The Pope: Witness for the prosecution

"Now that I have been in the Catholic Church 19 years, I cannot recollect hearing of a single instance in England of an infidel priest ... I am speaking of cases when a man keeps a fair outside to the world and is a hollow hypocrite in his heart." John Henry Newman, 'Apologia Pro Vita Sua' (1865)

Every person is entitled to claim the right to religion, and to manifest it in community with others by "teaching, practice, worship and observance". The corollary of this right – expressed in these words in the Universal Declaration and every convention on human rights – is that churches must be free to propound the tenets of their respective faiths but always (and this is a condition explicitly imposed by all such conventions) subject to laws necessary in a democracy to protect public interests and the rights and freedoms of others.

Church leaders and personnel are not only subject, like everyone else, to the laws of the nation where they live, for breaches of which they can be prosecuted or sued for damages, but to international criminal law – a law under which some political and military leaders and several priests and nuns have been convicted and severely sentenced for crimes against humanity. The psychological influence over their followers that is entrusted to any priest is both potent and capable of abuse (dramatically illustrated in the video of Orthodox priests blessing Serb soldiers before they executed their innocent victims at Srebrenica).

So spiritual office can provide no immunity: "benefit of clergy" has long been abolished in Britain, where the first principle of the rule of law is that formulated by Dr Thomas Fuller in 1733: "Be you ever so high, the law is above you". As Lord Bingham explained it earlier this year, "If you maltreat a penguin in the London zoo, you do not escape prosecution because you are the Archbishop of Canterbury."

How, then, can one religious leader be above all laws, whether national or international and whether civil or criminal? His Holiness the Pope, it is asserted by his followers and diplomats, is unaccountable as well as infallible, whether he were to maltreat a penguin on a visit to London zoo or engage in hate-preaching against homosexuals or allow the Catholic Church to operate a worldwide sanctuary for child abusers.

This issue has arisen in the context of the evidence of clerical sex abuse which has emerged in court cases in the US (where court settlements so far exceed $1.6bn, or £1bn); in official reports in the Republic of Ireland that sexual abuse of children by priests was widespread (one judicial report described it as "endemic" in Catholic boys' institutes); and in similar patterns lately emerging in Europe and Australia and Canada. The facts, as church leaders admit with apologies that are now profuse, are shameful and scandalous. But they have consequences far beyond the reputational damage to the church.

The evidence establishes that, at the direction of the Vatican, wrongdoers were dealt with in a manner that protected them from exposure, silenced their victims, aided and abetted some to move on to commit further offences, and withheld evidence of their serious crimes from law enforcement authorities. In effect, the church has in many countries been running a parallel system of criminal justice, unbeknownst to and deliberately hidden from the public, police and parliaments, in which the guilty went unpunished and the lips of their victims were sealed – by forced oaths and confidential legal settlements.

This alternative system of "justice" was overseen for almost a quarter of a century by Cardinal Ratzinger (who in 2005 became Pope Benedict XVI); that so much wrongdoing happened on his watch raises serious questions about his competence as an administrator and a leader. Now he is the commander of the Vatican – in law, its absolute monarch – and he is head of the Holy See, which purports to be a sovereign state. Any grossly negligent leader can be fixed in international law with "command responsibility" for crimes against humanity; most national crim- inal laws make it an offence to conceal evidence of serious crime, and civil law has vicarious liability for those whose negligence has caused or contributed to human suffering. On what basis can it be said that the Pope and the Holy See can avoid investigation for these different forms of legal accountability?

The sexual abuse of children is an outrage – bad enough in ordinary cases of "stranger-danger" paedophilia, and worse when teachers or scout-masters or babysitters or parents abuse the trust placed in them and molest their charges. But worst of all are priest offenders, who groom their victims in the confessional or on retreats or otherwise through the spiritual power vested in them (often absolving the child after they have satiated their lust). Victims describe their assault as, quite literally, soul destroying – damaging their capacity for faith as well as the equilibrium of their future lives.

