Saturday 18 August 2012

Assange: Jaw Jaw

Updates:  Assange spoke from the Embassy on Sunday 19th August - see BBC.   The Head of Legal blog has considered some aspects of this.  A good article from Scotland is that by advocate Niall McCluskey - "Assange - what's going on?"

On BBC iPlayer - (but only available for 7 days from 16th August) - is a discussion with Pete Weatherby QC of Garden North Chambers, Manchester.  Mr Weatherby is categoric in his view the there is no power in the Diplomatic and Consular Premises Act 1987 to enable the arrest of Assange in the Ecuadorean Embassy.  Mr Weatherby suggests that the idea came from someone who left their brain on the beach - see Garden Court North website

Asylum - Some Notes~ Watching the Law blog ~  Some notes on international law of asylum - where it is argued that there is no basis in international law for the grant by Ecuador of diplomatic asylum to Mr Assange.  Also, Ricardo Patiño Aroca ~ Why Ecuador granted asylum to Julian Assange


"To jaw jaw is always better than to war war" - Churchill 1954

Please see the earlier post Julian assange ~ Quo Vadis

Former diplomat - Sir Brian Barder KCMG - has no doubt that a threat to withdraw diplomatic status from the Embassy was at least implicit in an Aide Memoire in which the British government set out its view of the legal position and claimed a right to arrest Assange in the Embassy.  See the post on the Brian Barder blog - "Assange: the FCO seems to have lost the plot - here's what to do."  Part of the aide memoire states:

  • 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.

As argued in Julian Assange ~ Quo Vadis, it is debatable whether in the context of Julian Assange the Diplomatic and Consular Premises Act 1987 can be properly interpreted in the way suggested by the second of those bullet points.  I do not think it does but the answer to that could only be found by lengthy and costly legal action which would inevitably end up in the Supreme Court of the United Kingdom.  (I will leave aside for now any possibility of the matter being referred to the International Court of Justice.  Only States may be parties to cases there - Art. 34 of the Court's statute).  Also left aside is any possible conciliation or arbitration under the Vienna Convention on the Compulsory Settlement of Disputes.  A particularly thorough article on the inviolability of diplomatic premises is at European Journal of International Law - "The Julian Assange affair: May the UK terminate the Diplomatic status of Ecuador's Embassy?"

Whatever view may be taken in the UK of this aide memoire, a very serious view of it is being taken by the Organisation of American States (OAS). 

The Permanent Council of the Organization of American States (OAS) has decided to convene a meeting of Foreign Ministers to discuss the situation between Ecuador and the United Kingdom - see OAS announcement.

The resolution, adopted with 23 votes in favor, 3 against, 5 abstentions and 3 absent, convenes the Foreign Ministers of the OAS Member States to meet on Friday, August 24 at 11:00 EDT (16:00 GMT) at the headquarters of the organization in Washington, DC. The purpose of the meeting will be to "address the situation between Ecuador and the United Kingdom of Great Britain and Northern Ireland regarding the inviolability of the diplomatic premises of Ecuador in the United Kingdom of Great Britain and Northern Ireland in accordance with international law, and to agree on appropriate measures to be adopted."

It seems clear enough that any attempt by the UK to violate the Ecuadorean Embassy is likely to have very significant political repercussions.

The Guardian 17th August published Julian Assange extradition: Ecuador 'willing to co-operate' with Britain

This article points to the increased Police presence at the Embassy - a matter on which the Police have, so far, declined to comment.   The Police presence might be explainable by the duty on a host State - under the Vienna Convention Article 22(2) - to protect the Embassy.  However, the article quotes a "senior Ecuadorean source" as saying that the increase in Police presence is "an absolutely intimidating and unprecedented use of police" designed to show the British government's desire to "go in with a strong hand".

However this may be, the same source is quoted as indicating that Ecuador has proposed an undertaking between the UK and Sweden  that, once Julian Assange has faced the Swedish investigation, he will not be extradited to a third country: specifically the US.  Clearly, there are tensions between the Ecuadoreans and the UK government but, for now, it remains "jaw jaw."

