Don’t mess with the Vatican
Okay, I give up – why is the Obama administration siding with the Vatican against people who think it should be accountable for its many crimes?
Faced with a number of court cases in the United States that have named the pope himself as a defendant in the enabling and covering up of many rapes, the Vatican has evolved the strategy of claiming that the Holy See is in effect a sovereign state and thus possessed of immunity from prosecution. It has now been announced that the Obama administration will be advising the Supreme Court to adopt this view of the matter.
Why? What’s the thinking? Why should a church be declared a sovereign state? Why especially should the Obama admin be taking that view at the very time when there is a push to prosecute that church for protecting child-rapists for decades?
[T]he State Department is required by Congress to make an annual report on the human rights record of every government with which we have relations. Yet there is no annual human rights report on the Vatican—or Vatican City or the Holy See, if you prefer. When questioned on this rather glaring lacuna, officials at Foggy Bottom say that for human rights purposes, the Vatican is not a state.
So it gets to be a state when that is convenient for it, and it gets to be not a state when that is convenient for it. Why? Why is the catholic church alone among religious outfits given such special privileges? Why is the rule of law not more important than the Vatican’s desire to escape any form of accountability for its cowardly self-regarding cruelty-perpetuating actions?
The rule of law doesn’t mean one drop of piss more to the Obama administration than it did to the Bush administration. On all the court cases having anything to do with defending and advancing rule of law – no longer suspending habeas corpus and other basic legal rights, exposing and prosecuting those responsible for torture, stopping blatantly unconstitutional invasions of privacy (so-called “sneak and peek” warrants), advancing government transparency instead of state secrecy, protecting whistleblowers, ceasing the government endorsement of religion, etc. – the Obama administration has clearly and repeatedly argued for the constitutionally and morally wrong side. I have yet to encounter a single case of any significance where Obama’s legal position improved upon the Bush position. In some specific cases when court judgments have gone against the legal interpretation advanced by the Bush administration (especially on issues of executive privilege), the Obama administration has advanced a new legal argument that is even more reprehensible.
All of which is more horrifying because Obama was a professor of constitutional law, and in each and every case absolutely must realize at some level that he is willfully disintegrating the already-tattered legal and moral foundation of our nation. But he keeps sacrificing more and more of his principles on the altar of political expediency; except they are not his principles, they are *our* principles, and he simply doesn’t have the right.
Worse still, I supported and ultimately voted for this asshat fully expecting some of this (but not necessarily the worst of it) because he was by far the best viable candidate available, thanks to the workings of our profoundly corrupt and broken political system.
I doubt the importance of the rule of law even crossed Obama’s mind. By now I imagine shielding established authorities from accountability for human rights abuses and inventing Kafkaesque legal justifications for it is so habituated that it’s a kind of reflex action for them.
If the Vatican is a state, doesn’t that make Catholic priests foreigners? And more importantly, doesn’t that mean that they’re accepting an office or title from a foreign power, as is prohibited by Article I, Section 9 of the Constitution?
Both very good questions.
I mean really. It’s so absurd. In what sense is the Vatican a state? And why does it get to pick and choose which bits of being a state it will accept and which it won’t? And who are its citizens? And given that it considers its jurisdiction global, how does that not interfere with its being a state?
It’s all such nonsense; it should be repudiated with scorn by everyone everywhere.
It’s better that the Vatican be considered a state, exactly with the same duties and rights as any other state. It has a territory, more or less the same size as Monaco, and it should be held responsible for the actions of its agents, the clergy, just as any other state is held responsible for the actions of its agents.
Um, there’s a long history to this stuff. The law may be silly, to the extent that it gives diplomatic immunity to officials of the Holy See, but that doesn’t mean it’s not, you know, the law. And if it is the law, how is Obama doing something contrary to the rule of law? Even if it’s not good law, how is he doing so? As far as I can see, he’s doing nothing that he lacks legal authority to do, so he is following the rule of law by definition. Even if he’s ultimately found by the courts to be wrong, his position is not especially unorthodox – quite the opposite – and he’s properly authorised to argue it in court, or brief his lawyers to do so.
Indeed, the situation may be that he is doing the correct thing as a lawyer by following what appears to be the law even though it is silly in some respects. It would be going against the law because we consider it silly that would be contrary to the rule of law. To the extent that a powerful politician could get away with doing that, it would be an exercise of arbitrary government power, i.e. exactly what the rule of law is supposed to prevent. E.g., if it were expedient but unlawful to arrest the pope, and the US or UK government could get away with it, that would be contrary to the rule of law. That’s the sort of thing that the expression “rule of law” covers.
