By Sarah Joseph, Monash University
So things have once again hotted up in the continuing story of Julian Assange in the Ecuadorian embassy.
In a fiery press conference in Quito, Ecuador's Foreign Minister Ricardo Patiño claimed that Britain had threatened to “storm” its embassy in order to get hold of Assange and fulfil its obligation under a European Arrest Warrant to extradite him to Sweden. This “threat” was contained in an aide memoire in which the UK informed Ecuador that under its domestic law, namely the Diplomatic and Consular Premises Act 1987, it could revoke Ecuador's embassy status. Such a move would then presumably remove its inviolability under the law of diplomatic protection, enabling the British police to enter in order to seize Assange.
The British Act was amended in 1987 in light of two incidents in which major crimes were committed under the shield or attempted shield of diplomatic immunity. In April 1984, British policewoman Yvonne Fletcher was killed by shots fired at protesters from inside the Libyan embassy. Though British police laid siege to the embassy for eleven days, they did not enter, and the matter was eventually resolved by all Libyan diplomats being expelled and diplomatic relations severed. No one has yet been arrested for Fletcher's murder.
In July 1984, Nigerian authorities, assisted by Israeli agents, attempted to kidnap one Umaru Dikko, a former Nigerian government minister living in the UK, by drugging him and smuggling him out of the country in a diplomatic bag. The plot failed as the crate in which Dikko was stashed did not have the appropriate diplomatic markings, so police could open it.
The aide memoire indicates that British authorities believe that the Assange affair is serious enough to give rise to the possibility of revoking Ecuador's embassy status under its amended law. Yet the behaviour of Ecuadorian embassy staff hardly compares to the homicidal behaviour of someone inside the Libyan embassy in 1984, or the subterfuge and complicity in an attempted kidnapping by Nigerian diplomats in the Dikko incident. Furthermore, we must remember that Assange has not been charged with any offence anywhere, apart from skipping bail in the UK by launching his asylum bid in June. Furthermore, Ecuador is no more responsible for Assange seeking asylum in its embassy than the US was responsible for Chen Guangcheng's decision to seek refuge at the US embassy in China in May.
The revocation of Ecuador's embassy status, followed by the entry of police to seize Assange, might be legal under British law. But it seems very unlikely that it is legal under international law, namely the Vienna Convention on Diplomatic Relations 1961. At best, it is an open question. Indeed, given the highly dubious legality of the “threatened” British action, it is wrong for our Attorney General, Nicola Roxon, to once again timidly claim that there is little Australia can do to help its own citizen. Australia should at least make it very clear to the UK that it would be unacceptable for it to take unprecedented action and perpetrate a likely breach of international law in order to seize our citizen.
I seriously doubt the UK government ever intended to escalate matters to this extent. Does the UK really want to jeopardise its relations with Ecuador, and probably all of South America and much of the developing world, by “storming” an embassy? Does it really want to set a precedent which might endanger its own embassies in many countries in the world? Does it really want to commit a likely violation of international law?
Then actual chances of Assange escaping extradition to Sweden are small. Ecuador may well grant him asylum (it has stated that it will announce its decision at 10pm AEST) but it is now quite clear that the UK will not facilitate safe passage out of the country. No breach of international law arises if the UK arrests him once he finally stepped outside the embassy's environs.
The aide memoire may have been meant more as a clarification of UK law than an actual threat to use that law. But then again, why was it stated at all? It is a major bungle on the part of the Foreign and Commonwealth Office, as it has unnecessarily antagonised Ecuador and revealed to the world a somewhat cavalier stance on the inviolability of embassy premises. It is another instance of bizarre behaviour by a country in relation to Julian Assange and Wikileaks.
Sarah Joseph does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.