BRIEFING FOR THE COUNCIL OF EUROPE
WHY OPPOSING JULIAN ASSANGE’S EXTRADITION TO THE U.S. MATTERS FOR EUROPEAN DEMOCRACY
| “Organisations like WikiLeaks have laid bare
countless state secrets, revealing the often grubby workings of power”.
(Thorbjorn Jagland, Secretary General, Council of Europe, November 2016)[1] |
The Trump Administration has confirmed that the US government has
charged WikiLeaks’ publisher Julian Assange and that it seeks his
extradition from the UK.[2]
In the US, he faces life in prison. The US actions are a serious threat
to European freedom of _expression_, media and sovereignty.
- The United Nations has repeatedly called for Assange to walk free.
- Amnesty International, Human Rights Watch and other leading human
rights organisations have released statements categorically opposing
Assange’s extradition.
- The city of Geneva recently passed a resolution calling for Assange to be granted asylum.
Parliamentary Members of the Council of Europe should:
- Oppose Assange’s extradition to the US.
- Ensure that the Council of Europe raises this case in its procedures and champions the issue in its work on media freedom
- Press the UK government to find the solution to this issue which is available (see below)
The extradition of Julian Assange raises a number of fundamental issues for European democracy.
First, European states have clear obligations under international law
to protect the rights of refugees and asylum seekers. Assange’s asylum
status requires that he not be transferred to the persecuting state
(i.e., the country that he was given asylum in relation to, the US).
Second, the extradition of Julian Assange is for publishing and confronts fundamental issues concerning media freedom:
- The extradition by the Trump Administration of a publisher in Europe
for the “crime” of publishing truthful information, would set a very
dangerous precedent for the extra-territorialisation of state secrecy
laws and interference in the right to publish and media freedom in
Europe.
- It cannot be the case that the Trump Administration be permitted to dictate what can and cannot be published in Europe.
- An extradition would post an invitation to other states to follow
suit, severely threatening the ability of journalists, publishers and
human rights organisations to safely reveal information about serious
international issues.
The Council of Europe strongly advocates for freedom of _expression_
and freedom of the media: It states: “The right to freedom of _expression_
and freedom of the media as protected by Article 10 of the European
Convention of Human Rights are pillars of democratic security in Europe.
The Council of Europe promotes an enabling environment for freedom of
_expression_, underpinned by legal guarantees for independence and
diversity of media and safety of journalists and other media actors”.[3]
| Thorbjorn Jagland, Secretary General, Council of Europe: “Wikileaks has…challenged traditional notions of journalism,
bringing up fresh challenges to both media freedom and journalists’
working practices, but it has vindicated some old values: after all,
much of Wikileaks’ impact came about because of reporting by journalists
from traditional media. The advent of new communication technologies is
changing the world as surely as the spinning jenny transformed the
textile industry and the world’s economies; and just as no one could
foresee the long-term impact of the Industrial Revolution, no more can
anyone predict the future now. If Wikileaks is forced to close, a
thousand more sites will spring up in its place”.[4] |
Julian Assange has exposed serious US spying and economic sabotage
against European states, including Germany, France and Italy. He has
spoken at the European Parliament on numerous occasions in relation to
freedom of _expression_ and the fight against corruption. WikiLeaks has
always published from Europe: France, Germany, Netherlands, Sweden, UK,
Norway and Iceland.
Mr Assange was living in France until he was detained when visiting
the UK to assist the Guardian publish “Cablegate”. His young children
are in France. “Brexit” will prevent him using the Court of Justice of
the European Union and other EU mechanisms to secure his freedom.
There is real urgency about Julian Assange’s situation given the
confirmation of the existence of US charges against him and credible
reports that the Ecuadorian government has caved in to pressure and may
imminently expel him from the embassy.
Mr Assange’s freedom is not simply a matter for the courts in the
United Kingdom but for the UK government. The UK government has a
simple solution available to this matter:
- It can provide a substantive diplomatic assurance (to the UNHCR,
EU, France, Ecuador or Australia) that Assange would not be extradited
to the United States (the state in relation to which he has refugee
status). Such assurances are standard practice in the transfer of
refugees or persons involved in legal processes, from one jurisdiction
to another (i.e., if Ecuador hands him over to the UK, to resolve any
remaining legal issues in the UK). The very foundation of the
international refugee system is that refugees cannot be transferred to
the state in relation to which they have refugee status.
