International & Transnational Criminal Law

Julian Assange Update

 

This case keeps getting more interesting. Julian Assange, while out on bail in London awaiting his surrender to Sweden, has now sought asylum in the Embassy of Ecuador. The Ecuadorian government, whose President has apparently made sympathetic noises regarding Assange's plight, are considering the request. Coverage here. As correctly noted in the BBC's Q&A on this development, the UK police cannot enter the embassy and arrest Assange because of state immunity.

One of Assange's former lawyers has speculated that he will try to use any protection Ecuador gives him as an opportunity to negotiate with the Swedish authorities -- specifically, to have them agree not to re-extradite him to the US to face any charges there once the Swedish matter is complete. Re-extradition will be within the discretion of the Swedish government.

Assange has been criticized as constantly seeking the spotlight and making legal maneuvers to try to keep the spotlight on his Wikileaks mission, so for the cynical this could be perceived as another plank in that platform. On the other hand, Assange quite reasonably believes that he may be the subject of a secret indictment in the US (which is available in national security matters), and the US government has maintained a rather stern posture towards him.

Before one yells "conspiracy theory," it is worthwhile to note this: it is well documented that various companies which had been providing Wikileaks with commercially-based internet services unilaterally withdrew these services when pressure was applied to them by American politicians. In the story above, the US's Ambassador to the UN Human Rights Council was quoted as saying "getting too enamoured with the idea that Julian Assange is a whistleblower missed the reality that confidentiality on the part of governments is not all bad."

Perhaps an appliation of the adage, "just because you're paranoid doesn't mean they're not out to get you."

Assange Extradition and the EAW

 

So, the media are reporting that Julian Assange, President of Wikileaks, has lost his last bid to get the UK courts to prevent his extradition to Sweden, where he is wanted for questioning about sexual assault allegations. He can challenge the UK High Court's decision not to reopen the case before the European Court of Human Rights, but the general take is that he's unlikely to see much success there.

The whole Assange affair has been, and will continue to be, mercilessly chewed over in many outlets, and I don't intend to take it up here. It all began, however, because a Swedish court issued what's called a "European Arrest Warrant" (EAW) for Assange. What might be of interest to readers of this blog is how this case highlights an interesting aspect of the EAW system.

Traditionally, "fugitives" (whom we now more politely call "persons sought") were surrendered from state to state by way of extradition, which is a formal process. Extradition has always covered one of two situations: 1) fugitive is wanted in the requesting state for commission of a crime, for which he will be tried; and 2)  fugitive has been convicted in the requesting state but has escaped, and the requesting state wants him back to serve out his sentence.

The EAW is a ramped-up version of this system, meant to make transfer of persons sought easier and more efficient from an administrative point of view, due to the highly integrated nature of the EU framework. The vision was that, since EU states all trust each other to have sensible criminal justice systems and at least reasonably good protections for the defence, formal extradition should not be needed. Rather, a judge in the requesting state (or, in some EU states, a public prosecutor) would issue a warrant, the warrant sent to the state in which the person sought is located, and he/she would just be arrested and transported to the requesting state.

However, the EAW effectively contemplates a third ground of surrender which does not exist under conventional extradition regimes: accused is wanted in the requesting state for questioning regarding an offence. That is, he is a suspect but has not necessarily been charged with the offence (in the sense that we common law lawyers would understand it). This is because the EAWs are available "for the purpose of conducting a criminal prosecution" (EU Framework Decision, article 1(1)), which gives more leeway for civil states in which the prosecutorial system operates differently.

To be sure, however, an EAW is available to authorities who have not made a decision as to whether or not they are going to try the person sought. This is, according to media reports, the situation with Assange. It is entirely possible that he will be questioned and released when he gets to Sweden. Assange himself, incidentally, has made great hay with this, noting that under the European cooperation mechanisms he could be questioned by way of video-link, and indeed that he volunteered to do this but the Swedish prosecutor declined.

Another interesting fact: this aspect of the EAW is becoming contentious. Many human rights groups have complained that the EAW is being abused because it is being used simply as a tool for criminal investigation, rather than to faciliate prosecution (the UK Extradition Review, which I blogged on a while back, considered but dismissed this criticism). In some cases, people have been surrendered to foreign states and sat in jail for months or years, only to have the entire thing dismissed. In a decision on 1 March 2012 the Irish High Court granted the appeal of the person sought and invalidated a request from France under the EAW, on the basis that while a decision had been made in the nature of charging the person sought, the French government had not yet decided whether or not to try him.

This is a topic worth watching for Canadians -- in no small part because it has been suggested, quietly and in government circles, that we might enter into an EAW-type arrangement with the US, the UK, perhaps even Mexico.

Some intriguing criticisms of the EAW system can be found at the website of Fair Trials International.

ICC Staff Held in Libya

 

On Thursday, 11 June, four members of the International Criminal Court's staff were detained in Zintan, Libya. The staffers were in Zintan to meet with Saif Al-Islam Gadhafi, son of the now-deceased dictator who is under indictment by the ICC for various crimes against humanity committed during the "Arab Spring" uprisings in that country. Apprehended in November, 2011 while trying to flee to Niger, Gadhafi has been the target of a verbal tug-of-war between the court and the Libyan government ever since.

This event has added some fuel to the fire and the international criminal justice community has been, to use the colloquial phrase, freaking out. There are reports (emanating from the Libyan government) that one of the ICC staffers was trying to "pass documents" to Gadhafi and were carrying "spying and recording equipment," but most serious commentators are of the view that the entire matter is being trumped up. Libya, of course, has not signed the Rome Statute but is required to cooperate with the Court because the matter was referred by the Security Council. The Court has demanded the release of the staffers, so far to no effect.

As usual, excellent coverage of the matter is provided by the Coalition for the International Criminal Court, here.