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Swedish Court Denies Julian Assange’s Appeal To Quash Detention Order

On November 20, 2014, a Swedish appellate court denied Julian Assange’s application to quash the lower court’s four-year-old order for his detention for questioning about allegations of sexual misconduct with two women in Sweden in 2010.[1]

Assange had argued that the order could not be enforced because he has been and still is in Ecuador’s embassy in London, U.K. under a grant of diplomatic asylum and that the order was restricting his civil rights.

The Swedish court, however, was not persuaded. It said, “In making this assessment, account must be taken of the fact that Julian Assange is suspected of crimes of a relatively serious nature.” Moreover, “there is a great risk that he will flee and thereby evade legal proceedings if the detention order is set aside. In the view of the court of appeal, these circumstances mean that the reasons for detention still outweigh the intrusion or other detriment entailed by the detention order.” In short, the court could not “set aside the detention solely because Julian Assange is in an embassy and the detention order cannot be enforced at present for that reason.”

On the other hand, the court noted that Sweden’s investigation into Assange had come to a halt and that the prosecutors’ failure to examine alternative avenues of investigation “is not in line with their obligation – in the interests of everyone concerned – to move the preliminary investigation forward.”

An alternative avenue of investigation previously had been proposed by Assange: interview him at the Ecuadorian Embassy in London. Last month in the House of Commons the U.K. Foreign Minister, Hugo Swire, said, “These are matters for the [Swedish] prosecutor to decide on, but if she wished to travel here to question Mr Assange in the embassy in London, we would do absolutely everything to facilitate that. Indeed, we would actively welcome it.”

Assange’s attorney said the decision would be appealed to Sweden’s Supreme Court. A more likely outcome, in this blogger’s opinion, would be the Swedish prosecutor’s interrogating Assange at the Embassy in London and then determining whether criminal charges would be brought against him.

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[1] This post is based upon Crouch, Julian Assange: Swedish court rejects appeal to lift arrest warrant, Guardian (Nov. 20. 20, 2014); Dickson, Swedish appeal court upholds Assange detention order, Reuters (Nov. 20, 2014); Cowell, Swedish Court Rejects Appeal by Julian Assange, N. Y. Times (Nov. 20, 2014), ; This blog has a number of posts about Assange’s grant of diplomatic asylum by Ecuador and the legal skirmishes over whether, when and where he would be interrogated by the Swedish prosecutor.

Additional Reactions to Ezekiel Emmanuel’s Desire To Die at 75

A prior post discussed Ezekiel Emanuel’s article “Why I Want To Die at 75” and my reaching the opposite conclusion. Many other reactions to the article have been registered in the online version of The Atlantic Magazine, where the article first appeared; in Minnesota Public Radio’s “Friday Roundtable” program; and in various other places. Here are four of those additional reactions that deserve attention. They are from Ruth Marcus, Harold Pollack, Victor Davis Hanson and John O. McGinnis.

Reactions to Emanuel’s Essay

Ruth Marcus, a Washington Post columnist and a friend of Emmanuel, says his essay arrives during Rosh Hashanah when “Jews [like Marcus and Emmanuel] begin a period of repentance during which, we are told, God decides who shall live and who shall die. One of the Torah portions read during this time reminds us that Sarah gave birth at age 90, an event so unlikely she named her son Isaac, derived from the Hebrew “to laugh.”

Marcus also recalls “the traditional Jewish birthday greeting . . . [of wishing] that the celebrant live 120 years — the lifespan of Moses” while the Torah relates that, while Moses’s years were advanced, his eyes remained undimmed and his vigor unabated.” In addition, Sarah’s having a baby at age 90 reminds us that “we cannot know what surprises, and joys, our later years may hold.”

Marcus agrees with my criticism of Emmanuel’s finding creativity as the sole or deciding criterion on determining when he wants to die. She says, “there is no sin in slowing down. There is satisfaction in completing the crossword. You don’t always have to bike past the roses on your way up the mountain. In high gear.”

Another critic of Emmanuel is Harold Pollack, the Helen Ross Professor at the School of Social Service Administration and co-director of the Crime Lab at the University of Chicago and a nonresident fellow of the Century Foundation. He says his “experiences over the past few years have left me optimistic about what the future holds. Much of my most satisfying research and journalism entails talking to interesting people and relating their stories, applying historical knowledge and interpersonal skills, mentoring others on a team. I hope to do these things well for a long time.”

His father, now 85, has survived various medical problems, but Pollack’s helping to care for him with his sister serendipitously enabled them to recall and share the many ways their father had helped them over the years. Recently Pollack visited his father (and now grandfather) with his wife and daughters, and Pollack treasures the conversations and activities his daughters were able to have with their grandfather.

Pollack adds, “My life, my children’s lives, are tangibly better because our elders avail themselves of valuable, sometimes-costly medical care well past the threshold of 75.” Pollock’s father may not be as creative in some ways that he was when he was younger, but “creativity comes in many domains and forms. He’s finding new ways to be joyful and useful, to cast warm light rather than sad shadows on surrounding lives.”