Main briefing
1. US charges and extradition. On 15 November last
year, the US Department of Justice inadvertently revealed that “Assange
has been charged” under seal and that the US seeks his extradition from
the UK.[5] These charges have been confirmed to various media, including Associated Press, the Washington Post and the New York Times.[6]
In the US, Assange faces life in prison for publishing truthful
information. The charges relate to WikiLeaks’ 2010-2011 joint
publications on war, diplomacy and rendition with a range of media
organisations – Der Spiegel, Le Monde, La Repubblica, Espresso, The
Guardian, Liberation, Mediapart, The Telegraph, The Independent, Channel
4, the Bureau of Investigative Journalism, Reuters, and others. (At no
time has WikiLeaks or Julian Assange been contacted by the “Mueller
investigation” which is looking into the 2016 US election.) Chelsea
Manning, the alleged source for the WikiLeaks publications on Iraq and
Afghanistan in 2010-2011, who was granted clemency by President Obama in
2017, was re-jailed by the Trump Administration on 8 March 2019,
formally to coerce her to testify against WikiLeaks.
2. Threats against Assange. High ranking US
officials have issued a series of threats against Assange and WikiLeaks
to “take down” the organisation, asserting that “Julian Assange has no
First Amendment privileges. He is not a US citizen” (then CIA director
Mike Pompeo[7]) and stating that arresting Assange is a “priority” for the US (then US Attorney General Jeff Sessions[8]).
The key reason for this approach is WikiLeaks’ release of thousands of
files on the CIA in 2017 – “the largest leak of CIA documents in
history”[9]
which revealed the CIA’s efforts to infest computers, smartphones, TVs,
routers and even vehicles with CIA viruses and malware. The US
government arrested a young US intelligence officer as WikiLeaks’ source
who now faces 160 years in prison and is being held in harsh
conditions. The media reported in 2017, just after the Vault 7
publications, that the US was expanding the investigation against
Assange and had prepared charges against him.[10] All the while, it has never been questioned that WikiLeaks simply published truthful information.
3. Freedom of the media. Prosecuting WikiLeaks
raises the spectre of prosecuting journalism generally and severely
threatens freedom of the media. WikiLeaks has published material given
to it by whistleblowers. Dozens of media organisations in Europe,
including Der Spiegel, Le Monde, La Repubblica, Espresso, The Guardian,
Liberation, Mediapart, The Telegraph, The Independent, Channel 4,
Reuters and many others – have published that material. Publishers
should surely not be prosecuted for the “crime” of publishing truthful
information.[11]
The Trump administration should have no right to prosecute a
journalist in the UK, operating from the UK and the rest of Europe, over
claims under US laws. This would open the flood gates to an extremely
dangerous precedent that everyone should be worried about. Julian
Assange’s co-publishers at numerous media organisations all risk
prosecution if the US is allowed to prosecute a non-US publisher or
journalist for revealing information it says is secret. If the US
government can prosecute a non-US journalist publishing from the UK for
revealing secrets about the US, why can’t Russia prosecute a British
journalist in London for revealing secrets about Moscow, or Saudi Arabia
do the same for revealing secrets about the Khashoggi murder?
