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:


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.


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.


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.




22 Responses

  1. Lorna says:

    Yes indeed.

  2. Phil says:

    I missed this story yesterday and have been catching up with it in reverse; the first I heard was a statement by Hague to the effect that Britain would not storm the Ecuadorian embassy, which was rather an alarming reassurance!
    Revoking diplomatic immunity by stealth – which seems to be what this proposed use of the 1987 Act would amount to – is the kind of staringly bad idea that never should have escaped from the lower reaches of a briefing paper. I suspect political pressure; I picture a junior minister standing over a senior civil servant and refusing to leave until he gets the right answer.
    OK, so it’s a bit sneaky. But can we do it?
    – It would set a very problematic precedent in terms of international law.
    Yes, but can we do it?
    – It would drive a coach and horses through our international obligations.
    We can sort that out later. For now, can we do it?
    – It would be very risky and enormously unpopular.
    So you’re not saying we can’t do it?

    Brian writes: Thank you for this extremely plausible scenario, Phil: junior minister, tasked by his (probably not her) boss with a good ‘robust’ course of action and not taking any nonsense from queasy lily-livered civil servants, bullies his officials into acquiescing in what turns out to be a disastrous blunder. Any official worth twopence will say bluntly that what’s proposed is illegal and that the government must not even consider acting illegally, period. It’s difficult to understand why (according to this evening’s news bulletins) Mr Hague, who’s pompous and arrogant but no fool, is apparently persisting in the assertion that in the last resort he has this power to order the storming of the embassy in order to seize Mr Assange. I just hope he realises that it’s nonsense and that he can’t possibly do it without incurring the outrage and ridicule of the world. Bluffing on such a scale is nearly always a mistake in diplomacy, especially if he doesn’t realise that he’s bluffing.

  3. Pete Kercher says:

    Eminently clear and sensible, Brian.

  4. Paul Wyatt says:

    Is there a technical loophole available to Assange if the Ecuador government were to designate him as a diplomat?  Would this allow him to leave the embassy without fear of arrest?

    Brian writes: Thank you for this very interesting question. I have replied in a separate comment.

  5. Derek Tonkin says:

    Not so long ago we collected 52 signatures from former senior diplomats to protest at Tony Blair’s Middle East polices. This caused quite a stir. Might we perhaps now aim for 104 signatures on an issue of universal importance? If Brian could draft, I will happily co-sign.

    Brian writes: Thank you for this flattering suggestion, Derek. Unfortunately I don’t have the network of contacts with former colleagues that would be necessary for the organisation of such a round robin letter. Also I doubt very much whether this is an issue that’s really comparable in its importance with the dreadful policy mistakes being committed by the government in its middle east policies at the time of the letter of the 52. I would hope that the inadmissibility and likely dreadful consequences of the action apparently contemplated, or anyway threatened, by Mr Hague will be widely recognised and understood long before he seriously plans to carry out his threat. But maybe I’m wrong!


  6. Brian says:

    I have added the following update to this post:

    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.

  7. Brian says:

    Brian writes: Thank you for your interesting comment (at, Paul. My understanding is that technically Ecuador could indeed give Mr Assange diplomatic status by appointing him to the staff of its embassy in London (although his Australian citizenship might complicate matters); and the appointments of diplomatic staff other than the ambassador don’t require the receiving government’s approval. Britain would be free to respond to any such ploy by expelling Assange as soon as his appointment was notified to the FCO, on the grounds that he was wanted by the police for skipping bail and for extradition to Sweden and was therefore an unsuitable person to represent Ecuador in Britain in a diplomatic capacity, especially as he has no known personal connection with Ecuador. However, expelling him would not remove his diplomatic status or his immunity from arrest as long as he remained on UK soil, and in my (totally inexpert) opinion he would be free to leave Britain without fear of arrest, e.g. to go to Ecuador which has offered him political asylum. Actually, this might even provide a solution acceptable to both sides (but not to Sweden, of course)!

