Julian Assange: a modest suggestion and some clarifications
Today’s Guardian (20 Aug 2012) publishes a letter from me dismissing one suggested solution for Mr Assange’s future and proposing another:
Letters: Diplomatic dilemmas and Julian Assange
Your editorial (17 August) states categorically that “an embassy car is not diplomatically protected”, although I don’t know how you 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”). This, however, seems unlikely to help Mr Assange to get himself to Ecuador without being arrested when he leaves the embassy to get into the car or at the port or airport when he gets out of it. A safer way might be for Ecuador to appoint him to the diplomatic staff of their embassy in London, for which the UK government’s agreement would not be required. Mr Hague would then expel him, after the Ecuadoreans had refused to waive his diplomatic immunity. But Assange would retain his diplomatic immunity from arrest until he had left the UK, presumably on his way to Ecuador and political asylum. Such diplomatic chicanery to enable Assange to escape British and Swedish due process would lay Ecuador open to retaliation – Britain could expel its ambassador or even break off diplomatic relations – but the Ecuadoreans might think it worthwhile. No doubt Mr Assange would!
Brian Barder
London
Since I submitted my letter, a friend much better qualified than I has queried my assertion that the British government’s approval would not be required for Ecuador to appoint Mr Assange to the diplomatic staff of its embassy in London, citing Article 8 (2) and (3) of the Vienna Convention:
2.Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Mr Assange, being an Australian citizen, would be covered by (3), which seems to entitle the British government to withhold consent from the appointment to the Ecuador embassy of a national of neither Ecuador nor the UK — but arguably, by implication (“may reserve”), only if HMG has availed itself of the permission given in 8(3) to reserve that right in respect of nationals of a third state and has notified Ecuador that it has decided to exercise it. The Convention seems unclear about whether the right under (2) of the receiving state (the UK) to withdraw its consent to an appointment “at any time” also applies to (3) and therefore to Mr Assange. All one can say is that an attempt by Ecuador to go down this route would seem likely to provide lucrative employment for many years to lawyers representing Ecuador, the United Kingdom, Mr Assange, and Sweden, and probably the judges of one or more international courts and tribunals, before the matter could be resolved. Throughout this time, Mr Assange would presumably continue to be confined either to the London flat which serves as the embassy of Ecuador, or possibly to an English prison while he once again contests, this time on grounds of his disputed claim to diplomatic immunity the UK’s right to extradite him to Sweden.
The other letters on the subject also published today (including one from the indefatigable Mr Keith Flett) raise some other interesting questions. One letter-writer thinks the British government should “insist” on Sweden sending its prosecutors to interview Assange in the Ecuadorean embassy in London — forgetting that it’s for the Swedes, not us, to decide where they should question him about serious allegations made by Swedes about crimes allegedly committed in Sweden. If the questioning were to result in a decision to prosecute Assange, he would clearly need to be in Sweden to be arrested and charged, which could hardly happen in a 
foreign embassy in London. Another letter questions William Hague’s announcement that HMG doesn’t recognise the concept of diplomatic asylum, recalling that Britain didn’t object the the Americans sheltering Cardinal Mindszenty from the communist government of Hungary for 15 years in their embassy in Budapest. But Mr Hague’s announcement probably refers to a convention on diplomatic asylum signed by a number of South American states, including Ecuador, but not by the UK, which among other things obliges the country where a refugee has been given shelter in a foreign embassy to give the refugee safe passage to the embassy’s home country. HMG has already made it clear that it will not give Assange safe passage to Ecuador or indeed to anywhere else other than Sweden, and Britain has absolutely no obligation to do so under international law.
