Vatican smokescreen on human rights

“Human rights language is being co-opted by those with an anti-human rights agenda, among governments but also armed groups and even within civil society.” — Claudio Cordone, Secretary General, Amnesty International, 2010 [1]

♦ Vatican attack on human rights dressed up as need to counterbalance rights with duties

To undercut human rights without engaging in a potentially damaging frontal attack, the Vatican attempts to turn back the clock. It tries to return to the Middle Ages before the advent of human rights when Church taught that people had duties, but no unconditonal rights. Humans were owned by God and had duties to their Creator. This kept people humble: the idea of human rights didn't yet exist.

 In his Caritas in Veritate Benedict XVI cautions against “alleged rights, arbitrary and non-essential in nature”. [2] The rationale is that human rights are arbitrary because they don't come from God, whose spokesman happens to be the pope. And Benedict goes on to say that duties are needed to “set a limit on rights”. This enables him, in a roundabout way, to attack the basic idea of human rights, which is that they're unconditional. His assault becomes even more indirect when he tries to replace “human rights” with something called “natural rights”. These are held to derive from something else called “natural law” which just happens to conform to Church doctrine. This can be managed because “natural law is abstract and vague to the point of making its application to concrete cases extremely difficult. It requires an authoritative interpreter, the Church.” [3]

Pope is using the smokescreen of theology to mask his attack on human rights. People get lost in this maze of theological justifications, concentrating on them, rather than on the fact that they're simply designed to reach the conclusion the Vatican wants: that Church doctrine, not human rights is the final arbiter — for everyone. 
   

♦ One human right, religious freedom, used against others and made absolute

 In the last few years the Vatican has used various legal means in an ominous new way which threatens to to undermine human rights. This is done by twisting the right to freedom of conscience so as to limit it to those who conform precisely to Vatican doctrine. First, “conscience” is quietly defined as Church doctrine, thus ignoring the consciences “conscience concordat”.)  And second, the Vatican then tries to make this particular “conscience” into an absolute which allows (and if they work in Catholic institutions, effectively forces) professionals and public servants to trample on the human rights of others.

To implement this, on 28 January 2002, Pope John Paul II effectively said that Roman Catholic lawyers and judges everywhere should refuse divorce cases. [4] Another attempt, this time at the national level, was the draft “Conscience concordat” prepared for Slovakia in 2004. Sheltering under the category for international human rights treaties, this identification of “conscience” with the dictates of Church dogma would have taken legal precedence over Slovak domestic legislation. [5] And a still more audacious move in this direction is the current effort, spelled out in February 2007, to “complete” i.e., “rewrite” the Declaration of Human Rights to suit the Vatican: 

We are also hoping for legislation that will complete Article 18 of the Universal Declaration of Human Rights, proclaimed in 1948 by the United Nations to guarantee the right to conscientious objection and to defend this right against all forms of discrimination [!] in the areas of work, education and the attribution of benefits by governments. [6] 

Note how the Vatican claims that it is “discrimination” to oblige it to stop discriminating against others.
 

♦ Diplomatic recognition sought worldwide, bringing diplomatic immunity from charges of human rights abuse

Ratzinger's church lawyers have already assembled an elaborate defense strategy. They argue that the pope, as the Vatican's head of state, enjoys immunity against lawsuits in US courts. They also point out that the American bishops who covered up abuse cases are not employees subject to directives from Vatican City. [7]

In U.S. courts foreign countries are generally immune from civil actions. This means that unless a case can be brought in under an exemption (as below), the only recourse may be to try to sue the Vatican in a country which does not have diplomatic relations with it. However, as the map shows, most of the world's countries (coloured blue) already recognise the statehood of the Holy See, as the Vatican is called officially.

There are very few (gray) countries left which don't yet have diplomatic relations with the Holy See. These amount to just three island nations (the Comoros, north of Madagascar, the Maldives, southwest of India, and Tuvalu, north of New Zealand) — two African nations (Mauritania and Somalia) — three from the Middle East (Saudi Arabia, Oman and Afghanistan) — and the eight from Asia (Bhutan, People's Republic of China, North Korea, Myanmar, Laos, Vietnam, Brunei and Malaysia). [8] The logistics of suing the Vatican from some of these countries could be daunting. Furthermore, due to the Vatican's persistent diplomatic efforts, the number of countries which don't recognise the Vatican is declining every year (and one of the few left, Tuvalu, is gradually disappearing beneath the rising seas).
 

♦ Keeping out of key human rights treaty shields Vatican courts from international standards

The Vatican can't be censured for violating the right to a fair trial which is enshrined in the European Convention on Human Rights because it hasn't signed the treaty. Instead, in a 2001 court case, it was Italy that was faulted for enforcing the unfair judgement of the Vatican court.

