Swedish Court Denies Julian Assange’s Appeal To Quash Detention Order

Assange @ Ecuadorian Embassy
Assange @ Ecuadorian Embassy

On November 20, 2014, a Swedish appellate court denied Julian Assange’s application to quash the lower court’s four-year-old order for his detention for questioning about allegations of sexual misconduct with two women in Sweden in 2010.[1]

Assange had argued that the order could not be enforced because he has been and still is in Ecuador’s embassy in London, U.K. under a grant of diplomatic asylum and that the order was restricting his civil rights.

The Swedish court, however, was not persuaded. It said, “In making this assessment, account must be taken of the fact that Julian Assange is suspected of crimes of a relatively serious nature.” Moreover, “there is a great risk that he will flee and thereby evade legal proceedings if the detention order is set aside. In the view of the court of appeal, these circumstances mean that the reasons for detention still outweigh the intrusion or other detriment entailed by the detention order.” In short, the court could not “set aside the detention solely because Julian Assange is in an embassy and the detention order cannot be enforced at present for that reason.”

On the other hand, the court noted that Sweden’s investigation into Assange had come to a halt and that the prosecutors’ failure to examine alternative avenues of investigation “is not in line with their obligation – in the interests of everyone concerned – to move the preliminary investigation forward.”

An alternative avenue of investigation previously had been proposed by Assange: interview him at the Ecuadorian Embassy in London. Last month in the House of Commons the U.K. Foreign Minister, Hugo Swire, said, “These are matters for the [Swedish] prosecutor to decide on, but if she wished to travel here to question Mr Assange in the embassy in London, we would do absolutely everything to facilitate that. Indeed, we would actively welcome it.”

Assange’s attorney said the decision would be appealed to Sweden’s Supreme Court. A more likely outcome, in this blogger’s opinion, would be the Swedish prosecutor’s interrogating Assange at the Embassy in London and then determining whether criminal charges would be brought against him.

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[1] This post is based upon Crouch, Julian Assange: Swedish court rejects appeal to lift arrest warrant, Guardian (Nov. 20. 20, 2014); Dickson, Swedish appeal court upholds Assange detention order, Reuters (Nov. 20, 2014); Cowell, Swedish Court Rejects Appeal by Julian Assange, N. Y. Times (Nov. 20, 2014), ; This blog has a number of posts about Assange’s grant of diplomatic asylum by Ecuador and the legal skirmishes over whether, when and where he would be interrogated by the Swedish prosecutor.

 

 

The Importance of Protecting Foreign Diplomats and Diplomatic Missions

People who are the full-time representatives of their home countries in foreign countries fulfill important responsibilities. They represent the policies and interests of their own governments and peoples to the governments and peoples of the foreign countries. They gather information about the policies and interests of the foreign governments and peoples and report that information to the diplomats’ own governments. They also make recommendations on policies to their own governments. They do all of this on foreign soil without the protections of their own governments.[1]

International Law Regarding Protection of Foreign Diplomats and Missions

All states need such diplomatic presences in other countries and hence have a common interest in having their diplomats and diplomatic premises protected by the foreign governments. Indeed, as preamble to the Vienna Convention on Diplomatic Relations state, having a treaty setting forth such protections “contribute[s] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems” and hence to “the maintenance of international peace and security” under the U.N. Charter.

These common interests have existed for a long time and were the motivation for the well established international practice and custom of providing special protection and immunity from criminal jurisdiction for ambassadors. By the time of the Congress of Westphalia in 1648, permanent legations were accepted as the normal way of conducting international business among sovereign States, and over the next century detailed rules emerged in relation to the immunity of ambassadors and their accompanying families and staff from civil as well as criminal proceedings, the inviolability of their embassy premises and their exemption from customs duties and from taxes. These rules of customary international law were described in detail by early writers such as Grotius (1625), Bynkershoek (1721) and Vattel (1758).

The first international treaty or other instrument codifying any aspect of diplomatic law was the Regulation adopted by the Congress of Vienna in 1815. Codification among States of immunities and privileges of diplomatic agents did not begin until the Havana Convention of 1928 drawn up among the States of the Pan-American Union and the Draft Convention drawn up in 1932 by the Harvard Research in International Law.

After the establishment of the United Nations in 1945, efforts to develop a comprehensive multilateral treaty on diplomatic relations began. The initial draft of such a treaty was produced in 1957, and its 1958 revision was the basis for the U.N. Conference on Diplomatic Intercourse and Immunities in Vienna, Austria in March and April of 1961. On April 18, 1961, this Conference concluded with the signing of the Convention on Diplomatic Relations, which entered into force on April 24, 1964, after 22 states had ratified the treaty.

