Over the coming weeks and months, international lawyers and commentators will no doubt be falling over themselves to write about the issues raised by Julian Assange’s stalled extradition process and dramatic receipt of diplomatic asylum. Who could blame us when this case raises so many unusual and complex issues of international law and politics? What interests me most is the fact that the Government of Ecuador has effectively declared its distrust of the human rights protections offered by the extradition and criminal justice processes of three countries. Not just any countries, mind you; Sweden, the United Kingdom and the United States. While no country’s justice system is perfect, these three countries arguably have some of the world’s most advanced legal systems for extradition and human rights protection and yet we have seen Ecuador invoke the laws of diplomatic asylum to protect Assange where these systems have allegedly fallen short.
So just how can Assange be forcibly removed from the UK to Sweden and then potentially onwards to the US?
Assange was arrested in the UK pursuant to a European Arrest Warrant. This is an expedited form of extradition available within the European Union on the basis that members of the European Union have some level of trust in each other’s legal systems. The EAW system is also bolstered by the fact that all members of the EU are also parties to the European Convention on Human Rights, which establishes a comprehensive system of human rights obligations and enforcement.
If Assange were extradited to Sweden, removal under the immigration process would likely result in him being returned to his country of citizenship, Australia. The only way in which he could legally be forced to travel to the US would be through the extradition process. Extradition between the US and Sweden is governed by the Convention on Extradition between the United States of America and Sweden 24 October 1961 and the Supplementary Convention on Extradition between the United States of America and Sweden 14 March 1983. Under article 28(4) of the Council Framework Decision of the European Arrest Warrant, Sweden could not extradite Assange to the US without the UK Government’s consent.
What protections are there before Assange could be removed from the UK or from Sweden?
The UK and Sweden are party to pretty much all of the international human rights law conventions that are relevant to this situation: the International Covenant on Civil and Political Rights; the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the European Convention on Human Rights; and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty. This means that the UK and Sweden have well-established obligations under international human rights law not to return anyone to a State where there is a real risk that he or she will be subject to:
- the death penalty;
- torture or cruel, inhuman or degrading treatment or punishment; or
- arbitrary deprivation of life.
There is also growing support for the notion that the European Convention on Human Rights creates an obligation not to return a person to a situation where he or she would be subject to a ‘flagrant denial of justice’ (see Othman (Abu Qatada) v. the United Kingdom).
The Extradition treaty between Sweden and the US (article V) also creates mandatory grounds for refusal of extradition. These include where the person sought would be tried by an extraordinary tribunal or court, if the Requested State regards the offence as a political offence or if extradition would be ‘obviously incompatible’ with the requirements of humane treatment.
So Sweden certainly wouldn’t be backed into a corner under its extradition obligations and be forced to extradite Assange to the US if it finds basis for his fears of unfair trial, death penalty or persecution.
What mechanisms would there be for Assange to raise his concerns?
While international human rights can be criticised as ‘toothless’, Assange is much better placed than most to enforce his rights, both because of the countries involved in the case and his powerful media presence.
Public and diplomatic pressure is a key factor in the enforcement of rights under the ICCPR because it lacks a binding enforcement mechanism. The Human Rights Committee is able to hear complaints from individuals who feel that their rights have been compromised. Sweden is a party to the First Optional Protocol to the ICCPR, which establishes the individual complaint mechanism. It may take years before the Committee issues its final views on a complaint. However, in extradition matters, it is not uncommon for the Committee to request that a State take ‘interim measures’ to stay the person’s removal until the Committee’s finding has been made. While the Committee’s ultimate finding is not binding, most States do not ignore the Committee’s views lightly (particularly when those findings relate to the founder of a powerful new media entity).
Unlike the Human Rights Committee, the European Court of Human Rights is able to make binding findings about cases under the European Convention on Human Rights. An individual must first exhaust the remedies available under local law before bringing a case before the ECHR. Assange seemingly passed up his opportunity to make a complaint to the ECHR about the UK’s decision to extradite him to Sweden, but the opportunity would re-present itself if Assange were extradited to Sweden and he had failed in his attempts to fight his extradition to the US in the Swedish courts.
What protections would Assange be entitled to if he were extradited to the US?
Of course, it is not only Sweden and the UK that could owe obligations to Assange. If Assange were extradited to the US, the US Government would directly owe obligations to protect Assange’s human rights. When making an extradition decision, States cannot rely unduly on the fact that the State requesting extradition is a party to all the relevant international human rights conventions. Instead, they must make an assessment of the risk based on the actual circumstances in the Requesting State. Nonetheless, if Assange were extradited to the US, there is a multitude of human rights to which he would be entitled.
The US is a party to the ICCPR and the Convention Against Torture (although not to the optional protocols establishing individual complaints mechanisms). Under these conventions, the US owes obligations to persons in its jurisdiction not to subject them to torture or cruel, inhuman and degrading treatment or punishment, to provide a fair trial and not to discriminate on the basis of individual political opinions. In the context of prisoners in Iraq and Guantanamo Bay, the US has fought expansive definitions of just how far their ‘jurisdiction’ extends. However, assuming that Assange would be extradited to the mainland United States, there seems little doubt that he would be entitled to the full range of rights under the ICCPR and the Convention against Torture, in addition to due process and other rights under the US Constitution.
So Assange has at his disposal the best available tools for enforcing international human rights law. If Ecuador’s assessment that his human rights are in jeopardy is accurate, this really is an epic failure for the international human rights law system. Or, of course, we could be entering the realm of international politicking rather than international law.