In essence the European Court of Human Rights found in 2001 that the procedures of the Roman Rota, the ecclesiastical appeals court responsible for marriage-annulment applications, failed to reach the standards required for a fair trial under article 6(1) of the European Convention and that, therefore, its judgments could not properly be recognized and enforced under Italian law. ECHR noted that in Rota proceedings witness statements were not provided to parties and thus depriving the parties of an opportunity to comment on them. Parties were not advised that they could appoint lawyers to appear for them, nor advised of the terms of the legal submissions made by the canon lawyer appointed by the court to argue against annulment. Finally, the parties were refused sight of a full copy of the Rota’s judgment, in which the ecclesiastical court set out its reasoning. Given these circumstances, the Strasbourg court took the view that justice was not done in annulment proceedings before church courts. [9]
 

♦ Damage limitation: If the Vatican doesn't sign a human rights treaty, it's easier to confine blame (and costs) to the local bishop

A more fundamental reason for the Vatican to refuse to sign key human rights treaties may be to help it disavow all responsibility for what is done in the Church worldwide. After all, the Holy See which signs treaties is both the government of the Vatican State and of the Roman Catholic Church. The less responsibility it takes, the less liability it will have. At the moment Vatican lawyers are arguing that Roman Catholic clerics are not officials or employees of  the Holy See. This is now the main Vatican defence against lawsuits in the United States seeking to hold the Holy See liable for the failure of bishops to stop priests from raping and molesting children.

Usually foreign countries are immune from civil actions in U.S. courts, but there are exceptions to the Foreign Sovereign Immunity Act which courts have said were applicable in this case. The statute says that plaintiffs can establish subject matter jurisdiction over a foreign sovereign, if a crime was committed in the United States by any official or employee of the foreign state and that the crimes were committed within the scope of employment. [10]
 

♦ Vatican adds “reservations” which nullify its signature to UN Treaty on Rights of the Child 

If a state wants to avoid having to comply with a treaty it can sign with “reservations” which are really escape clauses. Thus some states have added the reservation that they would not be bound by anything that contravened “Islamic laws and values” which amounts to “a total absence of ratification”:

The Holy See has ratified the Convention with a series of reservations and declarations, one of which is remarkably similar in scope to the “Islamic” reservations discussed above. The Holy See declares “that the application of the Convention [should] be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law.” [11] It would appear from such a reservation that the Holy See does not really expect the Convention to apply to the Vatican City territory. Rather, its cynical purpose in ratifying seems to be to enhance its credibility in insisting upon an antiabortion interpretation of Article 6 of the Convention. Ratification also permits the Holy See, which has an international legal personality but which is not a “state,” to participate (at no real cost) as a “state party” in designating members of the Committee on the Rights of the Child. [12]

This sounds like an assertion that Canon (Church) Law outweighs the Rights of the Child, just as it seems in practice to have trumped civil laws meant to protect children.
 

♦ The Church follows Canon Law and must be forced to comply with civil law which is based on human rights

The clerical abuse scandal in the Catholic Church has revealed a pattern reaching back centuries of not alerting civil authorities to these crimes committed against children. As if the record unpunished priest abusers were not proof enough, a letter written in 2001 by a senior Vatican official has come to light praising a French bishop when he was convicted of failing to report a paedophile priest to the police. Cardinal Dario Castrillon Hoyos wrote to Bishop Pierre Pican: “I congratulate you for not denouncing a priest to the civil authorities.” [13] He even justified protecting a priest who was later sentenced to 18 years in jail in 2000 for sexually abusing 11 boys, “After consulting the pope, I wrote a letter to the bishop, congratulating him as a model of a father who does not turn in his children.” [14]

If Castrillon Hoyos is telling the truth, then John Paul personally approved sending this letter in direct violation of the instruction Card[inal] Ratzinger’s CDF had sent down months earlier, urging bishops in countries where the law obliges them to report knowledge of sexual crimes against children to civil authorities, to follow the law. If Castrillon Hoyos is being truthful, it would suggest that, as far as the pontiff was concerned, the Ratzinger directive was window dressing. [15]

The Church record of stonewalling criminal investigations certainly suggests that, until and unless forced to do otherwise, Canon Law, the legal system of the Catholic Church, is all the Church feels bound to follow. The outspoken Monsignor Maurice Dooley, an expert on Canon Law, has even stated this publicly. In 2002 he declared that bishops did not have to tell the Irish police about paedophile clerics and might even shelter these priests. “As far as the Church is concerned, its laws come first.” [16] And in April 2010 the Brazilain Archbishop Dadeus Grings said that priestly abuse was a matter of internal church discipline, not something to report to the police. “For the church to go and accuse its own sons would be a little strange.” [17]

