http://www.independent.co.uk/news/uk/home-news/judges-warning-over-europes-legal-power-1934061.html
Britain's most senior law official attacks influence of Court of Human Rights
By Robert Verkaik, Law Editor
Friday, 2 April 2010
British courts must have the final say over European human rights law, the country's most senior judge has warned.
In an unprecedented defence of Britain's sovereignty, the Lord Chief Justice, Lord Judge, said that the European Court of Human Rights in Strasbourg is threatening to "assume an unspoken priority over [UK] common law".
In a speech to Inner Temple, published yesterday by the Directorate of Judicial Offices for England and Wales, he asked: "Are we becoming so focused on Strasbourg and the Convention [European Convention on Human Rights] that instead of incorporating Convention principles within and developing the common law accordingly as a single coherent unit, we are allowing the Convention to assume an unspoken priority over the common law?"
The judge continued: "We must beware. It would be a sad day if the home of the common law lost its standing as a common law authority." His intervention, although not intended to be politically controversial, will be seized upon by Eurosceptics who have long argued that judges in Strasbourg have too much influence on affairs in Britain. "What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court," said Lord Judge.
Jodie Blackstock, an expert in European law at the civil rights group Justice, said: "The suggestion that we are losing the common law ignores our position in the Council of Europe. It also ignores the approach the Supreme Court has taken to Strasbourg, interpreting its decisions in light of our particular law and procedure."
But Lord Judge warned: "Very often, too often, we are asked to consider decisions from Strasbourg – you see them all listed – which have already been considered or must have been considered in the House of Lords or the Supreme Court. That is the decision which binds us.
"After all, once the Supreme Court has considered decisions of our Court of Appeal, the authority of those decisions evaporates. Who quotes a decision of a Court of Appeal once the Supreme Court has considered the case? No one. Surely we should apply the same rigour to decisions from Europe."
He also warned that changes brought about by the Lisbon Treaty will have a "significant impact" on criminal cases in the UK. The British judiciary, the judge said, will need to be trained to deal with these developments. He predicted that in 20 years' time there would be a very different judiciary to the one today.
But he warned against following the continental model of a "career judiciary". Instead, he urged a new approach to the appraisal system, by assessing part-time judges in court before they are given full-time posts.
The Tory leader David Cameron has said he will act to prevent EU judges gaining greater control over the British criminal justice system by negotiating deals to protect it.
Ms Black said: "The legislation being considered by the EU will build upon Convention rights to create practical, binding measures. This is a positive step. We have nothing to fear from the Luxembourg Court [of Justice] interpreting legislation such as this. For example, the EAW [European Arrest Warrant] is ripe for reform and a ruling by Luxembourg."
2010年4月9日 星期五
ASEAN new dispute rule to add pressure on Myanmar
http://www.thejakartapost.com/news/2010/04/06/asean-new-dispute-rule-add-pressure-myanmar.html
ASEAN new dispute rule to add pressure on Myanmar
Lilian Budianto , The Jakarta Post , Jakarta
Tue, 04/06/2010 10:19 AM
World
The new ASEAN dispute settlement mechanism will increase the pressure for Myanmar to uphold its human rights commitment ahead of its upcoming election, says a commissioner for the grouping’s rights body.
Rafendi Djamin, Indonesian commissioner for the ASEAN Intergovernmental Commission for Human Rights, said the dispute settlement mechanism (DSM) was an option Jakarta could resort to when the military junta refused to hold an inclusive election, which includes the opposition party leader.
The dispute settlement mechanism, which will be signed by 10 ASEAN member states in its 16th ASEAN Summit in Vietnam this month, allows members disputing the implementation of the ASEAN Charter to take in a third party to help them solve differences.
The DSM, however, does not rule on sanctions for non-compliance members.
“There have been many negotiations concerning how we should implement the ASEAN Charter, including the establishment of its human rights body and the standard of rights enforcement as mentioned in the Charter,” Rafendi said.
“Members are forced into compromising their standard level because of the differences.
“But with the new DSM, we have more options to push countries, which block the way to move forward in rights enforcement, into obedience mode,” he said.
