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The Assange Affair and a UN Diplomatic Treaty



Julian Assange of Wikileaks
Julian Assange, the founder of WikiLeaks, leaving the Royal Court of Justice in Britain in July 2011, after his extradition appeal was rejected. More than a year later, he made a plea for his right to free speech and freedom by video link to the United Nations on Sept. 27, 2012. ACIDPOLLY

KANDY, Sri Lanka — The WikiLeaks founder Julian Assange may be languishing in a windowless room at the Ecuadorean Embassy in London, surrounded outside by a British police posse poised to extradite him to Sweden for questioning about his role in possible sexual crimes, if he dares to leave the premises. Yet last week, Assange managed to send a strong message to the world by video link to the United Nations during the opening of the General Assembly debate.

In the video, presented at an Ecuadorean-sponsored event on human rights, Assange, looking burdened and wan, declared he was free “in the most basic and important sense”: to speak his mind.

The case of Assange, who released volumes of secret diplomatic cables through WikiLeaks, an act that alienated some governments but was welcomed by other governments and parties, reveals the complexity of international relations. It is also a reminder that international law is not quite ready to distinguish between right and wrong.

Moreover, the case validates the strength of an important United Nations international treaty, the Vienna Convention on Diplomatic Relations of 1961, which to this day remains a pact honored by nations around the world.

In the Assange matter, proponents of the right to information and free speech are facing off against defenders of national security and the sanctity of official secrets. Some feminist groups confront others over the issue of sexual crimes allegedly committed by Assange against two women in Sweden. Supporters of the right to asylum and the Vienna Convention, which is protecting Assange in the Ecuadorean Embassy, clash with those who claim the supremacy of the laws of sovereign countries and bilateral extradition agreements.

The bulk of the material leaked by Assange consists of ambassadorial reports from American diplomatic missions abroad discussing a wide range of issues. These documents were said to be passed on by Bradley Manning, a United States Army intelligence analyst, who is facing serious charges in the US amid calls for his execution.

While undoubtedly embarrassing, it must be clarified that a diplomat is not a spy and that conversations he or she has are part of the legitimate political reporting an ambassador conducts with national officials. It must also be clear that a government’s foreign policy is never solely based on ambassadorial reports but are only a very small part of such decisions. The vindictive pursuit of Assange is therefore chilling, given that he is not a US citizen, making him beyond the reach of US law. Worse, his own government, Australia, has not lifted a finger to help him.

Britain’s threat of extradition to Sweden leaves Assange vulnerable to being sent to the US to face retaliation for the diplomatic leaks. Sweden, even under a left-leaning government, is most likely willing to ship Assange off, as it rendered two people to the US in December 2001, where they were tortured.

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It is also important to clarify that Assange has not been formally accused of any actual crime in Sweden, but that authorities say they want to question him, having issued a European arrest warrant that British courts have upheld. Even so, the Ecuadorean government argues, why doesn’t Sweden send investigators to its embassy in London to interrogate Assange there?

It is Article 22 of the Vienna Convention on Diplomatic Relations that makes very obvious the inviolability and immunity extended to diplomatic premises, a fact that must make Britain rue the day it threatened to invade the Ecuadorean embassy. That warning united all of Latin America against the British Isles.

The surfacing of a little-known piece of domestic legislation in Britain – the Diplomatic and Consular Premises Act 1987 – ostensibly enacting the Vienna Convention into domestic law but creating a huge loophole to drive a horse and carriage through, has certainly queered the pitch not just of British-Ecuadorean relations but also international diplomatic practice over all. The loophole arose from the use of the Libyan embassy premises in London to shoot and kill a police officer in 1984, wounding several other demonstrators.

Yet if every country provided exceptions to diplomatic immunity, chaos would ensue. Of course, a provision exists that allows countries to revoke the immunity conferred on their diplomatic agents, which has been done by a wide variety of countries where crimes or serious traffic accidents have occurred. The revocation of immunity for diplomatic premises by the nation that owns the premises is possible only where there has been a mass defection of embassy staff members or in a state of war, when diplomatic representation would be withdrawn.

Diplomatic asylum is especially important in the Latin American context where, until the current wave of democracy swept aside all military regimes and autocracies there, the right to give freedom fighters and human-rights activists asylum from executions in neighboring nations was jealously safeguarded. The Inter-American Convention on Diplomatic Asylum of 1954 is followed by most Latin American countries but not by the US. Extraterritorial asylum may be granted by a country on its notional territory, such as its embassy.

Lurking behind all this protection, however, is the shadow of the US. Appeals by Ecuador to Britain and Sweden to convey assurances that Assange would not be extradited to the US have been met with a deafening silence.

Possibly the longest case ever of a dissident taking sanctuary in an embassy was that of a Hungarian Catholic cardinal, Jozsef Mindszenty, who spent 15 years under the protection of the US embassy in Budapest, from 1956 to 1971. The US embassy in Beijing granted Fang Lizhi asylum in 1989, releasing him a year later under a deal negotiated with the Chinese government for him to leave for the US. This year in China, the Chengdu police bureau chief, Wang Lijun, was in the US consulate briefly, while the blind dissident, Chen Guangcheng, was in the US embassy in Beijing for a week and left voluntarily in a negotiated deal.

The Assange standoff must be resolved through negotiations between Ecuador and Britain. No one, least of all Assange, wants a protracted siege of the Ecuadorean embassy in London. Orderly diplomatic relations among countries will benefit from a peaceful resolution of this imbroglio.

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Jayantha Dhanapala is a former United Nations under secretary-general for disarmament affairs (1998-2003) and a former ambassador of Sri Lanka to the United States (1995-7) and the UN in Geneva (1984-87).

Dhanapala is currently the 11th president of the Nobel Peace Prize-winning Pugwash Conferences on Science and World Affairs; vice chairman of the governing board of the Stockholm International Peace Research Institute and member of several other advisory boards of international bodies.

As a Sri Lankan diplomat, Dhanapala worked in London, Beijing, Washington D.C., New Delhi and Geneva and represented Sri Lanka at many international conferences, including chairing the historic nonproliferation treaty review and extension conference of 1995. He was director of the UN Institute for Disarmament Research from 1987-92.

Dhanapala has received many international awards and honorary doctorates, has published five books and several articles in international journals and lectured widely. He speaks Sinhala, English, Chinese and French. He is married and has a daughter and a son.

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