OK. I’m no expert in British law, so you tell me: what are the chances that this theoretical discussion would actually result in the Pope being arrested when he visits the UK?
Which actual, sitting British official has suggested this would be legal?
Even in the article, the only person quoted as saying it’s possible is Geoffrey Robertson, a well-known British lawyer and former UN judge. And his ringing endorsement is described thusly:
So it could be time, and Britain could be the place.
When discussing “is it possible to…” legal questions, I think there’s an important distinction to be made.
Is it possible to try someone again for the same crime, after he’s acquitted? No.
“But what if the courts all just decided that this was one case where double jeopardy just shouldn’t apply, and they all ruled against him?” Yeah, OK, in that instance, I guess it would be possible. But that would have created a dramatically new interpretation of law, unlike any previous decisions involving double jeopardy. It’s mathematically possible, of course. But since the legal world thrives on predictablity, and since such a result would seem at present well-nigh unlikely, we are generally safe in saying that it’s not possible – understanding that the word “possible” is not being used in a mathematical or physical sense.
So in this examination, so far as I can see, for the UK to make the decision to arrest a head of state when he arrives for an official visit would be effectively impossible, Geoffrey Robertson’s musings notwithstanding.
Noreiga was not the head of state before the U.S. invaded. Although he obviously was pulling the strings, Francisco Rodríguez was President of Panama when the U.S. invaded. (Or, if you prefer, the President was Guillermo Endara, from whom the election was stolen).
In any event, it was not Noreiga, and this fact had nothing to do with the U.S. invasion.
However… of course you’re correct. Immunity of sovereigns is only a creature of law. If the U.S. had sufficient political will, it could repeal those laws, indict Pope Benedict, and then call Ft. Drum to get the 10th Mountain Division over to Rome to arrest him.
The usual way for a state to deal with another (head of) state they have a beef with, is by diplomatic negotiations, and, failing those, economical sanctions. Are there any Vatican diplomats in the USA?
This seems like legal nitpicking to me. I am sure should political will exist to bring charges against the pope legal nitpicking of this sort would be done to allow doing so.
Yeah, I rememebr reading about that court case over the Vancouver school in the papers. The local group of school staff, parents and alumni argued they were a separate community that owned the school and had nothing to do with crimes 3000 miles away. The court disagreed.
Also equally funny was the arrest a few months ago of one of the priests in charge of settling the issues around the whole church child abuse scandals on the east coast. He was arrested returning from Thailand with kiddie porn on his computer. (??!!) This was followed by questions why the police had ignored claims by abused boys who had stayed over at his house and been shown gay pornography 30 years ago.
First of all, often it is not just the church but also the local civil authorities who swept things under the rug with the naiive assumption that the chastised preist would behave from then on without the need for a public scandal. And the second time. And the third time…
To sue the Vatican, you would have to show they were aware of the problem before it became public knowledge, and acted in an inappropriate manner; you would still ahve to sue them in their own courts in the vatican, I imagine. And to arrest the pope, you would have to wait until his term of office expired and he was no longer head of the church…
But it’s directly and completely responsive to the question. “Can we go after the Pope?”
“No, he’s a head of state.”
“But we went after Noreiga!”
“He wasn’t a head of state.”
Again: if the U.S. had sufficient political will, it could repeal those laws, indict Pope Benedict, and then send in the 10th Mountain Division to arrest him. So… yes. That much is a given.
The term of office for a Pope is for life. So his term expires when he expires, and it’s pretty pointless to arrest his corpse after that.
He could resign of course, but that’s hardly ever done – never, in the last 300-400 years.
Look at the last years of Pope John Paul II – he was obviously suffering the effects of advanced age – probably medically senile. I doubt he really understood what they put in front of him to sign, but his signature was still required, as he was still the head of the church.
The bigger problem is the Italian Army. Unless Italy was totally onboard with deposing the Pope we would need to go to war with them (which would sure make things awkward at NATO meetings). The Vatican is surrounded by the Italian Republic.
Legal nitpicking is what lawyers and courts do. From what I know of international law (I read a book once!) and international relations (read lots of books on that), the personal liability and jurisdiction over the Pope is non-existent in the US, and there is a small chance of it in countries like Spain and the UK. When push came to shove in the UK, Pinochet was let go and I don’t think that they want to repeat it.
Not sure how this works but I presume the current Pope is still a German citizen. As such the Germans need not respect him as a head of state do they? “Pope” is not an official German office. One of their citizens broke their law so they can prosecute.
Or as in the US we could prosecute a sitting president for crimes committed prior to him being president (wasn’t that established in the Paula Jones case against Clinton?). I presume Germany might work similarly.
What was established in the Paula Jones case was that Clinton could be sued for tortious acts committed before he became president.
The bar for a criminal prosecution is higher, since it would potentially require the court to assert control over the President in a way that civil trials don’t match.
But authorities are divided on the subject. See GFactor’s excellent staff report on whether the President may be arrested.