To be honest, I’d actually be more worried if Obama or his lawyers turned up and argued that Holy See officials don’t possess diplomatic immunity. That would look like taking a novel legal position for some sort of expediency. But whichever way his people argue it, merely putting an argument is not a violation of the rule of law. Violating the rule of law means something else; it means exercising power without proper legal authority. The Obama administration may have done that elsewhere – the Bush administration certainly did – but I don’t see for the life of me how it’s doing so here.
As I understand it, whether or not the Vatican City State is a real country is a separate question from whether diplomatic immunity is traditionally (and legally) available to officials of the Holy See, but for what it’s worth the case against statehood actually seems rather weak. The fact that a particular agency of a particular country (the American State Department) doesn’t treat it as such for a particular purpose is irrelevant. That agency may have all sorts of political or practical reasons, and in any event it’s not the proper body to decide these things.
It may be silly that such a thing as the Vatican City State counts as a country, but that’s really a matter for Italy to worry about. If Italy regards this little bit of Rome as a separate country, that’s pretty close to definitive. And of course, and there are some other countries in good standing that seem almost as silly. Intuitions about silliness are not the basis for deciding these sorts of legal questions.
Ebonmuse, ordinary priests in America or elsewhere are not, as far as I know, officials (or even citizens) of the Vatican City State. They are employees (or something similar, as they may not have employee status for the purpose of employment and labour relations law) of local dioceses. I very much doubt that there’s any constitutional issue such as you refer to.
Now, I may be talking through my hat here (almost) as much as anyone else. I have no great expertise in this area of law, either. But we do have to distinguish between following the law where it has become somewhat absurd for historical reasons and flouting the law. I see no evidence that Obama is doing the latter (at least in this instance). I’ve always been sceptical about the legality of all these grand plans to pursue the pope himself in the courts of the US or UK (or in the International Criminal Court). There are many genuine legal obstacles to these approaches, and I think that Geoffrey Robertson in particular has been doing us a disservice in downplaying them so much. I don’t know how much his arguments have influenced y’all, but he takes a very expansive and somewhat unorthodox view on some of these issues. Maybe his view will eventually prevail, but you can’t depend on it.
We might wish it were otherwise, but that doesn’t mean that we should be less intellectually rigorous about the legal issues relating to the pope’s diplomatic status than we’d be about anything else.
H G Wells had the right idea.
He accepted that the Vatican was a state – then asked (in either 1943 or ’44) “Why are we not bombing it?”
A bit extreme right now, perhaps, but the import of the message: that the Vatican is our enemy, is the correct one.
Allowing the prosecution of the head of the catholic church would be political suicide in almost all countries that have significant catholic populations. I don’t think we can seriously hope that this sort of case can be brought to court. Whether or not the orders to hide the abuse came from Rome or not, the crimes themselves were committed (both the abuse and the silencing of victims) locally and that is the place we should be concentrating on getting justice. It’s not that I don’t think the Vatican has a case to answer, I just think it is simply a legal and political minefield compared to a question such as should Cathal Daley, the head of the catholic church in Ireland, be prosecuted for not reporting child abuse to the police. We need to pick our battles on this one. It’s all very well using the Pope’s guilt on this matter as a rhetorical weapon against the idea of the church being some sort of moral guardians but it’s quite another thing expecting to be able to lock him up for it.
Because the Supreme Court bench is majority Catholic.
Plus, frankly you have seen the Catholic reaction to every one of thee stories. Some have left the Church, most have whined about all this anti-Catholic intolerance.
Like being intolerant of systematic child abuse is a bad thing. Anyway there are enough people like that around who vote to make going up against the Church politically iffy at the best of times.
And even if all that wasn’t so – it is the traditional approach. The fact that the Holy See is actually treated like a super-state (It is not subject to the rules governing nations OR individuals) is the status quo.
That doesn’t of course, make the status quo right.
What Obama should do, is treat the Vatican like a full state. That includes having reports on its human rights record.
I know so little about the law that I wouldn’t dare comment on the legalities of the Obama administrations decisions regarding the standing of the Vatican. I shouldn’t have thought, however, that just Italy’s acceptance of the Vatican as a state should necessarily weigh with the international community. Israel has not yet received recognition as a state by most Muslim majority nations, who do not have diplomatic relations with Israel. So the question of recognition of the Vatican is not solely dependent on Italy’s recognition of it, surely. And since this recognition is based on a document so iffy as the concordat with the fascist state, it seems to me that it would not be outrageous to revisit its status, and I think this is what Obama should have done, since the fascist state came to grief early in 1944. The fact that the Vatican has only observer status at the UN, as do, I believe, other organisations, should be some indication that Vatican statehood is not entirely unproblematic. However, since the Vatican is sheltering people who have taken refuge there from American justice, there is every reason why the American government should have made haste slowly in making judgements as to the Vatican’s status in the international community. The reflex respect which religious entites get is at work, however, and no one, apparently wants to epater le Pape, which is unfortunate, because Le Pere Saint is really making renewed exalted claims for himself and his religion, and we need to temper this with some moderation in the way he is publicly regarded by those who do not share his claims or associations.
