Julian the Asylum Seeker

How could Julian Assange claim asylum? Ecuador is a signatory to the 1951 Refugee Convention. Under Article 1A(2) of the Convention, a person is a ‘refugee’ and must be granted asylum if

…owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

If the Ecuadorean authorities interpret the Convention consistently with international norms, Mr Assange will have to show the following:

(i)             he has a fear of being persecuted

(ii)           his fear is well-founded

(iii)          he will be persecuted by reason of one or more of

(a) his race (ie ethnicity);

(b) his religion;

(c) his nationality;

(d) his membership of a particular social group;

(e) his political opinion.

(He is not some one who does not have a nationality – is stateless – and so the final clause does not apply to him.) But let’s see if he can bring himself within any of the other categories that would entitle him to the protection of the Ecuadorian government.

(i)             He may subjectively think that he is being persecuted. Many people, often with no formal mental illness, experience prosecution as persecution. It’s not fun, even when due process is fully observed and you are on bail. In Assange’s case, the extradition proceedings have been going on since December 2010 when the Swedish prosecutor issued a European Arrest Warrant against him. That’s a long time and anyone would find it  extremely wearing and stressful – probably a bit like having a long illness with an uncertain prognosis. However…

(ii)           An individual’s subjective fear must be ‘well founded’: that means, there must be objective reasons to find that the treatment complained of or feared, really is persecution. The Refugee Convention does not define ‘persecution’ but under Article 33

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

So the acts said to be acts of persecution need to be serious enough to threaten Mr Assange’s life or freedom, but also include serious breaches of his human rights. Professor James Hathaway, (in the leading textbook The Law of Refugee Status) defined persecution as ‘the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community’. The UK courts have adopted this definition (Ullah http://tinyurl.com/c9wgcuv, House of Lords).

(iii)          Then, the reason for the persecutory treatment (whatever form it takes) must be a ‘Convention reason’: Mr Assange’s race, his religion, his nationality,  his membership of a particular social group, or his political opinions.

Let’s assume that he does not fear persecution for being a white Australian of some or no religion; he is unlikely to belong to a particular social group, mere membership of which is enough to lead to persecution (such as being a woman in Pakistan, or homosexual in Iran – groups which the UK Courts at least have so defined for purposes of asylum law).

He must be relying on ‘political opinion’ – an extremely broad category, that includes activities, writing and speech, and beliefs that lead to persecution. He made a statement from the Ecuadorean Embassy in London on 20th June 2012 in which he said he was claiming ‘political asylum’.

Who does he think his persecutors are? In most asylum cases, they will be hostile agents of the claimant’s own state, or ‘non-state actors’ whom the state cannot or will not control. Mr Assange is apparently seeking protection from the British authorities in the first instance, and perhaps also from Sweden (although if he feared the Swedes only, he could in theory apply for asylum in the UK…there’s a thought).

The difficulty he is likely to face, if the Ecuadoreans assess his case under normal asylum law principles, is that he has been subjected to due process of law in the UK. His human rights have been considered. He has been ably represented by the most distinguished human rights lawyers in the country. He has made use of his appeal rights and the panoply of English Courts have examined his case with the most careful scrutiny. He has been at liberty for almost the whole time, with limited restriction on his movements and none on his right to say what he pleases. In Sweden, the prosecution authorities want to question him about serious criminal allegations. Sweden is a signatory to the European Convention of Human Rights, and other international human rights instruments. It is a democracy whose legal system is independent and meets international norms.

If he fears that the Swedish prosecutor is merely a cat’s paw for the US government, who will demand his extradition when he arrives in Sweden, he has to take account of Section 58 of our Extradition Act 2003: if the Swedes want to extradite him to the USA, they have to obtain the consent of the British Home Secretary first. That rule derives from Article 28 of the 2002 EU Council Framework Decision (2002/584/JHA), which binds the Swedish government. After the investigation and any criminal proceedings in Sweden end, that restriction also ends and the Swedes can extradite him without reference to the UK government. But neither Sweden and the UK will extradite anyone to a country where the accused is in peril of the death sentence if convicted of an offence, or where prison conditions are so bad as to breach his rights under Article 3 of the ECHR (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’).