Victor Davis Hanson reminds us that our present lives would be poorer had we taken away history’s 75-year-olds with these six examples:

The great Athenian playwright Sophocles (who wrote until his death in his 90s) would never have crafted some of Greece’s greatest tragedies.
The Founding Fathers would not have had the sober wisdom of Benjamin Franklin in his later years.
The late Jacques Barzun, the greatest contemporary student of Western values and history, published his masterpiece, “From Dawn to Decadence,” when he was 93.
Henry Kissinger, at 91, just published a magnum opus, “World Order.”
“Some of the most gripping volumes about World War II would never been written by a supposedly too old Winston Churchill.”
Had Ronald Reagan refused medical care and hoped to die at 75, the world would never have heard at Berlin, “Tear down this wall, Mr. Gorbachev.”

Moreover, Hanson says, if Emanuel’s point is that living beyond 75 is unwise given the odds that society will reap less achievement per unit of resources invested, then that frightening anti-humanist argument can be extended to almost any category.

For example, should we do away with health care for those with chronic debilitating diseases on the theory that society inordinately gives them too much time and capital and gets very little in return?

Similarly Emanuel’s argument could be used to eliminate life sentences for convicted criminals and instead increase use of the death penalty because they would be unlikely to produce anything significant behind bars. So too we could just as easily choose not to treat severely wounded veterans, given that they are unlikely to return to the battlefield.

John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University, asserts, “Youth and good health do not measure humanity. Millions in diminished health enjoy life, being with their relatives, laughing at old movies, even just sitting in the breeze and sunshine. And their relatives and friends enjoy being with them. Indeed, they may find in the elderly’s struggle with aging an inspiration and a reaffirmation of life. In caring for the frail, weak and sometimes woebegone, they may also expand their own sympathies and express some small measure of gratitude for the debt of a good upbringing that can never be fully repaid.”

Other Thoughts

Perhaps Emmanuel’s desire to die at 75 grows out of his advocacy for physicians having an ethical obligation to work for the greater good of society in addition to the obligation to meet the patient’s needs. According to a Wall Street Journal article, Dr. Emanuel and others have presented a “complete lives system” for the allocation of very scarce resources, such as kidneys, vaccines, dialysis machines, intensive care beds, and others. “The appropriate maximizing strategy for Emanuel involves saving the most individual lives,. . . . Other things being equal, we should always save five lives rather than one.” Although Emmanuel says the focus for medical care cannot be only on the worth of the individual, such care for individuals who are irreversibly prevented from being or becoming participating citizens like those with dementia, he has argued, should not be guaranteed.

Underlying this focus on any individual’s desire to die or to seek to prolong life are important public policy questions regarding what health care costs should be covered by the government or by private insurance, especially for those near death. A recent report by the federally funded Institute of Medicine—“Dying in America”—observed that the current system’s financial incentives reward harmful transitions among homes, hospitals and nursing homes and make it difficult for someone to be released to his or her home in order to die there and that fundamental changes to the system need to be made. This problem was made personal in a New York Times article about the inability of a frail 91-year old man aided by his loving adult daughter to get released from a nursing home to go to his own home to die in peace.

These policy issues, in my opinion, should challenge our current laws about voting. In the U.S. it is common knowledge that older citizens, who are increasing in numbers, tend to vote in higher percentages than younger voters. As a result there are legitimate concerns about this leading to inadequate resources for children and young adults. One response is to lower the age for voting. Scotland’s allowing citizens 16 or older to vote in their recent referendum has raised the issue of whether the U.K. and the U.S. should do likewise. I am in favor of such a change although I do not think it goes far enough. In my opinion, all citizens from birth or from a very early age (say one year old), should be permitted to vote. Such a system would require careful thought and development of procedures for such younger citizens to vote. But each citizen, regardless of age, has an interest in what happens in our society, and there needs to be a counterweight to voting by senior citizens like myself.

An assumption of many, and perhaps Emmanuel, is an aging population like ours is a net drag on the economy. A Washington Post article, however, calls our attention to a report by a group of international researchers who assert that an aging population for an industrialized democracy might be an advantage. First, an aging population could lead to productivity gains throughout the economy due to expected increases in workers’ educational levels. Second, leisure time will increase which might lead to increased tinkering and innovation. Third, older people consume less and thus reduce their contributions to carbon emissions. Fourth, longer lives should mean postponing intergenerational wealth transfers and thereby increasing financial benefits to grandchildren. Wow, these assertions need pondering.

U.S. State Department’s Report on International Religious Freedom in 2013

On July 28, 2014, the U.S. State Department released its annual report on religious freedom around the world.[1]

Secretary of State Kerry’s Comments

Announcing the release of the report, U.S. Secretary of State John Kerry said although the U.S. was “obviously far from perfect,” it was important for the U.S. to treasure freedom of religion as “a universal value. . . . The freedom to profess and practice one’s faith is the birthright of every human being . . . [and] are properly recognized under international law. The promotion of international religious freedom is a priority for President Obama and it is a priority for me as Secretary of State.” In short, “religious freedom remains an integral part of our global diplomatic engagement.”

