The Saga of Julian Assange

3 October 2012 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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By Justice Rohini Marasinghe
Judge of the Court of Appeal

More recently, in 1966, a Chinese Engineer was visiting The Hague to attend a conference of Welding Engineers. At a particular point of time, during his visit, he was found in a severely wounded condition, lying on the road, outside the home in which he was temporarily staying. The Netherland authorities had him removed to a hospital. While the wounded person was lying on his bed, a few of his colleagues who had also come to attend the same meeting removed him and carried him to the Chinese Mission.

While being held in the Mission, the wounded person died. Death having occurred as result of an act committed within the jurisdiction of the receiving state, the dead man’s colleagues were important, as witnesses, from whose evidence the prosecutor could determine whether there had or had not been a commission of a Crime.



The Netherlands, not only did declare the Chief of mission a persona non grata but also had the premises in which the mission was, surrounded, to prevent the escape of those persons whom the receiving state desired to question.
This siege lasted nearly five months whereupon the Chinese government agreed to permit the witnesses to be questioned by the public prosecutor within the premises.

This is a fact situation which raised questions regarding the commission of a criminal offence alleged to have been committed within the jurisdiction of a receiving State. In this aspect, the fact situation differs from the Assange fact situation. Assange had not committed any offence within the jurisdiction of the receiving State. Therefore there is no State interest in the receiving state (U.K.) to pursue.

Netherland authorities for that reason required the deceased person’s colleagues to be made available to the Netherland’s prosecutor for questioning. The Chinese Chief of Mission in the Netherlands refused access to the Diplomatic Mission to question them.
The available case law deals with wrongs committed within a receiving state and not those committed within a “Friendly State”.

The case of Dr. Sun concerned a “fugitive from justice” from a “Friendly State” but he was granted asylum and his forced removal and incarceration within the Chinese Legation constituted a wrong under the law of the receiving state, which amounted to kidnapping.
 In that aspect it is similar to the 1966 matter from The Netherlands mentioned above. Therefore the issue of the writ of habeas corpus in the case of Dr. Sun was justifiable.

Second, The Principle of Inviolability of Diplomatic Premises may be found in literature dating to a period before Grotius (1625). The principle requires the receiving sovereign to refrain from applying its laws to such premises. Article 22 is quite explicit when it declares that:

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the Head of the Mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Paragraphs (1) and (3) place a duty upon the receiving state to abstain from exercising its rights which it may otherwise exercise with reference to persons and property found on its own territory. There is a clear exclusion of rights of a “receiving state” exercised from the embassy property of a “sending state”.
To that extent the U.K. government is in breach of Diplomatic Law arising from the aforementioned Article 22 paragraph (3) if its executive arm were to search an Ecuadorean Embassy vehicle in which Assange may be found travelling.

Perhaps the situation may be different if Assange were a refugee from justice of the UK, the receiving State. The principle adopted by The Netherlands in 1966 in the matter of the Chinese Welding Engineers would then apply. But Assange did not fall into that category.
Paragraph (2) of Article 22, however, deals with a separate issue. That deals with the dignity of the “Sending State” in the eyes of the inhabitants of the “Receiving State” and of other Diplomatic Representatives in the Receiving State.

This is equally important in maintaining, in the “receiving state”, the diplomatic status, the dignity, and respect of the “sending state”.
Encircling the Ecuadorean Embassy in London, ostensibly to prevent Assange from escaping, amounts to publicising that the Ecuadorian Embassy is harbouring a criminal, a fact which has yet to be decided. That quite clearly affects the dignity of the “Sending State” which the “receiving sate” breaches, by breaching paragraph (2) of Article 22.

Third The Swedish Legal system, like most European legal systems, requires the appointment of a judge, who has been specially trained and qualified to provide a judicial cover to inquiries made into a crime.
(This is the second of the series of articles on Julian Assange by Justice Marasinghe)
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