Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent ten years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission's findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality behind excessive physical violence with the recklessness of allowing known pedophiles access to children highlights an important definitional requirement of crimes against humanity: that such not only be widespread and systematic-which both clearly are-but that such be in the context of an attack directed against a civilian population. While the systematic use of excessive corporal punishment to control children committed to industrial schools constitutes an "attack" upon them, the systematic cover-up of sexual abuse to prevent public scandal thereby causing widespread sexual abuse raises the question of whether an "attack" on a civilian population can be the result of criminal recklessness.
The atypical characteristics of the perpetrator, victim, and non-conflict context of these crimes also contribute to the debate on two unresolved issues in international law: first, the role of a "state policy" underlying an attack and whether the existence of one is a definitional requirement or simply an evidential consideration; second, whether a culpable omission forming the basis of international criminal responsibility can be based on non-criminal legal duties.
"Justice for crimes against humanity must have no limitations."1
Recent calls for the prosecution of Catholic Church officials reflect a deep sense of outrage at what reasonably appears to be widespread sexual abuse by clergy.2 While these crimes are undoubtedly violations of national law, whether they are violations of international criminal law is a question poignantly raised by these allegations. Some commentators have emphatically asserted that crimes against humanity have been committed and that high church officials should answer for them. Garnering less media attention are crimes of physical abuse perpetrated in childcare institutions operated by religious congregations. This article considers the question of whether international crimes were committed by applying the definitional requirements of crimes against humanity to the factual findings of a quasi-judicial commission established by the Irish government that for over ten years investigated allegations of systematic physical and sexual abuse in Ireland's childcare institutions.4 The report of the Ryan Commission was chosen for this exercise because of the thoroughness of its work, the similarity of its methods to the judicial adjudication of disputed facts, and its detailed analysis of the evidence it heard. Although the work of the Ryan Commission focuses on a limited set of allegations and not the overall problem of clerical sexual abuse facing the universal Catholic Church, it does provide the reliable findings upon which to consider questions related to international law. While the following analysis is limited to the findings of the Ryan Commission with respect to the Christian Brothers' childcare institutions, it is relevant to the broader debate of widespread sexual and physical abuse by Catholic clergy.
John Branded served as a Christian Brother for almost twenty years. His sexual and physical abuse of children was commonly known to superiors of the Christian Brothers congregation. He was removed from the Christian Brothers with a grant of dispensation from his vows - a process that concealed his criminal acts. …