By COURTENAY BARNETT
There is at core here a moral issue – going well beyond the questions of the legalities involved.
At the juncture of three and a half years of being a ‘political asylum’ refugee in the Ecuadorian Embassy in London, a United Nations panel decided that Julian Assange had been subjected to “arbitrary detention” by the Governments of Sweden and the UK. The Working Group on Arbitrary Detention (WGAD) adopted Opinion No. 54/2015, on 4 December 2015. Next, Assange’s lawyers called for Sweden’s extradition request forthwith to be abandoned. The extradition request was withdrawn by Sweden.
If the West ( and on this issue – I narrow to the US and UK) are defenders of human rights, I then focus on these three (3) questions:-
- Is it that ‘freedom of expression’ ( speech) is one of the significant cornerstones of Western democracy?
- Is it a fact, that all decent human sentiment in the world, was outraged at the idea that a Saudi journalist, Jamal Khashoggi, working for the ‘Washington Post’ could have literally been ‘chopped up’ in the Saudi Arabian Embassy in Turkey?
- If it is an outrage to have a journalist ‘chopped up’ for reason of his dissident voice against corrupt and dishonest government actions of Saudi Arabia; why then is it not an equivalent outrage for the ‘locking up’ of a journalist, (Editor in Chief of Wikileaks, Julian Assange), for his comparable exposure of misconduct, murder and corruption of Western Governments? (Again, I focus on the chief defenders in the world of the human right of freedom of expression – the UK and US).
I believe that I am correct in saying that the American Declaration of Independence declares and acknowledges a right to revolt against tyranny.
If the laws were all to have been upheld during the slave days of the British Empire in the Caribbean, then no Maroons ( i.e. the slaves who revolted and left the plantations for freedom in the mountains ) would have existed; had they simply obeyed the law, they would have submitted to oppression – wouldn’t they?
What about an interesting comparison of the ‘whistleblowing’ former UK Ambassador to Uzbekistan, Craig Murray? Murray had complained and repeatedly reported to his government that the leader of Uzbekistan, Islam Abduganiyevich Karimov, was torturing dissidents and literally putting some in ‘hot water’ ( i.e. slow boiling them to death in a cauldron). Murray complained that there was widespread kidnapping, torture, rape by the police, murder and extensive financial corruption and added to that – religious persecution and further to that – censorship and other human rights abuses ( but only to mention, but a few, only just a few, human rights violations of which the UK Government via its Ambassador had been made fully aware of). The UK Government told Murray to shut up. He continued to complain and protest and then he exposed the truth to the world. The UK dismissed him from his Ambassadorial post and inflicted some nineteen (19) charges against him. He won all, but one (1). He had to have broken Britain’s Official Secrets Act, to have spoken truth to power and all other eighteen (18) were dismissed. Had he been a good little boy and shut up about substantial human rights wrongdoing in Uzbekistan then the world’s eyes would not have been opened up; consciences would not been moved; right would not have had its voice heard over wrong.
So, we get to the legal issues concerning Julian Assange, and mainly:-
1. State Secrecy; and
2. Bail Act ( under UK law).
State Secrecy versus legitimate criticism: Much wrongdoing by agents of the state would never come to light if journalists did not unlawfully leak confidential ‘classified information’.
Does the press, Editors and investigative journalists across the world, not report on Governmental corruption and wrongdoing everyday? Do those journalists get prosecuted? Chopped up as did Khashoggi or locked up as Assange – yes?
What a legal farce when the U.K. Supreme Court ruled 5-2 in favor of recognising Sweden’s arrest warrant concerning allegations of rape made against Assange. To facilitate Sweden’s ordinal extradition request, Their Lordships made an interpretation of the term “Judicial authority” by reference to the 2003 European Extradition Act. But, the law too is that extradition orders are not granted for politically motivated reasons. The Swedish legal system could have moved to interview Assange at the Ecuadorian Embassy, but they let their statute of limitations run out. At the time, albeit not a Swedish lawyer, I read the evidence and then mockingly wrote a piece entitled: “Captain Cocksman in blonde land” – see; commentary of mine below:-
The ruse is revealed and Sweden ( based on available evidence; want thereof, to be more accurate ) withdraws the extradition request. But, now that the original consideration related to the Swedish authorities investigation of allegations of rape is not active, then is it still that Assange in the UK remains a “Wanted man”? The plot thickens.
Bail Act: Clare Montgomery is the name of the UK lawyer, who prosecutes on Assange’s case, had before been paid by the UK Government to defend against the extradition of then Chilean leader, General Pinochet. It gets worse – for the costs of each proceeding was/has been paid for from the UK public purse; the British tax-payers. Add to this the costs of laying siege to the Ecuadorian embassy in London. It does not stop there with the Assange case, for again the UK public purse had to bear the costs, paid to the Swedish Government, related to the Swedish prosecution’s costs. Corruption – or – corruption in the extreme?
