Over at Craig Murray, one John Spencer-Davis has been arguing with me re J Assange’s diplomatic status:
Let’s deal first with your point about Article 38 – I have already answered it, but you may have missed that.
“Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
Assange is in trouble for all sorts of reasons pre-dating his supposed appointment as a diplomat to the UK. Any diplomatic immunity he might in theory enjoy in the UK explicitly does NOT cover that.”
Article 38 is clearly intended, in this context, to apply to UK nationals or persons permanently resident in the UK, who are nonetheless Ecuadorian diplomatic agents. Assange is neither a UK national nor permanently resident in the UK. Therefore Article 38 does NOT apply to him. If not, why not?
I think that John is right here. It is not clear from the Vienna Convention how far any diplomat gets immunity in state A for crimes committed by him/her in state A before he/she is appointed a diplomat to state A by state B. On the face of it, that diplomat enjoys full unqualified immunity once established as a diplomat of state B in state A.
But does that mean that state A has NO CHOICE but (a) to accept all state B’s diplomats and (b) to give them full immunity, however awful they might be up to and including the point of being wanted for murder in state A?
Peering closely at the VC, I conclude that we start with A7:
“Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission.” That supports the proposition that Ecuador can ‘freely’ appoint JA as a diplomat.
But there is a proviso in A9:
“1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.”
So the Ecuadoreans freely appointed JA as a diplomat for their London Embassy when he was already within the embassy, but HMG said that he was not acceptable, and so he never made it to the status of someone having diplomatic immunity in the UK. He was in effect PNG’d before he got to enjoying diplomatic status here.
Craig’s claim is that in the split-second of time of JA being appointed as a diplomat TO the UK, he automatically got immunity IN the UK. That’s just not how it works, as Craig of course knows well!
When a new diplomat is appointed, the sending state politely notifies the receiving state of the appointment and the receiving state can politely accept it or not.
UNTIL the appointment is formally accepted, there is no immunity in the receiving state.
Why not? Because it would open the way to absurd results and abuses (eg a Brit murderer fleeing justice in Beijing walks into the UK embassy there and is appointed a UK diplomat, so strolls out of the country free). No state wants that sort of thing on its own territory, going right back to all those courtly ideas of respect and hospitality.
Ecuador is welcome to challenge this decision in the UK courts. Maybe the Craig view will prevail, but I bet him/you £5 it doesn’t, if only because the VC codifies centuries of practice but does not exhaustively and exclusively define the international law and practice of diplomacy. As well as being a former diplomat I’m a barrister. Never underestimate the role of pragmatic common sense in UK court decisions.
It’s not ‘irrelevant’ to point out that the VC is only part of how diplomacy works on practice. Take the UK Highway Code. The law lays down speed limits but in real life you’re highly unlikely to be prosecuted at all (let alone successfully) if you are driving at 31 mph in a 30mph zone. There’s some operational flexibility, as life does not fit neatly into strict rules all the time.
Craig’s whole point here is that some sort of existential injustice aided and abetted by the ‘neo-liberal media’ has been done to JA. Maybe the reason why the media are not carrying Craig’s arguments is that anyone who looks at this from a serious professional point of view can see that Craig’s arguments are basically tendentious/specious?
Note that this is exactly what happens when state A thinks that a diplomat proposed by state B is a spy. That diplomat is not accepted by state A as a state B diplomat who enjoys immunity in state A. State B sighs and schemes about getting its spying done some other way.
End of story.