Executive Summary of the Report

The world had the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map.” In conflict zones (Syria, Central African Republic and Burma), this mass displacement has become a pernicious norm.

All around the world, individuals were subjected to discrimination, violence and abuse, perpetrated and sanctioned violence for simply exercising their faith, identifying with a certain religion, or choosing not to believe in a higher deity at all. Countries where this was a significant problem were Pakistan, Egypt, Saudi Arabia, Iran, Bangladesh, Sri Lanka and Eritrea. Throughout Europe, the historical stain of anti-Semitism continued to be a fact of life.

Governments repressed religious freedom. Governments from all regions subjected members of religious groups to repressive policies, discriminatory laws, disenfranchisement, and discriminatory application of laws. These governmental actions not only infringed on freedom of religion themselves, but they also often created a permissive environment for broader human rights abuses. Restrictive policies included laws criminalizing religious activities and expression, prohibitions on conversion or proselytizing, blasphemy laws, and stringent registration requirements or discriminatory application of registration requirements for religious organizations. This was especially true in North Korea, Saudi Arabia, Iran, Sudan, China, Cuba, Tajikistan, Turkmenistan, Uzbekistan, Pakistan, Burma, Russia and Bahrain.

Governments engaged in discrimination, impunity and displacement of religious minorities. When governments choose not to combat discrimination on the basis of religion and intolerance, it breeds an environment in which intolerant and violent groups are emboldened, even to the point of physically attacking individuals on the basis of their religious beliefs. Governments in these countries failed to protect vulnerable communities and many religious minority communities were disproportionately affected, resulting in a large number of refugees and internally displaced persons. This was especially true in Syria, Sri Lanka, Egypt, Iraq, Bangladesh, Indonesia, India and Nigeria. Rising anti-Semitism and anti-Muslim sentiment in the following countries of Europe demonstrated that intolerance is not limited to countries in active conflict:Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and United Kingdom.

Religious minority communities were disproportionately affected by violence, discrimination and harassment. In many regions of the world, religious intolerance was linked to civil and economic strife and resulted in mass migration of members of religious minority communities throughout the year. In some of these areas, the outward migration of certain communities has the potential to permanently change the demographics of entire regions.

“Countries of Particular Concern”

Pursuant to the International Religious Freedom Act of 1998, the Secretary of State designated the following countries as “Countries of Particular Concern” (CPC): Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. Such countries “engage in or tolerate particularly severe violations of religious freedom” or “systematic, ongoing, and egregious violations of religious freedom, including torture, cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention of persons, or other flagrant denial of the right to life, liberty, or the security of persons based on religion.”

Turkmenistan, which is new to this State Department list, is the only one of eight countries recommended for such designation by the latest report from the U.S. Commission on International Religious Freedom. The others so recommended by the Commission are Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam.

Ambassador-at-large for International Religious Freedom

Simultaneously with this report’s release, the Obama administration announced the nomination of Rabbi David Saperstein as the next ambassador-at-large for international religious freedom. Rabbi Saperstein, a reform rabbi and lawyer known for his work in Washington to advance religious freedom, would be the first non-Christian to lead the State Department’s Office of International Religious Freedom, if confirmed by the Senate.

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[1] This post is based upon the International Religious Freedom Report for 2013 (July 28, 2014); Secretary Kerry, Remarks at Rollout of the 2013 Report on International Religious Freedom (July 28, 2014); Assistant Secretary Malinowski, Remarks on the Release of the 2013 Report on International Religious Freedom (July 28, 2014); Department of State, Fact Sheet: 2013 Report on International Religious Freedom (July 28, 2014). Earlier posts covered the international law regarding religious freedom and the State Department’s reports on the subject for 2011 and 2012.

What is Wrong with the White House’s Plan for Democracy in Cuba?

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[This is a re-posting of a blog post by Zuleika Rivera, an Intern at the Latin American Working Group (April 08, 2014), http://lawg.org/action-center/lawg-blog.]

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ZunZuneo or the “Cuban Twitter” continues to dominate headlines as details regarding U.S. Agency of International Development’s (USAID) failure to inspire a “Cuban Spring” through a “discreetly” funded social networking platform remain unclear. The Associated Press (AP) first broke the story on April 3, 2014 outlining the parameters of the USAID and Creative Associates International program to develop a bare-bones “Cuban Twitter,” using cell phone text messaging to evade Cuba’s strict control of information and its restrictions of the internet. The idea behind the development of the social media platform, according to AP, was to create a credible news source for Cubans on the island. ZunZuneo drew more than 40,000 followers and gathered data (such as location, cell phone numbers) on its users which was hoped to be used for political purposes. According to the AP, the social network managers hoped to use this information to trigger “smart mobs” that would protest the current Cuban government and generate a “Cuban Spring,” head nodding to the “Arab Spring,” a series of protests and uprisings that swept through a handful of Arab countries from 2010-2013.