Just read what the Guardian newspaper in England reported:-
“The former Chilean dictator Augusto Pinochet was immune from prosecution outside his homeland because the crimes and human rights abuses he is alleged to have committed fell under the category of “acts of government”, the House of Lords heard… Clare Montgomery QC told the panel of seven law lords that as a head of state he was entitled to “absolute immunity”, even if the charges at the centre of the allegations included torture. “States and the organs of state, including heads of state and former heads of state, are entitled to absolute immunity from criminal proceedings in the national courts of other countries,” she said.” ( i.e. the same lawyer the UK Government found suitable to defend a man who was complicit in murder, rape and torture and have him released: now is again found to make a case against a man who has not murdered, not raped not tortured – but has spoken the truth for the world to read through his news organisation – WikiLeaks.)
But, more to the point, is it true, or is it untrue, that the press in the UK and US also publishes classified materials; are the Editors and/or investigative journalists then hounded and/or prosecuted in the same manner that Assange has been?
From 2012 Assange, with a grant of political asylum by Ecuador, has been living at the Ecuadorian Embassy in London.
Fast forward to the specific UK Bail Act violation.
Assange was busy obtaining political asylum at the time and could not be in the Ecuadorian Embassy while at the same time surrender to UK authorities; and so thereby not be breaching his bail. “Failure to surrender” in those circumstances, on the bail aspect, is a minor offence. At least the UK Government and the police knew his place of permanent residence, which he has not vacated for quite a few years now. The law in England, if I know it at this time, I think for such violation is a prison term of three months and/or a level 5 fine ( is that about approximately £5000?). But wait – didn’t Assange spend 10 days in Wandsworth Prison in 2010 and 550 days at the home of a supporter while on bail, which could be deducted from any custodial sentence? I suspect that 30 x 3 = 90 days as the maximum sentence. Or, do Courts in the UK no longer consider the real and evident and obvious and just and practical considerations of the case? Or, does the UK justice system now want to take it another way and contend that there is “contempt of court”?
Cf. Craig Murray did what he did; but, could not so have done without breaching the Official Secrets Act. Was he morally right – or – merely legally wrong?
The US might presently have sealed indictments and might be awaiting for the appropriate time to request Assange’s extradition to the US from the UK. Ms. Montgomery, no doubt knows that the Bail Act violation, might merely be a stepping stone for arresting Mr. Assange and then facilitating the UK being ‘President Trump’s poodle’ in an extradition application.
Up and down the UK in courts and across the British Commonwealth in courts each day, and in the US too, persons fail to show up for their hearing date. Magistrates or Judges will weigh the circumstances and many such Magistrates or Judges re-list in the criminal justice system for another hearing date – or – depending on the circumstances, issue a Bench Warrant. The operative factor is “ the circumstances” explaining the absence:-
In the Pinochet case there was the equivalent of the man is seriously ill Mi Lord ( or – in the US – Your Honour ( Honor) )and needs to be released on humanitarian grounds – or tomorrow he will be undergoing surgery – was the kind of approach taken with General Pinochet; or
The man is seriously under pressure and the US wants him for telling the world the truth by way of factually exposing the nature of large-scale political wrongdoing ( e.g. diplomatic cable on the Chagos Islands etc.) – See: http://blog.effectivelearning.net/sermon-call-of-the-wild-and-the-rule-of-law/
So, here we are:-
The CIA director, Mike Pompeo, simply does not like the truth coming out and being exposed globally – so WikiLeaks is termed by him, “a non-state hostile intelligence service often abetted by state actors like Russia.”
As best I understand the situation; if the US proceeds with an application to the UK for extradition, then it would be the UK Extradition Act of 2003 which would be the applicable law. The traditional approach under international law is one of there being decisions to be made by the judicial authorities alone and no political considerations are to be involved.
This all comes down to the real question:-
“Which countries have falsely claimed superior human rights and moral authority on the world stage?”
Pinochet had been released for return to Chile by the UK, for reasons of illness; what of Julian Assange’s condition ( both mental and physical after almost seven (7) years of confinement)? Pinochet was a known mass murderer and torturer; what charge to date has emerged publicly that Assange ever is alleged to have committed a serious criminal act? Surely, Sweden dropped their allegations.
It seems to me, a lawyer, that the following can safely be concluded of the UK’s justice system:-
Pinochet: the charges of murder, rape, genocide and other significant abuses under both domestic and international law, go unpunished.
Julian Assange: Presently charged for?
Page 5 of the UK Select Home Affairs Committee has this to say on the UK-US Extradition Treaty 2003:-
“Concern about the operation of the current extradition arrangements between the USA and the UK should not be allowed to obscure the fundamental point that it is firmly in our national interest to have effective, fair and balanced extradition arrangements with the United States and our other international partners. Criminals must not be allowed to evade British justice by fleeing the country; nor should the UK become a safe haven for those who have committed crimes in other territories.”
I seriously suspect that if one simply substituted the words ‘Saudi Arabia’ everywhere there is reference to ‘UK’ – then as in the recent case of journalist, Jamal Khashoggi – the UK must likewise designate Julian Assange a criminal journalist for purposes of extradition to the US. It shall be truly of jurisprudential importance under extradition law, within the context of international law, to read what the UK authorities next do and how any decision is reasoned by the judicial authorities.
Yeah – lock him up indefinitely ( like Chelsea Manning) for telling the truth – indeed – not one word ever published by Wikileaks has been contented to be a falsehood.
* COURTENAY BARNETT is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for over thirty years, has been arrested for defending his views, has been subjected to death threats, and has argued public interest and human rights cases. He lives and works in the Caribbean.