August 16, 2012
The government of Ecuador has officially granted asylum to WikiLeaks founder and editor-in-chief Julian Assange. Earlier this morning, Foreign Minister Ricardo Patino made the announcement, describing the process undertaken before a decision was made by the government and declared the government endorsed the "fears," accepted that Assange could face political persecution and measures, such as asylum, are necessary to avoid this persecution.
The decision did not hinge upon whether Assange could be granted safe passage to Ecuador or not. The Ecuador government indicated its hope that the United Kingdom would respect Ecuador’s decision and allow Assange—now a political refugee—the right to leave the Ecuador embassy in the UK for Ecuador.
The government said the "foundation" of the asylum application was the "political offenses" Assange was accused of committing. These "offenses" are what placed Assange in imminent danger. He read off a list of points that show why the situation could end up being one of "prejudice"and violation of Assange’s rights, integrity and risk to personal safety and freedom."
Here is the list:
Julian Assange is an award-winning communications professional internationally for his struggle for freedom of expression, press freedom and human rights in general;
That Mr. Assange shared with the global audience was privileged documentary information generated by various sources, and affected employees, countries and organizations;
That there is strong evidence of retaliation by the country or countries that produced the information disclosed by Mr. Assange, retaliation that may endanger their safety, integrity, and even his life;
That, despite diplomatic efforts by Ecuador, countries which have required adequate safeguards to protect the safety and life of Mr. Assange, have refused to facilitate them;
That is certain Ecuadorian authorities that it is possible the extradition of Mr. Assange to a third country outside the European Union without proper guarantees for their safety and personal integrity;
That legal evidence clearly shows that, given an extradition to the United States of America, Mr. Assange would not have a fair trial, could be tried by special courts or military, and it is unlikely that is applied to cruel and degrading , and was sentenced to life imprisonment or capital punishment, which would not respect their human rights;
That while Mr. Assange must answer for the investigation in Sweden, Ecuador is aware that the Swedish prosecutor has had a contradictory attitude that prevented Mr. Assange the full exercise of the legitimate right of defense;
Ecuador is convinced that they have undermined the procedural rights of Mr. Assange during the investigation;
Ecuador has found that Mr. Assange is without protection and assistance to be received from the State which is a citizen;
That, following several public statements and diplomatic communications by officials from Britain, Sweden and USA, it is inferred that these governments would not respect the conventions and treaties, and give priority to domestic law school hierarchy, in violation of rules express universal application and,
That, if Mr. Assange is reduced to custody in Sweden (as is customary in this country), would start a chain of events that would prevent the further protective measures taken to avoid possible extradition to a third country.
It is important to note here that Ecuador approached the Swedish authorities, urged them to come question Assange in the Ecuador embassy in the UK and even asked that they ensure he would not be extradited to the US if he ended up in the UK. Sweden did not offer any diplomatic assurance that Assange would not eventually be extradited to the US while in custody over sexual allegations.
The government of Ecuador laid out various conventions, treaties and other tenets of international law that gives them the right and authority to grant refugee status (because they were keenly aware that they would be accused of acting inappropriately).