Today’s excellent Guardian editorial provides a refreshing reminder that the issue at stake here is the serious allegations of sexual assault and rape made against Mr Assange arising from his conduct in Sweden. The Guardian has tried to work with Mr Assange and knows whereof it speaks. Those who are emotionally committed to him as the founder of Wikileaks and the orchestrator of the publication of a vast mass of American classified documents hardly seem the kind of people who would argue that a serious rape allegation should not be followed up by proper investigation; radical feminists have long protested at the frequent failure of police forces here and elsewhere to take accusations of rape and other offences against women sufficiently seriously. It is these allegations which Mr Assange is struggling so ingeniously and energetically to avoid answering, not extradition to the United States on an application by the US which has not been issued, to face charges which have not been laid. The motives of the Ecuador government in coming to his rescue to save him (temporarily) from extradition to Sweden seem connected with its practice of irritating Washington (which clearly has no love for either Wikileaks or its founder) whenever possible, and strengthened by Mr Hague’s inexplicable blunder in explicitly threatening to use non-existent powers to send his coppers into the Ecuador embassy without its permission to arrest Mr Assange, in plain contravention of international law, thus regrettably putting Britain in the dock alongside Mr Assange. None of this should distract attention from the only serious issue: should Mr Assange go to Sweden, preferably voluntarily but otherwise in handcuffs, to answer the allegations against him? Of course he should.
Postscript: Amid the plethora of blog posts and comments on the Assange affair, here are two which usefully explode some myths and provide clarification of the law:
http://www.newstatesman.com/blogs/david-allen-green/2012/08/legal-myths-about-assange-extradition
and
Brian
Today’s editorial in The Guardian is indeed a timely reminder of what the Julian Assange affair is really all about. Yet the Foreign Office has only itself to blame if the waters have become muddied. The infamous note appearing to threaten a forced entry of the Ecuadorean embassy to seize Mr A under the Diplomatic and Consular Premises Act 1987 must surely (whatever the legal pros and cons) rank among the most avoidable self-wounding diplomatic blunders of all time – even if, or so we must fervently hope, the long-term consequences turn out to be trivial and the stuff of farce rather than tragedy.
It is reasonable to assume that the note could only have been delivered with the approval of William Hague himself. How on earth could he have been persuaded that this was a good idea? The Ecuadorean position is almost laughably indefensible. Whatever personal view one takes of Mr A, and Wikileaks, the grant of asylum to him is demonstrably bogus. He faces no threat of political persecution either in Britain or Sweden. While in the UK he has been treated with impeccable patience, courtesy and legal propriety. There is no evidence whatever that the Swedes plan to hand him over to the Americans, as he claims, or even, for that matter, that the Americans are seeking his extradition with a view to putting him on trial.
He is in breach of British law, having jumped bail, and the UK authorities are fully entitled to arrest him for entirely proper legal reasons that have nothing to do with his political views or Wikileaks activities. He is further wanted for questioning in Sweden in connexion with rape allegations, which may or may not turn out to be groundless but which the Swedish authorities are duty-bound to investigate. Sweden has one of the most respected judicial systems in the world and no one has suggested that Mr A would receive anything but fair and impartial treatment from it.
Finally, Britain is legally bound by an EU extradition treaty to hand Mr A over to the Swedes. In these circumstances, Ecuador’s decision to grant Mr A asylum must on any measure be a gross abuse of diplomatic privilege. This ought to have been an easy enough case to put across to the rest of the world, perhaps with the help of our EU partners. Yet, because of the astonishing blunder over the diplomatic note, we now have the grotesque spectacle of a president of a Latin American country who regularly persecutes and even locks up his own journalists and has an abysmal domestic record of respect for human rights posturing (with some success) on the world stage as a doughty David standing up to “colonial bullies”, as a champion of free speech and as the provider of sanctuary to those threatened with political persecution. It would be a joke if it wasn’t potentially so serious.
Where do we go from here? Short of Mr A agreeing to go to Sweden, or the Swedes agreeing to question him here, of the various options you have canvassed in your blog, the least damaging must surely be the one you also appear to favour: letting Mr A stew in semi-permanent and self-imposed imprisonment within the Embassy of Ecuador, while perhaps also taking the precaution of warning the Ecuadoreans in advance that Mr A would not be acceptable to the UK if they sought to have him accredited here as a member of their diplomatic staff. If Ecuador went ahead in spite of that warning, the way would (presumably) be open to break off diplomatic relations with a country which can hardly rank high on the list of states oof any importance to Britain’s national interests. This course of action would entail maintaining some sort of permanent police stake-out of the embassy, but this need not be especially costly, I would have thought, and no doubt putting up with periodic and increasingly bizarre appearances by Mr A on the balcony of the Ecuador embassy to address his adoring followers, which would at least have some entertainment value. Even if Mr A managed somehow to have himself smuggled out of the embassy, he would surely have to surface in due course, most likely at some port of exit from the UK, where it ought not to be too difficult to arrest him. But the question remains: how did we allow ourselves to be so badly wrong-footed?
