Klamberg on Extraditing Assange from Sweden to the U.S.

by Kevin Jon Heller

Mark Klamberg, who is a lecturer in public international law at the University of Stockholm, has a detailed post on his personal blog about the likelihood — or unlikelihood, to be more precise — that Sweden would extradite Julian Assange to the United States.  He has kindly given me permission to reprint a significant portion of it (I’ve made minor edits):

How does procedure work if somebody is to be extradited from Sweden? Pursuant to section 14 of the Extradition of Criminal Offences Act, a “request for extradition shall be made in writing. It may be transmitted by telefax or, subject to agreement in the individual case, by other means. The request shall be made to the Ministry of Justice.” The request shall according to section 15 of the same act be rejected immediately if there is a manifest reason why it should not be granted. Otherwise, the request is forwarded to the office of the Prosecutor-General, who shall deliver a statement of opinion on the matter. In addition, if the person referred to in the request has not consented to being extradited, the case shall be tried by the Supreme Court. Section 20(1) provides that if the Supreme Court has considered that there is a legal obstacle to extradition the request may not be granted. Even if the Supreme court has found that there are no obstacles, the Government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person “may” not “shall” be extradited. In other words, even if the Prosecutor-General and the Supreme Court find that all conditions for extradition are fulfilled, the Government may veto such extradition. It does not work in the reverse way: the Government cannot grant extradition if the Supreme Court has found that any of the required conditions are lacking.

As I understand, Assange wants the Swedish Government to guarantee that it will not grant extradition to the US. The US has not made any request to the Sweden on this matter. In other words, Assange wants the Swedish Government to pledge to use its veto power in relation to a non-existing request and before the Prosecutor-General and the Supreme Court has evaluated this non-existing request. There is nothing in the Extradition of Criminal Offences Act that deals with this scenario, but it would depart from established practice. Cameron and et. al write in a general way about this in their book “International Criminal Law from a Swedish Perspective“, Intersentia, 2011, p. 171.

Assange fears that he will be extradited to the US where he may be at danger of being tortured or receiving the death penalty. There are at least three obstacles that make it difficult or even impossible to extradite Assange to the US.

First, Sweden (as the UK) is party to the European Convention of Human Rights. The Convention has been incorporated in Swedish law which makes it directly applicable for all state agencies, courts and the Government. Following the Soering Case, Sweden (and the UK) are prohibited from extraditing a person who may face the death penalty. Pursuant to obligations from European Convention of Human and the Convention against Torture, there is also a prohibition against extraditing somebody where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (which includes inhuman or degrading treatment or punishment).

Second, pursuant to article 28(4) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, “a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.” Cameron and et. al write the following on p. 191: “It can be noted here, in connection with the EAW proceedings in 2010 concerning ‘Wikileaks’ founder Julian Assange, that the principle of speciality means that Assange cannot be extradited or deported from Sweden, unless the UK grants its permission for this.” This means that the present decision from British authorities, upheld by Supreme Court, to extradite Assange to Sweden for sexuually related crimes is not enough. If the US would request Sweden to extradite Assange the issue would not only have to be approved by the Prosecutor-General, Supreme Court and Government in Sweden, it would also have to go through the British legal system a second time (which took more than 500 days the first time). In other words, if the US wants Assange extradited from Sweden, he will have the protection of both the Swedish and British legal systems. It would appear easier to have him extradited directly from the UK.

Third, the Swedish extradition agreements with the US do not allow extradition when the offence is purely military or if the offence is a political offence. See article 5(4)-(5) of Convention on extradition between the United States of America and Sweden, 24 October 1961. See also the supplementary convention from 14 March 1983. Cameron and et. al write the following on p. 177: “No definition is given in the Extradition Act of what offence constitute a political offence. In Swedish extradition law, as in many other countries’ extradition laws, a distinction is made between absolute and relative political crimes. Absolute political crimes are those exclusively directed against the state… espionage is an absolute political crime according to the travaux préparatoires”. One may add that in Swedish law, as opposed to English law, travaux préparatoires are a source of law.

As I understand, Ecuador has granted Assange political asylum, i.e. Ecuador is arguing that the US is seeking Assange for a political offence (espionage). Moreover, they fear that Assange will be subject to the death penalty and/or torture. As explained above, extradition from Sweden would for several reasons not be granted in such a case.