How did the United States successfully keep ZunZuneo a secret for so long? USAID used shell companies and foreign banks in the Cayman Islands, United Kingdom, Spain and Costa Rica in order to conduct its programs. USAID contracted with Washington Software Inc who was given $3.2 million to text subscribers of TV and Radio Marti. They were required to send 24,000 messages a week and no fewer than 1,800 an hour. They were also required to create an account and give full access to the Authorized Representative for the contracting officer, the government’s technical experts who are responsible for developing and managing the technical parts of a contract. USAID subcontractor, Creative Associates, received $6.5 million to carry out work in Cuba and later another received $11 million from USAID. The U.S. Broadcasting Board of Governors gave to Mobile Accord $60,000, and USAID also gave Mobile Accord $1.69 million to help run ZunZuneo. Similarly, the New America Foundation was given $4.3 million in 2012 under the Open Technology Institute; their role in the program, if any, remains unclear.

Soon after its creation in 2010, ZunZuneo gathered a lot of followers; and when famous Colombian-born singer Juanes hosted his “Peace Concert” in Cuba’s revolutionary plaza, the ZunZuneo took the opportunity to begin collecting data on Cubans. They polled all of their users on their general thoughts on the concert line-up; and as Cubans innocently answered, ZunZuneo gathered their data. In 2010 when ZunZuneo was at its height, they asked a Denver-based mobile company to join in (Mobile Accord). In their article, the Associated Press mentions a Mobile Accord memo that indicates that they were fully aware of their involvement, stating, “There will be absolutely no mention of the United States government involvement. If it is discovered that the platform is, or ever war, backed by the United States government, not only do we risk the channel being shut down by Cubacel [Cuba’s cell phone provider], but we risk the credibility of the platform as a source of reliable information, education, and empowerment in the eyes of the Cuban people.”

At this point Creative Associates had moved all corporations abroad and had made sure there was no money trail leading back to the United States. By 2011 Creative Associates was thinking of expanding their program and had agreed that the management team should not find out the United States government was involved. At this time they asked Mobile Accord to become independent from the United States government; but that became increasingly more difficult to do, as revenue from text messages was not enough. Finally, in September 2012 the program had to be cut, and it disappeared mysteriously from the Cuban landscape.

The White House has said that the program was not covert because they had disclosed the program to Congress and the program was intended to foster the free flow of information amongst Cubans on the island. Congress denies ever knowing about the program. The legality of this program is also in question since according to U.S. law any covert action by a federal agency must have presidential authority and Congress should also be notified. USAID has said that it is a “congressionally mandated and congressionally supported effort” and that it was reviewed by the Government Accountability Office (GAO). But the GAO report does not list any programs by name or any specifics about what programs were being carried out. It only says that USAID is conducting programs with “greater focus on information technology to support independent bloggers and developing social network platforms.”

Similar to the White House, USAID said this was a discreet, not covert program. USAID came out with its own statement claiming that much of what was reported is false. While ZunZuneo doesn’t portray the full scope of the Obama Administration’s plan towards democracy promotion in Cuba, it is certainly the ugly side of it.

ZunZuneo proved it had little success in promoting freedom of expression on the island to support a more open civil society through a covert, or “discreet” program; and when compared to the White House’s policy to facilitate cross-cultural communication through people-to-people exchanges, ZunZuneo’s success diminishes to zero. In 2011 President Obama took a big step towards “promoting democracy” in Cuba by easing restrictions on travel for U.S. citizens to Cuba. While Cuba remains a sovereign state with its own political system, the legacy of U.S. policy towards Cuba doesn’t recognize this. The Obama Administration has taken steps to engage Cuba in a different way but still under the guise of “democracy promotion.” The President has liberalized travel regulations for purposeful travel as a way to empower and engage civil society in Cuba and in the United States. Its success was immediate: in 2011 73,500 U.S. citizens traveled legally to Cuba, and in 2012 that number increased to more than 98,000. Since the easing of restrictions, the Office of Foreign Assets Control (OFAC) has issued more than 250 people-to-people licenses, nine charter companies have been set up and there are more than 20 active travel service providers. People-to-people travel has led to authentic interactions between Cubans and U.S. citizens, which has deconstructed the Cold War image of Cuba as the enemy and presented a more accurate Cuban reality. Current regulations have allowed researchers and students to travel to Cuba, to study Cuba “on the ground,” and come back to the United States ready to share their experiences of a different Cuba, a Cuba that is changing.

People-to-people travel has created a new class of ambassadors: citizen ambassadors that in their exchanges on the island promote the core values of democracy. The exchange of ideas between real people via a different brand of “democracy promotion,” program, such as people-to-people travel, is what will inform Cubans about “democracy,” not spam social messaging. The Obama Administration should focus on initiatives such as un-restricted travel to Cuba for all U.S. citizens, and high level dialogue with the Cuban government to talk about a variety of issues of common interest. These tactics will not only save money from unknowing taxpayers, but educate about U.S. ideals and realities by real people who are not trying to destroy Cuba, in a much clearer, less secret, non-covert manner. Rather than staining USAID’s reputation around the world, and smearing the Obama Administration as cold war re-enactors, the time is long overdue to sever our ties with difficult-to-clarify, “discreet” democracy promotion programs.

