Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, October 3, 2014

First they came…; oh, but they are already here…



Thanks to our friend and colleague Robert George for his post yesterday on the evolving difficulties facing Gordon College as it strives to live by Christian moral principles in a hostile climate. As a son of the greater Boston area who has returned home, I have been following closely the pressure that public and private institutions have been putting on Gordon College to disavow Christian morality and embrace whatever are the acceptable standards of the present age—as whimsical as they are. Professor George’s post about the travails of Gordon College also asks what we Catholics are prepared to do to assist fellow Christians in the face of peril. After all, as Martin Niemöller argued in his lectures about the threats posed to Jews, Socialists, Unionists, and anyone else who posed counterpoints to National Socialism, those seeking the capitulation of Gordon College may similarly seek the capitulation of other Christian institutions, including the Church herself, to do the bidding of the secular but untethered culture as Professor George notes.

However, Catholic institutions are already targeted by the sirens of the present age as was noted by Professor John Breen in his recent post about the California institutions that use the moniker “Jesuit” in the context of the HHS mandate and other state-controlled requirements for health insurance. Further evidence of the contra-Catholic campaign is found in the local Boston press. Back on September 1 of this year, James Carroll, a frequent opinion contributor to the Boston Globe, published an op-ed piece entitled “Abolish Vatican Statehood.” In his opinion, Mr. Carroll vigorously argues a position regarding the Wesolowski case on which I commented in late August [HERE] for “denying” the Vatican statehood. I will be amongst the first to concede that Mr. Carroll and many others hold the views he expressed, but these views are both misinformed and in error. [In the way of offering some background on why I take this position, readers may wish to consult my essay on “The International Personality and Sovereignty of the Holy See” Download 50CathULRev291 International Personality and Sovereignty of the Holy See].

Today, the Boston Globe by way of its lead editorial, “Vatican Trial for Abuse Suspect Undercuts Zero-Tolerance Goal” contends that “the church [sic] still seems stuck in the habit of protecting clergy members from secular criminal justice systems”. If anyone is stuck anywhere, it just might be the Globe by its failure to acknowledge the number of Catholic clergy who have faced criminal prosecution in civil tribunals in recent years. The Globe editorial implies that the “Vatican trial” of Josef Wesolowski furthers the alleged injustice, i.e., protecting clergy from the rule of law, due process, and justice. Is there a sound basis for the Globe’s allegations and arguments? My answer is “no.” The contentions presented by Globe in support of its questionable position are erroneous. Nonetheless, they offer evidence that pressure is on the Catholic Church to amend her ways that suit the culture of the present age that is often reflected in the opinions heralded by the Globe. Let me briefly explain why this is the case.

First of all, there is an implicit notion in the Globe editorial that only “secular” criminal justice systems are legitimate. Why should this be true if some other juridical systems that are not “secular” are capable of applying impartially respected legal principles in the context of due process that furthers the application of justice? The Holy See has been, is, and will be a sovereign power and member of the law of nations—just like the United States—which owes obligations to fellow sovereigns and natural persons but also owes obligations to the rule of law including its own.

The Globe editorial, nevertheless,  appears ever so confident in making a shaky claim that, “the Vatican’s decision to handle Wesolowski in its own justice system is hardly a guarantee that justice will be done.” This is an extraordinary claim; moreover, there is nothing offered by the Globe other than its insinuation that the Holy See will not be true to the rule of law, due process, and the obtaining of justice for all involved. The Globe simply asserts that only “secular criminal justice systems” are the only competent judicial bodies because only they can send the message of “zero tolerance for perpetrators of abuse.” It strikes me that what the Holy See has done so far regarding Mr. Wesolowski sends a message in stark contrast to that offered by the Globe.

By making its claims about the juridical mechanisms of the Holy See, the Globe fails to take account of the fact that sending states, in this case the Holy See, have the first crack at their diplomats who have allegedly committed criminal acts in the receiving states consistent with the law of nations. If there is any doubt about this, we might refresh our recollections of the matter involving American Raymond Davis who allegedly killed two Pakistani nationals in Pakistan in early 2011. The United States insisted that he was an American diplomat (in the words of President Obama, “our diplomat”; moreover, Secretary of State Kerry sought the release of Mr. Davis with the promise that the U.S. Department of Justice would “investigate” the matter) although there is evidence suggesting that he was at the time a CIA operative (see more HERE). Throughout the Davis controversy, the United States maintained that Mr. Davis, like Mr. Wesolowski, enjoyed diplomatic immunity under the terms of the Vienna Convention on Diplomatic Relations. Other Americans on diplomatic mission for the United States have been protected by the Vienna Convention on Diplomatic Relations, e.g., the 1998 case involving Mr. Douglas Kent who allegedly hit a young Russian with his car; Mr. Kent was protected from Russian prosecution by his diplomatic immunity (the case also involved other questions about whether Mr. Kent was acting within the scope of his official duties and therefore immune from civil suit).

From these illustrative cases involving American diplomats or those argued to be American diplomats, it would seem that the United States has used diplomatic immunity to protect its citizen-employees. The Globe does concede that the Holy See stripped Mr. Wesolowski of his diplomatic immunity which makes him liable to due process. In addition, it is clear the United States has relied on its courts or other judicial organs when foreign sovereigns have protested the use of diplomatic immunity used to protect Americans from the criminal processes of the receiving state. On this point, it is relevant to recall the evolving concept of “complementarity” in international law which recognizes that the state principally involved in serious international criminal matters has the initial right and obligation to apply its law to its citizens who have been alleged to have committed an offense in the territory of the receiving sovereign.

This is precisely what the Holy See has done regarding Mr. Wesolowski. Furthermore, there is no indication that the Holy See has refused to turn Mr. Wesolowski over to the authorities of the Dominican Republic and Poland once the Holy See’s prosecution has been completed.

So, to suggest as the Globe editorial does that justice can only be done in a “secular criminal justice system” ignores the rule of law itself which the Holy See seems presently to be following. In addition, the Globe presumes without any further justification that the judicial bodies of the Vatican cannot “guarantee that justice will be done.” This is not a rational argument based on objective intelligence comprehending the intelligible reality of the situation which has emerged so far in the Wesolowski case. Rather, it seems to be a means of pressuring the Holy See to do things the ways which further the interests of the Boston Globe but sacrifice Christian morality and general justice.

If this is the case, then the “new orthodoxy” to which Professor George refers is already on the steps of the Church and the message of no dissent from this orthodoxy, notwithstanding what the law of nations and the rule of law otherwise suggest, is loud and clear. To argue, as the Globe does, that the only “legitimate” organs are secular ones that are “outside the Vatican” furthers the transparency of my point.


RJA sj


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