    Britain could and no doubt would demand that the Ecuador ambassador waive Assange’s diplomatic immunity to enable us to arrest him before he could leave the country and extradite him to Sweden. But the Ecuadoreans would be within their rights in refusing to waive his immunity, and it’s most unlikely that they would agree to do so.

    Perhaps someone with more expertise in these matters than myself would point out any holes in this scenario?

  8. Tim Weakley says:

    Many thanks for this lucid analysis.  I came to this story late: have the Australians had anything to say, recently or in the past, about the problems of one of their citizens and the struggle for possession of his person?

    How big is a diplomatic bag – you may recognise my train of thought?  Sorry, frivolous again. 

    Brian writes: Thank you for this. I haven’t had time to read the Australian press online to see what reactions there have been there to the situation that this Australian has put himself in: can anyone answer that question, please?

    As to the diplomatic bag, although there is no power to search it, it’s permissible for the host government’s authorities to scan it, X-ray it and listen to it, and the presence in it of a person would be easily detectable. In that case there’s a fairly precise precedent (the Nigerian Dikko affair) for opening the bag and removing its human occupant.

  9. Will says:

    It’s worth noting that the bedrock principle of the British constitution is Parliamentary supremacy. If Parliament legislates to ignore the Vienna convention, that would be perfectly legal – it only has any force here becsuse Parliament chose to recognise it.
    Of course, although that would be mightily stupid, it wouldn’t be illegal.

    Brian writes: Thank you for this, Will. Although I’m not a lawyer (you may say that that’s obvious!), I do have the impression that the doctrine of Parliamentary supremacy is widely regarded as time-expired, especially as being incompatible with our EU membership and in practice, if not in theory, with devolution. Britain has voluntarily accepted numerous obligations under international agreements and conventions which can’t be unilaterally revoked by its parliament: these include our obligations under the Vienna Conventions and the UN Charter and those arising from our membership of the EU and WEU. It’s true that if parliament chooses to pass laws purporting to override provisions of international law by which we are bound, the UK courts would be bound to try to administer and enforce the UK law. But the UK courts would also be likely to draw attention to the conflict with international law, probably with a call on the government to take action to resolve it. In any case, whatever a UK law and the UK courts might say, if HMG acts in contravention of an international legal obligation (e.g. by entering the Ecuador embassy without its consent), it would be virtually certain to face action against it in an international court, and likely to face reciprocal diplomatic action by other countries against our own embassies and diplomats. Citing a domestic UK law in justification would cut no ice at all internationally.

    But all this is irrelevant to the present case. The UK law in question, the Diplomatic and Consular Premises Act 1987, purports to give the Secretary of State certain powers in relation to the diplomatic status of land and premises in circumstances which clearly don’t apply to the embassy of Ecuador, and anyway forbids him to exercise them unless “he is satisfied that to do so is permissible under international law.” So the question whether this law overrides UK obligations under the Vienna Convention doesn’t arise. It’s surely highly regrettable that the UK Aide Memoire to the Ecuadoreans should have misrepresented the legal position in this blatant way.

  10. Hilde Lervik says:

    Why does not anyone discuss the likelihood of Sweden extraditing him to the US? Why so afraid if innocent? I must say his actions look as he has something to hide… just wondering…

    Brian writes: Thank you for this, Hilde. Actually this question has been extensively discussed here in the UK (and I would be surprised if it was not also being discussed in Sweden). The evidence produced by Assange’s lawyers that the US is likely to seek to extradite Assange from Sweden is fairly thin, although it would be surprising if at some stage the Americans didn’t decide to charge Assange with some kind of offences under US law in connection with his Wikileaks revelations. Neither Sweden nor Britain would extradite Assange to the US if the charges for which he was wanted could involve the death penalty.