ZunZuneo proved to be a failure; the 53-year-old economic embargo on Cuba, another failure, and the list could go on. Cuba is not our enemy, rather our neighbor; and we should begin to treat them as such. Behind closed doors, judgments can be passed; but in the world arena, we should be “keeping up with the Joneses”—the 188 countries that annually vote in the UN General Assembly to end the embargo—and begin on the path toward a respectful, normal relationship with Cuba.

The Importance of Protecting Foreign Diplomats and Diplomatic Missions

People who are the full-time representatives of their home countries in foreign countries fulfill important responsibilities. They represent the policies and interests of their own governments and peoples to the governments and peoples of the foreign countries. They gather information about the policies and interests of the foreign governments and peoples and report that information to the diplomats’ own governments. They also make recommendations on policies to their own governments. They do all of this on foreign soil without the protections of their own governments.[1]

International Law Regarding Protection of Foreign Diplomats and Missions

All states need such diplomatic presences in other countries and hence have a common interest in having their diplomats and diplomatic premises protected by the foreign governments. Indeed, as preamble to the Vienna Convention on Diplomatic Relations state, having a treaty setting forth such protections “contribute[s] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems” and hence to “the maintenance of international peace and security” under the U.N. Charter.

These common interests have existed for a long time and were the motivation for the well established international practice and custom of providing special protection and immunity from criminal jurisdiction for ambassadors. By the time of the Congress of Westphalia in 1648, permanent legations were accepted as the normal way of conducting international business among sovereign States, and over the next century detailed rules emerged in relation to the immunity of ambassadors and their accompanying families and staff from civil as well as criminal proceedings, the inviolability of their embassy premises and their exemption from customs duties and from taxes. These rules of customary international law were described in detail by early writers such as Grotius (1625), Bynkershoek (1721) and Vattel (1758).

The first international treaty or other instrument codifying any aspect of diplomatic law was the Regulation adopted by the Congress of Vienna in 1815. Codification among States of immunities and privileges of diplomatic agents did not begin until the Havana Convention of 1928 drawn up among the States of the Pan-American Union and the Draft Convention drawn up in 1932 by the Harvard Research in International Law.

After the establishment of the United Nations in 1945, efforts to develop a comprehensive multilateral treaty on diplomatic relations began. The initial draft of such a treaty was produced in 1957, and its 1958 revision was the basis for the U.N. Conference on Diplomatic Intercourse and Immunities in Vienna, Austria in March and April of 1961. On April 18, 1961, this Conference concluded with the signing of the Convention on Diplomatic Relations, which entered into force on April 24, 1964, after 22 states had ratified the treaty.

Now 187 of the 193 members of the U.N. are parties to this treaty. Its success may be ascribed first to the fact that the central rules regulating diplomatic relations had been stable for over 200 years. An embassy’s basic functions of representing the sending State and protecting its interests and those of its nationals, negotiation with the receiving State, observing and reporting on conditions and developments there remained and still remain unaltered. In addition, because the establishment of diplomatic relations and of permanent missions takes place by mutual consent, every State is both a sending and receiving State. Its own representatives abroad are in a sense hostages who may on a basis of reciprocity suffer if it violates the rules of diplomatic immunity, or may be penalized even for minor restrictions regarding privileges or protocol.

Article 22(2) of the Vienna Convention states, “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” In addition, Article 29 provides, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Recent Breaches of International Law Regarding Protection of Diplomats and Diplomatic Missions

The recent horrific attacks on U.S. diplomatic posts throughout the world, especially the attack on the U.S. Consulate in Benghazi, Libya and the murder of U.S. Ambassador J. Christopher (“Chris”) Stevens and three other U.S. citizens, are stark examples of the dangers facing all diplomats throughout history.

These attacks also represent breaches by many states of their important international legal obligation “to take all appropriate steps to protect the premises of the mission” and “to prevent any attack on [“the head of the mission or a member of the diplomatic staff of the mission”‘s ] . . . person, freedom or dignity.”

Ecuador’s Specious Allegation of the U.K.’s Breach of These Legal Obligations

These deplorable breaches also, in my opinion, show the utter speciousness of Ecuador’s complaint about the alleged failure of the United Kingdom to honor its important obligation with respect to the Ecuadorian Embassy in London after Ecuador had granted temporary lodgings, and subsequent diplomatic asylum, to Julian Assange.

Dispassionate analysis of the U.K.’s alleged written threat to invade the Embassy shows this not to be the case, as discussed in a prior post.

In addition, there were British police outside the Ecuadorian Embassy, but they were there to protect the Embassy and to arrest Assange if he tried to leave the Embassy. After all Assange had violated the terms of his bail by a British court by leaving a specific place west of London and surreptitiously entering the Embassy in order to avoid being arrested pursuant to a European Arrest Warrant to be sent to Sweden for investigations for his alleged criminal sexual conduct. In short, Assange was a fugitive from justice. Moreover, British police or other authorities never came close to entering the Ecuadorian Embassy. And no Ecuadorian diplomatic personnel were injured or even threatened.

