International & Transnational Criminal Law

Update on Archbishop Wesolowski Prosecution

 

On June 14, I blogged about the case of Archbishop Jozef Wesolowski, former Papal Nuncio to the Dominican Republic, who was recalled by Pope Francis after allegations surfaced that he had sexually abused young boys in that country. Wesolowski is also under criminal investigation in Poland regarding what are apparently similar allegations. In that post I noted the somewhat slow pace of the matter and called on the Vatican to move it forward and release information about what progress is being made.

It turns out that the wheels had been turning: on June 27 it was reported (here, here and also here) that Wesolowski has been "defrocked" by the Vatican, the colloquial term meaning that he has been laicized and is no longer a priest. This is the harshest penalty that can be imposed on a Catholic priest under canon law, and is consistent with Pope Francis's announced policy that the Vatican will now have "zero tolerance" for sexual abuse on the part of its clergy.

More importantly, perhaps, the Vatican also announced that once any appeal of the laicization order is complete (Wesolowski has two months to appeal, no word yet on whether one has been filed), he will then be tried under the Vatican's own criminal laws, which were recently updated to include more modernized criminal offences. It seems, from the coverage, that these charges relate only to the alleged offences in the Dominican Republic; CBC's coverage quoted a Polish prosecutor as saying the current state of affairs does not change anything regarding their investigation "for the time being."

While I'm quite certain that none of this was motivated by the fact that a Canadian law professor was waxing critical on his blog, this is a heartening development in a very interesting case. There are still legal and practical issues. The criminal offences with which Wesolowski is charged, as noted, are of recent origin, and a number of the media stories have indicated there is uncertainty as to whether they could be applied to him retroactively. This is perhaps complicated by the fact that not only are the offences new, but they are clearly being applied on the basis of extraterritorial jurisdiction, which I would infer is probably also a fairly new concept in Vatican "criminal law."

On the other hand, the Vatican has always applied canon law on an extraterritorial basis, asserting jurisdiction over its clergy the world over without any complaint from states. And while the retroactivity issue is probably being fed to the media by Wesolowski's lawyer (whomever that might be), presumably Vatican officials have put their minds to counter-arguments -- for example, that canon law as applied in the Vatican already applied to these kinds of offences, and this is only an update of that law; or that child sexual abuse is a crime known to practically every legal system in the world and was criminal at the times and in the countries in which the conduct occurred, and it is thus consistent with international human rights law to try people on this basis. This would, in fact, possibly make such a prosecution lawful under the Canadian Charter of Rights and Freedoms, pursuant to s. 11(g).

That said, some of the concerns I raised in the previous post are still live. Since there will be evidence from foreign countries needed, what kinds of investigative and evidence-sharing arrangements are in place? Does the Vatican actually have the capacity to conduct a criminal trial, or conduct it effectively? How solid are these new and untested criminal laws? Will they bring in prosecutors from the international community, perhaps from European states? What kinds of fair trial rights does the accused have? What about the Polish investigation? Should Wesolowski be extradited there, and does the Vatican have the legal machinery in place to do it?

There is little doubt, now, that there is a solid determination on the part of the Catholic hierarchy to ensure justice is done in this case, given the energy being put into it and the (albeit relative) level of openness that the Vatican has shown on it. It is a case that is already being closely watched by the international community, in particular by the UN Torture Committee and the CRC Committee which both raised the matter in their evaluations of the Vatican over the last two years. It is a fascinating case, which will test the resolve of the current Pope and his administration to respond to sexual abuse claims; and from an academic point of view, one worth watching simply due to the legal issues raised. Consider: this is a prosecution of a dual-national who had a form of diplomatic immunity in the locus state, on the basis of extraterritorial criminal jurisdiction, under the criminal laws of an entity which is not even a state. Very, very interesting stuff.

ECCC Convicts Khmer Rouge Officials

 

As was reported last week, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has convicted two of the top Khmer Rouge officials -- Nuon Chea and Khieu Samphan -- of crimes against humanity. This is the second case which has emanated from the ECCC, the first being that of Duch, which saw decisions from the Trial Chamber in 2010 and the Supreme Court Chamber (on appeal) in 2012. The judgment and a summary can be found here.

A good factual background for the case can be found on the website of the International Criminal Law Bureau, so I will confine this post to a few legal observations. The decision from a legal perspective does not, for the most part, present any revolutionary thinking, as most of the international criminal law concepts had already been explored in the Duch case. The overarching elements of crimes against humanity as well as the various manners of committing such crimes, such as planning, instigating, ordering, aiding and abetting, as well as JCE and superior responsibility, follow closely the law as set out in the 2010 Trial Chamber judgment. The same can be said about the underlying crimes of murder and persecution.

However, the latest judgment did break some new ground by also examining the crimes of extermination and certain aspects of "inhumane acts." In particular, the foray into inhumane acts allowed the judges in this case to make useful statements about the specific acts of enforced disappearance, forced transfer and attacks against human dignity. While enforced disappearances and forced transfer are now included in the Rome Statute as specific crimes and while attacks against human dignity had been given some attention in the ICTR jurisprudence, the challenge for the ECCC judges (and of course raised by the defence with respect to all the underlying crimes) was to determine whether these crimes existed in the seventies, the time for which the ECCC has jurisdiction. This is the area where the judgment is especially interesting, as it not only extrapolates backwards in time from ICTY and ICTR jurisprudence but also points out that the crimes of enforced disappearance and forced transfer were already known and discussed in post-WWII judgments, including the International Military Tribunal in Nuremberg. 

One other item of interest is that the August 7 judgment mentions the controversy with respect to the specific direction requirement for aiding and abetting, which had been introduced by an ICTY Appeals Chamber in 2013 but rejected by another panel of that same Chamber a year later. The ECCC comes to the conclusion that the approach it took in its first judgment was the correct one after all; the ECCC has now joined the Sierra Leone Special Court and the ICC at the international level (and the Supreme Court of Canada in the Ezokola decision in 2013) in welcoming the most recent direction by the ICTY.

Warm thanks to my friend and co-author, Joseph Rikhof, for bringing the decision to my attention and discussing it with me.