Can We All Admit that Assange Has No Legal Case for “Safe Passage”?

by Julian Ku

I will refrain from adding too much to the increasingly ridiculous battle over Julian Assange’s refuge at the Ecuador Embassy in the UK. Assange is acting like a paranoid lunatic and it is astonishing to me that so many folks who should know better instinctively side with an accused rapist whose main argument is that the Swedish (Swedish!) justice system is being controlled by the CIA and US government.

However, I agree with the good folks at EJILTalk! that  the UK would be unwise to “terminate” Ecuador’s diplomatic rights to its embassy in this case.  I agree with Eric Posner that the UK would not act in clear violation of international law by stripping Ecuador of its diplomatic status, but I doubt Assange is worth such a drastic step.

Having said all that, can we also admit that Assange cannot credibly claim any “right” to safe passage, as his lawyers (including Spanish judge Baltasar Garzon) seem to be arguing here?

Baltasar Garzon, who is working on Assange’s defence, told Spanish newspaper El Pais that Britain was legally required to allow Assange to leave once he had diplomatic asylum.

“What the United Kingdom must do is apply the diplomatic obligations of the refugee convention and let him leave, giving him safe conduct,” he said. “Otherwise, he will go to the International Court of Justice.”

How the Refugee Convention applies here baffles me. I suppose Assange is going to claim that he faces a “well-founded fear” of persecution due to his politics.  This might make sense if the US was seeking his extradition (which it isn’t), or if the US could impose the death sentence on Assange (which would be pretty hard under US law and would also prevent any extradition from Sweden).  In any event, how does the Refugee Convention apply to Sweden? And how does the general requirement that the UK not “expel” a political refugee apply in this instance? This is just a lame argument, from what I can tell.
In the end, I think Daniel Drezner has the right take on this on twitter: Ecuador will quickly tire of Assange after a few months and kick him out, especially after the global media start forgetting about him.
http://opiniojuris.org/2012/08/21/can-we-all-admit-that-assange-has-no-legal-case-for-safe-passage/

12 Responses

  1. Have either Great Britain or Sweden ever taken such interest in a person accused of sexual assault? I’m curious to know how commonly the two countries engage in any cross-border efforts at all to prosecute such crimes.

  2. Before granting asylum, Ecuador asked Sweden if they would guarantee that he would not be extradited to the US. Sweden refused.

    I have never seen such interest in a person who is not currently facing any criminal charges. Imagine thinking of storming an embassy in order to capture someone who is not currently facing any criminal charges. There is more here than meets the eye. The extreme actions that Britain is thinking of going through – the thought of storming the embassy – puts question to your claims.

    <b>This might make sense if the US was seeking his extradition (which it isn’t),</b> 
     
    <I>February 28, 2012, New York – Leaks published today from Stratfor, a private intelligence corporation, indicate the United States Department of Justice has issued a secret, sealed indictment against Julian Assange, the founder of Wikileaks.</I>
    http://ccrjustice.org/newsroom/press-releases/ccr-condemns-reported-sealed-indictment-against-wikileaks-founder-julian-assange
    <b>or if the US could impose the death sentence on Assange (which would be pretty hard under US law </b>
    <i>The Espionage Act of 1917 was passed, along with the Trading with the Enemy Act, just after the United States entered World War I in April 1917. It was based on the Defense Secrets Act of 1911, especially the notions of obtaining or delivering information relating to “national defense” to a person who was not “entitled to have it”, itself based on an earlier British Official Secrets Act. The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.[4]</I>
    http://en.wikipedia.org/wiki/Espionage_Act_of_1917
     
    <b>and would also prevent any extradition from Sweden).</b>
    <i>Ahmed Agiza (Arabic: أحمد عجيزة‎) and Muhammad Alzery (Arabic: محمد الزيري‎) (also Elzari, el-Zary, etc.) were two Egyptian asylum-seekers who were deported to Egypt from Sweden on December 18, 2001, apparently following a request from the United States Central Intelligence Agency.[1] The forced repatriation was criticised because of the danger of torture and ill treatment, and because the deportation decision was executed the same day without notifying the lawyers of the asylum seekers. The deportation was carried out by American and Egyptian personnel on Swedish ground, with Swedish servicemen apparently as passive onlookers.<i>
    and:
    <i>The most remarkable thing about the deportations was their elements of extrajudicial character</I>
    http://en.wikipedia.org/wiki/Repatriation_of_Ahmed_Agiza_and_Muhammad_al-Zery
     
    The humiliation that Julian Assange has subjected the US to provides strong motive for the US to try and prosecute Julian Assange.

