Assange: the FCO seems to have lost the plot. Here’s what to do

If I were to be asked, however improbably, to advise the Foreign Secretary, William Hague, on the position regarding Julian Assange and the alleged right of the British authorities to enter the Ecuadorean embassy to arrest him without Ecuador’s permission, I might write a submission on these lines:

Summary

The British government’s threat to force its way into the Ecuadorean embassy to arrest Assange without Ecuadorean consent was a tactical and public relations blunder, and the claim that Britain had a right in law to take that action was embarrassingly wrong.  Under the Vienna Convention, which can’t be overridden by any UK law, the embassy has immunity from search or entry without its consent.  There should be an inquiry to establish the responsibility for such an extraordinary blunder.  How best to try to end the impasse over Assange’s future (and if possible to fulfil our legal obligation to extradite Assange to Sweden) depends now on persuading the Ecuadoreans to persuade, or compel, Assange to leave the embassy and give himself up, as the only alternative to lifelong detention inside the embassy, or to persuade Assange himself of this reality, or to persuade the Swedes to drop their application for Assange’s extradition (given that he has not been charged with any offence), or to turn a blind eye to an Ecuadorean arrangement to fly him to Ecuador without being arrested between the embassy and the plane.  Several of these options, but regrettably not the last, are worth trying simultaneously.  If they all fail, there may be no alternative to doing nothing, and accepting that Assange will remain indefinitely in the Ecuador embassy.

Background

Julian Assange, an Australian citizen and the founder of Wikileaks, has taken refuge in the embassy of Ecuador in London to avoid being arrested by the Metropolitan Police under an EU arrest warrant and extradited to Sweden, where he is wanted for questioning about alleged sexual offences, although he has not been charged with any offence there.  Assange fears that if extradited to Sweden, he risks being re-extradited by the Swedes to the United States and prosecuted there for offences (some of which might carry the death penalty).  Meanwhile the government of Ecuador has granted Assange political asylum as a political refugee; the British government says it will not grant Assange safe passage from the Ecuadorean embassy to a UK airport or port to enable him to go to safety in Ecuador;  and the Foreign & Commonwealth Office has reportedly informed the government of Ecuador in writing that the UK government claims the right, under the UK’s Diplomatic and Consular Premises Act 1987, to send its policemen or others to enter the Ecuadorean embassy, if necessary without the consent of the Ecuador ambassador, and there to arrest and remove Mr Assange — a claim vigorously rejected by the Ecuador government as contrary to the Vienna Convention, 1961, and thus in breach of international law.

The legal position

Assange has been lawfully arrested for extradition to Sweden under a valid warrant which HMG is legally obliged to try to execute.  Assange has violated his bail conditions by taking refuge in the Ecuador embassy and is therefore liable to be re-arrested and held in UK custody pending extradition to Sweden.  The immediate question is whether HMG may lawfully arrest Assange inside the embassy without the consent of the Ecuadorean authorities.

The Vienna Convention 1961 provides that “The premises of the [diplomatic] mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission…  The premises of the mission … and the means of transport of the mission shall be immune from search, requisition, attachment or execution”  (Article 22).  That seems as clear as it could possibly be.

The UK’s Diplomatic and Consular Premises Act 1987 purports to empower the Foreign Secretary to decide what land and premises may have diplomatic or consular status and thus be entitled to diplomatic immunity, and to withdraw diplomatic or consular status from any land or premises if “a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post” (S. 1(a)) — but the Secretary of State may exercise his powers under the Act only “if he is satisfied that to do so is permissible under international law” (S. 1(4)).  (The limitation expressed in the word “exclusively” applies only to consular premises, which are irrelevant to the present case.  Diplomatic as distinct from consular premises, such as an embassy, may obviously be used for purposes other than and additional to those of the mission, without risking withdrawal of their diplomatic status and immunities by the Secretary of State.)  The Vienna Convention forms part of international law and thus part of UK law, binding on the government and everyone else. Accordingly, the Secretary of State’s powers under the UK law can’t override the protection given to the Ecuador embassy under the Vienna Convention.  In fact, they couldn’t anyway, even if the UK law didn’t stipulate that they can’t.  A state can’t escape from its obligations under international law by passing a law purporting to give itself permission to do so.  If it could, all treaty obligations would be worthless, including those imposed by the United Nations Charter.

It’s worth noticing that not only the embassy itself but also “the means of transport” of the Ecuador embassy — such as the ambassador’s official car — are “immune from search, requisition, attachment or execution” under the Convention, which suggests that if Assange could be put into an embassy car without leaving the embassy premises, he could then be driven to an airport or port without any fear of the car being stopped and Assange hauled out of it and arrested.  On the car’s arrival at the airport or docks there might in principle be a few moments when Assange could be arrested and prevented from escaping to  Ecuador, but probably not before then.

