Julian Assange in the Ecuadorian embassy: one year older

Britain’s only real option is to doggedly pursue arrest and extradition, however long it takes.

It’s a year since Julian Assange’s extraordinary decision to seek refuge in Ecuador’s London embassy. What should be done about him?

The government has three broad options: it can try to de-recognise Ecuador’s embassy or break off diplomatic relations and close it, so that police can enter the embassy building and arrest him; it can make some sort of deal with Julian Assange – letting him go to Ecuador or giving him some guarantee; or it can let the police continue their stubborn watch for another year or more.

I wrote last year advising ministers against withdrawing the Ecuadorian embassy’s diplomatic status – and my view hasn’t changed. True, the Diplomatic and Consular Premises Act 1987 does indeed give ministers a domestic power to withdraw recognition. Section 1(3) says

In no case is land to be regarded as a State’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the Secretary of State has given that State consent under this section in relation to it; and if—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

But as I said last year, withdrawing consent under section 1(3)(b) would be legally risky, and might not work. Julian Assange or Ecuador could well succeed in a legal challenge to the decision (on the basis that arresting one man is not the sort of purpose for which Parliament granted the power), in which case Britain would be left looking pretty silly. I doubt the government will want to hand Assange the legal initiative, or risk giving him a legal and public relations coup. And this is without even mentioning the diplomatic consequences worldwide of such a decision.

One day, Assange may become such an irritant that de-recognition becomes a risk worth taking  (actually it’d be legally safer I think to break off diplomatic relations completely and close the embassy). But I think that day’s long off.

The second option is to do some sort of deal with Assange, either unilaterally – no, I really mean bilaterally, don’t I? – or together with Sweden.

The first is surely unreal. Letting him go to Ecuador, or freeing him here with a promise not to extradite him, would breach the UK’s legal obligations to Sweden at a time when other EU member states know Britain will soon want to opt back in to the European Arrest Warrant system (assuming it formally opts out of EU justice measures as whole, as expected). Why should the Commission or other member states accept Britain’s opt-in, or any changes Britain may want to the European Arrest Warrant system, if it’s failing to fulfil its obligations anyway? Bigger things are at stake for Britain than this one case alone. A deal excluding Sweden makes no sense.

So what about an agreement involving Sweden?

There could in theory be an agreement that Assange be questioned where he is, by videolink or by Swedish prosecutors attending on him in Knightsbridge. But why should they agree to that? As I understand Swedish criminal procedure they would normally, in a rape case like this, have their suspect in custody for final questioning at a late stage in their investigation and a decision on formal accusation – after which the trial must by law begin within two weeks. Interviewing Assange other than on her own patch may disadvantage the Swedish prosecutor in ways not obvious to foreign observers – she may not be able to exercise legal powers relating to her questioning, for instance. And what guarantee would she have that following questioning he would come to Sweden for trial? Or that even if he were tried in his absence, he’d surrender himself for imprisonment, if convicted? No: it makes no sense for Sweden to agree to this. And, by the way, even if Assange agreed to serve any prison sentence in Britain – what would stop an American extradition request from here?

That leaves either an agreement involving a guarantee by Sweden that he wouldn’t be extradited onwards to the US; or a guarantee by Britain that it wouldn’t give consent to onward extradition under article 28.4 of the European Arrest Warrant Framework Decision.

Neither the British government nor, I think, Sweden’s, can agree in advance to rule out onward extradition entirely. As far as Britain is concerned, if it surrendered Assange to Sweden and was then asked for its consent to onward extradition, under section 58 of the Extradition Act 2003 the Home Secretary would need to apply a staged series of legal tests before, finally, exercising a discretion whether to consent. The government may have the final say, but it cannot lawfully make an advance decision in the abstract without sight of an actual request, without any consideration of the merits and without respecting the process laid down by Parliament – yet purporting to bind future governments – that Britain would never consent to Assange’s further extradition in any circumstances whatever.

As David Allen Green has written, the position seems, unsurprisingly, similar in Sweden in respect of onward extradition to the US. In neither country can ministers legally purport in advance to take a final, binding decision on a hypothetical request (and in Sweden’s case, before the courts had even looked at it as they’d be required to).

