So Julian Assange has been granted asylum by Ecuador. The problem that he has though is he is still in the UK (and the UK can theoretically close that embassy down, it’s not a parcel of Ecuador in the middle of London) so the question would be how could he legally get out of the UK?
Here’s my idea (which is probably crazy, but Mark Newton had the same one on Twitter)..
- Ecuador makes him a citizen of their country.
- Ecuador appoints him to their diplomatic staff
- Ecuador makes him a diplomatic courier to courier a diplomatic bag from the embassy in London to Ecuador.
- Julian Assange leaves the UK.
So why do I think that will work?
Well I found a United Nations document from 1989 called “Draft articles on the status of the Diplomatic Courier and Diplomatic Bag not accompanied by a Diplomatic Courier and Draft Optional Protocols thereto with commentaries” (PDF) (not destined for commercial success with a title like that) which nicely explains what’s involved.
The important points I read were:
- The receiving nation (in this case the UK) does not get to approve couriers who are nationals of the sending nation (Ecuador), that’s only for the head of missions.
- The receiving nation is obliged to “accord to the diplomatic courier the facilities necessary for the performance of his function”, and even to provide temporary accomodation.
- The receiving nation can declare the diplomatic courier who holds diplomatic rank “persona non grata” and then the sending country is obliged to recall the courier and they must leave the country. It’s only if they fail to recall the courier and they do not leave in a “reasonable period” that the receiving nation (the UK) can take action against them.
Now unless the status of diplomatic couriers has changed since 1989 then my feeling that the process would lead to one of two conclusions:
- Julian Assange leaves as a diplomatic courier and travels to Ecuador
- Julian Assange is recalled as “persona non grata” and travels to Ecuador
I’ve probably missed something (other than a flagrant breach of the Vienna Convention), but I can’t see what..
It would appear the UK government agrees with this, their webpage on DIPPRIV2400 – Diplomatic Bags and Couriers: Diplomatic Couriers says:
Couriers are entitled to personal inviolability and must not be searched, arrested or detained.
Here is the UK legislation confirming that, the Diplomatic Privileges Act 1964, which says:
5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriersad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.
Yes, but unfortunately it’s not that easy to appoint someone to your diplomatic staff. A diplomat has to be accredited to the nation they’re working in, and the host nation can refuse to accredit them. I think even Australia’s done it in the past, when Indonesia under Suharto was proposing to send as ambassador somebody more than usually steeped in blood. No, the solution has to be a very large diplomatic bag.
I just found a nice UK government article on the issue, it says:
Just updated the article with that. 🙂
In Article 18, the UN document states that
“The diplomatic courier shall enjoy immunity from
the criminal jurisdiction of the receiving State or the transit State in respect of acts performed in the exercise of his functions.”
The “in respect of acts performed in the exercise of his functions” part seems apposite. I doubt molesting Swedes is part of official Ecuadorian diplomatic protocols.
The UK’s Diplomatic Privileges Act 1964 says:
There is no caveat on that version.
It’s worth remembering that he has not been charged with any offence, let alone convicted, and if the Swede’s were really serious about talking to him about this they could have sent someone to London to interview him, as invited. Or given the Ecuadorian government the assurance that he would not be extradited to the US if he travelled there to be interviewed, which they refused.
Looks straightforward enough, makes you wonder why we need lawyers :). Actually, I suspect that it’s not that straight-forward at all, and I can’t find a single example anywhere of where this has been tried. This makes me wonder why, especially since more wacky ideas, like trying to smuggle people out in diplomatic bags, actually have been tried in the past.
I suppose one problem is that to even try this would probably constitute a breach of the Vienna convention by the sending state, and then all bets are off. The only thing that seems certain in this sort of scenario is a very long legal battle, and a very long stay in the Embassy for Assange.
The issue about being charged or not seems a red-herring to me. There is a valid European arrest warrant, for offences which are recognised as such by the UK (1 count of coercion, 2 of molestation and 1 of rape), and a UK arrest warrant for breach of bail conditions. A charge can only be placed after interview, the interview is part of the process of laying a charge in the Swedish system. One of the questions considered during the appeal process was whether or not the current position in Swedish law was equivalent to having charged Assange under UK law, and the judges decided that it was.
As far as an assurance that he would not be extradited goes, that would be very hard if not impossible for any Government to give. I’m sure that Assange’s legal representatives must know this. This is a legislative process, if an extradition request is received at some point in the future from another state then that would have to be considered on its merits, just like any other request. It would be quite wrong for the Government to bypass due-process and disallow the courts from considering any such request. This would require legislation specifically to protect Assange from any future proceedings. I can’t see any Government agreeing to this.