Political aspects

The protection given to embassies under the Vienna Convention is essential if diplomats are to be able to do their jobs without interference and harassment by the local government.  There are many British embassies and high commissions around the world which would be vulnerable to invasion and perhaps personal violence, the seizure of confidential documents, the wrecking of communication systems and the arrest of embassy staff, if the host countries were able to ignore their Vienna Convention obligations — and some would be quite likely to attack our embassies if they could quote as a precedent for doing so action by HMG to invade the Ecuador embassy in order to arrest Assange in clear contravention of our international law obligations and indeed of our own law.

By the same token, Britain (like many other western countries) has from time to time been able to protect refugees from oppression or injustice in totalitarian states by giving them temporary asylum in one of HM embassies, pending discussions with the host authorities of safeguards to be observed when they leave the embassy.  Such a case occurred during my own time as a First Secretary in the British embassy in Moscow in the early 1970s, at the height of the cold war.  The case of Cardinal Mindszenty of Hungary also comes to mind.  In the words of Wikipedia,

The Venerable József Mindszenty (March 29, 1892 – May 6, 1975) was a cardinal of the Roman Catholic Church as the Archbishop of Esztergom in Hungary. He supported Church freedom. He was an opponent of communism and the Stalinist persecution in his country. As a result, he was tortured and given a life sentence in a 1949 show trial that generated worldwide condemnation, including a United Nations resolution. Freed in the Hungarian Revolution of 1956, he was granted political asylum and lived in the U.S. embassy in Budapest for 15 years. He was finally allowed to leave the country in 1971. He died in exile in 1975 in Vienna, Austria.

Even communist Hungary in cold war days resisted the temptation to violate the immunity of the American embassy in Budapest by forcibly entering it to arrest the Cardinal, although for 15 years he was unable to leave the embassy’s premises for fear of being arrested immediately if he did so.

It has been suggested that our legal obligation to extradite Assange to Sweden overrides our Vienna Convention obligation to respect the immunities enjoyed by the Ecuador embassy.  Such an argument doesn’t survive a moment’s thought.  We are obliged to arrest and extradite Assange if and when we can legally lay hands on him.  At the moment, we can’t.  There can be no blame for failure to do the impossible, an established legal principle as well as a matter of common sense.

It’s thus safe to predict that if Britain were to act in the way we have apparently threatened to do (even claiming the legal right to do), and forced our way into the Ecuador embassy to arrest Assange without the ambassador’s permission, we would arouse a storm of protest and indignation around the world.  The episode could only end in our humiliation and a formal undertaking never to repeat our offence.  Legal action against us would be almost certain.  We would have few, if any, defenders.  Assange might even benefit from the event, since the courts might well rule that his arrest on foreign diplomatic premises had been illegal.

Recommendations 

By threatening the Ecuadoreans with action in plain contravention of international law, we have wrong-footed ourselves, incurred widespread international incomprehension and dismay, and fatally antagonised the government of Ecuador just at the time when we need their help and cooperation in ending the impasse over Assange’s future.  Before doing anything else, we should make it publicly clear that in no circumstances will there be any entry into the Ecuador embassy in London without the consent of the ambassador, for the purpose of arresting Assange or for any other reason.  That done, we can consider the options, however unattractive they might be:

a.  We could informally indicate to the Ecuadoreans that we will turn a blind eye to any action they might take discreetly to remove Assange to Ecuador, without fuss or publicity.

b.  We could equally discreetly seek to persuade the Swedish authorities to agree to question Assange by telelink between Stockholm and the Ecuador embassy in London (as Assange has suggested), in the hope that following questioning they will decide that there is insufficient evidence to warrant charges:  or try to persuade them to agree to withdraw the arrest warrant on the grounds that in the absence of any charges against Assange, continued attempts to extradite him to Sweden would be oppressive.

c.  We could appeal to the Ecuador government to accept that we have a legal obligation to try to extradite Assange to Sweden, that he can be confident of due process and an impartial judicial system in both the UK and Sweden, and that rather than sentencing him to what could amount to life-long imprisonment in the Ecuador embassy without his having been charged with or convicted of any crime, the lesser evil is to persuade him to leave the embassy and give himself up to face extradition and questioning — not necessarily even prosecution — in Sweden.

d.  We could do nothing, and hope that eventually either Assange will get tired of being cooped up in the Ecuador embassy and walk out of his own free will, or the Ecuadoreans will get fed up with harbouring their controversial guest (never the most accommodating or cooperative of friends) in their smallish embassy, and will set a deadline beyond which he will not be allowed to stay.

e.  We could try to deport Assange to Australia as an undesirable alien.  But to do that we would need to take physical possession of him, which in turn would depend on success with (b) or (c).  And once he is in UK hands, there should be no further obstacle to extraditing him to Sweden as we are legally obliged to try to do.  Deportation to Australia might become an option if Sweden withdrew its application for extradition.

