The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions. In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.
I am no expert in International law and there are people far more learned than I in these matters who have commented. I have linked to some of their writings and other commentary at the end of this blog post. There are serious issues at play in this case and I thought I would put my two-penneth in.
This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange. EAWs are a way of ensuring the co-operation between member states of the European Union. When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months. There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received. Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him. A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.
One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK. Indeed, there is no uniform process of criminal procedure in the United Kingdom. The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point. This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning. Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW. However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.
I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others. However, I do propose to consider the developments of the last few days and also some of the wider implications.
I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations. They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence. I make no comment on his guilt or innocence in relation to these allegations. However, they are extremely serious allegations and the women who have made them have rights as well. They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden. He may be guilty and he may be innocent. The only way in which that can be determined is for Mr Assange to face the Swedish judicial system. If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations. In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.
There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty. Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty. The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg. Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4). This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty. Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.
Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum. This caused outrange amongst the British and Swedish Governments who strongly criticised the decision. The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador. It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them. This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government. To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK. They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.
The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”). The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind. As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused. A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.
The Embassy of Ecuador is being used for the purposes of its mission. I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy. In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises. This, I would suggest, is not really a viable option and would be a severe abuse of the legislation. Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon. It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.
Storming the Embassy is not really an option either. It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out. Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador. Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.
The outcome of this case is likely to be rather dull than any of this. It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London. What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities. It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).
In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him. He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK. By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries. The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status. Although, with Mr Assange anything is possible!
The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)