    As for whether Assange has “something to hide”, I don’t think there can be any doubt that serious allegations of sexual offences, including one of rape, have been made against Assange in Sweden (and that he denies them); or that Assange was involved in the publication of a very large number of US government official documents that were classified up to Secret. The fact that many people applauded the Wikileaks disclosures is irrelevant to the obvious fact that the disclosures may have involved at least one person, and probably many more, in breaking the laws of the United States.

  11. ObiterJ says:

    I would urge a little caution in terms of what HMG may have said to Ecuador.  I believe that HMG merely briefed the Ecuadoreans on the legal position in English law and mentioned the Diplomatic and Consular Premises Act 1987.  It may be – (I don’t know) – that the mention of this was taken somewhere to be a threat.
    The 1987 Act basically exists to enable HMG to approve the use of land/premises for diplomatic purposes and to withdraw consent in certain circumstances which must, in all cases, comply with international law.  The more common use of the powers in the Act relate to cases where a State wishes to give up particular premises and move to other premises etc.  It appears however that, exceptionally, HMG might opt to withdraw consent where premises are being used for, as one example, terrorist purposes.  No doubt, withdrawal of consent in such cases would usually coincide with severance of diplomatic relations.
    Turning to Assange.  I agree with the thrust of your post above.  Option (a) is I think highly unlikely given the Foreign Secretary’s statement of 16th August.  Option (b) Telelink questioning might assist but is probably unlikely to satisfy the Swedes and withdrawal of the warrant seems unlikely at this time.  Option (c) has, I think, actually been tried by HMG.  Option (d) is a possibility but we may be waiting some time – even years.  Option (e) only really possible if (i) Sweden gives up and (ii) grounds to deport to Australia can be made out – (yet more litigation).
    The only remaining possibility – so far rejected by Hague – is to permit Assange safe passage out of the UK to Ecuador (or other country).  However, HMG sees an obligation to support legal process in the UK and, let’s face it, the case did get to the Supreme Court of the UK even though, in my view, there are some worries about their decision and their refusal to re-open the case when Assange’s counsel so requested.
    Brian writes: Thank you for this. I have quoted the actual words of the British Aide Memoire delivered to the Ecuadoreans in last night’s Update to my original post, at (above). The full text of the Aide Memoire is at I don’t think anyone could interpret it otherwise than as a threat to enter the Ecuador embassy without the ambassador’s consent, accompanied by the unsustainable claim that a UK law empowers HMG to act in contravention of its obligations under the Vienna Convention. As you rightly say, the relevant UK law does nothing of the sort, and both the threat and the claim represent serious blunders by the FCO, Mr Hague, or both.

    I agree with what you say about HMG’s obligation to act on the Swedish European arrest warrant if and when it can. The validity of the warrant, despite the absence of any formal charges against Assange, and Britain’s obligation in international law to act on it, have both been challenged and confirmed in at least three UK courts, up to and including the Supreme Court. Serious allegations including of an allegation of rape have been made against Assange in Sweden and the feminists (and others) would rightly be up in arms if the Swedes were to ignore them. They are clearly right to want to question Assange about the allegations in order to establish whether there is sufficient evidence that he has committed the alleged offences to justify prosecuting him. It’s for the Swedish authorities, not Assange, to decide where and in what circumstances that questioning should take place. In addition, Assange has committed an offence under UK law by skipping bail. HMG is absolutely right to seek to arrest him and extradite him to Sweden; but that objective can’t justify either entering the Ecuador embassy without consent, or threatening to do so.  

  12. Eric says:

    Brian, if I may, I think that your scenario depicting Julian Assange escaping the embassy grounds in an official vehicle of the Ecuador embassy to avoid being subject to arrest by law enforcement agents is unrealistic. Even if the vehicle itself is immune from search and requisition as per the Vienna Convention, Assange would have to step out of the embassy and thus step on UK soil on his way to the vehicle in the street.

    And for Tim, while the diplomatic pouch is also immune from search, it may only contain official documents and correspondences as per article 27 of the Convention (“The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use“). While one may argue that Assange may be considered as “intended for official use“, he may not qualify as “article” or “document“.

