UK on the verge of committing an act of war...

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JakobVirgil
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20 Aug 2012, 3:10 pm

visagrunt wrote:
aspi-rant wrote:
it is still her word against his… sorry.

no judge in this world is able to judge this… since no proof can be given. ever.

it is insane that sweden and the UK are making complete fools of them selves over this.

this is one of the most ridiculous cases in the world.

move on. nothing to see here.


If it is her word against his, then that is a judgement to be made by the Swedish Court. Not some politically motivated bystanders who have not had the opportunity to hear the witnesses, evaluate their credibility and weigh their testimony.

As for the word, "rape," it is being misused. The word, in Common Law, has a very narrow and specific meaning, requiring genital penetration (even genital oral or genital anal penetration does not constitute "rape" at Common Law). Jusrisdictions have responded to this in one of two ways. The first is to broaden the definition of rape by statute. When a statute says that some set of behaviours constitute rape, then those behaviours are "statutory rape," because they are rape as it is defined in a statute. On the other hand, some jurisdictions have chosen to abandon rape altogether and define offenses such as "sexual assault." Assange is not, and never has been wanted on a charge of "rape," because no such charge exists in Swedish Law, so far as I am aware. To compare his behaviour to the common law definition of rape is meaningless.

(q.f. Cornflake's very sensible post.)

JakobVirgil wrote:
Agreed the Swedes should interview him in the Embassy.
It's not like he is going anywhere.


Did you read the New Statesman article?

http://www.newstatesman.com/blogs/david ... xtradition

This isn't a "come down to the police station for a chat" kind of questioning. This is a judicial process in which the Court, the prosecution and the defendant must all be present. And Swedish Courts do not have the capacity to sit in Ecuadorean embassies. Just recall how much legislation was required to let Scottish courts sit in the Netherlands for the prosecution of the Lockerbie bombing.


In the article there is mentioned the accusers refusal to have a video conference does that mean if she just said they could do it in London?

I sure that everything is being done legally that does not mean it is not being done for political reasons.


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visagrunt
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20 Aug 2012, 3:30 pm

JakobVirgil wrote:
In the article there is mentioned the accusers refusal to have a video conference does that mean if she just said they could do it in London?

I sure that everything is being done legally that does not mean it is not being done for political reasons.


I don't think that they could, because he would not be within the jurisdiction of the court, and it would be, effectively a proceeding in absentia. I'm not even sure that a Scottish court can exercise extraterritorial jurisdiction within England, let alone a truly foreign court. If there was a legal mechanism whereby he would attorn himself to the jurisdiction of the foreign court, that might be a different matter. But in order for that jurisdiction to be enforcable against him, I suspect that that would require Parliament to create enabling legislation for the Swedish Court to exercise extraterritorial jurisdiction within England.


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20 Aug 2012, 3:36 pm

Cornflake wrote:
Sweetleaf wrote:
The only definition of the specific single word 'rape' is forced sexual intercourse as far as I know(and that was my meaning). I am aware there are other things like statutory rape but that is 'statutory rape' as one phrase so of course it will have a different definition then the plain word rape as it is a different term. If the article meant something other than sexual assult and rape allegations like it said I guess I misunderstood.
Well, it's difficult with this case when we're only able to see what the media feeds us and I kind-of suspect they're more likely to drop any term like "statutory" or some other equivalent Swedish technicality in order to report this whole thing as a more sensational "rape" (conventional meaning). Or, there is an understanding through consulting their own lawyers that this is not "rape" in the conventional sense - even the erstwhile BBC now tends to report it as "sexual assault allegations" instead of "rape", as it originally did.
Not meaning in any way to cast doubt or an opinion on what the women experienced - more like an opinion on the reliability and detail of what's being reported.


That is why I initially mentioned that its disappointing there is no real way to know exactly whats true or not other then what the media says. And based on what I've gathered from that regardless of if the sexual assualt or rape allegations were true the whole thing still seems pretty ridiculous and does not make much sense at all.


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simon_says
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20 Aug 2012, 4:00 pm

It doesnt really solve anything by questioning him at the embassy.. If they press charges, which they appear likely to do, he'd still have to go to Sweden. They can't set up a police station, courtroom and prison for him in the UK. And I don't see why they need to.



JakobVirgil
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20 Aug 2012, 4:04 pm

visagrunt wrote:
JakobVirgil wrote:
In the article there is mentioned the accusers refusal to have a video conference does that mean if she just said they could do it in London?

