Frank Brennan SJ. Making the world safer for children.

The United Nations has developed an elaborate system of committees to oversee compliance by nation states with a broad range of international human rights instruments. These committee processes are sometimes used by nongovernmental organizations pushing their own particular causes. Of late, a group called SNAP — the Survivors Network of those Abused by Priests — have been making submissions to U.N. committees expressing dissatisfaction with the Vatican’s response to child sexual abuse. SNAP was pleased with the report published last week by the U.N. Committee Against Torture setting out the committee’s concluding observations on Australia’s fourth and fifth periodic reports on its compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In preparation for the committee hearing, Australia had provided a comprehensive 52-page report on compliance issues on July 31, 2013. Australia takes seriously these U.N. procedures. John Quinn, Australia’s permanent representative to the U.N. in Geneva, was accompanied by a five-member high-level delegation of public servants from Canberra in addition to several colleagues from his own permanent mission at the committee hearing in November. Neither the 52-page report nor the eight-page opening statement of the Australians referred to child sexual abuse. That is not surprising. This is a U.N. committee with a very particular mandate. There are other U.N. committees that deal with children’s rights, women’s rights, the rights of those who suffer a disability, racial discrimination, civil and political rights etc. This committee as its name suggests deals principally with state authorized or state tolerated torture.

Though this U.N. committee is primarily concerned to ensure safeguards against torture, it also has a mandate to oversee state responses to “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” but only “when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” So the committee arguably has a role to play in scrutinizing state action in relation to acts of child sexual abuse committed by state officials or with the acquiescence of state officials. Nation states with inadequate or corrupt prosecution or court processes might be said to be places where child sexual abuse has been occurring “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In comparison with all other members of the United Nations, Australia has been fairly robust in its response to revelations about institutional child sexual abuse. It has set up the most expensive, most far-reaching, and longest-running royal commission or equivalent inquiry in any country to date. The U.N. Committee against Torture welcomed the establishment of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. But it went on to make a couple of gratuitous observations of the type that bring no credit on the U.N. human rights system, especially by those critics who think that such committees should confine themselves to their core mandate, and focus on those countries which are most at fault.

Usually a fair-minded, non-partisan, under-resourced U.N. committee having welcomed such a commission of inquiry in a country like Australia with a robust rule of law and a free media would have been content to await the findings and the resulting prosecutions from the commission of inquiry, especially given that the issue of child sexual abuse is not a usual agenda item for such a U.N. committee. But this U.N. committee went on to express the gratuitous concern “as to whether the outcome of (the royal commission’s) work will result in criminal investigations, prosecutions and redress and compensation for victims.” That may be the concern of SNAP but this committee had no opportunity or mandate to hear from a range of Australian parties on this issue.

This verbal volley was clearly just a prelude to the U.N. committee’s main gratuitous concern. Quoting only the SNAP submission which in turn quoted only a newspaper report, the U.N. committee expressed concern at the information provided “regarding the reported reply” that the Holy See submitted to the Australian royal commission that “providing all documents regarding sexual abuse by priests … was ‘unreasonable’ and that they represented the ‘internal working documents of another sovereign state.'” If only it was all that simple. But then again a Geneva-based U.N. Committee against Torture has to take a fairly broad-brush approach to such questions that are on the periphery of their mandate and expertise.

SNAP and then the U.N. committee were referring to the oral evidence given by Cardinal George Pell at the royal commission in August. The royal commission had already published its exchange of correspondence with the Holy See. The letters and Pell’s evidence reflect a far more complex picture than that provided by the U.N. committee, and indicate a far more cooperative, considered approach by the Holy See. The U.N. committee was not satisfied with Australia’s assurances “that the royal commission is independent and that it has statutory powers to compel the provision of documents.” Where one might ask would this U.N. committee find a government and a commission of inquiry with the independence and power needed to satisfy them? I doubt that it could be in a democracy governed by the rule of law. With a patronizing and moralizing tone both to Australia and the Catholic Church, the U.N. committee reminded Australia “that it has a responsibility to ensure that all reports of breaches of the convention (against torture) are promptly and impartially investigated and that assistance is sought from other state parties when necessary to conduct such investigations.”

