Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany (since May 2003) and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen
Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010. In this arrest warrant Assange is charged with rape, sexual harassment and unlawful coercion against two Swedish women in Sweden. According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado. The fact that Assange was however able to go through three tiers of the English judicial system – with the proceedings leading up to the Supreme Court Decision of 30 May 2012 lasting one and a half years – can be explained, among other things, by the fact that the implementation of the European arrest warrant within the member states varies greatly.
Against this background – exhaustion of the local legal remedies – Assange’s escape into the Ecuadorian embassy on 19 June 2012 is to be seen as the continuation of his fight with political means. Hence, it is not very surprising that in the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012 ) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (see Comunicado No. 042). Instead, President Rafael Correa on 18 August 2012 in his state-owned TV program declared that the conduct Assange is accused of was not even punishable in Latin America (see Enlace Ciudadano No. 285). If this were to be true (which is fortunately not the case, see Art. 505 et seq. of Ecuador’s own Criminal Code), it would catapult the continent back to the unbridled machismo era. In any case, Ecuador granted Assange diplomatic asylum because it considered that there was an imminent threat of him being further deported to the United States where he would be politically persecuted and cruelly treated (see Comunicado No. 042).
However, Ecuador’s decision to grant diplomatic asylum to Julian Assange is flawed as a matter of law. Nonetheless, its embassy in London remains inviolable. The Ecuadorian argument does not stand up in the light of sober legal analysis as it misreads the fundamental structure of (European) law of extradition and it employs a legal concept – “diplomatic asylum” -that is not universally recognized in international law (see this EJIL:Talk! post ). An automatic further extradition to a third state is neither possible in general extradition law nor in the European arrest warrant system. First of all, an interested third state has to apply for extradition de novo and upon this request the requested state takes a decision pursuant to the applicable extradition law. In our case, i.e. between the U.S. and Sweden, the prospects of success of such a request are to be assessed on the basis of the 2003 EU-U.S. Extradition Agreement . The provisions therein modify and take precedence over possible prior bilateral treaties between individual EU member states and the U.S. According to this Agreement, the principle of double criminality applies, i.e. the acts that Assange is accused of in theU.S. must also be punishable in Sweden. Furthermore, various obstacles precluding extradition could apply. Pursuant to the jurisprudence of the European Court of Human Rights, EU member states and other parties of the European Convention on Human Rights can deny extradition in case of real risk of the death penalty or cruel and degrading treatment. Extradition could also be refused on the grounds of the “political offense” exception, i.e., if the U.S. were to prosecute Assange because of pure political offenses such as high treason or espionage. Apart from these general requirements, the generally accepted principle of speciality could also prevent extradition. According to this principle, the (initial) requesting state (in this case Sweden) is allowed to prosecute the extradited merely on the grounds of the offenses referred to in the request (i.e., the alleged sexual offenses). The delivery of the alleged criminal offender to a third state further requires the consent of the (initial) requested state (Great Britain). Of course, the requested state can only consent if the extradition does not conflict with any of the obstacles mentioned above.
With respect to the granting of “diplomatic asylum”, the Ecuadorian Government misconceives that this kind of asylum – despite repeated occurrence of such escapes to embassies – is not acknowledged in international law. Already in 1950, on the occasion of the escape of the Peruvian politician Raúl Haya de la Torre to the Columbian embassy in Lima, the International Court of Justice (ICJ) held that such kind of asylum can only be recognized if founded on explicit legal terms (see Haya de la Torre Case [Colombia /Peru]. Judgment of 13 June 1951). This results from the fact that granting diplomatic asylum constitutes interference in the territorial state’s internal affairs. For the sending state granting asylum would, as a consequence, deprive the receiving state jurisdiction over the fugitive. This essentially distinguishes diplomatic asylum from conventional asylum that is granted by a state to persons situated on its own territory. The Latin-American “Convention on Diplomatic Asylum” of 1954 (see Organization of American States, Convention on Diplomatic Asylum, 29 December 1954, OAS, Treaty Series, No. 18) does not alter this analysis of the position in general international law, since the Convention merely constitutes regional international law. Moreover, the Convention does not envisage the provision of asylum “on account of general crimes” as was granted to Assange. As a result, international law acknowledges, at best, a right to temporarily escape into an embassy in the event of exigent circumstances, such as civil wars and mortal danger. This scenario obviously does not apply to Assange. For this reason, Ecuador’s request for safe conduct is also unsubstantiated. In fact, British authorities could immediately arrest Assange if he leaves the diplomatic mission.