The evidence suggests that victims of clerical abuse take longer to heal, and are more likely not to heal at all, than others subjected to abuse as children, and the damage is aggravated when they are sworn by the church to "pontifical secrecy" but know that their betrayer is forgiven and free to attack again. This is why the Vatican's responses to the child-abuse scandal, from the time of its first major exposure by The Boston Globe in 2002, has been woeful, first in pretending that it was an entirely "American" problem and then that its incidence in the church is no different from that in other organisations, then blaming "gay culture" or media malice, and never – even today – facing up to the central fact that the church, for many years under the guidance of Cardinal Ratzinger as head of the Congregation for the Doctrine of the Faith (CDF), had become a law unto itself, providing a concurrent system of secret proceedings under which abusive priests found forgiveness, victims were silenced and national law enforcement was frustrated.

The church's response is that hierarchical sex abuse occurs in all religious institutions and in secular schools, and it is wrong to "stereotype" the Roman Catholic priesthood. But the evidence does reliably show a markedly higher level of abuse in Catholic institutions, and in any event the defence misses the point – namely that this church, through its pretensions to be a state, with its own non-punitive canon law, has actually covered up the abuse and harboured the abusers.

Moreover, this particular religion endows its priests with god-like powers in the eyes of children, who are put into their spiritual embrace from the time when they first develop the faculty of reasoning. By the age of seven, very often, Catholic children are taking communion – an awesome experience for them in which the priest performs before their eyes the transubstantiation miracle of changing the bread and wine into the body and blood of Christ, through the authority given him by the sacrament of holy orders. Then, at the same age, the impressionable and nervous child is made to confess his sins – the priest, god-like, dispenses forgiveness.

Father Tom Doyle, an outspoken critic of the Vatican's stance on cases of abuse, explains the phenomenon of child obedience to a priest's sexual requests as induced by "reverential fear" – the victims have such emotional and psychological respect for the abuser that they cannot deny their requests: "Catholics are indoctrinated from their childhood that priests take the place of Jesus Christ and are to be obeyed at all costs, and never questioned or criticised."

A church that puts its children from this early age under the spiritual control of its priests, representatives of God to whom they are unflinchingly obedient, has the most stringent of duties to guard against the exploitation of that obedience to do them harm. That duty includes the duty of handing over those reasonably suspected of child sex abuse to the secular authorities for trial and, if convicted, for punishment. It is this duty that Cardinal Ratzinger, aka Benedict XVI, has for the past 30 years adamantly refused to accept.

Everyone knows that subjecting a child to an act of sexual molestation is a crime deserving of punishment, irrespective of whether it is also a sin requiring penitence. But the Catholic church has treated such behaviour by its priests as a sin deserving only of penance, and has done its best to hide malefactors from the arrest, public trial and sentences of imprisonment that befall most other child molesters who are subject to public justice. What moral blindness has made a church renowned for its benevolence so reluctant to root out and punish all the child abusers in its midst, and even willing – as the evidence clearly shows – to move them on to greener pastures with unsuspecting flocks?

At a sociological level, these questions have only tentative answers, and it is not my purpose (or expertise) to explore them. Certainly, the commitment to celibacy and the church's condemnation of masturbation as a mortal sin set up an unendurable tension for many priests, and senior churchmen have accepted that up to half are in some way "sexually active". This does not explain why so many – on some estimates, from 6 to 9 per cent – are sexually active with children.

The priesthood offers incomparable opportunity and spiritual power for paedophiles, and some have deviously infiltrated it, but most offenders appear to be psycho-sexually immature, often in denial about their condition and hoping that the rigours of the priesthood will protect them from themselves. Instead, they find a brotherhood, a sodality that closes ranks to protect them not from themselves but from the consequences of their actions, because the overriding philosophy of their superiors has been to avoid scandal to the church. This translates into a culture of ready forgiveness for sexual sins.

Richard Sipe, a former priest turned psychiatrist, argues that the prevalence of masturbation in seminaries, and the ready forgiveness in confession, "forms a cycle of guilt that binds clerics and confessors together wherein secret sexual transgressions become minimalised and trivialised – even sex with minors becomes just another sin to be forgiven". He reports that transgressing priests see themselves as privileged, and for their pains and their poverty (many are genuinely kind and hard-working) feel "entitled" to use children for their sexual release. He describes this culture as "altruism in the service of narcissism" – the good they do has a quid pro quo: self-gratification and self-aggrandisement.

The eminent Catholic historian Gary Wills is inclined to agree: "The infantilism of priests, the combined sexual inexperience and prurience resulting from celibacy, the belief that a celibate male is more attuned to spiritual reality than a married man – all this created a framework where sins, when they occurred, had to be denied, the victims had to be blamed, the solution to the problem was simply one of praying harder. Where therapy failed, the confessional would take the sinner with spiritual force beyond the worldly wisdom of psychiatrists."

