On August 16, 2012, the Government of Ecuador made its decision to grant the petition for diplomatic asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom (“the Decision”).[1] The U.K. and Sweden challenge the legitimacy of this action, and this post will explore the issues relating to this dispute.[2]
The Decision sets forth a list of what it describes as 12 “fundamental principles of general international law” regarding asylum that purportedly support its grant of asylum. These principles are said to be derived from, and supported by, Ecuador’s own laws regarding asylum and 16 international treaties and declarations.
The Decision also states what it deems to be the relevant facts for the application along with a summary of Ecuador’s efforts to cooperate with the governments of the U.K., Sweden and the U.S. and the measures Ecuador will seek from the U.K. regarding Assange.
Let us examine these legal and factual assertions.
The Relevant Law
In its extensive legal discussion, the Decision fails even to mention what, in my opinion, is the essential first step in any such analysis: the International Court of Justice’s judgment in 1950 that diplomatic asylum was not part of general international law.
In Colombian-Peruvian Asylum Case, I.C.J. Rep. 1950, p. 266 (Nov. 20, 1950), the court concluded, “A decision to grant diplomatic asylum involves a derogation [or departure] from the sovereignty of [the territorial] . . . State [where the diplomatic premises are located]. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized [as a matter of general international law] unless its legal basis is established in each particular case.” Moreover, if the State granting diplomatic asylum had the “unilateral and definitive” authority to determine whether the offense of the asylum-seeker was a political or common crime, it would “aggravate . . . the derogation” and is “not inherent in the institution of diplomatic asylum.” (In addition, Judge Alvarez from Chile, dissenting in this case, said there also was no customary American international law of diplomatic asylum.)
Seven months later in the same case the ICJ rendered another judgment that stated, “The safety that arises out of [diplomatic] asylum cannot be construed as a protection against the laws and against the jurisdiction of legally constituted tribunals [of the host state].” (Haya de La Torre Case, I.C.J. Rep. 1951, p. 71 (June 13, 1951).)
Nor did Ecuador’s Decision refer in any way to the unsuccessful effort by Latin American countries to overrule the I.C.J. judgments by having diplomatic asylum recognized in the 1961 Vienna Convention on Diplomatic Relations or the unsuccessful U.N. effort to prepare and adopt an international, multilateral treaty on the subject of diplomatic asylum. In 1977 the U.N.’s International Law Commission concluded that there was not sufficient interest to justify any further work on the subject.
Another response to these ICJ rulings was an Inter-American Conference in Caracas, Venezuela on March 28, 1954, that adopted the text of the Inter-American Convention on Diplomatic Asylum. Today it is the only such treaty in the world, and Ecuador is one of the only 14 of the 35 states of the Organization of American States that have ratified that treaty.[3] In other words, 179 of the 193 U.N. member states have not adopted this or any similar treaty. The U.K. and Sweden, which are not in the Inter-American system, obviously are not parties to this treaty; nor is the U.S., which was eligible to sign and ratify. As a result, this treaty cannot and does not impose any legal obligations on the U.K., Sweden or the U.S.
It, therefore, is not too surprising that Ecuador’s Decision does not analyze the terms of this treaty for the current dispute although it is on the list of 16 international treaties and declarations that purportedly support the Decision.
Even more damning, the Decision does not address the clear problem facing all instances of diplomatic asylum, as pointed out in the ICJ judgment. A decision like Ecuador’s to grant asylum to someone in one of its embassies in a foreign country is at least a potential infringement upon the competence of that foreign country. Such an infringement or derogation cannot be ignored. Indeed, as discussed in a prior post, Article 41(1) of the Vienna Convention on Diplomatic Relations states that “it is the duty of all persons enjoying such [diplomatic] privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .” In addition, Article 41(3) of that Convention provides that the “premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”
Instead of focusing on these clearly relevant legal issues, Ecuador’s Decision merely lists 15 other treaties and declarations that mention asylum while not offering direct legal support for the Decision. They are the following:
- All four of the countries involved in the current dispute are parties to the Convention Relating to the Status of Refugees, which is the major general treaty on refugees and asylum and which was discussed in a prior post. But it does not apply for various reasons. Assange cannot claim he has a “well-founded fear of persecution” on certain grounds in his home country of Australia, and the treaty excludes “any person with respect to whom there are serious reasons for considering that . . . [he] has committed a serious non-political crime [here, in Sweden] outside the country of refuge prior to his admission to that country as a refugee . . . .”
- Ecuador was a state party to five of the other cited treaties that mentioned asylum, but they are not relevant to the current application or grant of asylum.[4]
- Another four treaties mention asylum, but they are from other regions of the world, and Ecuador is not, and could not be, a state party to them.[5]
- One treaty does not mention asylum at all. Instead it is a treaty on the interpretation of treaties.[6]
- The last four of the 16 cited sources are declarations, not treaties, and thus are not sources of binding international legal obligations on any state.[7]
Nor is the possibility of the U.S.’ seeking or imposing the death penalty on Assange for the crime of making public secret U.S. documents “persecution” under international law. Under Article 6 (2) of the International Covenant on Civil and Political Rights, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant . . . . This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” [8]
The U.K. and Sweden as well as other countries in Europe, however, have a different opinion regarding the propriety of the death penalty after initially permitting such in Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953. This changed in 1985, when Protocol No. 6 to this treaty went into force and provided in Article 1, “The death penalty shall be abolished. No one shall be condemned to such penalty or execution.” [9]
As a result, those 46 European states that have ratified Protocol No.6, including the U.K. and Sweden, routinely deny requests to extradite suspects to the U.S. when there are true risks of the imposition of the death penalty.
