ROME – Among the twenty new Princes of the Church who received their red hats yesterday from Pope Francis was Cardinal Carlos Gustavo Castillo Mattasoglio, who’s been the Archbishop of Lima in Peru since 2019.
To suggest the 74-year-old Castillo may face the stiffest immediate challenge of any of the new cardinals is, I’ll concede, a bold claim. After all, his fellow inductees include Cardinal Ladislav Nemet, the first cardinal in the history of Serbia, an overwhelmingly Orthodox nation where locals traditionally haven’t exactly been wild about “the Church of Rome,” and Cardinal Dominique Joseph Mathieu of Tehran, Iran … ’nuff said.
Yet when Castillo gets back to Peru, he will find waiting a criminal case against a Vatican official with implications for diplomatic immunity and Vatican sovereignty, religious freedom, the Vatican’s capacity to manage scandal and misconduct, and the willingness of Catholic clerics everywhere to answer the bell when the Vatican asks for help.
In a word, “Whew.”
Last year, Pope Francis dispatched his top two investigators in sex abuses cases, Maltese Archbishop Charles Scicluna and Spanish Monsignor Jordi Bertomeu, to Peru to open an inquest into the Sodalitium Chistianae Vitae, a movement founded by Peruvian layman Luis Fernando Figari in 1971, and which now faces multiple accusations of abuse.
Earlier this year, two people who gave testimony in that inquest filed a criminal complaint against Bertomeu in Peruvian courts, claiming he violated their privacy by leaking their identities and the contents of their testimony to the press. Those claims have been disputed by other parties, including Peruvian journalists who say colleagues photographed the two individuals leaving the papal embassy in Lima, where the interviews were conducted, and that’s how they were identified.
In October, the complaint was transferred by a local prosecutor to the national Attorney General, and it’s not clear what will happen next.
If such a prosecution is allowed to proceed, it could set worrying precedents in at least five areas, none of which have anything directly to do with the question of whether Bertomeu did the things with which he’s been charged.
First, there’s the matter of diplomatic immunity.
It’s a principle of foreign relations which stretches back to ancient Greece and Rome, where envoys of foreign sovereigns were considered untouchable. After World War II, the principle was codified in the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.
While Bertomeu is neither the papal ambassador in Peru nor an official of the embassy, he was a representative of the Holy See in the country on official business, and therefore is entitled to what’s known as “conduct-based immunity.” As long as he was performing duties authorized by a foreign government – in this case, directly commissioned by a foreign head of state – and those activities didn’t fall into established exceptions to immunity, such as assassination, kidnapping or espionage, experts say he should be exempt from arrest or prosecution. That form of immunity has been recognized both by the International Court of Justice and the U.S. Supreme Court.
To allow such a charge to stand, therefore, could imperil a time-honored pillar of foreign relations, which ought to concern pretty much every sovereign state on earth.
Second, there’s the Vatican’s own sovereign status. (To be precise, it’s the sovereign status of the Holy See, but that’s a technicality that need not detain us here.)
Without a standing army or significant national economy, the Vatican is forever dependent upon the good will of the international community to acknowledge and protect its sovereignty. If the precedent is set that one can start nibbling away at its legally guaranteed protections, such as allowing criminal charges against a papal representative in a foreign country to proceed for acts committed in an official capacity, then its status could be at risk.
While scholars debate the precise origins of the sovereignty of the Holy See, everyone recognizes it’s a sui generis and fragile thing. It rests not on the traditional standards for statehood, such as a permanent population and defined territory, but on the fact that other nations recognize it as having international legal personality. This explains why, over the centuries, the Vatican has moved heaven and earth to resist precisely the sort of incursion the Peru case arguably represents.
Third, there’s the matter of religious freedom.
If a state is able to prosecute a Catholic priest for carrying out an internal ecclesiastical activity, what’s to stop the criminalization of religious activities by clergy of any faith? Could an African state prosecute an Anglican minister for celebrating a gay marriage, for example, or a Western European government indict a Muslim imam for expelling a member from a mosque because that individual asserted a transgender identity?
For Catholics, there’s a special reason to be concerned. If the precedent is set that it’s up to the state to determine when a Catholic priest can divulge confidential information and when he can’t, then it may become more difficult to assert a legal basis for the inviolability of the seal of the confessional.
Fourth, what about the Vatican’s capacity, or willingness, to impose discipline in abuse cases?
If the precedent is set that a Vatican official can be prosecuted for the way he conducts an investigation of abuse allegations in a foreign country, then one likely consequence is that Rome will become reluctant to launch such investigations, in part because they won’t want to put their personnel on the firing line, and also out of reluctance to trigger a diplomatic and legal crisis.
For decades, critics have derided what they’ve described as the Vatican’s slowness to act on abuse charges, asserting that justice delayed is often justice denied. Creating a new incentive for Rome to drag its heels, or to stay on the sidelines, arguably is good for no one.
Fifth and finally, there’s the matter of who would be willing to serve even if the Vatican is willing to commission such an inquest. If clerics know they may be exposed to criminal liability for participating in it, how many might be willing to sign up? Although a few intrepid souls probably still would, many others might not.
After all, while the Catholic Church reveres martyrdom, it’s never required it.
To be clear, Castillo isn’t directly responsible for any of this. As the cardinal-archbishop of Lima, he can’t just pick up a phone and make a criminal prosecution disappear, no matter whom it’s against. Nevertheless, as the leader of the Catholic community in Peru, he is probably the guy many people will rely upon for perspective and advice – and, given what’s at stake, that may be no easy task.
