Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the Julian Assange extradition battle

August 17th, 2012

As in so many international disputes, the key to the resolution of the Julian Assange asylum case is the United States. If the White House, via US Attorney-General Eric Holder, would issue a diplomatic assurance that the US would not be seeking the extradition of Assange from Sweden, then the problem could simply disappear. Assange could safely face prosecution in Sweden and test the case against him – and both Britain and Sweden could avoid violating the principles of non-refoulement to which they are subject under the 1951 Refugee Convention.

Otherwise, we could well be in for a British version of the case of Cardinal Jozsef Mindszenty who was convicted in a show trial by the Soviets, and freed during the short-lived 1956 Hungarian revolution. When the revolution was crushed Mindszenty fled to the US embassy in Budapest, sought asylum and lived in the building for the next 15 years. So far, Assange has been in the Ecuadorian embassy in London for about 56 days.

Under the “third country” refoulement provisions of the Refugee Convention, it is Britain that holds the prime responsibility for ensuring that the country to which it extradites an accused person does not then forward them onwards to a third country to face torture and persecution. (That was a central issue in the Ahmed Zaoui proceedings in New Zealand.) There is some evidence that the US does intend to prosecute Assange, and for much the same reasons as it has Bradley Manning. Which means the prospect of the death penalty is an issue in the Assange extradition. There is also evidence in the past to show that Sweden cannot be trusted in this process. Namely, the notorious 2001 case of Sweden collaborating with a rendition process by US operatives to transport two Egyptian nationals (Mohammad al-Zari and Ahmed Agiza) back to torture in Egypt. A few years ago, when Swedish Prime Minister Goran Persson was giving a lecture at the Victoria University Law School In Wellington, I questioned him about whether he now accepted any responsibility for the rendition of the two Egyptian nationals. He replied that this affair had been a ‘mistake” made by the Swedish police. If the Swedish government can distance itself in this way from the decision-making on a US rendition request, it can readily do so again on a US extradition request with respect to Assange.

For now, all the visible diplomatic huffing and puffing is between Ecuador and Britain. In their exchanges with the Ecuadorians, the Foreign Office has argued that it has the right – under provisions of the Diplomatic and Consular Premises Act 1987 – to enter the Ecuadorian embassy building and arrest Assange via a legal process involving “de-recognition” of the premises. This would not only set a precedent that would be likely to boomerang for decades on every British diplomat based in trouble spots abroad. It would also seem able to be challenged – because the same 1987 Act says that any such “de-recognition” has to be exercised consistent with international law, and the Assange extradition would hardly be a rationale that would be considered justifiable under the 1961 Vienna Convention on diplomatic immunity. As Britain’s legal commentators have pointed out, Britain could try to counter this argument by pointing to the preamble to the Vienna Convention that says the Vienna provisions do not exist to benefit individuals but instead, the efficient operation of diplomatic missions doing their job of representing states – but that argument is easily rebutted. After all, Ecuador’s case for offering asylum is in accord with its interpretation and support for the concept of diplomatic asylum and for refugee law, and it is not taking action merely to benefit an individual called Julian Assange.

At the very least, any attempt to go down this road would be subject to judicial review, and would tie the process up for years in a case that Britain would be likely to eventually lose. In doing so, it would also be likely to put the whole process of diplomatic immunity (whereby asylum is claimed via setting foot in an embassy, and not in the more conventional fashion by setting foot in the country itself) onto a much firmer foundation. Britain, and the US, might not want that outcome.

One red herring in the process is that Assange has offered to be questioned in Britain by the Swedish authorities. In fact, that’s not an option. It has become clear that Sweden wants to prosecute Assange, and not just question him. It is hard to see how this triangle – Sweden, Britain and Ecuador – can achieve a formula that will enable Assange to face his accusers in court without there being an intervention by the US, which is the bogey figure in the shadows of this dispute. Britain, as the power with the main responsibility for protecting Assange from refoulement, should be actively engaged in asking the US to waive any extradition proceedings. Barack Obama, facing re-election, is unlikely to do so – but that really is the only way to break the logjam.

