Julian Assange (pictured left), founder of Wikileaks, friend of open government, enemy of secrecy, and suspected rapist, has hardly been out of the newspapers this week. News that, following the defeat of his legal efforts to resist extradition to Sweden on the basis of a European Arrest Warrant, Assange had sequestered himself in Ecuador’s UK embassy and sought asylum (and was this week granted) provided a climactic twist to this legal battle. Climactic, but hardly unexpected for this notorious showman, or indeed, from Ecuador, a country whose government continues to bristle with resentment at the US Ambassador’s characterisation of them in the diplomatic cables exposed by Wikileaks.
Amid the legal hyperbole swirling around the case (from both Assange’s supporters and their demands that Ecuador’s decision be respected and the UK Government, with its effort to strong-arm Ecuador into handing over Assange by threatening to remove the diplomatic status of Ecuador’s embassy), there are too many issues for one brief blog post to discuss, so I’ll focus on the issue which amounts to the keystone of the whole issue: Assange’s claim that the rape allegations are a pretext to transfer him to Sweden from where he will be extradited to the US to face the death penalty for disclosing state secrets.
Whilst it is undoubtedly true that Assange should not be planning any trips to the US at any point in the future, the notion that the Swedish or UK Governments would acquiesce in transferring him into US custody if there was any possibility that the death penalty would be at issue, is fanciful. For a start, both countries are obliged to follow the ECHR’s requirement, as part of the prohibition against inhuman and degrading treatment (Article 3), not to be complicit in the death penalty by extraditing individuals to a country seeking to impose such a penalty. This is known as the Soering Principle, after a case in which the European Court of Human Rights prevented the UK from extraditing an individual facing the death penalty to the US (para.111):
[I]n the Court’s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever-present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration.
There would be no doubt that extraditing Assange to the US in circumstances where he faced the death penalty would breach the rule in Soering. And for the UK’s part, much as it may not like the subsequent extensions of this rule in the Chahal case to prevent it from deporting or extraditing individuals to countries where they face a real risk of torture (as seen by the Abu Qatada debacle earlier this year), the UK has not sought to ignore its ECHR obligations in this regard. Ultimately, if the US requested Assange’s extradition, it would be as easy for the US to make such a request to the UK as it would be to Sweden (negating any need for “Trojan Horse” criminal charges). And if any ECHR member state were to agree to such a request, it would be on the basis of stringent requirements that the death penalty not be imposed.
For the UK Government, there is no way to avoid its legal obligations to transfer Assange to Sweden under the European Arrest Warrant. There is no doubt that the Extradition Act 2003 is, in many respects, a very poor effort at transposing the requirements of EU law’s “Framework Decision” into UK law (see Professor John Spencer in “Implementing the European Arrest Warrant: A Tale of How Not to Do it” (2009) 30(3) Statute Law Review 184). As Lord Brown concluded in the Supreme Court (para 98):
There was here no hint of a suggestion by ministers that, in so construing the term “judicial authority” in the 2003 Act, the United Kingdom might not be fully implementing its obligations under the Framework Decision. The plain (and, if the Bill of Rights permits the Court to say so, regrettable) fact is that the ministers were mistaken about the true scope of the term in the Framework Decision (just as they were as to the practice which had operated throughout the earlier extradition regime).
Having agreed to these terms with its EU partners, the UK is bound by them. But these partners are equally bound by the ECHR. In this context, talk of secret pacts with the US are simply nonsensical, but it does help Julian Assange to maintain his media profile and avoid criminal charges and it also allows Ecuador to thumb its nose at the US. And for those reasons alone, we can expect the nonsense to continue.