NEW YORK-The Canadian and French governments have asked that the proposed International Criminal Court disregard the centuries-old legal tradition that a Catholic priest may not be compelled to reveal what he hears in the confessional.
The issue is one of a number of aspects about the new court that have caused concern among some Catholics.
The statute enabling the creation of an international criminal court was passed by member states of the United Nations in 1998, but the court cannot be established and hear cases until 60 governments have ratified it.
The proposal to revoke the priest-penitent privilege — made in the course of ongoing meetings to develop the court's policies and procedures — would also apply to the private religious counseling of clergy from other faiths.
The privilege was about to be struck from preparatory documents on Aug. 6 when Jesuit Father Robert Araujo, representing the Holy See, made “a lengthy and impassioned plea for its retention based on a wealth of legal sources,” according to Austin Ruse, director of Catholic Family … Human Rights Institute, who attended the meeting. Father Araujo is a professor of law at Gonzaga University in Spokane, Wash.
“Language guaranteeing the privilege — along with an acknowledgment of the ‘sacredness ’ of spiritual confession — have been retained in the document but in brackets, indicating that their inclusion is still under discussion,” said Ruse.
He said retention of the privilege is far from certain.
Under the Canadian-French proposal, a member of the clergy who refuses to testify about private consultations with a parishioner would be subject to punishment by the court. Regardless of possible sanctions, Catholic priests may never reveal the content of a sacramental confession.
According to Canon 1388 of the Code of Canon Law, a priest who directly reveals secrets from a confession is subject to automatic excommunication — a breach that only the Apostolic See can heal.
And Canon 983 states: “The sacramental seal is inviolable. Accordingly, it is absolutely wrong for a confessor in any way to betray the penitent, for any reason whatsoever, whether by word or in any other fashion.”
Over the course of the history of the Church, priests have endured trial, torture and even death rather than violate the seal of the confessional.
In addition to the priest-penitent issue, pro-family attorneys and law professors are concerned about a host of issues related to the current meetings on the court.
David Gregory, a law professor at St. John's University in New York, predicted that the court's eventual jurists will be drawn from the ranks of those with “a particular radical worldview,” and probably include some of the judges sitting on the current war crimes tribunal in Yugoslavia. “When the [criminal court] comes around, they can claim unique experience to serve,” said Gregory.
He pointed to Gabrielle McDonald, president of the Yugoslav Tribunal, who recently made a plea to delegates for even more power for judges in determining the court's rules.
The rules of evidence and procedures now under consideration were drafted by a working group that met in Paris last April, and which included non-governmental organizations.
Kathryn Balmforth, a Utah-based civil rights attorney who is following the nascent court's progress for the Brigham Young University Law School, said the group was dominated by “ideological NGOs promoting their own interests in controlling and manipulating proceedings within the court. The fix is in. This will not be a fair court but a left-leaning ideological one.”
Another concern is a proposal to include victims as full and distinct participants in the court proceedings, and to allow non-governmental organizations to stand in for the victims of a particular crime.
Western legal tradition allows victims to sue in civil actions that are separate from criminal procedures.
“This proposal would force the defendant to answer charges from many quarters all at once,” said Balmforth. “This would turn the proceedings into a kangaroo court.”
The question of “forced pregnancy,” has also resurfaced at the current meetings. The new proposal refers to the illegality of “keeping a woman pregnant” against her wishes. “Some believe this is a back-door way to establish an international right to abortion,” said Ruse of the Catholic Family … Human Rights Institute.
Unlike the World Court, which hears cases between conflicting nations, the International Criminal Court will try individuals for crimes in four general categories: genocide, crimes against humanity, war crimes and aggression.
As conceived, the court will not rely on a separate grand jury to bring charges. That duty will fall to an independent staff of prosecutors.
To date, only Senegal, Trinidad and Tobago, Italy, and Sao Tome and Principe have formally ratified the statute to establish the international criminal court. The Holy See voted in favor of the court's establishment.
(ZENIT contributed to this article)