And Cardinal Castrillon Hoyos agrees. In his speech he said the French bishop did not report the paedophile priest to the police because he was told of the child abuse during confession, and he cited Canon 983 which calls the secrets of the confession “inviolable”. No matter that the laws of France attempt to rein in Canon Law in such cases. “French law recognises the seal of the confessional as part of a protected category of ‘professional secrets’, but makes an exception for crimes committed against minors”. [18] The Cardinal didn’t even mention this: for him it’s Canon Law that counts.

And for good reason. That’s because all an abusive priest has to do is confess his “sins” to his bishop in order to place this information under the “sacramental seal”. Then the bishop can't report him to the police, since “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason”. Yes, for any reason.

To conceal your sins, just confess them to your bishop. This is how Canon Law shields clerical crimes.

— MF 

Further reading about the Pope and the law

Geoffrey Robertson, QC, “Put the pope in the dock. Legal immunity cannot hold. The Vatican should feel the full weight of international law”, Guardian, 2 April 2010. [This is a proposal to prosecute the Vatican under criminal law, where diplomatic immunity does not apply, but where an arrest could only be made in a coumtry (like the UK, but not the US) which has signed the Statute of the International Criminal Court.]

Alan Duke, “Lawsuit demands Vatican name priests accused of sex abuse”, CNN, 22 April 2010.  “Pope Benedict XVI was named as a defendant because he has the ultimate authority to remove priests and because of his involvement in reviewing sex abuse cases when he was Cardinal Joseph Ratzinger, the suit says.” [This is a suit under civil law and, as the US has recognised the Holy See by establishing diplomatic relations with it, this suit depends upon proving that the Holy See acted in a manner which removes its immunity, as outlined above.]

Notes

1. Claudio Cordone, “Amnesty International’s response to ‘The global petition to amnesty international: Restoring the integrity of human rights’”, 28 February 2010. http://www.human-rights-for-all.org/IMG/pdf/Claudioletter-2.pdf

2. Benedict XVI, Caritas in Veritate, § 43, 29 June 2009. http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20090629_caritas-in-veritate_en.html

3. Guenther Lewy, “Catholic political ideology: the union of theory and practice”, Chapter 12 (the final one) of The Catholic Church and Nazi Germany, 1964. http://www.mosquitonet.com/~prewett/lewy337341.html

4. “Address of John Paul II to the Prelate Auditors, Officials and Advocates of The Tribunal of the Roman Rota“, 28 January 2002. http://www.vatican.va/holy_father/john_paul_ii/speeches/2002/january/documents/hf_jp-ii_spe_20020128_roman-rota_en.html

5. “Precedence Clause of the Slovak Constitution” (amended in 2001)

6. “Pontifical Academy for Life, Final Declaration by the 13th General Assembly”, 24 February 2007.

7. “The Failed Papacy of Benedict XVI”, Spiegel, 4 June 2010. http://www.spiegel.de/international/germany/0,1518,687374-6,00.html

8. Sandro Magister, “The Holy See's Diplomatic Net. Latest Acquisition: Russia”, Chiesa, 14 January 2010. http://chiesa.espresso.repubblica.it/articolo/1341731?eng=y

The Holy See does not yet have relations with sixteen countries, most of them in Asia, many of them with majority Muslim populations. There is no Vatican representative in nine of these countries: Afghanistan, Saudi Arabia, Bhutan, the People's Republic of China, North Korea, the Maldives, Oman, Tuvalu, and Vietnam. While in seven other countries there are apostolic delegates, pontifical representatives to the local Catholic communities but not to the government. Three of these countries are African: the Comoros, Mauritania, and Somalia. And four of them are Asian: Brunei, Laos, Malaysia, Myanmar.

9. Pellegrini v. Italy, 2001-VIII, Application No: 30882/96.

10. “Pope-bishop relationship key in sex abuse defense”, AP, 18 May 2010. http://www.google.com/hostednews/ap/article/ALeqM5iH9I3NH568g_9CE-MMStuwZ3jgfAD9FP5FE80

11. A list of reservations by all states:
“Convention on the Rights of the Child”, (20 November 1989),  Declarations and Reservations (as of 18 May 2010), Holy See.

