With Ecuador set to make an announcement later today about Julian Assange and his bid for asylum (he currently is skulking in their Embassy in London) the BBC World Service have just interviewed me for some background on the way bids for ‘asylum’ in Embassies work in practice. I drew on my classic DIPLOMAT article from late 2010:
There are two basic ‘invasion’ scenarios. Those where the people concerned are invading an embassy situated in their own country to try to escape (the two Havana examples above). And those where the invaders are in another country and enter a passing embassy as a way to get to somewhere else. In this latter case, both the embassy and the host government will be pleased to see the invaders leave the country, one way or the other: problem (for them) solved.
The former case is problematic though. It pits the embassy concerned against the host authorities in a way that is embarrassing for both. The host authorities have to face the disagreeable fact that some of its own citizens are so revolted by circumstances in their own country that they entreat another country to help them get out. The embassy involved is likewise torn. The idea that it is seen locally as a source of freedom and succour may be flattering but, on the other hand, relations with the host country have to go on.
This was brought out sharply by the mass demonstrations in Iran this year protesting against the rigged election results. With varying intensity, different European and other embassies in Tehran were saying that the Iranian elections had not, cough, quite met best standards of freeness and fairness. Yet they also had to make clear to the Iranian masses that in practice they would not open their doors to Iranians wanting to escape persecution.
A Swedish Foreign Ministry spokeswoman summed it up: Sweden ‘cannot grant asylum on embassy territory…if that decision was to be taken, it would mark a very strong gesture with regard to the Iranian government’.
Which, translated into normal language, is roughly this: ‘Sorry, massed Iranian chaps and chapesses. We do like and support you. Honest. But in this one you’re on your own. Good luck!’
Which sounds harsh, and is harsh, but has to be right. Since envoys were invented millions of years ago, the whole point has been to allow one leadership to keep open lines of private communication with another. If this special mechanism for such discreet top level communication is held hostage by anyone who has a grievance, however justified, a disruptive mess of no real use to either side ensues.
This Assange case is a fascinating version of the genre. He is a national of country W hiding in an Embassy of country X, with the hope of avoiding host country X sending him on to face justice in country Y and perhaps eventual extradition to country Z. Phew!
What is this case ‘about’? Let’s look at it from the point of view of Negotiation Theory.
On one level it is all about the astonishingly self-important J Assange. Here is an LSE Book Review I wrote earlier this year about him and his quest for fame:
One of the key advantages of WikiLeaks as seen by its avowedly radical ‘hacktivist’ creators led (loosely speaking) by Julian Assange is that it subverts all existing categories of pretty much anything: geography, law, morality, self-restraint. The book notes that by aiming for impunity from the law WikiLeaks hopes for immunity from the consequences of the “wider settlement between journalism and society” and ”a less-reported but similarly liberating degree of ethical and moral flexibility”. Hmm. Which tyrant down the ages has not hoped for such ethical and moral ‘flexibility’?
Take the vital issue of ‘protecting sources’, something journalists claim to be a core part of their professional responsibility. Assange is quoted as saying that any US informants in Afghanistan who were murdered by the Taliban as a result of WikiLeaks revelations deserved their fate, a loathsome and – as he found – unsustainable position.
Likewise the book records that WikiLeaks’ publication of confidential documents about corruption in Kenya led to riots in 2007 which 1300 people were killed and 350,000 displaced. The authors’ assessment is at best baffling: “It also indicated that Wikileaks, and Assange in particular, were prepared to make a different risk calculation that accepted some incidental harm for the ‘greater good’ of transparency.” Had a Western politician described the deaths of 1300 Kenyans as ‘some incidental harm’ caused by a different risk calculation in official policies, imagine the banshee shriek.
In this moral tarpit some people see in WikiLeaks a source of hope. The book quotes ‘cyber-optimist’ Clay Shirky: “it represents, in its irresponsibility, a space for reform and progress”.
