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