Winston Churchill once observed of Lord Rosebery that "he would not stoop; he did not conquer." There is little that Christopher Hitchens would not stoop to in his perennial quest to earn fresh publicity, but it can safely be predicted that he will not conquer, at least when it comes to his latest crusade against religion in general and the Catholic Church in particular. Hitchens and Richard Dawkins are seeking to arraign Pope Benedict XVI when he visits Britain later this year for crimes against humanity, the term that's usually thought of in connection with mass murderers like Hitler.
Hitchens and Dawkins hope to invoke "universal jurisdiction," which can be appealed to under the International Criminal Court or the United Nations Conventions. The idea is that the Pope is not the head of a state, hence liable to international prosecution. According to Hitchens, "This man is not above or outside the law. The institutionalized concealment of child rape is a crime under any law and demands not private ceremonies of repentance or church-funded payoffs, but justice and punishment." And so Hitchens and Dawkins already have lawyers drawing up papers to make their case in court.
In 1998, former Chilean dictator Augusto Pinochet was detained in Britain in response to a Spanish arrest warrant, under a similar interpretation of the law; former-Israeli Foreign Minister Tzipi Livni might have faced prosecution in Britain over the Gaza War, but called off her trip. Henry Kissinger is another target. All these point to the fundamental problem with "universal jurisdiction," which is that it is a slippery slope. One day you're arresting the Pinochets of the world, the next heads of democratic countries. The European Union would like to emasculate the nation-state, the mission of most international lawyers, by whittling away its sovereignty. Any citizen of a foreign country is, in the end, fair game for these prosecutors unaccountable to anyone but themselves. Writing in Foreign Affairs in 2001, Kissinger has noted,
when discretion on what crimes are subject to universal jurisdiction and whom to prosecute is left to national prosecutors, the scope for arbitrariness is wide indeed. So far, universal jurisdiction has involved the prosecution of one fashionably reviled man of the right while scores of East European communist leaders -- not to speak of Caribbean, Middle Eastern, or African leaders who inflicted their own full measures of torture and suffering -- have not had to face similar prosecutions.
Some will argue that a double standard does not excuse violations of international law and that it is better to bring one malefactor to justice than to grant immunity to all. This is not an argument permitted in the domestic jurisdictions of many democracies -- in Canada, for example, a charge can be thrown out of court merely by showing that a prosecution has been selective enough to amount to an abuse of process. In any case, a universal standard of justice should not be based on the proposition that a just end warrants unjust means, or that political fashion trumps fair judicial procedures.
The irony, of course, is that it was the British who, in the nineteenth century, almost went to war against Greece in the Don Pacifico affair, which Lord Palmerston seized upon to trumpet the right of Britain to protect its subjects from foreign countries. Palmerston was ginning up a foreign crisis for domestic gain-Don Pacifico, a Portuguese Jew, had been born in Gibraltar and was a British subject. Palmerston dispatched the Royal Navy to seize Greek naval vessels in retaliation for some property which had been confiscated in Athens from Pacifico (a curious last name, come to think of it, give the circumstances he found himself in). Palmerston declared, "As the Roman, in days of old, held himself free from indignity, when he could say, Civis Romanus sum, so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him from injustice and wrong."
Now international law has proceeded to the point where Hitchens and Dawkins can draw on it to attack the pope. This truly is war by other means. But their attempts to claim that pope is, in essence, an ordinary fellow, not a head of state, will likely fall flat. As Gerald Warner observes in the British Telegraph,
Attempting to unravel Mussolini's Concordat with the Vatican may not be in the best interests of the Italian state, an illegitimate regime established by the military conquest of the Patrimony of St Peter on 20 September, 1870, when the Blessed Pius IX unfortunately ordered his army of international Catholic crusaders to surrender, to avoid bloodshed.
It's also the case that the Hitchens/Dawkins foray into prosecuting the pope will prove counterproductive when it comes to prompting the Church to reform itself on its hideous failure to prevent and stop the molestation of children by its own priests, who exploited their positions to carry out flagitious crimes. Such attacks nourish the perception that the critics are trying to overthrow the Church, which is their right, I suppose, but not a very realistic approach. The Church isn't going away, no matter how much Hitchens and Dawkins might desire its disappearance.
The truly interesting thing about this affair isn't the pope, but Hitchen's serial attempts to target leaders and statesmen he dislikes. He denounced Mother Teresa. Then he put Henry Kissinger in the dock. Now it's the pope. Who's next?
Jacob Heilbrunn is a senior editor at The National Interest.