Now 187 of the 193 members of the U.N. are parties to this treaty. Its success may be ascribed first to the fact that the central rules regulating diplomatic relations had been stable for over 200 years. An embassy’s basic functions of representing the sending State and protecting its interests and those of its nationals, negotiation with the receiving State, observing and reporting on conditions and developments there remained and still remain unaltered. In addition, because the establishment of diplomatic relations and of permanent missions takes place by mutual consent, every State is both a sending and receiving State. Its own representatives abroad are in a sense hostages who may on a basis of reciprocity suffer if it violates the rules of diplomatic immunity, or may be penalized even for minor restrictions regarding privileges or protocol.

Article 22(2) of the Vienna Convention states, “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.” In addition, Article 29 provides, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Recent Breaches of International Law Regarding Protection of Diplomats and Diplomatic Missions

The recent horrific attacks on U.S. diplomatic posts throughout the world, especially the attack on the U.S. Consulate in Benghazi, Libya and the murder of U.S. Ambassador J. Christopher (“Chris”) Stevens and three other U.S. citizens, are stark examples of the dangers facing all diplomats throughout history.

These attacks also represent breaches by many states of their important international legal obligation “to take all appropriate steps to protect the premises of the mission” and “to prevent any attack on [“the head of the mission or a member of the diplomatic staff of the mission”‘s ] . . . person, freedom or dignity.”

Ecuador’s Specious Allegation of the U.K.’s Breach of These Legal Obligations

These deplorable breaches also, in my opinion, show the utter speciousness of Ecuador’s complaint about the alleged failure of the United Kingdom to honor its important obligation with respect to the Ecuadorian Embassy in London after Ecuador had granted temporary lodgings, and subsequent diplomatic asylum, to Julian Assange.

Dispassionate analysis of the U.K.’s alleged written threat to invade the Embassy shows this not to be the case, as discussed in a prior post.

In addition, there were British police outside the Ecuadorian Embassy, but they were there to protect the Embassy and to arrest Assange if he tried to leave the Embassy. After all Assange had violated the terms of his bail by a British court by leaving a specific place west of London and surreptitiously entering the Embassy in order to avoid being arrested pursuant to a European Arrest Warrant to be sent to Sweden for investigations for his alleged criminal sexual conduct. In short, Assange was a fugitive from justice. Moreover, British police or other authorities never came close to entering the Ecuadorian Embassy. And no Ecuadorian diplomatic personnel were injured or even threatened.

By the way, negotiations between Ecuador and the U.K. to resolve their disputes over Assange apparently are deadlocked.


[1]  The many duties of diplomatic personnel and the dangers they face were well stated on Minnesota Public Radio’s “The Daily Circuit” by Ronald E. Neuman, President of the American Academy of Diplomacy and a former U.S. Ambassador to Afghanistan, Algeria, and Bahrain.

Ecuador’s Dispute with the United Kingdom and Sweden Over Julian Assange: Granting Asylum to Assange

On August 16, 2012, the Government of Ecuador made its decision to grant the petition for diplomatic asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom (“the Decision”).[1] The U.K. and Sweden challenge the legitimacy of this action, and this post will explore the issues relating to this dispute.[2]

The Decision sets forth a list of what it describes as 12 “fundamental principles of general international law” regarding asylum that purportedly support its grant of asylum. These principles are said to be derived from, and supported by, Ecuador’s own laws regarding asylum and 16 international treaties and declarations.

The Decision also states what it deems to be the relevant facts for the application along with a summary of Ecuador’s efforts to cooperate with the governments of the U.K., Sweden and the U.S. and the measures Ecuador will seek from the U.K. regarding Assange.

Let us examine these legal and factual assertions.

The Relevant Law

In its extensive legal discussion, the Decision fails even to mention what, in my opinion, is the essential first step in any such analysis: the International Court of Justice’s  judgment in 1950 that diplomatic asylum was not part of general international law.

In Colombian-Peruvian Asylum Case, I.C.J. Rep. 1950, p. 266 (Nov. 20, 1950), the court concluded, “A decision to grant diplomatic asylum involves a derogation [or departure] from the sovereignty of [the territorial] . . .  State [where the diplomatic premises are located]. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized [as a matter of general international law] unless its legal basis is established in each particular case.” Moreover, if the State granting diplomatic asylum had the “unilateral and definitive” authority to determine whether the offense of the asylum-seeker was a political or common crime, it would “aggravate . . . the derogation” and is “not inherent in the institution of diplomatic asylum.” (In addition, Judge Alvarez from Chile, dissenting in this case, said there also was no customary American international law of diplomatic asylum.)

