Immunity for the Pope?

Last week, I had toyed with an April Fool’s prank concerning possible charges at the International Criminal Court directed against the Pope, but thought better of it and chose another theme.
How could I have known that British barrister and judge Geoffrey Robertson was working on precisely the same question. And it is no prank. The following day, on Good Friday, The Guardian published an opinion by Robertson entitled ‘Put the Pope in the Dock’.
In a story published today by Associated Press, former Sierra Leone Special Court Prosecutor David Crane responds by asking ‘for what?’ I think that Geoff had in mind widespread and systematic sexual abuse committed by persons over whom he has exercised ‘superior responsibility’. Theoretically, the foundations are there under international law, assuming the facts can be proven and the acts took place subsequent to 1 July 2002 when the Rome Statute entered into force. The basis is articles 7 and 28 of the Rome Statute. Crimes against humanity and superior responsibility.
The core of the argument is that the Holy See, which has observer status at the United Nations, is not a State. Geoff’s reasoning stumbles on the fact that the Holy See not only controls territory but that its statehood is recognized by the many countries with which it has diplomatic relations. In other words, it has the attributes of statehood, no matter how preposterous its creation.
There is apparently a planned visit by the Pope to the United Kingdom. The United Kingdom has diplomatic relations with the Holy See, and recognizes it as a State. Under the Pinochet precedent, the Pope might have no immunity. But the Pinochet precedent was effectively overturned by the International Court of Justice, in the 2002 case between the Democratic Republic of the Congo and Belgium. In any event, under its own laws the United Kingdom cannot exercise universal jurisdiction over crimes against humanity, so I doubt the Pope really has much to worry about.
There is still the contention that there can be no immunity of a head of State before the International Criminal Court. Pre-Trial Chamber I said as much in the arrest warrant decision for President Bashir of Sudan in March 2009. But the decision is wrong on this point, in my opinion, because the provision of the Rome Statute that removes immunity from heads of State (art. 27(2)) is only applicable to those States that have ratified or acceded to the Statute. It does not change the legal regime for third States, which include the Holy See, Sudan, the United States and about eighty others. Their immunity is established by customary international law. This is explained in more detail in the entry in my Commentary on the Rome Statute for article 27.
This is not to say that there has been sufficient accountability within the Roman Catholic Church for child sexual abuse. The full story has clearly not been told. Many of those responsible have not been held to account.