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16 Aug 2012

What happens next in Julian Assange extradition drama?

Shortly before 2pm today, Ecuador’s Foreign Minister, Ricardo Patino, announced his Government’s decision to grant asylum to Julian Assange. The announcement concludes the strangest chapter yet in the legal and diplomatic soap opera that is Mr Assange’s extradition proceedings. And like every soap opera, the big question arising from today’s events is: what happens next?

Many lawyers were surprised when, a little over two months ago, Mr Assange breached his bail and disappeared into Ecuador’s London embassy claiming asylum. In order to claim asylum under the Refugee Convention, Mr Assange had to demonstrate that he had a “well-founded fear of being persecuted for reasons of [his] political opinion”. However, the Refugee Convention says that one cannot be a refugee if there are “serious reasons for considering that […] he has committed a serious non-political crime outside the country of refuge”. But serious non-political crimes – two allegations of rape – are precisely the reason why Mr Assange’s extradition had been sought by Sweden. That in itself should have disbarred Mr Assange from receiving asylum. So how did Ecuador dodge this problem?

The answer may be that Mr Assange was granted asylum not under the Refugee Convention, but under a doctrine frequently referred to as “diplomatic asylum”. This curious concept is not generally recognised in customary international law, and has only been successfully claimed in the past by a small number of individuals seeking to preserve their lives against the threat of extreme civil or political unrest. This hardly seems to fit Mr Assange’s personal circumstances, whatever some of his more fanatical supporters might suggest.

Regardless of the merits of Mr Assange’s claim, Ecuador’s decision to grant asylum is surprising because it is wholly unclear what it means in practical terms. The UK authorities are under no legal obligation to grant Mr Assange safe passage from the embassy to Ecuador. He would almost certainly be arrested for breach of his bail conditions at some point on the journey between the embassy’s steps and the plane bound for Quito.

But if being granted asylum was always going to be a pyrrhic victory, why did Mr Assange claim it? Perhaps he hoped to flush out the Americans on the secret indictment allegedly being prepared for him. Perhaps he wanted to use the asylum claim as a bargaining chip with the Swedes, hoping to obtain an undertaking from the Swedish prosecutor that he would not be extradited onwards to the US. Or perhaps he simply sought to embarrass the UK for abandoning him to (as he apparently sees it) a politically motivated persecution orchestrated by the Americans.

In this last aim Mr Assange has succeeded. This morning’s announcement by the Foreign Office that it might invoke the Diplomatic and Consular Premises Act 1987 – a piece of obscure legislation introduced in the furore surrounding the shooting of Yvonne Fletcher by gunmen situated in the Libyan’s People’s Bureau – in order to enter the embassy and arrest Mr Assange, thereby crossing what would otherwise be inviolable Ecuadorean territory under the Vienna Convention on Diplomatic Relations, has been widely condemned as an arrogant misstep, and one with dangerous repercussions not just for the diplomatic relationship between the UK and Ecuador but for the ability of British diplomats to operate in sensitive areas across the world.

So what happens next? How can Ecuador’s decision to grant asylum be reconciled with the UK’s obligation to honour its extradition commitments to Sweden?

Mr Assange, knowing that arrest outside the embassy remains a virtual certainty, will be tempted to stay put. The diplomatic negotiations, meanwhile, will continue apace. But if those negotiations break down, and Mr Assange is invited to become a permanent resident of the embassy, the UK may feel that its only remaining option is to allege that Ecuador, by refusing to hand over a defendant who has breached his bail in English extradition proceedings and who is wanted under a Swedish European Arrest Warrant, has now violated the Vienna Convention, allowing it to de-recognise the embassy’s diplomatic status and facilitate his arrest. That decision would take us into entirely novel legal territory – and would be subject to judicial review proceedings by the Ecuadorean Government. Needless to say, it would also represent a drastic dissolution of diplomatic ties between the UK and Ecuador, and play directly into Mr Assange’s hands, bestowing upon him some of the public sympathy he has lost in the past year. Alternatively, if Mr Assange caves in and hands himself over to the police on the embassy’s steps, with only tiny but brave Ecuador having stood up for his rights, his passage to martyrdom will be equally assured.

Claiming asylum thus seems less surprising in retrospect than it did at the time. It has allowed Mr Assange to orchestrate a remarkable PR coup – and a diplomatic headache.

Corker Binning is a law firm specialising in fraud, regulatory and general criminal work of all types. For more information about our extradition practice, visit our website or call us on 0207 353 6000. 





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