Immunity

“Can Gloria Macapagal-Arroyo be tried in an international court?” I asked Professor Tuazon a year ago in our Special Topics in Political Science class. We were discussing the theory of command responsibility then and I was interested to know whether it could apply to our beloved President regarding accusations of human rights violations.

“How?” the professor asked. I didn’t know. He proceeded to explain that while the President is in power, she cannot be tried for anything anywhere. We might have hope after her term is over (hopefully) in two years when she could be tried in any court—local or international—but it is not that simple. It depends on the political landscape present in two years’ time.

That same question was discussed in my Public International Law class the other week. According to customary international law, there are two kinds of immunity: sovereign immunity, which covers both the state and the head of state, and diplomatic immunity which applies to consuls and diplomats. While diplomatic immunity is not absolute (for example, a diplomat in another country not his homeland can be tried in that country’s courts for stealing the crown jewels), sovereign immunity has no exceptions while the head of state is in power. The President can do absolutely anything without being sued.

Now this is the important bit: even when the head of state’s term expires, immunity still applies, but only to official actions done in his or her capacity as head of state. Thus, even if Gloria is proven to be guilty of commanding arbitrary execution and enforced disappearance of her political foes through the police and the military, she is still considered to be acting in her sovereign capacity.

However, even if she wasn’t, she could not be tried in any international court as long as the succeeding government does not waive her immunity. That is the bottom line. The only other option (given that the immunity is not waived) is for her to be tried in a local court, which, as we all know, did not end nicely the last time this was attempted (remember Erap?). I think that most of us prefer that she be tried in an international court where judgment is generally swift and impartial, but this could not be possible if the next government does not relinquish her rights as former head of state.

It’s all politics, really. Unfortunately we almost always care for our own.