  3. The whole case is highly politicized. I am sure there are cross-border efforts to prosecute sexual crimes when it comes to GB and Sweden (they are both in EU mind), however what it seems everybody is forgetting is that it is not about Swedish justice system being influenced by the US (which is of course ridiculous), but on the ties of US with current Swedish government. In most cases effective governments are able to manipulate even the best of the judicial systems to meet their political ends. Thus I can see what can trouble Assange supporters. However, I have to agree with J. Ku on this matter – the claim for the safe passage is groundless here. It might have made sense if he would be in Sweden that was about to extradite him to US. I don’t agree on the matter that he cannot be executed for the alleged “espionage” though.

  4. Why do you make such a strong assertion that it is ridiculous to believe that Sweden may be under influence of the US? Can we be so confident about this? Just because Sweden is a rich and well-organized democracy does not mean we can conclude that their interest is necessarily just to investigate a sexual offense based on what seems to be a very strange series of allegations.  Well-organized and reputable Western governments have previously collaborated with the US in rendition flights. In any event, I have long given up to try to understand what’s going on here. But who knows, maybe there is a deal between Sweden and the US? I agree with the previous question by Max Kennerly. It would be interesting to know how GB or Sweden usually deal with cases involving cross-border issues and sexual assault.

  5. I completely agree with Julian’s legal point, and I have long thought that Britain is far more likely to extradite Assange to the US than Sweden.  But it is important to keep in mind that Sweden has not, in fact, charged Assange with anything.  It simply wants to question him.  So it is disconcerting, to say the least, that the Swedish prosecutor has continually refused Assange’s suggestion that he be interviewed in London (Swedish prosecutors have often traveled abroad to interview suspects) and that Sweden has continually refused to promise not to extradite Assange to the US.  If Sweden is, in fact, interested only in prosecuting Assange for the alleged sex offenses, it should make the promise and then go interview him.

  6. I would like to chime in (although uninvited and as a humble law school graduate) to point out a couple of issues that seem to me to have been neglected so far.

    First of all, I cannot help but share Professor Ku’s bewilderment at Garzon’s reference to the 1951 Refugee Convention. However, as far as I know, Ecuador has decided to grant Assange “political asylum” without adding further specifications. I am inclined to believe that the grant of asylum on their side is not to be considered as grounded on the 1951 Refugee Convention (for several reasons)and therefore does not imply any recognition of refugee status. Ecuador, in short, is exercising its sovereign (I will get to this later) right to grant asylum, and not recognizing Assange’s refugee status.

    The importance of this detail, in my opinion, is often underestimated. Let’s consider, for example, the problem of Assange’s indictment in light of the Convention’s “exclusion clauses”. A State MUST apply Article 1.F of the Convention whenever there are “serious reasons for considering that… [the asylum seeker] has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”. Indeed, it’s hardly possible to claim that there is a lack of “serious reasons”in this case! Of course, one could argue on the grounds of reciprocity — especially considering the peculiarity of Sweden’s rape laws — or consider the indictment not to be sufficient to apply the exclusion clause at issue: in the end, it does not come from an International criminal tribunal and it could (although I would have a hard time in figuring how) be deemed not authoritative enough for these purposes (see also UNHCR’s Guidelines on the Application of the Exclusion Clauses).

    But then, even considering Ecuador’s act to be something completely unrelated to the Refugee Convention, admitting that its grounds are to be found in the latin american asylum tradition (or even regional custom, if you will) and accepting ultimately that it granted asylum to Assange exercising its sovereign right to do so, what are the United Kingdom’s obligation towards Ecuador? In the last few days some have referred to the 1977 Council of Europe Declaration on Territorial Asylum, where it is stated that such an act is “a peaceful and humanitarian” and “shall not be
    regarded as an act unfriendly to any other state and shall be respected by all states”. The problem is, in my opinion, that they clearly forgot that the aforementioned declaration (let aside, for now, its non-binding nature) does concern territorial asylum, but does not say anything relevant about diplomatic asylum. My best guess is that, anyways — and although I do have a feeling that Assange might be subject to ill treatment, should he ever be extradited to the US – there is no legal ground to argue that the UK cannot consider the grant of asylum to Assange as an unfriendly act. In the end, I believe that we can safely agree that Assange does not have any right of safe passage.