Rafendi said the credibility of the result of Myanmar’s election could be challenged and taken to DSM level if members found that the junta did not commit to upholding human rights principles as enshrined in the ASEAN Charter.
The new poll regulations issued by the junta has denied a convict to take part in its first election in two decades — a movement observers said would prevent Myanmar opposition party leader Aung San Suu Kyi from running for office.
Surin Pitsuwan, ASEAN secretary-general, said there was no certainty about whether Suu Kyi could participate in the election but added the grouping had been increasing efforts to ensure that the elections would be inclusive.
“The issues have been discussed in various forums in ASEAN but it will be interesting to see what the end result is,” said Surin on the sidelines of a symposium on regional conflict at the ASEAN Secretariat on Monday.
“The constitution and legislation are there but we do not have clear indication about how the issue will develop.”
The DSM allows four options to settle disputes arising from different interpretations of the ASEAN Charter implementation.
They are mediation, conciliation, good office and arbitrary measures.
Human rights enforcement is said to be the provision in the Charter that is most susceptible to disputes, considering the different levels of rights enforcement and democratization among the 10 members.
“There are many ways to intervene in ASEAN affairs,” said Jusuf Wanandi, board of director member of the Centre for Strategic and International Studies, at the symposium. “But the question is how willing are we to undergo the intervention? Because mostly it is civil groups, and not so much the government, that is pushing for a reform in Myanmar.”
ASEAN new dispute rule to add pressure on Myanmar
Lilian Budianto , The Jakarta Post , Jakarta
Tue, 04/06/2010 10:19 AM
World
The new ASEAN dispute settlement mechanism will increase the pressure for Myanmar to uphold its human rights commitment ahead of its upcoming election, says a commissioner for the grouping’s rights body.
Rafendi Djamin, Indonesian commissioner for the ASEAN Intergovernmental Commission for Human Rights, said the dispute settlement mechanism (DSM) was an option Jakarta could resort to when the military junta refused to hold an inclusive election, which includes the opposition party leader.
The dispute settlement mechanism, which will be signed by 10 ASEAN member states in its 16th ASEAN Summit in Vietnam this month, allows members disputing the implementation of the ASEAN Charter to take in a third party to help them solve differences.
The DSM, however, does not rule on sanctions for non-compliance members.
“There have been many negotiations concerning how we should implement the ASEAN Charter, including the establishment of its human rights body and the standard of rights enforcement as mentioned in the Charter,” Rafendi said.
“Members are forced into compromising their standard level because of the differences.
“But with the new DSM, we have more options to push countries, which block the way to move forward in rights enforcement, into obedience mode,” he said.
Rafendi said the credibility of the result of Myanmar’s election could be challenged and taken to DSM level if members found that the junta did not commit to upholding human rights principles as enshrined in the ASEAN Charter.
The new poll regulations issued by the junta has denied a convict to take part in its first election in two decades — a movement observers said would prevent Myanmar opposition party leader Aung San Suu Kyi from running for office.
Surin Pitsuwan, ASEAN secretary-general, said there was no certainty about whether Suu Kyi could participate in the election but added the grouping had been increasing efforts to ensure that the elections would be inclusive.
“The issues have been discussed in various forums in ASEAN but it will be interesting to see what the end result is,” said Surin on the sidelines of a symposium on regional conflict at the ASEAN Secretariat on Monday.
“The constitution and legislation are there but we do not have clear indication about how the issue will develop.”
The DSM allows four options to settle disputes arising from different interpretations of the ASEAN Charter implementation.
They are mediation, conciliation, good office and arbitrary measures.
Human rights enforcement is said to be the provision in the Charter that is most susceptible to disputes, considering the different levels of rights enforcement and democratization among the 10 members.
“There are many ways to intervene in ASEAN affairs,” said Jusuf Wanandi, board of director member of the Centre for Strategic and International Studies, at the symposium. “But the question is how willing are we to undergo the intervention? Because mostly it is civil groups, and not so much the government, that is pushing for a reform in Myanmar.”
