A Dumb Idea, via Christopher Hitchens and Richard Dawkins: Arresting the Pope

In recent years there have been numerous attempts to greatly expand the concept of judicial jurisdiction, under the rubric of “universal jurisdiction.” The latest threat, by atheists Richard Dawkins and Christopher Hitchens to sue the pope in Great Britain for claimed failures in halting priestly abuse of minors, seems doomed — as were a number of other such adventures in creative law by NGOs and overreaching, grandiloquent jurists.

In Western jurisprudence, a court must have “jurisdiction” to hear a matter. The concept is broad but utterly rational: the court must have personal jurisdiction over the parties to the matter.

The parties must have some ties to the judicial forum, for example an office within the jurisdiction from which they do business, a residence, or a contract provision agreeing that disputes will be heard there. This is often a mixed question of law and fact, but essentially requires a party to show sufficient contacts in the forum to warrant the court’s handling of the matter.

For example, without more, it’s hard to imagine how a suit by a resident of Illinois against a resident of Florida for a contract to be performed in California would be heard in Iowa. Iowa simply lacks sufficient nexus — “logical connection” — to the dispute to be a sensible place for the litigation to take place.

A traffic court judge cannot take it upon himself to resolve a landlord-tenant dispute or to decide whether ObamaCare should be enjoined. In fact, he lacks the legal authority to do so.

There’s more involved, but the point is simply that courts cannot try anyone at all for anything at all. They are confined to rational and statutory limits on their powers.

Some people are granted legal immunity from all suits or some suits. Heads of sovereign states are not subject to suit in other sovereign states for violation of their laws. This is called sovereign immunity. (Confusingly, this is a term also used to describe whether the state can be sued by anyone, a doctrine increasingly diminished in this country by statutes waiving it.)

In two respects, the inability of a person to sue another sovereign state or head of state has been eroded in recent years. In one instance, as states took over businesses and ran them, they were by law deprived of immunity for their commercial activities — activities not normally and historically considered state functions:

In 1976 Congress passed the Foreign Sovereign Immunities Act (28 U.S.C.A. § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of U.S. federal and state courts in certain circumstances. This act, which strives to conform to international law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move toward a restrictive doctrine.

That seems a perfectly logical exception and retains the historical rationale for immunity.

There is also an exception for international tribunals set up by agreement of the member states (which was, inter alia, the justification for the Nuremberg tribunal).

To date, the International Criminal Court (ICC) still holds that state officials have immunity under international law while serving in office, and are immune from arrest abroad while serving in office except when subject to any duly constituted international criminal tribunal which has jurisdiction over such conduct.

Less justifiable on traditional grounds is the concept of “universal jurisdiction,” in which the conduct involved is deemed so beyond international norms of conduct that the concept of state sovereignty is inapplicable. In that case any state that obtains physical custody of a head or officer of the offending state, or a person who it is imagined the home state will not prosecute, can prosecute that person for such crimes.

Belgium, for example, passed a law of “universal jurisdiction” in 1993, setting itself up as an appropriate forum within which to judge the rest of the world. It has since repealed that law and has reined in its claims of jurisdiction apparently on the ground that the superior moral wisdom of the Belgians is no longer necessary now that the International Criminal Court (ICC) has been established.

The justification for such transnational jurisprudence is that the crimes involved pose so serious a threat to the well-being of the world that others must intervene. Henry Kissinger has offered a spirited objection to such busybody judicial meddling. Kissinger argues that it will lead to a universal tyranny of judges, and show trials designed to harm state’s enemies or opponents.

His warning was not baseless. Overreaching jurists like Spain’s notorious Judge Baltasar Garzon — who was emboldened by a 1985 Spanish act giving the state courts broad universal jurisdiction — were entertaining suits for conduct in Guatemala by Guatemalans and against an Argentinean naval officer for crimes against Argentinians in Argentina. They were also involved in an investigation into the activities of Chinese officials in Tibet.

On January 29, 2009, one judge opened an investigation into a bomb attack in Gaza, considering whether various Israeli officials should be prosecuted. By July of 2009 The Spanish Congress passed a law trimming the sails of its judges to more traditional matters, and it awaits action by the Spanish Senate.