During 2013, the Holy See in response to a specific request provided the Australian royal commission with documents in relation to one priest offender. On April 24, Justice Peter McClellan, chairman of the royal commission wrote to the Vatican secretary of state seeking further assistance with the conduct of his commission. He wanted information about another named priest. He also wanted access to a general range of documents relating to religious congregations so that the commission might “understand the nature and extent of communications between those congregations and the Holy See.” He said the purpose of this general request was “to develop an understanding” of the extent to which Australian clerics accused of abuse had been referred to the Holy See, and “the action taken in each case.” Such a request is usually known as a fishing expedition.

The Holy See provided all appropriate documents relating to the two named priests. The Holy See indicated that it was still conducting some canonical proceedings in relation to one of the priests and gave the assurance that upon conclusion of the proceedings, they would give consideration to any further request. In relation to the fishing request, the Holy See responded:

“With regard to cases that are concluded, the ‘action taken’ is communicated to the particular church or congregation inloco. Because the facts and circumstances of each case are already available within the royal commission’s jurisdiction in Australia, the information requested is best sought from individuals and entities in that jurisdiction. If there is further information that is necessary for the commission’s work, but unavailable for the commission in loco, the Holy See will be pleased to receive specific requests for such information and will make every attempt to assist the work of the commission. This secretariat respectfully suggests that requests for all information regarding every case — which include requests for documents reflecting internal ‘deliberations’ — are not appropriate. As is the case with all other sovereign subjects of international law, the Holy See maintains the confidentiality of internal deliberations related to its judicial and administrative proceedings, and indeed depends upon deliberative confidentiality to ensure the integrity and efficacy of its judicial and administrative processes. Finally, the Holy See notes that it has provided information relating to individual requests. However, the royal commission’s request that the Holy See’s dicasteries undertake the substantial burden of locating, reviewing and copying all files regarding every accused Australian cleric appears inconsistent with international practice.”

When appearing before the royal commission in August, Cardinal Pell was asked if he was aware of the general nature of the request made by the royal commission. He replied: “The extremely general nature of the request, I was aware of it and I thought it unreasonable. I thought the aims could be equally well achieved by asking specific questions about specific cases in a range of different circumstances.” He was then asked: “So you formed the view that the request by the royal commission of the Vatican was unreasonable; is that your evidence?” He replied:

“I formed the view … aware that the Vatican had provided 5,000 pages of documentation in relation to specific requests, and aware also that the Vatican has said, if there are more specific requests, they will provide such documentation. But in following international convention they will not provide the internal working documents of another sovereign state.”

Pell gave the royal commission his assurance that the Vatican would continue to honor its undertaking about providing documentation regardless of any personnel changes in Rome. He pointed out:

“An added relevant point is that overwhelmingly every document that is held in Rome exists here in the archives of religious orders or dioceses. Every letter they have sent to Rome, every response from Rome, nearly every — I’m not aware of exceptions — overwhelmingly they are available in Australia.”

Pell later told the royal commission: “In my discussions with the Roman authorities I was generally and strongly supportive of the request from the royal commission. I was generally and strongly in support in the terms in which I have described it for specific documents, not for internal working documents and, another point which I hadn’t mentioned, obviously cases which are still going forward, if there are any, in Rome.”

I have no expectation that a U.N. Committee against Torture peripherally concerned with the question whether Australian state officials have acquiesced in child sexual abuse committed by others would delve into all this detail of dealings between a royal commission and the Holy See. But I do have an expectation that such a committee would keep its nose out of the matter until the royal commission has run its course, until the Vatican has had the opportunity to honor its solemn commitments to assist the inquiry, and until the U.N. committee is in a position to see if its mandate is evenly remotely invoked. This sort of gratuitous reporting by U.N. committees at the urgings of NGOs like SNAP does absolutely nothing to make the world or the Catholic Church safer for children. It just gives the U.N. human rights machinery a bad name. You would think the Committee against Torture would have enough on its plate.

Fr. Frank Brennan SJ, professor of law at the Australian Catholic University, is presently the visiting Gasson professor at Boston College Law School.

This article was first published in Global Pulse on Dec. 3  2014

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2 Responses to Frank Brennan SJ. Making the world safer for children.

