CharonQC has recently reported that well-known Atheists (albeit the more accurate term is Rationalists) Richard Dawkins and Christopher Hitchens, with the aid of noted English lawyer, Geoffrey Robertson QC, intend to have the Pope arrested at his upcoming visit to Great Britain. (listen also to the excellent podcast interview of Carl Gardner by CharonQC here).
Not so fast, says Dapo Akande at EJIL: Talk! , who argues that the Pope is a Head of State and afforded state (or sovereign) immunity from any charges of crimes against humanity:
“ However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.
since the Vatican is a State then the head of that State, the Pope, is entitled to head of State immunity under international law. This immunity is recognised by Section 20 of the UK’s State Immunity Act which extends to “a sovereign or other head of State”, the same immunities accorded to diplomats. These immunities are absolute in the case of criminal proceedings. In other words there are no exceptions to the immunity. The International Court of Justice’s decision in the Arrest Warrant Case (Congo v. Belgium) 2002 confirms that this type of immunity continues to apply even when it is alleged that the head of State has committed international crimes. So an allegation that the Pope may be responsible for crimes against humanity will not suffice to defeat his immunity. It should be noted that the immunity of a head of State from criminal prosecution in foreign States is there for very good reasons. In the first place, those State agents charged with the conduct of international relations are given immunity in order to allow international relations and international cooperation to continue to take place. Secondly, the immunity of foreign heads of States assures that just as States may not engage in regime change by armed force they may not achieve this end by criminal prosecutions either. It respects the fundamental autonomy of each State to determine who it is governed by.”
Yes, But Can You Still Sue the Pope?
Does this mean that you also can’t sue the Pope? Not necessarily. While state immunity is recognized as a defence in tort claims (see my previous post Only Time Will Tell: Canadian and American approaches to State Immunity ), in Doe v. Holy See, the U.S. 9th Circuit Court of Appeals partially affirmed and partially reversed a 2006 Oregon federal district court decision rejecting the Vatican’s sovereign immunity defense in a lawsuit brought by a victim of a Roman Catholic priest’s sexual abuse against it.
In Doe v. Holy See, the per curiam opinion held that while denial of immunity to a foreign sovereign is a final order subject to appeal, the plaintiff’s cross-appeal on whether the claim falls within the commercial activity exception to the Foreign Sovereign Immunities Act was held to be interlocutory and not subject to appeal. The court held that the plaintiff’s respondeat superior claim based on the priest’s actions came within the tortious act exception. The court acknowledged that the plaintiff had clearly alleged that the priest was an employee of the Holy See, acting within the scope of his employment, when he molested the plaintiff, but the court concluded that:
“[the plaintiff] Doe’s claims against the HolySee for negligent retention and supervision and failure to warn cannot be brought under the tort exception because they are barred by the FSIA’s exclusion for discretionary functions, § 1605(a)(5)(A).”
Citing Fearing v. Bucher, 977 P.2d 1163 (Or. 1999) and Minnis v. Oregon Mut. Ins. Co., 48 P.3d 137 (Or. 2002), on the test for “scope of employment” relating to institutional sex abuse claims, the Oregon court held that:
“ Doe’s allegations meet this standard. Doe has asserted that he “came to know Ronan as his priest, counselor and spiritual adviser,” and that Ronan used his “position of authority” to “engage in harmful sexual contact upon” Doe in “several places including the monastery and surrounding areas in Portland, Oregon.” His allegations are thus very similar to those in Fearing. 977 P.2d at 1166.
 Under Oregon law, then, Doe has clearly alleged sufficient facts to show that his claim is based on an injury caused by an “employee” of the foreign state while acting “within the scope of his . . . employment,” as required to come within the FSIA’s tortious act exception. § 1605(a)(5). The Holy See is therefore not immune from Doe’s respondeat superior claim. “[citations omitted]
The Ninth Circuit court, however, rejected the argument that the tortious act exception provided jurisdiction over the plaintiff’s negligent hiring, supervision, and failure to warn claims because they were barred by the discretionary function exclusion. (Doe v. Holy See,
at pp. 2575-2578).
The majority declined to consider the commercial activity exception and remanded the case to the district court for a determination of whether the plaintiff is able to prove these allegations.
Judge Fernandez, concurring, observes,
“I think that the problem this case seems to present lies in the fact that Holy See is an unusual type of foreign sovereign. Most governments do, indeed, exist to afford their citizens a degree of physical protection and guidance, so that they may thrive in this world. Holy See is more focused on the next world, and that makes a universe of difference. Because of that, Holy See’s sovereign activities are not simply the passage of mortal laws and the enforcement of those. They, basically, encompass the furnishing of the kinds of services that only Holy See can give: its own kind of religious help, guidance and counseling. It may do more than most sovereigns do, but it is not engaged in the market or in commerce. In short, Holy See may not be your typical sovereign, but neither is it your typical merchant. Does that lead to some kind of impasse? Of course not. It leads back to the statute itself. Holy See is a foreign state and the commercial activity exception does not strip its immunity from it. Something else may do so, but not that exception. We hierophants of the law are adept at redefining ordinary concepts, but it is no more appropriate to declare that religious services are commercial activities than it would be to declare that ponies are small birds. Therefore, if we had jurisdiction I would not apply the commercial activity exception to this case.[citations omitted]
Judge Berzon, dissenting in part, argued that the court has subject-matter jurisdiction over the commercial activity exception as an alternative ground on appeal:
“The district court’s discomfort notwithstanding, under well-established FSIA principles and our own binding case law the employment relationship that existed between Ronan and the Holy See does constitute “commercial activity of a foreign state.’”
