Assange, Asylum and Immunity
Embassies have replaced churches as the setting for confrontations between rival legal orders and concepts of fairness. Assange is in a different world, writes a former UK ambasador
The Ecuadorians have decided after a lot of dithering to give Julian Assange political asylum. Take that, you British colonialistic bullies!
Result? Nothing changes.
The idea of asylum goes back deep into history. In medieval England, a person seeking asylum in a church was expected to confess sins, hand over weapons and accept the authority of the church concerned. A choice had to be made: surrender to the authorities and face justice, or publicly confess guilt and go into exile.
These days embassies and consulates have replaced churches as the setting for confrontations between rival legal orders and conceptions of fairness. Dreary as they may look to passers-by, embassies are full of magic like the old wardrobe in The Lion, The Witch and The Wardrobe. You walk through the door and enter a new world run to different rules.
That said, the rules inside the Embassy wardrobe are rather mundane. Embassies are dull offices.
They are not equipped for outsiders living there for weeks or months – or years. Who pays for the food and supplies? Who does the shopping? Is that annoying person allowed to use the telephone or IT networks? What about our own security? Why oh why are we having all this extra hassle?
This explains why the Assange situation is relatively rare. Someone serious about seeking asylum will make his/her way to the country concerned and seek asylum at the point of entry. There is no point an Embassy granting a foreigner asylum, as that person still has to get from the Embassy to the border past unhappy local police forces.
And that, as we see in this case, is next to impossible.A key point is that the phrase "diplomatic immunity" applies in different respects. Diplomats may have immunity. Diplomatic communications may have immunity. So may diplomatic premises. But these immunities may not always exist simultaneously. They can be waived or forfeited for some purposes but not others.
We had an interesting case in Warsaw when I was Ambassador there. An Embassy colleague wanted to marry her fiancé (also British) in a Polish civil wedding ceremony. I naively offered the Residence as the setting for the ceremony. This led to a tangled ball of legal and other complications.
Would a Polish civil ceremony of a British couple on British diplomatic premises count as a wedding in Poland or in the UK? Eventually it was sorted out.
The Guiding Text for all this is the 1961 Vienna Convention.
It lays down codified rules and procedures that have evolved over centuries. The ultimate logic is all about grand courtesy. If you are a guest in someone else’s house (or palace) as Ambassadors and diplomats in effect are, you are expected to behave nicely. No cheating, respect the host’s standards of conduct, and don’t get involved with problematic locals in a way that might cause embarrassment.
Take diplomatic bags ("bags" is in fact a term of art – possibilities range from small pouches to large canvas bags, heavy boxes and even whole containers). HM Customs and Revenue give us guidance prepared by the FCO Protocol Directorate:
"Missions are further reminded that in deciding whether particular articles may be carried in a diplomatic bag they are required to observe the requirements not only of Article 27.4 (“only diplomatic documents or articles intended for official use”) but also of Article 41.1 (“laws and regulations of the receiving state”).
"It is particularly stressed in this context that the regulations governing the import and possession of firearms in the UK are among those which must be observed, regardless of any claim that any firearms may be intended for official use."
In other words, diplomatic bags in principle enjoy immunity, but they still have to go through a host state’s legal procedures. If the host state is not satisfied that the bags contain only items allowed under the Convention, things can get awkward.
The host state’s customs officials may, for example, ask that the diplomats concerned open the bag and confirm that the contents are as listed. Immunity follows and coincides with respect for the agreed rules.
If, now, a man-shaped diplomatic bag is seen emerging from the Ecuadorian Embassy and we prod it with a pitchfork to confirm that it contains only diplomatic items, a squeak of ‘Streeewth!’ would give us all the legal options we need to insist the Ecuadorian Embassy politely undo it and show us what or who is therein.
More generally, in the Assange case the Ecuadorian government via its Embassy in London has made the serious mistake of allowing itself to get drawn into a bilateral matter between the UK and Sweden, namely the extradition from the UK of an Australian national wanted in Sweden on some serious criminal charges. That is, ahem, none of Ecuador’s business. Bad form.
Worse, having allowed themselves to meddle in the issue by allowing Assange to dodge the law, they seem to see no way out of the hole other than to keep briskly digging towards Australia and hooting at HM government for the mess they are in.
How did the latest furore arise over supposed plans by the British side to strip the Ecuadorian Embassy building of its immunity and charge in to arrest Assange?
After weeks of polite, firm but fruitless discussions with the Ecuadorians, the British realised that they were about to announce that they would grant Assange asylum. In an attempt to make them think through the profound unwisdom of this, the British side drew Ecuador’s attention to the well-known Diplomatic and Consular Premises Act 1987:
(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or
(b) the Secretary of State withdraws his acceptance or consent in relation to land,
it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.
(4) The Secretary of State shall only give or withdraw consent or withdraw acceptance if he is satisfied that to do so is permissible under international law.
(5) In determining whether to do so he shall have regard to all material considerations, and in particular, but without prejudice to the generality of this subsection:
(a) to the safety of the public;
(b) to national security; and
(c) to town and country planning
This law makes sense. If we think that a state’s Embassy is abusing its diplomatic privileges by threatening our country or people, or if we want to extend the M4 into Belgravia and we need to knock down a load of posh buildings including an Embassy, we can take away the building’s immunity (and only the building’s immunity) to let life proceed sensibly.
The Ecuadorians (of course) proclaimed mention by us of this law to be a deranged neo-imperialist threat to send in the SAS, and cranked up the media accordingly. In my own view, the Foreign Office was well within its rights to point up that clause, but the way it was done perhaps lacked a certain…finesse. This gave the Ecuadorians a handy opening for making a vast silly noise.
Be that as it may, Assange is still there. By behaving in the way he has, Assange has massively reduced any quiet sympathy vote for himself in London or Stockholm. Many other governments round the world hate the fact that he selfishly allowed their secrets and confidences to be splashed over the Internet. So the options boil down to three, all of which end up with Assange losing his battle to avoid extradition:
a) He stays in the Embassy for a long time
b) He quickly decides that the Ecuadorians have reached the end of the line with him and so surrenders to the British authorities with as much grace as can be mustered before heading towards Sweden
c) Something messy but not too protracted
The key to getting things solved fairly soon may lie in London and Stockholm finding a way for the Ecuadorians to back down gracefully. Diplomacy is a lot about substance. Sometimes even more about saving face.
Charles Crawford is a Contributing Editor to The Commentator. A former British Ambassador in Sarajevo, Belgrade and Warsaw, he is now a private consultant and writer: www.charlescrawford.biz. He tweets@charlescrawford
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