    Brian writes: Thank you for this. Depending on the layout of the embassy and its grounds, it may be quite possible for a fugitive to get into an embassy car without having to leave the embassy’s premises. I agree that this would be impossible if Assange tried to leave the Ecuadorean embassy by the front entrance, but I don’t know what the situation is at the rear entrance. In one case that I know of, a dissident who took refuge in the West German embassy in Moscow at the height of the cold war was able to get into an embassy Volkswagen inside the embassy grounds while the embassy lined up all its other Volkswagens on either side of the one containing the dissident. At a given signal, the gates of the embassy were opened and all the identical Volkswagens drove out at high speed and went in different directions all over Moscow, making it impossible for the KGB, waiting outside to capture the dissident when he emerged, to know which of the cars to follow. The dissident eventually left the car at a Metro station in a remote part of Moscow and disappeared. Not a model that would be useful for Assange, but it’s possible to imagine ingenious variants.

    I agree with what you say about the diplomatic bag.  

  13. Paul Sharp says:

    While this case certainly does not warrant it, are there no circumstances, in Brian’s view, in which a mission, through its actions, might be claimed to forfeit its protections? If respect for sovereignty is increasingly being linked to how a government treats its populations, might a similar argument be made about the conduct of missions? Supposing a mission became a site for ongoing abuse of children, for example, or housed a nuclear weapon?

    Brian writes: Thank you for this, Paul. The plain fact is that diplomatic immunity for diplomats and their premises is an absolute condition for diplomacy to be able to function. Every country has an interest in preserving it, because as soon as one country disobeys the rules set out in the Vienna Convention[s] its own diplomats immediately become vulnerable to retaliation in the same coin. Moreover as soon as you start to envisage exceptions to the immunity of diplomatic premises, such as if the embassy is involved in child abuse, storing nuclear weapons, or (perhaps most likely of all) illegal drug trafficking, you have to answer the question: Who is to decide whether these illegal practices are actually going on and whether they provide sufficient grounds for withdrawing the embassy’s immunities? If the host government can unilaterally announce that this or that illegal activity is going on in the embassy of Tutsiland and that consequently it no longer has any immunities, freeing the host government to force its way into the embassy and arrest and charge its diplomats on potentially spurious charges, the opportunity for abuse becomes obvious. Who would trust the government of, say, North Korea or Zimbabwe to make such judgements objectively and based on evidence?

    In any case, the 1961 Vienna Convention makes no provision anywhere for withdrawing diplomatic immunity from diplomats or embassies accused of illegal activity, even when the evidence of criminal activity is completely clear-cut. When PC Yvonne Fletcher was shot and killed by someone in the Libyan embassy in St James’s Square in 1984, the British government’s correct response was not to withdraw the embassy’s diplomatic status and send in policemen or troops to arrest the murderer, which would have been in contravention of the Vienna Convention, but to break off diplomatic relations with Libya, requiring it to close its London embassy and send its diplomats (including the murderer, and still with diplomatic status until they left) back to Libya, giving them reasonable notice to leave. There are other sanctions open to a host government such as Britain that suspects an embassy of unacceptable behaviour, graded in order of severity (and all of them are liable to invite equal or escalating retaliation by the other government concerned against the local British embassy and its diplomats) but withdrawing diplomatic immunities isn’t one of them.

  14. There was an interesting interview with one of the Law Officers (can’t remember the name) of the time, saying that the intention of the legislation was to combat crime actually being committed on diplomatic premises and this was not the case here. 

    Brian writes: Thank you for this, Chris. If that was the objective of the Diplomatic and Consular Premises Act 1987, it doesn’t seem to have achieved it! Please see my response to Paul Sharp’s comment at In any case, it doesn’t apply here: there’s no suggestion of criminal activity in the Ecuador embassy in London, although the UK Aide Memoire regrettably delivered to the Ecuadoreans seems to hint that continuing to harbour Assange in the embassy is in breach of Vienna Convention rules and that this would justify us in withdrawing the embassy’s diplomatic immunities — a wholly baseless proposition.