  1. Frank Brennan says:

    This was the Vatican’s response to the royal commission request, delivered through the Australian Embassy:

    SECRETARIAT OF STATE
    No. 17.779
    NOTE VERBALE

    The Secretariat of State presents its compliments to the Australian Embassy and has the honour to respond to the requests for assistance made under cover of Note Verbale No. 038/2014. The Embassy’s note encloses the 24 April 2014 correspondence from the Royal Commission into Institutional Responses to Child Sexual Abuse, which contains certain requests for information. The Secretariat, treating on this occasion the relevant portions of the Commission’s letter as part of the Embassy’s Verbal Note, is pleased to communicate the following:
    The Embassy’s Note first indicates that the Royal Commission is “seeking some of the documentation relating to a specific case …. ” From the contents of the Commission’s letter, this passage appears to refer to the request for “copies of any documents regarding Father REDACTED a priest of the Congregation of the Mission (Vincentian) ordained on REDACTED. Father REDACTED is presently the subject of a canonical process, which is reported by the competent dicastery to have· been returned to ecclesiastical authorities in Australia for further review. Because there is no final decree, and to avoid compromising the integrity of the canonical proceeding, it is not possible to provide all the requested documentation relating to the case at this time. However, this Secretariat is able to provide a portion of the documentation, which is included under cover of this Verbal Note.
    Given the particular circumstances relevant to the subject matter of the Embassy’s Note, as well as the complexity, length and provenance of the materials provided under cover of this Note, the Holy See transmits the enclosed documents without redaction. In providing them in this condition, the Holy See accepts the firm assurance that the privacy concerns of the victims, witnesses and third parties will receive full protection. The Holy See assures the Embassy that upon conclusion of the relevant canonical proceeding, the Holy See will give due consideration to any further request for information regarding this matter and transmit the appropriate and responsive materials.
    Regarding the Royal Commission’s request for documents with respect to “each case” involving an accused Australian cleric, it is neither possible nor appropriate to provide the information requested for the following reasons:
    First, to the extent a matter is unresolved and a decision has not been reached in a canonical proceeding, it is not appropriate to release information about the case. The reason for this is the same as that set forth above with respect to the matter involving Fr REDACTED:
    Second, with regard to cases that are concluded, the “action taken” is communicated to the particular Church or Congregation in loco. Because the facts and circumstances of each case are already available within the Royal Commission’s jurisdiction in Australia, the information requested is best sought from individuals and entities in that jurisdiction. If there is further information that is necessary for the Commission’s work, but unavailable for the Commission in loco, the Holy See will be pleased to receive specific requests for such information and will make every attempt to assist the work of the Commission.
    Third, this Secretariat respectfully suggests that requests for all information regarding every case – which include requests for documents reflecting internal “deliberations” – are not appropriate. As is the case with all other sovereign subjects of international law, the Holy See maintains the confidentiality of internal deliberations related to its judicial and administrative proceedings, and indeed depends upon deliberative confidentiality to ensure the integrity and efficacy of its judicial and administrative processes.
    Finally, the Holy See notes that it has provided information relating to individual requests. However, the Royal Commission’s request that the Holy See’s dicasteries undertake the substantial burden of locating, reviewing and copying all files regarding every accused Australian cleric appears inconsistent with international practice.
    Notwithstanding the concerns expressed above with respect to the Royal Commission’s inquiries, the Holy See will respond, as it has in the past, to proper requests to assist foreign authorities, and reaffirms the importance of reciprocal exchanges of information between sovereign states. The Holy See will be pleased to respond in the future to appropriate and specific requests conveyed by the Australian Embassy.
    The Secretariat of State avails itself of the occasion to renew to the Australian Embassy the assurances of its highest consideration.
    From the Vatican, 1 July 2014
    The Australian Embassy
    Corso Vittorio Emanuele II, 349
    00186 ROMA

  2. Kieran Tapsell says:

    I responded to this article in Global Pulse at http://www.globalpulsemagazine.com/news/australian-abuse-inquiry-is-no-fishing-expedition/464
    Frank also responded to what I have written. My response and further reply to Frank can be found at http://www.catholica.com.au/forum/index.php?id=165806
    The unfortunate part of the Holy See’s response is that there are still quite serious problems with Church’s disciplinary system under canon law as evidenced by the documents produced in the United States by the Milwaukee archdiocese and by several cases here in Australia. Handing over all the files to the Royal Commission was an opportunity for an independent assessment of that system in terms of how it dealt with Australian priests.

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