In any case, the unlawfulness of the concession of diplomatic asylum does not affect the general principle of inviolability of the mission. Indeed, it is acknowledged without reservation by the Vienna Convention on Diplomatic Relations of 1961 (see Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961). This applies even if the premises are used inappropriately, e.g. for the planning of criminal acts or even for the granting of diplomatic asylum. The frequently cited English Diplomatic and Consular Premises Act of 1987 (see Art. 1(3) of the Diplomatic and Consular Premises Act of 1987) indeed permits the Minister of Foreign Affairs to rescind the inviolability of the mission. However, this measure is not even popular in British legal practice, not least because of its risky precedent effect. Apart from that and more importantly, the measure would have to be lawful under international law. The only legitimate countermeasures are provided for by the Vienna Convention, which, in fact, is a self-contained regime giving clear primacy to the inviolability principle. In particular, the receiving state can declare members of an embassy as persona non grata, and it can completely abandon diplomatic relations with the sending state (the consequence of which would be the embassy’s closure). It can, however, not suspend the embassy’s inviolability. (see Dapo Akande and Roger O’Keefe’s earlier posts here and here). This could, arguably, only be considered in case of such grave breaches of international law that would give the receiving state a right to self-defence, e.g., if a terrorist attack would be planned from within the embassy. Surely, this cannot be assumed for cases of diplomatic asylum, especially bearing in mind that the ICJ held that the sending state granting diplomatic asylum is – despite the unlawfulness of the measure – not obliged to surrender the fugitive to the authorities of the territorial state.
In light of this legal situation, the most reasonable way theU.K. could proceed is to do nothing and just wait until Assange leaves the embassy. He could only do so safely in an embassy vehicle, since such a vehicle can be indeed halted, but not searched. In addition, the U.K.should consider bringing the issue before the ICJ. If Ecuador would not agree to its jurisdiction, this would contradict its self-proclaimed commitment to international law. The ICJ would, most probably, confirm the unlawfulness of granting diplomatic asylum, and will recall to Assange and his supporters once again what the Court already stated in 1950: Granting asylum cannot impede the administration of justice.
Of course, beyond all legal arguments, the Assange case has a political dimension which makes it difficult for both sides to be exclusively guided by legal arguments. In any case, for quite a few Latin American intellectuals and journalists it appears like a bad joke that a President who himself has been fiercely criticized by national and international human rights organisations for his persecution of dissident political opinions in his own country – in the same way as the Presidents who support him most (especially Hugo Chávez from Venezuela and Daniel Ortega from Nicaragua) – now presents himself as an intransigent defender of freedom of speech on a global scale. As has been rightly said by the prominents Spanish Law Professor Enrique Gimbernat in an article recently published in El Mundo (Madrid, 21 August):
“Correa sólo debería ocuparse de defender la libertad de expresión de lejanos ciudadanos australianos cuando hubiera dejado de intentar… amordazar a los periodistas de su proprio país”. [Translation: Correa should only be concerned with defending the freedom of speech of far away Australian citizens when he has stopped to gag the journalists of his own country’]
I am grateful to Dr. Ousman Njikam, ICTY, for assistance in preparing this comment. The original, shorter version was published in German in Frankfurter Allgemeine Zeitung, 23 August 2012, p. 6.