Finally, it is in Assange’s own interests to get to Sweden and test the case against him. If he is not to live under the cloud of the rape accusation for the rest of his life and/or as a refugee either in Ecuador or in an embassy back room, he has to get to Sweden, but in circumstances that will not land him in a US prison cell alongside Bradley Manning, facing the death penalty. Equally, his accusers deserve to be able to seek retribution, and the opportunity to prove their case against him.

In passing, it is striking to see the contrast between how Britain is acting when it comes to the extradition of Julian Assange, compared to its response to the attempts to extradite Augusto Pinochet in the 1990s. You will recall that the-then Home Secretary Jack Straw, finally intervened on Pinochet’s behalf on compassionate grounds, and stopped the old Chilean monster from being extradited to face justice before a court in Europe. And that was despite the fact that Pinochet – just like Assange – had fought extradition at every step of the way through the British courts, and lost. It makes Britain look like a hypocrite over the Assange affair and its alleged respect for the rule of law. In the case of both Pinochet and Assange, the core decisions have been about politics, not the law.

ENDS

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    1. 25 Responses to “Gordon Campbell on the Julian Assange extradition battle”

    2. By Kevin McCready on Aug 17, 2012 | Reply

      Thanks for great article. I hope “retribution” wasn’t quite the word you were looking for?

    3. By David on Aug 18, 2012 | Reply

      While I agree with most of what is written here (which is why I read it), I must flatly disagree with much of this entry. Perhaps it because I am an expatriate kiwi living in Sweden, but the case as it is seen here is simply one of someone who is accused of serious sexual offenses going to whatever extraordinary lengths he can to avoid his day in court for these offenses. I am disappointed that that many of those on the left seem unable to separate their support for what Wikileaks was trying to achieve from the issue of the alleged sexual offenses. It is especially disappointing that many with left-leaning tendencies, and who would normally have a very progressive view on gender issues, seem to utterly lack empathy or acknowledgement that there are two women who are alleged victims of serious sexual offenses.

      I am especially disappointed that Gordon attempts to smear Sweden as a country that cannot be trusted, given that its foreign policy is consistently hugely more progressive than that of NZ. He presents only part of the story re the CIA rendition of two Egyptian through Sweden eleven years ago. While Sweden’s involvement in that episode there was shameful, Gordon fails to mention that Sweden has since publicly admitted the mistake and has awarded each of them significant financial compensation. To suggest Sweden cannot be trusted soilly on that basis would be a bit like claiming that NZ can never be trusted because it has military personnel supporting US interests (and its brutal puppet regime) in Afghanistan, supported the US position on Mubarak, supported the US bombing of Panama City and aided the US invasion of Vietnam.

    4. By Dan on Aug 19, 2012 | Reply

      Thanks David, for that ridiculous series of irrelevant rubbish. I’m sure that if Assange ends up getting sodomised in an American jail, it will be of great comfort to him if the Swedes admit their mistake and give him some compensation.

      Read the article. It seems you are the one unable to separate the obvious political nature of this prosecution from your affection for the Swedish justice system. It’s not about whether he’d get justice in Sweden for the rape case; it’s about the extradition.

    5. By David on Aug 19, 2012 | Reply

      Thanks Dan for your ridiculous and irrelevant insults and polemic. Can you provide even one shred of evidence that the serious rape charges that he faces in Sweden are in fact politically motivated? Or maybe the well-being of alleged victims of rape are of little concern to you in these sorts of circumstances?

    6. By David on Aug 19, 2012 | Reply

      As an addendum to the post I just sent, the allegations against Assenge are pasted below. And yet Dan and others like him will probably still maintain the ridiculous (and actually thoroughly offensive) view that the Swedish authorities are pursuing this issue primarily for political purposes:

      There are four allegations as set out in box (e) of the warrant:
      1.
      On 13th – 14th August 2010, in the home of the injured party [name given] in Stockholm, Assange, by using violence, forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.
      2.
      On 13th – 14th August 2010, in the home of the injured party [name given] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.
      3.
      On 18th August 2010 or on any of the days before or after that date, in the home of the injured party [name given] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.
      4.
      On 17th August 2010, in the home of the injured party [name given] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state.
      It is an aggravating circumstance that Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.