Indeed, the U.S.’ extradition treaty with the European Union, to which both the U.K. and Sweden belong, expressly provides that when an offense for which extradition is sought is punishable by death under the law of the requesting state [here theoretically, the U.S.] but not under the law in the requested state [here theoretically, the U.K. or Sweden], the requested state may grant the extradition on condition that the death penalty shall not be imposed or if imposed shall not be carried out. A similar provision is included in the recent extradition treaty between the U.S. and the U.K.
Assange, therefore, cannot have a “well-founded fear” of imposition of the death penalty even if it were regarded as “persecution,” which it is not.
Perhaps Ecuador was implicitly suggesting that the 11 of the 16 listed instruments that occurred after the previously mentioned ICJ decision of 1950 changed the general international law regarding diplomatic asylum. The Decision hints at this when it said, “The lack of international convention or internal legislation of the States cannot be legitimately claimed to limit, impinge or deny the right to asylum.” But a recent treatise on public international law asserts that this type of asylum is not part of general international law as does a recent thesis at the University of Leiden, a contemporary expert and London’s Economist. Ecuador’s veiled contrary suggestion, I submit, is patently ridiculous.
The U.K. certainly disagrees with Ecuador’s legal argument.
On August 17th (the day after the grant of asylum), the U.K.’s Foreign Secretary William Hague stated that the U.K. “was disappointed” in this decision and would not allow Assange safe passage out of the country. “The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the [U.K.] is not a party to any legal instruments which require us to recognize the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established, even for those countries which do recognize diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts.” In addition, the U.K. has “painstakingly explained the extensive human rights safeguards built into our law.”
These points were reiterated at the August 24th OAS meeting by the UK’s Permanent Observer, Philip Barton. He said the U.K. was not party to the Inter-American Convention on Diplomatic Asylum, and “there is no legal basis for the [U.K.] to meet the request of . . . Ecuador to grant safe passage for Mr. Assange out of the [U.K.].” He also said the U.K. has advised Ecuador about “the safeguards in place under the European Convention on Human Rights, international law, European Union law and [U.K.] law [that] fully address the concerns raised by Mr. Assange and by . . . Ecuador.”
Observer Barton further told the OAS meeting representatives that the purported concern about Assange’s human rights upon extradition to Sweden was “completely unfounded,” and an “argument to this effect was comprehensively rejected by the courts in the UK.” The U.K. and Swedish courts “robustly implement and adhere to the highest standards of human rights protection.”
In any event, the Decision’s legal argument, in my opinion, is not persuasive.
The Relevant Facts
The Decision starts its statement of the relevant facts with the noncontroversial: Assange is a communication professional with international awards for his struggle for freedom of expression, freedom of press and human rights, and through WikLeaks he has publicized documents from different sources. The Decision then provides more contentious, and I think unfounded, assertions.
According to Ecuador’s Decision, the U.S. and other countries that produced these documents have threatened retaliation risking Assange’s safety, integrity and even his life and have refused to provide guarantees to protect his life and safety. Extradition of Assange to a third country outside the European Union [the U.S.] is feasible without the proper guarantees for his safety and personal integrity. If extradited to the U.S., Assange would not have a fair trial; he could be judged by a special or military court; and he probably would receive cruel and demeaning treatment and be condemned to a life sentence or the death penalty.
Other than stating the U.S. is not a party to the Inter-American Convention on Diplomatic Asylum and does not recognize the concept of diplomatic asylum, the U.S. has declined to comment on the merits of the dispute and has urged trilateral negotiations by the parties to resolve the dispute. There, however, is no credible evidence for Assange and Ecuador’s impugning the independence of fairness of the U.S. federal judicial system, and any risk of capital punishment in the U.S. would be eliminated by the European practice and law forbidding extradition to other countries where there is a risk of such punishment.
Any accusation against the independence and honesty of the U.K. courts is absurd. Indeed, Assange in 2011-2012 challenged his extradition to Sweden on the merits in the U.K. courts (magistrate’s court, High Court and Supreme Court) without any objection to the procedural rights he was accorded.
Ecuador’s Decision also has harsh allegations against the Swedish prosecutor’s office with respect to its ongoing investigation of Assange on criminal sexual charges. That office allegedly has prevented Assange from the total exercise of his legitimate right to defense to criminal charges. His procedural rights allegedly have been infringed during that investigation. Pretrial detention of Assange in Sweden would facilitate his extradition to a third country, i.e., the U.S.
Sweden has strongly rejected these charges. It did so at meetings with Ecuador’s Ambassador in Stockholm shortly after June 19th (when Assange arrived at the Ecuadorian Embassy in London) and on August 16th. This rebuttal, in part, emphasized that in the last months of 2010 Assange challenged the European Arrest Warrant on the merits in Swedish courts (district court, court of appeal and Supreme Court) without any objection to the procedural protections of Swedish law.
In addition, after Assange was in temporary “residence” at the Ecuadorian Embassy, Sweden rejected his offer to be interrogated at that Embassy with respect to the Swedish investigation. Sweden did so because it wanted to confront Assange in Sweden with the existing evidence and conduct supplementary interviews of others depending upon what Assange had to say. The Swedish prosecutors also wanted him in their country to assure his presence at any criminal trial that might result from the investigation, as required by their law.