According to SCOTUSBlog
, the Holy See’s petition for certiorari remains in judicial purgatory:
“The Vatican case in which the Court invited the U.S. Solicitor General to weigh in on an attempt by the Holy See to head off a damages lawsuit in federal court in Oregon over alleged sexual abuse by a parish priest in Portland in 1965 and 1966. The lawsuit was filed by an individual identified in court papers only as “John V. Doe.” The lawsuit claimed that the Foreign Sovereign Immunities Act, which normally shields foreign governments from damage claims in U.S. courts for official actions, allows such a case to go forward if a government was responsible for one of its employees’ conduct, taken as part of their regular work.
The Vatican is formally a foreign government. The Ninth Circuit Court ruled that the “John Doe” lawsuit could go ahead, relying on an Oregon law that makes an employer responsible for an employee’s misconduct, if the employee had been placed in a position that later led to the wrongdoing — even when the wrongdoing itself was outside the scope of the employee’s job.
The Supreme Court will await the federal government’s response before deciding whether to hear the case and rule on it. There is no deadline for the Solicitor General’s response.”
Suing the Pope in Canada?
In John Doe v. Bennett,  1 S.C.R. 436, 2004 SCC 17, the Supreme Court of Canada considered the issue of church-related vicarious liability in regard to claims made against a Roman Catholic priest who sexually assaulted boys in his parishes in Newfoundland. The plaintiff-respondents sued, inter alia, the appellant episcopal corporation and the Roman Catholic Church. The trial judge found the appellant Episcopal corporation vicariously liable but dismissed the claim against the Church. The Court of Appeal upheld the dismissal of the action against the Church. The majority found the appellant directly but not vicariously liable.
In determining whether there is a sufficient connection in the case of intentional torts to establish vicarious liability, the Supreme Court of Canada reiterated the factors set out in Bazley v. Curry,  2 S.C.R. 534 at para. 41:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power
(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.
McLachlin, CJ adds:
“The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: [K.L.B. v. British Columbia,  2 S.C.R. 403, 2003 SCC] supra, at para. 22. At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.”
Chief Justice McLachlin did not foreclose on vicarious liability claims against the Roman Catholic Church (albeit this is a misnomer as the proper party defendant would be The Holy See), only that the record before the Court was inadequate:
“35 The Roman Catholic Church is a religious organization operating in many countries of the world, including Canada. It possesses a hierarchical structure with the Pope at its apex, and works through diverse orders, groups and individuals. On the record before us, it is impossible to answer the questions as to procedure and remedies for recovery which the claim against the Church raises. The record does not provide the clear picture of the details of the Church’s hierarchy or of the relationship between the Church and its constituent parts, necessary to delineate the boundaries of the institution, the nature of its legal status, and its potential liability. Nor does the record offer much assistance on the procedural questions that would need to be answered before the Church, as a global institution, could be found liable for the wrongs committed by Father Bennett in the diocese of St. George’s. Although named as a party, the Church was not represented during the proceedings in this case, and issues relating to procedure and remedies for recovery were left unexplored.
36 Without suggesting that the full organizational structure of the Roman Catholic Church and its relations with its various constituent organizations must be apparent on the evidence before a finding of Church liability could be made, I am satisfied that the record before us is too weak to permit the Court in this case to responsibly embark on the important and difficult question of whether the Roman Catholic Church can be held liable in a case such as this.”
In my personal opinion, absolute immunity is inappropriate in cases where the Vatican or Holy See directly aids and abets the cover-up of sexual abuse by its priests by transferring them to a different parish in order to avoid public scrutiny. State immunity for tortious acts by priests, bishops or cardinals (or any other employees of a religious organization) is not sacrosanct. The commercial activity exception falls squarely in the respondeat superior (employer-employee) context, irrespective of the nature of the work or services performed, whether or not it is “good works” or “salvation”.
Lucian C. Martinez, Jr, “Sovereign Impunity: Does the Foreign Sovereign Immunities Act Bar Lawsuits Against the Holy See in Clerical Sexual Abuse Cases?” (2008) 44 Texas Intl LJ 123;
Factum of the Intervener, The Canadian Conference of Catholic Bishops which provides an overview of the Vatican and Holy See’s ecclesiastical and administrative hierarchy;
For another institutional sexual abuse case discussing vicarious liability, see, E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60,  3 S.C.R. 45.