No thanks. WikiLeaks is by any normal standards a malign phenomenon based on a business model of stealing then selling other people’s information. It has surged sensationally across the media firmament but now looks bedraggled and discredited. As the authors note in the epilogue, former WikiLeaks enthusiasts are writing it off, as further damage has been done to its credibility.
The real value of this fascinating but uneven book is that it reminds us that especially in an age of ‘anything goes’ e-leaks, the heart of credible journalism remains a sense of unwavering professional responsibility – and a good old-fashioned sense of honour.
So the core visible part of the negotiation here is what happens to him. Does he get extradited to Sweden to face various criminal charges, or not?
By scuttling into the Ecuador Embassy in London, Assange has created a vast amount of expensive hassle for HM Government, who have been quietly pointing out to the Ecuadoreans the fact that they have no real options other than to show him the door, sooner or later, whereupon he will be arrested and relaunched on his way to Sweden.
It turns out that HMG also have the power – a diplomatic doomsday weapon to be sure – to take away the diplomatic status of a foreign country’s embassy/consulate. This comes via the well-known and rather witty Diplomatic and Consular Premises Act 1987:
(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,
it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.
(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.
(5) In determining whether to do so he 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
This makes sense. If we think that a state is abusing its diplomatic privileges under the usual treaties and conventions eg to pursue activities threatening our country or people, we can take away the immunity of their base of operations.
Note that if we did take away their Embassy’s diplomatic status this does not mean that we have to batter the door down to get Assange out. We could (I assume) first start cranking up the financial costs by removing any Embassy exemptions from local and other taxes. And of course the fine free parking-spaces and diplomatic number-plates would be the first things to go: once gone, very hard to get them back, your Excellency. Aaaaargh.
The Act says that the Secretary of State needs to ‘satisfied’ that stripping away the Embassy’s diplomatic status is ‘permissible’ under international law. In the circumstances that might not be too easy and might itself launch exhausting legal proceedings.
Would (for example) an argument have to be made that in effect the Embassy was part of a criminal conspiracy to help Assange escape due process of law? Much care needed here, as we might not want our own Embassy in Horribleland to be stripped of its immunity next time the local Nelson Mandela arrives there fleeing oppressive local laws. See eg that recent case of Chen Guangcheng at the US Embassy in Beijing.
In other words, it’s good if your Embassy is seen by downtrodden locals as a beacon of freedom. As long as they do not actually try to enter it for too long.
We have made our legal case politely to Ecuador. They now have turned up their pseudo-aggrieved perpetual-victim Non-Aligned Member loudspeakers and started wailing that we are ‘threatening’ them and that they are not a ‘British colony’. Zzzzzzz
Why are they doing this?
Because on a different level of the negotiation they have a self-created problem of Reputation – it was fun to take him in, but how now to cough him up without losing face at home and internationally?
One way to do this is to make a massive silly noise and show that they ‘did all they could and more’ to help Assange, but in the end the bullying British imperialists were too relentless and mean-spirited to give them any other choice but to ask him to leave.
HMG likewise have a Reputation problem. The vast diplomatic community in London sets about its daily business safe in the knowledge that it will be treated lawfully and fairly, and that in return they should obey the rules. We can not afford to allow a precedent to be set that anyone wanting to escape British justice races to the nearest Embassy and gets a good deal. And, to be clear, the vast majority of Embassies quite like that austere situation – they do not want these unwelcome guests making a massive mess for them.
So what will happen later today? The Ecuadoreans will proclaim some sort of asylum status for Assange. Hurrah!
Then … nothing will have changed.
Assange still at some point has to leave the building, and (probably) whatever new status Ecuador says he has will not be recognised by us, allowing him to be arrested and sent on his way (no doubt after yet more lucrative lawyerly litigation) to Sweden.
Perhaps a way could be found to make a joint UK/Ecuador request to Sweden for formal assurances that Assange will be dealt with properly as part of a deal for sending him there? That would help both governments (and indeed Sweden) manage this tedious matter with no lasting damage done at the diplomatic level.
Diplomacy: the art of finding ways to back down gracefully – and move on elegantly.