At the OAS meeting on August 24th, a Swedish diplomat stressed that Sweden had an independent judiciary that needed to proceed with investigation of Assange’s alleged sexual offenses. There had been no request to Sweden for extradition to a third country, she added, but European and Swedish law prohibits extradition when there is a risk of capital punishment.
The Decision also says the governments of the U.K., Sweden and the U.S. will “not respect the international conventions and treaties and would give priority to internal laws of secondary hierarchy, contravening explicit norms of universal application.” It is difficult to understand exactly what Ecuador means by this allegation. If it means that the U.K., Sweden and the U.S. do not agree with Ecuador’s legal argument, then that is certainly correct.
In summary, there is no credible evidence to support the extreme accusations against the judicial systems of the U.K., Sweden and the U.S.
Conclusion
Ecuador’s granting of asylum to Assange, in my opinion, is wrong on the law and wrong on the facts. Indeed, there is speculation in the press that the real reason for President Correa’s deciding to grant “asylum” in this case was to enhance his own political standing in his own country for next year’s presidential election.
Other than litigating these issues before the International Court of Justice or arbitrating or mediating them before a neutral third party, the only other peaceful way to resolve this dispute is for the parties to do so through diplomatic negotiations, as recommended by the OAS on August 24th.
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[1] According to the Decision, Assange’s written asylum application was submitted on June 19th with a June 25th written supplement, but neither of these documents is publicly available. This secrecy seems more than ironic for the self-proclaimed advocate for public transparency and disclosure. It also is ironic for Ecuadorian President Correa, who is known for his hostility to the press, to be the defender and protector of Assange.
[2] A prior post set forth the background for this dispute, and another post discussed the issue of the inviolability of the Ecuadorian Embassy in London.
[3] The other 13 parties to the Inter-American Convention on Diplomatic Asylum are Argentina, Brazil, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.
[4] U.N. Charter, Art. 1(3) (one of U.N. purposes is achieving “universal cooperation in . . . promoting and encouraging respect for human rights”); American Convention on Human Rights, Art. 22.7 (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”); Inter-American Convention for Extradition (no extradition when “the person sought has been tried or sentenced or is to be tried before an extraordinary or ad hoc tribunal of the requesting State” (Art. 4.3) or when “the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons” (Art. 4.4) or when “persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons” (Art. 4.5): and Convention may not “be interpreted as a limitation on the right of asylum when its exercise is appropriate” (Art. 6)); Inter-American Convention on Territorial Asylum, (“Every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable” (Art. I); this includes persons who “are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offenses” (Art. II); no “obligation to surrender to another State, or to expel from its own territory, persons persecuted for political reasons or offenses” (Art. III); no extradition of persons “sought for political offenses, or for common offenses committed for political ends, or when extradition is solicited for predominantly political motives” (Art. IV)); Geneva Convention [IV] Relative to Protection of Civilian Persons in Time of War, Art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”).
[5] African Charter on Human and Peoples’ Rights, Art. 12.3 (“Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions”); European Union Charter of Fundamental Rights, Art. 46 (“Every citizen of the [European] Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as t he nationals of that Member State”); European Convention on the Suppression of Terrorism, Art. 5 (“no obligation to extradite if the requested State has substantial grounds for believing that the request for extradition . . . has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”); European Extradition Treaty, Art. 3.1 (“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence”).
[6] Vienna Convention on the Law of Treaties, Art. 53 (“treaty is void if . . . it conflicts with a peremptory norm of general international law . . . . [i.e.,] a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”), Art. 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”), Art. 66(b) (A party to a “dispute concerning the application or the interpretation of article 53 or 64 may . . .submit it to the International Court of Justice for a decision”).
[7] Universal Declaration of Human Rights, Art. 14 (“Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the [U.N.]”);U.N. Declaration on Territorial Asylum (recommends territorial asylum practices include asylum for “persons struggling against colonialism” (Art. 1.1) , non-rejection of persons at the frontier and non-explusion to state where person may be subjected to persecution (Art. 3.1)); American Declaration of the Rights and Duties of Man, Art. 27 (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”); Cartegena Declaration (at 1984 meeting to discuss protection of refugees in Central America, Mexico & Panama, reiteration of “importance of non-refoulement (including the prohibition of rejection at the frontier)”).
[8] In addition, Article 1 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that “torture” “does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.”
[9] It should be noted that Protocol No. 6 had an exception that allowed the death penalty in times of war, but in 1988, Protocol No. 13 to the European Human Rights Convention eliminated this exception. Both the U.K. and Sweden have ratified Protocol No. 13.
Comment: Developments in Dispute between Ecuador and U.K. and Sweden
Foreign Minister Patino’s August 24th speech at the OAS meeting is now available online: http://www.mmrree.gob.ec/2011/discurso_oea_0812eng.asp.
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On Sunday, August 26th, the U.K. Foreign Office publicly stated, “We remain committed to the process of dialogue we have entered into and we want that to resume with the government of Ecuador.”
There also was confirmation that last Thursday (August 23rd), the U.K. sent Ecuador a formal communication confirming that the embassy was safe, copies of which were provided to the delegates to the August 24th OAS meeting.
