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Vatican smokescreen on human rights - [2S]
2S
Keeping out of key human rights treaty shields Vatican courts from international standards

Vatican smokescreen on human rights

from: Concordat Watch - Religious threats to Human Rights
Thursday 24 November 2011

Concordat Watch
Religious threats to Human Rights

Vatican smokescreen on human rights

The Vatican tries quietly to elevate Church doctrine above human rights. It has not signed some human rights treaties and in some others has made “reservations” which keep it from having to comply. This strategy gives the Church leverage, prevents it from being held accountable for priestly abuse, and protects its courts from charges that they violate the right to a fair trial.

“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 poses as need to counterbalance rights with duties

“Rights and duties go together, says Pontiff ”(28 May 2010) Here the Pope repeats his attack on human rights first launched in his 2009 Caritas in Veritate. An open assault on human rights would be publicly damaging for the Vatican and it wants to be able, when convenient, to call for “the right to religious freedom”. Thus the attack must be roundabout: here is how it works 

To undercut human rights without engaging in a potentially damaging frontal attack, it tries to redefine “human rights”. The whole point of human rights is that they’re unconditional. They don’t depend on fulfilling any duties. It’s “privileges”, not “rights” that are granted to you in exchange for performing corresponding duties. The Pope’s redefintion of human rights as depending on something else is an attempts to turn back the clock. It’s a 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 argument 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, is made absolute, overriding others 

 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, brings 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 theRoman 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, thus depriving the parties of an opportunity to comment on them. The 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, part 1: 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]

♦ Damage limitation, part 2: English Catholic Church said priests are self-employed and thus it’s not responsible for victim compensation

In England the Catholic Church has tried to avoid reponsibility at the diocesan level, mindful of the dioceses in the US which have been obliged to pay compensation to victims of clerical abuse and in some cases have gone bankrupt. [11] It has therefore tried to argue that priests are self-employed. [12] However, in a High Court ruling on 8 November 2011 the judge rejected that argument, stating that the relationship between a priest and his bishop is sufficiently close so as to impose responsibility. According to the alleged victim’s lawyer, “This is a key decision with potentially far-reaching implications, effectively extending the principle of vicarious liability”. [13]

There are other theological variations on the responsibility theme: Whereas the Catholic Church says that its priests are self-employed, the Church of England, in order to avoid giving its priests workers’ rights, claimed they were employed by God. And since 2008 it has said that they are “office holders”, in other words, employed by no one. 

♦ 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.” [14] 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. [15]

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

Amnesty International citricised the Vatican in its 2011 report, claiming it “did not sufficiently comply with its international obligations relating to the protection of children”. AI pointed out that the Vatican enlarged its own definition of “crimes in canon law” beyond “the sexual abuse of minors” ― but not the punishments

Amendments to the canon law promulgated in May introduced the “delicts” of paedophile pornography and abuse of mentally disabled people; the maximum punishment for these “delicts” is dismissal or deposition. Canon law does not include an obligation for Church authorities to report cases to civil authorities for criminal investigation. Secrecy is mandatory throughout the proceedings. [16]

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. In 2010 the Bishop was given a three-month suspended prison sentence for not denouncing the priest, who was sentenced to 18 years in jail in 2000 for sexually abusing 11 boys. [17]

However, Cardinal Castrillon Hoyos, Prefect of the Congregation of the Clergy, told the Bishop, “I congratulate you for not denouncing a priest to the civil authorities.” And he concludes the letter to the French bishop by holding up the Bishops’ behaviour as a model for others; “This Congregation, in order to encourage brothers in the episcopate in this delicate matter, will forward a copy of this letter to all the conferences of bishops.” [18]

The Cardinal said afterwards that his letter was about protecting the seal of the confessional in accordance with Church law (Canon 983), but there is no mention of this in the text itself and at his trial the Bishop disputed this. [19] However, even if this were true, this would not hold in France which has apparently legislated a “duty to report” where children are involved. “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”. [20]

 Later the Cardinal also dropped a bombshell. He claimed that, “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.” [21]

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. [22]

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.” [23] And in April 2010 the Brazilian Archbishop Dadeus Grings concurred, saying 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.” [24]

♦ Secret archives and destroyed documents 

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.