I sure that everything is being done legally that does not mean it is not being done for political reasons.


I don't think that they could, because he would not be within the jurisdiction of the court, and it would be, effectively a proceeding in absentia. I'm not even sure that a Scottish court can exercise extraterritorial jurisdiction within England, let alone a truly foreign court. If there was a legal mechanism whereby he would attorn himself to the jurisdiction of the foreign court, that might be a different matter. But in order for that jurisdiction to be enforcable against him, I suspect that that would require Parliament to create enabling legislation for the Swedish Court to exercise extraterritorial jurisdiction within England.



There was some offer of video conferencing made by the Swedish court or she would have nothing to refuse.


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aspi-rant
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21 Aug 2012, 1:30 am

if a refugee was seeking asylum at the US embassy in the UK, and the US granted this person asylum… would the UK storm the US embassy?

answer: no, of course not.

why?

Quote:
The primary international agreement governing asylum is the 1951 Convention Relating to the Status of Refugees, which originally protected European refugees after World War II. The Convention was modified and expanded by the 1967 Protocol Relating to the Status of Refugees


article 1 of the convention defines a refugee as

Quote:
"A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."


that's why it means that

Quote:
Individuals may apply for asylum and resettlement in the U.S. at a U.S. embassy in another country, or, if the individual seeks to enter the U.S. and obtain asylum, then at the place of U.S. entry, such as an airport, where immigration officials will interview him or her.


http://www.justia.com/immigration/asylum/


so…

what is different in the assange/ecuador case? nothing.

same rules. same arguments. same rights. same laws. same procedure.

please remember: assange is (officially) NOT trying to bail prosecution for possible rape in sweden (that could not give him asylum anywhere!) … he is (officially) trying to prevent being extradited to the US for his political views for what he is doing in wikileaks, while being in sweden for the rape-case. sweden has an agreement with the US to extradite … so his concern is 100% legit. and so is his wish for asylum to prevent that.

he calls upon his rights to seek asylum in any country that has signed the convention, and he seeks this asylum solely based on the consequences his membership in a particular social group or political opinion has put him in.

if the UK storms the embassy, it will most likely be regarded as an act of war and can not be legal according to international law.

ecuador and its embassy has done nothing wrong; they have obeyed the convention they agreed upon.

just as any US embassy would do… anywhere in the world.



visagrunt
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21 Aug 2012, 11:38 am

Assange is not a Convention Refugee for two reasons:

1) It is well established in refugee law that prosecution of crime only amounts to a well founded fear of persecution when the crime for which the person is sought is a political crime with a nexus to one of the grounds on which refugee status is sought. Sexual misconduct is not a political crime, and it has nothing to do with Assange's race, religion, nationality, membership in a particular social group or political opinion. Any suggestion of a request by the United States for extradition is speculative, and does not demonstrate a well founded fear, nor that that the reasons for which the United States would seek him would constitute persecution within the meaning of the Convention.

2) Assange is able to avail himself of the protection of Australia. Were the United States to seek his extradition, and were that request to make out a fear of persecution, there are ample legal remedies in Australian law with which to make that case. He is perfectly able to avail himself of the protection of the country of his nationality.

You seem to have no idea about the nature of extraterritorial action. Sovereign states are capable of acting extraterritorially--it's one of the things that distinguishes a sovereign state, like the United States or Canada, from subordinate jurisdictions, like their individual states and provinces. But extraterritorial action can never legally subordinate the sovereignty of the territory in which the action takes place, unless that territory has agreed to that subordination. Embassies enjoy diplomatic immunity not because international law says so, but because the Receiving State passes law that says so, and the extend of their immunities is a question of local law.

So when taking the extraterritorial action to grant legal status to an individual, how far can a state go? The normal practice when granting asylum or refugee status on an extraterritorial basis is to issue a visa. A country declares, "we believe that this person is a refugee, and we will give that person safe haven upon arrival." In most circumstances the countries where such people find themselves allow them unhindered departure. But there is nothing in the issuance of an immigrant visa--even as a convention refugee--that requires a country to do so. Countries that have exit controls are still free to exercise those controls, even over a person with a refugee travel document, let alone a third country's immigrant visa.

What Ecuador has done--and this is an action that is recognized only in a handful of Latin American countries--is to not only recognize a claim to asylum, but to purport to insulate the individual from the sovereignty of the local state. That is Ecuador's offence. They know full well that the United Kingdom does not recognize any status of diplomatic asylum, and yet they have purported to act in this fashion, anyway.

