Rudimentary rights-based analysis of the Assange affair

datePosted on 13:55, August 16th, 2012 by Lew

It looks like the British government is going to consider storming the Ecuadorean embassy in London to arrest Julian Assange and extradite him to Sweden to face sexual assault charges allegations. [Thomas Beagle points out he has not been charged, so I've amended this throughout. Thanks!]

Without getting into the validity of those allegations, or of the extradition process, I’d like to look at how the schedule of rights breaks down for Assange and the states in question, from weakest to strongest:

1. Julian Assange’s right to avoid extradition for an alleged crime on the grounds that he’s doing good things.
This is no sort of right at all, but it is nevertheless what many of his supporters have claimed.

2. Sweden’s right to request Assange’s extradition to face questioning.
This seems clear-cut, although again, many of his supporters have claimed it is not.

3. The UK’s right to undertake its own judicial process in deciding whether to extradite.
The UK, after an exhaustive process, has decided to extradite.

4. Assange’s right to seek political asylum.
Fearing that he could suffer the death penalty if, following extradition to Sweden, he is further extradited to the USA, Assange seems to have a right under Article 14 of the UN Declaration on Human Rights to seek political asylum. I think this is arguable, because the veracity of his claim to persecution is arguable, but anyway, he has done so.

5. Ecuador’s right to consider and grant asylum requests.
Ecuador has the same rights as any other state to consider and grant such requests, and it appears to have granted (or intends to grant) this one (reports vary).

6. Ecuador’s right to the integrity of its sovereign territory, including its embassies.
This is where I think it gets murky for the British government. They argue that provisions in the Consular Premises Act 1987 permit them to revoke consular or diplomatic status from an embassy if the premises have been misused. This article in the Gazette of the British Law Society suggests that it’s a bit more complicated than first seems. I am no sort of lawyer, but my read, in short, is that a diplomatic premise is inviolable under the Vienna Convention on Diplomatic Relations (even in case of war or emergency), and that residual diplomatic status could continue for a period of time even after revocation (which would be a fairly major step in itself).

As I say, I’m no expert on such matters, but my view is that the chain of rights I have outlined here is pretty sound. I believe the correct position from a rights perspective is for the British government to concede Assange’s right to claim asylum, and Ecuador’s to grant it if it chooses, despite its misgivings. As terrible as the acts that may or may not have been committed by Julian Assange, it seems evident that he retains the right to seek asylum, that the Ecuadoreans retain the right to grant it, and that the UK is on, at best, shaky ground attempting to arrest Assange once succour has been granted by the Ecuadoreans. While respecting some of what Wikileaks has done, I do not much like Assange, nor do I have much tolerance for the legions of his supporters who have sought to absolve him of responsibility for his alleged sexual assault by recourse to character assassination, intimindation and vilification of his alleged victim.

But there are bigger things at stake here than a criminal, even a celebrity criminal, fleeing justice — how host countries respond to diplomatic gameplaying like this is one of them.

L

16 Responses to “Rudimentary rights-based analysis of the Assange affair”

  1. Rich on August 16th, 2012 at 14:12

    To enter the Embassy without Ecuadorean consent, the UK would need to revoke the diplomatic status of the building. The Diplomatic Premises Act says they have to do this in accordance with international law, and a weeks notice has been talked about.

    If Assange or the Ecuadoreans seek judicial review of this decision, that could drag on all the way to the Supreme Court / Strasbourg.

    Then you have the situation if the UK either avoids injunction or just strongarms Assange out of the embassy. If that process is found to be illegal, then Assange is in custody as the result of an unlawful act. Can he be extradited in those circumstances?

    I can’t find any cases of someone being abducted to the UK and tried/extradited. The US does this, but they’re cowboys.

    (It’s interesting that the UK seems to have got through WW2, the Cold War *and* the Irish troubles without abducting anyone for trial)

    Finally, if they do invade the embassy, what’s the betting the Ecuadoreans invade the UK mission in Quito and detain the staff? Maybe Assange will get free as part of an exchange of prisoners – that’d be a bit ironic.