In 2002, after the Archdiocese of Philapelphia refused to cooperate in an investigation of its handling of sex-abuse claims, a grand jury subpoenaed the church’s internal records.

In Philadelphia, the sole keyholders were the cardinal and his closest aides. The files were kept in a row of unlabeled, gray-green cabinets in a windowless room on the 12th floor of the archdioces’s Center City office tower. Inside was an exhaustive compendium of scandals dating back more than 50 years: priests with drinking problems, priests who had gotten women pregnant, aging stacks of confiscated pornography. Then there were the reams of carefully typed memos that discussed priests with what the archdiocese delicately referred to as “unnatural involvements” or “unusual patterns.” Priests, in other words, who had sexually abused the children in their care....[The] prosecutors were stunned to find thousands of documents that detailed the hundreds of victims who had allegedly been abused by 169 priests. [25]

However, if the Church has good reason to fear disclosure, it has a further defence. In 2010, public pressure leds to demands for access to the secret archive of the Archdiocese of Munich and Freising, the one overseen by Archbishop Ratzinger from 1977 to 1982, before he became pope. But when the lawyer appointed to investigate examined the archive, he found that the documents for the relevant period were missing: “We are dealing with the extensive destruction of files” and a “systematic system of cover-up”. [26]

— 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.]

“Call to treat Vatican as a rogue state: Lawyer Geoffrey Robertson says the church must abandon canon law”, Sydney Morning Herald, 9 September 2010. http://www.smh.com.au/world/call-to-treat-vatican-as-a-rogue-state-20100908-151cg.html

Afua Hirsch, “Canon law has allowed abuse priests to escape punishment, says lawyer”, Guardian, 7 September 2010. http://www.guardian.co.uk/world/2010/sep/07/canon-law-abuse-priests-escape-punishment

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. “Settlements and bankruptcies in [American] Catholic sex abuse cases”, Wikipedia. http://en.wikipedia.org/wiki/Settlements_and_bankruptcies_in_Catholic_sex_abuse_cases

12. “Catholic bishop criticises ruling on church liability for actions of priests”, Guardian, 15 November 2011. http://www.guardian.co.uk/world/2011/nov/15/catholic-bishop-liability-church-priests

Crispian Hollis, Bishop of Portsmouth, “The Diocese, Fr Wilf Baldwin and the High Court Judgment”, 10 November 2011. http://www.portsmouthdiocese.org.uk/docs/The-Diocese-Fr-Wilf-Baldwin.pdf

13. “Catholic Church responsible for child abuse, High Court rules”, The Lawyer, 9 November 2011. http://www.thelawyer.com/catholic-church-responsible-for-child-abuse-high-court-rules/1010180.article

14. 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.

15. 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

16. Amnesty International, Annual Report, 2011: “Vatican”. http://www.amnesty.org/en/region/vatican/report-2011

17. Tom Heneghan, “John Paul backed praise for hiding abuse - cardinal”, Reuters, 18 April 2010. http://in.reuters.com/article/2010/04/18/idINIndia-47782720100418

18. 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 

The French original was published in Golias, 16 April 2010:
http://www.golias.fr/spip.php?article3794

19. Tom Heneghan, “John Paul backed praise for hiding abuse - cardinal”, Reuters, 18 April 2010. http://in.reuters.com/article/2010/04/18/idINIndia-47782720100418

20. 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

21. Tom Heneghan, “John Paul backed praise for hiding abuse - cardinal”, Reuters, 18 April 2010. http://in.reuters.com/article/2010/04/18/idINIndia-47782720100418

22. 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

23. 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

24. 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

25. Sabrina Rubin Erdely, “The Catholic Church’s Secret Sex-Crime Files”, Rolling Stone Magazine, 15 September 2011. http://www.rollingstone.com/culture/news/the-catholic-churchs-secret-sex-crime-files-20110906

26. “German study finds systematic cover-ups in Catholic priest abuse cases”, Deutsche Welle, 3 December 2010. http://www.dw-world.de/dw/article/0,,6294220,00.html


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