We’ve learned to expect the unexpected in the case of Julian Assange: his case always seems to throw up one more unusual legal twist. Which is astonishing in what is, in reality, a straightforward case of a proper and lawful European Arrest Warrant.
I was surprised that his case was even heard by the Supreme Court; I was astonished by the application made by Assange’s barrister Dinah Rose QC to reopen the Supreme Court’s proceedings; I’m surprised by the short shrift given to that application by the Supreme Court; and of course I’m as surprised as anyone by Assange’s decision to take refuge in the Ecuadorian embassy. On the second day of Wimbledon, perhaps I ought to give up making predictions about when Assange will arrive in Sweden (though I still think he will one day).
First, the application to reopen Supreme Court proceedings on the basis that Assange had not been able to make submissions on what turned out to be the decisive point: the relevance of state practice to the interpretation of the European Arrest Warrant Framework Decision, under article 31.3(b) of the Vienna Convention on the Law of Treaties. This seems to have been dealt with in writing, and the Supreme Court rejected it in four short paragraphs added as a “note” at the end of its original judgment, which we must assume represents the Justices’ unanimous view. The core reasoning is as follows:
Had Miss Rose been minded to challenge the applicability of the Convention, or the applicability of State practice as an aid to the construction of the Framework Decision, or the relevance and admissibility of the material relating to State practice, she had the opportunity to do so. She made no such challenge. Her submissions were to the effect that caution should be exercised when considering the effect of State practice.
Yet again I find this surprising, I must admit. Others were right to suspect that the Supreme Court might deal with this very shortly; the Court neatly avoided the difficulties I thought might well be thrown up by the application, and that could have led to a Pinochet-style crisis. But is this satisfactory? I don’t think so: I can’t help suspecting the Court has simply taken the most convenient path, from its own point of view, to closing down this unwelcome application, rather than rigorously examining what jurisdiction it was being asked to exercise.
I’m also surprised that Dinah Rose didn’t make the sort of applications I feared – for the Justices who gave the original judgment to recuse themselves from dealing with her application, on the basis that they could not lawfully be judges of the fairness of their own procedures and that they had in a very literal sense pre-judged the Vienna Convention point she wanted reopened. If you’re going to flash, as cricketers say, flash hard. I’m not sure there was much point in attempting a bold stroke at all if Rose wasn’t trying to smash the Supreme Court full-bloodedly for six. Out, caught Phillips.
All in all, I think the Supreme Court made quite a hash of the Assange case. I’m not the only critic, either – Tiina Pajuste at the CJICL Blog argues that they were wrong to bring in the notorious Vienna Convention point at all (thanks to Matt F (@flayman) for drawing her post to my attention) and Cameron Miles argues with her in the same place that the Supreme Court’s use of the Vienna Convention was flawed.
But that of course has now been taken over by Assange’s extraordinary Ecuadorian gambit.
First of all, assuming Assange’s bail conditions remained similar to those initially imposed, he must have breached his bail conditions by failing regularly to report to a police station in the last few days, and by not staying overnight at an address agreed with prosecutors. That breach of bail conditions is what renders him liable to immediate arrest. I’m not sure (without further research and thought, perhaps best done another time) that the breach makes those who stood surety for him liable to forfeit the money they offered. Their role is to guarantee his turning up at his next court or extradition appointment, rather than to vouch for his sticking by all his bail conditions.
But Assange is safe from arrest inside the Ecuadorian embassy because of a different Vienna Convention – this time the Vienna Convention on Diplomatic Relations, which in relation to a diplomatic mission such as Ecuador’s in London says (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 mission.
and (article 22.3)
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.
It’s clear, then, that Assange cannot be arrested so long as the Ecuadorians protect him inside their embassy. It is worth noting though that the Ecuadorians could, if they wanted to, invite the police in to make their arrest. Assange is now at the mercy of Ecuador.
He says he’s applying for asylum of course – and there are a few points to note about this. First, it’s unusual to seek asylum inside a foreign embassy, and as I understand it there’s no generally recognised right in international law to this sort of “diplomatic asylum”. To be fair to Ecuador, there is a long-standing tradition in Latin America of granting diplomatic asylum which is reflected in the Organisation of American States’ Convention on Diplomatic Asylum, which I found out about thanks to Matthew Happold’s interesting post at EJIL: Talk! It’s not an instrument that binds the UK of course.
As Francis Fitzgibbon QC has written on his blog,
The difficulty he is likely to face, if the Ecuadoreans assess his case under normal asylum law principles, is that he has been subjected to due process of law in the UK … he may struggle to show that he faces treatment in the UK or in Sweden to amount to persecution, on an objective view.
I recommend Charon QC’s interview with Francis Fitzgibbon about this, by the way – in which he agrees with me on the bail surety issue.
Whether the Ecuadorians really will consider this on normal legal principles may be in doubt: Assange’s choice of Ecuador is obviously political, Ecuador being no friend of the US and having offered Assange shelter in the past. They could just grant him asylum as a way of making a political statement, whatever the merits of his application. But it doesn’t follow that refugee status in itself would give Assange any sort of right to leave the UK unmolested. The question of asylum is arguably a red herring: whatever Ecuador decides about that, the real legal question is whether there’s any legal way Assange can bring himself within some sort of legal immunity from arrest so as to enable him to get out of the embassy and on a flight to Quito.
So – can he?