Act of state doctrine, the Moçambique rule and the Australian Constitution in the context of alleged torture in Pakistan, Egypt and Guantanamo Bay
http://conflictoflaws.net/
--------------------------------------------------------------------------------
Act of state doctrine, the Moçambique rule and the Australian Constitution in the context of alleged torture in Pakistan, Egypt and Guantanamo Bay
Posted: 08 Apr 2010 11:46 PM PDT
In Habib v The Commonwealth [2010] FCAFC 12, a Full Court of the Federal Court of Australia considered whether the applicant’s claim against the Commonwealth for complicity in alleged acts of torture committed on him by officials of the governments of Pakistan, Egypt and the United States was precluded by the act of state doctrine. The Court allowed the claim to proceed. In doing so, the Court has, it seems, concluded that the act of state doctrine cannot, consistently with the Australian Constitution, preclude an action against the Commonwealth based upon an allegation that the Commonwealth has exceeded its executive or legislative power.
The applicant was allegedly arrested in Pakistan a few days before the US commenced military operations in Afghanistan in October 2001. He alleged that while there, and afterwards in Egypt, he was tortured by Pakistani and then Egyptian officials, with the knowledge and assistance of US officials. He alleged that he was then transferred to Afghanistan and later Guantanamo Bay, where he was tortured by US officials. He alleged that Australian officials participated in his mistreatment. The applicant claimed damages from the Commonwealth based on the acts of the Australian officials. His claim was that the acts of the foreign officials were criminal offences under Australian legislation (which expressly had extraterritorial effect), that the Australian officials aided and abetted those offences, that this made them guilty of those offences under the Australian legislation, that committing those offences was outside the Australian officials’ authority and that the Australian officials therefore committed the tort of misfeasance in public office or intentional infliction of indirect harm.
The Commonwealth contended that the Court could not determine the applicant’s claim, because it would require the Court to sit in judgment on the acts of governments of foreign states committed on their own territories. This was said to infringe the act of state doctrine, as explained in decisions such as that of the United States Supreme Court in Underhill v Hernandez 168 US 250 (1897) and the House of Lords in Buttes Gas and Oil Co v Hammer [1982] AC 888. The doctrine has been approved by the High Court of Australia: Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30; [1988] HCA 25.
The Full Court rejected the Commonwealth’s contention. Jagot J (with whom Black CJ agreed) reviewed the US and UK cases and concluded that they recognised circumstances where the act of state of doctrine would not apply. In particular, she said that the UK cases supported the existence of a public policy exception where there was alleged a breach of a clearly established principle of international law, which included the prohibition against torture. She considered that the Australian authorities were not inconsistent with this approach and that it applied in this case. She also considered that the same result would be reached by considering the factors said to be relevant by the US Supreme Court in Banco Nacional de Cuba v Sabbatino 376 US 398 (1964).
More fundamentally, as noted above, Jagot J (again with Black CJ’s agreement) concluded that for the act of state doctrine to prevent the Federal Court from considering a claim for damages against Australian officials based upon a breach of Australian law would be contrary to the Australian Constitution. This was because the Constitution conferred jurisdiction upon the High Court ‘[i]n all matters … in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’. The Federal Court has been invested with the same jurisdiction by legislation.
Indeed, the other member of the Court, Perram J, based his decision entirely on this constitutional ground. In doing so, Perram J made the obiter comment that it would be similarly inconsistent with the Constitution to invoke the Moçambique rule in response to a claim which asserted that the Commonwealth had exceeded its legislative or executive power. He considered that a previous decision of the Full Court, Petrotimor Companhia de Petroleos SARL v The Commonwealth [2003] FCAFC 3; (2003) 126 FCR 354, which treated the act of state doctrine as going to whether there was a ‘matter’ within the meaning of the Constitution, was plainly wrong. Having reached this conclusion, it was unnecessary for Perram J to consider whether there was a human rights exception to the act of state doctrine. However, without reaching a definite conclusion, he considered the point in some detail, in particular the contrasting views of whether the act of state doctrine is a ‘super choice of law rule’ requiring the court to treat the foreign state acts as valid or a doctrine of abstention requiring the court to abstain from considering those acts.
