The Schks case - the DFA acted in our national interest

There is a major problem when discussing the Vienna Convention on Diplomatic Relations. The Convention as adopted in 1961, remains as is today. However, in the course of its application, some key provisions have been transformed by the signatories without formally amending the Convention.

Senator Vicente Sotto had raised the question why Erick Bairnals Schks was not placed under the jurisdiction of the local courts for committing a sexual offense. He pointed out that Schks’ offense has no connection with his official duties. He was correct if one interprets the Convention literally. However, as we shall note in due course, this interpretation no longer jibes with the current application of the Convention by the signatory states.

The Vienna Convention on Diplomatic Relations created two levels of immunity. At the top level is the diplomatic staff i.e. those who perform diplomatic functions. They have what is referred to as “absolute immunity.” The diplomatic staff comprises the Ambassador down to the lowest ranking diplomatic secretary called in diplomatic parlance “attaches.” They cannot be charged either in civil court or in criminal court. To cite an example, an attaché who borrows money and fails to pay the same, cannot be charged in civil court. If he issues a bouncing check, he cannot be charged in criminal court. The local courts do not have jurisdiction in these instances.

The other kind of immunity under the Vienna Convention is the immunity granted to the non diplomats. The so called “administrative and technical staff” of an embassy, composed of personnel who perform housekeeping and staff functions e.g. clerks, drivers, messengers, etc. are subject to the rule of “functional immunity.” These embassy personnel can claim immunity only if they can show that their actions are in connection with the performance of their official duties. Otherwise, they are subject to local jurisdiction.

 It could be argued that the Convention was obsolete from the time it was adopted in 1961. The practice of granting two sets of immunities by segregating the diplomatic staff from the administrative and technical staff, was based on traditional diplomatic practice. However, since the start of the Cold War in 1946, the big powers had already been routinely accrediting spies as diplomats. These spies are obviously not engaged in performing diplomatic functions. (They should be part of the technical staff). In the event they are compromised, they evade imprisonment by invoking their immunity. They are just expelled by the receiving governments as persona non grata.

The Philippines got caught in this diplomatic game and has to go around the two-tier system of immunity, when we started opening diplomatic relations with the communist countries in the late ’70s and early ’80s. One staff member of an embassy, the cipher clerk, who codes and decodes top secret messages, will be vulnerable without diplomatic cover. To emphasize this point, we do not want to risk our cipher clerk in Moscow being picked up for a minor offense like jay walking and then have him detained and interrogated by the local police and the KGB. He could under pressure be made to spill out the keys to our embassy codes.

Thus, we have to play the same game that the other countries were doing. We started accrediting as diplomats our cipher clerks by accrediting them as “attaches.” But this practice still leaves out other key embassy personnel like the secretary of the ambassador and the records clerk of the embassy, who have also access to restricted information about the embassy operations.

During the term of then Foreign Minister Arturo Tolentino in the early ’80s, the selective designation of key embassy personnel in communist countries was changed. All the embassy personnel in communist countries which should properly belong to the administrative and technical staff, were accredited as attaches. This includes the drivers and the messengers of the embassy. Eventually, this practice was also extended to all our embassies operating in unstable regions of the world like the Middle East.

In this regard, careful note should be taken that when a sending government asks for the accreditation of a diplomat, the host government very rarely questions the bona fides of the person for whom accreditation is being requested. By mutual consent among the signatory states, the rule in the accreditation of diplomats has become: “Don’t ask, don’t tell. If they do wrong, don’t jail but expel!” The signatories to the Convention recognized that if a receiving government starts questioning the bona fides of a diplomat being accredited, the Convention will become unworkable. Imagine what happens if each government asks a prospective diplomat to submit to drug , HIV and psychiatric tests. Thus the system now is the host government accepts at face value the representations of the sending government regarding the accreditation of a diplomat.

This explains why it was irrelevant to ask what duties Schks was performing in the Embassy of Panama. He was accredited as a diplomat and we had recognized him as such. The DFA followed what has become accepted international practice that is, not to question what duties Schks will actually perform in the Embassy of Panama. When he did wrong, we did not jail him but expelled him. Evidently, we are happy with this practice. We also benefit from this system, witness our cipher clerks and drivers getting accredited as attaches.

The removal of the distinction between the diplomatic staff on one hand and the administrative and technical staff on the other, is a quantum change in traditional diplomatic practice. As late as World War I, the members of the diplomatic staff came mainly from the nobility. Great Britain did not open its foreign service corps to civil service examinations until 1919. The United States did not establish a career foreign service corps until 1924 with the enactment of the Rogers Act. Until then most American diplomats also came from the elite groups. Only affluent persons were commissioned as American diplomats.

As one can intuitively guess, the administrative and technical staff of embassies came from the lower classes. The members of the royalty do not perform clerical or housekeeping work. Thus, the Vienna Convention perpetuated the class distinctions in traditional diplomacy when it provided for the two-tier system of immunity. It is an anachronism in our modern age. The countries of the world just put it to rest quietly by mutual consent without amending the Convention. When a country can accredit a driver as attaché without much fanfare, it confirms that this proviso of the Convention is dead.

A key word, which has been left out in the discussions on the Schks case, this is the issue of RECIPROCITY. In the current dispute, we must respect the absolute immunity Schks enjoys under the Convention. He was accredited to us as a diplomat by Panama and we recognized him as such. It goes without saying that we can enjoy the full benefits accorded by the immunities spelled out in the Vienna Convention, only if we do the same to other countries. If we do not recognize the immunities granted under the Convention to the diplomats of other countries accredited to the Philippines, the other countries will do the same to us. Thus we could end up exposing our Foreign Service personnel assigned in sensitive areas of the world, to actions which could imperil our national security. This takes on an added importance now that we are in an adversarial relationship with Beijing in the West Philippine Sea. We would not like to change the rules of the game at this time and have our cipher clerk in the Embassy in Beijing stripped of his diplomatic cover. 

The Schks case should be viewed in this light. We fully sympathize with the victim of Schks. However, the DFA cannot take steps that will harm our national interest just to protect the virtue of a local girl. The best advice we can give our citizens is to be careful when entering into relationships with foreign diplomats. Our courts have no jurisdiction over them.

The DFA simply followed the rules of the game i.e. “DON’T ASK, DON’T TELL, DON’T JAIL, BUT EXPEL!” when it let Schks go scot free notwithstanding his violation of Philippine laws. Remember, this had to be done in the national interest.