On 16th August, Sweden's news in English reported that Police had actually entered the Embassy.  As things stand, they could only lawfully do this with the clear agreement of the Ambassador.


  1. I appreciate the link to my own post on this subject, which incidentally is prompting some very interesting comments. Any attempt by our police (or, worse, troops!) to enter the Ecuador embassy in London to arrest and extract Mr Assange without the permission of the ambassador would be contrary to international law and would provoke an almighty row in which Britain would come off worst; I can't quite believe that Mr Hague seriously contemplates doing such a mad thing, even as a last resort. The UK law which he claims empowers him to do it does no such thing, as the most cursory reading of its provisions will confirm. Unfortunately the row precipitated by Britain's barmy threat to commit diplomatic hara-kiri is now overshadowing the rights and wrongs of Ecuador's action in offering Assange political asylum and declaring him a refugee, which he manifestly isn't. He should go to Sweden and there answer the allegations against him of rape and other misdeeds. Meanwhile there seems no pressing need for the British government to take any action at all.

    I assume that the reinforcement of the police outside the Ecuadorean embassy is to try to ensure that if Assange tries to slip out, he will be promptly recognised, arrested, and extradited to Sweden. A very sensible precaution! Other interpretations sound suspiciously like paranoia.

    1. Ed (not Bystander)18 August 2012 at 20:34

      The UK law which he claims empowers him to do it does no such thing, as the most cursory reading of its provisions will confirm.

      I respectfully disagree. An embassy is foreign soil, additionally protected by the Vienna Convention ad nauseam. The law says that the embassy's diplomatic status can be revoked at the snap of a finger (subject to him being "satisfied that to do so is permissible under international law" per s1(4) Diplomatic and Consular Premises Act 1987). If that status is revoked, then it is just a building in London, and the police will be legally at liberty to enter it to apprehend a bail-jumping fugitive.

      Sorry if that doesn't fit your narrative.

  2. For a further viewpoint on the actions of the British government see Craig Murray

  3. The article on the blog of the European Journal of International Law is well worth reading.

  4. What is interests me about this case is the conflict between 'the law' as written and 'justice' - not written. Similarly the conflict between my feeling that Assange ought to face the music and my delight that he is putting two fingers up to the Americans. Were I involved I would be troubled by the feeling that if he were led off to an American jail forever I had participated in a disgusting injustice, no good then to say 'just doing my job mate' - or 'the law must be upheld'.

    Then there is political pressure and the alleged security assistance we get from the Americans, this seems to come at a high price. Then indeed is the nature of the crimes in Sweden, if what I read is true Assange is not likely to get more than a slap on the wrist for these. As I said - conflict.

  5. The fact that Britain is acting so insane about arresting a guy because he is 'wanted for questioning about a sexual assault in Sweden' is ludicrous and laughable. Obviously all the big governments who were embarrassed by his leaks have an agenda and want retribution - it's as simple as that.

    I was under the impression, but could be wrong, that under EU guidelines a person could not be extradited for allegedly breaking a law in one country when that law does not exist within the country the 'wanted party' is situated. The law Julian Assange is accused of breaking is either 'refusal to wear condom during sexual act against wants of partner' or else 'woman states demand partner wear condom, he says okay but then doesn't really put one on prior to sex'. Obviously I don't know the wording of the actual law or which he is accused of doing - but in Sweden not wearing a condom when the woman asks you to is tantamount to RAPE. I don't think there is such a law in England, and even though it's a messed up thing to do - I think it's a crap law.

    The same E.U. Human rights idiots want to decriminalize having sex with someone without informing them of your HIV positive status. So it would be okay to give somebody AIDS (KNOWINGLY) but you go to jail for pretending to put on a condom when you did't?

    The hypocrisy staggers like methane gas; and I highly doubt any other 'dude' wanted for not wearing a condom in Sweden would even be LOOKED for in England.

    1. Your point about what is known as "dual criminality" is well made. It was dealt with at length in the Divisional Court's judgment - here. When the case went to the Supreme Court dual criminality was not appealed. The only issue in the Supreme Court was whether the European Arrest warrant had been issued by a judicial authority. The court held that it had been.

  6. Great post. I agreed with your point of view.