Why haven't they asked for him?
Oliver Miles · Diplomatic Asylum
Julian Assange has been given diplomatic asylum in the Ecuadorian Embassy in London. How did this peculiar situation arise and how will it end? I’m not concerned here with the rights and wrongs of the Assange story. In accordance with a court decision, the UK has a legal obligation to extradite him to Sweden, and is determined to fulfil that obligation, as the FCO has stated.
There are many myths about diplomatic immunity: that ambassadors are allowed to break the law, or that the Ecuadorian Embassy in London is legally Ecuadorian territory. I am not an international lawyer or a protocol expert, but, like all diplomats, I have some practical experience of the way diplomatic immunity and privileges work.
An important point to emphasise is that the rules are not British but international, accepted in principle by all governments. The British government cannot simply change the rules, although it can seek to get them changed – a tedious business – or of course it can break them, in which case it may pay a penalty.
Ambassadors (and their families and diplomatic staff) are expected to obey the law, but if they do not they are not subject to arrest or prosecution by the receiving government. So if, say, the French government thought the Australian ambassador in Paris had broken the law, their only option in the last resort would be to expel him. This is their absolute right, and they may or may not give any explanation when they do so. If the Australians feel wronged they may expel the French ambassador from Canberra in the same way.
The immunity of diplomatic premises stems from the immunity of the ambassador. The French authorities may not enter the Australian Embassy. When I told the Libyan government in Tripoli in 1984, following the murder of Yvonne Fletcher, that their staff in London had to leave within a certain number of days, and the Libyans ordered us out, the British police did not enter the Libyan Embassy as long as the Libyan diplomats remained, but they did so afterwards and the same thing happened in Tripoli.
There is an important exception: the Australians might invite the French to enter the embassy. The storming of the Iranian Embassy in London by the SAS in 1980 is an example. Armed men had seized the embassy and taken hostages, and the Iranian government asked the British government to deal with the situation.
Harbouring someone in the embassy needs to be considered according to these rules. There is little or no special doctrine about diplomatic asylum, not at least in Europe although there is a history in Latin America. Nor is there any form of diplomatic safe passage from asylum in an embassy to a port or airport; departure from the Australian Embassy would have to be courtesy of the French authorities, as in the case of Cardinal Mindszenty who was given asylum in the US Embassy in Hungary in 1956 and eventually left under arrangements negotiated with the Hungarian authorities 15 years later. Jeremy Harding quotes someone talking of Assange being ‘set on a rapid path to Ecuadorian citizenship and finally awarded a minor consular position, which gets him from the steps of the embassy to a boarding gate at Heathrow under diplomatic immunity’. That won't wash: you don't get diplomatic immunity in Britain until your name has been notified by your government and accepted by the FCO, which can refuse without giving reasons.
When Assange went into the Ecuadorian Embassy I assumed that the FCO would ask the Ecuadorians either to hand him over or let the British police go in and get him. Not to do so would send a message to every crook in London: find an ambassador, pay him off, and you have free passage to the Costa del Crime.
If the Ecuadorians said no, the British government would be under no international diplomatic obligation to take the matter further, but if they did not do so they could not fulfil their obligation under British and European law to extradite Assange to Sweden. I would assume that they would assess their options, up to and including expelling the ambassador, considering ways to get the Ecuadorians to change their position, and taking into account other British interests that might be at risk. Timing is always important, and in this case it seems that the British government need be in no particular hurry.
My experience is that in any significant diplomatic crisis some of the facts will be public knowledge but others will not. I do not therefore criticise the government's inaction so far or speculate what other factors they may be considering. But I do wonder about one thing: why has nobody asked them?
Comments
And in any case the UN would have to accept Assange's appointment as an Ecuadorean diplomat, a proposition many countries (ie not just US/UK) would find extremely annoying
So we could heave out the Ecuador diplomatic team but still have no right to enter the Embassy. Ecuador would be entitled to claim immunity for the building and eg ask another Embassy to keep an eye on it (as we did when we abandoned our diplomatic estate in Serbia when NATO was bombing the country in 1999!).
If we broke off all diplomatic relations with Ecuador AND explicitly stripped all its buildings of their diplomatic status, that would work. Assange would be high and dry. It would be 100% lawful under the Convention but looks like using a tank to crush a walnut and so sets a dismal and unworthy precedent
My understanding at the time, which I stated publicly, was that Britain and Libya were responsible for protecting the vacant diplomatic premises, but there was no question of immunity.
