As I discussed today on NPR’s Here and Now, the standoff between England and Ecuador is likely to grow worse after the latter country granted asylum to Julian Assange. While the government has threatened to strip the embassy of diplomatic status and grab Assange, it is in my view an empty threat. However, is there a way for Ecuador to get Assange out of the country?
As I discussed earlier, Assange as a reasonable fear of being extradicted to the United States under a sealed indictment for espionage after embarrassing the Obama Administration with Wikileak disclosures. The appearance of the charges in Sweden at the very time that the United States was trying to seize Assange was viewed by many as highly suspicious if not transparent. Assange previously spoke to prosecutors in Stockholm in denying the charges of the two women. Chief Prosecutor Eva Finné notably declared, “I don’t think there is reason to suspect that he has committed rape.” The attorney representing the two women appealed the decision to drop part of the investigation and on September 1, 2010, Swedish Director of Public Prosecution Marianne Ny reopened the case just as the United States was pushing globally for actions against Assange. In the meantime, Minister of Social Affairs Goran Hagglund seems to be striving to deny the appearance of a neutral forum in Sweden — going to Twitter recently to denounce Assange as a “coward”, a “pitiful wretch” and a “scumbag.”
The assumption is that, once in Sweden, the United States would unseal an indictment and seek his extradiction. Given the increased use of secret evidence and military tribunals in the United States, there is an embarrassing fear among many worldwide whether Assange would receive a fair trial in the United States.
The pressure from the United States is likely considerable despite the denials by officials. The British government has invoked the nuclear option by threatening to use a 1987 British law it says permits the revocation of diplomatic status of a building if the foreign power occupying it “ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post.” The use of the Diplomatic and Consular Premises Act however would trigger an international outcry and beg for acts of retaliations.
The the Vienna Convention on Diplomatic Relations requires diplomats to comply with the laws of the host country and international law does not expressly endorse diplomatic asylum in such cases. That 1961 convention suggests that Ecuador is legally obligated to turn over Assange.
Assange has indicated that he may make a statement outside of the embassy on Sunday. That could be a fatal mistake if he steps outside of embassy grounds. This is not the time for a stroll if he wanted to stay out of custody. He could make a statement from within the embassy, though that would again raise claims from the British government that the embassy is being used for a non-diplomatic purpose.
So does Ecuador have options? Yes, but they are pretty extreme and will raise some uncertainties.
First, Ecuador could essentially mail Assange home. Under article 27 of the Vienna Convention on Diplomatic Relations, a diplomatic bag or diplomatic pouch is given diplomatic protection in carrying material or communications between a diplomatic mission and its home government or other official organizations. A pouch can be any size including a large container. It was must properly marked and locked. That was the failing in 1984 when Nigeria kidnapped and treated to send a former Nigerian government minister back to Nigeria in a pouch. Since it was not properly marked, the British opened the container and freed the captive minister.
Ecuador previously had problems with such pouches. In January 2012, Italy arrested five people for shipping 40 kilograms of liquid cocaine in a diplomatic pouch from Ecuador. It is not clear how the Italians detected the cocaine or how the pouch was opened.
Another even more radical possibility would be to give Assange Ecuadorian citizenship and then give him diplomatic status under Vienna Convention on Diplomatic Relations (1961). The problem is that such credentials are generally presented and accepted by the host nation. That could be a problem since Assange would legally appear as a diplomat within the country. Normally, once diplomatic status is established, the nation can only expel a diplomat as a persona non grata — something Assange would relish. However, the question is whether England would recognize him as a diplomatic even if Ecuador and Assange were willing to claim his citizenship and status. The assumption is that England would have to approve the diplomatic status to be certain that he could leave the country.
Ecuador could try to send Assange to the airport in an embassy car with a diplomat. That should protect him on the roads to the airport, but simply walking into the airport would be a problem. There is the possibility that he could ride in a car through to Switzerland via the Eurotunnel, but the problem is that the embassy’s car park is separated from the embassy. He needs to get to the car even if the English are willing to respect the status of the vehicle.
The easiest approach is for England to agree to “safe passage” but that would not please the United States or English officials keen on seeing Assange punished for his disclosures.
That brings us back to the pouch and mailing Assange in a nice container with a comfy chair, bar, and of course wi-fi access.