Seven months later in the same case the ICJ rendered another judgment that stated, “The safety that arises out of [diplomatic] asylum cannot be construed as a protection against the laws and against the jurisdiction of legally constituted tribunals [of the host state].” (Haya de La Torre Case, I.C.J. Rep. 1951, p. 71 (June 13, 1951).)

Nor did Ecuador’s Decision refer in any way to the unsuccessful effort by Latin American countries to overrule the I.C.J. judgments by having diplomatic asylum recognized in the 1961 Vienna Convention on Diplomatic Relations or the unsuccessful U.N. effort to prepare and adopt an international, multilateral treaty on the subject of diplomatic asylum. In 1977 the U.N.’s International Law Commission concluded that there was not sufficient interest to justify any further work on the subject.

Another response to these ICJ rulings was an Inter-American Conference in Caracas, Venezuela on March 28, 1954, that adopted the text of the Inter-American Convention on Diplomatic Asylum. Today it is the only such treaty in the world, and Ecuador is one of the only 14 of the 35 states of the Organization of American States that have ratified that treaty.[3] In other words, 179 of the 193 U.N. member states have not adopted this or any similar treaty. The U.K. and Sweden, which are not in the Inter-American system, obviously are not parties to this treaty; nor is the U.S., which was eligible to sign and ratify. As a result, this treaty cannot and does not impose any legal obligations on the U.K., Sweden or the U.S.

It, therefore, is not too surprising that Ecuador’s Decision does not analyze the terms of this treaty for the current dispute although it is on the list of 16 international treaties and declarations that purportedly support the Decision.

Even more damning, the Decision does not address the clear problem facing all instances of diplomatic asylum, as pointed out in the ICJ judgment. A decision like Ecuador’s to grant asylum to someone in one of its embassies in a foreign country is at least a potential infringement upon the competence of that foreign country. Such an infringement or derogation cannot be ignored. Indeed, as discussed in a prior post, Article 41(1) of the Vienna Convention on Diplomatic Relations states that “it is the duty of all persons enjoying such [diplomatic] privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .” In addition, Article 41(3) of that Convention provides that the “premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Instead of focusing on these clearly relevant legal issues, Ecuador’s Decision merely lists 15 other treaties and declarations that mention asylum while not offering direct legal support for the Decision. They are the following:

  • All four of the countries involved in the current dispute are parties to the Convention Relating to the Status of Refugees, which is the major general treaty on refugees and asylum and which was discussed in a prior post. But it does not apply for various reasons. Assange cannot claim he has a “well-founded fear of persecution” on certain grounds in his home country of Australia, and the treaty excludes “any person with respect to whom there are serious reasons for considering that . . . [he] has committed a serious non-political crime [here, in Sweden]  outside the country of refuge prior to his admission to that country as a refugee . . . .”
  • Ecuador was a state party to five of the other cited treaties that mentioned asylum, but they are not relevant to the current application or grant of asylum.[4]
  • Another four treaties mention asylum, but they are from other regions of the world, and Ecuador is not, and could not be, a state party to them.[5]
  • One treaty does not mention asylum at all. Instead it is a treaty on the interpretation of treaties.[6]
  • The last four of the 16 cited sources are declarations, not treaties, and thus are not sources of binding international legal obligations on any state.[7]

Nor is the possibility of the U.S.’ seeking or imposing the death penalty on Assange for the crime of making public secret U.S. documents “persecution” under international law. Under Article 6 (2) of the International Covenant on Civil and Political Rights, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant . . . .  This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” [8]

The U.K. and Sweden as well as other countries in Europe, however, have a different opinion regarding the propriety of the death penalty after initially permitting such in Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953. This changed in 1985, when Protocol No. 6 to this treaty went into force and provided in Article 1, “The death penalty shall be abolished. No one shall be condemned to such penalty or execution.” [9]

As a result, those 46 European states that have ratified Protocol No.6, including the U.K. and Sweden, routinely deny requests to extradite suspects to the U.S. when there are true risks of the imposition of the death penalty.

Indeed, the U.S.’ extradition treaty with the European Union, to which both the U.K. and Sweden belong, expressly provides that when an offense for which extradition is sought is punishable by death under the law of the requesting state [here theoretically, the U.S.] but not under the law in the requested state [here theoretically, the U.K. or Sweden], the requested state may grant the extradition on condition that the death penalty shall not be imposed or if imposed shall not be carried out. A similar provision is included in the recent extradition treaty between the U.S. and the U.K.

Assange, therefore, cannot have a “well-founded fear” of imposition of the death penalty even if it were regarded as “persecution,” which it is not.

