Julian Assange could spend months in a British jail before being extradited to Sweden. And he could then face a similar request from the USA.

The process of getting a foreign national extradited is a web of complicated legal wrangling, according to international law expert Professor Donald Rothwell, with multiple avenues of appeal open to Assange.

“Extradition proceedings can often be determined on technical grounds, such as irregularities in the paperwork accompanying an extradition request,” said Professor Rothwell, from Australia National University’s College of Law. “Extradition can be contested on the grounds of: ‘double criminality’ — where the crime is not recognised in the requesting and requested country (ie. Sweden and the UK); ‘the political offence exception’ — where extradition is sought for a political offence; or that the accused will not receive a fair trial.

“Assange can contest the Swedish extradition request all the way to the UK Supreme Court. This process could take many months to resolve.”

Under the terms of the European Extradition Act 2003, a European Arrest Warrant (EAW) issued in one EU state allows for a straightforward extradition from another member nation. The court in the country where the defendant has been arrested is not permitted to look at evidence against the defendant in the extradition hearing. Its major role is to take care of the administration in a timely fashion.

Speaking on Al Jazeera today, Mark Ellis, executive director of the International Bar Association, believes the extradition process will actually be swift: “This is between two European states so it comes under a process that all European countries have agreed to. There are parameters that have to be met, but they are fairly straightforward.

“Generally the extradition process is done within 21 days of his [Assange’s] appearance, and that process has already started with the date of a December 14 hearing being set today. I don’t expect this to be a long drawn out process.”

If the extradition attempt is successful, Assange’s options are not fully exhausted — he could appeal to the UK High Court and then the Supreme Court on “a point of law of general public importance”, which could take years to resolve.

While Assange waits in jail, Professor Rothwell says the US is free to pursue its own charges against the WikiLeaks founder: “If he is successful in not being extradited to Sweden, he could face the prospect of immediately being rearrested pending extradition to the United States to face WikiLeaks related charges.”

But Anthony Cassimatis, a senior lecturer in law at the University of Queensland, sees it differently. Under the Doctrine of Speciality, which requires the country that is requesting the extradition of an individual from the custody of another state to specify the crime, Assange can only be charged for rape and not WikiLeaks activity. Any further extradition attempt can only be carried out after the accused completes him term for the first conviction.

The Swedish Extradition for Criminal Offences Act states that:

Section 6: Extradition may not be granted for a political offence.

Section 7: A person may not be extradited if, on account of his origin, belonging to a particular social group, his religious or political views, or otherwise on account of political circumstances, he would run the risk of being subjected in the foreign state to persecution which is directed against his life or liberty or is otherwise of a harsh nature, or if he does not enjoy protection against being sent to a state in which he would run such a risk.

However, according to The Guardian, possible charges against Assange under the Espionage Act are not included in the list of offences set out in the extradition agreement.

Furthermore, if the US does put together a successful case to extradite Assange, the Swedish extradition agreement states that: “A person who is extradited may not have the death penalty imposed for the offence.” It is up to the defence team to argue that extradition to the US would subject Assange to persecution of a ‘harsh nature’ or constitutes a political offence.

And Assange’s Australian citizenship won’t help him — unless Australia puts up a case to extradite him from the UK or Sweden before any such request is made by the US, it is unlikely his citizenship will have any real impact.

Peter Fray

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