Here is what the government came up with to bolster the right they have to grant asylum:
a) United Nations Charter of 1945, Purposes and Principles of the United Nations: the obligation of all members to cooperate in the promotion and protection of human rights;
b) Universal Declaration of Human Rights , 1948: right to seek and enjoy asylum in any country, for political reasons (Article 14);
c) Declaration of the Rights and Duties of Man , 1948: right to seek and enjoy asylum for political reasons (Article 27);
d) Geneva Convention of August 12, 1949, relative to the Protection of Civilian Persons in Time of War: in no case be transferred to the protected person to a country where they fear persecution for his political views ( Article 45);
e) Convention on the Status of Refugees 1951 and Protocol of New York, 1967: prohibits returning or expelling refugees to countries where their lives and freedom would be threatened (Art. 33.1);
f) Convention on Diplomatic Asylum , 1954: The State has the right to grant asylum and classify the nature of the offense or the motives of persecution (Article 4);
g) Convention on Territorial Asylum of 1954: the State is entitled to admit to its territory such persons as it considers necessary (Article 1), when they are persecuted for their beliefs, political opinions or affiliation, or acts that may be considered political offenses ( Article 2), the State granting asylum may not return or expel a refugee who is persecuted for political reasons or offenses (Article 3); also, extradition is not appropriate when dealing with people who, according to the requested State, be prosecuted for political crimes , or common crimes committed for political purposes, or when extradition is requested obeying political motives (Article 4);
h) European Convention on Extradition of 1957, prohibits extradition if the requested Party considers that the offense charged is a political (Article 3.1);
i) 2312 Declaration on Territorial Asylum of 1967 provides for the granting of asylum to persons who have that right under Article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism (Article 1.1). It prohibits the refusal of admission, expulsion and return to any State where he may be subject to persecution (Article 3.1);
j) Vienna Convention on the Law of Treaties of 1969, provides that the rules and principles of general international law imperatives do not support a contrary agreement, the treaty is void upon its conclusion conflicts with one of these rules (Article 53), and if a new peremptory norm of this nature, any existing treaty which conflicts with that provision is void and is terminated (Article 64). As regards the application of these Articles, the Convention allows States to claim compliance with the International Court of Justice, without requiring the agreement of the respondent State, accepting the court’s jurisdiction (Article 66.b). Human rights are norms of jus cogens.
k) American Convention on Human Rights , 1969: right to seek and enjoy asylum for political reasons (Article 22.7);
l) European Convention for the Suppression of Terrorism of 1977, the requested State is entitled to refuse extradition when there is a danger that the person is prosecuted or punished for their political opinions (Article 5);
m) Inter-American Convention on Extradition of 1981, the extradition is not applicable when the person has been tried or convicted, or is to be tried in a court of special or ad hoc in the requesting State (Article 4.3), when, under the classification of the requested State, whether political crimes or related crimes or crimes with a political aim pursued, and when, the circumstances of the case, can be inferred that persecution for reasons of race, religion or nationality; that the situation of the person sought may be prejudiced for any of these reasons (Article 4.5). Article 6 provides, in reference to the right of asylum, that "nothing in this Convention shall be construed as limiting the right of asylum, when the appropriate".
n) African Charter on Human and Peoples of 1981, pursued individual’s right to seek and obtain asylum in other countries (Article 12.3);
o) Cartagena Declaration of 1984, recognizes the right to shelter, unless rejected at the border and not be returned.
p) Charter of Fundamental Rights of the European Union 2000: establishes the right of diplomatic and consular protection. Every citizen of the Union shall, in the territory of a third country not represented by the Member State of nationality, the protection of diplomatic and consular authorities of any Member State, under the same conditions as nationals of that State (Article 46).
It is clear that Ecuador has a right to grant asylum to Assange. The country went even further, however. It stated Ecuador has a tradition in recent years of "accommodating" a "large number of people who have applied for territorial asylum or refugee status." A number of Colombians, for example, have fled armed conflict. According to the High Commissioner for Refugees, Ecuador’s "refugee policy" has been praised, they highlighted the fact that the "country has not been confined to camps for these people, but have been integrated into society, full enjoyment of their human rights and guarantees."
Now, there probably was never any worry that Assange would have trouble integrating into Ecuadorian society but it is established: Ecuador considers asylum to be one of many human rights that should be available to people. It also believes that countries should act in cooperation to grant refugee status to humans in danger. "The effective implementation of this right requires international cooperation" and, without such cooperation, the institution of asylum would be "totally ineffective."
Ecuador has positioned itself, with this announcement, as a country that respects international law and human rights. It sees what Assange has done as editor-in-chief of WikiLeaks as something worth supporting. President Rafael Correa and others in the Ecuador government support the transparency it brought to the world, probably because it exposed how powers were conspiring against Ecuador and other Latin American countries previously. It exposed what people inside the country were doing in conspiracy against Correa’s administration.
The focus of media attention will undoubtedly shift to whether Assange can possibly ever make it out of the embassy in the UK to some vehicle and leave for Assange. There is going to be plenty of glib postings about what Assange can do now that he may be stuck indefinitely in the embassy. But, realize that what UK is doing and has done by using coercion against Ecuador and threatening to storm the embassy yesterday is astounding and deserves discussion. Whether it is respectful of human rights to not allow Assange safe passage should be a focus of discussion if not the focus of discussion.