    7. By RobertM on Aug 19, 2012 | Reply

      Julian Assange’s importance in relation to hacking, blogging and freedom of information is greatly overated. Most of his released do little more than prove low level US diplomats and state department officials do a competent job on conveying reasonably accurate insight to their governments of the state of play and the nature of the governments worldwide.
      The significant damage done by Assange was to convey Bradley Mannings leak which are a form of treason which convey rather too honestly for the public to cope with the way the US and also Israel fights its wars to maintain freedom for most of us in the West. The operational methods of the west to smash the taliban, al queda, plo, hammass are pretty much long std US and Israel practice that was very much the hard strike into thousands of villages in Vietnam in the 1960s and Kenya in the 1950s and earlier and ever since against the Palestine people. The standard western policy is to eliminate the intelligent, stabalisers and potential leaders in every village and are based on Nazi doctrine and first systematically applied by the Nazis in Serbia and in the Middle East in the 1948-9 war based on intelligence techniques, infiltration modesl developed by General Wingate and the Post War leadership if Israel in the late 1930′s.

    8. By Dan on Aug 19, 2012 | Reply

      @David, pioneering Swedish feminist Helene Bergman takes a flatly opposite view to the the myopic anti-Assange view in the media that you parrot. She describes this a case of Swedish state feminism gone awry. Some select quotes –

      “Julian Assange’s case exposes the prevailing doctrine of “state feminism” in Sweden and its accompanying propaganda machinery. It is a machinery where man-hating radical “feminists” with no grasp of feminism’s legacy, journalists who wield power but have no real understanding of the purpose of journalism, and members of the judicial system who want to make a career out of the equal rights and opportunities doctrine work hand in hand.”

      “But in today’s feminist Sweden, the following can happen. In the preliminary investigation minutes for the case of Julian Assange in Sweden, I read: Woman A. says about her relationship with Julian Assange: “I was proud as hell to get the world’s coolest man in bed and living in my apartment.” After having sexual intercourse on numerous occasions, she goes to the police.”

      http://ferrada-noli.blogspot.co.nz/2012/06/julian-assange-is-already-condemned-by.html

      http://khelenebergman.blogspot.co.nz/2012/07/my-meeting-with-most-wanted-man-assange.html

    9. By dan on Aug 20, 2012 | Reply

      Assange has repeatedly stated that he is happy to be questioned about the case. Assange has repeatedly stated that he will return to Sweden to face charges as long as there is no threat of extradition. As for evidence that the charges are politically motivated:
      1) Some details of the women involved from this article: http://thestandard.org.nz/marianne-ny-making-an-arse-of-swedish-law/

      “In the case of Ardin it is clear that she has thrown a party in Assange’s honour at her flat after the “crime” and tweeted to her followers that she is with the “the world’s coolest smartest people, it’s amazing!”. Go on the internet and see for yourself. That Ardin has sought unsuccessfully to delete these exculpatory tweets from the public record should be a matter of grave concern. That she has published on the internet a guide on how to get revenge on cheating boyfriends ever graver. The exact content of Wilén’s mobile phone texts is not yet known but their bragging and exculpatory character has been confirmed by Swedish prosecutors. Niether Wilén’s nor Ardin’s texts complain of rape.

      But then neither Arden nor Wilén complained to the police but rather “sought advice”, a technique in Sweden enabling citizens to avoid just punishment for making false complaints. They sought advice together, having collaborated and irrevocably tainted each other’s evidence beforehand. Their SMS texts to each other show a plan to contact the Swedish newspaper Expressen beforehand in order to maximise the damage to Assange. They belong to the same political group and attended a public lecture given by Assange and organised by them.”

      The women involved did not lay the charges or make a complaint; they simply “sought advice” and asked that Assange take a HIV test. The chief prosecutor stated: “I don’t think there is reason to suspect that he has committed rape.” No charges were laid.

      Charges were then re-laid by a prosecutor who wanted to make a name for herself by widening the legal definition of rape.
      After the charges were laid (not charges of rape, but a murky Swedish concept called “sex-by-surprise”, Interpol issued a red notice (usually reserved for very serious crimes) with the following disturbing conditions attached:

      “Assange is to be held incommunicado without access to lawyers, visitors or other prisoners..”

      It’s interesting that the U.K. would happily defend the legal rights of General Pinochet, a genocidal maniac, but not of someone who was acting as a journalis.