Of these, (a) is the most tempting.  But our tacit complicity would inevitably become known and Sweden would have just grounds for complaint.  Both (b) and (c) are worth a try, not being mutually exclusive, although we have damaged the chances of success with (c) by trying to bully and bluff the Ecuadoreans instead of inviting their help and cooperation in the search for a solution.  If both (b) and (c) fail, there will be no alternative to (d).

One final recommendation.  The threat to force our way into a diplomatic mission without its ambassador’s consent and in contravention of international law was a major and incomprehensible blunder which has done us great harm, as well as greatly complicating the search for a solution to the problem of Assange’s future.  Not only ministers and MPs but also the general public are entitled to know who was to blame for this blunder:  at what level in the FCO or other department it was approved:  whether the FCO legal advisers or the Law Officers of the Crown were consulted about it in advance and if so what advice they gave:  and whether ministers knew of it in advance, were advised of its illegality as well as its inadvisability on practical grounds, and approved it nevertheless — and if the answers to any of those questions is Yes, which ministers and/or officials should be held to account.  This clearly points to the need for a public inquiry.  Ministers should announce one now.

PS:  The media and the pundits are gleefully rehashing the old myth that inside an embassy one is on the sovereign territory of that embassy’s home country, and that the laws of the surrounding country don’t apply in the embassy’s buildings and grounds.  This, sadly, is not so.  Diplomats are required by the Vienna Convention to “respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State” (Art. 41).  They are immune from being prosecuted or (in most circumstances) even sued if they break the law of the country in which they serve, but that doesn’t mean they have no obligation to “respect” (i.e. comply with) them, and if they break the law in a sufficiently serious way, the receiving State is entitled to expel them.  The FCO seems to be arguing that by harbouring Assange, a bail-breaker wanted by the police, the Ecuador diplomats are either breaking UK law or at least behaving in an unacceptable manner, incompatible with their responsibilities as diplomats.  Unfortunately for the FCO, the many precedents, from Cardinal Mindszenty downwards, don’t support this argument, which, if accepted, would blow a large hole in international theory and practice regarding the right of asylum in diplomatic premises for fugitives from harsh treatment in the receiving State, whatever the rights and wrongs of the case.  In any event, complaining about the behaviour of the Ecuadorean diplomats does nothing to promote a solution of the main problem — what to do about Assange? — apart from further antagonising the very people whose cooperation we need if ever we are all going to escape from the present impasse.

Update (2330, 16 Aug 2012):  An excellent post on ‘The Blog That Peter Wrote’ corrects many widespread misconceptions about Assange, and also performs an invaluable service by supplying a link to the text of the FCO ‘letter’ — actually an Aide Memoire, less formal than a letter but still an expression of British government policy — which is available on the Web here.  The relevant passage in this revealing document reads as follows:

• We must reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable, and that we have made clear the serious implications of same for our diplomatic relations.
• You should be aware that there is a basis in law in the UK (the Diplomatic and Consular Premises Act 1987) that would permit us to take steps to arrest Mr Assange within the current premises of the embassy.
• We sincerely hope that such a point is not reached, but if you cannot resolve the presence of Mr Assange on your premises, that route is open to us.

If that’s not a threat based on an unsustainable assertion of a non-existent legal right, I don’t know what is.  If harbouring a dissident or refugee from the authorities of the host country in one’s embassy is incompatible with the Vienna Convention, the FCO needs to explain why Britain and numerous other western countries have repeatedly allowed our embassies to be used in precisely this way; and even if it were to be accepted that this behaviour is incompatible with the Convention, there is nothing in the Convention that would entitle a host government to respond by entering the embassy premises without the ambassador’s consent.  The worst that the host government could legally do in response to behaviour in an embassy that it believed to be incompatible with the Convention would be to break off diplomatic relations with the country concerned, or (slightly lower on the scale) expel the ambassador, with or without other members of her diplomatic staff.  Either measure would prompt reciprocal retaliation and have extensive ramifications going way beyond the problems presented by Mr Assange.

Brian