Reuters, Britain Wants to Restart Assange Talks With Ecuador, N.Y. Times (Aug. 26, 2012), http://www.nytimes.com/reuters/2012/08/26/world/europe/26reuters-wikileaks-assange.html?scp=3&sq=ecuador&st=nyt&pagewanted=print.
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On August 29th at his Quito office Ecuador’s Foreign Minister, Ricardo Patino, said, “I’m convinced we’ll find a way out … I’m hopeful because the global mood that the Julian Assange case is generating will help us to find a way out.” Patino added, “It’s possible that Great Britain could seek to move forward with the guarantees [not to extradite Assange to the U.S.], because they have repeatedly said that they don’t want to provide the safe-passage (so Assange could leave the embassy and fly to Ecuador).”
The same day, Ecuador’s Vice President Lenin Moreno was in London and met with U.K. Foreign Minister William Hague. They discussed the opening of the Paralympics in the city and the Assange case. Afterwards the U.K. Foreign Office said the two officials “confirmed the UK and Ecuador’s commitment to dialogue to find a diplomatic solution to the matter.” Later Patino welcomed this exchange while emphasizing that the Vice President was not responsible for the negotiations.
Later the same day in Quito Ecuadorian President Rafael Correa was interviewed on a state-run television program. He said that if Assange were to be extradited to the US, “there would be no guarantee of due process” and that Ecuador wanted “to insure a fair trial and the right to life for Mr Assange, but there are clear and serious indications of political persecution.”
Correa concluded by saying there were three ways to resolve the diplomatic impasse with the U.K.: (a) either the U.K. or Sweden could guarantee that Assange would not be sent to a third country; (b) Swedish prosecutors could question him in the Ecuadoran embassy; or (c) U.K. authorities could allow him to leave without arresting him.
Reuters, Ecuador Upbeat About Deal to End Assange Standoff, N.Y. Times (Aug. 29, 2012), http://www.nytimes.com/reuters/2012/08/29/world/europe/29reuters-wikileaks-assange-ecuador.html?scp=1&sq=assange&st=nyt; U.K. Foreign & Commonwealth Office, Foreign Secretary meets Vice-President Moreno of Ecuador, (Aug. 29, 2012), http://www.fco.gov.uk/en/news/latest-news/?view=News&id=804738882; Miranda, Ecuador’s President demands Sweden and Britain guarantee not to extradite Julian Assange, Herald Sun (Aug. 30, 2012), http://www.heraldsun.com.au/news/world/william-hague-meets-ecuadorian-vice-president-over-julian-assange-impasse/story-fnd134gw-1226461301478.=
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On August 29th the Ecuadorian Ministry of Foreign Affairs released an open letter from 270 prominent people supporting the grant of asylum to Assange. The letter stated:
• “Freedom of information has had one of its biggest defenders in Julian Assange, today persecuted for showing the world the real and deep bottoms of the international relations. Unveiling the true face of the power games has lead Assange to the imputation of absurd charges, at the same time unleashing the dynamic of a surprising violation of the international law and the international codes of behavior with the threat of Great Britain of intervening on Ecuadorian territory (Embassy, official cars, etc) to keep Assange’s right to asylum from consummating.”
Ecuador’s Ministry of Foreign Affairs, Press Release: Intellectuals and world personalities make public their support to the sovereign decision of asylum to Julian Assange (Aug. 29, 2012), http://www.mmrree.gob.ec/eng/2012/bol0983.asp.
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On August 30th Ecuadorian television broadcast an interview of Assange that was recorded earlier in the week in the London Embassy. Assange said, “I think the situation will be solved through diplomacy … The Swedish government could drop the case. I think this is the most likely scenario. Maybe after a thorough investigation of what happened they could drop the case.” He added, “I think this will be solved in between six and 12 months; that’s what I estimate.”
Reuters, WikiLeaks’ Assange Sees Up to a Year in Ecuador Embassy, N.Y. Times (Aug. 31, 2012), http://www.nytimes.com/reuters/2012/08/31/world/europe/31reuters-wikileaks-assange.html?scp=1&sq=ecuador&st=nyt; Press Ass’n, Julian Assange: I could stay in Ecuadorean embassy for a year, Guardian (Aug. 31, 2012) (includes link to video of interview), http://www.guardian.co.uk/media/2012/aug/31/julian-assange-ecuadorean-embassy-year.
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On August 30th UK Foreign Secretary, William Hague said, “Given Ecuador’s position on what they call diplomatic asylum and our very clear legal position, such a solution is not in sight at the moment.”
Assoc. Press, UK: No Solution in Sight to Assange Standoff, N.Y. Times (Aug. 30, 2012), http://www.nytimes.com/aponline/2012/08/30/world/europe/ap-wikileaks-assange.html?scp=2&sq=ecuador&st=nyt.
Comment: Developments in Dispute between Ecuador and U.K. and Sweden # 2 [Sept. 4, 2012]
This post in footnote 1 remarked that Ecuadorian President Rafael Correa was well known for his hostility to the press.
This was confirmed with the news that the U.S. had determined that an Ecuadorian journalist was a “refugee” because of his well-founded fear of persecution in his home country on account of his political opinion. The U.S., therefore, granted him asylum under the Convention Regarding the Status of Refugees and the U.S. Refugee Act of 1980.
