Four days ago, I resolved to turn my attention to issues other than Juluan Assange. However, I have been called again and again by journalists, including from Spain and Australia. And then I learned that a blog post from my colleague Mark Klamberg had been invoked by the Guardian to prove a point that was incorrect (not Mark’s fault, though). I have therefore translated and edited a couple of my earlier submissionss (17 and 20 August) for an international audience. I will focus on the extradition issue, but in order to be comprehensive, I will add a few words on diplomatic immunity and diplomatic asylum. (My apologies for any mistakes in the text; it is late at night.)
Assange can in principle be extradited from Sweden to the U.S., but that would require that a number of conditions be met, including that the U.S. guarantees that the death penalty will not be imposed / enforced, that the crimes are not considered to be political offenses or military offense, and that there is double criminality, meaning that the act is criminal also under the laws of the country from which extraditions is sought. When extradition requests are made from the US, the Americans regularly guarantee that the the death penalty will not imposed or carried out. Therefore, I believe that if a request is made, the crucial issue is whether the there is double criminality and whether it is for a non-political and non-military crime.
No request for extradition has been made to Swedish authorities, and no charges have been made public yet in the United States. There are speculations, however, that there is already a "sealed indictment", meaning a secret indictment. It is difficult to know what any charges would concern. The former U.S. legal adviser in the US State Department, John Bellinger III, believes it could be espionage (see here). Other sources say that it could also be about computer crimes (see here).
Espionage is considered a political crime, so for that Assange could not be extradited. Both Swedish law and the Swedish extradition treaty with the United States prohibit extradition for such offenses. Further, he could surely not be extradited for a crime charged before a court martial, since that would be considered a military crime. Hence, he could not be sent to Guantanamo. If instead a prosecuting concerns ordinary crimes, such as computer crimes, the matter becomes more complicated. If this "ordinary" crime also has a political nature extradition may occur only "if the act in the particular case is considered to be in the nature of a non-political crime", see Sec 6, Swedish Extradition Act (here).
Ecuador asked for guarantees from the Swedish Government that Assange not be extradited. This has been the subject of a fairly heated debate between David Allen Green of the New Statesman and Glenn Grenwald of the Guardian. To put it shortly, Green is right, but his argument can be misinterpreted (no need to develop that here, though). As Klamberg has explained in his blog post on the Swedish extradition procedure, the Government always makes the final decision. However – and this is a very important caveat – even if the Government has leeway under national law, it is bound by international law. Both the Swedish and the UK Governments have extradition agreements with the US, and these agreements provide that extradition shall take place, if the legal requirements are met. Hence, the Government could not provide a guarantee, without potentially violating an international obligatoin.
The conclusion is: the possibility of extradition exists, but a number of conditions must be met (including that the crime is not political), and it is far from certain that a U.S. extradition request would meet such requirements. In addition, the UK – which hands over Assange to Sweden – has a veto, under Sec 28 of the Framework Decision on the European Arrest Warrant.
However, it is extremely important to bear in mind – as already implied above -- that Assange can be extradited also from the UK (incidentally America's closest allies). It has been said that at present there is a legal-technical barrier to extradition from Britain. My understanding is that the technical barriers consists of the Swedish request for surrender, since Sweden, so to speak, is first in line. (Compare, for instance, Article 15(e) of the UK-US Agreement, here.) If this is true, it is – quite ironically -- Sweden's request, which currently constitutes the main protection for Assange against extradition from Britain to the United States. For me, it is thus completely incomprehensible how one can say that the Swedish process is a “honey trap” for Assange, since he is likely at greater risk of extradition from the UK, and since he can, in principle, be extradited from any country.
On the site www.justice4assange.com it is alleged that in the Swedish extradition agreement with the U.S. there is a special summary procedure that so to speak bypasses the usual requirement that the crime may not be political, that the death penalty may not be imposed, etc. On the same site is also stated that there is no such procedure in the US agreement with the UK (see here). Both of these claims are completely wrong. (The other arguments are hardly worthy of comment.)