This case represents a significant development in Australian law on the act of state doctrine and, so far as Perram J’s comments are concerned, the Moçambique rule. The position adopted by the Full Court is, at the least, contestable. If it is accepted that the Moçambique rule and the act of state doctrine are legitimate restraints on State Supreme Courts, which have plenary jurisdiction, why should they not also restrain the federal courts, which have limited jurisdiction? Not every restriction on the exercise of federal jurisdiction is unconstitutional: limitation periods, procedural rules, the requirement to plead a cause of action and the rules of evidence all do so. The Moçambique rule and the act of state doctrine were well understood principles at the time of federation. It seems surprising to suggest that the Constitution operates to oust those principles without any express words, simply because it sets out limits on federal power and contains a general conferral of jurisdiction on the High Court. Indeed, in the case of the Federal Court, the Court’s jurisdiciton is provided not by the Constitution but by legislation, albeit picking up the words of the Constitution. The question is one of the construction of that legislation, not the Constitution, and whether it purported to oust those principles. In any event, both in the Constitution and the relevant legislation, reading the word ‘matter’ — which it is accepted contains limits on the Courts’ jurisdiction (eg precluding advisory opinions) — as informed by, not ousting, the Moçambique rule and the act of state doctrine is at least arguably more consistent with the historical position.
It remains to be seen whether the Commonwealth seeks special leave to appeal to the High Court.
--------------------------------------------------------------------------------
Act of state doctrine, the Moçambique rule and the Australian Constitution in the context of alleged torture in Pakistan, Egypt and Guantanamo Bay
Posted: 08 Apr 2010 11:46 PM PDT
In Habib v The Commonwealth [2010] FCAFC 12, a Full Court of the Federal Court of Australia considered whether the applicant’s claim against the Commonwealth for complicity in alleged acts of torture committed on him by officials of the governments of Pakistan, Egypt and the United States was precluded by the act of state doctrine. The Court allowed the claim to proceed. In doing so, the Court has, it seems, concluded that the act of state doctrine cannot, consistently with the Australian Constitution, preclude an action against the Commonwealth based upon an allegation that the Commonwealth has exceeded its executive or legislative power.
The applicant was allegedly arrested in Pakistan a few days before the US commenced military operations in Afghanistan in October 2001. He alleged that while there, and afterwards in Egypt, he was tortured by Pakistani and then Egyptian officials, with the knowledge and assistance of US officials. He alleged that he was then transferred to Afghanistan and later Guantanamo Bay, where he was tortured by US officials. He alleged that Australian officials participated in his mistreatment. The applicant claimed damages from the Commonwealth based on the acts of the Australian officials. His claim was that the acts of the foreign officials were criminal offences under Australian legislation (which expressly had extraterritorial effect), that the Australian officials aided and abetted those offences, that this made them guilty of those offences under the Australian legislation, that committing those offences was outside the Australian officials’ authority and that the Australian officials therefore committed the tort of misfeasance in public office or intentional infliction of indirect harm.
The Commonwealth contended that the Court could not determine the applicant’s claim, because it would require the Court to sit in judgment on the acts of governments of foreign states committed on their own territories. This was said to infringe the act of state doctrine, as explained in decisions such as that of the United States Supreme Court in Underhill v Hernandez 168 US 250 (1897) and the House of Lords in Buttes Gas and Oil Co v Hammer [1982] AC 888. The doctrine has been approved by the High Court of Australia: Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30; [1988] HCA 25.
The Full Court rejected the Commonwealth’s contention. Jagot J (with whom Black CJ agreed) reviewed the US and UK cases and concluded that they recognised circumstances where the act of state of doctrine would not apply. In particular, she said that the UK cases supported the existence of a public policy exception where there was alleged a breach of a clearly established principle of international law, which included the prohibition against torture. She considered that the Australian authorities were not inconsistent with this approach and that it applied in this case. She also considered that the same result would be reached by considering the factors said to be relevant by the US Supreme Court in Banco Nacional de Cuba v Sabbatino 376 US 398 (1964).
