Will the Ecuadorian embassy be stormed?

Litigation, and not broken glass, is the more likely consequence.

Last night the foreign minister of Ecuador warned that its London embassy was facing being “stormed” by the United Kingdom government. There had even been a threat in writing, it was claimed. This was a rather dramatic announcement, and it evoked images of SAS soldiers crashing through embassy windows to capture their cornered prey.

The reality seems to be more mundane. The UK government appears to have pointed out that it has the legal power to revoke the embassy status of the premises currently being used by the Ecuadorian embassy. (See Carl Gardner’s excellent post on the applicable law.) As such, this is merely a statement of what the law says. The UK government added that it does not want to use that power and hopes for an eventual compromise. Any threat is at best implicit, but it is hardly a brutal ultimatum.

And what would happen next is even less exciting.  As the UK government will be purporting to be exercising a statutory provision – in this case a power under the Diplomatic and Consular Premises Act 1987 – then any executive action is in principle amenable to the jurisdiction of the High Court for judicial review.  Here it would be Ecuador challenging the UK government in a case that would raise complex points of domestic and international public law.

Accordingly, there will not be breaking glass in Kensington but the prospect of months (or perhaps years) of highly expensive litigation, which will probably reach the Supreme Court. In reality, Ecuador should now be more concerned about lawyers’ bills than any special forces “storming” its embassy.  

All the same, it does appear to be unwise for the UK government to even suggest that the embassy status is at risk. Whilst it is correct that a premises not actually being properly used as an embassy should not have the same legal protection as premises that are being used for such a purpose, it is difficult to see how giving refuge even to someone facing allegations of rape and sexual assault and a valid arrest warrant (and who is also in breach of bail conditions) is by itself sufficient to say the embassy is being so entirely misused that the UK government can invoke the 1987 Act.  And, as a matter of Realpolitik, what the UK government does to embassies in London can also be done to its embassies abroad. 

Of course, this is just one aspect of a mutual exercise in smoke and mirrors by the UK and Ecuadorian governments.  The claim by the Ecuadorian foreign minister may be spin to cover an eventual backing-down, or a signal of a more defiant approach. There may already be a deal between the two countries.   There may be the granting of asylum status, or not.  But there is little new of substance behind the strident assertions of the Ecuadorian foreign minister: the UK government has always had a residual power which it can exercise subject to the High Court, and the Ecuador government has presumably always known this.

International law is important: embassies should be safe and only have their status revoked in exceptional circumstances. But valid European arrest warrants are also part of international law, and they bind the UK if not Ecuador.  The UK is currently in breach of its obligation to extradite Julian Assange to Sweden, just as Assange is in breach of his bail conditions.  In seeking to facilitate the extradition of Assange, the UK government is trying to uphold the law and not break it.

And so due process continues to be evaded, and the rights of the complainants of rape and sexual assault still remain frustrated. However, complainants of rape and sexual assault have rights too.  And the longer this matter drags out, the less chance of any justice in respect of the original allegations.  That is the real scandal.

 

David Allen Green is legal correspondent of the New Statesman

Metropolitan Police Officers not storming the Ecuadorian embassy. Photograph: Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The UK must reflect on its own role in stoking tension over North Korea

World powers should follow the conciliatory approach of South Korea, not its tempestuous neighbour. 

South Korea’s president Moon Jae-in has done something which took enormous bravery. As US and North Korean leaders rattle their respective nuclear sabres at one another, Jae-in called for negotiations and a peaceful resolution, rejecting the kind of nationalist and populist response preferred by Trump and Kim Jong-un.

In making this call, Jae-in has chosen the path of most resistance. It is always much easier to call for one party in a conflict to do X or Y than to sit round a table and thrash through the issues at hand. So far the British response has sided largely with the former approach: Theresa May has called on China to clean up the mess while the foreign secretary Boris Johnson has slammed North Korea as “reckless”.

China undoubtedly has a crucial role to play in any solution to the North and South Korean conflict, and addressing the mounting tensions between Pyongyang and Washington but China cannot do it alone. And whilst North Korea’s actions throughout this crisis have indeed been reckless and hugely provocative, the fact that the US has flown nuclear capable bombers close to the North Korean border must also be condemned. We should also acknowledge and reflect on the UK’s own role in stoking the fires of tension: last year the British government sent four Typhoon fighter jets to take part in joint military exercises in the East and South China seas with Japan. On the scale of provocation, that has to rate pretty highly too.

Without being prepared to roll up our sleeves and get involved in complex multilateral negotiations there will never be an end to these international crises. No longer can the US, Britain, France, and Russia attempt to play world police, carving up nations and creating deals behind closed doors as they please. That might have worked in the Cold War era but it’s anachronistic and ineffective now. Any 21st century foreign policy has to take account of all the actors and interests involved.

Our first priority must be to defuse tension. I urge PM May to pledge that she will not send British armed forces to the region, a move that will only inflame relations. We also need to see her use her influence to press both Trump and Jong-un to stop throwing insults at one another across the Pacific Ocean, heightening tensions on both sides.

For this to happen they will both need to see that serious action - as opposed to just words - is being taken by the international community to reach a peaceful solution. Britain can play a major role in achieving this. As a member of the UN Security Council, it can use its position to push for the recommencing of the six party nuclear disarmament talks involving North and South Korea, the US, China, Russia, and Japan. We must also show moral and practical leadership by signing up to and working to enforce the new UN ban on nuclear weapons, ratified on 7 July this year and voted for by 122 nations, and that has to involve putting our own house in order by committing to the decommissioning of Trident whilst making plans now for a post-Trident defence policy. It’s impossible to argue for world peace sat on top of a pile of nuclear weapons. And we need to talk to activists in North and South Korea and the US who are trying to find a peaceful solution to the current conflict and work with them to achieve that goal.

Just as those who lived through the second half of the 20th century grew accustomed to the threat of a nuclear war between the US and Russia, so those of us living in the 21st know that a nuclear strike from the US, North Korea, Iran, or Russia can never be ruled out. If we want to move away from these cyclical crises we have to think and act differently. President Jae-in’s leadership needs to be now be followed by others in the international community. Failure to do so will leave us trapped, subject to repeating crises that leave us vulnerable to all-out nuclear war: a future that is possible and frightening in equal measure.

Caroline Lucas is the MP for Brighton Pavilion.