| Media freedom under threat David Kaye: UN special rapporteur on freedom of opinion and _expression_: “Prosecuting Assange would be dangerously problematic from the perspective of press freedom… and should be strongly opposed”[12] Dinah PoKempner, General Counsel, Human Rights Watch: “No one should be prosecuted under the antiquated Espionage Act for
publishing leaked government documents. That 1917 statute was designed
to punish people who leaked secrets to a foreign government, not to the
media, and allows no defense or mitigation of punishment on the basis
that public interest served by some leaks may outweigh any harm to
national security.”[13] New York Times: “Mr. Assange is not a traditional journalist, but what he does at
WikiLeaks has also been difficult to distinguish in a legally meaningful
way from what traditional news organizations, like The New York Times,
do every day: seek out and publish information that officials would
prefer to be kept secret, including classified national security
matters.”[14] |
4. Granting of refugee status. Julian Assange was
granted asylum by Ecuador in 2012, including under the 1951 Refugee
Convention, to which European states are party, owing to his
well-founded fear of persecution.[15]
Asylum was granted after the UK and Swedish governments refused to give
Ecuador diplomatic assurances that they would not extradite him to the
US over WikiLeaks’ publications. The risk of extradition to the US is
the only reason he sought and received asylum by Ecuador. It is the only
reason in his asylum application and the only reason in Ecuador’s
asylum determination.
Julian Assange has always been willing to face any outstanding bail
issue in a UK legal process but not at the expense of facing extradition
to the United States. No charges were ever brought against Assange in
Sweden, which closed its investigation in 2017. Emails released under
a tribunal challenge following a Freedom of Information Act request
revealed that the Swedish authorities wanted to drop the arrest warrant
for Assange as early as 2013 – it was the UK government that improperly
insisted it continue.[16]
5. Obligations under international law.
Julian Assange is protected under international refugee law and cannot
be returned to the persecuting state. The core principle of the 1951
Convention is non-refoulement “which asserts that a refugee should not
be returned to a country where they face serious threats to their life
or freedom”.[17]
Asylum was granted to Assange by Ecuador citing a “threat to his life,
personal safety and freedom” and the torture, cruel and degrading
treatment of his alleged source under US custody.[18]
6. United Nations call on the UK to uphold international law. The
UN Working Group on Arbitrary Detention (WGAD), the supreme
international body scrutinising this issue, has repeatedly called on the
UK government to end Assange’s “arbitrary detention”.[19]
In December 2018, it “repeated a demand that the UK abides by its
international obligations and immediately allows Wikileaks founder
Julian Assange to walk free from the Ecuadorian embassy”.[20] The UN states that WGAD determinations are legally-binding.[21] The latest UN statement was also reiterated by the UN Special Rapporteur for Human Rights Defenders Michel Forst.[22]
7. Human rights organisations oppose extradition.
Amnesty International and Human Rights Watch, among other human rights
organisations, have released statements categorically opposing Assange’s
extradition. Amnesty states that it “believes that Julian Assange
should not be extradited or subjected to any other transfer to the USA,
where there are concerns that he would face a real risk of serious human
rights violations due to his work with Wikileaks”.[23] Human Rights Watch has stated: “UK should reject extraditing Julian Assange to US”.[24]
8. Deteriorating health. Julian Assange has been
unable to leave the embassy for over six years for fear of being
arrested and then extradited to the United States. During this time,
medical assessments show that his health has deteriorated.[25]
The United Nations has stated that it is “concerned that the modalities
of the continued arbitrary deprivation of liberty of Mr. Assange is
undermining his health, and may possible endanger his life given the
disproportionate amount of anxiety and stress that such prolonged
deprivation of liberty entails”.[26]
9. A solution to the issue. The UK government has a
simple solution available to this matter: It can provide a diplomatic
assurance (to Australia or to Ecuador) that it will respect its refugee
obligations and not extradite Assange to the United States (the state in
relation to which he has refugee status). Such assurances are standard
practice in the transfer of refugees in legal processes from one
jurisdiction to another (i.e., if Ecuador hands him over to the UK, to
resolve any remaining UK domestic legal issues). The UK itself insists
that other states provide “no secondary purpose” guarantees for all extraditions from the UK.[27] Interpol also forbids arrest notices for refugees from the states in relation to which they have refugee status.[28]
The very foundation of the international refugee system is that
refugees cannot be transferred to the state in relation to which they
have refugee status.
There is real urgency about Julian Assange’s situation given the
confirmation of the existence of US charges against him and credible
reports that the Ecuadorian government has caved in to pressure and may
imminently expel him from the embassy.