The journalist is Emilio Palacio, a columnist at el Universo, one of Ecuador’s leading newspapers. Last year an Ecuadorian court sentenced him and three owners of the newspaper to prison and ordered them to pay $40 million in damages. The reason? He wrote an opinion article entitled “No to Lies,” which referred to Correa as “the Dictator” and criticized his actions in an Ecuadorian police strike in 2010.
Reuters, US grants asylum to Ecuadorean journalist, Guardian (Aug. 31, 2012), http://www.guardian.co.uk/world/2012/aug/31/us-grants-asylum-ecuadorean-journalist?INTCMP=SRCH
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On September 2nd the U.K. Foreign Minister, William Hague, released a written statement to members of Parliament regarding the Assange matter. Although it did not contain much new information, it did put the events since June 19th into a broader context. Extensive excerpts from the statement are quoted below.
After Assange entered the Ecuadorian Embassy in London on June 19th, the Foreign Office initiated “a formal, regular, dialogue with the Government of Ecuador,” including “seven formal discussions as well as many other conversations and written exchanges, in order to seek an acceptable resolution to this situation.”
In these discussions the U.K. noted that “the rights of diplomatic missions conferred by the 1961 Vienna Convention on Diplomatic Relations come with responsibilities. Article 41 of the Vienna Convention sets out the obligations of diplomatic missions to respect the laws and regulations of the receiving State – in this case the United Kingdom. These include the duty not to impede the due legal process of that State.”
The Foreign Office also advised Ecuador that the U.K. recognizes that “Ecuador and a number of countries in Latin America are party to the Caracas Convention on Diplomatic Asylum of 1954, and that that Convention provides the right, between its state parties, to grant diplomatic asylum in certain circumstances.” The U.K., however, “is not party to that Convention and there is no legal basis for the [U.K.] to meet the request of . . . Ecuador to grant safe passage for Mr Assange out of the [U.K.].”
In these discussions, Ecuador has “sought guarantees regarding the possible onward extradition of Mr Assange to a third country, and has pointed to concerns about possible human rights implications if [he] were to be extradited from the [U.K.]. In response, the Foreign Office has “been clear that the safeguards in place under the European Convention on Human Rights, international law, European Union law and [U.K.] law fully address the concerns raised by Mr Assange and by . . . Ecuador.”
The Foreign Office statement also said “the suggestion that there would be a risk of a breach of Mr Assange’s human rights on extradition to Sweden is completely unfounded. [This] argument . . . was comprehensively rejected by the [U.K.] courts . . . . Both the [U.K.] and Sweden are signatories to the European Convention on Human Rights and the British government has complete confidence in the independence and fairness of the Swedish judicial system. . . . The [U.K.] and Sweden robustly implement and adhere to the highest standards of human rights protection.”
“The suggestion that Mr Assange’s human rights would be put at risk by the possibility of onward extradition from Sweden to a third country is also without foundation. Not only would Sweden – as a signatory to the European Convention on Human Rights – be required to refuse extradition in circumstances which would breach his human rights, but the authorities in Sweden would also be legally obliged to seek the [U.K.’s] consent before any extradition to a non-EU member state could proceed. Our consent may only be given in accordance with the international conventions by which the UK is bound, including the European Convention on Human Rights, and also our domestic law. In practice, this means that the [U.K.] could only consent to Mr Assange’s onward extradition from Sweden to a third country if satisfied that extradition would be compatible with his human rights, and that there was no prospect of a death sentence being imposed or carried out.”
As “part of these exchanges, on 15 August the British Embassy in Quito shared with the Government of Ecuador an informal note, or aide memoire, to set out key points of our position and ensure that the Ecuadorean authorities had a complete understanding of the full legal context. Ecuador reacted to this communication claiming that a reference to the UK’s Diplomatic and Consular Premises Act 1987 constituted a threat to its Embassy in London. I have been consistently clear that we are not threatening the Embassy of Ecuador and that we are absolutely committed to the principles of the 1961 Vienna Convention on Diplomatic Relations and always act in accordance with it.”
“We wish to continue our dialogue with the Government of Ecuador. We believe that our two countries should be able to find a diplomatic solution. We have invited the Government of Ecuador to resume, as early as possible, the discussions we have held on this matter to date. I confirmed that in a meeting with Ecuador’s Vice President Moreno on 29 August in London, during his visit to the Paralympics.”
“We continue also to discuss the matter with the Swedish authorities, which retain an interest in the completion of Mr Assange’s extradition proceedings.”
U.K. Foreign & Commonwealth Office, Press Release: Extradition Proceedings Against Julian Assange (Sept. 3, 2012), http://www.fco.gov.uk/en/news/latest-news/?view=PressS&id=806149882; Watt, UK tells Ecuador Assange can’t be extradited if he faces death penalty, Guardian (Sept. 3, 2012),
http://www.guardian.co.uk/media/2012/sep/03/ecuador-julian-assange-extradited-death-penalty.
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Comment: Developments in Dispute between Ecuador and U.K. and Sweden # 3
On September 5th, Baltasar Garzon, who is the Spanish lawyer coordinating Julian Assange’s legal defense against extradition to Sweden, said he will ask U.S. authorities whether his client is under investigation and, if so, on what possible charges.
In my opinion, there is no legal basis for such a request, and the U.S. Department of Justice probably will say it cannot comment. Indeed, Garzon himself said,. “I can tell you that they won’t reply. If they do, terrific – we want to show that the US is hiding what is happening to Julian Assange.”
