The interface of human rights and extradition is widely experienced as a domain of ‘tension’ between protective and cooperative functions of international legal assistance. Protective functions are evidently most important when risk of life or torture of a requested person is at stake (Silvis, 2014).
However, in the last decades, human rights started to put barriers for enforcing extradition proceedings. The modern trend to expand human rights and to eliminate traditional barriers to individual standing has been set in and groomed further by an incremental number of general, specific, global, and regional human right instruments and international treaties.
The case of Julian Assange is just a clear example of the tension that exists between human rights and extradition, between the protective function of the human rights over the fugitive i.e. Julian Assange and the process of extradition which should aim to bring Assange to justice before the Swedish authorities.
This article will try to explain the influence that human rights have over the procedure of extradition. We should be aware that some of the human rights impose an absolute bar to extradition. In that manner, the issues that exist between human rights and extradition will be explained through the analysis of the case of Julian Assange.
1. The thin line between extradition and human rights
Mutual relationships between human rights and extradition are often characterized as ‘tension’ between protective and cooperative functions of international legal assistance. Generally, this problem can be approached and viewed from three perspectives. First, these relationships can be described in the rule-exception terms. Second, it could be argued that only one side sets the goal or the objective while the other has to yield by making necessary concessions. Third, and the most appropriate, the coexistence between the interests, needs and values involved in the international cooperation in criminal matters, on the one hand and the protection of human rights, on the other, should be sought and based on a reasonable compromise which would avoid the critical point beyond which human rights become unbalanced and constitute an obstacle to the cooperation in the fight against crime (ibid).
The goals of extradition and human rights are completely different in context of their purposes and achievements. The purpose of extradition as an institute of international criminal law is to surrender the fugitive criminal from one state to another in order to serve a sentence or to be subjected on a trial for committed crime, by any means necessary (Rebane, 1995). For the authorities of the state that seeks extradition who look on a fugitive like a criminal offender, according to them he does not have any rights – he lost his rights when he committed a crime and for that purpose justice must be satisfied and the fugitive should be extradited.
For human rights standards, the situation is completely different, fugitive although is a subject of extradition, he has rights that must be respected, contrary, his extradition to the requested state will be impossible if there are reasonable grounds that the fugitive may be subjected to death penalty or to torture and other degrading treatment or punishment. Under certain conditions, human rights bars to extradition may be overcome if the requested State obtains assurances from the requesting States. This has long been the practice, in particular, where the requested State opposes the death penalty.
States are obliged to ensure that international standards of human rights protection and redress for breaches of those rights are applied to all within their jurisdiction, whether that person is a victim of a ‘terrorist’ act or a suspect of such an act (Alegre, 2004).
Human rights, however, do not only provide protection for individuals against action by State agents interfering with their rights and freedoms. Human rights law also requires the State to take positive action. The obligation to protect means that, in certain circumstances, the human rights obligations of a State ‘will be fully discharged if individuals are protected by the State, not just against violations of [human] rights by its agents, but also against acts committed by private persons or entities’,including terrorist groups (UNODC, 2014). The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights
There is a well known dilemma regarding the question should state sticks to the obligation to extradite or to safeguard human rights and which of these two should prevail? This dilemma is quite present in the case of Julian Assange, mainly because of the opposing views of the UN Working Group on arbitrary detention from one side and the position of Great Britain and Sweden from the other side.
2. Facts and legal aspects in the case of Julian Assange
The case of Julian Assange has tested not only issues regarding extradition and preservation of human rights, but also the boundaries of the law relating to embassies and diplomatic immunity.
Julian Assange became familiar to the world audience when he made international headlines in early 2010 when WikiLeaks published classified U.S military video showing a 2007 attack by Apache helicopters that killed a dozen people in Baghdad, including two Reuter’s news staff. Later that year, the group released over 90.0000 secret documents detailing the U.S – led military campaign in Afghanistan, followed by almost 4000.000 internal U.S military reports detailing operations in Iraq (Ahlander and Faulconbridge, 2016).
Subsequently, after releasing these classified materials, US government initiated a criminal investigation, which targeted Mr. Assange with espionage charges. Moreover, the US military has officially labeled Julian Assange as a wanted individual and an ‘enemy of the United States’ (Dorling, 2014).
In 2010, during his trip to Sweden, it was reported that Julian Assange sexually assaulted two Swedish women. After his return to the UK, Swedish prosecutors issued a European Arrest Warrant (EAW) for accounts of rape, sexual molestation and unlawful coercion, demanding Assange’s extradition and return to Sweden in order to proceed with the investigations (Soliman and Gohar, 2015).