More fundamentally, as noted above, Jagot J (again with Black CJ’s agreement) concluded that for the act of state doctrine to prevent the Federal Court from considering a claim for damages against Australian officials based upon a breach of Australian law would be contrary to the Australian Constitution. This was because the Constitution conferred jurisdiction upon the High Court ‘[i]n all matters … in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’. The Federal Court has been invested with the same jurisdiction by legislation.
Indeed, the other member of the Court, Perram J, based his decision entirely on this constitutional ground. In doing so, Perram J made the obiter comment that it would be similarly inconsistent with the Constitution to invoke the Moçambique rule in response to a claim which asserted that the Commonwealth had exceeded its legislative or executive power. He considered that a previous decision of the Full Court, Petrotimor Companhia de Petroleos SARL v The Commonwealth [2003] FCAFC 3; (2003) 126 FCR 354, which treated the act of state doctrine as going to whether there was a ‘matter’ within the meaning of the Constitution, was plainly wrong. Having reached this conclusion, it was unnecessary for Perram J to consider whether there was a human rights exception to the act of state doctrine. However, without reaching a definite conclusion, he considered the point in some detail, in particular the contrasting views of whether the act of state doctrine is a ‘super choice of law rule’ requiring the court to treat the foreign state acts as valid or a doctrine of abstention requiring the court to abstain from considering those acts.
This case represents a significant development in Australian law on the act of state doctrine and, so far as Perram J’s comments are concerned, the Moçambique rule. The position adopted by the Full Court is, at the least, contestable. If it is accepted that the Moçambique rule and the act of state doctrine are legitimate restraints on State Supreme Courts, which have plenary jurisdiction, why should they not also restrain the federal courts, which have limited jurisdiction? Not every restriction on the exercise of federal jurisdiction is unconstitutional: limitation periods, procedural rules, the requirement to plead a cause of action and the rules of evidence all do so. The Moçambique rule and the act of state doctrine were well understood principles at the time of federation. It seems surprising to suggest that the Constitution operates to oust those principles without any express words, simply because it sets out limits on federal power and contains a general conferral of jurisdiction on the High Court. Indeed, in the case of the Federal Court, the Court’s jurisdiciton is provided not by the Constitution but by legislation, albeit picking up the words of the Constitution. The question is one of the construction of that legislation, not the Constitution, and whether it purported to oust those principles. In any event, both in the Constitution and the relevant legislation, reading the word ‘matter’ — which it is accepted contains limits on the Courts’ jurisdiction (eg precluding advisory opinions) — as informed by, not ousting, the Moçambique rule and the act of state doctrine is at least arguably more consistent with the historical position.
It remains to be seen whether the Commonwealth seeks special leave to appeal to the High Court.
2010年4月5日 星期一
Pope's immunity could be challenged in Britain
By PAISLEY DODDS, Associated Press Writer Paisley Dodds, Associated Press Writer – Sun Apr 4, 11:27 am ET
LONDON – Protests are growing against Pope Benedict XVI's planned trip to Britain, where some lawyers question whether the Vatican's implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
More than 10,000 people have signed a petition on Downing Street's web site against the pope's 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million). The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live. British judges have been more open to the concept than those in other countries.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn't a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the U.N.
Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
"It's a fascinating kind of academic, theoretical discussion," said Crane, who prosecuted Sierra Leone's Charles Taylor when he was still a sitting head of state. "At this point, there's no liability at all."
But Geoffrey Robertson, who as a U.N. appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.
"Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don't accept these things at face value," Robertson told The Associated Press on Saturday. "The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini."
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in U.S. sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
"Those who would claim that 'universal jurisdiction' could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction," he said in a statement to the AP.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It's a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel's former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with U.S. officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
"No one would question that the Church's response to widespread abuses has been atrocious, but it's very difficult for me to see how that would fit 'crimes against humanity,'" said Hannum.
Robertson is more in favor of challenging the immunity question.
