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A Dumb Idea, via Hitchens and Dawkins: Arresting the Pope

Christopher Hitchens and Richard Dawkins take a silly, immature stance with deadly serious consequences.

by
Clarice Feldman

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April 21, 2010 - 12:00 am
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In recent years there have been numerous attempts to greatly expand the concept of judicial jurisdiction, under the rubric of “universal jurisdiction.” The latest threat, by atheists Richard Dawkins and Christopher Hitchens to sue the pope in Great Britain for claimed failures in halting priestly abuse of minors, seems doomed — as were a number of other such adventures in creative law by NGOs and overreaching, grandiloquent jurists.

And that is a good thing.

Jurisdiction of Courts

In Western jurisprudence, a court must have “jurisdiction” to hear a matter. The concept is broad but utterly rational: the court must have personal jurisdiction over the parties to the matter.

The parties must have some ties to the judicial forum, for example an office within the jurisdiction from which they do business, a residence, or a contract provision agreeing that disputes will be heard there. This is often a mixed question of law and fact, but essentially requires a party to show sufficient contacts in the forum to warrant the court’s handling of the matter.

For example, without more, it’s hard to imagine how a suit by a resident of Illinois against a resident of Florida for a contract to be performed in California would be heard in Iowa. Iowa simply lacks sufficient nexus — “logical connection” — to the dispute to be a sensible place for the litigation to take place.

The court also must have subject matter jurisdiction.

A traffic court judge cannot take it upon himself to resolve a landlord-tenant dispute or to decide whether ObamaCare should be enjoined. In fact, he lacks the legal authority to do so.

There’s more involved, but the point is simply that courts cannot try anyone at all for anything at all. They are confined to rational and statutory limits on their powers.

Sovereign Immunity

Some people are granted legal immunity from all suits or some suits. Heads of sovereign states are not subject to suit in other sovereign states for violation of their laws. This is called sovereign immunity. (Confusingly, this is a term also used to describe whether the state can be sued by anyone, a doctrine increasingly diminished in this country by statutes waiving it.)

In two respects, the inability of a person to sue another sovereign state or head of state has been eroded in recent years. In one instance, as states took over businesses and ran them, they were by law deprived of immunity for their commercial activities — activities not normally and historically considered state functions:

In 1976 Congress passed the Foreign Sovereign Immunities Act (28 U.S.C.A. § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of U.S. federal and state courts in certain circumstances. This act, which strives to conform to international law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move toward a restrictive doctrine.

That seems a perfectly logical exception and retains the historical rationale for immunity.

There is also an exception for international tribunals set up by agreement of the member states (which was, inter alia, the justification for the Nuremberg tribunal).

To date, the International Criminal Court (ICC) still holds that state officials have immunity under international law while serving in office, and are immune from arrest abroad while serving in office except when subject to any duly constituted international criminal tribunal which has jurisdiction over such conduct.

Universal Jurisdiction

Less justifiable on traditional grounds is the concept of “universal jurisdiction,” in which the conduct involved is deemed so beyond international norms of conduct that the concept of state sovereignty is inapplicable. In that case any state that obtains physical custody of a head or officer of the offending state, or a person who it is imagined the home state will not prosecute, can prosecute that person for such crimes.

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