There is a legal difference between the Holy See and the City State of the Vatican. The Holy See is recognized and has diplomatic relations with almost all major countries, except China.
http://en.wikipedia.org/wiki/Foreign_relations_of_the_Holy_See
I am also ignorant of the legal aspects here, but I would echo George Felis’s comment that the Obama administration has shown no more respect for the rule of law than the Bush administration. So if it’s illegal–and it’s certainly contrary to the spirit of many important legal principles like church-state separation, one law for all, etc.–then it’s no big surprise.
Some atheists seem to think Islam is the scariest, most threatening religion out there. While I can see where they are coming from, I tend to disagree and think Catholicism is, largely because of its institutional clout and its ability to seem mainstream and respectable while espousing the most backwards ideas and <i>committing crimes.</i> Events like this just bolster my view.
Whether the Vatican is a state or not is perhaps a different question from whether the pope has diplomatic immunity or not. Russell says the pope’s immunity has a long history, and if that’s true, it must be a separate question, since the Vatican’s ‘statehood’ dates back only to Mussolini.
Russell, when you say it’s the law, do you mean the statehood as well as the immunity, or just the immunity?
(Is it possible to have immunity without being a state official of some kind?)
Then professing Catholics in Britain (say) owe a duty of loyalty to a foreign state, so presumably shouldn’t be allowed to become, say, intelligence officers or government ministers. Servants of two masters and all that.
Curiouser and curiouser. How does a diocese have diplomatic relations? That is what a see is. If the see is distinct from the state, and the state is not recognised as such by means of diplomatic relations, what is being recognised and why?
Good for China. I have always been uncomfortable with the idea of churches have legations and other diplomatic credentials. It gives them altogether the wrong kind of recognition, and, in fact, it would seem to me, breaks the rule of the separation of church and state in the US. I know none of this is legalese, but it still seems to me extremely odd that nations should have such a relationship with a diocese of the Roman catholic church.
And if, in fact, the Holy See extends, in fact, to all members of that church, does it not follow that, in some respect, every bishop, priest, deacon or other church official is (at least indirectly) an employee of the pope? In sending a (compromised) investigative team to Ireland, one of the possible outcomes, I understand, is that the church in Ireland could come under the direct authority of the Holy See (thank you Amos). This seems to imply, what the church has denied in the US, that priests and bishops are indirectly employees of the Holy See, and that this relationship could be made direct, if the Holy See so recommended.
Damnably odd set up, though. Again, I think China has taken the wisest course. I do not think that the government of my country should have diplomatic relationships with a religious institution.
In some sense it’s already well known that all priests and nuns (and of course bishops and up) are employed by the Vatican, the pope, the see, whatever. The sense is that the pope and the Vatican issue orders and that all priests and nuns are supposed to obey. We’re forever hearing of priests and nuns demoted or excommunicated or otherwise punished for not obeying (though not, of course, for raping or starving children). Now we find that it’s an actual state doing all this issuing of orders and punishing for disobedience. Well really. If this is settled law (but whose law? international law? no – so whose then?) then it needs changing.
The Vatican consists of 110 acres and a population of just over 800. Wow, it is only a very small holding. Most small farms in southern Ireland consist of approximately the same amount of land and can number just one or two in occupancy. There are small villages with a population less than 800. It must be such a tight squeeze for the pope’s large household. American/Canadian farms can run into hundreds of acres and even thousands (because of the enormity of the respective countries) and are considered small to some of its occupiers. So how can the Vatican exist in such a small space and wield such power over the whole world? Can you just visualise world farm-holdings becoming autonomous States unto themselves? The farmers could tell the world where to get off – when they venture outside of their own playgrounds to abuse vulnerable smaller human beings and are held accountable.
Ophelia, as I understand it amos is right. I.e., (1) there’s a question about whether Vatican City (technically the Vatican City State, IIRC) is a country. If it is, that would give the pope head-of-state immunity. It would therefore be very difficult to prosecute or sue him in another country (even leaving aside questions about extraterritoriality, which should not be taken lightly). There’s a separate question (2) as to whether diplomatic representatives of the Holy See, and a fortiori the pope himself, have diplomatic immunity, whether Vatican City is a country or not. The traditional answer to the second question is “Yes.” It may seem absurd, but I think we’d find that the Holy See is not the only organisation that gets such recognition.