By the way, negotiations between Ecuador and the U.K. to resolve their disputes over Assange apparently are deadlocked.

[1] The many duties of diplomatic personnel and the dangers they face were well stated on Minnesota Public Radio’s “The Daily Circuit” by Ronald E. Neuman, President of the American Academy of Diplomacy and a former U.S. Ambassador to Afghanistan, Algeria, and Bahrain.

Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: Background

Assange@Embassy2 — Assange @ Ecuadorian Embassy

EcuadorianEmbassy — Ecuadorian Embassy, London

On August 16, 2012, the Government of Ecuador granted the petition for asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom.[1]

Assange, of course, is the individual behind WikiLeaks, the international, online, self-described not-for-profit organization publishing submissions of private, secret, and classified media from anonymous news sources, news leaks and whistleblowers. In 2010 it obtained many secret U.S. documents and released them to the world through various media outlets.[2] No U.S. criminal charges have been publicly filed against Assange with respect to the releases of these U.S. government documents, but he fears that such charges secretly have been filed or will be filed and that such charges may seek life imprisonment or the death penalty.[3]

In August 2010 Assange was visiting Sweden, where he allegedly had certain sexual encounters with two Swedish women, who subsequently filed some kind of complaint about these encounters with Swedish authorities. As a result, these authorities have been investigating whether Assange committed rape or some other kind of sexual assault on these women. To pursue that investigation the authorities obtained an European Arrest Warrant to extradite Assange to Sweden for questioning.

In December 2010 Assange, then in Britain, learned about the European Arrest Warrant and voluntarily went to a British police station to advise them of his whereabouts. He immediately was arrested and taken into custody. After a short stay in prison, Assange was freed on bail of £340,000 (nearly $540,000), of which £ 200,000 was deposited with the court, plus his being confined to a specific site in Norfolk, England, fitted with an electronic tag and ordered to report to police daily.

Assange then went to the U.K. courts to challenge his extradition to Sweden. In February 2011, however, a U.K. court upheld the Swedish request, which was affirmed nine months later (November) by the U.K.’s High Court and in May 2012 by the U.K.’s Supreme Court (5 to 2). In addition, that Supreme Court on June 14th denied Assange’s request for a rehearing and ordered that he be extradited to Sweden by July 7th.

Thereafter (on June 19th) Assange somehow violated the terms of his bail and managed secretly to enter the Ecuadorian Embassy in London, where he filed his claim for asylum.

In the roughly two months between June 19th and Ecuador’s August 16th’s granting of asylum, the governments of Ecuador and the U.K. apparently had private diplomatic exchanges and public sparring over this situation. Especially significant in light of later developments were the following incidents:

On August 15th, the U.K. Embassy in Quito apparently delivered a letter to Ecuador’s Ministry of Foreign Affairs that said: “You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the Embassy.” The letter purportedly also stated, “We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention [on Diplomatic Relations] and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.” The latter added, “”We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr. Assange’s presence in your premises, this is an open option for us.”

The Ecuadorian government immediately and publicly disclosed some of the contents of the August 15th letter and characterized the statements just quoted as “threats against the sovereignty of the Ecuadorean embassy” and as “a clear breach of international law and the protocols set out in the Vienna Convention [on Diplomatic Relations].”

In response, the U.K. Foreign Office stated, “The UK has a legal obligation to extradite Mr. Assange to Sweden to face questioning over allegations of sexual offences and we remain determined to fulfill this obligation.” Therefore, “it is only right that we give Ecuador the full picture. Throughout this process we have drawn the Ecuadorians’ attention to relevant provisions of our law, whether, for example, the extensive human rights safeguards in our extradition procedures, or the legal status of diplomatic premises in the UK.” Moreover, the U.K. stated its continued commitment “to reaching a mutually acceptable solution.”

OASbldg — OAS Building, Washington, D.C.

On August 24th, at Ecuador’s request, the Organization of American States (OAS) held an extraordinary Meeting of Consultation of Ministers of Foreign Affairs, to discuss the dispute. This meeting concluded with a unanimous resolution focused on the inviolability of diplomatic missions under international law. A subsequent post will review this OAS meeting and the legal issue of the status of diplomatic missions in host countries.

Another subsequent post will examine the merits of the Assange asylum claim.

In the meantime, Assange continues to be a full-time “guest” at the Ecuadorian Embassy in London.

[1] This post is drawn from caches of articles about all of these events in the New York Times and the Guardian.

[2] By happenstance, as reported in a prior post, some of the U.S. government documents released by WikiLeaks were cables from the then U.S. Ambassador to Ecuador, Heather Hodges, to the U.S. State Department in Washington, D.C. asserting that there were multiple reports of illegal activities by Ecuador’s national police chief and that Ecuador’s President Correa might use these activities to manipulate the police chief. After these cables became public, President Correa called these statements “unacceptable, malicious and imprudent” and expelled Hodges. In retaliation, the U.S. expelled the Ecuadorian Ambassador to the U.S., Luis Gallagos. Both Hodges and Gallagos, in my opinion, are honorable professional diplomats, and neither one did anything wrong.

