How Australia can end the Assange stalemate

Australia can help Julian Assange negotiate his legal problems while remaining consistent with the norms of international law and with the level of assistance that would be offered to other Australians, writes Donald Rothwell.

 
This week Julian Assange, the Australian founder of Wikileaks, passed the second anniversary of his legal troubles arising from a Swedish issued European Arrest Warrant.

However, notwithstanding the twists and turns in his legal battles, and ultimately his success in seeking diplomatic asylum from Ecuador, Assange's situation is no closer to resolution. He remains at the Ecuadorian Embassy in London and refuses to leave because he fears being eventually extradited to the United States to face various charges associated with the publication by Wikileaks of US diplomatic cables.

To date there is nothing on the public record to suggest the US has commenced legal proceedings against Assange and his extradition to the US has not been sought. The US Ambassador to Australia, Jeffrey Bleich, has publicly stated the US is not seeking Assange's extradition.

Provided Assange remains in the Ecuadorian Embassy, he enjoys certain protections under international law. The 1961 Vienna Convention on Diplomatic Relations provides under Article 22 that diplomatic premises such as an embassy are 'inviolable'. As such, the embassy cannot be entered by the British authorities without consent.

However the UK has indicated that it does not recognise Ecuador's granting of asylum and if Assange were to leave the Embassy he is liable to arrest and extradition to Sweden.

Ecuador revealed in mid-August - as the Assange matter reached a pivotal point- that Britain had threatened to rely on its Diplomatic and Consular Premises Act and revoke the Ecuadorian Embassy's diplomatic protection so as to enter and seize Assange.

This threat was extraordinary and without modern precedence and it was unsurprising that the Ecuadorian Government responded with such fury. British Foreign Secretary William Hague has now downplayed any suggestion that the Ecuadorian Embassy will be raided, and emphasised Britain will act consistently with international law.

Nevertheless, Hague and the British government have made it clear that they have a legal obligation to Sweden to extradite Assange and that they will continue to seek his arrest for breach of his bail conditions.

The recent suggestion by Ecuador that Assange, who reportedly is suffering from a lung complaint arising from his confined living conditions, may need to leave the Embassy to seek medical treatment could create a new twist to this saga.

However, unless Ecuador negotiates some form of 'safe passage' for Assange to access medical treatment outside of the Embassy, Britain will detain Assange as soon as he steps outside the front door. This latest development does however open up the intriguing possibility that Assange's extradition to Sweden could still be refused on medical grounds and if his condition was to further deteriorate his lawyers will no doubt seek to make that claim.

Australia has been remarkably silent on some of these recent developments. Throughout the year Assange has been highly critical of what he claims has been a lack of support from the Australian government, but Foreign Minister Bob Carr insists that Assange has received more consular assistance than any other Australian in similar circumstances.

The reality is that Australia can still play a proactive, and perhaps even pivotal role, in seeking to bring about a resolution to the current stalemate.

There are a least three options open to Australia, all of which fall within the ambit of consular support for an Australian citizen and are broadly consistent with some of the initiatives the Gillard Government has taken in 2012 to support other citizens.

First, the Australian High Commission in London can continue to support Assange and provide him with consular assistance and where appropriate seek consular access to check on his welfare. Regular visits of this nature would also give to Australia some independent capacity to monitor Assange's health.

Second, Australia could seek diplomatic assurances from Stockholm that if Assange is extradited to Sweden he will be subject to due process under Swedish law, that any trial would be conducted consistently with international human rights norms, and that Australia would enjoy full consular access to Assange during this time.

These assurances would assist in ensuring that Assange was treated in the same manner as any other person under Swedish law. A possible outcome of this process is that the Swedish prosecutor may determine that Assange has no case to answer and all potential criminal charges against him are dropped.

In addition, Australia could seek an assurance from Sweden that following the completion of all Swedish legal proceedings that Assange would be deported to Australia. This would be an entirely appropriate outcome for an Australian citizen who has been subject to extradition to a foreign country.

If the Gillard government was able to obtain these diplomatic assurances, which are consistent with international law, then Assange would face his accusers in Sweden and not face the prospect of onward extradition to the United States.

This would ensure the dual aim of Assange facing justice while also ensuring his protection from any extra-legal process that could see him removed from Sweden to face an American court.

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. View his full profile here.

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