Perhaps Ecuador was implicitly suggesting that the 11 of the 16 listed instruments that occurred after the previously mentioned ICJ decision of 1950 changed the general international law regarding diplomatic asylum. The Decision hints at this when it said, “The lack of international convention or internal legislation of the States cannot be legitimately claimed to limit, impinge or deny the right to asylum.” But a recent  treatise on public international law asserts that this type of asylum is not part of general international law as does a recent thesis at the University of Leiden,  a contemporary expert and London’s Economist.  Ecuador’s veiled contrary suggestion, I submit, is patently ridiculous.

The U.K. certainly disagrees with Ecuador’s legal argument.

On August 17th (the day after the grant of asylum), the U.K.’s Foreign Secretary William Hague stated that the U.K. “was disappointed” in this decision and would not allow Assange safe passage out of the country. “The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the [U.K.] is not a party to any legal instruments which require us to recognize the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established, even for those countries which do recognize diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts.” In addition, the U.K. has “painstakingly explained the extensive human rights safeguards built into our law.”

These points were reiterated at the August 24th OAS meeting by the UK’s Permanent Observer, Philip Barton. He said the U.K. was not party to the Inter-American Convention on Diplomatic Asylum, and “there is no legal basis for the [U.K.] to meet the request of . . . Ecuador to grant safe passage for Mr. Assange out of the [U.K.].” He also said the U.K. has advised Ecuador about “the safeguards in place under the European Convention on Human Rights, international law, European Union law and [U.K.] law [that] fully address the concerns raised by Mr. Assange and by . . . Ecuador.”

Observer Barton further told the OAS meeting representatives that the purported concern about Assange’s human rights upon extradition to Sweden was “completely unfounded,” and an “argument to this effect was comprehensively rejected by the courts in the UK.” The U.K. and Swedish courts “robustly implement and adhere to the highest standards of human rights protection.”

In any event, the Decision’s legal argument, in my opinion, is not persuasive.

The Relevant Facts

The Decision starts its statement of the relevant facts with the noncontroversial: Assange is a communication professional with international awards for his struggle for freedom of expression, freedom of press and human rights, and through WikLeaks he has publicized documents from different sources. The Decision then provides more contentious, and I think unfounded, assertions.

According to Ecuador’s Decision, the U.S. and other countries that produced these documents have threatened retaliation risking Assange’s safety, integrity and even his life and have refused to provide guarantees to protect his life and safety. Extradition of Assange to a third country outside the European Union [the U.S.] is feasible without the proper guarantees for his safety and personal integrity. If extradited to the U.S., Assange would not have a fair trial; he could be judged by a special or military court; and he probably would receive cruel and demeaning treatment and be condemned to a life sentence or the death penalty.

Other than stating the U.S. is not a party to the Inter-American Convention on Diplomatic Asylum and does not recognize the concept of diplomatic asylum, the U.S. has declined to comment on the merits of the dispute and has urged trilateral negotiations by the parties to resolve the dispute. There, however, is no credible evidence for Assange and Ecuador’s impugning the independence of fairness of the U.S. federal judicial system, and any risk of capital punishment in the U.S. would be eliminated by the European practice and law forbidding extradition to other countries where there is a risk of such punishment.

Any accusation against the independence and honesty of the U.K. courts is absurd. Indeed, Assange in 2011-2012 challenged his extradition to Sweden on the merits in the U.K. courts (magistrate’s court, High Court and Supreme Court) without any objection to the procedural rights he was accorded.

Ecuador’s Decision also has harsh allegations against the Swedish prosecutor’s office with respect to its ongoing investigation of Assange on criminal sexual charges. That office allegedly has prevented Assange from the total exercise of his legitimate right to defense to criminal charges. His procedural rights allegedly have been infringed during that investigation. Pretrial detention of Assange in Sweden would facilitate his extradition to a third country, i.e., the U.S.

Sweden has strongly rejected these charges. It did so at meetings with Ecuador’s Ambassador in Stockholm shortly after June 19th (when Assange arrived at the Ecuadorian Embassy in London) and on August 16th. This rebuttal, in part, emphasized that in the last months of 2010 Assange challenged the European Arrest Warrant on the merits in Swedish courts (district court, court of appeal and Supreme Court) without any objection to the procedural protections of Swedish law.

In addition, after Assange was in temporary “residence” at the Ecuadorian Embassy, Sweden rejected his offer to be interrogated at that Embassy with respect to the Swedish investigation. Sweden did so because it wanted to confront Assange in Sweden with the existing evidence and conduct supplementary interviews of others depending upon what Assange had to say. The Swedish prosecutors also wanted him in their country to assure his presence at any criminal trial that might result from the investigation, as required by their law.