[3] A U.S. national and member of the U.S. Armed Forces, Bradley Manning, allegedly participated in obtaining these documents for WikiLeaks, and he currently is in U.S. custody facing criminal charges for that alleged conduct. Discussion of the many issues relating to his case is beyond the scope of this post.

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3) a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

U.N. Security Council Briefing on Libya by ICC Prosecutor

Voting on Iran sanctions — U.N. Security Council

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . . authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.

International Criminal Court’s New Judges Take Office

On March 9th, five new judges of the International Criminal Court (ICC) were sworn in at a ceremony held at the seat of the Court in The Hague. The are Judges Howard Morrison (United Kingdom), Anthony T. Carmona (Trinidad and Tobago), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic) and Chile Eboe-Osuji (Nigeria).

The other judge who was elected at the December 2011 meeting of the Court’s Assembly of States Parties, Judge Miriam Defensor-Santiago (Republic of the Philippines), was unavailable due to personal circumstances and will be sworn in later.

The ICC has a bench of 18 judges who are nationals of States Parties to the Court’s Rome Statute. Judges are chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. The election of the judges takes into account the need for the representation of the principle legal systems of the world, a fair representation of men and women, and equitable geographical distribution.

International Criminal Court: Six New Judges Elected

At its current meeting in New York City, the ICC’s governing body, the Assembly of States Parties, was charged with electing six new judges for the Court.[1] On December 16th, the Assembly completed this task, and the new judges will take office on March 11, 2012.[2]

All six possess the basic Rome Statute qualifications for these important positions: high moral character; impartiality; integrity; the qualifications required by their States for appointment to their highest judicial offices; and excellent knowledge of the Court’s two “working languages” (English and French) and fluency in at least one of these languages.

In addition, they have established competency in either (a) “criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings” or (b) “relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.”

All were on the list of qualified candidates for the judgeships that was produced by the Independent Panel on ICC Judicial Elections that evaluated the 19 candidates advanced by States Parties. The six new judges range in age from 49 to 66 and are reported to be in good health and thus presumptively able to serve the full nine-year term of office.

As shown below, the new judges bring a wealth of experience in domestic and international criminal law, prior judicial and advocate experience in criminal trials plus academic writing in the fields of criminal law, humanitarian law (or the law of war) and human rights. They also have distinguished educational records.

Anthony Thomas Aquinas CARMONA from Trinidad and Tobago. At 58 years of age, he has degrees from the University of the West Indies and the Sir Hugh Wooding Law School. He has considerable experience, training and demonstrated competence in criminal law and criminal procedure both at the national and international levels for over 25 years.

He currently is a judge of the Supreme Court of Trinidad and Tobago.
He has served as Appeals Counsel (Office of the Prosecutor) at the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).

Judge Carmona also served at the highest level of the criminal prosecution service of Trinidad and Tobago rising to the position of Acting Director of Public Prosecutions. At this level, he prosecuted major and complex criminal cases which sometimes involved appeals to the Judicial Committee of the Privy Council in London.

He was a representative of Trinidad and Tobago at the Preparatory Committee on the establishment of the ICC.As a judge of the Supreme Court of Trinidad and Tobago and a former prosecutor, Judge Carmona presided over or prosecuted cases involving violence against women and children.

miriamsantiago — Senator Defensor-Santiago

Miriam DEFENSOR-SANTIAGO of the Philippines. At age 66, she holds degrees from the University of the Philippines and the University of Michigan (LLM and LLD) and has authored books and articles on Philippine and international law. She will be the first Asian from a developing country on the Court. She has had a distinguished career in the Philippines:

Defensor-Santiago currently is a Senator, having been elected in 2010 for a third term; she also served as Senator from 1995 to 2001 and 2004 to 2010. She was the Chairperson of the Senate’s Committee on Foreign Relations, 2004-2010.
She also stood for election as President in 1992 and received the second highest number of votes.
She was Professional Lecturer on constitutional and international law, College of Law, University of Philippines, 1976-1988.
She was a legal officer of the United Nations High Commissioner for Refugees, 1979-1980.
She served as Presiding Judge of a Regional Trial Court, 1983-1987.
She was head of the Commission on Immigration and Deportation, 1988-1989.
She was appointed Secretary (Minister) of Agrarian Reform in 1989.