  15. Brian says:

    Some (not entirely serious) comments on the version of this post that has been republished on Facebook seem worth sharing more widely by being reproduced here:


    V: We’ve been wondering if he gets into the ambassador’s car and drives in the car onto the Eurostar train or a boat then presumably as long as he’s in UK territorial waters the car remains diplomatic so they can’t touch him? (He’d never have to get out of the car.) … The plan assumes of course that you can drive the diplomatic car into the embassy. On second thoughts, Euro tunnel won’t work, assuming the French have same extradition arrangements with Sweden, as diplomatic status won’t apply to the car in France. So it will have to be the boat.
    O: Likewise, if he could get into the Ambo’s car (big if) then couldn’t he be driven in it to Tilbury, and into a shipping container, which could be loaded onto an Ecuadorian flagged ship which sails to Ecuador?
    BB: He’d have to stay inside the car inside the container until the ship sailed outside UK territorial waters. But it sounds theoretically possible, provided that Assange can somehow get into the car without stepping outside the embassy’s premises. Incidentally today’s Guardian editorial states categorically that “an embassy car is not diplomatically protected”, although I don’t know how they square that with Article 22(3) of the Vienna Convention (“The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”). On the whole, however, I think the escape by diplomatic car idea is just a little bit too difficult.

    CL: I marvel at British deviousness. How in the hell did you all palm that Assange turkey off on the poor damn Ecuadorians?! The UK unloads responsibility. Ecuador gets stuck for the room and board of a permanent house guest. (Cardinal Mindszenty lasted 15 years in the US Embassy back in the Cold War.) And Assange winds up in a prison. Maybe it’s a luxurious prison, but he ain’t walking the streets no more and the Ecuadorians are paying the bills.

  16. ObiterJ says:

    Thank you for response (above).  At best the aide-memoire is dreadfully drafted.  I can well understand the annoyance on the part of the Ecuadoreans and it is certainly possible to interpret it as threatening.The FCO could make it clear that they are not going to use the 1987 Act but I suspect that they are not going to do so. 

    Brian writes: Thank you again. Personally I would put it much more strongly. There’s absolutely no way in which the words of the Aide Memoire can be interpreted otherwise than as a threat. There’s sometimes a place in diplomacy for threats, but only when the threat is inherently credible and the threatener is ready in the last resort to carry it out. In this case, carrying out the threat would involve Britain in a massive, indefensible, unnecessary and intensely damaging contravention of international law, and the supposed justification advanced for it relies on a UK domestic law which is obviously inapplicable to the circumstances in question — a law which couldn’t override our international obligations towards the Ecuadorean embassy even if it purported to do so, which it does not.

    I think we’re entitled to know who approved the terms and delivery of this deplorable document. 

  17. Tim Weakley says:

    Thanks for taking my frivolous comment seriously!  I hadn’t realised that a diplomatic bag might really be big enough to hold not just a number of secret reports, etc., like an attache case, but a human being.  I confess I had been thinking of The Bag in ‘Black Mischief’, which I couldn’t take seriously – you remember it disgorged all kinds of quite sizeable goodies for the Embassy in Azania.

    Brian writes: Thank you for this. Diplomatic bags may indeed conceal a multitude of minor sins (bacon, Branston pickle…) in RL as well as fiction, and the biggest can be pretty big, for example if they contain big heavy cipher equipment or other security-sensitive machinery.

  18. B. the telelink questioning seems like the first to try. Simplest.
    If the U.S. government were not pressuring the Swedes to pressure the Brits, would the somewhat sexually liberal Swedes really give a damn?

