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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.


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.


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22 thoughts on “Assange stand-off a debate between a threat and a right

  1. Mike Smith

    But he hasn’t broken UK laws, it is alleged that he has broken Swedish laws, but he isn’t in Sweden. The bail is on behalf of Sweden, not UK.

  2. Luke Miller

    As far as entertainment factor goes, Assange is definitely value for money

  3. ggm

    But he hasn’t broken UK laws, it is alleged that he has broken Swedish laws, but he isn’t in Sweden. The bail is on behalf of Sweden, not UK.

    the bail conditions are an application of british law. the bail conditions as stipulated by a british judge required regular presentation to the police at a place of their choosing.

    the bail may be on behalf of another european union country, but the bail is british bail, from a british judges orders.

    he has most definitely breached his bail conditions.

  4. candide22

    Britain should send a gunboat upriver from the Pacific to Quito to help the Ecuadoreans see the error of their ways. This tactic worked a treat in the 19th century when Britain wanted the Chinese to agree to buy Indian opium.

  5. zut alors

    Assange continues to expose the ongoing sweetheart deal Oz has with the US.

    We continue to offer up human sacrifices, an ancient and primitive practice, to the US judicial system. David Hicks and Mamdouh Habib eventually slipped the noose, here’s hoping Assange will prevail. Needless to say there will be zero help from Gillard, Roxon et al. Such a pity Assange hadn’t been found in possession of a few kilos of cocaine – our political representatives seem to dig deep with consular and legal assistance in drug cases.

  6. Bohemian

    Let’s see what this do nothing government and the silent opposition do to protect its citizens from the United States and its running dogs. Any police around the Ecuadorian Embassy you would think would have to be either MI6 or US agents in disguise, as it is not a police matter.

    Assange, for exposing just a fraction of the criminality underpinning the world’s leadership, will be made an example of and will surely get the “Bradley Manning treatment” . The giant doesn’t like having his eye poked and will do whatever it takes, including napalming Sydney if that is what it takes, to make sure he is not going to let some Australian upstart get high and mighty with him!

    By the way the US has been operating under a state of emergency since the time of Franklin D Rooseveldt; it’s never been rescinded by Congress. So the President can pretty much do whatever he likes under Executive Order, just in case you were in any illusion about this stuff going to the International Court of lol Justice..

    And they (the lapdog government of Australia) had better speak up before the nuclear aircraft carriers are permanently based in Perth or the additional 2500 marines hit Darwin as recommended by one of the major insider controlled think tanks this week. After that we will be little more than a protectorate which will need permission from its “protectors” to speak.

  7. Oscar Jones

    Sadly we and the UK are now the USA’s ‘bitches’.

    When friendly Spain tried to extradite the mass murdering Pinochet the UK put every obstacle in it’s way while Margaret Thatcher praised him for bringing ‘democracy’ to Chile which involved flinging opposition leaders from helicopters and despite Chile already having a democratically elected government.

    When PC Yvonne Fletcher was shot dead from the window of the hostile Libyan Embassy the entire staff were escorted to Heathrow to fly to safety.

    Now an alleged condom breaker threatens a diplomatic incident because the USA wants him and what they want, they get.

    Which one is the rogue nation in this black is white scenario?

  8. Whistleblower

    One must assume that the US is learning pretty heavily on the UK government for them to threaten to breach diplomatic conventions in relation to Julian Assange’s relatively trivial offence requiring his extradition to Sweden, which can one can only assume is so the Swedish lickspittles can facilitate his extradition to the land of the free which is already declared Assange a terrorist liable to extra judicial assassination.

    It would appear that notwithstanding Labor’s once strong defence of freedom of expression, we also appear to have our own homegrown band of lickspittles including Gillard and Roxon who are so busy sucking up to the US that all they can see is Uncle Sam’s butt cheeks!

  9. Frank Campbell

    Sky News here is reporting that the UK government is preparing to “storm” the Ecuadorian embassy.

    Cops are shown swarming in and around the embassy like rats on a carcass.

    The craven obeisance of client states to the United States is stark. Stark naked.

    The US prison gulag awaits Assange.

    The secret global state run by the CIA – with the connivance of satellites like Australia- dates from at least 1945. Insitutionalised torture, abduction (“extaordinary rendition”), impunity and immunity: they’re all familiar policies and practices, repeatedly exposed since before the Bay of Pigs.

    The instant enlistment of US and foreign corporations in the war against Wikileaks shows how the Empire strikes back today: Visa, Paypal, Citibank…they all complied without demur in banning Wikileaks.

    Banal Gillard condemned Assange immediately. Convicted drug dealer Corby gets rapt attention from Australian diplomats, her every tantrum amplified by the tabloid media. David Hicks rotted for years in the gringo gulag, ignored by the Australian government. ASIO incarcerates asylum seekers indefinitely- no charge or reason given.

    A new politics is desperately needed. Or Kafka’s nightmare will prevail.

  10. Andybob

    The War of Jenkins Ear has nothing on the War of Julian’s Prophylactic.

  11. botswana bob

    This looks like yet another episode of the USA telling the U K to jump and the Tory sycophants asking How High. As the 4CORNERS expose a month or so ago showed, this whole sorry episode stinks. The Swedes, active participants in America’s “extraordinary renditions”, have laid no charges against against Assange. They want to question him, but somehow his offer to visit the Swedish Embassy wasn’t suitable as was Ecuador’s offer to allow questioning in their London Embassy. Why? Presumably as the Swedes with U K assistance want to get him so he can be rendered to the USA. And what’s OUR GOVERNMENT doing to help an Australian citizen? As is Canberra’s well-established practice, nothing. The Roxon spin says it all: they’d really like to help but, sad to say can do absolutely nothing.