Note however that, due to european extradition law, it would not be possible for Assange to be deported to another country from Sweden without the agreement of the UK. If Assange is deported to Sweden he would be in no more danger of deportation to the US, or anywhere else, than if he remained in the UK
The key thing for me is to make sure that anyone accused of a crime receives the benefits of due-process and, having received those benefits, has to face up to the consequences if the courts find against them. Attempts to disrupt the legal process aren’t something that we should take lightly.
Actually, no, I should have read more closely. Your solution doesn’t involve consent. It could work.
In a (paywalled) Crikey article on Wednesday, Guy Rundle was suggesting he could be appointed part of the Ecuadorian mission to the UN, which doesn’t require him to be presented to the UK.
Actually the diplomatic courier method won’t work either. A courier has protection “in the performance of his functions” which plainly doesn’t apply to Assagne… Sorry no go!
I suspect the protection in the performance of his functions mean they must permit him to do his job (i.e. be a courier) and must grant temporary accomodation, etc, as mentioned in the UN document.
The law states:
So my reading is that the UK cannot arrest or detain a diplomatic courier without contravening their own legislation.
Bonzodog, so what if the Ecuadorean ambassador made Assange a courier and then gave him a message (“HI! How’s tricks?”) to take back to the President?
One bit of new information in the whole brouhaha is that the US doesn’t recognise diplomatic asylum at all. If you pop into an embassy in Washington they’ll just send in the rozzers immediately. Though they do harbor people in their embassies; Cardinal Whatsisname in Hungary, or more recently that Chinese dissident. Typical US having it both ways.
Perhaps we could compromise by bringing in some of finer detail of the medieval concept of sanctuary;
“There is a third cross-road where the track from Boldre runs down to the old fishing village of Pitt’s Deep. Down this, as they came abreast of it, there walked two men, the one a pace or two behind the other. The cavaliers could not but pull up their horses to look at them, for a stranger pair were never seen journeying together. The first was a misshapen, squalid man with cruel, cunning eyes and a shock of tangled red hair, bearing in his hands a small unpainted cross, which he held high so that all men might see it. He seemed to be in the last extremity of fright, with a face the color of clay and his limbs all ashake as one who hath an ague. Behind him, with his toe ever rasping upon the other’s heels, there walked a very stern, black-bearded man with a hard eye and a set mouth. He bore over his shoulder a great knotted stick with three jagged nails stuck in the head of it, and from time to time he whirled it up in the air with a quivering arm, as though he could scarce hold back from dashing his companion’s brains out. So in silence they walked under the spread of the branches on the grass-grown path from Boldre.
“By St. Paul!” quoth the knight, “but this is a passing strange sight, and perchance some very perilous and honorable venture may arise from it. I pray you, Edricson, to ride up to them and to ask them the cause of it.”
There was no need, however, for him to move, for the twain came swiftly towards them until they were within a spear’s length, when the man with the cross sat himself down sullenly upon a tussock of grass by the wayside, while the other stood beside him with his great cudgel still hanging over his head. So intent was he that he raised his eyes neither to knight nor squires, but kept them ever fixed with a savage glare upon his comrade.
“I pray you, friend,” said Sir Nigel, “to tell us truthfully who you are, and why you follow this man with such bitter enmity?
“So long as I am within the pale of the king’s law,” the stranger answered, “I cannot see why I should render account to every passing wayfarer.”
“You are no very shrewd reasoner, fellow,” quoth the knight; “for if it be within the law for you to threaten him with your club, then it is also lawful for me to threaten you with my sword.”
The man with the cross was down in an instant on his knees upon the ground, with hands clasped above him and his face shining with hope. “For dear Christ’s sake, my fair lord,” he cried in a crackling voice, “I have at my belt a bag with a hundred rose nobles, and I will give it to you freely if you will but pass your sword through this man’s body.”
“How, you foul knave?” exclaimed Sir Nigel hotly. “Do you think that a cavalier’s arm is to be bought like a packman’s ware. By St. Paul! I have little doubt that this fellow hath some very good cause to hold you in hatred.”
“Indeed, my fair sir, you speak sooth,” quoth he with the club, while the other seated himself once more by the wayside. “For this man is Peter Peterson, a very noted rieve, draw-latch, and murtherer, who has wrought much evil for many years in the parts about Winchester. It was but the other day, upon the feasts of the blessed Simon and Jude, that he slew my younger brother William in Bere Forestâ€”for which, by the black thorn of Glastonbury! I shall have his heart’s blood, though I walk behind him to the further end of earth.”