However this may be, the plain facts that are now emerging show that sexual abuse of children by priests in the Catholic Church has been at a level considerably above that in any other organisation, and that it has been covered up by many bishops with the support and at the direction of the Vatican. The cover-up has included an almost visceral refusal to call in the police, the swearing of complainants and witnesses to utter secrecy, and proceedings under a clandestine canon law biased towards the accused priest and in any event threatening no real punishment for the guilty. Transgressors likely to reoffend have been moved to parishes where their record is not known, or to different countries: some 60 per cent of US priests were "re-assigned" in this way after the first report that they were child abusers.

The "traffic" of paedophile priests to and from the US, especially to Ireland, Mexico and Rome, is well authenticated, and there is emerging evidence of transferring them to parishes in Africa and Latin America where they have come under little or no scrutiny. No explanation has been forthcoming for why this was tolerated at the highest levels of the church, especially during the Papacy of John Paul II and the prefecture of Cardinal Ratzinger at the CDF.

There was negligence, certainly, in turning a blind eye to the mounting crisis, and naïve prejudice in seeking to blame it on "gay culture" or malicious journalists. But something else seems to have been at work in 2001, when Pope John Paul II and his top cardinals agreed to congratulate a French bishop for hiding a paedophile priest from the police and then reassigning him to offend again, and again in 2004 when Pope John Paul brought to Rome and personally blessed a notorious sex offender who had founded a misogynistic religious order.

These and other incidents demonstrate a certain arrogance in the exercise of the power of the statehood that has been vouchsafed to the Holy See – a power to live above the law and to flaunt the impunity that is associated with sovereignty. Whether one religious order alone is entitled to that power is a question that requires close examination.

Then, of course, there is the question of forgiveness or, more specifically, who should do the forgiving, and when? The sexual abuse of children is a serious crime, and whether or not it is a sin (as most serious crimes are) does not matter, on Earth in any event. Forgiveness is generally reckoned to be the prerogative of victims, not of those who employed and tolerated their abusers. At the very least it is a right that belongs to the state, after the abuser has served the punishment that its courts have imposed. But the Catholic Church insists on forgiving its criminal priests when they have confessed and claimed to be repentant and said prayers or done a few charitable works, and that forgiveness has come with a determination to protect them from arrest and trial.

The problem was highlighted by the Pope's apology to his Irish faithful in March 2010: while condemning the sin he could not bring himself to damn the sinners – thrice he told the perpetrators that forgiveness was theirs for the asking and praying and repenting. This is hardly a deterrent to weak men tempted to abuse children. A church which believes in the possibility of redemption for the worst of criminals, even those with a propensity to reoffend, is morally praiseworthy, but not when it protects them from trial and punishment under their national law and provides them with fresh opportunities to rape those who in law and fact are not capable of giving consent.

The error of treating perpetrators of child sex abuse as sinners in need of fatherly counsel, rather than as criminals deserving of punishment, compounded by the motive of protecting the church's reputation at any cost, has been buoyed by the belief that, because the Holy See and its immune leader can do no wrong in the eyes of diplomatic law, they can do no wrong.

There are few recorded instances of attempts to hold the Vatican itself, or its pontiff, liable for the church practices of hiding paedophile priests, or covering up their crimes, or for moving them on to different parishes despite knowing of their predisposition to reoffend. In some countries there have been civil actions for damages against the direct employers of the offending priests, ie the bishops and their dioceses. These have mainly been settled by insurers, usually on "hush money" terms which enjoin victims to perpetual silence in return for compensation. The payments have been considerable and in some cases massive (especially in the US with its class-action suits), made by insurers for fear of the angry reaction of jurors not only to evidence of the abuse but also to the negligence and connivance of the church authorities.

These settlements are unsatisfactory for many victims, because they do not provide the closure that comes from catching the "big fish", ie holding the Vatican accountable for designing and directing the perpetrators' escape route through the parallel justice system of canon law. Moreover, some uninsured US dioceses have put themselves into bankruptcy so as to avoid paying heavy damages, hence victims have no option but to look to Rome for compensation.

It is in this context that the Pope and the state-cum-church he heads (the Holy See) have been proposed as defendants in civil actions. But the US State Department has intervened, issuing a "suggestion of immunity" (which is not a "suggestion" at all, but a direction that American judges are bound to accept).