Brian writes: Thank you for this, Michael. I agree with what you say. Reports in the Sunday Times and the Independent have claimed that the Foreign Secretary was warned against sending the aide memoire by the FCO lawyers and senior staff, on both legal grounds and because of the risk of retaliation against our own embassies and their staffs if the threat were ever to be carried out, but that Mr Hague rejected the warnings and ordered the aide memoire to be delivered. Both reports claimed to be based on FCO sources, but of course it’s impossible to know how accurate they are. The warnings may have been toned down, to avoid a row with the minister, to the point where it was possible to miss their gravity. Such things happen. Alternatively, the aide memoire might have been approved at a relatively low level by an official who didn’t realise its disastrous implications. I hope we’ll know one day!
There is an FCO accreditation process which would make it impossible for Julian Assange to be granted any diplomatic or other status. The Ecuadorean Embassy are most unlikely to submit such an application which would be bound to be rejected.
Allowing the balcony speech is a breach of diplomatic protocol because it was blatantly political and in part directed against the host government. Article 41.3 of the Vienna Convention states that: “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention, or by other rules of general international law……” It would not be a defence for the Ambassador to say that she did not know what Julian Assange would say in his speech. She has the ultimate responsibility for its contents because she allowed it to happen on Embassy premises. Her conduct is incompatible with diplomatic norms and so there are more than sufficient grounds for her to be declared person non grata. But that is a political decision.
The “Diplomatic Note” supposedly sent in by our Embassy in Quito was neither first person (“I”) nor third person, but full of “we”s. It reads more like a semi-formal letter, or it might possibly a an informal aide-memoire left after a meeting. Has anyone yet seen a copy of what was presumably a Spanish original? It was flashed on TV, but impossible to say what it was. The FCO, I gather, have topped and tailed it and won’t say. No doubt it has appeared in the local press.
Brian writes: Thank you for this, Derek. Your comment raises some interesting questions. First, it’s surprising that the FCO’s procedures require sending states to seek HMG’s approval in advance for appointments to the civilian diplomatic staff of their missions below the rank of ambassador or high commissioner, since there seems to be no such requirement in the Vienna Convention (VCDR 1961), except rather ambiguously in Article 8 in the case of appointments of persons who are not nationals of the sending state — and even in Article 8 there’s no suggestion of a requirement for applications to be made and approval given before diplomatic status can be “granted”. Article 7 reads: “Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.” The other articles mentioned are not material, apart from Art. 8, on which please see the discussion in my post above, in connection with my Guardian letter. Against this background, it seems possible that Assange, or the Ecuadoreans, might be able to seek judicial review of any action by the FCO to refuse diplomatic status to a duly appointed member of the embassy staff.
Secondly, I agree that Assange’s deranged speech from the embassy balcony contravened the rules governing the permissible activities and functions of a diplomatic mission as defined in the VCDR, strictly interpreted. Equally relevant, it clearly breached the condition on which Assange was granted “diplomatic asylum” by Ecuador, namely that he must not engage in political activity. Now that he has blatantly and with maximum publicity flouted that condition, the embassy ought to chuck him out, although I doubt whether it will, anyway in the near future. But if HMG consider that the balcony speech breached the rules of embassy behaviour, there’s a range of responses open to them, from formal protest up to expelling the ambassador (as you rightly say) and ultimately breaking off relations with Ecuador, each needing to be assessed carefully for likely political and diplomatic consequences. What the embassy’s breach of the rules does not entitle the FCO to do is to withdraw its diplomatic immunity and send in the cops to arrest Assange without the ambassador’s consent. What the aide memoire threatens to do would be manifestly contrary to our Vienna Convention obligations — as is being increasingly widely recognised.