She is well known in her home country for making colorful statements. For example, when she was asked if she had received death threats at the Commission on Immigration and Deportation, she said, “I eat death threats for breakfast. Death is only a state of thermodynamic equilibrium.”[3]

Chile EBOE-OSUJI of Nigeria. At age 49, he holds degrees from the University of Calabar (Nigeria), McGill University in Canada (LLB and LLM) and the University of Amsterdam in the Netherlands (PhD in international criminal law). Mr. Eboe-Osuji has competence in substantive and procedural criminal law based on 25 years of experience and familiarity with professional advocacy in courtrooms:

He has worked in senior legal advisory capacities to the U.N. High Commissioner of Human Rights and has rendered legal advisory services to the Government of Nigeria and foreign governments, on questions of international law.
He has practiced criminal law in the courts of Nigeria and Canada.
He has litigated cases before the ICTR as senior prosecution trial counsel, the Special Court for Sierra Leone as senior prosecution appeals counsel and the European Court of Human Rights. Prior to these engagements, he was prosecution counsel in several cases at the ICTR.

He also has extensive experience, in a senior legal advisory capacity behind the scenes, assisting ICTR trial and appellate judges in the drafting of many judgments and decisions.
His specific areas of competence include international criminal law (especially genocide, crimes against humanity, and war crimes); international humanitarian law; international human rights law; public international law; Nigerian and Canadian criminal law, and criminal law in the common law world. He also has expertise relating to the crime of aggression, by virtue of his research and legal advisory assistance to the Delegation of Nigeria to the ICC Assembly of States Parties Special Working Group on the Crime of Aggression.

Robert FREMR of the Czech Republic. He is 54 years old and holds degrees from Charles University Law School in Prague. He has nearly 25 years of experience in criminal law and procedure as a judge in all four tiers of the Czech judicial system plus judicial experience at the ICTR. In these positions, he has gained considerable expertise in managing complicated and time-intensive cases as well as in working with women and child victims of violent crime who require special treatment in court. Here are the specifics:

Judge ad litem, ICTR, 2010-2011
Judge of the Supreme Court of the Czech Republic, 2009-10.
Judge ad litem, ICTR, 2006-2008
Judge of the Supreme Court of the Czech Republic, 2004-2005
Judge of the High Court in Prague (Penal Section), 1989-2003
Judge of the Court of Appeal in Prague (Penal Section), 1986-1989
Judge of the District Court Prague 4, 1983-1986
Judicial practitioner, Municipal Court, Prague, 1981-1983

Judge Fremr also has lectured on criminal law at the Faculty of Law of Charles University in Prague and taught human rights courses to judges and trainee judges at the Judicial Academy of the Ministry of Justice of the Czech Republic.

Judge Fremr has attended many important international conferences (e.g. the ninth session of the Assembly of State Parties to the Rome Statute, official meetings within the Council of Europe, Organization for Economic Co-operation and Development.

Olga Venecia HERRERA CARBUCCIA of the Dominican Republic (DR). She holds degrees from the Universidad Autonoma de Santo Domingo in the DR and is 55 years old. She has practical experience in the field of criminal law, human rights protection, children’s rights, and combating money laundering and financing terrorism. She has extensive legal teaching experience in her home country. Herrera Carbuccia has extensive judicial experience in her home country:

Judge President of the Criminal Chamber of a Court of Appeals , 2003-present
Presiding Judge of the First Criminal Chamber of a Court of Appeals, 2001-2003
First Deputy Judge President of the Criminal Chamber of a Court of Appeals, 1997-2003
Substitute Second Judge President of the Criminal Chamber of a Court of Appeals, 1991-1997
Judge President of the Eighth Penal Chamber of a Court of First Instance, 1986-1991
Assistant Attorney to the National District Prosecutor, 1984-1986
Fiscal of two DR Peace Courts, 1981-1984

Howard MORRISON of the United Kingdom. He holds a degree from London University and is 62 years old. Here are some of the highlights of his legal career:

Judge of ICTY, 2009-present
Judge of the Special Tribunal for Lebanon, 2009
Senior Judge of the Sovereign Base Areas of Cyprus, 2008.
Circuit Judge, criminal and civil, 2004
Defense counsel , ICTY and ICTR, 1998-2004
Recorder in crime, civil and family jurisdictions, 1998
Assistant Recorder in crime, civil and family jurisdictions, 1993
Ad hoc Attorney-General for Anguilla, 1988-1989
Resident Magistrate and Chief Magistrate of Fiji and concurrently Senior Magistrate of Tuvalu, 1986-1988
Practicing barrister in U.K., primarily criminal law and equally divided between prosecution and defense, 1977-1985 and 1989-2004.

We the peoples of the world should give thanks to these six qualified people for their willingness to undertake the important and challenging work of a Judge of the ICC.

[1] See Post: International Criminal Court: Basics of Its Upcoming Judicial Election (June 23, 2011); Post: International Criminal Court: Specified and Recommended Qualifications for ICC Judges (June 24, 2011); Post: International Criminal Court: New States Parties, Judges and Prosecutor (Nov. 22, 2011).

[2] ICC, Final Results: Election of the Judges of the ICC (contains biographical material about the new judges), http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/Results/Final+Results.htm; AMICC, First Week of Assembly of States Parties Concludes with the Completion of the Election of Six ICC Judges, http://amicc.blogspot.conm (Dec. 16, 2011).

[3] Tordesillas, We will miss Sen. Miriam, http://www.gmanetwork.com (Dec. 15, 2011).