"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
"If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority — i.e. the Catholic Church ... then the commander can be held criminally liable," Robertson said.
Even though the Vatican — like the United States — did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.
In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.
It was around 1929 when Mussolini decided that the Vatican — a tiny enclave about 0.17 of a square mile with some 900 people — was a sovereign state.
"The notion that statehood can be created by another country's unilateral declaration is risible," Robertson said.
Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
"My guess is the weight of opinion would allow the pope to enjoy immunity," said Hannum. "It's not automatically clear that the Holy See is a state, although it's treated as one for almost every purpose."
Last year, a Palestinian bid to have Barak — the Israeli defense chief who also served as prime minister until 2001 — arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.
In 2001, activists brought Israel's then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain's expected May 6 election.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
Associated Press Writers Gregory Katz and Raphael Satter in London, Nicole Winfield in Rome and Daniel Woolls from Madrid contributed to this report.
Copyright © 2010 The Associated Press. All rights reserved.
LONDON – Protests are growing against Pope Benedict XVI's planned trip to Britain, where some lawyers question whether the Vatican's implicit statehood status should shield the pope from prosecution over sex crimes by pedophile priests.
More than 10,000 people have signed a petition on Downing Street's web site against the pope's 4-day visit to England and Scotland in September, which will cost U.K. taxpayers an estimated 15 million pounds ($22.5 million). The campaign has gained momentum as more Catholic sex abuse scandals have swept across Europe.
Although Benedict has not been accused of any crime, senior British lawyers are now examining whether the pope should have immunity as a head of state and whether he could be prosecuted under the principle of universal jurisdiction for an alleged systematic cover-up of sexual abuses by priests.
Universal jurisdiction — a concept in international law — allows judges to issue warrants for nearly any visitor accused of grievous crimes, no matter where they live. British judges have been more open to the concept than those in other countries.
Lawyers are divided over the immunity issue. Some argue that the Vatican isn't a true state, while others note the Vatican has national relations with about 170 countries, including Britain. The Vatican is also the only non-member to have permanent observer status at the U.N.
Then again, no other top religious leaders enjoy the same U.N. privileges or immunity, so why should the pope?
David Crane, former chief prosecutor at the Sierra Leone war crimes tribunal, said it would be difficult to implicate the pope in anything criminal.
"It's a fascinating kind of academic, theoretical discussion," said Crane, who prosecuted Sierra Leone's Charles Taylor when he was still a sitting head of state. "At this point, there's no liability at all."
But Geoffrey Robertson, who as a U.N. appeals judge delivered key decisions on the illegality of conscripting child soldiers and the invalidity of amnesties for war crimes, believes it could be time to challenge the immunity of the pope — and Britain could be the place. He wrote a legal opinion on the topic that was published Friday in the U.S. news site The Daily Beast and Saturday in the British newspaper the Guardian.
"Unlike in the United States, where the judges commonly uphold what the executive says, the British courts don't accept these things at face value," Robertson told The Associated Press on Saturday. "The Vatican is not a state — it was a construct of Italian dictator Benito Mussolini."
But Jeffrey Lena, the California attorney who argued — and won — head of state immunity for Benedict in U.S. sex abuse cases, said the pope could not successfully be prosecuted for crimes under international law.
"Those who would claim that 'universal jurisdiction' could be asserted over the pope appear to completely misunderstand the sorts of violations, such as genocide, which are required to assert such jurisdiction," he said in a statement to the AP.
Still, Israeli officials, including former Prime Minister Ehud Barak, have recently been targeted by groups in Britain under universal jurisdiction. The law principle is rooted in the belief that certain crimes — such as genocide, war crimes, torture and crimes against humanity — are so serious that they are an offense against humanity and must be addressed.
It's a tactic that the British government would likely abhor, but British judges have often gone against government wishes in lawsuits.
Recent examples include British judges who issued an arrest warrant against Israel's former foreign minister for alleged war crimes, and a British court ruling this year that forced the government to release its intelligence exchanges with U.S. officials about the torture claims of a former Guantanamo detainee.
