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Why haven’t they asked for him?

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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 on “Why haven’t they asked for him?”

  1. ghosted says:

    Could Ecuador appoint Assange to the UN? Which would avoid the need to receive approval from the FCO?

  2. streetsj says:

    it seems they have already

    • streetsj says:

      that is they have asked the ecuadorians for him

      • Thomas Jones says:

        Well, sort of: they appear to have said they can go in and take him even without Ecuador’s permission, which isn’t quite the same thing. As Miles says, ‘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’ [which is what it would be doing if it stormed the embassy, even if that would be legal under British law] ‘in which case it may pay a penalty.’ As Tony Brenton said on the Today programme this morning, if embassy premises no longer have immunity, working in a place like Moscow becomes impossible for British diplomats.

  3. Bonzodog says:

    Naive question: what would happen if the FCO made the complete Ecuadorian embassy personna non grata and flatly refuse to accredit any replacements? Yes there would be retaliation but we would still be within the terms of the Vienna Convention.

    • Oliver Miles says:

      Not naive at all – one of the more likely scenarios. When I was instructed to break off diplomatic relations with Libya, what I actually did as I have explained was to inform the Libyan Foreign Ministry that all their diplomatic staff in London were persona non grata and must leave within two weeks. I can’t remember if I actually had to add that no applications for replacements would be accepted. If we did the same with Ecuador we could legally enter the premises after the diplomats had gone. Of course we would have to assume that the Ecuadorians would expel our people from Quito. The Foreign Office will be assessing how much damage that would do the British interests, and whether there is an alternative.

      • Not necessarily. Oliver’s reply confuses (I think) two issues: the diplomatic immunity of the diplomats and the immunity of the premises. They can be separate and indeed are.

        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

        • Oliver Miles says:

          Charles may be right in theory, and I am not a lawyer or a protocol expert. But what he says does not fit what happened in Libya in 1984. We did appoint a “protecting power” (Italy) to look after our interests, and so did Libya (Saudi Arabia). But when the British police went into the Libyan premises after the departure of the diplomats and found a machine gun nobody complained. The Libyans went into our premises and naturally also found a machine gun. George Anderson, in charge of the stay-behind British interests section in the Italian embassy, was asked on TV how this squared with my statement (as departing ambassador) that there were no firearms in the embassy; he improvised brilliantly: “Paul Daniels couldn’t have done it better.”

          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.

        • Charles, it is not that simple. Article 45 of the Vienna Convention specifies that: “….. If diplomatic relations are broken off between two states…. The receiving State must, even in case of armed conflict, respect and protect premises of the mission, together with its property and archives.”

          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

  4. JamesJames says:

    Britain’s Foreign Secretary said the UK does not accept the principle of diplomatic asylum – https://twitter.com/foreignoffice/status/236133462107631616 .
    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?

    • ‘Diplomatic asylum’ allows someone wanted by a host country to enter an Embassy, be granted diplomatic asylum status (or not) and (if so) then enjoy safe passage from the country concerned. A number of Latin American countries signed a mutually binding convention to allow this back in the 1950s.

      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

  5. JamesJames says:

    Regarding Act 1987 I already found my error in reasoning. They would revoke the status of the embassy which isn’t covered by the international law.

  6. There should be a simple way out of this impasse – but it’s up to Sweden, whose cack-handed handling of this whole matter originally is one of the roots of the problem. It accepts Assange’s repeated offers to be interviewed in Britain, which is by no means unprecedented; and it agrees that if he goes to Sweden he cannot be extradited to the US. Why the Swedish authorities resist at least the first of these measures is a puzzle, and could be regarded as suspicious.

    Remember that one of the original Wikileaks revelations was of Swedish public duplicity over the depth of Sweden’s connivance with the US.

    • Andy_Johnson says:

      Could you detail precedents of suspects being interviewed outside the country in which they are accused of committing a crime, please?

      • The example usually given is an occasion recently when the Swedish authorities themselves went to interview a criminal suspect in Serbia, but I haven’t traced that back to its source yet, so I may be wrong. Hence my cautious statement, that such a practice is ‘not unprecedented’. I know that, from my studies of the British police in the late 19th and 20th centuries, when it was fairly common. It is after all a fairly obvious thing to do. There’s also apparently (again, not traced to source) a ‘Mutual Legal Assistance Treaty’ which enables this. Others might like to fill me in on this.

        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.