And by the way: the guarantee Assange would need is indeed a wide guarantee ruling out any sort of onward extradition at all. You might I suppose argue that a limited guarantee could work – say, that he won’t be extradited to the US for any offence connected with his work for Wikileaks. But if the US really is trying to get Assange “via Sweden” as is often argued (an argument I’ve never thought made sense, since onward extradition would need British consent - the result being that he’s actually somewhat more protected in Sweden than in Britain) then it can also seek him “via” any other country that doesn’t offer him a guarantee. So any agreement only makes sense for him if it rules out onward extradition anywhere.

Nor does it make sense to limit the guarantee in respect of the kind of offence for which he could be extradited. If, as is sometimes argued, the Swedish rape investigation is some sort of ruse to get him to the US, then an alternative ruse could be dreamt up – an accusation of murder, or drug trafficking, or terrorism.

No: Assange would only be safe, using his own arguments, if a complete guarantee were given against any onward extradition from either Sweden or Britain to anywhere, for anything, ever. Given that neither country knows what offences he (or any other individual for that matter) may have committed or may commit in future, and given that each country must process any future extradition request on its merits, in accordance with its own domestic laws and international obligations to other countries (including the United States) it follows that neither can give the sort of assurance Assange would need. An agreement is impossible.

What, then, are we left with? The cost of the police operation outside the Ecuadorian embassy is reportedly over three million pounds a year. But three million is a relatively trivial sum, weighed against the political cost, for Britain, of backing down.  Twenty years of this might cost a hundred million. Still, in my view, the cost of abandoning the extradition of Julian Assange would be greater. If I were William Hague, I’d mentally insure for more.

As well as damaging relations with EU countries and with the US, backing down would encourage those who have political connections in countries with hostile attitudes to Britain – like Iran, a possible future Taliban-led Afghanistan, or even Argentina – to try to defy British justice as Assange has done. And it would embolden regimes that wanted to play the same sort of political stunt that Ecuador has tried here. The attempt Parliament made, by enacting the Diplomatic and Consular Premises Act 1987, to warn rogue states off abuse of their embassies would have failed. It could lead us back the the days of the “Libyan People’s Bureau”.

Britain’s only real option is to doggedly pursue arrest and extradition, however long it takes. Time is, after all, on its side: Assange or Ecuador must tire of this eventually, and a change of regime in Quito could mean the police are welcomed in. I expect the “legal working party” talks that have been announced are, from the British point of view, simply an exercise in trying to persuade Ecuador to give up.

Assange has apparently talked about holding out for five years. The government should prepare to hold out for much longer than that. Any prison sentence Julian Assange might serve – if convicted of any offence in Sweden – is only delayed, and he only gets older, with every year that goes by. He’s just one year older now.

As for what he should do: he should surrender himself to British and Swedish justice.

Carl Gardner is a barrister, former government lawyer and author of the Head of Legal blog, where this article originally appeared. It is crossposted with his permission

Julian Assange speaking to supporters out of the window of the embassy in December 2012. Photograph: Getty Images
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It's easy to see where Berlin is being rebuilt – just hit the streets

My week, from walking the streets of Berlin to class snobbery and the right kind of gentrification.

Brick by brick, block by block, the people are rebuilding the city once called Faust’s Metropolis. To see it clearly, put your boots on. One of the most bracing walks starts by the Gethsemane Church, which served as a haven for dissenters in the last days of the GDR and takes you down ­towards the Hackescher Markt.

Here, in what is still the eastern half of a divided city that wears its division more lightly, is a Berlin experience both old and new. In three decades of frequent visits, it has been fascinating to note how much this part of town has changed. Even a decade ago these streets were rundown. With crumbling buildings showing bulletholes, it wasn’t hard to imagine what the place looked like in 1945. Now there are lilacs, blues, and yellows. Cafés, bars and restaurants abound, serving the young professionals attracted to the city by cheap rents and a renewed sense of community.