I’ve already mentioned article 22.3 of the Vienna Convention and what it says about the means of transport of the mission being immune from search, requisition, attachment or execution. On the face of it this suggests Assange could try to get to Heathrow or a private airfield in an Ecuadorian ambassadorial car. But I think there are real difficulties with this. First, is there such a car at all? Could a black London taxi hired by the Ecuadorians count as the mission’s “means of transport”? There must be doubt about this. More problematic still, Assange would have to get into any car somehow before being arrested on the pavement. So the “means of transport” option seems closed to him.
At this point it’s worth noting that, as I told the AFP reporter Katy Lee, the other sorts of scenarios lawyers are scratching their heads over begin to resemble spy fiction.
There is of course the theoretical possibility that Assange might be smuggled out in a “diplomatic bag”, which is also protected by the Vienna Convention, this time article 27, which states:
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
As article 27.4 makes clear, the “bag” can consist of a number of packages, or indeed crates. There’s no doubt it can be big enough to contain a person, and although it can’t legally contain a person under article 27.4, the ban on opening it suggests that a person can in practice be smuggled across borders this way. It has been tried in fact, as Katy Lee has pointed out, when in the 1980s Nigerian government agents tried to smuggle Umaru Dikko out of Britain. They apparently failed because the crate didn’t bear the external markings required by article 27.4. If you’re interested, it’s worth reading the then Home Secretary Leon Brittan’s Commons statement on the affair. The inviolability of diplomatic bags was also a hot issue after the murder of PC Yvonne Fletcher, and Geoffrey Howe’s Commons statement on that is also interesting.
But I wouldn’t try it if I were Julian Assange. For a start, there may be some room to argue that a “receiving state” like Britain can lawfully insist on a diplomatic bag being opened or at least returned to its place of origin if it has grounds to suspect it contains more than just diplomatic articles. Canada, for instance, reserves the right to do so. Perhaps more importantly, the fact that British officials couldn’t lawfully open a diplomatic bag containing Assange does not mean an airline is obliged to carry it. Given the complex legal issues here, I wouldn’t blame any carrier at the moment from refusing to take an Ecuadorian crate big enough to contain a man. And even if they did, I wouldn’t fancy being sealed into a crate for a long flight to South America, perhaps via Madrid. The diplomatic bag idea really is best left to fiction.
More realistic would be the possibility of appointing Assange as a “diplomatic courier” with the task of taking a diplomatic bag (containing a few blank papers perhaps, or a thank-you note to President Rafael Correa). About diplomatic couriers, aticle 27 of the Vienna Convention 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 person inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad 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.
It’s not obvious from the text of the Vienna Convention that the same rules apply to the diplomatic courier as apply under articles 8 and 9 to other diplomatic staff – i.e. that he should in principle be (in this case) an Ecuadorian citizen and that London has the right to reject him as persona non grata. But there must be a reasonable argument that those rules do apply, and London might well refuse to accept Assange as a courier. In any case, it might be argued that the article 27.5 immunity from arrest is not absolute, but applies only in the performance of his functions as a courier. I would be concerned, if I were Assange, the British authorities might legally be able to arrest him on grounds entirely unrelated to the courier mission he wanted to undertake.
Could Assange obtain any further diplomatic immunity? It’s not possible for Ecuador to help him by granting him citizenship (which wouldn’t automatically entail the loss of Australian citizenship by the way) and appointing him ambassador to London – under article 9 of the Vienna Convention, as I’ve said, London could simply refuse to accept him.
But there is one final, intriguing possibility. I don’t say it would work, legally. It’s the only thing I can think of that might work, though. It’s so bizarre that it’s surely fantasy – but it’s such fun that I have to mention it.
Ecuador could theoretically appoint Assange one of its representatives to the United Nations, under rule 25 of the UN General Assembly’s Rules of Procedure. It’s true that a Credentials Committee (on which the United States sits at the moment, as a matter of interest) would consider and report on Assange’s appointment, and that the General Assembly would then make a decision on it – and could presumably reject him. But under rule 29, he would be “seated” provisionally until the General Assembly made its decision – and crucially, would have the same rights as other representatives. That presumably includes the special kind of diplomatic immunity granted by article IV, section 11 of the New York Convention on the Privileges and Immunities of the United Nations, which says:
Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities:
(a) immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;
Note that the immunity from personal arrest or detention applies not only while a representative exercises his functions, but in a more absolute sense when travelling to and from the place of meeting.
There seems to me a decent argument that, if Assange were appointed according to the proper procedure and, in due course, subsequently wanted to attend a UN meeting as Ecuador’s representative, then unless and until the General Assembly discredited him, he would be immune from arrest on any journey to or from that meeting. If, then, Assange were travelling to a UN meeting – perhaps in one of the UN subsidiary bases in Geneva, Vienna or Nairobi but most obviously, in New York – then he could not be arrested in London before catching his flight. Nor, if that argument works, could he be arrested by the American authorities in New York on his way from JFK airport (say) to the UN complex in downtown Manhattan, or on his way back, presumably to catch a flight to Quito – even if he had to change planes at Atlanta or Houston.
Again, I’m not saying this would work: there might just conceivably be an argument that the New York Convention only protects representatives travelling from their home countries to the UN, or that it cannot be abused in this way so as to protect someone who’s otherwise a fugitive. But it’s the only thing I can think of that could work; and just the idea of Assange’s flying safely in and out of what from his viewpoint is the lion’s mouth is too interesting to pass over in silence.
Realistically? I expect a prolonged stand-off and still, one day, finally, a flight to Stockholm. But you never know with Assange.