Stand-off over Assange could develop into a major diplomatic incident

Fri, Aug 17, 2012, 01:00

The rift between Britain and Ecuador over the WikiLeaks founder presents both countries with something of a legal minefield

THE STAND-OFF between Britain and Ecuador over WikiLeaks founder Julian Assange has raised the prospect of a major diplomatic incident if British police force an entry into the Ecuadorean embassy building.

The former computer hacker is wanted in Sweden, where he has been accused of rape and sexual assault. However, Ecuador said yesterday it would assist Assange, who has been taking refuge in the embassy for two months, to settle in its country.

Ecuadorean officials say any decision to raid the London embassy would be an outrageous breach of international law. British officials insist that if they did so, it would be within British law.

Under international law, security forces are not allowed to enter an embassy without the permission of the ambassador – even though the embassy remains the territory of the host nation.

The 1961 Vienna Convention on Diplomatic Relations codified the “rule of inviolability”, which all nations observe because their own diplomatic missions are otherwise at risk.

However, the UK foreign office told Ecuador it had the power to revoke the embassy’s diplomatic status under the Diplomatic and Consular Premises Act 1987. This law was enacted in the wake of the Libyan embassy crisis three years before, when PC Yvonne Fletcher, on duty outside the embassy in London, was shot dead from inside the building. Such a step might set a dangerous precedent by encouraging other governments to justify entering embassies to arrest dissidents seeking diplomatic asylum.

If Ecuador challenged a revocation, ministers would have to argue at the British high court that the mission, by harbouring Assange, had itself fallen foul of international law. The government used the power in 1988 to deal with squatters in the Cambodian embassy.

The 1961 convention stresses that missions must respect local laws and not interfere in the host nation’s internal affairs. The Metropolitan police says it has the power and right to arrest Assange for breach of bail if he steps outside the embassy. They have also delivered a letter to the embassy demanding that Assange surrender himself.

A legal source at the Ecuador embassy claimed yesterday that the 1987 Act was established to stop a major threat such as terrorism or a nuclear threat.“The law . . . would be invoked if the public are under threat. In this case, no one could argue that Assange’s presence in this embassy is a threat to the British public.”

Under the 1987 Act, it would seem that the British government does indeed have the power to withdraw recognition from diplomatic premises for certain specific reasons.

Section 1(3) of the Act states: “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 [of Britain] 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.”

However, section 1(4) states: “The secretary of state shall only give or withdraw consent or with- draw acceptance if he is satisfied that to do so is permissible under international law.”

A further clause identifies the considerations the secretary of state might have in deciding to withdraw. The secretary of state “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”.

It would certainly play to Assange’s own view of his situation were the British government to invoke subsection (b) of that clause.

However, the British embassy in Quito has written to the Ecuadorean government underscoring its apparent determination to detain Assange and hand him over to Sweden.

“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,” it wrote. “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.”

One course of action might be to end diplomatic relations with Ecuador, close the embassy and, once the diplomats had departed, arrest the abandoned Assange – inside or outside the building. – (Guardian service/Irish Times foreign desk)

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