  2. Thomas Beagle on August 16th, 2012 at 14:36

    “2. Sweden’s right to request Assange’s extradition to face charges.”

    I thought Sweden was extraditing him to be investigated/questioned and he hadn’t been charged?

    This would seem to back that up: http://en.wikipedia.org/wiki/Julian_Assange#Allegations_of_sexual_assault

  3. Lew on August 16th, 2012 at 14:45

    You’re right, Thomas, thank you.

    Another thing that occurred to me: British heavy-handedness seems like it could make Ecuador accepting Assange’s asylum claim (to be decided in the coming hours, apparently) more likely, as Ecuador is now backed into a corner and will feel like it must demonstrate its sovereignty. That would be a strange outcome.

    L

  4. Pablo on August 16th, 2012 at 15:10

    The UK threat is a bluff. If it carries through with it, it sets a very bad precedent because Assange has not been charged with any crime. It would be in the same league with the 1979 US embassy invasion in Tehran. It would give other countries carte blanche to raid embassies where dissidents are holed up.

    However, the threat sends three clear messages: 1) to the US, in that it is staunchly willing, at the risk of contravening diplomatic protocol and manipulating its own laws, to go the extra mile to defend the interests of its main ally; 2) a message to Ecuador and other states that giving refuge to people who leak and publish classified official information and/or openly distribute said information will result in them suffering serious diplomatic consequences; and 3) a message to Assange that he can run but not hide. The latter is also a message to those who would emulate him.

    I should note that the 1987 law under which the UK is issuing its threat came in response to the >>corrected by a reader<< Libyan embassy siege in which a female bobby was killed by shots fired from within the embassy. This in no way approximates the circumstances of that case.

  5. martin hector on August 16th, 2012 at 15:43

    Unless there is the other ulterior motive i dont why the swedes havent just sent investigators to question him in the UK since its only allegations. I agree that its a bluff, its London not the midlands

  6. Matt on August 16th, 2012 at 16:03

    The absolute sovereignty of diplomatic missions is definitely real. I recount a story told me by a Fire Service officer who “lead the charge”, as it were, in this incident.

    The US maintains (or certainly did) an ELINT presence in an office block in central Wellington in addition to the Embassy proper, and that presence is officially a diplomatic mission.
    A fire alarm went off in the building, the panel showed smoke detectors activated on a particular level, so the fire fighters went up. They were greeted by an armed marine who informed them that they were absolutely not going any further. As smoke wafted past his head. Paraphrased, the exchange went “Oh yes I am going in there. There’s a fire, I have full legal authority.” “Oh no you’re not. This is a US diplomatic mission and you have no authority whatsoever. Did you notice my uniform and loaded rifle?” Eventually negotiations that included “You will not look at anything, you will not remember anything, you will absolutely not go anywhere except where the activated alarms are” were successful and the fire fighters went in and put out a burning computer.

    Even raising the possibility of revoking the embassy’s status as a diplomatic post is a serious act. The allegations against Assange aren’t of offences that carry heavy penalties, which of course raises big (rhetorical) questions about why the UK would go so far for such “minor” issues.

  7. Hugh on August 16th, 2012 at 17:33

    It would be very interesting to see on what grounds the claimed “misuse” was if the status was to be revoked. But given what historically embassies in London (let alone the world over) have gotten away with in terms of non-diplomatic practices (arms dealing, insider trading, customs evasion, and of course good old-fashioned espionage) it would really be hard to claim that what’s happening to Assange is somehow a precedent breaking misdemeanour that’s worse than the 200 odd years of prior shenanigans London’s diplomatic community (and the British diplomatic community overseas for that matter) have been up to.

  8. martin hector on August 16th, 2012 at 18:20

    Hi Pablo, i think the seige was the Libyan embassy- during Gaddafi.
    With the immediate armed response to the iranian raid too it seems the Metro Police have a lot of guns on the ready downtown

  9. Pablo on August 16th, 2012 at 18:45

    Yes Martin, you are absolutely right about the Libyan embassy.

