Justice in Julian's weird Wiki-world
20 August 2012
Professor Ben Saul discusses the legal dimensions surrounding Britain's threat to enter Ecuador's embassy to arrest Julian Assange and Ecuador's granting of asylum to him in an opinion piece published in today's The Age.
Confusion is rife about the legal basis for Britain's threat to enter Ecuador's embassy to arrest Julian Assange and Ecuador's granting of asylum to him. Each side is understandably talking up their legal case. In truth, each is partly right and partly wrong.
The embassy is not Ecuador's sovereign territory, as is commonly suggested, just as the land under embassies in Canberra still belongs to Australia. But embassies are ''inviolable'' under international law, meaning that the host country has no right to enter them without permission.
One extreme measure is legally open to Britain. It could always formally terminate its diplomatic relations with Ecuador, expel its diplomats, and close the embassy. It is a total political discretion of governments whether to maintain relations with other countries.
Britain would have to give Ecuador fair notice, but afterwards the former embassy building would be fair game.
In diplomatic speak, closing Ecuador's embassy would be an extremely ''unfriendly'' and excessive act, even if Britain technically has the authority.
Such a step is normally taken only in extreme cases where relations have irretrievably broken down, for instance in war.
It is very unlikely that Britain intended to carry out its threat, which was made in confidential negotiations with Ecuador.
Countries typically apply whatever pressure they can in talks, even if they would never actually turn the screw.
But Britain's threat was tactically foolish, antagonised Ecuador, and escalated the dispute to involve the rest of Latin America. It was also against Britain's own interests, because it sets a precedent for other countries to make similar threats, including against Britain, whenever they don't get their own way.
On asylum, Ecuador says that Assange is at risk of an unfair trial or the death penalty in the United States, that Sweden might extradite him there, and that Australia has abandoned him.
Unlike Ecuador, Britain does not recognise the old concept of political or diplomatic asylum, which is different from modern ''refugee'' status. Political asylum is probably no longer part of international law, because not enough countries agree to it.
Britain may be technically within its legal rights not to recognise Ecuador's grant of asylum, to refuse Assange safe passage out of Britain, and to arrest him once he leaves the embassy. Short of being smuggled out in a diplomatic bag, Assange has no way out.
Even if diplomatic asylum remains part of the law, there is some doubt whether Assange faces the risks Ecuador claims. Assessing asylum claims requires imprecise probability judgments about what might happen, all the harder in this unpredictable case where Assange is a public enemy of America, and where America may wish to disguise its intentions.
Yet, against Assange is the fact the US has not yet charged him, nor sought his extradition, so there is no immediate risk.
Swedish law would not permit him to be extradited for political offences such as espionage or treason. Swedish law would never extradite him to the death penalty, and probably not to a military trial.
Even so, the crisis could have been avoided if cooler heads had prevailed. Sweden could have agreed to question Assange in Britain. Britain could have promised Ecuador that it would extradite him only if Sweden agreed not to send him to America. That they did not do so heightens speculation that a Stieg Larsson-style conspiracy is in the wings, justifying Assange's fear and paranoia. Political stubbornness or bureaucratic error may be a more mundane explanation.
A final legal question concerns Australia's role. Australia has the international legal right to make diplomatic protests or inquiries to Britain, Sweden or the US, but there is no legal duty to do so. International law leaves it to governments to decide whether they go into bat for their citizens, and how strongly.
Australia has offered consular support, but has otherwise left it to Britain, Sweden and Ecuador to fight it out.
Politically, Australians might expect more than this, but there is also a limit to what Australia can do. It cannot interfere in legitimate foreign court cases, particularly in Britain or Sweden where legal safeguards are among the world's best. This case is not like David Hicks' unfair military trial at Guantanamo Bay, where the Howard government connived with the Americans to breach international law.
Australia should also not do anything that would thwart justice for the alleged victims of sex crimes by Assange, who have been denigrated by some of his more fanatical supporters. Concern for human rights only extends so far in Wiki-world.
There will surely be more legal twists in this strange story. Next perhaps Scott Morrison will call Assange a pirate, and Tony Abbott will dispatch the SAS to string him up from the yardarm.
Then he would really need asylum, even if a tent on Nauru is a step down from digs in Knightsbridge.
Contact: Greg Sherington
Phone: +61 2 9351 0202