The European Arrest Warrant, controversial though it may be, is the product of decisions made or at least ratified by elected representatives, and subjected to usual legislative process. As Assange’s case has shown, it is not exempt from scrutiny by the Courts.

So where is the persecution? Prosecution (including extradition proceedings) by due process in a democratic country with an independent legal system isn’t persecution. It may well be that powerful people here and elsewhere dislike – even violently dislike – his ‘political opinions’ as expressed in his work with Wikileaks; there may be people in the USA who think he should be tried for capital crimes, convicted, and executed. But while he remains in the jurisdiction of the UK or Sweden, that’s not going to happen.

So he may struggle to show that he faces treatment in the UK or in Sweden to amount to persecution, on an objective view.

According to the UNHCR’s latest report (http://tinyurl.com/nfh7lr), Ecuador, with a population of about 14.5 million, currently has over 123,000 refugees, of whom more than 21,000 have made asylum applications. The UNHCR says that in 2011 the authorities introduced new rules for admissibility in order to reduce the number of manifestly unfounded claims. If Mr Assange has to join the queue, he may find himself in Hans Crescent for some time.

POSTSCRIPT 16/08/2012

The Ecuadorian government granted Mr Assange political asylum today. The foreign minister, Senor Ricardo Patino, gave three reasons: (i) the British government failed to guarantee that Mr Assange would not face extradition from Sweden to the USA; (ii) the Swedish government failed to give the same guarantee; (iii) the US government failed to guarantee that he would not face criminal proceedings in the USA.

In the UK, the theme of recent criminal justice policy has been to put the rights of the victims of crime at the heart of the system. Whether that is the policy in Sweden or not, two women have made complaints of serious sexual offences including rape against Mr Assange. They remain unproven allegations.  Any woman making such a complaint in her own country should not have to find that the government of a second country, under pressure by the government of a third country, has prevailed on her government in effect to call the case off. Is this what the Ecuadorians want to happen? It has been suggested that  the Swedish prosecutors could question Mr Assange in the Ecuadorian embassy in London – or, I suppose, by Skype; that would not advance matters if they decided to charge him, as he would still have to go to Sweden and submit to due process there.

The Foreign minister’s statement is silent as to why Ecuador thinks that Mr Assange’s claim for asylum is based on a well-founded fear of persecution in Sweden or elsewhere for a Refugee Convention reason (see the original posting). If he knows more about this than Mr Assange disclosed to the UK Courts, it would be of great interest to hear about it. What is worth remembering is that during his legal challenge to the extradition Mr Assange did not argue that his extradition to Sweden would lead on to treatment in the USA that would breach his rights under the Refugee Convention or the European Convention of Human Rights. If you don’t believe me, read the judgments by the Chief Magistrate, the Administrative Court, and the Supreme Court. It simply was not the case that he put forward. Courts can only work on evidence; if he had evidence of a US plot to get him, try him and kill him, he had the opportunity to put it in front of the Courts. They would have considered it on its merits, and if they thought he was right, they would have halted his extradition. No such evidence was forthcoming. He failed to persuade the Chief Magistrate that a trial in Sweden would not comply with Article 6 of the European Convention; that was as far as it went and he did not challenge the adverse finding when he appealed the decision.

Asylum is precious. In the UK we are accustomed to barrages of abuse directed at asylum seekers in general, because some of them make false claims. We have a system that is meant to assess claims individually, and by a fair process to reject those that don’t stand up. Ecuador’s own system may well be the equal of ours, or better. Mr Assange may have abundant evidence to support his claim, which for his own reasons he has not disclosed to anyone but the Ecuadorians. If the Americans, the Swedes and the British are engaged in a sinister plot to deny him his rights, by subverting proper legal processes, then the founder of Wikileaks has a duty to tell us, in detail, what is going on and what is being done in our name.

