Assange Case: Can the British Storm Ecuador's Embassy?
We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the chanceries…
According to Ecuador, the UK embassy in Quito delivered a diplomatic note in mid-August stating:
You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr. Assange in the current premises of the Embassy.
We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr. Assange's presence in your premises, this is an open option for us.
We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.
In response, Foreign Minister Ricardo Patino announced, "Today we received from the United Kingdom an express threat, in writing, that they might storm our embassy in London if we don't hand over Julian Assange. Ecuador rejects in the most emphatic terms the explicit threat of the British official communication." Later, in his usual understated manner, President Rafael Correa declared the warning "absolutely unacceptable and a threat to all countries of the world."
So, we can see two options for the British: a) can they indeed "storm" the Ecuadorean embassy; and b) should they?
How to Storm a Foreign Embassy Under International Law
While as a diplomat, I have been arrested, menaced, hassled, harassed and threatened with being made persona non grata, I've never had one of my diplomatic missions "stormed," though I've had colleagues who have had. I helped close one embassy (Kabul) that was under serious security threat. I cannot, however, recall my government lifting the diplomatic status of a foreign mission on American soil and then intruding onto the premises. So, can the Brits do it? Wave a magic wand lifting the diplomatic immunity of nine wayward Ecuadorean diplomats and their lilliputian embassy and then send in Scotland Yard to nab one loudmouthed Aussie attention-seeker wanted for sex crimes in Sweden?
British legal expert Carl Gardner has looked into his government's stance and has this to say:
The 1987 Act does indeed give ministers a power to withdraw recognition from diplomatic premises. Section 1(3) says
In no case is land to be regarded as a State’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the Secretary of State has given that State consent under this section in relation to it; and if—
(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.
On the face of it, then, the Secretary of State (in practice a foreign office minister) could now simply withdraw consent, and with one bound, police would be free to make an arrest.
But it’s not quite as simple as that. You’ll note that section 1(4) says
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
and that according to section 1(5), in deciding whether to withdraw consent, the minister
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.
The “compliance with international law” requirement may present a problem, since article 21 of the Vienna Convention on Diplomatic Relations requires the UK to facilitate the acquisition by Ecuador of premises necessary for its mission, or assist it in obtaining accommodation. It’s not obvious this allows the UK to just de-recognise the current premises without helping arrange something new.
Section 1(5) is interesting because, in spite of the way the drafting clearly intends to preserve ministers’ ability to take account of anything they think relevant, I’ve no doubt lawyers for Ecuador could argue that the list of three particular concerns colours the scope of ministers’ considerations, the result being that only some particular difficulty relating to safety or to the premises themselves could justify withdrawal.
More importantly, they could argue that Assange’s presence in the embassy and Ecuador’s conduct in sheltering him is not a material consideration; and that since that clearly lay behind the withdrawal, ministers would in deciding to withdraw consent, have taken into account an irrelevant factor.
In addition, there’d be a potentially strong argument to be made that ministers had exercised their power for an improper purpose not intended by Parliament when it enacted the 1987 legislation – their desire to arrest Julian Assange.
Bottom line? As with almost all things legal, it's murky.
Should the United Kingdom Invade the Embassy of a Micro-State Itching for a Fight?
With the legal case about as clear as mud, we turn to the political side. What are the downsides of lifting the diplomatic status of Ecuador's embassy and then sending in law enforcement to arrest Assange? Plenty:
it makes the Brits look like semi-barbarous bullies
it puts UK diplomatic missions, especially in Latin America where anti-British sentiments remain strong over the Falklands feud with Argentina, under security threat
it feeds into the need of tinpot quasi-dictators like Correa and his fellow travelers in Venezuela, Bolivia and now Peru for endless squabbles with Western powers to make themselves look courageous and to divert their people's attention away from domestic problems
In my diplomatic experience, the UK's Foreign and Commonwealth Office (FCO) is one of the most talented and capable foreign ministries in the world. They rarely pursue stupid or unsound policies. Their political leaders, however, may be pushing for a more aggressive policy to get Assange.
So, Just Sever Relations and Kick the Bastards Out
Legal expert Carl Gardner makes the case for the British simply severing diplomatic relations with Ecuador, thus, ridding themselves of an embassy not comporting itself in conformance with international law altogether and thereby grabbing Assange as the lights are turned off after the last diplomat departs:
If I were advising the government, I think I’d say that, if ministers are determined to allow the arrest of Assange, it might be better simply to cut off diplomatic relations with Ecuador, send the ambassador home, close the embassy and arrest Assange after that. Ending diplomatic relations is the major sort of foreign affairs decision I doubt the courts would interfere with. But that’d be a major diplomatic call.
Indeed it is a major diplomatic call. Breaking off diplomatic relations is a big deal. Think U.S.-Cuba, U.S.-Iran, UK-Argentina. This is a last resort act, often accompanied by hostilities. It screws up trade, tourism, travel, communications, banking and a host of other important factors that tie nations together. And if London did break off relations, chances are Ecuador's closest allies might follow suit. British trade with South America, which is significant and growing, could suffer. The resultant damage would far outweigh the ephemeral legal case of one outspoken Aussie loser obsessed with calling constant attention upon himself.
Let Them Stew
Serious thought should be given to a third approach, i.e., the one that London thus far has been following: leave them alone. As I've blogged previously, an embassy is not Embassy Suites, particularly a tiny, cramped one like Ecuador's London mission. Over time, Assange and his reluctant local hosts will go stir crazy with each other. The FCO can add to the discomfort by refusing any and all Ecuadorean requests for more space, ease of movement and the other niceties of daily living. Yes, the Latin tinpot madhatters will continue to raise a ruckus, as will Assange's many tinfoil-hatted supporters. Over time, however, the noise will die down. Assange can rail all he wants against "Washington's war on whistleblowers." But his tirades ring hollow in light of Washington's not issuing, thus far, a formal indictment or request for his extradition. Where's the beef, in other words?
The British are renowned for their patient persistence and judicious reserve. Their best weapon in the Assange case continues to be to stick to the legalities of Sweden's extradition request in connection with Assange's alleged sexual crimes in that country. And let them stew.
See also:
Julian Assange: Time to Show Your Shadow
and previous