Craig Kyzar — Revolutionary pioneer or high-tech terrorist? Whatever your perception, the Julian Assange saga has become every bit as divisive as it is pervasive. Its global significance and far-reaching implications have prompted a rush of media attention, often based more on emotion than reason. I dare say that Mr. Assange is not the first man to ever seek asylum in a foreign embassy. However, he does provide the most intriguing case in recent memory.
On June 19, Julian Assange breached bail and sought asylum within Ecuador’s London embassy to escape extradition to Sweden and ultimately, he alleges, to the United States. Two months later, British officials further escalated the political standoff by asserting the sovereign right to enter the embassy in order to arrest Mr. Assange under the Diplomatic and Consular Premises Act of 1987. While this set off a firestorm of controversy, it also highlighted several fascinating questions of international law.
Contrary to popular belief, an embassy or diplomatic mission remains the sovereign soil of the host country. It does, however, enjoy certain privileges under Article 22 of the Vienna Convention on Diplomatic Relations – not the least of which is the inviolability of the diplomatic premises. Under the terms of the Convention, Britain is obligated to take all measures necessary to protect the Ecuadorean embassy from intrusion and may only enter with the consent of the head of the embassy.
While British authorities have repeatedly denied any threat to invoke their domestic Act, their reference to its legitimacy in this situation is misguided and dangerous. Section 1 of the Act grants the Secretary of State the broad and arbitrary power to pierce the inviolability of an embassy at any time, provided he finds the revocation to be consistent with international law. But therein lies a significant conflict. Nowhere in the Convention’s language is there a permission for such unilateral revocation of privileges against an embassy performing legitimate diplomatic functions.
Even more noteworthy is the chilling reality that, if permitted, rescission of diplomatic status under the guise of this conflicting domestic Act would establish a ridiculous precedent for any nation desiring to occasionally set aside international diplomacy law whenever domestically convenient, rendering the protection itself entirely obsolete. Those of us old enough to cringe at the term “mutually assured destruction” should realize that such an outcome benefits nobody.
By its action, Britain would expose every one of its own embassies, consulates, and diplomats abroad to the possibility of retaliatory treatment. At the end of the day, the powerhouse that is Great Britain stands to lose considerably more from such unprecedented action than its humble foe, which is already basking in underdog support for its stand against the perceived Allied bullies … support, it should not be overlooked, that fails to condemn Ecuador’s own well-documented history of journalistic oppression at home.
Seldom does a legal analysis reveal a one-sided story or a single indisputable truth. That said, whether you find yourself a champion or a detractor of the man, it is hard to deny that considerable pro-Assange sentiment is based on die-hard presumption about what some believe will happen following a legitimate extradition to Sweden. Removing ourselves from preconceived sympathies, unfounded conspiracy theories and fashionable anti-American sentiment, the fact remains that Britain is well within its legal and practical rights to arrest Mr. Assange – a fugitive from their justice system – the moment he sets foot outside the embassy.
There seems to be a growing belief, based far more in popular sentiment than legal machination, that Britain is somehow acting the aggressor by standing its ground in its continued pursuit of Assange, even after Ecuador’s grant of asylum. However, many fail to acknowledge that the legitimacy of this asylum is still far from certain and those intent on attaching intrinsic value to the gesture may do so primarily out of pre-set agendas rather than level-headed reason.
An attempt to grant Mr. Assange asylum under the Refugee Convention could lack merit on multiple grounds. Even if Assange could establish a “well-founded fear of persecution,” the Refugee Convention does not extend to those under suspicion of serious non-political crimes, which is precisely what he faces upon extradition to Sweden. Regardless, Britain bears no obligation to grant safe passage over its soil, nor can it realistically be expected to endanger its own diplomatic ties by disregarding extradition protocol in allowing a fugitive passage beyond its borders.
From a legal perspective, this is an excitingly curious case that requires the careful separation of fact from emotional activism. In the court of public opinion, it is quickly becoming an arrogant game, replete with angry presumptions and dangerously inflammatory rhetoric. There are numerous legal safeguards in place to protect the rights of Mr. Assange: all of which are beyond the scope of this brief analysis and none of which require the circus atmosphere that we now celebrate. Some would have us believe that such reliance on the system is inhumane and insensitive. But if we now seek to circumvent a system that no longer warrants our faith, then what kind of precedent are we setting for our future?