Garzon also said that if Assange could be given guarantees that he would not be extradited to the U.S. once in Sweden, then he would be prepared to answer to possible charges of rape and sexual abuse by the Swedish legal system.
In my opinion, there will be no such guaranties from Sweden or the U.K. The most that they can say already has been said. For example, on September 2nd, William Hague, the U.K.’s Foreign Secretary said:
• “The suggestion that Mr Assange’s human rights would be put at risk by the possibility of onward extradition from Sweden to a third country is also without foundation. Not only would Sweden – as a signatory to the European Convention on Human Rights – be required to refuse extradition in circumstances which would breach his human rights, but the authorities in Sweden would also be legally obliged to seek the [U.K.’s] consent before any extradition to a non-EU member state could proceed. Our consent may only be given in accordance with the international conventions by which the UK is bound, including the European Convention on Human Rights, and also our domestic law. In practice, this means that the [U.K.] could only consent to Mr Assange’s onward extradition from Sweden to a third country if satisfied that extradition would be compatible with his human rights, and that there was no prospect of a death sentence being imposed or carried out.”
Garzon as a Spanish judge is best known for indicting former Chilean General and President, Augusto Pinochet, in 1998, and trying to put him on trial in Madrid for crimes against humanity. I have written posts about Garzon’s participating in other human rights cases under the principle of universal jurisdiction and about the three Spanish criminal cases that were brought against him. Just enter “Garzon” in the search box on the right-side of this blog to find those posts.
Assoc. Press, Lawyer to Ask if US Probing WikiLeaks Founder, N.Y. Times (Sept. 5, 2012), http://www.nytimes.com/aponline/2012/09/05/world/europe/ap-wikileaks-assange.html?scp=1&sq=ecuador&st=nyt&pagewanted=print; Morris, Garzon: Assange is hoping for a solution to allow questioning in Sweden, Guardian (Sept. 5, 2012), http://www.guardian.co.uk/law/2012/sep/05/garzon-julian-assange-solution-sweden?INTCMP=SRCH
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On September 4th a magistrate court in London confirmed that in July the court had decided that the £200,000 deposited in court before Assange was bailed in December 2010 had been forfeited. The deposit is believed to have been provided by Jemima Khan, film directors Ken Loach and Michael Moore, millionaire publisher Felix Dennis and others. The court said if they wanted their money back, they should persuade Assange to surrender to the U.K. police.
In late October the court will hold another hearing to determine if nine other individuals will be ordered to pay the court a total of £140,000, pursuant to their written promises to pay the balance of the bail for Assange.
Malik, Julian Assange backers could lose £340,000 in bail money, Guardian (Sept. 4, 2012),
http://www.guardian.co.uk/media/2012/sep/04/julian-assange-backers-lose-bail/print.
Comment: U.K. Foreign Secretary’s Statement about Assange Matter # 308D–9/21/12
On September 18, 2012, William Hague, U.K.’s Foreign and Commonwealth Secretary, appeared before the House of Commons’ Foreign Affairs Select Committee to discuss current issues.
With respect to the ongoing U.K. dispute with Ecuador over Julian Assange, Hague defended the Government’s aide memoir that was provided to the Ecuadorian Ambassador in August. He said, “We wanted the Government of Ecuador to know before they made a decision about granting what they call under the 1954 Caracas Agreement, . . . Diplomatic Asylum, a concept that we don’t recognise, that if they did so that would not be a position that would find much favour [sic] in law in the [U.K.].And so the aide memoire set out the legal position but also our wish to arrive at . . . an agreed solution. . . .”
“It was not a threat as I made very clear at the time and have since made clear. I met the Vice President of Ecuador on the 29th of August when he came for the Paralympics that, that this does not imply a threat. The United Kingdom of course is a strong upholder of international law, of the Vienna Convention [on Diplomatic Relations]. The relevant Acts of Parliament that we’ve passed in this country include commitment to international law but we have our own legal responsibilities, our own extradition laws, and we will fulfil [sic]those responsibilities. So we wanted to make all of that clear and we continue to make that clear.”
Hague also commented on the current status of the U.K.-Ecuador discussions about Assange. “Given . . . the different legal interpretations there’s no solution in sight at the moment but we will continue to be available to talk to Ecuadorians about it.”
He added, “We remain at an impasse with Ecuador but I had an amicable meeting with the Vice President of Ecuador. The concerns of Ecuador seem to centre around what might happen through extradition to a third country and I have set out to him, as I’ve set out in public on previous occasions as well, all the responsibilities that the United Kingdom and Sweden have under the European Convention on Human Rights. If Ecuador’s fear is that he would be extradited to a third country and face the death penalty well actually the, our Home Secretary would have to be asked for permission for such extradition from Sweden to another country and would not be able to agree to extradition if the death penalty was in prospect. So I think there are some unnecessary fears and we’ve tried to set minds at rest in the Government of Ecuador, clearly will have to continue to try to do that.”
U.K. Foreign and Commonwealth Secretary William Hague’s Testimony to Parliament’s Foreign Affairs Select Committee (Aug.18, 2012), http://www.fco.gov.uk/resources/en/pdf/news/2012/september/fac-transcript.pdf.