    You are also correct because the UK approach does take its inspiration from UK Tehran embassy sieges, older and recent.

  10. martin hector on August 16th, 2012 at 22:27

    I wonder if they could get him out, plastic surgery in the embassy or something. I havent heard if the buildings got an internal carpark, or if its just the carpark out in front with the diplomatic parking space. Even though ive read they just have police on foot surrounding it i suppose they have some pretty intense survelliance somehow else going on

  11. Hugh on August 17th, 2012 at 01:05

    Technically Fletcher was shot prior to the siege, during a protest – the siege was a result of her shooting.

    I think the 1987 act is unecessary since the Vienna Convention and added protocols already provide a resolution for an incident on par with what happened to Fletcher – termination of diplomatic relations. As far as I can tell the 87 act has never been used and would probably be considered a breach of the UK’s obligations if it did. A lot of countries would probably dramatically downgrade their diplomatic missions in London if this sort of practice was to become commonplace.

    @Martin: I seriously doubt the Ecuadoreans could perform plastic surgery inside the embassy, that’s a James Bond proposition. There’s been talk of smuggling him out in a diplomatic bag, but the British government could simply refuse to acredit it, and diplomatic vehicles are not actually immune to police search and seizure (diplomats aboard them are but that’s another matter).

    The only way I can see for the Ecuadoreans to get Assange out of the embassy is to give him an Ecuadorean diplomatic passport. Which they are certainly capable of doing, but it would be a step above and beyond granting him asylum, which could be depicted as a relatively neutral compassionate act.

  12. Matt on August 17th, 2012 at 09:27

    By my reading, one thing the Ecuadorean Embassy *could* do is employ Assange as a diplomatic courier. That deals with the issue of his not being accepted as a member of the diplomatic staff while still getting him the necessary immunity to depart the UK. He would need to be escorting a “diplomatic bag”, but it is technically legal under Article 27 of the Vienna Convention.

    Regarding the car, Article 22, Clause 3, of the Convention states: “… the means of transport of the mission shall be immune from search, requisition, attachment or execution.” That’s pretty clear; the Embassy’s car(s) are sovereign property.

  13. martin hector on August 17th, 2012 at 10:57

    Hi Lew, to throw thing up again there was a good interview on nine to noon this morning with a Uk extradition lawyer where they talk about the legal status of the issue in Sweden, I am going out so I cant relisten but it seemed like what you wrote in your original post that it is charges was the correct interpretation-something to do with the Sewdish system

  14. Tiger Mountain on August 18th, 2012 at 18:30

    The pasty poms seem to excell in hypocrisy, they went well out of their way to try and stop one Augusto Pinochet from being extradited. Assange may not be everyone’s cup of the proverbial but he has done the world a service with his whistle blowing activities.

    Every day he exists is a bonus for him really given the enemies he has made in yankee land.

  15. DeepRed on August 18th, 2012 at 22:25

    Let’s see now… the embassy’s surrounded by bobbies, there’s no helipad on the roof, and no known tunnels underneath. Chances are they’ll have to smuggle him out somehow.

  16. Pablo on August 19th, 2012 at 10:38

    TM:

    I mentioned the Pinochet angle on a radio interview on Thursday but you are the only other person who seems to have picked up on it. In 1999 Pinochet fled to the Chilean embassy rather than be extradited to Spain and it took months to work a deal to allow him to return to Chile to face trial. So the Poms have been known to ignore extradition requests when it comes to friends (Pinochet and Maggie Thatcher were buddies not only because of their ideologies but also because the general allowed British commandos to stage in Chilean Patagonia during the Falklands War (in violation of the 1948 Interamerican defense treaty). Now that the shoe is on a different foot they are not so keen to cut a deal on the issue of safe passage.

    Whatever the case, there is no way that they are going to try to forcibly extricate him from the embassy. The precedent would be too nasty

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