If Assange were to seek Convention Refugee status, the limit that the United States or any other country could go would be to issue him with a visa and--were he unable to present a passport--a travel document. Ecuador has pretended to do more than that, and to harbour him from the authorities of the state in which he finds himself. There is nothing in the 1951 Convention, the 1969 Protocol, the 1961 Vienna Convention or, most importantly, United Kingdom law that permits such an action.

As for your spurious claims:

Quote:
what is different in the assange/ecuador case? nothing.


Ample difference. Ecuador is attempting to use their doctrine of diplomatic asylum to frustrate British law. The United States issuing a refugee with an immigrant visa does no such thing.

Quote:
same rules. same arguments. same rights. same laws. same procedure.


Not the same rules. Ecuador has not pretended to find Assange to be a Convention Refugee, they have extended asylum to him. Those are two different things.
Certainly the rights are the same, but they are not the rights that you pretend them to be. A person claiming refugee status has the right to apply for resettlement, but he does not have the right to be sheltered from local authorities.
The laws most certainly aren't the same, because Ecuadorean law admits of diplomatic asylum, whereas the United States, the United Kingdom, Sweden, Australia (and just about every other country on earth outside Latin America) do not.
And the procedure most certainly isn't the same. If he walks out of the Ecuadorean embassy with an immigrant visa in his passport, and tries to go to the airport, then the procedure will be the same.

Quote:
please remember: assange is (officially) NOT trying to bail prosecution for possible rape in sweden (that could not give him asylum anywhere!) … he is (officially) trying to prevent being extradited to the US for his political views for what he is doing in wikileaks, while being in sweden for the rape-case. sweden has an agreement with the US to extradite … so his concern is 100% legit. and so is his wish for asylum to prevent that.


The United States hasn't sought his extradition. If they seek his extradition from Sweden, Sweden cannot extradite him without the United Kingdom's consent, because extradition agreements are built with these protections to prevent exactly what you are suggesting. He will be just as well protected in Sweden as he is in the United Kingdom, so his avoidance of Swedish jurisdiction on this basis is a lie. He has had his chance to make this argument three times in English courts, and three times his argument has been categorically rejected.

I don't doubt that Assange is fearful of falling into the hands of United States authorities. But so far as the law of the United Kingdom and of England is concerned, his fear is not well founded.

Quote:
he calls upon his rights to seek asylum in any country that has signed the convention, and he seeks this asylum solely based on the consequences his membership in a particular social group or political opinion has put him in.


If he is genuinely a convention refugee, then his remedy is to seek resettlement in the United Kingdom, or to obtain an immigrant visa on that basis from some third country. But so far as I am concerned, he is not a Convention Refugee--and even if things came to pass as you suggest, I see little basis upon which such a claim could succeed.

Quote:
if the UK storms the embassy, it will most likely be regarded as an act of war and can not be legal according to international law.


Who, other than the Ecuadorean Ambassador, has ever suggested that the UK would storm the embassy? So far as I am aware, the United Kingdom has pointed out to the Ambassador that they view this use of the Embassy as improper (perfectly correct), and that there is domestic British legislation on this subject of which they should be aware (equally correct). They have made no threat to enter the Embassy's premises. The police presence is external to the Embassy premises. The Ambassador and his staff have free access. Assange wasn't hindered in the delivery of his urbi et orbi message from the balcony.

So far as I can see, the Ecuadoreans have a long term houseguest.

Quote:
ecuador and its embassy has done nothing wrong; they have obeyed the convention they agreed upon.

just as any US embassy would do… anywhere in the world.


You may believe that they have done nothing wrong. But the Foreign Office do, and they are the final authority on such a question. It's British territory, granted immunity under conditions set out in British law, and I rather think that the Foreign Secretary is in a better position to opine on this subject than you.

I think you are labouring under a grave misapprehension about the United States' willingness to harbour individuals in missions. There have only been a handful of such cases (I only know of 14 individuals in 7 instances). Of these two arose from the overthrow of governments recognized by the United States (Hungary in 1956 and Burundi in 1996), one took place in a third country (France) which had no interest in the individual. The other four involved active sheltering from local authorites (one in the USSR and three in China).

Seven incidents hardly justifies the statement, "just as any US embassy would do... anywhere in the world."


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21 Aug 2012, 12:37 pm

if you say so, james.