Comment: Ecuador Considers Suggesting Assange Be Interrogated in Sweden #308D–9/24/12
On September 21st, Ecuador’s Minister of Foreign Affairs, Ricardo Patino, told reporters that Ecuador was considering ways to end the impasse with the U.K. and Sweden over Ecuador’s grant of diplomatic asylum to Julian Assange.
• One way would be obtaining the U.K.’s consent to having Assange transferred from the Ecuadorian Embassy in London to its embassy in Stockholm for interrogation by the Swedish prosecutors.
• The other way would be obtaining the agreement of the other two governments to have Assange interrogated at the Swedish Embassy in London.
The U.K. had no immediate comment on this trial balloon.. However, the foreign ministers of the three countries are expected to meet this week at the meeting of the U.N. General Assembly in New York City. Perhaps they will discuss these and other ideas for resolving the impasse.
Schipani & Kuchler, Ecuador offers to send Assange to Sweden, Financial Times(Sept. 22, 2012), http://www.ft.com/cms/s/0/ec97e5ae-04a9-11e2-b64f-00144feab7de.html#axzz27NllUS5e; VOA News, Ecuador Weighs Sending WikiLeaks’ Assange to Sweden, CHOSUNLIBRO (Sept. 24, 2012), http://english.chosun.com/site/data/html_dir/2012/09/24/2012092400448.html.
Comment: Assange Developments in New York City and London # 308F—9/28/12
On September 25th at the U.N. in New York City British Foreign Secretary William Hague said that the U.N. was dealing with “much bigger issues” than Assange’s fate, but acknowledged there was no current prospect of a resolution to the case in discussions with Ecuador. “We agreed that we would continue to talk, and we will continue to talk about this issue with the government of Ecuador. But I see no sign of any break through,” Hague told reporters at the U.N.
On September 26th WikiLeaks founder Julian Assange via a videolink addressed a meeting the U.N. called by Ecuador. He said, “It is time for the United States to cease its persecution of WikiLeaks, to cease its persecution of our people and to cease its persecution of our alleged sources.” He added, “It is time for President Obama to do the right thing and join the forces of change — not in fine words, but in fine deeds.”
In response to President Obama’s address at the U.N. on Tuesday, Assange said that it was “audacious” for the US government, “to take credit for the last two years of progress”, given past American support for the ousted Arab dictators. He said Mohammed Bouazizi, a Tunisian street peddler whose suicide from despair over his life in January last year sparked the revolt, “did not set himself on fire so that Barack Obama could get re-elected.”
Assange added that it was “disrepect to the dead to claim that the United States supported the forces of change.” Instead, Assange claimed that it was the leak of classified US diplomatic cables to Wikileaks by an US soldier in military intelligence, Bradley Manning, that “went on to help trigger the Arab spring.”
Referring to Obama’s UN defense of the freedom of expression, Assange pointed to the treatment of Manning in US prison, where he was held in isolation, stripped and left naked for hours in his cell, and to the denunciation of Wikileaks by American leaders.
At the meeting Ecuadorian Foreign Minister Ricardo Patino said the U.K. says it defends human rights, But “would it be human to try to keep Mr Assange in the embassy for months or years . . . without right to his life or his privacy.”
Patino also referred to a mimeographed copy of an 1880 agreement between Britain and Ecuador, which he said prohibits extradition in cases such as Assange’s. He said he would show the document to Hague on Thursday.
On September 27th at the U.N. British Foreign Secretary William Hague met with Ecuadorian Foreign Minister Ricardo Patino to discuss the Assange case. Afterwards they had polite words about continuing to seek a diplomatic solution, but no breakthroughs were announced.
Earlier (on September 13th) WikLeaks released a tweet that said, “By the US accepting the UK siege on the Ecuadorian embassy in London it gave tacit approval for attacks on embassies around the world.” This drew immediate criticism, and WikiLeaks revised it to say, “By the US accepting the UK threat to storm the Ecuadorian embassy in London it helped to normalize attacks on embassies.” Another WikiLeaks tweet said, “By the UK threatening to breach the Ecuadorian embassy in London it helped to normalize attacks on embassies, in general. It must retract.”
I think Assange doth protest too much. He is a fugitive from justice in Sweden on criminal sexual allegations and in the U.K. for violating the terms of his bail. He wants to change the subject. Do not let him do so.
Assoc. Press, WikiLeaks’ Assange to Address UN on Asylum Bid, N.Y. Times (Sept. 26, 2012),
http://www.nytimes.com/aponline/2012/09/25/world/europe/ap-un-un-general-assembly-assange.html?scp=2&sq=ecuador&st=nyt&pagewanted=print; Fantz, Assange speaks from via satellite from London, calls for end to ‘persecution’, CNN (Sept. 26, 2012, http://www.cnn.com/2012/09/26/world/assange-un-address/index.html?hpt=hp_t3 Borger, Julian Assange: Obama is exploiting Arab Spring for political gain, Guardian (Sept. 27, 2012), http://www.guardian.co.uk/world/2012/sep/27/julian-assange-obama-arab-spring; Silverman, Wikileaks: US gave its ‘tacit approval’ for attacks on embassies by supporting UK, Telegraph (Sept. 27, 2012), http://www.telegraph.co.uk/news/worldnews/wikileaks/9540770/Wikileaks-US-gave-its-tacit-approval-for-attacks-on-embassies-by-supporting-UK.html; Reuters, Assange Mocks Obama via Video at U.N. Event, N.Y. Times (Sept. 26, 2012), http://www.nytimes.com/reuters/2012/09/26/us/26reuters-un-assembly-assange-ecuador.html?scp=2&sq=ecuador&st=nyt; Reuters, Britain’s Hague Meets Ecuador’s Top Diplomat in U.S. on Assange, N.Y. Times (Sept. 27, 2012), http://www.nytimes.com/reuters/2012/09/27/technology/27reuters-un-assembly-britain-assange.html?scp=1&sq=ecuador&st=nyt; Press Ass’n, Julian Assange: Hague says Britain is obliged to extradite WikiLeaks founder, Guardian (Sept. 27, 2012), http://www.guardian.co.uk/media/2012/sep/27/assange-hague-ecuador-extradition-legal?INTCMP=SRCH.
