As in so many international disputes, the key to the resolution of the Julian Assange asylum case is the United States. If the White House, via US Attorney-General Eric Holder, would issue a diplomatic assurance that the US would not be seeking the extradition of Assange from Sweden, then the problem could simply disappear. Assange could safely face prosecution in Sweden and test the case against him – and both Britain and Sweden could avoid violating the principles of non-refoulement to which they are subject under the 1951 Refugee Convention.
Otherwise, we could well be in for a British version of the case of Cardinal Jozsef Mindszenty who was convicted in a show trial by the Soviets, and freed during the short-lived 1956 Hungarian revolution. When the revolution was crushed Mindszenty fled to the US embassy in Budapest, sought asylum and lived in the building for the next 15 years. So far, Assange has been in the Ecuadorian embassy in London for about 56 days.
Under the “third country” refoulement provisions of the Refugee Convention, it is Britain that holds the prime responsibility for ensuring that the country to which it extradites an accused person does not then forward them onwards to a third country to face torture and persecution. (That was a central issue in the Ahmed Zaoui proceedings in New Zealand.) There is some evidence that the US does intend to prosecute Assange, and for much the same reasons as it has Bradley Manning. Which means the prospect of the death penalty is an issue in the Assange extradition. There is also evidence in the past to show that Sweden cannot be trusted in this process. Namely, the notorious 2001 case of Sweden collaborating with a rendition process by US operatives to transport two Egyptian nationals (Mohammad al-Zari and Ahmed Agiza) back to torture in Egypt. A few years ago, when Swedish Prime Minister Goran Persson was giving a lecture at the Victoria University Law School In Wellington, I questioned him about whether he now accepted any responsibility for the rendition of the two Egyptian nationals. He replied that this affair had been a ‘mistake” made by the Swedish police. If the Swedish government can distance itself in this way from the decision-making on a US rendition request, it can readily do so again on a US extradition request with respect to Assange.
For now, all the visible diplomatic huffing and puffing is between Ecuador and Britain. In their exchanges with the Ecuadorians, the Foreign Office has argued that it has the right – under provisions of the Diplomatic and Consular Premises Act 1987 – to enter the Ecuadorian embassy building and arrest Assange via a legal process involving “de-recognition” of the premises. This would not only set a precedent that would be likely to boomerang for decades on every British diplomat based in trouble spots abroad. It would also seem able to be challenged – because the same 1987 Act says that any such “de-recognition” has to be exercised consistent with international law, and the Assange extradition would hardly be a rationale that would be considered justifiable under the 1961 Vienna Convention on diplomatic immunity. As Britain’s legal commentators have pointed out, Britain could try to counter this argument by pointing to the preamble to the Vienna Convention that says the Vienna provisions do not exist to benefit individuals but instead, the efficient operation of diplomatic missions doing their job of representing states – but that argument is easily rebutted. After all, Ecuador’s case for offering asylum is in accord with its interpretation and support for the concept of diplomatic asylum and for refugee law, and it is not taking action merely to benefit an individual called Julian Assange.
At the very least, any attempt to go down this road would be subject to judicial review, and would tie the process up for years in a case that Britain would be likely to eventually lose. In doing so, it would also be likely to put the whole process of diplomatic immunity (whereby asylum is claimed via setting foot in an embassy, and not in the more conventional fashion by setting foot in the country itself) onto a much firmer foundation. Britain, and the US, might not want that outcome.
One red herring in the process is that Assange has offered to be questioned in Britain by the Swedish authorities. In fact, that’s not an option. It has become clear that Sweden wants to prosecute Assange, and not just question him. It is hard to see how this triangle – Sweden, Britain and Ecuador – can achieve a formula that will enable Assange to face his accusers in court without there being an intervention by the US, which is the bogey figure in the shadows of this dispute. Britain, as the power with the main responsibility for protecting Assange from refoulement, should be actively engaged in asking the US to waive any extradition proceedings. Barack Obama, facing re-election, is unlikely to do so – but that really is the only way to break the logjam.
Finally, it is in Assange’s own interests to get to Sweden and test the case against him. If he is not to live under the cloud of the rape accusation for the rest of his life and/or as a refugee either in Ecuador or in an embassy back room, he has to get to Sweden, but in circumstances that will not land him in a US prison cell alongside Bradley Manning, facing the death penalty. Equally, his accusers deserve to be able to seek retribution, and the opportunity to prove their case against him.
In passing, it is striking to see the contrast between how Britain is acting when it comes to the extradition of Julian Assange, compared to its response to the attempts to extradite Augusto Pinochet in the 1990s. You will recall that the-then Home Secretary Jack Straw, finally intervened on Pinochet’s behalf on compassionate grounds, and stopped the old Chilean monster from being extradited to face justice before a court in Europe. And that was despite the fact that Pinochet – just like Assange – had fought extradition at every step of the way through the British courts, and lost. It makes Britain look like a hypocrite over the Assange affair and its alleged respect for the rule of law. In the case of both Pinochet and Assange, the core decisions have been about politics, not the law.