UN concerns about Holy See reservations:
Committee on the Rights of the Child, Tenth Session, Consideration of Reports submitted by States Parties under Article 44 of the Convention, “Concluding observations of the Committee on the Rights of the Child: Holy See”, CRC/C/15/Add.46, 27 November 1995. http://www.unhcr.org/refworld/pdfid/3ae6aec910.pdf

Part of the Reservation of the Holy See:

[The Holy See declares] that the application of the Convention be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law (art. 1, Law of 7 June 1929, n. 11) and, in consideration of its limited extent, with its legislation in the matters of citizenship, access and residence.

This Reservation, insisting on the priority of the Holy See's own laws, including those regarding “access”. In the context of child abuse, this is worrying, for it could amount to a refusal to hand over any documents the Church does not wish to divulge. Vatican precedents are not encouraging, for instance the 2001 Vatican directive obliging charges of child abuse to be placed under “the pontifical secret”. 

See Keith Porteous Wood, “Proposals by the International Humanist and Ethical Union, jointly with the (UK) National Secular Society to the European Union Agency for Fundamental Rights (FRA) for inclusion in its Annual Work Programme 2009 and Annual Report 2008”, August 2008. http://tinyurl.com/3525xur 

From page 31 of this document (see the original for the footnotes):

New Law Requires Secrecy and Centralized Review

In 2001, the Holy See issued a document entitled Sacramentorum sanctitatis tutela, (12) instituting a little publicized but important change in the law. In this document, which supersedes the law in the codes, the Holy See directs all the bishops of the world to inform one of its offices, the Congregation for the Doctrine of the Faith, if they receive an allegation of child sexual abuse by a cleric. This same law prohibits the bishops or other church authorities from taking any action beyond a preliminary investigation of the allegation without further direction from the Holy See’s delegate (13).

According to the new law, this office of the Holy See may, at its discretion, conduct an inquiry itself, or transmit norms to the local ecclesiastical authority explaining how to proceed. These cases, the law states, are “subject to the pontifical secret.” This is the Holy See’s highest level of confidentiality—just short of the absolute secrecy required by sacramental confession—and provides that the Holy See reserves the right to punish any party who reveals information about clerical sexual abuse of children once an investigation has started.

In other words, the Vatican's recent attempt to “explain” Canon law (including an all-day programme for the media) is a diversion for two reasons. First, it makes no difference what Canon Law says if it's not enforced and, second, the 2001 law described above supercedes Canon Law and prevents the reporting of abuse to secular authorities without Vatican permission.

Furthermore, in addition to the Secret Archives at the Vatican, Canons 486-490 stipulate that each diocese must have both a locked archive and a totally secret one, as well. Only the bishop holds the key to this closely guarded secret archive for “documents of criminal cases in matters of morals”. Once “the accused parties have died or ten years have elapsed from the condemnatory sentence” of a secret Church court these documents “are to be destroyed”. Only a summary and the text of the Church judgement is to be retained — and, of course, these are still to be kept under lock and key. Presumably a copy of all of this diocesan material is also kept in the Vatican, but proving it exists, let alone gaining “access” seems hardly likely.

12. William A. Schabas, “Reservations to the Convention on the Rights of the Child”,  Human Rights Quarterly, Vol. 18, No. 2 (May, 1996), pp. 478-79 http://www.jstor.org/stable/762512

13. Cardinal Darío del Niño Jesús Castrillón Hoyos to Bishop Pierre Pican, 8 September 2001. Translation in “Darío Castrillón Hoyos”, Wikipedia. http://en.wikipedia.org/wiki/Dar%C3%ADo_Castrill%C3%B3n_Hoyos

14. “Cardinal justifies praise for French bishop's silence over abusive priest”, AFP, 18 April 2010. http://timesofindia.indiatimes.com/world/europe/Cardinal-justifies-praise-for-French-bishops-silence-over-abusive-priest/articleshow/5826601.cms

15. Rod Dreher, “Cardinal: John Paul approved of cover-up”, Beliefnet, 18 April 2010. http://blog.beliefnet.com/roddreher/2010/04/cardinal-john-paul-approved-of-cover-up.html

16. Ciaran Byrne, “Controversial cleric a 'grade A1 idiot', says colleague”, Irish Independent, 20 March 2010. http://www.independent.ie/national-news/controversial-cleric-a-grade-a1-idiot-says-colleague-2105732.html

17. Jeff Israely and Howard Chua-Eoan, “The Trial of Pope Benedict XVI”, Time Magazine,
 27 May 2010. http://www.time.com/time/world/article/0,8599,1992171-2,00.html

18. John L Allen Jr, “Crisis hangs over pope in Malta like volcanic ash”, NCR, 17 April 2010. http://ncronline.org/blogs/ncr-today/crisis-hangs-over-pope-malta-volcanic-ash