Comment: Assange Developments # 308G—10/9/12
At the September 27th meeting at the U.N. between U.K. Foreign Secretary William Hague and Ecuadorian Foreign Minister Ricardo Patino, the latter raised a new issue: whether the U.K. would allow Assange to leave the Ecuadorian Embassy to go to a hospital in a hypothetical medical emergency and return to the Embassy without arresting him. Hague said he would investigate and respond. Afterwards Patino said that the Ecuadorian government might have to set up a medical operating theatre in the Embassy and that Australia (Assange’s home country) had offered to assist with any necessary medical care.
On October 3rd, a U.K. court held a hearing on whether the guarantors of the bail for Assange had to pay their pledges now. They said they were not responsible for Assange’s leaving the site of his release and secretly entering the Ecuadorian Embassy in London. The amount in dispute is 140,000 pounds ($225,000).
On October 8th, that court ordered the guarantors to pay the amount by November 6th. The court said that while they had acted in good faith, they had failed in their “basic duty” to ensure that Assange surrendered.
Borger, Ecuador will care for Julian Assange in embassy if WikiLeaks founder falls ill, Guardian (Sept. 28, 2012), http://www.guardian.co.uk/media/2012/sep/28/ecuador-julian-assange-embassy-wikileaks;
Reuters, Guarantors Ask London Court to Halt Assange Bail Payout, N.Y. Times (Oct. 3, 2012), http://www.nytimes.com/reuters/2012/10/03/world/europe/03reuters-assange-bail.html?scp=3&sq=ecuador&st=nyt&pagewanted=print; Assoc. Press, Britain: Assange’s Supporters Ordered to Pay, N.Y. Times (Oct. 8, 2012), http://www.nytimes.com/2012/10/09/world/europe/britain-assanges-supporters-ordered-to-pay.html?ref=world.
Comment: Assange To Stay in Ecuadorian Embassy # 308H—–10/25/12
On October 25th Julian Assange from the Ecuadorian Embassy in London told CNN that he would remain there until the U.S. ceases to investigate him. He said, “”I think we need the U.S. government to drop its investigation … It’s an immoral investigation. It breaches the First Amendment. It breaches all the principles that the United States government says that it stands for and it absolutely breaches the principles that the U.S. founding fathers stood for and which most of the U.S. people believe in.”
Four months in the Embassy, he said, was like “living in a space station,” but it beats prison.
The day before an Ecuadorian diplomat said that his country was concerned about Assange’s health and had asked the U.K. for a guarantee of his safe passage from the Embassy to and from a hospital if that became necessary. The U.K. Foreign Office said they would consider such a request if he becomes ill.
Reuters, Ecuador concerned for health of Assange, Guardian (Oct. 24, 2012), http://www.guardian.co.uk/media/2012/oct/24/ecuador-health-julian-assange?INTCMP=SRCH; Schubert, Embassy life like ‘a space station,’ Assange says, CNN (Oct. 25, 2012), http://www.cnn.com/2012/10/25/world/europe/wikileaks-assange/index.html?hpt=hp_t1; Reuters, Assange Says to Stay in Embassy Until U.S. Backs Off: CNN , N.Y. Times (Oct. 25, 2012), http://www.nytimes.com/reuters/2012/10/25/world/europe/25reuters-wikileaks-assange.html?hp&pagewanted=print
Comment: Assange’s Attorneys Ask U.S. Attorney General for Information
On October 11, 2012, Julian Assange’s attorneys, Baltasar Garzón and the Center for Constitutional Rights sent a letter to U.S. Attorney General Eric Holder seeking information about the status of any criminal investigations of Julian Assange or WikiLeaks by the Department of Justice.
The letter requested information about whether a grand jury empaneled in the Eastern District of Virginia is considering charges against Assange or other WikiLeaks officials under the Espionage Act of 1917 for publishing diplomatic cables and other documents exposing U.S. hypocrisy and criminality. The letter also asks if the U.S. government is considering detaining Mr. Assange under the National Defense Authorization Act provisions which purportedly authorize indefinite military detention of individuals accused of providing “substantial support” to suspected terrorist organizations.
In my opinion, the Attorney General will not provide a substantive response to the request on the ground that any ongoing grand jury investigation of Assange or WikiLeaks is confidential.
Center for Constitutional Rights, Press Release: CCR, Garzón Demand Information From DOJ Regarding Status of Criminal Investigation of Julian Assange and Wikileaks in the U.S. (Oct. 11, 2012), http://ccrjustice.org/newsroom/press-releases/ccr%2C-garz%C3%B3n-demand-information-attorney-general-holder-regarding-status-of-criminal-investigation-of.