At the OAS meeting on August 24th, a Swedish diplomat stressed that Sweden had an independent judiciary that needed to proceed with investigation of Assange’s alleged sexual offenses. There had been no request to Sweden for extradition to a third country, she added, but European and Swedish law prohibits extradition when there is a risk of capital punishment.

The Decision also says the governments of the U.K., Sweden and the U.S. will “not respect the international conventions and treaties and would give priority to internal laws of secondary hierarchy, contravening explicit norms of universal application.” It is difficult to understand exactly what Ecuador means by this allegation. If it means that the U.K., Sweden and the U.S. do not agree with Ecuador’s legal argument, then that is certainly correct.

In summary, there is no credible evidence to support the extreme accusations against the judicial systems of the U.K., Sweden and the U.S.

Conclusion

Ecuador’s granting of asylum to Assange, in my opinion, is wrong on the law and wrong on the facts. Indeed, there is speculation in the press that the real reason for President Correa’s deciding to grant “asylum” in this case was to enhance his own political standing in his own country for next year’s presidential election.

Other than litigating these issues before the International Court of Justice or arbitrating or mediating them before a neutral third party, the only other peaceful way to resolve this dispute is for the parties to do so through diplomatic negotiations, as recommended by the OAS on August 24th.

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[1] According to the Decision, Assange’s written asylum application was submitted on June 19th with a June 25th written supplement, but neither of these documents is publicly available. This secrecy seems more than ironic for the self-proclaimed advocate for public transparency and disclosure. It also is ironic for Ecuadorian President Correa, who is known for his hostility to the press, to be the defender and protector of Assange.

[2] A prior post set forth the background for this dispute, and another post discussed the issue of the inviolability of the Ecuadorian Embassy in London.

[3]  The other 13 parties to the Inter-American Convention on Diplomatic Asylum are Argentina, Brazil, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.

[4] U.N. Charter, Art. 1(3) (one of U.N. purposes is achieving “universal cooperation in . . . promoting and encouraging respect for human rights”); American Convention on Human Rights, Art. 22.7 (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”); Inter-American Convention for Extradition (no extradition when “the person sought has been tried or sentenced or is to be tried before an extraordinary or ad hoc tribunal of the requesting State” (Art. 4.3) or when “the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons” (Art. 4.4) or when “persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons” (Art. 4.5): and Convention may not “be interpreted as a limitation on the right of asylum when its exercise is appropriate” (Art. 6)); Inter-American Convention on Territorial Asylum, (“Every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable” (Art. I); this includes persons who “are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offenses” (Art. II); no “obligation to surrender to another State, or to expel from its own territory, persons persecuted for political reasons or offenses” (Art. III); no extradition of persons “sought for political offenses, or for common offenses committed for political ends, or when extradition is solicited for predominantly political motives” (Art. IV)); Geneva Convention [IV] Relative to Protection of Civilian Persons in Time of War, Art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”).

[5] African Charter on Human and Peoples’ Rights, Art. 12.3 (“Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions”); European Union Charter of Fundamental Rights, Art. 46 (“Every citizen of the [European] Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as t he nationals of that Member State”); European Convention on the Suppression of Terrorism, Art. 5 (“no obligation to extradite if the requested State has substantial grounds for believing that the request for extradition . . . has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”); European Extradition Treaty, Art. 3.1 (“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence”).

[6] Vienna Convention on the Law of Treaties, Art. 53 (“treaty is void if . . . it conflicts with a peremptory norm of general international law . . . . [i.e.,] a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”), Art. 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”), Art. 66(b) (A party to a “dispute concerning the application or the interpretation of article 53 or 64 may . . .submit it to the International Court of Justice for a decision”).

[7]  Universal Declaration of Human Rights, Art. 14 (“Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the [U.N.]”);U.N. Declaration on Territorial Asylum (recommends territorial asylum practices include asylum for “persons struggling against colonialism” (Art. 1.1) , non-rejection of persons at the frontier and non-explusion to state where person may be subjected to persecution (Art. 3.1)); American Declaration of the Rights and Duties of Man, Art. 27 (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”); Cartegena Declaration (at 1984 meeting to discuss protection of refugees in Central America, Mexico & Panama, reiteration of “importance of non-refoulement (including the prohibition of rejection at the frontier)”).

[8]  In addition, Article 1 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that “torture” “does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.”

