Update: Ecuador granted Julian Assange diplomatic asylum on Thursday.
The British government’s menacing of the Ecuadorian embassy in London on Thursday morning, with its threat that its police might well come on to the embassy grounds to arrest wikileaks leader and fugitive Julian Assange, resembles nothing so much as the Iranian regime’s cavalier attitude to the supposed inviolability of embassies. To be sure, Assange does not himself have diplomatic immunity. But the ground on which the Ecuadorian embassy sits is considered in international law to be Ecuadorian territory, and breaching it is tantamount to an invasion.
There is no question in my mind that President Obama and Secretary of State Hillary Clinton have pressured British Prime Minister David Cameron into taking this step. The Obama administration’s reaction to the Wikileaks release of State Department cables with a relatively low level of classification has been astonishingly wrong-headed. The Pentagon Papers case in the 1970s established the principle that the US government had a right to try to keep its documents secret from us, but that if the documents were revealed, they could be freely published and cited by the public. In contrast, the current stance of the US government is that classified documents remain classified and US government property even if they have been published! And, State Department spokesmen have actually tried to threaten college students about talking about the documents on social media sites, since if they ever wanted to work for the US government, that sort of thing might be held against them. The Tomdispatch.com site has been banned on US government computers via filtering software because of its use of the Wikileaks cables. These measures are petty and ostrich-like. The cables have been released. Get over it.
The US government is anyway classifying too many documents, which is undemocratic (92 million urgent secrets?). And the US more or less tortured Bradley Manning to punish him for the leaks.
The British threats do a great deal to absolve Iran of its bad behavior toward embassies. British Foreign Secretary William Hague fulminated (with some justification) in November, 2011, that the Iranian authorities had “committed a grave breach” of the Vienna convention in neglecting to protect the British embassy in Tehran from being invaded by angry crowds of protesters on November 29.
In the wake of the embassy invasion, then UK ambassador to Iran Dominick Chilcott told the Washington Post, “as a foreign diplomat, you can’t work in a country that does not respect the norms of the Vienna Convention.”
The incident did not lead to hostage-taking, as had a similar embassy invasion in 1979, when radical youth (including the Mojahedin-e Khalq or MEK members) took the American embassy and kept 52 members of its staff hostage for 444 days.
Now, what is at stake here? What exactly does the [pdf] 1961 Vienna Convention on Diplomatic Relations say? Here is the relevant language:
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 the mission.
2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
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.
There are many difficult issues around diplomatic asylum, the technical term for the status that Mr. Assange sought and obtained from Ecuador. There is a long tradition of diplomatic asylum in South America going back to the 19th century, codified in treaty. (Diplomatic asylum itself was known in early modern Europe, but its precise legal status was in dispute). South American diplomatic conventions condition Ecuador’s attitudes to this unfolding crisis.
But the United States has sometimes accepted the principle, and acted on it. Most famously, the US embassy in Budapest gave diplomatic asylum to Cardinal Joseph Mindszenty for 15 years, beginning during the Hungarian uprising of 1956. Had Communist Hungary sent police onto the grounds of the US embassy and brought the cardinal out in handcuffs, I think we all know how that action would have been received in the United States.
And, ironically, the British embassy in Tehran gave diplomatic asylum to Iranian dissidents during the Constitutional Revolution in Iran in the early 20th century. Again, the Qajar Empire did not invade the embassy grounds to crush the dissidents and ensure absolute monarchy, and if it had, there would have been a war.
Another question is whether Julian Assange is a candidate for political asylum. Technically, a British court has ordered him to be extradited to Sweden for an inquiry as to whether he is guilty of sexual crimes peculiar to Sweden, not exactly rape but rough sex in one instance, and in the case of another woman, resisting, during passionate love-making, a request that he use a condom. (In both cases, the sex appears to have been consensual and so he could not have been charged with rape in the UK or the US). The statute under which he would be tried in Sweden does not exist in the same form in Britain.
Since he is Julian Assange of wikileaks, it cannot be ruled out that the UK judges were influenced in their decision to extradite him by their distaste for his release of government secrets, some of which embarrassed the British government. Many observers believe that if he is tried in Sweden, the US will request that he be extradited to the United States for trial on espionage charges of some sort, and could even be executed.
So a case could certainly be made that he is seeking political asylum in the Ecuadorian embassy, not just fleeing a criminal complaint.
But it seems to me that the asylum issue is anyway a red herring. Because the Vienna Convention strictly forbids the invasion of the embassy grounds, and the UK can’t arrest Assange on those grounds without violating Ecuadorian sovereignty.
The British argument that the Vienna Convention does not apply if the embassy is used for non-diplomatic, criminal purposes is a slippery slope. Cardinal Mindszenty probably did break Hungarian law, after all, and whether laws are legitimate or not is a matter of opinion. Further, everyone knows that governments routinely place intelligence agents in embassies with a diplomatic cover. Spying is not a legitimate embassy function, and is moreover illegal in the host nation, so that you could argue that all embassies can always be invaded in search of the fruits of their espionage there. In fact, that is precisely the Iranian justification for the invasion of the US embassy in Tehran in 1979– that it was a “spy’s nest” not an embassy at all. This assertion is outrageous, but there almost certainly were CIA analysts and operatives based in the embassy. Likewise, Iran arrested UK embassy staff in 2009 on charges that they were playing domestic Iranian politics and not restricting themselves to diplomacy. Once embassies can be violated for ‘criminal’ activity that is so open to interpretation, then that seems a slippery slope.
Finally, Assange did not commit a crime in the UK, and what he is accused of in Sweden isn’t even a crime in Britain. Violating an embassy merely to support an extradition request by a third party is excessive any way you look at it.
The Ecuadorian government denounced the British threat to invade the embassy grounds as unacceptable, and called a meeting of the Organization of American States to seek support. The government of President Rafael Correa thundered, “We are not a British colony!” The Ecuadorian embassy described the British threats as “unacceptable and a menace to all the countries of the world.”