For more information, contact: courage.contact@couragefound.org
The Courage Foundation – www.couragefound.org – is an international organisation that supports those who risk life or liberty to make significant contributions to the historical
record. It campaigns and fundraises for the legal and public defence of
specific individuals such as Julian Assange who are subject to serious
prosecution or persecution.
REFERENCES
[1] https://www.coe.int/en/web/secretary-general/speeches-2016/-/asset_publisher/TQ9ylWpDFtLP/content/14th-council-of-europe-conference-of-ministers-responsible-for-sport-sport-in-a-post-trust-world-closing-speech
[2] https://pacer-documents.s3.amazonaws.com/179/399086/18919235200.pdf. https://www.apnews.com/21288cb5819b49dd9042c0cf19ff2734. https://www.washingtonpost.com/world/national-security/julian-assange-has-been-charged-prosecutors-reveal-in-inadvertent-court-filing/2018/11/15/9902e6ba-98bd-48df-b447-3e2a4638f05a_story.html?utm_term=.9f54fa7bdcec
[3] https://www.coe.int/en/web/freedom-_expression_/media
[4] https://www.coe.int/en/web/secretary-general/opinion-articles/-/asset_publisher/EYlBJNjXtA5U/content/a-new-era-for-privacy-by-thorbj-rn-jagland
[5] https://pacer-documents.s3.amazonaws.com/179/399086/18919235200.pdf
[6] https://www.apnews.com/21288cb5819b49dd9042c0cf19ff2734. https://www.washingtonpost.com/world/national-security/julian-assange-has-been-charged-prosecutors-reveal-in-inadvertent-court-filing/2018/11/15/9902e6ba-98bd-48df-b447-3e2a4638f05a_story.html?utm_term=.9f54fa7bdcec
[7] https://www.washingtontimes.com/news/2017/oct/20/cia-working-take-down-wikileaks-threat-agency-chie/. https://www.newsweek.com/cia-chief-pompeo-takes-aim-free-press-587686
[8] https://www.theguardian.com/media/2017/apr/21/arresting-julian-assange-is-a-priority-says-us-attorney-general-jeff-sessions
[9] https://www.nytimes.com/2017/03/07/world/europe/wikileaks-cia-hacking.html
[10] https://edition.cnn.com/2017/04/20/politics/julian-assange-wikileaks-us-charges/index.html
[11] In August 2017 then Attorney General Sessions threatened to prosecute media outlets publishing classified information. https://www.reuters.com/article/us-usa-trump-sessions-leaks/trump-administration-goes-on-attack-against-leakers-journalists-idUSKBN1AK1UR
[12] https://twitter.com/davidakaye/status/1063445428337864706
[13] https://www.hrw.org/news/2018/06/19/uk-should-reject-extraditing-julian-assange-us
[14] https://www.nytimes.com/2018/11/16/us/politics/julian-assange-indictment.html#click=https://t.co/iQHSxEcX25
[15] https://www.cancilleria.gob.ec/statement-of-the-government-of-the-republic-of-ecuador-on-the-asylum-request-of-julian-assange/?lang=en
[16] https://www.theguardian.com/media/2018/feb/11/sweden-tried-to-drop-assange-extradition-in-2013-cps-emails-show
[17] https://www.unhcr.org/1951-refugee-convention.html
[18] https://www.cancilleria.gob.ec/statement-of-the-government-of-the-republic-of-ecuador-on-the-asylum-request-of-julian-assange/?lang=en
[19] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24042&LangID=E
[20] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24042&LangID=E
[21] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24042&LangID=E
[22] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24042&LangID=E
[23] https://twitter.com/AssangeDefence/status/1038344101794643968
[24] https://www.hrw.org/news/2018/06/19/uk-should-reject-extraditing-julian-assange-us
[25] https://blogs.bmj.com/bmj/2018/06/22/sean-love-access-medical-care-must-guaranteed-julian-assange/.
[26] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24042&LangID=E
[27] https://www.legislation.gov.uk/ukpga/2003/41/section/17
[28] https://www.theguardian.com/world/2018/dec/12/hakeem-al-araibi-interpol-red-notice-against-refugee-contravened-its-own-regulation