Prosecution in the deepening cleric sex abuse scandal, however, ultimately rests on the question of immunity. If British judges do challenge the pope's immunity, there are a handful of possible legal scenarios — all of them speculative.
The pope could be served for a writ for civil damages, a complaint could be lodged with the International Criminal Court, or abuse victims could try to have Benedict arrested for crimes against humanity — perhaps the least likely scenario.
Lawyers question whether an alleged systematic cover-up could be considered a crime against humanity — a charge usually reserved for the International Criminal Court — and whether it could be pursued under universal jurisdiction.
Attorney Jennifer Robinson in London, who has been researching the possibilities, says rape and sexual slavery can be considered crimes against humanity.
Others, like Hurst Hannum with the Fletcher School of Law & Diplomacy at Tufts University near Boston, are skeptical.
"No one would question that the Church's response to widespread abuses has been atrocious, but it's very difficult for me to see how that would fit 'crimes against humanity,'" said Hannum.
Robertson is more in favor of challenging the immunity question.
"Head of state immunity provides no protection in the International Criminal Court," said Robertson, who represented The Associated Press and other media organizations who sought to make U.S.-U.K. intelligence exchanges public in the case of former Guantanamo detainee Binyam Mohamed.
"If acts of sexual abuse by priests are not isolated or sporadic events but part of a wide practice both known to and unpunished by their de facto-authority — i.e. the Catholic Church ... then the commander can be held criminally liable," Robertson said.
Even though the Vatican — like the United States — did not sign the accord that established the international court, a crime would only have to occur in a country which did sign, like Britain. Still, lawyers would have to prove that the crimes or an alleged cover-up occurred or continued after the court was set up in July 2002.
In a 2005 test case in Texas that involved alleged victims of sex abuse by priests, the Vatican obtained the intervention of President George W. Bush, who agreed the pope should have immunity against such prosecutions because he was an acting head of a foreign state.
It was around 1929 when Mussolini decided that the Vatican — a tiny enclave about 0.17 of a square mile with some 900 people — was a sovereign state.
"The notion that statehood can be created by another country's unilateral declaration is risible," Robertson said.
Others say the last 80 years of history have turned the Vatican into a state, and it would be almost impossible to strip the pope of his immunity now.
"My guess is the weight of opinion would allow the pope to enjoy immunity," said Hannum. "It's not automatically clear that the Holy See is a state, although it's treated as one for almost every purpose."
Last year, a Palestinian bid to have Barak — the Israeli defense chief who also served as prime minister until 2001 — arrested for alleged war crimes during a visit to Britain failed when the courts determined that he should be given immunity from arrest.
But months later, pro-Palestinian activists persuaded a London judge to issue an arrest warrant for Israeli politician Tzipi Livni, who was foreign minister during the 2008-2009 war in Gaza. The warrant was eventually withdrawn after Livni canceled her trip.
Spain and Britain jointly pioneered the universal jurisdiction concept when, in 1998, Britain executed a Spanish arrest warrant for former Chilean dictator Augusto Pinochet on torture claims. Pinochet was kept under house arrest in London until he was ruled physically and mentally unfit to stand trial and released in 2000.
When he was arrested, however, Pinochet was no longer head of state.
In 2001, activists brought Israel's then-Prime Minister Ariel Sharon to trial in Belgium in connection with a 1982 massacre at a Beirut refugee camp. Sharon canceled a planned trip to Belgium and was tried in absentia in a Belgian court. He was not convicted but the case provoked diplomatic protests and prompted Belgium in 2003 to tighten the law that had permitted the trial.
Prime Minister Gordon Brown has vowed to block private groups from taking legal action against visiting foreign dignitaries but any new law is unlikely before Britain's expected May 6 election.
The pope plans to visit Malta, Portugal and Cyprus before traveling to Britain on Sept. 16. A trip to Spain is planned for later in the fall.
Associated Press Writers Gregory Katz and Raphael Satter in London, Nicole Winfield in Rome and Daniel Woolls from Madrid contributed to this report.
Copyright © 2010 The Associated Press. All rights reserved.
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