It is theoretically possible that (i) the US might charge Assange for another (non-political) crime than espionage and that (ii) the US would be willing to issue a guarantee that the death penalty will not be issued. The latter has happened before — see for example the aftermath of the Soering case. Could Sweden extradite Assange in such a case? The answer is yes provided that the UK also approves, but I find it difficult to see what kind of non-political crime that would be. We can of course discuss all kind of theoretical cases, which I do all the time with my students at the University. The question is whether sovereign states such as the UK, Sweden and Ecuador should take action on such theoretical cases, regardless of their likelihood and basis in reality.

Mark’s post is extremely persuasive.  I’ve always thought it was ridiculous to believe that Sweden would extradite Assange to the US to face espionage charges (or treason).  The UK, perhaps.  But Sweden?  No way.  Extradition for serious non-political offenses is always a possibility, as Mark notes, but the rule of specialty would ensure that the U.S. did not bait-and-switch the Swedish government.  (The US might be tempted to do so, but such blatant disregard for a basic principle of extradition would cripple the US’s ability to extradite suspects from other states.)

My thanks to Mark for permitting me to reprint his post.

http://opiniojuris.org/2012/08/22/klamberg-on-extraditing-assange-from-sweden-to-the-u-s/

17 Responses

  1. Thanks for the great post! That clarifies a lot!

  2. While I agree that the argument in the post is persuasive, and would probably carry the day, I can easily imagine non-political charges with which Assange could be charged.  Remember, Bradley Manning is charged with aiding the enemy, but not because Wikileaks is an “enemy” of the US in the relevant sense.  Rather, the theory must be that by releasing the info to Wikileaks, with knowledge that it would be widely distributed on the Internet, Manning knew that the info would reach al Qaeda, with which the US is currently in a putative armed conflict.  If so, why couldn’t Assange be charged with conspiracy and material support for a terrorist organization?  After all, he received classified info knowing that it had been leaked without authorization, and then facilitated the distribution of the info on the Internet, knowing that it would available to al Qaeda, among others.  Indeed, as a non-US-citizen, Assange is even within the class of persons eligible for trial by military commission at Gitmo.

    Now, I appreciate there are any number of problems with this hypothetical scenerio and that it’s not likely to occur.  But I have very little faith that the US govt is deterred by a sense of embarrassment. 

  3. Anon,

    I hope Mark will answer, but I find it very unlikely that material support and conspiracy to commit terrorism are criminal under Swedish criminal law.  So the double criminality rule — Article II of the supplemental extradition treaty between Sweden and the US — would still prevent extradition.

  4. Anon,

    To be triable by military commission, a non-U.S. citizen would also have to be an “unprivileged enemy belligerent,” which would be a difficult case to make on the theory you presented. On the other hand, the crime of aiding the enemy under the UCMJ does not apply just to service members, so in theory he could be court-martialed for that — not that there’s any likelihood of that happening. I guess the question would be whether aiding the enemy or providing support to a terrorist group would be considered political offenses.

  5. Jennifer,

    As I’ve said, I agree that this is very unlikely to happen.  I was just trying to find a non-political offense for which Assange might be extradicted, if there is some reasonably close facsimilie to MST in Swedish law (about which I admittedly know nothing).  That said, I’m not sure I agree that Assange couldn’t readily be classified as an “unprivileged enemy belligerent” if the US could get its hands on him. As you know, the MCA defines the personal jurisdiction of the act to include any alien who “has purposefully and materially suppported hostilities against the United States.”  On its face, that would include virtually any civilian who provides material support to al Qaeda, wouldn’t it? 