As for Eric’s argument that the concordat with Italy under Mussolini should not be definitive of Vatican City’s statehood … okay, perhaps so. But it’s not just that Mussolini signed a piece of paper 70-something years ago. Note that this is still honoured by Italy. We can’t say it was just “those fascists”; it’s also contemporary Italy. Like every liberal democracy, Italy has its faults, but it’s a liberal democracy in good standing, Vatican City is inside its territory, and its views will carry a lot more weight than those of the US State Department. And of course, it’s not just Italy that recognises Vatican City. I think you’ll find that a Vatican City passport gets recognition around the world, for example.
I’m not sure I understand the analogy with Israel. No one suggests that recognition by the surrounding states is necessary for Israel to exist. Obviously it exists de facto, with its own armed forces, police, system of governance, and all the rest, and it has wide recognition. But if Canada held a referendum tomorrow that led to it recognising Quebec as a separate country that would go a long way to being sufficient for Quebec being a separate country. If Italy recognises Vatican City as a separate country and treats it as such, that goes a long way towards being sufficient for Vatican City being a separate country. If Italy tried to take it over tomorrow, and Vatican City somehow defended its borders, we’d then have an interesting argument. I’m not sure what I’d say then (remember I’m not claiming special expertise in this area of law). But if Vatican City did, then, actually show the ability to run a regime and defend its borders, surely that would go a long way to being sufficient. I just don’t think it’s necessary. Lots of countries would have no hope of defending their borders – think of Monaco, for example, or tiny Pacific Ocean countries.
Anyway, it’s true that the US could try to revisit all this. Indeed, Obama could doubtless take or initiate action to get rid of the pope’s immunity in the US courts. I’m not sure what would be needed, whether it would even require legislation. Maybe some kind of executive order would be enough. Who knows?
But whatever it would require, it’s politically unrealistic, as others have pointed out. It’s probably also unrealistic for the government to stay out of a case like this. Once it enters the case, presenting the view that the pope is not subject to the jurisdiction of US courts is probably its only realistic option, as well as probably being good law (whatever, exactly, that means if we want to get into legal epistemology).
I also (slightly off topic) doubt very much that the ICC has jurisdiction over any acts that the pope has committed. In its governing legislation, “crimes against humanity” are defined very narrowly, and the Statute of Rome explicitly says that the definitions are not to be read expansively or by analogy. Geoffrey Robertson advocates that the ICC have a broad jurisdiction, and I’m sure he’d love to put his arguments to a court if he ever got a chance, but I’m pretty confident he wouldn’t succeed. Even if he had a chance of winning the argument before the ICC, it would be political suicide for any government to cooperate in getting the case there, partly because of public sentiment and partly because the case is actually so dubious. It would be very difficult for any government to defend its actions, politically, unless the case were very clear. Even then it would probably be political suicide.
My view on all this is that we should face the reality: the pope is not going to go on trial any time soon, and probably not at all. He’s essentially an absolute monarch in Vatican City, so he won’t be put on trial there. Nor is he going to put on trial in Italy or Germany, where he came from in the first place, or, really, any other reputable country that he might happen to visit. People who’ve been abused by Catholic clergy really need to sue the responsible dioceses or other organisations in the ordinary way. Alternatively or in addition, they can seek criminal justice against the individual perpetrators if they are still alive and within the jurisdiction.
Meanwhile, critics of the Catholic Church can point out the crimes its priests, bishops, and higher-level officials have committed. Where relevant, we can point out the pope’s past complicity and/or ineptitude. All this undermines the Church’s claim to be some kind of fountain of moral wisdom. But I think that the idea of suing the pope personally, or of trying him for some sort of crime, is a fantasy. Maybe I’m wrong: Geoffrey Robertson is doubtless smarter than I am, and more learned about international law, and he disagrees with me. But I suspect he’s in the minority, and we should at least be realistic about what we’re up against.
But even the attempt can be instructive, Russell, don’t you think? Or don’t you. I think it can. The pope’s immunity is taken for granted, and it really shouldn’t be.
I don’t think it’s realistic to expect a country like the US or the UK to make the attempt, and I actually think we lose credibility (if anyone’s watching) when we talk as if we think it’s realistic. Maybe that’s not the most important value at stake, and I don’t want to be a Nisbet who thinks that PR Is All. But it’s a struggle for us Hard Atheists, or whatever we are, to be seen as credible. I suppose that’s why I feel the need to drag us back to political and legal reality whenever an issue like this pops up – even if I thereby seem like a pain in the arse.
Hm. I think of it as parallel to Hitchens’s campaign to get Kissinger busted. That was (and is) educational if nothing else, and I think the bust the pope campaign will startle at least some people into noticing a few things. Just basic emperor’s new clothes stuff, I guess – the pope’s clout depends very heavily indeed on this publicly sustained illusion (that he has legitimacy, that he is sacrosanct, that the Vatican can do what it likes ‘internally,’ and so on). I think the illusion is so flimsy that, in a way, it’s not all that hard to show it up – given the right circumstances.