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ASSANGE AND INTERNATIONAL LAW August 22, 2012

Posted by wmmbb in Democracy, Duckspeak, Human Rights.
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In an editorial The Washington Post suggests  economic trade sanctions should be imposed on Ecuador for providing political asylum for Julian Assange.

The editorial writer/s describe Assange as a “self-styled victim” and “computer hacker”. The editorial continues:

Mr. Assange claims that extradition to Sweden will result in his being turned over to the United States, which, because of its embarrassment over the secret diplomatic cables and military logs WikiLeaks made public, might subject him to the death penalty. At a news conference of sorts on Sunday, in which Mr. Assange was careful not to stick too far out from the Ecuadoran Embassy’s balcony, he went so far as to call on the United States to end its “witch hunt” against his organization.

Rafael Correa, Ecuador’s outspokenly anti-American president, has stoked fantasies like these, having welcomed Mr. Assange to the so-called “club of the persecuted.” In January, he welcomed Iranian President Mahmoud Ahmadinejad in Quito. But he’s also certainly aware that the United States has neither charged the WikiLeaks founder with any crime nor demanded his extradition. Why then offer asylum?

Mr. Correa — who has cracked down on press freedoms in his own country — has begun to show signs of establishing the same sort of autocracy that Hugo Chavez has brought to Venezuela. He may imagine that protecting Mr. Assange will give a much-needed boost to his international reputation. But it also could have disastrous economic consequences for his country. As we’ve said before, the United States that Mr. Correa so despises allows Ecuador to export many goods duty-free, supports roughly 400,000 jobs in a country of 14 million people and accounts for one-third of Ecuador’s foreign sales. Congress could easily decide to diminish that privileged commercial access early next year.

Is Mr. Assange really worth the risk?

While it is true that Congress could easily decide to end trade with Ecuador, there would be repercussions and implications of an international kind. It is the same with the British stated threat, or perhaps intention, of violating the territorial integrity of the Embassy in London. In that instance there are implications for international inviolability of foreign embassies in all countries, which I suspect means it will not happen and should not have been suggested. There was a suggestion that taking action against a country for providing political asylum was contrary to international law. The United States can orchestrate sanctions against Iran, so who knows what claim of international might have, as distinct from, should have in these matters. The fact that Iraq that is a principle in breaking these sanctions, is nothing but ironic – an observation with some relevance to Assange’s ne0con critics.

Apparently the Swedish Justice Minister has said that Assange would not be extradited to a country in which he would face the death penalty. Meanwhile, Annonymous has successfully attacked several British Government sites as reported by RT:

Then there is the issue of political asylum and diplomatic asylum, and what the difference might be. Aside from the question raised by the so-called risk (threat) to Ecuador, there is a question as to whether countries are obliged in international law to honour  political asylum (?) granted by Ecuador, which the UK has shown it has no intention to do. Like The Washington Post they are holding the implicit view that might is right, however short-sighted and damaging to international order and justice that might be. This position does not surprise anybody. However much Assange may be scapegoated, he remains a human being and an Australian citizen.

ELSEWHERE:

  • Al Jazeera’s Inside Story, What next for Julian Assange? presents a different interpretation of events. NeoConservative writer, Douglas Murray contends that Assange and his supporters “have a mindset which is almost messianic in its delusional belief that it can override almost every single norm of international law”.
  • Former Opposition Leader, John Hewson, notices the resolution to the problem is relatively straightforward if the Australian Government would play a constructive role.
  • The Assange side of the story with respect to questioning by the Swedish prosecutor  is given in two instalments at WL: Central: Sweden’s reinterpretation of MLA law, and Common misconceptions of the Assange Case.
  • The legal correspondent at the New Statesman, David Green, contends that Assange must go to Sweden, not  solely to be interviewed, but so he can be arrested due to the substantial evidence available to the prosecutor against him, and thereby for the legal process to be commenced.  Jaraparilla.com suggest some rebuttals to each of these contentions. The critical point concerns the failure to interview Assange, providing the basis for the asylum case, while putting the complainants in a unacceptable situation and delaying justice. If, as has been suggested, others who have faced more serious charges and crimes have been interviewed overseas, given the original prosecutor rejected the claims the Prosecutors Office gave permission to leave Sweden, why not in this instance?
  • Naomi Wolf identifies eight problems with the case against Assange, but these may be standard practice in Sweden. Nonetheless, regardless of the legal tradition there has be a concept invoked similar to the principle of natural justice, or due process. The case cannot be considered, I believe, independent of the  larger context in which it occurs to appreciate relevant issues, such as the timing of events.
  • Legal rebuttal of lawyer David Allen Green.

CODA:

David Green in the New Statesman explains that Assange is wanted for arrest not just questioning. He argues he cannot be charged unless he is arrested, despite the fact that people are charged and then arrested all the time, but perhaps not in Sweden. One should note that Assange has been questioned and has provided blood samples.

David Green writes:

It is not for any person accused of rape and sexual assault to dictate the terms on which he is investigated, whether it be Assange or otherwise. The question is whether the Swedish investigators can now, at this stage of the process, arrest Assange.

Here the best guide is the High Court judgment. In paragraph 140, the Court sets out the prosecutor’s position, and this should be read in full be anyone following this case:

140. Mr Assange contended prior to the hearing before the Senior District Judge that the warrant had been issued for the purpose of questioning Mr Assange rather than prosecuting him and that he was not accused of an offence. In response to that contention, shortly before that hearing, Mrs Ny provided a signed statement dated 11 February 2011 on behalf of the Prosecutor:

“6. A domestic warrant for [Julian Assange’s] arrest was upheld [on] 24 November 2010 by the Court of Appeal, Sweden. An arrest warrant was issued on the basis that Julian Assange is accused with probable cause of the offences outlined on the EAW.

