How to arrest Julian Assange without violating international law

The temperature is way up in London with the decision of the government of Ecuador to grant WikiLeaks founder Julian Assange political asylum. Some have suggested that Britain could use its Diplomatic and Consular Premises Act of 1987 to revoke the diplomatic status of the Ecuadorian Embassy in London to enable British police to enter the premises and arrest Mr. Assange.

What would this mean to diplomatic premises around the world? What would be the best strategy for London to follow in order to put Assange back in police custody? Now is the time to sit back a little and explore some options and their implications.

Under international law, Britain has a clear legal obligation to observe and respect the immunity and inviolability of foreign diplomatic missions in Britain. Article 22 of the Vienna Convention of Diplomatic Relations (1961) states: “The premises of the (diplomatic) mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” Also under international law, a state cannot use its municipal or national law as a justification for a violation of international law.

Therefore, Britain cannot use its Diplomatic and Consular Premises Act to justify a violation of international law.

The original intention of the 1987 act was to avoid the use of force by diplomats on British soil. This act was passed in response to the April 1984 shooting, from the Libyan diplomatic mission in London, of Yvonne Fletcher, a British police officer, as well as the alleged attempt by foreign diplomats in July 1984 to abduct Umaru Dikko from a London street. The 1987 act also clearly states that action taken under it must be “permissible under international law.”

The forceful entry of British authorities into the Embassy of Ecuador would not only be illegal but would also set a frightening precedent, putting British embassies and other embassies around the world at risk.

Having said this, what are the remaining options available to Britain?

Under international law, Britain is under no obligation to give Assange a safe passage out of the country since he is not an accredited diplomat. Even if Ecuador goes as far as to give him a diplomatic passport, he would still be subject to arrest the moment he leaves the embassy premises, since only diplomats accredited by Britain would enjoy diplomatic immunity there.

British authorities can continue to surround, but not enter, the Ecuadorian Embassy on a 24-hour basis to ensure that Assange cannot leave undetected. It is true that Assange could not be arrested if he somehow gets in a diplomatic vehicle. But this is assuming that he could get himself inside a diplomatic vehicle before leaving the embassy premises, which is unlikely, since the Ecuadorian Embassy in London does not appear to contain a driveway or a garage. Even if Assange somehow gets into a diplomatic vehicle, he could be arrested immediately upon leaving the vehicle. 

It has been mentioned that a helicopter could pick up Assange from the roof of the embassy and fly him straight out of Britain. This option would not work, since the British government controls the relevant airspace and could deny permission for a helicopter to perform such a function, or could force it to land and arrest Assange upon landing, since the helicopter would not have diplomatic immunity. Any attempt by Ecuador to get the helicopter diplomatic status could easily be denied by the British government.

It has also been mentioned that Assange could be transported out of Britain inside a diplomatic bag, which could come in the form of a crate or a container labeled as a diplomatic bag. Here, Article 27, Paragraph 4 of the Vienna Convention on Diplomatic Relations clearly states that “the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.”

Any attempt to transport Assange this way would be a violation of international law, thereby giving the British authorities the right to open up the bag and arrest Assange on the spot.

How about driving a diplomatic vehicle containing Assange onto a car ferry or through the tunnel exiting Britain? Authorities may open the vehicle, including the trunk, and arrest Assange at a border checkpoint, since international law does not allow the use of diplomatic vehicles to engage in human trafficking or smuggling.

Britain continues to have the upper hand on this matter and may arrest Assange without the need to violate international law. The challenge is to make sure that Assange is arrested the moment he leaves diplomatic premises, before he gets a chance to leave the country. It is just a waiting game, even though it may turn out to be a long one.

Kantathi Suphamongkhon is a former foreign minister of Thailand. He is presently a visiting professor of law and diplomacy at the University of California at Los Angeles and a senior fellow at UCLA’s Burkle Center for International Relations.

© 2012 Global Viewpoint Network/Tribune Media Services. Hosted online by The Christian Science Monitor.