      • alex says:

        It seems the Swedes have little reason to say they cannot question him over the internet. As an academic I have viva’d a PhD over Skype because it would have been very expensive for the candidate to travel to the country in which he was alleged to have (indeed claimed to have) ‘committed’ his PhD. So can’t they do the same?

        • Salil says:

          I think there’s a difference between being interviewed fora PhD viva – which doesn’t involve any suggestion of breaking any law – and being required for questioning for having possibly committed a serious crime.

          • alex says:

            Assange has made himself available for questioning; he has just not agreed to be taken to Sweden to have it done, because current extradition agreements don’t cover this, you have to have been actually charged. Whether he has been or not was what Assange’s lawyers and the High Court disagreed on:
            http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/assange-summary.pdf

            • I only wish this were so, but it’s not. The position changed in 2003 when the European Arrest Warrant was introduced. Under that you don’t need a formal charge. See my post of 11 February 2011 (4th para) on this.

              • alex says:

                Thanks Bernard – I stand corrected and note the prescience of your analysis which anticipated the actual outcome. Still, we agree on the fact that it’s unreasonable.

              • alex says:

                Just trawling back over my error, the European Arrest Warrant was established by a ‘framework decision’ in Jun 2002 but only came into force in Jan 2004 (and in only 8 of the then 15 EU countries). Meanwhile, the UK passed the 2003 Extradiction Act which states (s. 2(3)) that the warrant is only valid if (a)the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and (b)the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
                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

  7. philip proust says:

    Perhaps the brute facts are being overlooked in this interchange. It has to be assumed that Washington is putting maximum pressure on London to get Assange to Sweden, so he can be transferred to a dungeon in the US. (Torturers in the CIA will already have drawn up a suitable set of ordeals to test the strength of Assange’s will.) When Oliver Miles states that his ‘experience is that in any significant diplomatic crisis some of the facts will be public knowledge but others will not,’ he is inviting us to speculate about what Obama might have on Cameron and his team to tempt them to violate a diplomatic taboo. Whatever it is seems to be working. Given the utter crudity of current US politics, it is conceivable that Assange will be served up to the patriotic US public as a trophy to match Bin Laden: thus the twin pillars of international terrorism will have fallen by Obama’s hand. Just the thing to tip the balance in a close election.

    • A.J.P. Crown says:

      I don’t agree. The US doesn’t need to have anything special on Cameron, this happens all the time. The last time Britain disobeyed the US was nearly fifty years ago, when Harold Wilson refused to send troops to Vietnam. The US isn’t interested in Assange because of the election; it’s advertising, an awful warning to like-minded perps in the future: you can run but you can’t hide, and we will get you in the end, so don’t do it. That’s why it’s very important to do everything possible to protect Assange.

    • It is baffling how apparently sensible people seem to think that the USA has a masterplan to get Assange to Sweden and then extradite him from there.

      Why not just ask us?

    • Salil says:

      But why would the US want Assange to be brought to Sweden first? You only have to look at UK’s record vis-a-vis the US over extradition – is there a more pliant country than the UK? And has the US initiated any criminal proceedings against Assange? And has Sweden ever extradited anyone who might face the death penalty?

      • philip proust says:

        Assange still has considerable support in the UK, where admiration for dissidents remains high in some quarters; apparently, sympathy is low in Sweden.
        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.

  8. bilejones says:

    I’m sure the lickspittle British are calculating just what the reaction would be throughout Latin America.
    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.

  9. overned says:

    If Cardinal Mindszenty was given asylum for 15 years, and more recently Fang Lizhi and Chen Guangcheng were granted shorter stays in US Embassies, it’s hypocritical for the US to suddenly take umbrage at the practice.

    • Salil says:

      Fang Lizhi wasn’t given asylum in the US initially. He went there for medical treatment. Chen Guangcheng left the embassy on his own, and later applied for a fellowship, and has left for the US for further studies.

  10. streetsj says:

    Ignoring the legal niceties for a moment – a standard procedure in International Law – we have an obligation to deliver the pale one to Sweden to face rape charges. Do we really not trust the Swedes to do the right thing?

  11. Is Oliver Miles right to dismiss so lightly Jeremy Harding’s suggestion (that the Ecuadorians might give Assange citizenship followed by a minor diplomatic position that would confer immunity, and hence a free ride to the airport)? In my own diplomatic experience only Ambassadors require the agrement of the host government; they can appoint whomever they like to their staff, although there might be a distinction between mere appointment and the granting of an immunity-conferring diplomatic visa, which remains in the gift of the receiving authorities.

    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?

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