Q&A: Julian Assange and asylum
- 16 August 2012
- From the section UK
Wikileaks founder Julian Assange, who is facing extradition from the UK to Sweden over rape and sexual assault allegations, has been given asylum at the Ecuadorean embassy in London. What happens next?
What does Julian Assange want?
Mr Assange entered the Ecuadorean embassy in London seeking political asylum.
Mr Assange fears that if he is sent to Sweden it may lead to him being sent on to the US to face charges relating to Wikileaks, for which he says he could face the death penalty.
However, the European Court of Human Rights would not allow an extradition to a country where someone faces capital punishment.
Nations that are signatories to the 1951 Convention on Refugees are obliged to consider whether there is a real risk the person could be killed or seriously injured if they were handed over to another authority.
Ecuador granted political asylum on 16 June.
Who can claim asylum?
Article 14 of the Universal Declaration of Human Rights states: "Everyone has the right to seek and to enjoy in other countries asylum from persecution."
Typically, asylum is claimed by someone who arrives at the border of a country which they hope will protect them. But in this case, Julian Assange sought "diplomatic asylum".
That basically means seeking protection outside the borders of a country by going to one of its diplomatic missions.
How can Julian Assange claim asylum?
The general definition of a refugee is someone with a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion" in their home country.
Mr Assange's supporters argue he faces persecution for his political opinions - but it's a real uphill struggle to prove he faces persecution in his native Australia. Ecuador said he had a well-founded fear and that his own country had failed to protect him.
The Convention Relating to the Status of Refugees, which both the UK and Ecuador have ratified, says that its protections do not apply to "any person with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee".
The allegations faced by Mr Assange in Sweden are sexual assault and rape - serious non-political crime.
Has Julian Assange broken the law in the UK?
When Sweden issued its European Arrest Warrant, judges in the UK granted Julian Assange bail on strict conditions while the case was being considered.
Julian Assange breached that bail by entering the embassy, making him liable for arrest. The Met is maintaining its position that it will arrest him as soon as it can.
So why can't police arrest Julian Assange at the embassy?
Throughout the world, local police and security forces are not permitted to enter an embassy unless they have the express permission of the ambassador - even though the embassy remains the territory of the host nation.
This rule was set out in the 1961 Vienna Convention on Diplomatic Relations which codified the "rule of inviolability". It is a rule that all nations observe because it is in their interests to do so - if they enter someone else's embassy, their own diplomatic missions are put at risk of similar activity elsewhere.
Therefore, the Foreign Office has said that by being at the embassy, Mr Assange is on diplomatic territory and beyond the reach of police.
However, on 15 August, it emerged that the Foreign Office had reminded Ecuador that it had the power to revoke the embassy's diplomatic status under the Diplomatic and Consular Premises Act 1987.
This would potentially allow police to enter the building to arrest Mr Assange.
But aren't all embassies protected from interference?
Yes - but the 1987 act, creating the power to revoke the status of a diplomatic mission, was passed by Parliament in the wake of the Libyan embassy crisis three years before, when PC Yvonne Fletcher was shot dead with a bullet fired from inside the embassy.
Ministers said they needed powers to revoke an embassy's status where the mission was not being used for a proper purpose connected to diplomacy.
The then Foreign Office Minister, Baroness Young, told the Lords at the time that the government had in mind a situation where a mission "was being used... in support of terrorist activity". In other words, the power was needed for exceptional circumstances.
Even if there was a viable legal argument to interfere in an embassy, there are still political considerations. Taking such a step might set a dangerous precedent by encouraging governments in other parts of the world to feel justified in claiming that dissidents seeking diplomatic asylum, but also facing allegations of criminality, were in foreign embassies illegally and could be forcibly removed from the premises.
Would revoking the embassy's status over Mr Assange be lawful?
That would be for the courts to decide.
If Ecuador challenged a revocation, ministers would have to argue at the High Court that the mission, by harbouring Mr Assange, had fallen foul of international law and they had the right to take action. The government used the power in 1988 to deal with squatters at the Cambodian embassy.
The key 1961 convention underpinning all diplomatic immunity stresses that missions must respect local laws and, in no circumstances, interfere in the host nation's internal affairs.
Now he is granted asylum, can he leave the embassy?
Metropolitan Police officers are waiting outside and they have the power and right to arrest Mr Assange for breach of bail if he steps outside.
Officers have also delivered a letter to the embassy demanding that Mr Assange surrender himself.
Could he be entitled to any form of protection from arrest?
Some people have speculated that Ecuador could give Julian Assange some kind of diplomatic or UN representative status as a means of providing him with immunity - but the Metropolitan Police have arrested numerous diplomats down the years - particularly for drink-driving.
However, diplomats can escape prosecution because of general diplomatic immunity.
So in practical terms could he get out?
Assuming Julian Assange evaded arrest outside the embassy, he could get into a diplomatic car. These vehicles enjoy protection in international law from "search, requisition, attachment and execution".
That could lead to the curious legal position of the Met having the power to stop the car - but no power to search it for Julian Assange.
Even if he got away, at some point he would have to get out of it into an aircraft - at which point the risk of arrest would return.
Could he be taken out of the embassy in a container?
There are strict rules relating to "diplomatic bags" which are designed to allow countries to bring their documents in and out of a host nation. Diplomatic bags can be any size that the country wants them to be and they cannot be opened or detained in transit.
But the law says they are for official materials, so it is difficult to see how Julian Assange could be put in a crate and shipped out - not least because the British authorities would have a fairly clear idea what was in the box.
Could Julian Assange stay in the embassy indefinitely?
Some asylum seekers have spent a great deal of time within embassy compounds. The longest-known case is that of Cardinal Jozsef Mindszenty. He spent 15 years in the US embassy in Budapest following the Soviet crackdown in 1956 in Hungary. He later made it to Austria.