However if Charles is right or partly right this may be a grey area and could explain one small mystery: why did the British government dredge up the Diplomatic and Consular Premises Act 1987, which wrongfooted us by allowing the Ecuadorians to accuse us of threatening to breach the embassy's immunity? Perhaps the 1987 Act was thought to be relevant to the situation which would arise if the Ecuadorian diplomats were kicked out but Assange remained in the embassy.
The VCDR does not specify how long the premises of the mission should preserve diplomatic status (remain inviolable). It is the lacuna which the 1987 Act tried to cover.
Here are more details on the way how to cover this lacuna in the Vienna Convention: http://www.diplomacy.edu/blog/international-law-and-assange-asylum-case
Could anyone explain what that means? Does the UK not grant diplomatic asylum in their missions? A link to a law would be helpful.
Furthermore, the UK made a law( http://www.legislation.gov.uk/ukpga/1987/46 )to be able to enter the premises of an embassy or consulate in a particular situation. However, is that national law unlawful in the international scope?
Wouldn't additionally the included condition for the decision by the Secretary of State to comply with international law prohibit the access to the embassy premises almost in every case?
Most countries of course reject the principle for obvious reasons - who needs a steady stream of fugitives from justice and other trouble-makers entering diplomatic premises and causing a big problem? It is NOT a principle or standard of general international law.
As you say, the proviso in our 1987 act that the SoS has to be satisfied that withdrawing diplomatic immunity is appropriate under the Vienna Convention makes it almost vanishingly unlikely that that will happen (unless there is brazen breach of the Convention by an Embassy itself, as in the Yvonne Fletcher case).
That said, in some situations people do enter Embassies to seek asylum of some sort or to make a protest, and then the governments of those Embassies have to sort out what to do, usually by negotiating a face-saving ad hoc deal with the host country as in the recent US/China case.
Here Ecuador is arguably in breach of the convention by taking Assange in, but the scale of their abuse does not justify the FCO stripping the Embassy of its immunity. So the 'threat' to do so in the speaking notes handed to Ecuador by the FCO was unwise.
It is not generally understood (and not really made clear in Oliver's article) that the practical application of the Vienna Convention itself is subject to local laws and varies from place to place. Diplomatic bags for example are required to go through customs, and while this is usually a formality it need not be if something fishy appears to be going on.
My own piece on all this is here: http://www.thecommentator.com/article/1539/assange_asylum_and_immunity
Remember that one of the original Wikileaks revelations was of Swedish public duplicity over the depth of Sweden's connivance with the US.
In any case, even if it were unprecedented, it wouldn't mean that it couldn't be done, especially in such very extraordinary circumstances as these.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assange-summary.pdf
Assange's lawyers' argument was based on the Extradition Act, the rejection of it on the EU law. It seems therefore that the UK, at the same time as it was supposed to be harmonizing its legislation to accommodate the EWA, passed an Act with clauses in contradiction to it. Is that a fair summary?
http://www.legislation.gov.uk/ukpga/2003/41/section/2
Why not just ask us?
The US would not publicise its wish to extradite Asange from Sweden because that would weaken the UK government's case for handing him over to Stockholm.
Fortunately, having tested the waters, Cameron and crew have pulled back from the idea of invading the embassy.
Having successfully thrown off (except for Columbia and who knows where we are in Paraguay and Honduras?) American hegemony, most of L.A. is very anti-colonial at the moment and any UK violence might have considerable backlash.
No. Human Rights Watch says don't trust the Swedish government: http://www.hrw.org/news/2006/11/09/sweden-violated-torture-ban-cia-rendition
My guess is that the legal position is not straightforward: nothing is about the Vienna Conventions, which are founded one glorious fudge - that diplomats (a) are immune but (b) should always respect local law.
Other than that, I'm amused by echoes of our last great Latin American legal tangle, the Pinochet extradition. Although quite a different situation in many respects, has anyone noticed that Assange is being advised by none other than the political Spanish judge Balthazar Garzon, who so cleverly ambushed Pinochet in the UK and kept him here for 16 months? Or that Ecuador's cheerleader is Jose-Maria Insulza, now Secretary General of the OAS, who as Chile's socialist Foreign Minister played such a two-faced role in that previous episode?