About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk). I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are my own.
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31 Responses to Julian the Asylum Seeker

  1. ejh says:

    often with no formal mental illness

    What’s your point?

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  3. RO Bennett says:

    Instructive and edifying (as recommended by David Allen Green). Clearly Julian Assange’s attempt to seek political asylum and the protection of Ecuador is by no means assured of a positive outcome.
    Even if Assange succeeds and is granted asylum by Ecuador, he could, in theory, still be subject to an extradition request by the United States to Ecuador; in such circumstances he would not have the benefit of the protection of Article 3 ECHR, which seems to me counter-productive if he does in fact have, as has been suggested, a real fear of being executed in the US for espionage.

  4. Pingback: Julian Assange, Rape And The Law « Soupy One

  5. It seems that you are presuming that British and Swedish legal processes will be independent and humane, despite expected pressure from US. However, evidence exists to cast doubt on this faith. As Glenn Greenwald points out in his Guardian op-ed, Sweden was found in 2006 by the UN to have violated the global ban on torture by helping the CIA to render two terrorist suspects to Egypt where they were tortured: http://www.guardian.co.uk/commentisfree/2012/jun/20/julian-assange-right-asylum

    Moreover, evidence discovered in Libya in 2011 suggests that British secret service also helped the CIA to capture and render suspected terrorists, this time to Libya, where they claim to have been tortured by Gaddafi henchmen. This evidence is being investigated in Britain: http://www.telegraph.co.uk/news/politics/9198867/Tortured-Libyan-wants-answers-from-Blair.html

    These two examples cast doubt over the objectivity and independence of the Swedish legal process and British executive policy. A UN formal investigation declared Private Bradley Manning to have experienced “cruel and inhuman” treatment during his detention in solitary confinement. (The UN special rapporteur also stated the US officials obstructed his investigation): http://www.guardian.co.uk/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un

    Given all this, I think Assange definitely has a case of fearing persecution through compromised legal and executive process in Europe and then in the US, with the additional threat of cruel and inhuman treatment, tantamount to torture.

    • You miss the key point: any Swedish or UK action in complicity with US (extraordinary) rendition was taken in secret. The people doing it evaded any form of legal scrutiny. Completely unlawful. That’s why it was done secretly! Due legal process isn’t perfect but it beats covert illegality any day.

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  8. Andy Gaffney says:

    Can’t see Assange succeeding here for the reasons given. Whatever one feels about the Swedish prosecution he’s played his hand. Time to face the music, Julian. If you’re innocent then all you have left is your faith in justice which may not be that great.

    • Chris says:

      One, he’s succeeded in being granted asylum. Second, however, is that this has little to do with the accusations in Sweden. If the Swedes actually suspect him for a crime, and believe they have a chance of convicting, then they should damn well *charge* him with a crime!

      The real issue is that he fears upon his arrival in Sweden, they’re going to ask him a few questions and then say “you’re free to go”, but before the they can get the words out the US will announce that it’s obtained an indictment for Assange and request extradition. Obama’s lawyers are, as we speak, defending their right to indefinitely detain his own citizens anywhere, anytime, refusing to say that they won’t use it to detain journalists and war correspondents, let alone the leader of an organisation that publishes classified American documents. He has a pretty legitimate fear that once he’s in US hands they’ll label him a friend of terrorism and try him by a military tribunal, or worse, he’ll simply disappear.

      I don’t see why he thinks he has a better chance in Britain than in Sweden, though.

      • Michael says:

        With respect, procedurally an arrest precedes a charge. Therefore, the Swedes have to arrest him before they can “damn well *charge* him with a crime!”. In order to so “damn well *charge* him with a crime”, the Swedes need to extradite him to Sweden first. Hence the EAW.

  9. Tim says:

    “if the Swedes want to extradite him to the USA, they have to obtain the consent of the British Home Secretary first”

    Well, that consent is a given, right? Any British minister would pander to US government will without a moment’s hesitation. The way you phrase this is very telling – if the Swedes want to extradite him to the USA” – wouldn’t it be the USA wanting the extradition, rather than Sweden? And when the USA wants something from the UK, it gets it – ‘period’.