Since the Holy See is a state, says this certificate, the Pope has "head of state immunity": he can never be sued, nor prosecuted, and the Holy See has state immunity, which (with certain exceptions) removes its liability for civil wrongs. This "statehood" is attributed to the Holy See on the strength of its ownership of a block of land in Rome. It gives the Roman Catholic Church all sorts of advantages denied to other religions and to NGOs.

Most significantly, the Holy See's status at the UN as the only "non-member state" means it can do pretty much all that a state member can do, except vote. And its army of diplomats exploits this privileged status relentlessly, in UN conferences and agencies, to promote its dogmas – to the diminution of women and divorced couples and the demonisation of homosexuals.

Statehood enables it to obstruct efforts to combat HIV/Aids by promoting the use of condoms, and to condemn any family planning measures that smack of toleration of abortion (even to save the life of the mother), or IVF, or artificial insemination, or surrogate motherhood, or embryo transfer, or even pre-natal scans. The Catholic Church is fully entitled to advance these views, which accord with those of some Middle Eastern states (the Holy See is frequently in alliance at the UN with Libya and Iran), but it has no right to preferential treatment in doing so if it is not a state.

That issue should be decided objectively, and not simply by the actions of nations which have, usually for domestic political reasons, sent diplomatic representatives to the Holy See and received papal nuncios in return. The Catholic Church must be answerable for the way it has sheltered paedophile priests: its pretensions to statehood should not give it immunity in international law nor in international affairs more than its due as one of a number of respected world religions.

The clerical sex abuse scandal has most visibly raised these issues, but there are other laws and other problems for political prelates who, for whatever theological reason, encourage viciousness or violence or discrimination within the community. Freedom of religion does not protect hate-preaching, as some extremist mullahs have found when convicted at the Old Bailey. In 2009, a number of American evangelists and a Texas talk-show host were barred from Britain for fear that they would stir up homophobia, and this year a religious eccentric was arrested in a city centre for expressing the view to a passing policeman that homosexuality was wrong. Sensibly, the authorities decided not to pursue a prosecution: this was one oddball shouting "Fire" in an empty theatre.

But Pope Benedict XVI – who arrives in Britain next week on the first papal visit to the UK since that of John Paul II in 1982 – is no voice in the wilderness. Were he to repeat in a public sermon his oft-stated view that homosexuality is "evil" and gays are all people with defective personalities, he would be using the full force of his spiritual office to vilify a section of the population protected by equality legislation and public-order law.

There is, of course, a line which should normally be drawn in favour of free speech, although the power of papal denunciation is far greater than that of banned Islamic and American evangelists even (in fact, especially) when expressed in decent language to religious congregations. If Pope Benedict XVI were to threaten to unleash the full force of views that have been accused of inciting "macho muggings" of gays in Brazil and other Catholic countries, the Home Office could not, consistently with its decisions in other cases, permit his entry.

But it would be inconceivable for the UK government to ban the Pope: on the contrary, they have invited him on a "state visit", for which UK taxpayers must pick up half of the bill, currently estimated at £20m – an imposition that could not be exacted were he not recognised as the head of a state. He will, it is said, emerge at Edinburgh from the papal plane resplendent in his red satin "head of state" robes ("trimmed with fur on top of a rochet, and wearing the embroidered papal stole") for his meeting with a fellow head of state – Queen Elizabeth II (who must wear black – only Catholic queens can meet the Pope in white) and will reappear the next day in his more modest "head of church" white robe to conduct a public mass. In the latter case, his vestments deserve respect, but in the former, it is time to point out that the emperor has no legal clothes.

Extracted from 'The Case of the Pope: Vatican Accountability for Human Rights Abuse', by Geoffrey Robertson QC, published by Penguin, £6.99. To order a copy for the special price of £6.64 (free P&P) visit www.independentbooksdirect.co.uk

Born in Australia in 1946, Geoffrey Robertson QC is the founder and head of Doughty Street Chambers, the UK's leading human-rights practice. He has appeared as counsel in many landmark cases – and led the defence in the Matrix-Churchill trial which exposed the "arms-to-Iraq" scandal. The author of books including Crimes Against Humanity – The Struggle for Global Justice (1999) and The Tyrannicide Brief (2005), he lives in London with his wife, the writer Kathy Lette, and their two children.