Thirdly, what seems to be the authentic (English) text of the aide memoire containing the notorious threat to arrest Assange on embassy premises without the ambassador’s consent is at https://docs.google.com/document/d/1rrZNjhzr4F2QHsyzZTNywT491pVrPDB0p4rzE5dj5FM/edit?pli=1. This text seems to have been released by the Ecuadorean government. It certainly looks convincingly authentic and as far as I know the FCO has not repudiated it. It’s clearly labelled an aide memoire, not a letter or a Note Verbale. You will recall that an aide memoire, handed over after an oral conversation as a reminder of the main points made by the person initiating the conversation, does not have headings or signature and is not dated, as is the case here. I have quoted the principal paragraphs that have given rise to the controversy at https://barder.com/3669/comment-page-1#comment-148478. They can’t be interpreted otherwise than as a threat. There is moreover no basis in international law for the action threatened in the aide memoire.
Here are two more from me, another former diplomat opining on this subject – the field is getting congested. In the second earlier one I remonstrate with Brian over his rather one-dimensional reading of the Vienna Convention.
http://charlescrawford.biz/blog/how-to-solve-the-assange-problem-what-if–
http://charlescrawford.biz/blog/more-on-assange-and-diplomatic-immunity-1
Brian writes: Thanks, Charles. It’s increasingly clear that my analysis is right in the mainstream and that if anyone’s a contrarian — well, it’s not me, guv. I’m sorry to see from your blog that you still don’t get it. I’ll identify your continuing errors over on your own blog tomorrow (not here, because it’s all already there in this post and its immediate predecessor, and there’s no need to spell it all out again here). I’ve devoted quite enought time and effort to Messrs Assange and Hague today, and I’m going to bed. Good night!
The Spanish text of the aide memoire can be found here with the two relevant paragraphs emboldened. I see nothing worth remarking on in the translation, whichever was the original.
It might be interesting to mention that in Latin American countries canciller/cancillería are used for foreign minister/ministry.
Canciller is also used for the title of the German chancellor: Helmut Kohl was el canciller alemán. Uunfortunately, in some South American countries cancillera is a word for a drain so Angela Merkel has to be la canciller alemana. Nor is it unknown for Spanish newspapers to puzzle their readers with mention of el canciller del exchequer.
Brian writes: Many thanks for this, Peter. It looks as if both the Spanish and English texts are authentic; the English text certainly bears no signs of having been translated from the Spanish by someone not fully familiar with English diplomacy-speak. Perhaps both texts were handed over to the Ecuadoreans, presumably following a conversation in which the points in the aide memoire would have been made orally (on instructions, presumably!) by the UK side.
On a lighter note, I’m enchanted to know that Spanish speakers are exposed to the concept of the Drain on the Exchequer, with which we over here are all too familiar. In English usage Chancery is used to refer to the political section of an embassy (hence the title Head of Chancery, now sadly discontinued), or to the embassy’s main building and offices, to distinguish them from the ambassador’s Residence and any other embassy buildings housing, for example, the commercial, defence, consular or aid sections if these are separate. Of course Chancery has various connotations in the field of law also.
Brian,
I await your further thoughts with keen interest!
Just to say that I met Carl Gardner today who knows a few serious things about these issues http://www.headoflegal.com/about/ We were both at Voice of Russia doing an Assange interview.
We had only a brief talk but I think he agreed with my argument about the relationship between the Vienna Convention and the 1987 Act: the Act gives formal and proportionate expression to the inherent power under the Convention for a receiving state to withdraw diplomatic immunity if an Embassy behaves disgracefully. The question is, what level of disgracefulness counts to trigger that response properly? Assange’s footling asylum bid falls short, in his view and mine (hence the unwisdom of the FCO ‘threat’)
It all boils down to our two friends Proportionality and Reciprocity…
Brian writes: Thank you for this. As promised, I have written some further comments on our points of disagreement which you have kindly put up on your blog as a new post at http://charlescrawford.biz/blog/cc-v-bb-are-embassies-ever-violable-, which some might enjoy reading. These disagreed issues are in most respects largely academic: on what now can and should be done about Mr Assange, and especially what clearly should not be done, I think you, Charles, and I are fully agreed. It’s been quite an illuminating exchange.