    “it’s perfectly normal to feel persecuted if you’re being prosecuted; it doesn’t mean you are being persecuted.”

    But he’s not being prosecuted. He’s being called for questioning. The fact you are trying to publicly imply he is being prosecuted could be seen as a form of persecution.

    “Who does he think his persecutors are?”

    He thinks they are the US Government.

    “In most asylum cases, they will be hostile agents of the claimant’s own state, or ‘non-state actors’ whom the state cannot or will not control.”

    It’s the second lot – ‘non-state actors’ whom the state cannot or will not control – that is, the US Government.

    “Mr Assange is apparently seeking protection from the British authorities in the first instance, and perhaps also from Sweden (although if he feared the Swedes only, he could in theory apply for asylum in the UK…there’s a thought).”

    He doesn’t fear the Swedes only – he only fears the US. Unlike South American administrations, neither the UK or Swedish governments has the will to stand up to the US, so he is better off seeking justice in Ecuador.

    “But neither Sweden and the UK will extradite anyone to a country where the accused is in peril of the death sentence if convicted of an offence, or where prison conditions are so bad as to breach his rights under Article 3 of the ECHR”

    A life sentence in US jail would present no barrier to extradition though. This would represent a massive injustice to many normal people, to whom ‘Collateral Murder’ was the first glimpse of the crimes being carried in our names.

  10. Pingback: Julian Assange: can he get out of this? | Head of Legal

  11. Borealis says:

    Thank you for an excellent overview of the relevant legal framework.

    The ‘key point’, sadly, is that a large and increasing number of people view the US as a lawless and quasi-terrorist state. This is clearly a contentious point. However, the US makes no secret that it detains individuals indefinitely, without trial and indeed without presenting any meaningful evidence. Furthermore, it has been exposed as operating a secret ‘kill-list’ of individuals whom it is happy to murder without trial or evidence. Gieven those facts, I’m afraid that it is perfectly easy to see that conditions (i), (ii) and (iii)(e) apply in this case. If the US were openly to take a dislike to you, for whatever reason, would you be confident that you would receive a fair hearing? I very much doubt it.

    What appears to be needed is a solution whereby the serious allegations against Mr Assange can be robustly and impartially investigated, without the involvement of the US, direct or implicit. Surely it isn’t beyond the wit of our lawyers to construct this?

    • Billeo says:

      The potential for extra-legal activity has always been a nascent thing, It is hard to say whether the reality was merely hidden before, and the details are more available today. I tend to agree that US is become more and more a rogue state. Assange is in some respect responsible for this reality. Even though what he did may have had an effect or no, the politics of power are under threat. So in the longer view, he may have facilitated exposure of the players. Ah, Sunlight.

    • I am very much pro-Assange, therefore biased, but I tend to feel lawyers often go on and on about the law rather than the highly nasty extra-judicial activities going on in so called “clean” Western States. The stolen laptops at Stockholm airport are a good example. They MUST have involved the complicity of the Swedish State.

      • Thanks for your comment. Here’s a question for you: if A had evidence that the Swedish & US governments were laying a trap for him, and he was at risk of being taken to the USA from Sweden and being executed or subjected to severe abuse, why did he not use the evidence in the court proceedings in the UK? If he had no evidence, but just a belief, how would you expect a Court – or any disinterested person – to assess his belief?

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  14. Pingback: Julian the Asylum Seeker by Francis Fitzgibbon QC | Justice Is A Quaint Thing

  15. Bill says:

    Francis, thank you for a very useful overview of the legal issues around the affair. There are a great many distorted arguments circulating about the facts in this affair and of the legal issues in play and your post is useful in helping to filter some of these claims and counter claims.