[9]  It should be noted that Protocol No. 6 had an exception that allowed the death penalty in times of war, but in 1988, Protocol No. 13 to the European Human Rights Convention eliminated this exception. Both the U.K. and Sweden have ratified Protocol No. 13.

Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: The Inviolability of Ecuador’s Embassy in London

OAS Meeting, 8/24/12

As noted in a prior post, on August 24, 2012, the Organization of American States (OAS) held a full-day Meeting of Consultation of Foreign Ministers at its headquarters in Washington, D.C.

It was called at the request of the government of Ecuador to discuss certain issues in its dispute with the United Kingdom (and Sweden) regarding Julian Assange.[1] The central issue was the “inviolability” of Ecuador’s Embassy in London or its not being subjected to violation or invasion by U.K. officials.[2]

All of the states represented at the meeting, including observers representing the U.K. and Sweden, agreed that such inviolability has been a long-established practice and principle of international law, as expressed in the Vienna Convention on Diplomatic Relations, to which 187 of the 193 U.N. members are parties. Its Article 22 states:

  • “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.”

Mention was also made at the meeting to the strong endorsement of this principle of international law by the International Court of Justice [3] and the U.N. Security Council.[4]

Ecuador’s Foreign Minister, Ricardo Patino

The Foreign Minister of Ecuador, Ricardo Patino, introduced the draft resolution that reiterated this principle and called for a conclusion that the U.K. had threatened to enter the Ecuadorian Embassy in London and thus violated this principle. The draft resolution also would have the meeting endorse Ecuador’s granting of asylum to Assange.

U.K. Permanent Observer to OAS, Philip Barton

Toward the end of the meeting, the U.K.’s observer, Philip Barton, responded to Ecuador’s charges. He stressed the U.K.’s “absolute commitment to the principles of the Vienna Convention” and to its “always act[ing] in full compliance with [its] provisions.” He also stated that “at no time has the UK government made any threat against the Embassy of Ecuador.”

On the other hand, Barton implied, there obviously could be situations where the host country (or receiving state) will need to enter the diplomatic premises of other countries. This is alluded to in the obligations imposed on the sending State (here, Ecuador) in Article 41 of the Vienna Convention. That Article states, in part:

  • “1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .
  • 3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Barton added, “The rights of diplomatic missions conferred by the Vienna Convention comes with responsibilities. Article 41 of the Vienna Convention sets out the obligations of diplomatic missions to respect the laws and regulations of the receiving State [here, the U.K.]. And these include the duty not to impede the due legal process of that State.” Ecuador, however, according to the U.K. observer, had improperly failed to respect U.K. laws and regulations and impeded the due process and legal obligations of the U.K. to extradite Assange to Sweden by the Embassy’s providing refuge to Assange, who was a “fugitive from justice” and thereby denying “the women who have made serious allegations against him the right to have their own voices heard.”

These concerns by the U.K. were echoed by the representatives of Canada, Panama and St. Lucia.

This Vienna Convention and its parallel Vienna Convention on Consular Relations were mentioned in the preamble of the U.K.’s 1987 Diplomatic and Consular Premises Act, one of whose stated purposes was to “give certain [of their]provisions . . . the force of law in the [U.K.].”

Presumably the concerns expressed in Article 41 of the Vienna Convention were behind this U.K. statute, which was referenced in its August 15th communication to Ecuador and which in section 1(3) gives the government the power to withdraw recognition from diplomatic premises and thereby permit police to enter and arrest people on the premises. That section states, in part:

  • “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 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, ii thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.”

However, the U.K. Act of 1987 goes on to state in section 1(4), “The secretary of state shall only give or withdraw consent or withdraw acceptance if he is satisfied that to do so is permissible under international law,” while section 1(5) states that in deciding whether to withdraw consent, the minister “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.”

These U.K. statutory considerations or limitations were highlighted at the OAS meeting by the representative of St. Vincent and the Grenadines, a former British colony and a self-proclaimed “proud” member of the British Commonwealth of Nations. He said these provisions should bar the U.K. from withdrawing its consent to the presence of the Ecuadorian embassy and thereby permitting entry of British police because there could be no threat by Assange to the U.K. public safety in light of his having been free on bail in the country for a long period of time, because there is no basis for alleging he is a threat to U.K. national security and because there was no issue of U.K. town and country planning. A similar opinion on the non-applicability of this statute to the current situation was expressed in the press by an English attorney.

These provisions of the Vienna Convention and the U.K. statute were the legal framework for the discussion at the OAS meeting as to whether the U.K. in its August 15th letter to Ecuador or otherwise had threatened the inviolability of the Ecuadorian Embassy over its providing refuge to Assange. As mentioned above, Ecuador strongly asserted that there had been such a threat while the U.K. strongly disagreed with support from the U.S., Canada and Panama. The purpose of the meeting, however, was not to make findings of fact and conclusions of law on this and other issues.

