Pope must answer for crimes against humanity
No legal immunity - the Vatican should feel the full weight of international law.
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.
The shocking finding of Judge Murphy's commission in Ireland was not merely that sexual abuse was ''endemic'' in boys' institutions but that the church hierarchy protected the perpetrators and allowed them to take up new positions teaching other children after their victims had been sworn to secrecy.
This conduct amounted to the criminal offence of aiding and abetting sex with minors. In legal actions against Catholic archdioceses in the US, it has been alleged that the same conduct reflected Vatican policy as approved by Cardinal Ratzinger (as the Pope then was) as late as November 2002.
In the US, 11,750 allegations of child abuse have featured in actions settled by archdioceses - in LA for $US660 million ($717 million); in Boston for $US100 million.
In 2005, a test case in Texas failed because the Vatican sought and obtained the intercession of President George Bush, who agreed to claim sovereign immunity on the Pope's behalf. Bush's lawyer John Bellinger III certified that Pope Benedict XVI was immune from suit ''as the head of a foreign state''.
But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Benito Mussolini endowed this tiny enclave with ''sovereignty in the international field''.
But head of state immunity provides no protection for the Pope in the International Criminal Court. The ICC statute definition of a crime against humanity includes rape and sexual slavery and similarly inhumane acts causing harm to mental or physical health, committed against civilians on a widespread or systematic scale, if condoned by a government or a de facto authority.
If acts of sexual abuse by priests are not isolated or sporadic, but part of a wide practice both known to and unpunished by their de facto authority then they fall within the temporal jurisdiction of the ICC - if that practice continued after July 2002, when the court was established.
Geoffrey Robertson, QC, is author of Crimes Against Humanity.
April 4, 2010