    Despite being a wikileaks supporter there have been many aspects of this case that make me feel uncomfortable. As you say at the end of your piece asylum is precious, but it is under continual asault in the UK and Europe where “asylum seeker” has, in some quarters, become almost a term of abuse. Under these circumstances those who want to support and strengthen international agreements on asylum can only be disconcerted to see such high profile manipulation of its provisions.

    There is also a deep incongruence in speaking out against the repression of freedom of speech while taking refuge with Ecuador. Human Rights Watch and Reporters Without Borders both report state repression of journalism in Ecuador.

    In fact just as Mr Assange is denouncing his persecution from the balcony of the Equadorian embassy for his Wikileaks activities , Ecuador is busy preparing to extradite Alexander Barankov to Belarus. Barankov is a blogger who has criticised his government for corruption and was given asylum in Ecuador. They have changed their stance since the Belarus minister of trade visited the other week.

  16. Pingback: Legal myths about the Assange extradition « thebarroomfloor

  17. Silican says:

    Mr FitzGibbon, you ask, “if A had evidence that the Swedish & US governments were laying a trap for him, and he was at risk of being taken to the USA from Sweden and being executed or subjected to severe abuse, why did he not use the evidence in the court proceedings in the UK?”
    According to reputable sources, a US Grand Jury has indicted Mr Assange, but done so in secrecy. Numerous high officials, including Joe Biden, the US VP, have labelled Mr Assange as “a terrorist” or called for his execution; surely you do not need to be reminded of US behaviour to those thus labelled – Guantanamo, drones, ‘rendition’, torture … Unfortunately this does not constitute the sort of evidence you appear to have in mind but it is more than sufficient to justify the belief that Mr Assange is being persecuted.

    • Dear Silican

      maybe it’s because I’m a lawyer, and am in the habit of being analytical, that your interesting comment worries me. You say there are reputable sources for the account of a US grand jury having indicted JA in secrecy. First, what are these sources and what makes them ‘reputable’? Second, a reputable source may be mistaken – and the more reputable the source, the more likely it is that people will believe it, even if it is wrong. So what is the information, and what makes you think it’s true? Thirdly, don’t US grand juries always deliberate in camera – secretly if you prefer – and not just in JA’s case? Fourthly, a grand jury is part of the normal US criminal justice system – not a concoction of dodgy military tribunals; so if JA is facing criminal charges in the US, proceedings will take place in the usual way, with proper representation, a jury, and the safeguards of law. He may be acquitted if he is put on trial. No European country will extradite to the USA or anywhere if the extraditee is liable to the death penalty. It just won’t happen. So if you are right, the ordinary processes of US criminal justice, with no death penalty if he is found guilty of an offence, amounts to persecution under the Refugee Convention. That’s pretty sweeping and I doubt you’ll find anyone ‘reputable’ to support that view, even if parts of the US justice system look a bit rough and ready to us. If you believe that the US will kidnap him without going through any sort of extradition process, then JA would need to show not that this has happened in other cases, but that it’s likely to happen to him. You can hardly imagine them doing it now, even if they wanted to, because the political damage would be too great.

  18. Alice says:

    Dear Mr Fitzgibbon
    Can I ask: if the UK or Sweden (wherever was hosting him) were to get an undertaking from the US that they wouldn’t use the death penalty, and so violate Art 3, would it be possible for the host state to extradite him to the US without violating Art 3? Has an undertaking of that nature ever been done before?
    Thank you,
    Alice
    PS I greatly enjoy your blog

    • Thanks for your comment.
      I don’t know how the Swedish authorities or Courts would respond to an undertaking, but if you’re interested in the UK position, have a look at this

      [2006] EWHC 2927 (Admin)

  19. Sam Vines says:

    I applaud this blog post for what it is. A masterful piece of misdirection by a QC pretending to offer an objective view of the legalities of the case whilst doing nothing of the sort.

    Just ONE example of the many biased misdirections it contains being
    ” he is unlikely to belong to a particular social group, mere membership of which is enough to lead to persecution (such as being a woman in Pakistan, or homosexual in Iran – groups which the UK Courts at least have so defined for purposes of asylum law).”

