Hunter abuse survivor Peter Gogarty has asked International Criminal Court prosecutor Fatou Bensouda to consider whether she can initiate a case against some of the church’s most powerful clerics for failing to respond to sexual crimes against children, under international law previously used in war crimes cases.

Read more: From the darkness, a light starts to shine

In a lengthy submission lodged in November after more than two years work, Mr Gogarty argued it was time for the International Criminal Court to consider the Catholic Church and child sexual abuse after substantial evidence from courts and inquiries around the world, including the Australian child abuse royal commission.

“In every country where this abuse has been studied, the pattern of cover-up, protection of the church and disregard for children has been identical,” Mr Gogarty wrote nearly a decade after Australian human rights lawyer Geoffrey Robertson, QC, first canvassed an ICC response in his book, The Case of the Pope.

“While there have been hundreds of convictions of priests and members of other religious orders for the sexual abuse of children, there have been very few attempts by national jurisdictions to prosecute those people within the Catholic Church who enabled and concealed the abuses,” Mr Gogarty said.

“The people who let it happen are still merrily going along their way, still in power. The decision-makers that allowed the perpetrators to continuing committing crimes have not been held to account, and are still in positions of responsibility in terms of how the church acts to protect children in future. That is competely unacceptable.”

The handful of completed conceal cases around the world includes the prosecution of former Adelaide archbishop Philip Wilson in 2018 for knowledge of allegations against Hunter priest Jim Fletcher. The archbishop’s conviction in May was overturned on appeal in December.

While acknowledging obstacles against the ICC’s ability to consider such a prosecution, first raised by Mr Robertson in 2010, Mr Gogarty said the subsequent years had clarified and amplified why the ICC was possibly the only body capable of holding the church to account for the global tragedy.

The ICC, established in 2002, saw itself as a court of last resort which acted only if relevant national jurisdictions failed to act or were not genuine in effortst to bring perpetrators to account, he said.

Investigation: Shine the Light

It can consider crimes causing great suffering and which were committed to further a “state or organisational objective”. A limitation is that it cannot consider crimes that occurred before 2002.

“The court is the one international mechanism/jurisdiction capable of considering the systemic nature of child sexual abuse inside the Catholic Church,” Mr Gogarty wrote in his submission to Prosecutor Bensouda.

He started his submission several years ago after the United Nations failed to make a referral to the ICC despite two damning reports on the Catholic Church and child sexual abuse in 2014.

None of the countries that had held national inquiries, grand jury hearings or commissions, including Australia, the United States, Canada, Ireland, the United Kingdom, France, Italy and Belgium, had referred matters to the ICC, he said.

“The most likely source of referral of this situation will be a submission such as mine forwarded to the ICC prosecutor for her consideration,” Mr Gogarty said.

Under the terms of the ICC Mr Gogarty must be advised of a decision, although he is not expecting one for months.

The ICC’s Office of the Prosecutor notes that about half the matters raised with it for potential investigation or prosecution are dismissed as “manifestly outside the jurisdiction of the court”.

In November 2017, Prosecutor Bensouda advised the ICC to consider seeking charges for human rights abuses including alleged rapes and tortures committed during the War in Afghanistan by United States army forces and the Central Ingelligence Agency, the Taliban and war crimes by the Afghan National Security Forces.

Mr Gogarty said he believed an ICC investigation was necessary because “nothing else has been successful in extracting genuine accountability by the Catholic Church”.

“We’ve got a staggeringly inconsistent response from the Pope, a belligerent Vatican and extremely limited criminal accountability for letting this global tragedy unfold,” he said.

More than 100 heads of national bishops’ conferences will meet at the Vatican from February 21 for a three-day meeting to discuss how the church will respond to the sexual abuse crisis, after Pope Francis struggled to contain outrage in a number of countries in 2018 following abuse reports and commissions.

In January his respected American communications director Greg Burke and a second communications adviser resigned in a move widely seen as a rebuke of the way the Vatican has so far responded to the abuse crisis.

In October a member of the February conference organising committee, Cardinal Oswald Gracias of Mumbai, India, said the February meeting “cannot be cosmetic” or superficial.

“Either it will be successful, or it will be a disaster for the church,” Cardinal Gracias said.

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