Julian Assange: can he get out of this?

by Carl Gardner on June 26, 2012

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.

An edited version of this post first appeared at Liberal Conspiracy

{ 17 comments… read them below or add one }

1 Jonathan June 26, 2012 at 13:25

Very interesting analysis of a complicated situation. Thanks.

2 John King June 26, 2012 at 13:50

And to help convince the Ecuadorian Government to do the right thing people could promise to have their next foreign holiday in Ecuador if Assange doesn’t end up serving life in a US prison via Sweden.

Always wondered what that place was like, maybe it’s worth a visit :)

3 Of Interest To Some Lawyers June 26, 2012 at 15:24
4 ObiterJ June 26, 2012 at 17:56

It’s a fascinating topic – many thanks for this analysis.

“Diplomatic Staff” are those with diplomat rank – Article 1 of the Vienna Convention on Diplomatic Relations.

Article 8:
1.Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2.Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

If the UK has reserved the Art 8(3) right then they may not be able to appoint Assange unless, possibly, Ecuador gave him nationality.

Ultimately, one suspects some sort of “deal” will be struck to enable the UK to “wash their hands” of Mr Assange. The last thing anyone would want is a Jozsef Mindszenty situation – 15 years in the US Embassy in Budapest until Hungary allowed him to leave under a deal struck with the Holy See. He went to Vienna and ended his days there.

According to:

http://www.guardian.co.uk/media/2012/jun/23/julian-assange-ecuador-ambassador-quito

Ecuador’s President Correa stated that his country would discuss the case with both Britain and the USA. If true, it requires an answer to the question: What has the USA got to do with it?” Does this lend support to the the fear of the USA which Assange has and, in my view, not without reason given the comments of some prominent American politicians.

5 Tokyo Nambu June 26, 2012 at 19:46

This might be a suitably august gathering to ask simple question I’ve never seen answered. What is the basis for Assange’s claimed belief that Sweden is more likely to extradite him to the US than the UK? Has the UK got a track record of rejecting US extradition requests? Is there hostility between the US and the UK such that the UK regularly stands up to US policy? Aside from the matter of the rape investigation, why is Sweden any worse for him than the UK, in his and his supporters’ eyes?

6 raincoaster June 26, 2012 at 22:43

Tokyo: Sweden hasn’t refused a US extradition request in decades, whereas the UK has.

I don’t think he’ll ever go to Sweden, unless all the charges are dropped, which will not be before the next election cycle; they’re too important to too many people’s political careers at the moment.

I like this analysis, and although far-fetched, the UN representative idea is intriguing. It’s hard to see how else he could get to Ecuador, without fantasizing about scenarios better suited to caper films than real life.

7 Bond. June 26, 2012 at 23:23

@Tokyo Nambu,untill that August question will get a September Answer b4 i will really understand what is going on here too like you.I think if the US wanted Mr Assange they could have come for him long–long time ago.Sweden is a Country that holds Sex crimes to the highest order.Sex crimes in Sweden carries more purnishment then stealing and even murder at times.When it comes to the Rights of Women –LEAVE THAT TO SWEDEN- Let Mr Assange come and dance the record he played some time ago he may be innocent (who knows?) he is still a suspect untill proven quilty by the court of Law,

8 botogol June 27, 2012 at 10:58

If he did conceal himself in a diplomatic bag- or crate – he wouldn’t have to stay inside all the way to Ecuador – only until the aircraft took off.

I did wonder about winching him from the embassy roof to a helicopter that whisks him to Ecuadorian warship waiting for him in the North Sea… if it were done quickly would anyone really shoot it down, even if they noticed in time? (rider – I would wait until the olympics was over before trying this!)

9 David S June 27, 2012 at 11:53

I have difficulty understanding the Supreme Court’s dismissal of the applicaiton to re-open.

According to Assange’s applicaiton, the Vienna Convention did not feature in either side’s skeleton argument at all. The only time it was mentioned was in one comment by one of the justices during oral argument.

It seems to me obviously wrong for the Court to decide against Assange on the basis of a point which was not argued. If an arbitrator did that (for example), the High Court would set aside their award on the ground of serious irregularity. Why should the position be any different in the Supreme Court?

10 Andreas Moser June 27, 2012 at 11:53

Why would Ecuador risk its diplomatic and political ties with the UK and Sweden over this weirdo?

Could we just stop thinking of Sweden as a brutal police state that doesn’t have any due process or rule of law? It is SWEDEN.

11 David Boothroyd June 27, 2012 at 23:29

The Ecuadorian Embassy in London appears to consist of half of one floor of a Victorian mansion block in Knightsbridge, and not at ground level; I think it has no external space. Don’t know how many rooms it consists of, but probably not many. Does it have any cooking facilities on site? Possibly, but not extensive ones. I daresay it would be cruel and unusual for anyone to be forced to stay in such a place for an extended period; the US Embassy in Budapest within which József Mindszenty stayed for 15 years is a much more substantial complex.

I like the idea of waiting until Assange is “proven quilty”. Mrs Richard Schiller would approve.

12 ivan July 2, 2012 at 16:15

@Tokyo Nambu As has been much posted elsewhere, JA’s US extradition argument is a silly argument. The rules of extradition means that if the USA seeks to extradite JA from Sweden, after UK extradited him there, they have to get the consent of both Sweden and UK. So if the USA wants to extradite him, it is easier to do so while he is in UK, unless (which seems unlikely) they wish to wait until after he has carried out any sentence imposed in Sweden.

13 Sandman July 3, 2012 at 01:02

If I were advising the Ecuadoreans I’d suggest getting him out the front door in an embassy bag (or on an embassy Segway), into an embassy car, drive to a port and get him in an embassy boat and then get him out of British waters and then somehow to Ecuador. Not sure about the best route.

14 Marta July 3, 2012 at 07:51

@ Andreas Moser One person’s weirdo – another one’s hero. Sweden is no longer what it used to be; there is plenty of information on how it has become hypocritical rather than neutral. It has not refused an US extradition request at least since 2000. In two now often cited cases it sent individuals back to Egypt, where the suffered torture for political reasons.
@ all: Assange’s fear that he might be shipped to the US from Sweden is not far fetched at all. According to US law a sealed indictment can only be made public once the individual is in custody it is a criminal offense to make it known beforehand.. According to the Stratford material we can be fairly sure that an indictment exists. Informal talks between the US and Sweden have been reported. We know how Bradley Manning has been treated.! Also, the US has been accumulating some 43,000 pages about Assange, people who know him have been interrogated. Alone the existence of the NDAA is reason enough not to extradite any person to the US.

15 Roger August 6, 2012 at 21:10

Legal escape way!

What about the President of ecuador and the ambassador handcuffing themselves with Assange and going in a diplomatic car that goes to and Helicopter waiting them nearby in a park and then the Helicopter goes to Guernsey island where a Private jet waiting them ready to fly directly to ecuador.

I want so bad that assange get out of this fragrant abuse of process that I offer to finance this Mission Impossible Plan.

if anyone as better idea. you are welcome to add comment

16 TiedCables August 16, 2012 at 09:01

He hasn’t been charged by the Swedish police. There is a huge difference between wanting to talk to him and being charged with a crime.

Diplomatic bag, into a diplomatic car on the embassy grounds, driven up to the embassy place (do they have one?), sit back and enjoy the flight.

Does anyone think for a moment the U.S won’t simply break the rules to get what they want? When have rules ever stopped any government, especially the U.S?

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