First, this "temporary surrender" procedure, which is found in Article V of the Swedish Agreement (see p 74 of the Swedish Government Bill 2004/05: 46; here), is subject to exactly the same standards as ordinary extradition. The purpose of this procedure is not to circumvent the other terms of the agreement, but to enable a temporary extradition of a person, for example to enable him/her to participate in an ongoing process before being returned to the first country. Secondly, the UK has an identical provision (word by word!) in Article 14 of the Agreement with the U.S. (see here).
As support for the claim that it would be more difficult to request extradition from Britain, justice4assange quoted the above-mentioned John Bellinger III, who says
“certainly Assange's lawyers would mount a very vigorous opposition in either case, in London in particular. Past U.S. extradition requests for criminals from the UK have faced vigorous opposition, and a number of people have successfully resisted that through appeals through the House of Lords and ultimately all the way up to the European Court of Human Rights. We can anticipate lengthy litigation.” (See the quote here).
This omits, however, the first sentences of the quoted paragraph (here):
“With respect to the UK, we have a new and well-functioning extradition treaty that was Negotiated just a few years ago between the United States and the UK, and a very good relationship extradition government to government. In general, I might expect that the U.S. government would try to have him extradited from the UK rather than from Sweden, and the UK does have some discretion to extradite him to the United States rather than to Sweden.”
Hence, if you read the entire quote, a different picture emerges than that given in the tendentious extract. It should be added here that Assange obviously has the same opportunity to complain to the European Court about an extradition from Sweden as if the request had occurred in the UK.
The Ecuadorian asylum itself has no impact whatsoever on the process between the UK and Sweden. The granting of asylum is a sovereign, unilateral Ecuadorian decision and does not bind other states in any way. (The 1951 Refugee Convention is relevant only in that no state may send Assange to a country where he could face persecution. If it is claimed that Assange would be persecuted in the United States, that may be asserted in any extradition process in Sweden, and in such a case, only the facts are material; Ecuador’s grant of asylum has no relevance.)
Britain cannot, of course, "storm" the Ecuadorian embassy at this juncture, because the embassy is inviolable under the 1961 Vienna Convention on Diplomatic Relations (Article 22). It would, by the way, have been insane to do so, because that would have jeopardized the safety of British diplomatic missions and diplomats around the world.
However, one can in principle deprive its embassy of its diplomatic status, and then eventually intervene, but certainly not from one day to another. Quite how it's done is not entirely clear. A host country (ie the UK in this case) must continue to respect an embassy even if diplomatic relations are broken off (Article 45). On the other hand, established diplomatic relations exist with "mutual consent" (Article 2). My interpretation (which is supported by an international expert; see this blog) is that Britain can terminate diplomatic relations with Ecuador, and after a reasonable "grace period" find that the inviolability of the former diplomatic premises has ended. After all, it would be absurd to claim that diplomatic inviolability would be eternal, even after diplomatic relations have been cut. However, to cut off diplomatic relations would be a pretty drastic step.
The term diplomatic asylum, by the way, means that Assange has been given asylum at the embassy, not that he is a diplomat or will be granted diplomatic status. Diplomatic asylum is a term that is more often used in Latin America.
My objections to the claims by Assange and his supporters about Swedish extradition law and related matters do not mean that I believe that Assange is guilty – I have no informed view on that issue. Nor do I have any idea of whether the Swedish prosecution has acted in the most appropriate manner, whether the Swedish penal lawsuit is perfect, or whether Assange would receive a fair trial in the United States. Even less is this about his activities in Wikileaks. In fact, I am neither an Assange critic nor an Assange supporter; my feelings are rather mixed. I am, however, unequivocally a supporter of the rule of law and a critic of those who distort facts in bad faith. But it should also be acknowledged that misunderstandings in this affair have been caused by the fact that the legal regimes involved are not only complex but also numerous (international law, bilateral treaties, EU law, Swedish law, UK law, US law).
Läs även andra bloggares åsikter om <a href="http://bloggar.se/om/Julian+Assange" rel="tag">Julian Assange</a>, <a href="http://bloggar.se/om/extradition" rel="tag">extradition</a>, <a href="http://bloggar.se/om/Sweden" rel="tag">Sweden</a>, <a href="http://bloggar.se/om/political+crimes" rel="tag">political crimes</a>