“But if this be indeed so,” asked Sir Nigel, “why is it that you have come with him so far through the forest?”
“Because I am an honest Englishman, and will take no more than the law allows. For when the deed was done this foul and base wretch fled to sanctuary at St. Cross, and I, as you may think, after him with all the posse. The prior, however, hath so ordered that while he holds this cross no man may lay hand upon him without the ban of church, which heaven forfend from me or mine. Yet, if for an instant he lay the cross aside, or if he fail to journey to Pitt’s Deep, where it is ordered that he shall take ship to outland parts, or if he take not the first ship, or if until the ship be ready he walk not every day into the sea as far as his loins, then he becomes outlaw, and I shall forthwith dash out his brains.”
At this the man on the ground snarled up at him like a rat, while the other clenched his teeth, and shook his club, and looked down at him with murder in his eyes. Knight and squire gazed from rogue to avenger, but as it was a matter which none could mend they tarried no longer, but rode upon their way. Alleyne, looking back, saw that the murderer had drawn bread and cheese from his scrip, and was silently munching it, with the protecting cross still hugged to his breast, while the other, black and grim, stood in the sunlit road and threw his dark shadow athwart him.
Conan Doyle, The White Company
The 1954 convention on diplomatic asylum isn’t recognised by the UK either, in fact outside of the OAS I’m not sure there are any states that recognise it. This has nothing to do with entering embassies without permission of the head of mission.
Ecuador does recognise the convention of course. This is a convention that states:
“It is not lawful to grant asylum to persons who,at the time of requesting it, are under indictment or on trial for common offenses”
Assange under indictment? Check.
It seems International conventions are a bit like a buffet for states. They can pick and choose the bits they like and leave the rest behind.
I’m in Law School and writing a paper on the subject right now.
Essentially, outside of staying in the embassy and hoping for things to change on the outside, Assange’s best bet is indeed being appointed a Courier.
However, he’d then be a part of the Diplomatic Staff, cf. the Vienna Convention art. 1, and as a result Britain could declare him a persona non grata and refuse to recognize him as a member of the mission, cf. art. 9. He’d then be arrested as soon as he left the embassy anyway.
However, that’s not even very relevant: The British officials could go in and arrest him right now if they wanted to. He’s clearly not a actual member of the embassy staff, and even if he was, he could be refused based on the previously mentioned article 9 by the British government. As a result, he’s only protected currently (and ever) by Article 22 which declares the premises of the embassy inviolable. Or in other words: He has no immunity at all, but the room he sits in is protected.
HOWEVER, based on a Norwegian Supreme Court ruling (NR 1973.1480 H) as well as various other sources, it seems that there is nothing inherently wrong with entering (and violating) the premises to arrest someone who is not themselves protected. The only objection to this line of reasoning would be the host states obligation to protect the premises and “prevent the disturbance of the peace” cf. art. 22, point 2. So if the Ecuadorians put up armed guards blocking the door, an arrest probably couldnt’ happen without disturbing the peace.
Basically, to summarize, what’s keeping Assange safe right now is not by any degree international law or the Vienna Convention, but rather politics. The police could go in and get him right now if they wanted to, or grab him once he tried to go to the airpoint, regardless of what legal loophole he’d try to use. However, it’d be really bad news for the UK to start a major political fight with Ecuador, who would easily have the support of most of the rest of South America.
So to summarize, the Falkland Islands are keeping Assange safe as long as he doesn’t leave the embassy, and his best shot is to hope that the extradition request is cancelled, or similar.
To be precise regarding the “courier option”, article 8 of the Vienna Convention kills that dead by allowing the UK to withdraw the diplomatic status “at any time”. Article 8 is far-reaching than the timeframe for withdrawal allowed in article 9 and would prevent Assange from being appointed as any form of diplomatic staff.
Hi MT, thanks for that input!
About section 8 though, the host country can only rescind diplomatic status for people who are not citizens of the sending country, and thus if Assange was Ecudorean the UK government could not do so, they could only declare him as person non-grata and ask him to leave. They can only refuse to accept accept him as a member of the mission if the Ecudoreans do not recall him quickly enough.
But remember that UK law forbids the UK from arresting a courier, I’d say they would be in a difficult position if they tried to arrest a courier – there does not appear to be any allowance to the receiving state to not honour someones status as a diplomatic courier.
That said, of course, it would as you say be a risky step for them to take, and I wouldn’t expect them to do so. I was just speculating that it was a possible way out. 🙂