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The Saga of Julian Assange

26 September 2012 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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By Justice Rohini Marasinghe ( Judge of the Court of Appeal )
The historical dimensions of the  "Triangular episode” of the Assange Saga are well known. Among the various alleged sins committed by Assange, an Australian Citizen, he is accused of a particularly heinous sin which has resulted in this “triangular paradigm” of a diplomatic battle involving three Nation States. He is alleged to have committed a sex offence in Sweden for which the Government of Sweden has issued an international warrant of arrest through Interpol. The Government of Ecuador has provided him with asylum and Assange now remains in self-imposed incarceration inside the rather crammed premises of the Ecuadorian Embassy in the United Kingdom. And thirdly, the U.K. Government has initially placed a tight cordon around the Ecuadorean Embassy to prevent Assange from escaping from those premises and possibly reaching Ecuador for his own personal safety and freedom. The State parties to this triangular episode are: Sweden, Ecuador and the United Kingdom. Assange’s Australian Citizenship remains only as a distant observer to this conflict.

There are other sins too that Assange is alleged to have committed, such as leaking through Wikileaks the inner secrets of the Pentagon for which, in the U.S.A., its law may earn him a sentence of a life imprisonment or even Death. That matter, however, is not directly relevant at the present moment, but it will become directly relevant if and when Assange is sent back to Sweden. The U.S.A. may then seek his extradition from the Swedish Government. That is, at present, a peripheral issue which I do not intend to deal with here.



The Three Issues
There are therefore, presently, three matters that require some consideration. First Is the Ecudorian Embassy in breach of the Diplomatic Law under the Vienna Convention, if it were harbouring a “Fugitive from Justice”? and Second, has the “Receiving State”, the U.K., under the Convention or under the Diplomatic Law arising from the Convention, a power to enter with force, the premises of the Ecuadorian Embassy to seize Assange, in execution of the International warrant issued by Sweden, to arrest and extradite him. Lastly, is Assange a “Fugitive from Justice” from Sweden or the U.K.?
The issue of harbouring a fugitive from Justice in the diplomatic premises of the sending State has raised many complex problems. It raises the issue of giving asylum to a fugitive from justice and the concomitant rights of the receiving state to cause a forcible entry into the premises to seize that fugitive. An additional problem in the Assange case is that Assange is not a fugitive from justice from the receiving state but from a third State which is neither in the present fact situation is the sending state nor the receiving state. He is alleged to be a “fugitive from justice” from a “Friendly State” Sweden.

The available case law deals with diplomatic premises of sending states harbouring ‘fugitives from Justice” from the receiving states and not from “Friendly States”. The Classic case in point is that of Dr. Sun Yat Sen (1896), who was a refugee from China, living in London. He had Dr. Sun kidnapped and was held as a hostage at its Diplomatic premises. Upon an application made to the U.K. courts to have a writ of habeas corpus issued against the Chief of Mission, the English court held that the detention without the avowed consent of Dr. Sun was unlawful under the English Law and therefore it constituted a breach of diplomatic privilege. The court thereupon requested that there should be a diplomatic dialogue on this matter and the proper course which the Chief of the Mission should take was to release Dr, Sun. Dr. Sun was the released. As later events records, Dr. Sun subsequently became the President of the Republic of China. In diplomatic parlance China, at the time, could be characterized as a “Friendly State” of the U.K as Sweden is at the present day. The situation is different where the person given asylum is a person who is a “fugitive from Justice” of the receiving State regarded as a” fugitive from Justice” under the Chinese Law.
(This is the first of the series of articles on Julian Assange by Justice Marasinghe)
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