“7. According to Swedish law, a formal decision to indict may not be taken at the stage that the criminal process is currently at. Julian Assange’s case is currently at the stage of “preliminary investigation”. It will only be concluded when Julian Assange is surrendered to Sweden and has been interrogated.

“8. The purpose of a preliminary investigation is to investigate the crime, provide underlying material on which to base a decision concerning prosecution and prepare the case so that all evidence can be presented at trial. Once a decision to indict has been made, an indictment is filed with the court. In the case of a person in pre-trial detention, the trial must commence within 2 weeks. Once started, the trial may not be adjourned. It can, therefore be seen that the formal decision to indict is made at an advanced stage of the criminal proceedings. There is no easy analogy to be drawn with the English criminal procedure. I issued the EAW because I was satisfied that there was substantial and probable cause to accuse Julian Assange of the offences.

“9. It is submitted on Julian Assange’s behalf that it would be possible for me to interview him by way of Mutual Legal Assistance. This is not an appropriate course in Assange’s case. The preliminary investigation is at an advanced stage and I consider that is necessary to interrogate Assange, in person, regarding the evidence in respect of the serious allegations made against him.

“10. Once the interrogation is complete it may be that further questions need to be put to witnesses or the forensic scientists. Subject to any matters said by him, which undermine my present view that he should be indicted, an indictment will be lodged with the court thereafter. It can therefore be seen that Assange is sought for the purpose of conducting criminal proceedings and that he is not sought merely to assist with our enquiries.”
And in paragraph 160 of the same judgment, the High Court explains why such a requirement is not “disproportionate” as submitted by Assange’s lawyers:

160. We would add that although some criticism was made of Ms Ny in this case, it is difficult to say, irrespective of the decision of the Court of Appeal of Svea, that her failure to take up the offer of a video link for questioning was so unreasonable as to make it disproportionate to seek Mr Assange’s surrender, given all the other matters raised by Mr Assange in the course of the proceedings before the Senior District Judge.

The Prosecutor must be entitled to seek to apply the provisions of Swedish law to the procedure once it has been determined that Mr Assange is an accused and is required for the purposes of prosecution.

Under the law of Sweden the final stage occurs shortly before trial. Those procedural provisions must be respected by us given the mutual recognition and confidence required by the Framework Decision; to do otherwise would be to undermine the effectiveness of the principles on which the Framework Decision is based. In any event, we were far from persuaded that other procedures suggested on behalf of Mr Assange would have proved practicable or would not have been the subject of lengthy dispute.

The assumption is that accusation and charging are one and the same when issued by a public prosecutor, and doing one without doing the other is a denial of natural justice. If David Green is incorrect here, the question remains moot a two-sided inquiry, which presumably is a requirement of Swedish Law, has not been conducted.

I notice that Assange is referred to as a journalist in the decision of the Supreme Court.

Ricardo Patino set out the reasons for granting Assange “political” asylum. Ecuador accepts that Assange has a basis for fearing political persecution and that asylum is a fundamental human right recognized in the constitution of Ecuador and by the United Nations. The foreign minister observed:

Assange’s lawyers invited Swedish authorities to take Assange statements in the premises of the Embassy of Ecuador in London. Ecuador officially conveyed to Swedish authorities its willingness to host this interview without interference or impediment to the legal processes followed in Sweden. This measure is absolutely legally possible. Sweden did not accept.
On the other hand, Ecuador raised the possibility that the Swedish government establish guarantees to not subsequently extradite Assange to the United States. Again, the Swedish government rejected any compromise in this regard.

Furthermore:

The Government of Ecuador is certain that the British Government knows how to assess the justice and righteousness of the Ecuadorian position, and consistent with these arguments, it is confident that the UK will offer safe passage guarantees necessary and relevant to the asylum, so that their governments can honor with action the fidelity owed to law and international institutions that both nations have helped shape along their common history.

So given the situation, it is somewhat extraordinary, at first sight, to have major newspaper, such as The Washington Post, resort to slanted language and threats. The major facts surrounding the case reasonably clear. The evidence of Sophia Wilen is critical to the Swedish prosecutor’s case. Sweden refuses to interview Assange for what are claimed to be hard and fast, no exception, procedural reasons, and refused to provide any guarantee with respect to extradition in relation to other matters to a third country, where is expected that Assange would face torture, and possibly death. Ecuador has provided political asylum on the basis of international and national human rights covenants.

Assange should be given free passage out of Britain. The Herald Sun reports:

Speaking through an interpreter on the sidelines of the International Council of Archives Congress in Brisbane, Mr Garzon said the United Kingdom is bound by international law to offer his client safe passage to asylum.

The UK could be ordered into negotiations with Ecuador if the ICJ finds in favour of an application.

The lawyer said they would request many provisional measures be taken by the UK, on humanitarian grounds, to guarantee Mr Assange’s safety.

Mr Garzon would not elaborate on what they might be.

“Mr Assange does not refuse to being tried in Sweden,” he said.

Ecuador has requested guarantees from Sweden, before and after it granted asylum, that Mr Assange not be handed over to the US in relation to Wikileaks’ activities.

“When that guarantee comes there won’t be any issues – that’s very simple, we don’t need any further explanation or elaboration.”

By this account, the critical issue is not the legal process in Sweden.

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