  7. Well, at least, people outside Spain –who have acceped without discussion that Garzón is a wonderful jurist– will begin to finally understand that he is not, that he only like to be on the stage, before mediatic cases… 

    My more rethorical question goes to how to reconcile two sets of norms on diplomatic asylum, one regional (customary latinamerican asylum) so to say deployed in another region governed by universal norms on asylum…

  8. If you are interested of the Swedish perspective on this matter, please read the following texts written in English: my post on extradition law and my colleague, Mårten Schultz has written on the fairness of Swedish legal system.

    http://klamberg.blogspot.se/2012/08/extradition-of-assange-to-us-via-sweden.html

    http://www.project-syndicate.org/commentary/justice-for-sweden

    http://martenschultz.wordpress.com/2012/08/19/assange-ecuador-and-the-swedish-legal-system/

    In response to the argument that Assange could be heard in the UK or in the Embassy of Ecuador I would argue that it is legally possible under Swedish law but it is at the discretion of the Prosecutor to apply for such legal assistance from the UK. The Swedish Prosecutor is arguing that they need to have the interview in Sweden but has not elaborated on the matter. It is not generally the case that Swedish prosecutors travel to the preferred place of the suspect, i.e. it is not up to the suspect to dictate how an investigation should be carried out. Moreover, if Assange was in the custody of British authorities he could be subject to coercive measures (under UK law) but that is more difficult/impossible when he is in the Embassy, i.e. the Prosecution will not be able to control the interview to the same extent as they normally do.

    Please note that there is a difference in timing of the issuing of an indictment between civil law and common law systems, a difference that you also may detect between the procedures at the ICTR, ICTY on one hand and ICC on the other.  The indictment is served at a late stage in Swedish Proceedings but the arrest warrant which comes early is still under judicial review and a hearing before court must be held within four days (the Swedish arrest warrant for Assange has been subject of judicial review by the Stockholm district court and the Svea appeal court, the Supreme Court did not grant leave to appeal which means that the decision of the appeal court to have assange arrested was upheld).

  9. Where did Erik Posner argue that ”the UK would not act in clear violation of international law by stripping Ecuador [sic] of its diplomatic status”? I can’t seem to find that contribution, not on OJ or EJIL for that matter.

  10. I agree with the author of the post. There is however one additional thing that I wonder about: How exactly would Assange go to the International Court of Justice (ICJ), as Garzon claims? As should be well known, the ICJ is only open to disputes between States (Article 34 ICJ Statute). So no individual can bring his/her case there. This means that another State would need to take up his case against the UK, which can only be done under diplomatic protection. And in order to exercise diplomatic protection (a part from the fact that a violation of an obligation owed to Assange would have to be proven), it is vital that there is a link of nationality. As far as I know Assange is not a national of Ecuador, which can thus not take up his case under diplomatic protection. Australia – Assange’s state of nationality – does so far not really seem to be interested in protecting their national, so that’s not an option either. Ecuador could bring a case against the UK if there was any violation of their rights, which quite frankly I don’t see right now (especially as long as the UK is not violating any diplomatic immunity, which would then need further discussion). So, this statement by Garzon (and I checked the original in the link provided) really does not make sense, in my opinion.
     

  11. Re: the ICJ. I can’t really speak for the current situation, but in the future, in my opinion, the Government of Ecuador will have some options.

    First of all, for potential future injuries the International Law Commission stated in its Draft Articles on Diplomatic Protection that it should be possible for a State to exercise diplomatic protection in respect of a person who is recognized as a refugee by that State  “ in accordance with accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State” (Draft Article 8). It goes without saying that such a course of action is unlikely to be chosen (how could one argue that the “internationally accepted standards” — even considering the latin american regional customs — are respected? As I already said, this appears to be a matter of asylum, not refuge, as subtle the difference may appear), and perhaps most importantly, the UK and the US have not yet recognized this principle as lex lata — although it might be worth pointing out that this happened when these States where requested to act on behalf of persons they recognized as refugee.

    However, if Ecuador does ground its claims on the Refugee Convention, there is a chance that the matter will be brought before the ICJ, as the RC1951 states at Article 38 that “Any dispute between Parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute”. Again, how could be the Refugee Convention apply to this case is beyond my ability to make sense of.
     

  12. Does article 38 of RC1951 mean that the ICJ has ”compulsory jurisdiction”? 

    Ecuador could also rely on the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes. It uses the words “compulsory jurisdiction”. Both Ecuador and UK are parties to the protocol which provides that the ICJ may settle the dispute. However, relying on the protocol will limit the subject-matter jurisdiction to issues concerning the Vienna Convention on Diplomatic Relations and exclude issues concerning the OAS-convention on diplomatic asylum.

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