Emboldened perhaps by the fighting Belgian and Spanish jurists, efforts were made in Great Britain in December of last year to arrest Israeli Minister Tzipi Livni for “war crimes” in Gaza — an effort scotched when it was established she had not entered Britain. A similar plan to arrest a team of Israeli Defense Forces members failed when they canceled their trip.

In the face of all these examples of ludicrous overreaching by European courts, Christopher Hitchens (who has produced much work I greatly admire) and Richard Dawkins have suggested they want to join the fun.

Apparently they like the concept that every two-bit judge with an itch to escape overcrowded dockets of cases involving citizens who pay his salary — to resolve their legitimate suits under their own laws on their own territory — should consider himself an arbiter of universal justice. He can try whomever he damn pleases for any conduct he considers beyond the pale. In this case, they have engaged counsel to determine whether they can assert that the pope is responsible for the sexual abuse of minors in the church and should be prosecuted in British courts for this when he visits.

In their corner is Geoffrey Robertson. Robertson argues that the pope is not entitled to be treated as a sovereign head of state entitled to immunity. He argues correctly that the Papal States, which lasted from 756, were extinguished in 1870, and that the Vatican, the papal state headed by the pope, has only existed since 1929 by the then-Italian government.

In Robertson’s view this 80-year-old declaration is “risible” and would permit any state to carve out part of itself and grant it immunity. Of course, Robertson’s is disingenuous rhetoric. It ignores or downplays that in this 80-year period the UN has given the Vatican “observer status,” and other states, including the U.S. and the UK, maintain missions to the Vatican and recognize ambassadors from there.

Robertson asserts that both in the UK and the European Court of Human Rights the claim of state immunity would fall if challenged. He cites no authority on this point, but I’d suggest if sovereign states — including the UK — have recognized the Vatican as one for 80 years, and the pope as its head, who is some British judge to decide otherwise? But then I’m one of those who distinguishes between judicial and executive power and believes each has its place in the scheme of things.

Wisely, Robertson offers up a fallback. He contends that even if the pope is entitled to sovereign immunity, he could be punished by the ICC if the facts show that the crimes of sexual abuse by priests are “not isolated or sporadic, but part of a wide practice known to and unpunished by their de facto authority” for conduct after July 2002 (the date the ICC was established).

One wonders how long the rest of the Western states would support the ICC if it took such an unprecedented step expanding its jurisdiction. Does he think the UN peacekeepers who engaged in far more recent, widespread, and egregious sexual abuse of minors should also line up for ICC prosecution?

Julian Ku thinks the case will be brought. I think the juridical absurdities of European law may be beyond my poor prognostication powers, but I do not think the suit would advance there. I’m certain it wouldn’t survive a motion for summary disposition here.

I wish Dawkins and Hitchens would reconsider what they are proposing, because in striking at the Church (perhaps only symbolically and to publicize their animus toward the Church) they may strike a blow against those they do not mean to harm by expanding a centuries-long concept of jurisdictional constraint which has common sense and rational statecraft on its side.

Just to take one example: despite considerable opposition from Spain’s government, the U.S. prosecuted the war in Iraq with Hitchens’ approval. One can imagine in the hands of a socialist judge appointed by Zapatero, with political ambitions, that acts of war in Iraq might meet the test of war crimes, subjecting our military or cabinet members to criminal prosecution there.

Even more ridiculous consequences might follow a ruling that the Vatican is not a state and its head not entitled to immunity. What limits are we to expect on the courts’ ability to determine the legitimacy of leaders? Or on states for that matter?

Strange neither is concerned about the millions that have been killed by their atheistic brethren in China and Cuba.

From an ideological and philosophical point of view, I don't know why they should care one way or the other. After all, they believe that we're all chance occurence from a random collision of atoms. Our collective fate is going to be the same --- back to a random collision of atoms.

So, when a random collision of atoms called the Castros happened to hit on a random collision of atoms called the Cubans, it's all nature playing itself out anyway.

How evil is it when a volcano erupts or an earthquake or tsunami occurs and crushes a product of chance plus random mutation called a human being ? They're all part of nature.

So are the Castros and so is Mao Tse Tung and his gang.

Not sure where objective good or evil falls into the picture given their worldview.

"Not sure where objective good or evil falls into the picture given their worldview."

There is no room for objective good or evil in a nihilist world, but not all non-theists are nihilists. And not all liberals/socialists/communists are non-theists.

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