In June 2012, having lost all appeals against extradition, Mr. Assange took refuge at the Ecuadorian embassy in London and in August 2012, the Ecuadorian Government announced it was granting ‘asylum’. However, it cannot be denied the fact that the Constitution of the Republic of Ecuador clearly recognizes the right of asylum and its extradition laws prevent the extradition of any person whose life or safety could suffer as a result of extradition. Thus, Ecuador maintains that it is not in violation of the Extradition Treaty between the UK and itself, given that it regards Assange as a political refugee whom is no longer eligible for extradition.
After this, Ecuador sought to justify its action on the grounds of ‘diplomatic asylum’, a controversial theory advanced by some legal scholars and states that, while not addressed by the Vienna Convention, has been said to derive from the inviolate nature of an embassy (Nelson, 2013). Hence, the 1961 Vienna Convention on Diplomatic Relations provides under Article 22 that diplomatic premises such as an embassy are ‘inviolable’. As, such, the embassy cannot be entered by the British authorities without consent of the Ecuadorian authorities.
The main problem connected with the possible extradition of Julian Assange to Sweden is the fear that hypothetically, if Mr. Assange is extradited, the principle of non-refoulement could be applied and he could be re-extradited to United States, where he may face a well-founded risk of political persecution and cruel, inhuman and degrading treatment. This risk is obviously contrary to the absolute human right – prohibition of torture and is prescribed not only in the European Convention of Human Rights, UN Convention against Torture, but also in many other international instruments.
In fact there are two sides to the argument concerning the risk of extradition to US. Argument claiming a risk of extradition may draw on declassified diplomatic cables, released under freedoms of information legislation. Argument against the risk of extradition points out that according to the Convention on Extradition between the United States and Sweden ‘extradition will be refused for ‘political offences’ or where the suspect has reason to fear persecution on account of their membership of a social group or political belief’. The treaty also specifies the offences which qualify for extradition and espionage is not one of them (Rees, 2012).
3. Controversies regarding the decision of the UN Working Group on Arbitrary Detention
Julian Assange’s extradition case has been notorious for being one of the most controversial legal and political disputes given the nature of the numerous parties involved. The end of the saga was not Mr. Assange’s hiding in the Ecuadorian embassy in London. In fact, that was the starting point for the real problems for Great Britain and Sweden aimed to realize the EAW concerning the extradition of Julian Assange. On September 2014, Mr. Assange filed a complaint against Sweden and Britain to the UN panel claiming his ‘confinement’ in the embassy amount to illegal detention.
The decision of the UN Working Group on Arbitrary Detention (WGAD) was not accepted by the United Kingdom and Sweden, having in mind their official positions regarding the subject matter. According to David Cameron, the Prime Minister, Julian Assange remained in the Ecuadorian embassy entirely by his choice and that stay was in order to avoid lawful arrest because of the issued EAW by Swedish authorities (Barrett, 2016).
The decision of the WGAD was quite controversial and denied by some of the parties involved and by the law experts. The chairman of the WGAD considered that the various forms of deprivation of liberty, to which Mr. Assange has been subjected, constitute a form of arbitrary detention. Hence, his physical integrity and freedom of movement should be respected and he should be entitled to an enforceable right to compensation.
Regarding all the above mentioned, I must agree that the decision of WGAD is quite unusual and controversial. First of all, the first question that should be asked is: Why Mr. Assange’s stay at the Ecuadorian embassy is considered as arbitrary detention? Mr. Assange voluntarily went there in order to avoid arrest by the British authorities and subsequently to avoid extradition to Sweden. But also, another very important question is: Should Britain extradites Mr. Assange to Sweden if the final destination could be his refoulement to United States to face charges for the WikiLeaks affair and espionage?
Regarding this matter, my opinion is that extradition rules, supporting conventions and bilateral extradition treaties should be respected completely, but this does not means that the human rights should be violated. If Mr. Assange is extradited to Sweden, British authorities should seek strong diplomatic assurances that Sweden will not, subsequently extradite Mr. Assange to the United States. I am sure that this case will be on a world stage for a long time and the destiny of Mr. Assange will depend of many factors, many variables which are changing from one day to another.
This article emphasized the human rights issues in extradition proceedings and how human rights started to put barriers for enforcing extradition proceedings. The case of Julian Assange is just one example how human rights can affect extradition and can raise questions which are legally and morally profound. However, the closure of Mr. Assange’s case is not likely to happen soon because there are many legal obstacles and other issues which affect his possible extradition to Sweden.
By Vesna Stefanovska
This article was originally published in issue 4.2 of the magazine, which can be accessed here.