    Brian writes: Richard, it’s for the Swedish authorities, and them alone, to determine where and in what conditions they will question Assange. He’s a rape suspect and has no right to lay down conditions under which he will graciously consent to be questioned about the extremely serious allegations against him. Indeed, it’s pretty impertinent of us over here to tell the Swedes that they have got to use a telelink, or send their cops to see Assange in the Ecuadorean embassy, or whatever. It’s none of our business. It has been plausibly pointed out that if his answers to questioning were to complete a picture justifying charging him with rape and the other sexual offences suggested by the allegations, he could be charged only when on Swedish soil. But the Swedish authorities are under no obligation to explain their own decisions. They want him for questioning, in Sweden and nowhere else, and the warrant they have issued to get him there has been declared valid by three UK courts up to and including the Supreme Court. Nothing more needs to be said (except to the government of Ecuador).

    As for the suggestion that if the Americans were not “pressuring” the Swedes (to do what, exactly?), the Swedes wouldn’t “really give a damn” about the allegations of rape and other sexual misconduct made by two Swedish women against Assange, AFAIK there’s no evidence whatsoever of American pressure in connection with the allegations against Assange, and indeed no conceivable reason for it. The accusation of US pressure seems to be generated by a pathological dislike and suspicion of the Americans and an ideology-based approval of Wikileaks as something that has damaged American interests. Assange seems to me a most unsatisfactory hero for adoption by progressives anywhere. The idea that the Swedes, left to themselves, wouldn’t “give a damn” about an accusation of rape seems to indicate an extraordinary misunderstanding of the Swedes and their ethics.

    Incidentally, the widespread idea that it would be easier for the Americans to extradite Assange from the UK than from Sweden seems to overlook the fact that the Swedes have got in first with their extradition application; so if the Americans were now also to apply to the UK for his extradition, we would be obliged to act on the Swedish application first — indeed, we are already trying to act on it. Once we had sent him off to Sweden, the question of extraditing him to the US from the UK wouldn’t arise, although it seems that if at that point the Swedes received a US application for his extradition from Sweden, the consent of both the UK and Swedish authorities would be required before he could be sent to the US. But so long as Assange has not been charged with any offence by the Americans, and is apparently not even wanted for questioning in the US about any possible offence, the whole question of extradition to the US is academic. (What might happen in the future is another matter, and purely speculative.)

  19. Louise says:

    Wouldn’t the most straightforward solution be to persuade Sweden to guarantee (also under the terms of the Vienna Convention) that it won’t extradite Assange to the US, on the grounds that they would be violating his human rights by handing him over to a country that carries the death penalty? Wouldn’t that remove the grounds for Equador granting him asylum, and he wouldn’t then have an argument for resisting extradition to Sweden?

    Brian writesThank you for this.  Actually Assange has several times asked for a guarantee by Sweden against being extradited to the US, although I’m not sure whether he has promised unambiguously that if he were to get it he would no longer resist extradition to Sweden to answer questions about the rape and other sexual offence allegations made against him.  But that’s academic, because the Swedes, very reasonably, say there’s no way they can guarantee to reject a hypothetical US application for Assange’s extradition when (a) they don’t know whether such an application will ever be made or, if it is, on what grounds and in connection with what charges or investigations, (b) if the Swedish courts rule that an application is valid under Sweden’s extradition agreement with the US, they might have no legal grounds for rejecting it, (c) Assange isn’t in Sweden (and may never return there) so there’s no scope for anyone to apply to Sweden to extradite him at the moment, and (d) Sweden is prohibited by its own laws and by the European Convention on Human Rights from extraditing anyone to any country to face charges for which the penalty could be death (as is the UK and as are all other states that subscribe to the ECHR, namely all members of the EU and indeed all 47 members of the Council of Europe).  So Assange’s fears may be somewhat exaggerated, although he may be right to suspect that eventually the US will want to charge him with some offences arising out of his role in publishing the mass of US classified information in the Wikileaks exercise.  But that’s pure speculation.

