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

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.