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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Cambridge Analytica and the digital war in Africa

Across the continent, UK expertise is being deployed online to sway elections and target dissidents.

Cambridge Analytica, the British political consultancy caught up in a huge scandal over its use of Facebook data, has boasted that they ran the successful campaigns of President Uhuru Kenyatta in the 2013 and 2017 Kenyan elections. In a secretly filmed video, Mark Turnbull, a managing director for Cambridge Analytica and sister company SCL Elections, told a Channel 4 News’ undercover investigative reporting team that his firm secretly stage-managed Kenyatta’s hotly contested campaigns.

“We have rebranded the entire party twice, written the manifesto, done research, analysis, messaging. I think we wrote all the speeches and we staged the whole thing – so just about every element of this candidate,” Turnbull said of his firm’s work for Kenyatta’s party.

Cambridge Analytica boasts of manipulating voters’ deepest fears and worries. Last year’s Kenyan election was dogged by vicious online propaganda targeting opposition leader Raila Odinga, with images and films playing on people’s concerns about everything from terrorism to spiralling disease. No-one knows who produced the material. Cambridge Analytica denies involvement with these toxic videos – a claim that is hard to square with the company’s boast that they “staged the whole thing.” 

In any event, Kenyatta came to power in 2013 and won a second and final term last August, defeating Odinga by 1.4 million votes.

The work of this British company is only the tip of the iceberg. Another company, the public relations firm, Bell Pottinger, has apologised for stirring up racial hostility in South Africa on behalf of former President Jacob Zuma’s alleged financiers – the Gupta family. Bell Pottinger has since gone out of business.

Some electoral manipulation has been home grown. During the 2016 South African municipal elections the African National Congress established its own media manipulations operation.

Called the “war room” it was the ANC’s own “black ops” centre. The operation ranged from producing fake posters, apparently on behalf of opposition parties, to establishing 200 fake social media “influencers”. The team launched a news site, The New South African, which claimed to be a “platform for new voices offering a different perspective of South Africa”. The propaganda branded opposition parties as vehicles for the rich and not caring for the poor.

While the ANC denied any involvement, the matter became public when the public relations consultant hired by the party went to court for the non-payment of her bill. Among the court papers was an agreement between the claimant and the ANC general manager, Ignatius Jacobs. According to the email, the war room “will require input from the GM [ANC general manager Jacobs] and Cde Nkadimeng [an ANC linked businessman] on a daily basis. The ANC must appoint a political champion who has access to approval, as this is one of the key objectives of the war room.”

Such home-grown digital dirty wars appear to be the exception, rather than the rule, in the rest of Africa. Most activities are run by foreign firms.

Ethiopia, which is now in a political ferment, has turned to an Israeli software company to attack opponents of the government. A Canadian research group, Citizens Lab, reported that Ethiopian dissidents in the US, UK, and other countries were targeted with emails containing sophisticated commercial spyware posing as Adobe Flash updates and PDF plugins.

Citizens Lab says it identified the spyware as a product known as “PC Surveillance System (PSS)”. This is a described as a “commercial spyware product offered by Cyberbit —  an Israel-based cyber security company— and marketed to intelligence and law enforcement agencies.”

This is not the first time Ethiopia has been accused of turning to foreign companies for its cyber-operations. According to Human Rights Watch, this is at least the third spyware vendor that Ethiopia has used to target dissidents, journalists and activists since 2013.

Much of the early surveillance work was reportedly carried out by the Chinese telecom giant, ZTE. More recently it has turned for more advanced surveillance technology from British, German and Italian companies. “Ethiopia appears to have acquired and used United Kingdom and Germany-based Gamma International’s FinFisher and Italy-based Hacking Team’s Remote Control System,” wrote Human Rights Watch in 2014.

Britain’s international development ministry – DFID – boasts that it not only supports good governance but provides funding to back it up. In 2017 the good governance programme had £20 million at its disposal, with an aim is to “help countries as they carry out political and economic reforms.” Perhaps the government should direct some of this funding to investigate just what British companies are up to in Africa, and the wider developing world.

Martin Plaut is a fellow at the Institute of Commonwealth Studies, University of London. He is the author of Understanding Eritrea and, with Paul Holden, the author of Who Rules South Africa?