      Face it. Assange embarrassed some powerful people. So he had to be destroyed. If you genuinely think there is no political dimension to this, that it’s simply a case of rape and there’s nothing going on behind the scenes, then there’s really no help for you and nothing that I can say to convince you.

    10. By Elyse on Aug 20, 2012 | Reply

      @ David
      Assange reported to the authorities in Sweden when he was there, and was told there were no charges, that he was free to leave.
      The turn around of the Swedes in demanding he come to Sweden and refusing to interview him in London (which is standard practice) even though they sent lawyers to the extradition hearings, casts suspicion on their motives.
      The allegations with which he has NOT been charged do not constitute rape in other countries, including Australia, UK and USA.
      His accusors make a mockery of women. What man or woman has not had remorse about a casual sexual encounter? It’s a matter of personal responsibility.
      Sexual misconduct is the oldest frame-up trick in the book of dirty tricks. Ask Bill Cinton.

    11. By Cam McLeod on Aug 20, 2012 | Reply

      Julian Assange is a rapist – he would be guilty in NZ also under s127(d) of the Crimes Act for what he did. Bastard!

    12. By Dan on Aug 20, 2012 | Reply

      I believe it’s also illegal in New Zealand to slander people and accuse them of committing a crime before they have had a fair trial.

    13. By Cam McLeod on Aug 20, 2012 | Reply

      @Dan, my defence would be truth ~ what’s more ~ I could easily prove my defence on the civil balance of probabilities. Unlike you I have actually read the entire bundle of evidence against Julian Assange and have formulated the professional opinion that he is guilty of the crimes for which he was charged. Although I admire Assange as a hero of the transparency revolution, I detest him as a sexual pervert. He is an extremely two faced individual – I suggest reading his police interview to get this insight. As for the conspiracy theories – (a) that he fell into a honey trap; (b) that he is the victim of a jealous lovers tiff – read the interviews with his victims and investigate their histories. Put it like this: Julian Assange likes to have unprotected sexual intercourse, and he will stop at nothing to get his way. The intercourse in both cases was consensual until he ripped off his condom (in the case of one victim), and penetrated his other victim, against her will while she was sleeping. His hands are not as clean as you might think – it is a huge shame that he spoiled his reputation, and it is frankly disgusting how he treated his victims. If you like I am happy to e-mail you a professional opinion that I wrote on the case for a final year Law of Evidence assignment at the University of Canterbury.

    14. By dan on Aug 20, 2012 | Reply

      @Cam

      “Unlike you I have actually read the entire bundle of evidence against Julian Assange and have formulated the professional opinion that he is guilty of the crimes for which he was charged.”

      Well, that’s OK then. Thanks for clearing that up! Perhaps you can fly over to the UK and explain that you’ve sorted the situation out. Maybe you could e-mail them your student assignment? I’m sure they would love to have your professional opinion.

      But seriously, I find it quite hard to comprehend the sheer arrogance of someone that would actually write what you wrote. Unless it was satire, in which case, it was pretty funny.

    15. By dan on Aug 20, 2012 | Reply

      BTW there’s 2 Dan’s commenting on this thread, and they are both legends.

    16. By Cam on Aug 20, 2012 | Reply

      @Dan, generally facts and forensic evidence speak for themselves. The issues with the Assange case are mostly diplomatic! In terms of the criminal prosecution the facts, evidence and law are all very clear. And although I don’t often lower myself to making personal attacks as you have done, from what it seems you are probably just a typical champagne drinking, winging, boring socialist (probably from Wellington). In your opinion people like Assange, Stalin and Mao can do no wrong. I’ll bet you even defended Strauss-Kahn.

    17. By dan on Aug 20, 2012 | Reply

      Hate champagne. Makes me fart. Not from Wellington. Never been on a benefit, always had a job and paid taxes.

      Love how you put Assange into the same sentence as mass murderers. Very cunning! I see what you did there. Pat on the back. They are clearly comperable. Stalin, Mao; mass murderers. Assange: runs a website which busts people who machine gun Reuters journalists. Totally the same! You got me! Burn!

      I also love the bit where you say that you don’t lower yourself to personal attacks, immediately followed by a personal attack, in the same sentence.

    18. By Elyse on Aug 20, 2012 | Reply

      Cam,
      That’s awesome that you were able to see the “entire bundle of evidence”, especially when Assange’s Lawyers have not been able to get their hands on it. Perhaps you could enlighten them?
      I agree with you that it would be good if Assange could answer the charges and face his accusers. But it is not as simple as that. See Gordons’ article regarding Swedish compliance with USA renditions.The USA is in the grip of a McCarthy era-like witch hunt. If you read the comments on Huffington Post you will see that Americans regularly call for his execution.
      It’s unfortunate that he failed to realize that when one is in the business of exposing corruption and war crimes (I assume you’ve seen the video of the US gunship filled with US soldiers gleefully shooting unarmed civilians and laughing about it?) one needs to be careful where one puts one’s penis. Check out Eliot Spitzer, former governor of New York who, as a Manhattan DA, went after Wall Street and organized crime.
      Have you heard of the expression “hell has no fury like a woman scorned”?
      Perhaps your study of powerful men’s sexual activities should also include a smattering or rock stars whose escapades usually cost them large amounts of cash rather than 10 days of solitary confinement and 2 years of electronic tagging and house arrest.
      You sound like an over-zealous law student (perhaps recent graduate) with little or no experience in the real world.
      For the record, I do not live in Wellington and seldom drink champagne.

    19. By David on Aug 20, 2012 | Reply

      I will not even bother to waste my time responding to the latest remarks by Dan the Misogynist, who is very concerned about the prospects of Assange being raped in a US prison while having little or no apparent concern for female victims of rape. While he can sit there fuming red-faced and angry as misogynists invariably do, the following link might be of interest to more open-minded readers of this thread:

      http://www.guardian.co.uk/commentisfree/2012/aug/16/julian-assange-few-friends-left-sweden?intcmp=239

    20. By dan on Aug 20, 2012 | Reply

      That guy! He makes me so… red faced! and .. angry!!! I may throw a misogynistic tanty. I will. I’M THROWING A TANTY! AAAARRRHHJJHHGGGHHH!!!!

    21. By dan on Aug 20, 2012 | Reply

      OK. tanty over. Need a cuddle now.

      Basically what I’m getting, is that if you ask questions about the conduct of this case, you are a red-faced, angry, misogynistic, socialist, champagne-drinking, wellington-living, boring, mass-murderer-fanclub-member, rapist-supporting scum. Good to know. I thought I was a pretty nice guy, but I guess I’m easily confused… I didn’t even know I lived in wellington!

      Why don’t you just cut to the chase, and tell me to shut up and stop asking questions?

    22. By Cam McLeod on Aug 20, 2012 | Reply

      @dan, the bundle of evidence was leaked onto the internet much to the dismay of Assange.

    23. By Joe Blow on Aug 20, 2012 | Reply

      Oh no! I’ve been missing out on all the fun!

      @ Cam

      Two principles you are in need of learning:

      beyond reasonable doubt; and

      presumed innocent until proven guilty.

      BTW very few defences require the accused to prove the onus on the balance of probabilities. All that needs to arise is an evidential foundation for a potential defence, which the prosecution then needs to prove beyond reasonable doubt.

      @ Elyse

      Sadly Cam is right (although wrong about the section of the Crimes Act). If the alleged facts against Assange were proven beyond reasonable doubt he would be guilty of sexual violation in NZ and the UK. The issue is with consent to the nature of the act. If what he was accused of in Sweden was not a crime in the UK the UK courts would not have been able to have ordered his extradition as they have.

      I agree with David. The left must be careful not to support Assange just because we want to keep believing in the mystique of our new poster boy, while the likes of Cam (the right) need to remember that at this time the allegations against Assange are just that = allegations.

    24. By David on Aug 21, 2012 | Reply

      Glad that Dan has gotten over his tanty, well done! Meanwhile the following link also serves to cleverly dismantle several myths surrounding this issue:

      http://www.newstatesman.com/blogs/david-allen-green/2012/08/legal-myths-about-assange-extradition

    25. By Wedger on Sep 4, 2012 | Reply

      Good heavens, what a lot of rubbish you all talk. Assange has cost human lives in Afghanistan probably NZ lives too!

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