  12. MaggieP

    Isn’t the gagging of Julian Assange rather similar to Crikey’s silence on the revelations of The Expendable Project?

    Isn’t Crikey’s blanking of government cables, which prove criminal offences, of the same ilk?

    There they are, published on a website (Expendable.TV). Emails between the likes of Ellison, Keelty and Howard, discussing vital evidence which they withheld from a court of law. Documents which prove systemic perjury, and yes, to Parliament. Correspondence proving media manipulation. No narrative needed. These are their OWN cables.

    Crikey have known this since September last year, when they first started to appear. But silence, like the rest of the Australian media. Utter silence. Not a passing reference to any of it.

    So when Crikey preach about basic freedoms, just remember their role in this affair. The hypocrisy is blatant.

  13. mattsui

    Serioiusly? Corby?
    Of all the partly-baked conspiracy theories being ignored by the media at large – you go for Corby?
    Of all the Howard Governments hidden dealings, international missteps, borderline war crimes and downright blatant lies to the Australian people that are still unexposed……. Chappelle corby is an innocent stooge, framed by the Government.
    Brilliant, why is Crikey ignoring such an important issue?


    Have I missed something? Why can’t the Swedish authorities come to London and interview Mr Assange In the Ecuadorean Embassy in the company of his legal counsel?


    Re -previous comment: I’m serious.

  16. Mike Smith

    @Quigley: Because they aren’t interested in talking to him at all, it’s a pretext to get him there so the USA can extradite him from Sweden. For that matter, they could talk to him on the phone, or videoconference. The UK merely don’t want to be the instrument that delivers him directly into the hands of a country that won’t deny that they will execute him. (the USA) Evidently Sweden is less squeamish about doing that.

  17. Bohemian

    Looks like Brandis has outdone everyone in the sucking department. Must be looking for a UN appointment or a job at one of the American banks.

    Remind me never to vote for those guys. With them in your corner you may as well take the bitter pill on arrest.

    Where is Taras Bulba when you need him!

  18. Rod Aistrope

    Perhaps, just perhaps Nicola Roxon and Bob Carr may be working in the background, out of the blaze of public view to influence the outcome for Mr Assange. Quiet and reasoned diplomacy is generally more effective than megaphone diplomacy so that compromises can be made while no-one loses face. But essentially there is little that our government can be expected to do.

    See what happens when a more powerful country bullies an emerging one – if there was a doubt about Ecuador offering asylum it disappeared when their national pride and independance was threatened. And why not?

    Finally, does it not seem extraordinary that what is actually only a breach of bail conditions arising from a request to question Mr Assange (since he has not even been charged with anything yet) has escallated so quickly up to threats of armed intrusion into a foreign embassy just to grab and extradite him could have occurred in a country generally noted for its tolerance, fairness and common sense?

    Unless the agenda really is to render him up to the USA via Sweden why would the Tory government be so determined over such a minor matter?

  19. Frank Campbell

    Rod A: “Unless the agenda really is to render him up to the USA via Sweden why would the Tory government be so determined over such a minor matter?”


    Except that it makes no diff. whether the govt. is Tory or Labour…and the LibDems have had no effect on their coalition allies…


    Well said, Rod Aistrope,
    I’m sure when the Foreign Office was giving advice to the UK government I’m sure they finished in good Sir Humphrey style and suggested options ranging from:
    “Do nothing” up to and including “Storm the Embassy and arrest Assange”.
    In between those extremes I’m sure one suggestion must have been: Invite the Swedes to interview Assange (with the permission of the Ecuadorean government and with his legal counsel present).
    For the life of me I cannot understand how the UK government can have mismanaged this affair so badly.
    Or why it has not been more open about the options it has considered and rejected.
    I suspect – without proof – the Americans are pulling the strings.
    Or the Brits know what the Yanks want them to do.
    I suspect it is because the Americans are aghast that Wikileaks has exposed how pathetic their protective security of sensitive information is and they are desperate to get their hands on Assange and find out how it was done. And then punish him as a deterrent for others.
    Rod Aistrope is hot on the scent….

  21. MaggieP

    Do you actually bother to read what you post on MATTSUI? Are you just another Australian empty head who consumes what is fed to you by your foul media?

    To anyone who isn’t an airhead on here, why don’t you pop along and read the government emails on there. READ THEM.

    Read Ellison and Keelty, for example, discussing the little fact that her bag was THE ONLY ONE not scanned at Sydney. Or read about the 5kg weight added to her bag at Brisbane, which Qantas withheld from Parliament in their submission.

    These aren’t allegations, or “conspiracies” which morons try to suggest. These are facts, and they have never been reported by your media, or by Crikey.

    Read the cables. You will work out for yourself why they have remained hidden.

    It says everything about your nation, MATTSUI. If you don’t think that is important, maybe it says something about you too.

  22. mattsui

    Good news @MAGGIEP,
    According to the ABC this morning, Ms Corby will be free in a little over one month.
    When she gets home she will be able to tell her story and no doubt there will be FOI requests and free lunches aplenty.
    The Australian Government seems to have looked after her interests quite well, in recent times, at least.
    Meanwhile, some of the Bali 9 are still on death row and Assange is effectively a political exile.


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