    Bravo sir!
    Leaving the impression, but not actually SAYING, that he does not meet the criteria!
    Furthermore leaving the impression that such social groups are limited to such groups. That being a wikkileaks user does not meet the criteria. That the criteria is limited to what has already been defined rather than such definitions being ever evolving. Not expanding but also contracting. If women in Pakistan and homosexuals in Iran were to no longer be persecuted just for being members of that social group they themselves would no longer meet the requirements and would be removed from any pre-existing defined groups ,
    Or that a member of the Icelandic Parliament, Brigette Jonsdottir is also in fear of persecution by the USA for her membership of wikkileaks and has been advised not to travel to the USA.

    As a QC you are certainly aware, more than most, of the fluidity and ever evolving state of the law and its application, and the paucity of the arguments and points raised are shameful for a man of your calibre.

    Let alone considering, discussing and rebutting any claims of the actual case on their merits.
    some of which i cover below . An exhausting list possibly, but not an exhaustive one, of the paucity of arguments and points raised by the author.

    i) fear – all fear is subjective by its very definition, but all we have here is a dismissal that he can have any fear. On the authors own subjective, very limited grounds that he shouldn’t have them, not that he actually has them. and that you imply he is mentally ill not in fear. No mention of what that fear is or why he has it. The grounds and their validity are supposed to be discussed under ii)

    II) all that is here is a reiteration of authors own subjective viewpoint that he does not in fact have a fear but is mentally ill. No discussion as to whether such fear is well founded. No mention of the extraordinary measures being taken by the Swedes and UK to prosecute and extradite and whether these measures would be taken in ANY case relating to ANY person in the same or similar SWEDISH cases or the claims that Assange believes the Swedes are being used as a cat’s paw. The actions of the Swedish and UK gov’ts with regards to prosecuting and enabling the prosecution of the original and ongoing Swedish case would point to that fear being well grounded indeed. Especially with senior member of the Swedish Judiciary publicly doubting that initial case on its merits and indeed the perpetrators of such, let alone the extraordinary measures taken by the UK in the asylum case., The only mention of what his actually fear is comes very tellingly later.
    Or even touching on the point that both Sweden and the USA now meet the criteria for it being the DUTY of nations NOT to allow extradition to them in such cases where the subject has a fear of. torture, inhuman or degrading treatment or punishment. (Article 3 of the ECHR (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’) That would fetch up Bradley Manning et al. Very relevant to Assange having grounds for fear and for such grounds to be well founded.

    iii) so much misdirection here, not only as pointed out at the beginning of this reply but also very tellingly that you rely on “But while he remains in the jurisdiction of the UK or Sweden, that’s not going to happen.” to dismiss any possibility. No discussion or even allusion to what happens after any legal proceedings in the case, whether acquitted found guilty – when the Swede’s no longer have to have UK approval to extradite (nice touch for plausible deniability of the UK aiding the USA there) Or of the implications of the Swedish prior bad acts in such cases as, but not limited to, al-Zari and Ahmed Agiza .

    Again I applaud you for a masterful piece of misdirection.
    I also wonder at your motivation for posting such.
    I also wonder if you would be making and limiting yourself to the same points and conclusions if your readers were actually paying for your considered legal opinion.

    • Thank you for your comment. It’s important to remember that Refugee Convention terms like ‘well founded fear, ‘persecution’, ‘particular social group’ etc are technical terms in refugee law with specific definitions, at least in the way that the Convention is applied in the UK. The Ecuadorians may well interpret them differently. The point was to compare what is known about JA’s asylum claim with the standard procedure for assessing refugee claims in the UK. He has disclosed little detail in public about why he fears persecution – and said nothing about it in his extradition appeals. I have no more and no less information about it than you.

    • Billeo says:

      Yegads….an agenda! Isn’t that part of advocacy? Poorly hidden, grant you that.

  20. Pingback: Wikileaks is not Assange | Edinburgh Eye

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