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Aug 16, 2012

Assange stand-off a debate between a threat and a right

The Ecuadorian government has launched a scathing attack on the UK, alleging that it has threatened to withdraw its embassy's diplomatic status, in order to raid it, and arrest WikiLeaks supremo Julian Assange.

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The Ecuadorian government has launched a scathing attack on the UK, alleging that it has threatened to withdraw its embassy’s diplomatic status in order to raid it and arrest WikiLeaks supremo Julian Assange.

Tonight (London time), as I write, police are gathering around the UK Ecuadorian embassy in Knightsbridge, and a general call has gone out, on Twitter and other networks, for WikiLeaks supporters to gather around the embassy.

The Ecuadorian government has announced that it will release a decision on Assange’s request for political asylum at 7am Ecuador time, noon in the UK and 9pm on the Australian east coast.

What Ecuador calls threats, and the UK appears to believe is a clarification of its position, were revealed by Ecuador’s foreign minister Ricardo Patino in a stinging press conference, in which he made public the contents of an “aide-memoire” between UK officials in Quito and the country’s foreign affairs department, and reminded the UK that Ecuador is not a colony of Britain.

The aide-memoire is in Spanish, and goes through the various issues concerning Assange, suggesting that both governments have been in negotiation for some time. It notes that Ecuador’s announcement of a timetable for the announcement of a decision undermines the efforts to make a joint statement or come to a joint agreement, hopes to reach an amicable, etc.

Then it gets tougher, announcing it would reject any request for “safe passage” for Assange should he be granted asylum, and need to get to the airport.

“We reiterate that we consider the continued use of diplomatic facilities in this way to be incompatible with the Vienna Convention and unsustainable, and that we have made clear the serious implications for our diplomatic relations,” it goes on to say, before getting to the kicker:

“They must be aware that there is a basis in the UK — Facilities Act Diplomatic and Consular 1987 (Diplomatic and Consular Premises Act 1987) — which would permit us to take action to arrest Mr Assange in existing facilities of the embassy. We sincerely hope not to have to get to this point, but if you can not resolve the issue of the presence of Mr Assange in its facilities, this route is open to us.”

The announcement of the 1987 law has been construed as a direct threat by many news sources, who seem to be treating Google translate as gospel. Nevertheless, there is no mistaking the tone of it — although given that it was released by Ecuador, rather than the UK, its true purpose has many possibilities.

Furthermore, the 1987 law has been taken as some secret, treaty-busting piece of legislation — but of course it isn’t. Every country has to have a law dealing with an “embassy” that has ceased to be one – because the government that authorised it has been deposed, and new credentials have been delivered, or because the whole staff are dealing out small arms from it to rebel groups, or whatever. In such cases, the purported embassy has clearly broken the conditions of the Vienna Convention and ceased to be protected by it.

What provision of the Vienna Convention Ecuador has allegedly broken is not specified. The relevant section, article 3.1, specifies the functions of a diplomatic mission thus:

1.The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations

Note the catch-all, inter alia, in the first line. Further on, it gets more specific:

Article 41

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.

But if the Convention is fuzzy on diplomatic functions, then it is more specific on protections of the diplomatic mission:

Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Since the 19th century, the inviolability of diplomatic missions has been the cornerstone of international diplomacy — indeed the convention specifies that, even during armed conflict, diplomatic staffs must be granted safe passage to leave the country. That convention has been respected, even in the most bitter conflicts — from Cardinal Mindszenty spending 15 years in the US embassy in Budapest after the 1956 uprising, to Chen Guangcheng, the blind dissident who escaped house arrest, to the US embassy earlier this year.

In these and many other cases, the asylum seeker had broken the laws of the country in question — though these were usually pretty clear repressive political laws.

In this case, Assange has broken laws — jumping bail — that are part of a general criminal law framework, a general system to which Ecuador is party (if not a particular one). That could be used to invoke article 41 (above). But even then, the question of how minor criminal laws relate to major political repression is uncertain.The artist Ai Weiwei was pinged for tax evasion by the Chinese authorities, and perhaps some of the charges are true. But if he appeared on the doorstep of the Australian embassy, asking for protection, would the existence of more such charges trump the reality of his concerns?

The point is that one state’s neutral criminal procedure is a stitch-up from another point of view. Much of Ecuador’s thinking on the matter has no doubt been exercised by the fact that it has to establish that Assange faces persecution from his own country, i.e. Australia, rather than directly invoking the UK-US-Swedish conveyor belt. He would need to use former attorney-general Robert McClelland’s 2010 statement that the Australian government was looking for ways to see if Assange had broken any US laws at the time that Cablegate exploded — and combine that with the ample statements in the US concerning the desirability of his assassination.

The most smoking of all pistols in that respect was Vice-President Joe Biden’s statement that Assange was “a high-tech terrorist”. Given that — as The New York Times’ “drone wars” articles established — the US regards the assassination of terrorists as legitimate action, Oz’s active failure to defend Assange, or to demand of Sweden that it officially announce that it would not extradite him to the US, might serve as sufficient pretext.

Before the release of the aide-memoire, Ecuador had a real problem with Assange’s request — since the difficulty of the “home-country” provisions would oblige it to somewhat thumb its nose at diplomatic practice. Now, however, the release of the UK note by foreign minister Ricardo Patino, has put the UK on the back foot, potentially invoking the solidarity not merely of South America, but of sections of what used to be called “the Third World”. The UK government was quick to squawk about official involvement by the Iranian government in the 2001 attack on their embassy by protesters. It might not be the only one burning in a few days.

So, no one knows what the next move — save perhaps for WikiLeaks, and they’re not telling. Some have joked about Assange being smuggled out in the diplomatic bag. That would violate the rules. This would not:

Article 27

3. The diplomatic bag shall not be opened or detained.

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 person inviolability and shall not be liable to any form of arrest or detention.

Senor Assange, in poncho, on burro, to Heathrow, with a diplomatic bag and a guinea-pig sandwich? Now that would be an international incident. Stay tuned.

Guy Rundle — Correspondent-at-large

Guy Rundle

Correspondent-at-large

Guy Rundle is Crikey's correspondent-at-large. He was co-editor of Arena Magazine for 15 years, and has written four hit stage shows for Max Gillies, two musicals, numerous books and produced TV shows including Comedy Inc and Backberner.

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