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Aug 24, 2012

Swedish Q&A: do Assange's claims on extradition stack up?

Claims that it would be easier for the US to extradite Julian Assange from Sweden than from the UK don't stack up. Swedish legal academic Mark Klamberg explains why.

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There’s been plenty of commentary in Australia and the UK about the likelihood and legality of Sweden extraditing WikiLeaks founder Julian Assange to the US, should it secure his extradition from the UK for questioning on s-xual misconduct allegations. So what do the Swedes say? Crikey puts some questions to Mark Klamberg, doctor in public international law at Stockholm University …

Why can’t Swedish authorities go to London to question Assange?

Swedish authorities can ask for legal assistance from the UK, which would mean they could go to London to ask questions, subject to UK law. However, it is under the discretion of the prosecutor responsible for the case to determine whether she should ask for such assistance, or ask for surrender under the European Arrest Warrant Procedure.

The Swedish prosecutor is arguing they need to have the interview in Sweden because they may need to do several interviews and cross-check with the victims. It is not generally the case that Swedish prosecutors travel to the preferred place of the suspect, i.e. it is not up to the suspect to dictate how an investigation should be carried out. Moreover, as indicated above, if Assange was in the custody of British authorities he could be subject to coercive measures (under UK law), but that is more difficult/impossible when he is in the embassy, i.e. the prosecution will not be able to control the interview to the same extent as they normally do.

Would it be easier for the US to extradite Assange from Sweden than from the UK?

No, for several reasons. First, Sweden and the UK both have bilateral extradition treaties vis-à-vis the US. The UK is able to extradite people to the US under similar conditions as Sweden, and has done so.

Second, the UK as well as Sweden are parties to the European Convention of Human Rights. Following the landmark judgment called Soering from 1989, both Sweden and UK are prohibited to extradite somebody who can be put on death row and/or be subjected to torture (which includes inhuman or degrading treatment or punishment).

Third, the Swedish extradition agreement with the US (you can read the 1961 agreement in Swedish or English here, and read the 1984 supplementary convention here) does not allow extradition when the offence is purely military or if the offence is a political offence. For example, espionage is a political crime and no extradition is possible for such charges. Fourth and finally, if Assange were to be extradited to Sweden and if the US then requested extradition from Sweden, such a request would have to be approved by Sweden as well as by the UK. This would require an approval by the Swedish Supreme Court and government. The government cannot approve extradition if it’s denied by the Supreme Court.

Pursuant to the rule of speciality and the regulations concerning a European Arrest Warrant, the decision to extradite Assange to Sweden for allegations concerning r-pe and s-xual misconduct is not enough, the UK Home Secretary has to make a second decision concerning the US charges (for example espionage), subject to UK law.

As I understand it, 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 an other (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 have great difficulties to see what kind of non-political crime that would be.

Is Sweden “US-friendly”, and would it be more likely to do the US’ wishes than the UK?

In the diplomatic cables made available by WikiLeaks, the US embassy in Stockholm describes the current Swedish Minister for Foreign Affairs Carl Bildt as a “medium size dog with big dog attitude”, meaning someone who thinks he has more power and influence than he really has. Sweden has good relations to the US, probably close to or equivalent to US relations to the UK and Australia. However, Sweden as a country has a  history of opposing some of the US military interventions abroad, for example the Iraq war in 2003 and the Vietnam war (our prime minister compared the 1972 bombing of Hanoi with the extermination of Jews at Treblinka, which was probably the low point of Swedish-US relations).

In the context of the Assange case, many point to the rendition in 2001 of two Egyptians from Sweden to Egypt, apparently following a request from the CIA. The transport was also carried out by the same agency. It is perceived as one of the largest scandals in modern Swedish history. The UN Committee Against Torture issued a decision where it established that Sweden as a state had violated its obligations under the torture convention. The constitution committee of the parliament (Konstitutionsutskottet) found the government had violated Swedish law. The Swedish state compensated both of the men with 3 million krona (€350,000) each. At least one of them was granted permanent residence in Sweden (which he has applied for).I would argue the Assange case is different because the two Egyptians were subject to an entirely extra-judicial procedure, while Assange has been given several legal remedies and guarantees in Sweden and the UK, which he has used. There are also examples where persons sought by US authorities have been granted protection in Sweden.

During the Vietnam War, many US military servicemen who had deserted sought refuge in Sweden; this was granted even though US authorities sought prosecution for these servicemen. The reason the US has not sought or been granted extradition for these servicemen is that the Swedish-US extradition treaty does not allow extradition when the offence is purely military (or political), as indicated above.

What is the nature of the Swedish-US extradition treaty?

See answers above. One may add that several persons have raised concerns in relation to the “temporary surrender” procedure in the Swedish-US extradition treaty. “Temporary surrender” should not be interpreted as “immediate surrender without legal protection”, as some people appear to do. The purpose of “temporary surrender”, which exists in the Swedish as well as in the British agreements with the US, is to temporarily surrender a person to another state and, after the proceedings in the requesting state has been finished, the person will return to the requested state (Sweden or the UK).

The difference between “temporary surrender” and “normal surrender” is that with the latter procedure, the person will not return to the requested state (Sweden or UK). In all other regards, the same conditions apply, i.e. no extradition for political crime and no extradition if there is a risk for torture/death penalty.

*For more information and to see some of the debate in Sweden, read this blog post from Klamberg. If your Swedish is up to it, there’s an interesting blog post from fellow Stockholm University academic Pal Wrange. Assange ater igen, indeed.

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