From Julian Assange to the diplomatic bag, former UK Ambassador Charles Crawford addresses the diplomacy of Good Manners
The fifth birthday of Julian Assange’s stay in the Ecuador Embassy in London took place last month. As fascinating as Mr Assange’s reasons for imposing himself indefinitely on Ecuador’s hospitality might be to himself, let’s look at some of the basic diplomatic issues in play.
Right at the heart of diplomacy is a simple idea: good manners. To be precise, the idea of courtly good manners was identified centuries ago when diplomacy was all about personal dealings between kings and popes, tsars and dukes. The 1961 Vienna Convention codified these time-honoured principles, and court cases around the world keep refining the rules as they apply in real life. But as the Assange case shows, diplomacy rests not on rules but on basic ideas of etiquette.
Embassies (and offices of international organisations) are guests in other countries. They need to behave nicely. If I invite you into my house that does not mean that you are free to roam through every room, drink all my beer, try on my underwear, bring in scores of friends, use the house to plot crimes, or stay indefinitely. When I invite you in, I don’t give you a long list of all the things you can’t do: that itself would be impolite. Instead, I rely on your common-sense discretion and courtesy.
Perhaps the most drastic example of an embassy not behaving nicely came in London in 1984, when Libyan diplomats fired shots from their Embassy in St James’s Square and murdered British police officer Yvonne Fletcher. The then Thatcher government reluctantly concluded that even after this outlandish abuse of diplomatic principle they should not storm Libya’s Embassy and arrest the killer. Instead the whole mission, murderer and all, were expelled.
This appalling episode prompted the British government to bring in the Diplomatic and Consular Premises Act 1987, empowering the Foreign Secretary to remove the diplomatic status of a building under certain circumstances:
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… he shall have regard to all material considerations, and in particular…
(a) to the safety of the public;
(b) to national security; and
(c) to town and country planning
This law makes sense. We might see that a state’s embassy is grievously abusing its diplomatic privileges by threatening our country or by shooting out of the window and killing passers-by. Or we might decide to extend the M4 into Belgravia by knocking down many posh buildings including an embassy or two. In either case, we can remove the building’s immunity (and only the building’s immunity – the immunity of the diplomats within the building remains) to let life proceed.
In other words, it is not open to a state to insist that any given building is its embassy and remains so indefinitely. That building’s diplomatic status must be accepted by the receiving state. And that acceptance can reasonably be withdrawn, for example if the receiving state has good reason to think that that building is being used in ways grossly incompatible with international law. That is an expression of the rights available to a receiving state under the Convention and wider international law, not a breach of the rights of the hapless cheating mission.
Right at the start of Mr Assange’s stay in the Ecuador Embassy, the British government messed up its bilateral diplomacy with Ecuador. It dropped a broad hint in writing that if the matter were not resolved satisfactorily, it might feel free to use its powers under the 1987 Act to remove the Embassy’s diplomatic status and haul Mr Assange from the building. Ecuador not altogether unreasonably saw this as a crass threat to its diplomatic presence in London, and noisily played their national pride card. The negotiations became far more intractable.
One other way of not behaving nicely is to use an embassy as a space hosting criminals or fugitives from local law, for example by granting them ‘asylum’. Some Latin American countries in fact have agreed among themselves rules on such ‘diplomatic asylum’, in part to allow dubious politicians to flee safely from their own country. Everyone else flatly and wisely denies that any such right exists. If someone runs into state B’s embassy to escape state A’s laws, s/he can sit there until s/he comes out. The embassy premises are inviolable, but once that person leaves the embassy that person is on state A’s territory, and subject to state A’s law.
This explains why many superficially ingenious ideas for getting Mr Assange safely out of the UK under Ecuador’s diplomatic protection don’t work. Give him political asylum! Make him an Ecuador diplomat so he has diplomatic immunity! Make him a UN diplomat so he has immunity! Transport him in the Ecuador ambassador’s car to the airport and up a ramp into a waiting Ecuador jet: the car and plane are Ecuador state property and so have diplomatic immunity – the Brits can’t touch him!
All piffle. World diplomacy would grind to a stop if anyone with a grievance could get into an embassy and claim ‘asylum’. No state would accept an embassy from a country that becomes known for granting diplomatic privileges to fugitives or troublemakers to help them escape the local jurisdiction. Embassies are places where legitimate inter-state business is done, not sanctuaries for any suspected criminal who gets through the door. Under diplomatic practice established down the ages the UK government decides who gets diplomatic privileges and immunities on its territory. It won’t accept that Mr Assange is an Ecuador or UN diplomat to help him escape the UK and EU legal system.
If Ecuador tries to nominate Assange as an Ecuador diplomat and escort him to the border, the Ecuador Ambassador and everyone else involved will be committing the serious UK offence of conspiring to pervert the course of justice, and will be liable to be expelled on the spot. The UK police will sensibly intercept any car carrying Assange, yank him out and arrest him. If this action is contested in court, no UK court will find for Ecuador/Assange: the embassy will be in trivial breach of elementary diplomatic good manners.
Nor would Ecuador be wise to try to build on the precedent set in (also in 1984, a ripe year for diplomatic immunity case-law) by Nigerian and Israeli agents who kidnapped and drugged Umaru Dikko, a former Nigerian politician, and tried to smuggle him out of the UK in a crate claimed to be a diplomatic bag. As we all know, a ‘diplomatic bag’ can be anything from a small pouch to large canvas bags, heavy boxes and even whole containers. This footling scheme of course failed.
Diplomatic bags in principle enjoy immunity, but they still must comply with a host state’s legal procedures. If the host state is not satisfied that the bags contain only items allowed under the Vienna Convention, things can get awkward. If a man-shaped diplomatic bag is seen emerging from the Ecuadorean Embassy and UK customs officials prod it with a pitchfork to confirm that it contains only diplomatic items, a squeak of ‘Streeewth!’ would give the British government all the legal options it needs to insist that the Ecuador Embassy politely undo it and prove that the contents are covered by the Convention.
Thus, the Assange situation is relatively rare. There is no point other than making a symbolic gesture in an embassy playing games with its relations with its host state and granting a foreigner asylum. That person still must get from the embassy to the border past hawk-eyed local police forces. And that is next to impossible. The Ecuador leadership know all this. Hence, they try no such tricks.
And so the weary days and weeks and months and years pass. Mr Assange sits lugubriously in the Ecuador Embassy, pasty from lack of sunlight, poring through Wikipedia to find a legal or diplomatic loophole he can sneak through. It doesn’t exist.