 

Breaking the fourth wall

Looking north along Schliemannstraße, you’ll find a delightful vista of well-tended balconies. It’s a pleasant place to live, notwithstanding the gaggle of grotesques who gather round the corner in the square. On Kastanienallee, which forms the second leg of the walk, an old city feels young. It’s a kind of gentrification but the right kind. There’s more to eat, to drink, to buy, for all.

Berlin, where Bertolt Brecht staged his unwatchable plays, was supposed to have been transformed by a proletarian revolution. Instead, it has been restored to health by a very middle-class one. Germany has always had a well-educated middle class, and the nation’s restoration would have impossible without such people. The irony is delicious – not that irony buttered many parsnips for “dirty Bertie”.

 

The new snobbery

The British Museum’s survey of German history “Memories of a Nation” is being presented at the Martin-Gropius-Bau as “The British View”. Germans, natürlich, are curious to see how we observe them. But how do they see us?

A German friend recently in England  said that the images that struck him most forcibly were the tins of food and cheap booze people piled up in supermarkets, and the number of teenage girls pushing prams. Perhaps Neil MacGregor, the former director of the British Museum who will shortly take up a similar role here at the new Humboldt Forum, may turn his attention to a “German View” of the United Kingdom.

There’s no shortage of material. In Schlawinchen, a bar that typifies Kreuzberg’s hobohemia, a college-educated English girl was trying to explain northern England to an American she had just met. Speaking in an ugly modern Mancunian voice that can only be acquired through years of practice (sugar pronounced as “sug-oar”), she refer­red to Durham and York as “middle class, you know, posh”, because those cities had magnificent cathedrals.

When it comes to inverted snobbery, no nation can match us. To be middle class in Germany is an indication of civic value. In modern England, it can mark you as a leper.

 

Culture vultures

The Humboldt Forum, taking shape by the banks of the Spree, reconsecrates the former site of the GDR’s Palace of the Republic. When it opens in 2018 it will be a “living exhibition”, dedicated to all the cultures of the world. Alexander von Humboldt, the naturalist and explorer, was the brother of Wilhelm, the diplomat and philosopher, whose name lives on in the nearby university.

In Potsdamerplatz there are plans to build a modern art museum, crammed in between the Neue Nationalgalerie and the Philharmonie, home to the Berlin Philharmonic. Meanwhile, the overhaul of the Deutsche Staatsoper, where Daniel Barenboim is music director for life, is likely to be completed, fingers crossed, next autumn.

Culture everywhere! Or perhaps that should be Kultur, which has a slightly different meaning in Germany. They take these things more seriously, and there is no hint of bogus populism. In London, plans for a new concert hall have been shelved. Sir Peter Hall’s words remain true: “England is a philistine country that loves the arts.”

 

European neighbours

When Germans speak of freedom, wrote A J P Taylor, a historian who seems to have fallen from favour, they mean the freedom to be German. No longer. When modern Germans speak of freedom, they observe it through the filter of the European Union.

But nation states are shaped by different forces. “We are educated to be obedient,” a Berlin friend who spent a year at an English school once told me. “You are educated to be independent.” To turn around Taylor’s dictum: when the English speak of freedom,
they mean the freedom to be English.

No matter what you may have heard, the Germans have always admired our independence of spirit. We shall, however, always see “Europe” in different ways. Europe, good: we can all agree on that. The European Union, not so good. It doesn’t mean we have to fall out, and the Germans are good friends to have.

 

Hook, line and sinker

There are fine walks to be had in the west, too. In Charlottenburg, the Kensington of Berlin, the mood is gentler, yet you can still feel the city humming. Here, there are some classic places to eat and drink – the Literaturhauscafé for breakfast and, for dinner, Marjellchen, a treasure trove of east Prussian forest delights. Anything that can be shot and put in a pot!

For a real Berlin experience, though, head at nightfall for Zwiebelfisch, the great tavern on Savignyplatz, and watch the trains glide by on the other side of Kantstraße. Hartmut Volmerhaus, a most amusing host, has been the guvnor here for more than 30 years and there are no signs that his race is run. The “Fisch” at twilight: there’s nowhere better to feel the pulse of this remarkable city. 

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage