Baher Azmy (CCR): International humanitarian law trumps extradition
PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Baltimore.
On Thursday morning, the foreign minister of Ecuador, Ricardo PatiÃ±o, held a press conference where he announced that Ecuador would give Julian Assange political asylum. Here’s the gist of what he had to say.
RICARDO PATIÃ‘O, MINISTER OF FOREIGN AFFAIRS, ECUADOR (VOICEOVER TRANSL.): We have held in-depth talks with United Kingdom, Sweden, and the United States, and we have appealed to receive guarantees from the United Kingdom, strictest guarantees, so that Mr. Assange could face without obstacles the judicial process in Sweden, so that once those issues in Sweden were dealt with, that he would not be extradited to a third country. That’s what we have been seeking in Ecuador.
Sadly, and despite our repeated attempts, the United Kingdom at no moment accepted or showed any willingness to negotiate on that issue.
Mr. Assange’s lawyers requested to the Swedish authorities that they took his declarations at the Ecuadorian Embassy in London. Ecuador offered the Swedish authorities its willingness to make this meeting possible and to not create any obstacles whatsoever, so that that process in Sweden could be pursued. And this has been done before, and even in the case of Sweden they have done it before, but yet they did not accept. And we asked the Swedish government to guarantee that Mr. Assange would not be extradited to the United States, and again they rejected any such commitment to that.
Finally, Ecuador sent a communiquÃ© to the United States to request to know their position related to the Assange case. And we asked, first, is there a legal process or the intention of a legal process against Mr. Assange in the United States and the founders of Wikileaks? Number two, in the event that that were the case, what type of legislation, under what conditions, and under what maximum penalties would those people be subjected? And third, is there the intention to seek Mr. Assange’s extradition to the United States? And the response from the United States has been that it cannot offer any guarantees.
With these precedents in mind, the Ecuadorian government, loyal to its tradition to protect those who seek refuge with us and in our diplomatic missions, has decided to grant diplomatic assignment to Mr. Assange.
JAY: Now joining us to discuss some of the issues arising out of this act by Ecuador and the response from the U.K. is Baher Azmy. He’s a lawyer and professor. He works for the Center for Constitutional Rights, where he is the director of legal issues. And he currently works out of New York. And he joins us from there. Thank you very much.
BAHER AZMY, DIRECTOR OF LEGAL ISSUES, CENTER FOR CONSTITUTIONAL RIGHTS: Thank you for having me.
JAY: So the British response has been they will not let Julian Assange go, in spite of the fact that Ecuador has given him asylum. What’s your take on the legalisms of all of this?
ASMY: Well, there’s a legal component and a political component. The legal component is under the sort of applicable international law and human rights regime: a state is supposed to honor the decisions of another sovereign granting an individual asylum and not undertake any kind of political retribution as a result of that. Indeed, the whole asylum system would fall apart if in granting someone asylum a receiving country were to face political retribution from the sending country that was upset about it. But politically and [unintel.] problematically, this is a really kind of untoward show of force and bullying by the British government in not respecting the decisions of a sovereign country that they thinkâ€”I guess, presume is not entitled to make this kind of sovereign decision.
JAY: Well, there’s two parts to this. The first part was: on the eve of this decision, the British threatened to actually storm the embassy under some British law that was apparently really developed to deal with embassies that might be harboring potential terrorists, and clearly Assange is not that. But the British, I guess, are also saying, well, they don’t think this is a political case; this is a misdemeanor or a criminal case arising out of Sweden, and that doesn’t deserve political asylum. Does not Britain have the right to make that determination?
AZMY: No, I don’t think so. I mean, there are two parts of the response. First, Assange is not suggesting that he fears extradition toâ€”or he believes he will be persecuted by Sweden as such for the allegations relating to sexual impropriety. What he very credibly fears is that the Swedes would then very quickly turn him over to the United States government. And that is where he would assuredly face persecution for his political acts of whistleblowing and journalism and exposing U.S. government corruption and human rights violations. And so I do think there’s a very strong basis in the law for him to have asylum from the United States.
And the British have no authority other than sort of blowing up diplomatic relationshipsâ€”again, power, not lawâ€”to enter into an embassy of a foreign sovereign. And I think they should be concerned about the political repercussions in other countries if they do that then.
JAY: Now, one thing is, if the United States can ask Sweden to extradite Assange, why can’t they just ask Britain to do it?
AZMY: Yeah, and this is an important question. I think there are a couple of powerful reasons why extradition from Britain is less likely, and, conversely, why extradition from Sweden is much easier. First, I think the treaty arrangements with Sweden provide for a kind of expedited extradition process with the United States, and so it would happen very quickly.
Relatedly, there is no bails in Sweden, so Mr. Assange would be in jail and would have a very difficult time asserting an asylum petition from Sweden.
And we should note, the Swedish record has been pretty bad on transferring individuals that the United States asks them to. They transferred an Egyptian national who had a very serious fear of torture to Egypt at the request of United States and the Egyptian government. This Egyptianâ€”his name was Agizaâ€”was then tortured by the Egyptian government.
And then the other reason is I think that the law in England would make it harder for him to be extradited directly from England because of the political nature of the U.S. extradition. And Mr. Assange has far more legal and political support in the U.K. And so I think all the parties recognize it would be very hard to extradite them directly from the U.K.
JAY: Which is why, then, Assange and his advisers think Sweden’s a more dangerous place to be. Now, what is the law on whether the U.K. has to allow Assange out or not? I was seeing today in the OAS, Organization of American States, signatories to that agreement actually have to let the person out if one of those states gives a person asylum. But there’s nothing so directly obligating Britain, is there?
AZMY: You know, that’s right. I’m not aware of any sort of particular treaty provision governing the safe passageâ€”which isn’t to say it doesn’t exist, just I think this is a fairly novel problem that doesn’t often arise, because of the broader humanitarian principle at work here, which is that one government should respect another sovereign’s authority to grant somebody asylum. Remember, in the United States, the blind Chinese dissident Chen exiled themselves himself in the United States Embassy and applied for asylum there, and under these principles was granted safe passage outside of the embassy and to U.S. soil. [unintel.] that same humanitarian principle is what should govern here, instead of the sort of assertion of brute force that the British are thinking about.
JAY: And so, assuming the Brits don’t change their mindâ€”and they’ve taken a strong public stand on Thursday that they would not let him outâ€”what happens? Is this like the Polish case where he sits there for who knows how long?
ASMY: Yeah, I think it at that point becomes a diplomatic and political struggle, more so than a legal one. And it’s hard to see how this will play out. I mean, I don’t think the British government will look very good in this context. I think it looks a tad colonialist to not respect the decisions of Ecuadorian government. I imagine if you were in the U.S. Embassy the British would be far more accommodating. And again, the difference here is not law; its power and power relationships between the U.K. and their lack of respect for the judgments of the Ecuadorian government.
JAY: Now, in some of the American coverage of thisâ€”I was particularly thinking of The New York Times today, which takes various shots at Ecuador and at Assange. But what’s not coming clear in the coverage that most people are seeingâ€”and it did come out from the press conference clip that we just showed, that Ecuador has offered the Swedes to come into the embassy and question Assange. I don’t quite get what is Sweden’s response to this. If the real objective is to question him, they could have done it when he was at large in the U.K., and they can do it now at the Ecuadorian Embassy. I mean, I don’t get how they respond. Why don’t they just go question him?
AZMY: That’s a very important point. I mean, what’s very clear is Assange, again, is not worried about a criminal process in Sweden as such, and therefore he has offered that the Swedes come to interview him for as long as they wanted in the U.K. And also as part of the negotiations, the Ecuadorian government asked Swedenâ€”and surely the British knew about thisâ€”asked Sweden for assurances that if he were transferred to Sweden, Sweden would then not extradite him to the U.S. And Sweden refused to give those assurances. Had they given those assurances, I think the Ecuadorians would have rightly believed there wouldn’t be a basis for extradition, ’cause, again, what he’s scared about is a U.S. persecutory process, not a Swedish criminal justice process.
JAY: And, again, we’ve covered some of this on The Real News before, but it bears saying again: why does he think there is a process against him, him being Assange? What evidence is there that there is some kind of legal proceedings?
AZMY: So there is aâ€”in addition to a fair amount of hysteria and sort of lynching mentality among politicians who routinely refer to him as a terrorist and a threat to national security, there is in fact a secret grand jury proceeding occurring at the district of Virginia where evidence is being taken against him, and even rumors that a secret indictment has already been issued. And we also know that the U.S. government isn’t talking about dusting off this 100-year-old law, the 1917 Espionage Act, which was enacted specifically by the Woodrow Wilson administration to crush political dissent and political opposition in WorldÂ WarÂ I.
And so I think that’s a sort of fitting or a very symbolic example of the kind of persecution he would face, because ultimately what the U.S. regards as a crime is protected political activity. It’s journalistic activity. And the U.S. case law reveals that we routinely give asylum to foreigners seeking asylum to the United States for whistleblowing activity in their home country, because to expose corruption and human rights abuses from a political regime is important politically, important activity that’s protected by the Refugee Convention.
JAY: So if you put these two claims versus each other, Britain says they have a right to their due process; Sweden has a right to their process, they say; Ecuador says they have a sovereign right to grant asylum. In terms of international law and precedent, which argument trumps?
AZMY: As a generalâ€”there are, I think, some complications here because of the trilateral nature of this disagreement. But as a general matter, asylum law and the Refugee Convention, as well as the Convention Against Torture, trumps a government’s desire to extradite someone. That’s fairly [unintel.] I mean, if anyone is about to be extradited into a country where they will be persecuted, that person has a right to file an asylum petition with the transferring country, and the judge can block the extradition. So as a general matter, asylum trumps extradition.
JAY: Thanks very much for joining us.
AZMY: Thank you.
JAY: And thank you for joining us on The Real News Network.
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