Inviolability, Ecuador and the Julian Assange case
Julian Assange has been granted asylum in Ecuador, two months after he sought refuge at its London embassy. But this doesn't mean he can escape arrest in the UK for violating his bail conditions.
Can the British police storm the Ecuadorian embassy?
(Credit: EPA/Facundo Arrizabalaga)
Assange risks arrest as soon as he leaves the embassy building — which he will have to do in order to get to the airport and hence to Ecuador.
Nor does remaining in the embassy guarantee the WikiLeaks founder immunity from prosecution.
Back in 1988, Carl Islam explained, with some rigour, the basis of immunity afforded to diplomatic and consular premises in Britain. The subject seems dry, until you realise the serious implications it poses to individuals such as Assange.
Islam begins with the principle of inviolability. "Inviolability guarantees the sanctity of diplomatic and consular premises." Then, the warning: "While it does not place premises about the law, anybody who remains on diplomatic or consular premises can take refuge from the law." Hence the need for changes to rectify such abuse.
The background to this change of heart and the need to embrace a qualification to such diplomatic immunities came in 1984. The British establishment was shaken that year, when police constable Yvonne Fletcher was killed by shots fired from the premises of the Libyan People's Bureau. Over the years, the LPB had been purportedly stockpiling weapons under the cover of immunity, ostensibly to deal with dissidents of the Gaddafi regime. While these were deemed gross abuses of diplomatic privileges granted by the Vienna Convention on Diplomatic Relations (PDF), the British found their hands tied.
A government whitepaper of 1985 made it clear that the British authorities were keen on implementing a "firmer" policy on how the Vienna Convention was applied, and "take administrative measures to deal with abuse of diplomatic premises and to limit the extent of mission premises in accordance with international law and practice".
Hence the passage of the Diplomatic and Consular Premises Act 1987, which would remove the diplomatic status of premises that were being misused. The Vienna Convention, while accepted as being part of British law, is qualified by this Act with regard to the residence of the mission accepted in the country.
Ecuador's foreign minister Ricardo Patiño has been forceful about his stance on Assange, and equally forceful towards the efforts being made by the British authorities to extract the Australian from the premises. "We are not a colony of Britain," he said. WikiLeaks has itself released a statement claiming that Assange's rights to asylum are being compromised in this act of bullying.
The British response is both clever and sophistic — not so much discrediting the Ecuadorean mission as discrediting the premises it is being used for. In June, the Foreign Office did accept the embassy as diplomatic territory. As long as Assange is on the premises, he is "beyond the reach of police", the Foreign Office said.
Citing the Diplomatic and Consular Premises Act signals a change of approach, though the Ecuadoreans could hardly be surprised. The Act grants the British Government the power to determine the status of land for diplomatic and consular missions. Importantly, it controls sites, locations and places where those embassies might be established. Prior to the Act's passage, diplomatic missions might establish their premises in any part of the city, or allow premises to fall into decay, immune from the title aspirations of local authorities.
So, what are the options for Assange? The fact that he is on Ecuadorean premises, as it were, does not, of its own, accord him immunity from interference.
Diplomatic immunity for consular missions has been previously revoked in spectacular fashion.
The US embassy in Tehran was occupied in 1979-80 under a wave of fundamentalist fervour with the blessing of the Ayatollah Khomeini. The Vienna Convention became a mere piece of paper before the revolution. But the assumption underlying such diplomatic missions is that an unwarranted entry onto their premises is tantamount to an act of aggression.
Sanctity is indispensable to good relations. Again, Patiño's comments are on point:
If the measure announced in the British official communication is enacted, it will be interpreted by Ecuador as an unacceptable, unfriendly and hostile act and as an attempt against our sovereignty. It would force us to respond.
The question now is how far the British authorities are willing to make the case that the Ecuador mission has abused its premises.
While it is true that Assange has violated his bail conditions, he is merely a suspect before charges that have not been formally laid. The gravity of his offences hardly qualify as matters of terrorist import, and it would be questionable whether the Diplomatic and Consular Premises Act is being appropriately used. Whether this is something that the local constabulary will disagree with remains to be seen.
Binoy Kampmark does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.