  6. Anon and Kevin,
    Below you will find the relevant Swedish legislation translated to English. See for example section 4 of the 2003:148 Act on Criminal Responsibility for Terrorist Offences: “Attempt, preparation or conspiracy to commit a terrorist offence or failure to disclose such an offence is punishable in accordance with Chapter 23 of the Penal Code.”  As I understand Bradley Manning is charged with espionage, is it realistic under US law to prosecute Assange for a totally different charge, conspiracy or support for terrorism? It would appear very strange for me.
     

    http://www.sweden.gov.se/content/1/c6/01/95/68/d6d398b4.pdf
     

  7. Mark,

    Bradley Manning is not charged only with espionage.  He has been charged with a laundry list of offenses, including among others aiding the enemy, Article 104, UCMJ.  While this offense is distinct from material support, it is a close cousin.  In fact, the US govt has argued quite strenuously that the MCA version of material support just is a species of aiding the enemy, i.e., aiding an enemy who is an unprivileged belligerent, namely al Qaeda. It may seem far-fetched, to be sure, to charge Assange with material support for releasing largely innocuous diplomatic cables, but no more so than charging Manning with aiding the enemy for the same conduct. I thus wouldn’t be too hard on Assange or his counsel. The risk may be quite small but its not crazy to worry about it from his perspective.

     

  8.  
    Anon, that sounds like treason. I see two obstacles.
     
    1. Is not treason a political crime?
     
    2. It is defined in chapter 19 section 1 of the Criminal Code (see also link below): “A person who with the intent that the Realm or a part thereof, by violent or otherwise illegal means or with foreign aid, be placed under foreign domination or made dependent on a foreign power, or that a part of the Realm be thus torn loose, takes action which involves danger that such intent be realised, shall be sentenced for high treason to imprisonment for ten years or for life or, if the danger was slight, for at least four and at most ten years. A person who, with the intent that a measure or decision of the Head of State, the Government, Parliament or the supreme judicial bodies be coerced or obstructed with foreign aid, engages in an act involving a danger of this occurring, shall also be sentenced for high treason. (Law 1974:565)”
     
    With the Realm is meant Sweden, not the United States. This may cause a problem with requirement on double criminality.
     
    We also have the crime of unauthorised dealing with secret information in section 7 of the same chapter, see below.
     
    “A person who, without intent to aid a foreign power, without authority obtains, transmits, gives or reveals information concerning matters of a secret nature, the disclosure of which to a foreign power can cause harm to the defence of the Realm or to the maintenance of necessary supplies to the people during war or during extraordinary conditions caused by war, or otherwise to the security of the Realm, shall be sentenced, whether the information is correct or not, to unauthorised dealing with secret information to a fine or imprisonment for at most two years. (Law 1981:1165)”
     
    Again the provision protects the Realm (Sweden), not United States.
    http://www.sweden.gov.se/sb/d/3926/a/27777

  9. Anon,
    Maybe I’m an optimist, but I think the Supreme Court, if it ever renders a decision that makes parsing of that definition necessary, would also take into account the plain wording of “unprivileged enemy belligerent” and take the government at its word that this phrase is to understood as comporting with the law of war. But my point was really just that it takes more than non-citizenship to land before a tribunal; I don’t disagree with your interpretation. I do wonder (also) whether the provision of material support isn’t a political offense. It is, like espionage, pretty closely related to treason. Which leads to my next question…
    Mark,
    Do those Swedish statutes cover non-Swedes outside of Sweden? Would such a distinction matter for dual criminality purposes?

  10. Jennifer,

    There is a possibility that these statutes  (in chapter 19 of the Penal Code) cover non-Swedes outside of Sweden but as I will argue below it does not make any difference in this case.

    The text of the law is not limited to Swedish citizens. According to the commentary on the law (Zeteo by Norstedts Juridik) the perpetrator could also include a non-swede but these crimes concern acts against the Swedish state.  The commentary further states that all the crimes in Chapter 19 are normally perceived as political crimes and as such extradition is not possible.

  11. Dear all, this is a very intresting discussion. I have posted a blog post that develops some of the issues raised in the wider debate, but the comments here certainly devellop the most difficult issue, namely what extraditable crime (if any) that Assange might be charged for.
    Pål Wrange
    http://palwrange.blogspot.se/2012/08/can-julian-assange-be-extradited-from.html  

  12. To clarify:

    are the rules for a ‘Temporary Surrender’ the same as for extradition?
    does the existence of an extradition treaty between Sweden and the US affect any power of the Government of Sweden to decide on extradition?

  13. I have written a response on my blog in response to Glenn Greenwald’s entry on the Guardian website.

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