catholic Church leaders  -  cannot be pursued via that route.

But if the prosecutor decided to open a case against Pope Benedict, for example, the pope could be prosecuted as a German citizen because he retains his German citizenship and Germany recognizes the ICC.  McGonigle Leyh said the prosecutor would have to decide whether Germany’s domestic courts are unwilling or unable to adequately handle the cases.

The victims and their lawyers say they are pursuing their claims on the international stage because  the accusations of abuse have been handled inadequately in the countries in which abuse occurred.

While some courts in the U.S. and Ireland have prosecuted cases of abuse and cover-ups, the Catholic Church has a strong hold on the courts in many other countries, limiting the effectiveness of the legal process, Halsberghe said.

At this point, most countries have not prosecuted the cases because of the time elapsed since crimes were committed.  Since statutes of limitations apply in most of the countries mentioned in the complaint, courts can no longer prosecute those cases, according to Klip.

An abuse claim may be prosecuted in the country where it occurred if it is recent enough and the statute of limitations has not yet kicked in.  But as more time elapses, if a priest denies accusations against him, it is harder to prove anything with likely little more evidence than victims’ testimony, Klip said.  This still renders victims powerless.

 

Will the ICC take the case?

It remains uncertain whether the ICC will open an investigation.

McGonigle Leyh said the claim may fall under the court’s jurisdiction.  But while she thinks it meets the initial standards for a preliminary investigation, she does not know whether it would point to individual culpability among Church leaders.

Figà-Talamanca said it was “unlikely” the court would take the case.  The Office of the Prosecutor (OTP) must prioritize among thousands of complaints it receives, weighing such things as gravity of the crimes, impact on victims, and whether all possible options have been exhausted in the countries where the crimes took place.  This complaint would not be a highest-priority case, he said.

Another factor may be politics.

The ICC has suffered damage to its reputation and legitimacy on the international stage by focusing on certain countries or issues to the neglect of others.  Something as controversial as this case  -  in Heller’s words, “political suicide”  -  would be a waste of the court’s limited political capital.

 

Why here and why now

Still, Halsberghe believes the ICC should take the case.

“We don’t care if the Vatican recognizes the court,” she insisted.  “There’s international law and everyone should be subject to that international law.”

Moreover, she said, three of the Church officials accused of being indirectly responsible for the abuse are in fact from countries that recognize the court:  Pope Benedict is German, and Cardinals Bertone and Sodano are from Italy.  Cardinal Levada is from the U.S. which is not a party to the Rome Statute.

“Of course we know that it’s [going to be] extremely difficult.  But because we have so much evidence of what’s still going on today, there’s no other way to see this than as a crime against humanity.”

Regardless, SNAP and CCR may have accomplished something already.

“The lawyers are very skillful and know the chances of this going forward are perilously close to zero,” Heller said.  Still, submitting their request for an investigation raises awareness about what he called the Catholic Church’s “absolutely reprehensible behavior” in failing to prevent the abuse.

McGonigle Leyh agreed, saying “There are thousands of communications sent to the court, and this one seemed to resonate.”

“People don’t realize we’re talking about crimes that have a lifelong effect on [the victims],” Halsberghe said.  The problem with recent cases, she explained, is that the victims are not ready to talk yet, but talking about it is absolutely necessary for both victims and their families, who also suffer as a result of the abuse, to heal.

The complaint also presents an opportunity for discussion about the court’s purpose, McGonigle Leyh said.  Traditionally, genocide, war crimes and crimes against humanity  -  the crimes that fall under the court’s jurisdiction  -  have been tied to wartime conflicts.  This may broaden definitions  of what constitutes each of the kinds of crimes.

Klip said heightening public awareness may be beneficial for victims, but warned that some may get their hopes up too high, expecting their efforts to succeed and the court to open a formal investigation.

 

Alternatives to the ICC

Experts agree that national and local jurisdictions are most appropriate to handle the Church’s abuse cases for legal and political reasons.  The ICC is intended to be a last-resort forum.

But maybe the fact that the abuse victims have approached the ICC is a sign of the ineffectiveness of the remedies they’ve sought before, Klip added.

If the ICC and the countries where the abuse occurred are not options, Klip thinks a better choice would be to file a complaint in a human rights court such as the European Court of Human Rights or the United Nations Human Rights Council.

Figà-Talamanca said appealing to the ICC might help spur national jurisdictions into action by elevating the discussion to an international level, giving national and local courts the political will to take on these controversial cases.

And having to present a case to the ICC gives plaintiffs and their lawyers a chance to build a strong case, increasing the probability of success in local and national courts.

A spokesperson for the ICC was unavailable for comment about the complaint’s status in the OTP, or when a decision might be rendered about opening an investigation.