    Yesterday’s Guardian editorial (at spells out very clearly why Assange can’t possibly qualify to be treated as a refugee under the definitions in the UN Refugees Convention.  Ecuador has granted him political asylum as part of its long-running feud with Washington, and may well be rewarded for its pains by having Assange as a non-paying guest in its small embassy in London for a considerable time, perhaps years;  and almost everyone who has ever worked with Assange has found him a difficult partner.  Actually he seems so restless that I can’t see him sticking it out in the little embassy in Knightsbridge (tantalisingly close to Harrods!) for very long, and even if he managed to get himself to Ecuador without being arrested by the Metropolitan Police on the way, I doubt if he would be content to spend the rest of his life there, either.  Serving a finite sentence in a civilised Swedish prison after being convicted of the sexual offences that he’s accused of (but not yet charged with) might eventually strike him as the least unattractive of the limited options now open to him.  He might even convince himself that if he decides to return to Sweden after all to face questioning and possibly prosecution on charges arising from the allegations of rape and other sexual offences, he’ll be acquitted.  Cardinal Mindszenty languished in an American embassy for 15 years before an agreement was reached that allowed him to leave it:  somehow I can’t imagine Assange being sufficiently patient to spend anything like that length of time in an Ecuadorean embassy that must be a great deal more cramped and uncomfortable than the quarters provided by the Americans for the unfortunate Cardinal.  

  20. Brian says:

    For an interesting report on the Australian and US dimensions of the Assange affair, including a video clip in which the UK Permanent Observer to the Organisation of American States is seen and heard setting out the British government’s position on the legal situation (and misnaming the Vienna Convention), please see the report in the Australian newspaper The Age, at
    (hat-tip: David Tothill, again). 

  21. ObiterJ says:

    You may wish to see my post (link below) in which I reference your post

    Brian writes: Thank you for this, and for including a link to this post in your own blog. I have submitted a comment.

  22. jonny says:

    Could the UK not just cut diplomatic ties with Ecuador.  At which point their embassy has to pack up and go home, then the police just walk in a drag Assange out. 

    Brian writes: Thank you for this. Yes, breaking off diplomatic relations is certainly an option. But Ecuador would be entitled to ask another country — e.g. Venezuela — to look after its interests during the breach in relations, which might involve the protecting power using the existing Ecuadorean embassy to house its Ecuadorean Interests Section — so it would continue to enjoy immunity (although the UK would probably have opportunities to refuse its agreement to this at some point).

    But more to the point: breaking off relations with another country is not something to be done lightly. Not only might it result in lost contracts for British companies and problems for UK citizens in Ecuador: other Latin American countries would almost certainly break off relations with Britain to show solidarity with Ecuador, especially after Mr Hague’s foolish threat to enter the embassy and arrest Assange without the ambassador’s consent, in breach of international law. British commercial and other interests all over Latin America and perhaps elsewhere would suffer, and it would be very difficult to find a way of restoring relations. We would be unable to forge alliances with these countries when we need their votes in the UN and other international organisations. Diplomatic relations are not a mark of approval, nor a favour to the country that we have relations with: they are an essential element in the protection and advancement of our national interests. Would it really be worth accepting all that damage and setback to our relations with much of central and south America just to get hold of Assange and hand him over to the Swedes, much as we would (rightly) like to do so?

    In my view, FWIW, breaking off relations would be out of all proportion to the essentially trivial nature of the objective. Let Mr Assange stew in his own juice, confined indefinitely to a smallish flat in Knightsbridge and unable even to pop out to visit Harrods or buy himself a hot dog. The Ecuadoreans will get tired of having to give him food and shelter at their own expense eventually, and will probably at some point agree to hand him over in exchange for some kind of UK promises regarding his treatment. The FCO is continuing to talk to the Ecuadoreans about some such solution, which would clearly be in both governments’ interests. We have nothing to lose by being patient. Sometimes doing nothing is the least damaging course.