There is another way Julian Assange might seek to escape to Equador. That is for the Equadorean Embassy to designate him as a diplomatic courier ad hoc under Article 27(6) of the VCDR. Such a designation seemingly does not require prior acceptance by the FCO Protocol Directorate as I seem to recall all staff appointments first need to be agreed. No doubt there are very few regular individual courier journeys from London to Quito, but a diplomatic bag with genuine and classified materials could be ‘made up’ and Julian Assange be granted the well publicised ‘honour’ by the Ambassador of taking the bag to Quito. While he is in transit he would have full immunities which cease the moment the bag is delivered into safe keeping – see Article 27(6) of the VCDR.
If this was attempted, the UK authorities would not be thwarted and would deny that this was a genuine ‘couriership’ as it would be such an obvious ruse to defeat British justice. But quite a row could be caused, though it would lead to Julian Assange’s apprehension and extradition to Sweden. He might of course decide, on the basis of assurances, that it was time to face the music, but he is a publicist and might choose to stage a final stunt, provided the Equadoreans agreed. There would also be the problem of what to do with the diplomatic bag ‘unlawfully’ seized.
Brian writes: Thank you again, Derek. I continue to be surprised that the FCO insists on scrutinising and approving (or, presumably, rejecting) in advance all proposed appointments by foreign governments to the diplomatic staffs of their embassies (and presumably high commissions), even though it appears that other western foreign ministries operate similar systems. For the reasons set out in my response at https://barder.com/3679/comment-page-1#comment-148871, I doubt whether the FCO has any right under the Vienna Convention to compel sending States to seek prior approval for their diplomatic appointments other than those of heads of mission and defence attachés. This would certainly seem worth testing!
If I’m right, the sequence might be: Ecuador delivers a Note Verbale to the FCO notifying three or four new appointments to the diplomatic staff of its embassy, one of which is Assange — but not seeking HMG’s approval for them. Forty-five minutes after the Note has been delivered to the FCO, Assange emerges from the front entrance of the embassy accompanied by three distinguished British lawyers, each holding a certified copy of the Note Verbale. The police try to arrest Assange under the Swedish extradition warrant and for skipping bail. The lawyers produce their copies of the Note Verbale and tell the police that Assange is immune from arrest since he now has diplomatic immunity. There are then two possible outcomes: (1) The police accept the claim to immunity, Assange and his lawyers board a car which takes them to an airport from which he flies to Ecuador (unlikely); or (2) (more likely) the police ignore the lawyers and take Assange into custody. The lawyers immediately seek a court injunction requiring the immediate release of Assange on the grounds that he was illegally arrested. The FCO purports to exercise its right under Art 8 (2) and (3) to withdraw its consent to the appointment of third country nationals such as Assange to the embassy of Ecuador. Assange’s lawyers immediately seek judicial review of the FCO’s action on the grounds that FCO consent had not been withdrawn at the time when Assange was appointed and that accordingly his diplomatic status and immunities remained valid, since the withdrawal of consent could not be exercised retrospectively. The applications for an injunction and for judicial review drag on through the courts, up to and including the Supreme Court and possibly thence to the European Court of Human Rights, along with an application for bail for Assange pending decisions on them (unlikely to be granted given the fact that he has already skipped bail once!).
A variant on this: when the police are confronted with the Note Verbale proving (or purporting to prove) that Assange has diplomatic immunity, they agree not to arrest him immediately provided that he returns to the Ecuador embassy and doesn’t come out again until the legality of his claim to diplomatic status is resolved. Given the many ambiguities in Art. 8(3) of the Convention, this might take a year or two, or even more if it gets as far as the European Court of Human Rights.
However, if I’m wrong and there is a power somewhere in the Vienna Convention, despite the clear implication of Art. 7, under which the receiving State may demand the right to approve (or reject) in advance appointments to the civilian embassy staff below head of mission, then your suggestion that Assange might be appointed by Ecuador as a Diplomatic Courier tasked with carrying a genuine diplomatic bag to Quito would seem to be an ingenious way around the problem. You assume that the UK authorities would frustrate the ruse by ignoring his status as a diplomatic courier and arresting him anyway, but after the unholy row caused by Mr Hague’s imprudent threat to send the cops into the embassy without its permission, he might think twice before authorising this lesser, but still pretty blatant, breach of the Convention’s rules.