Instead, at the conclusion of the meeting, the OAS member states unanimously adopted the following resolution:

  • “1. To reiterate the full validity of the principles and standards that govern diplomatic relations among states, especially those that concern full respect for the inviolability of the premises of diplomatic missions and consular offices, as recognized in the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.
  • 2. To reaffirm that those principles and standards constitute fundamental rules for ensuring the peaceful coexistence of all the countries that comprise the international community.
  • 3. To reiterate the full validity of the principles enshrined in international law, such as respect for sovereignty, faithful compliance with international treaties, peaceful settlement of disputes, peaceful coexistence among states, and rejection of the threat or use of force to settle disputes.
  • 4. To reject any attempt that might put at risk the inviolability of the premises of diplomatic missions, to reiterate the obligation / of all states not to invoke provisions of their domestic law to justify noncompliance with their international obligations, and, in this context, to express its solidarity and support for the Government of the Republic of Ecuador.
  • 5.To urge the Governments of Ecuador and the United Kingdom of Great Britain and Northern Ireland to continue to engage in dialogue in order to settle their current differences in accordance with international law, taking into account the statements made recently by authorities of both governments.
  • 6. To entrust the Permanent Council [of the OAS]with the due follow-up of this matter.”

In so doing, the meeting refused to adopt other parts of Ecuador’s draft resolution that mentioned and quoted the August 15th U.K. communication and that stated that there had been a threat by the U.K. on the inviolability of the Ecuadorian Embassy in London.[5]

Ecuadorian President Rafael Correa

On August 25th (the day after the OAS meeting), Ecuador’s government announced it had received “a communication from the British Foreign Office which said that there was no threat to enter the embassy.” In addition, Ecuador’s President Rafael Correa said in his weekly media address on Saturday, “We consider this unfortunate incident over, after a grave diplomatic error by the British in which they said they would enter our embassy.”

In fact, before, and at, the OAS meeting the U.K. had been reiterating that it had not and was not threatening the inviolability of the Ecuadorian Embassy. Ecuador’s sudden reversal on this issue suggests that all along it intentionally had exaggerated the U.K. August 15th communication in order to make a big splash in the international arena. Now I imagine some of the other Latin American foreign ministries will believe they were hoodwinked by Ecuador into agreeing to the extraordinary OAS meeting and will be more skeptical of any future Ecuadorian cries of alarm.


[1] I watched and listened to most of the live streaming video of this meeting, which is now archived on the OAS website. A press release and articles about the meeting are available in the OAS, the New York Times and the Guardian. The photographs of the meeting in this post are from the OAS website. Under Article 61 of the OAS Charter, such meetings of the foreign ministers are “to be held in order to consider problems of an urgent nature and of common interest to the American States,” and this was only the 27th such meeting in the 64-year history of the OAS.

[2] Also discussed at the meeting was Ecuador’s grant of asylum to Assange, a subject which will be addressed in a subsequent post.

[3] U.S.A. v. Iran, ICJ Reports 1980 3 (I.C.J. May 24, 1980), http://www.icj-cij.org/docket/files/64/6291.pdf.

[4]  U.N. Sec. Council Res. 457 (Dec. 4, 1979) (with respect to the Iranian takeover of the U.S. Embassy, the Council reaffirms “the solemn obligation of all States parties to the Vienna Convention on Diplomatic Relations . . . to respect the inviolability of diplomatic personnel and the premises of their missions”), http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/370/75/IMG/NR037075.pdf?OpenElement; UN Security Council strongly condemns attacks against British Embassy in Tehran, (Nov. 30, 2011), http://english.peopledaily.com.cn/90777/7661653.html (Council “condemned in the strongest terms the [Iranian] attacks against [U.K.’s] embassy in Tehran, . . . which resulted in intrusions into diplomatic and consular premises causing serious damage;” the Council emphasized “the fundamental principle of the inviolability of diplomatic and consular premises, and the obligations on host governments, including under the [two Vienna Conventions mentioned here], to take all appropriate steps to protect diplomatic and consular premises against any intrusion or damage”).

[5] The meeting also refused to adopt Ecuador’s draft resolution’s endorsement of Ecuador’s grant of asylum to Assange.

Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: Background

Assange @                      Ecuadorian Embassy
Ecuadorian Embassy, London

On August 16, 2012, the Government of Ecuador granted the petition for asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom.[1]

Assange, of course, is the individual behind WikiLeaks, the international, online, self-described not-for-profit organization publishing submissions of private, secret, and classified media from anonymous news sources, news leaks and whistleblowers. In 2010 it obtained many secret U.S. documents and released them to the world through various media outlets.[2]  No U.S. criminal charges have been publicly filed against Assange with respect to the releases of these U.S. government documents, but he fears that such charges secretly have been filed or will be filed and that such charges may seek life imprisonment or the death penalty.[3]

In August 2010 Assange was visiting Sweden, where he allegedly had certain sexual encounters with two Swedish women, who subsequently filed some kind of complaint about these encounters with Swedish authorities. As a result, these authorities have been investigating whether Assange committed rape or some other kind of sexual assault on these women. To pursue that investigation the authorities obtained an European Arrest Warrant to extradite Assange to Sweden for questioning.

In December 2010 Assange, then in Britain, learned about the European Arrest Warrant and voluntarily went to a British police station to advise them of his whereabouts. He immediately was arrested and taken into custody. After a short stay in prison, Assange was freed on bail of  £340,000 (nearly $540,000), of which £ 200,000 was deposited with the court, plus his being confined to  a specific site in Norfolk, England, fitted with an electronic tag and ordered to report to police daily.

Assange then went to the U.K. courts to challenge his extradition to Sweden.  In February 2011, however, a U.K. court upheld the Swedish request, which was affirmed nine months later (November) by the U.K.’s High Court and in May 2012 by the U.K.’s Supreme Court (5 to 2). In addition, that Supreme Court on June 14th denied Assange’s request for a rehearing and ordered that he be extradited to Sweden by July 7th.

Thereafter (on June 19th) Assange somehow violated the terms of his bail and managed secretly to enter the Ecuadorian Embassy in London, where he filed his claim for asylum.

In the roughly two months between June 19th and Ecuador’s August 16th’s granting of asylum, the governments of Ecuador and the U.K. apparently had private diplomatic exchanges and public sparring over this situation. Especially significant in light of later developments were the following incidents:

  • On August 15th, the U.K. Embassy in Quito apparently delivered a letter to Ecuador’s Ministry of Foreign Affairs that said: “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.” The letter purportedly also stated, “We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention [on Diplomatic Relations] and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.”  The latter added, “”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.”
  • The Ecuadorian government immediately and publicly disclosed some of the contents of the August 15th letter and characterized the statements just quoted as “threats against the sovereignty of the Ecuadorean embassy” and as “a clear breach of international law and the protocols set out in the Vienna Convention [on Diplomatic Relations].”
  • In response, the U.K. Foreign Office stated, “The UK has a legal obligation to extradite Mr. Assange to Sweden to face questioning over allegations of sexual offences and we remain determined to fulfill this obligation.” Therefore, “it is only right that we give Ecuador the full picture. Throughout this process we have drawn the Ecuadorians’ attention to relevant provisions of our law, whether, for example, the extensive human rights safeguards in our extradition procedures, or the legal status of diplomatic premises in the UK.” Moreover, the U.K. stated its continued commitment “to reaching a mutually acceptable solution.”
OAS Building, Washington, D.C.

On August 24th, at Ecuador’s request, the Organization of American States (OAS) held an extraordinary Meeting of Consultation of Ministers of Foreign Affairs, to discuss the dispute. This meeting concluded with a unanimous resolution focused on the inviolability of diplomatic missions under international law. A subsequent post will review this OAS meeting and the legal issue of the status of diplomatic missions in host countries.

Another subsequent post will examine the merits of the Assange asylum claim.

In the meantime, Assange continues to be a full-time “guest” at the Ecuadorian Embassy in London.


[1] This post is drawn from caches of articles about all of these events in the New York Times and the Guardian.

[2] By happenstance, as reported in a prior post, some of the U.S. government documents released by WikiLeaks were cables from the then U.S. Ambassador to Ecuador, Heather Hodges, to the U.S. State Department in Washington, D.C. asserting that there were multiple reports of illegal activities by Ecuador’s national police chief and that Ecuador’s President Correa might use these activities to manipulate the police chief. After these cables became public, President Correa called these statements “unacceptable, malicious and imprudent” and expelled Hodges. In retaliation, the U.S. expelled the Ecuadorian Ambassador to the U.S., Luis Gallagos. Both Hodges and Gallagos, in my opinion, are honorable professional diplomats, and neither one did anything wrong.

[3] A U.S. national and member of the U.S. Armed Forces, Bradley Manning, allegedly participated in obtaining these documents for WikiLeaks, and he currently is in U.S. custody facing criminal charges for that alleged conduct. Discussion of the many issues relating to his case is beyond the scope of this post.