Assange in the murk

Whatever one thinks of the accusations against Julian Assange in Sweden,[1] or of the accusations against him in the United States,[2] the avenues currently being pursued by Ecuador, pursuant to Assange’s request for asylum, in attempting to resolve his fear that Sweden’s extradition request is a ploy for a U.S. extradition request expose questions that should trouble any fair-minded observer.[3]

[Julian Assange’s] arrest in north London yesterday [on December 7, 2010] was described by the US Defence Secretary Robert Gates as “good news”, and may pave the way for extradition to America and a possible lengthy jail sentence. . . .

Another of Mr Assange’s lawyers, Mark Stephens, . . . maintained that while Mr Assange was not prepared to go to Sweden to face alleged sexual assault claims, his client was prepared to meet the Swedish prosecutor in England.

“That, I think, is a reasonable approach,” he said.[4]

For Sweden’s claim that its extradition request is only about accusations of rape to be credible in the absence of formal charges, and for us to believe that this request is not a mere pretext for eventual extradition to the United States, Swedish prosecutors should answer, notwithstanding the British High Court’s ruling that their position is not unreasonable, why they were unwilling to question Assange in the United Kingdom and why they are now unwilling to question him in the Ecuadorian embassy, where two London Metropolitan police officers are stationed to arrest Assange should he leave the embassy. Surely, if Sweden can afford to send lawyers to argue for Assange’s extradition, they can afford to send their prosecutors to question him or even, as explicitly offered, question him by video link. The High Court appears to have bypassed this question by accepting the Swedish argument that the case against Assange is now in an advanced stage of preliminary investigation and that the charges are serious, but what has not been answered, given the restrictions on Assange’s movements that have been in place since his arrest, is why it is so essential that this questioning must occur in Sweden, when they could have acceded to Assange’s demand to be questioned where he is and then have laid formal charges as a stronger basis for a European Arrest Warrant (EAW). Given the capriciousness of any court whose rulings are based on law and whose proceedings thus reduce in significant part to a contest to see who can get which rules applied, such a strategy would seemingly have eliminated important points in contention in Assange’s defense against extradition.[5]

A political adviser to the Ecuadorean government . . . said that on Wednesday, Ecuador formally offered the Swedish prosecutor the opportunity to interview Assange inside the London embassy. Sweden had not responded to the proposal. . . .

The Ecuadoreans said discussions had focused on what was likely to happen to Assange once legal proceedings in Sweden were completed.

The senior legal adviser said that under extradition law, the concept of “specialty” ensures an individual can only be extradited to one country – in the case of Assange, Sweden. Once legal proceedings in that country have been completed, the individual is given a 45-day leave, during which they are free to go where they want.

Assange should, therefore, be free to travel to any other state – including the UK, Ecuador or Australia – once legal proceedings against him are completed in Sweden.

However, specialty can be waived by the country granting the initial extradition request – in this case the UK – thereby allowing an individual to be extradited to a third country.

The senior legal adviser to the Ecuadoreans said that the home secretary, Theresa May, would need to waive specialty under section 58 of the Extradition Act 2003, before Assange could be extradited from Sweden to the US.

Despite repeated requests from Ecuador, the Foreign Office has not said whether or not [Home Secretary Theresa] May intends to exercise her powers to allow for any potential future extradition to the US.[6]

We will assume that Mr Assange’s argument that an EAW can only be used where proportionate, complex as it is, is well founded without lengthening the judgment still further to express a view on it. However, . . . taking into account the respect this court should accord the decision of the Court of Appeal of Svea in relation to proceedings governed by Swedish procedural law, we do not consider the decision to issue the EAW could be said to be disproportionate.[7]

A normative presumption should be that the governments of Sweden, Britain, and the United States would be anxious to enhance a public appearance that Assange’s rights to due process are being scrupulously observed. Yet the British High Court’s deference to a Swedish court on Assange’s argument of proportionality in a question of due process is, to say the least, uncritical. Finally, the silence that these governments offer in response to legitimate questions, even when posed by the Ecuadorian government, does nothing to reduce suspicion. I therefore assume the worst.

  1. [1]David Benfell, “The Great Feminist Smackdown: Rape Allegations against Julian Assange,”, December 21, 2010,; David Benfell, “Misconstruing Moore and Amnesty International: The case against Assange,”, December 27, 2010,
  2. [2]Philip Dorling, “US senator calls to prosecute Assange,” Sydney Morning Herald, July 2, 2012,
  3. [3]Paul Lewis, “Ecuador seeks to stop ‘evil’ of Julian Assange US extradition,” Guardian, July 26, 2012,
  4. [4]Kim Sengupta, “Assange could face espionage trial in US,” Independent, December 8, 2010,
  5. [5]Julian Assange and Swedish Prosecution Authority, [2011] EWHC 2849 (Admin),; Philip Dorling, “Revealed: US plans to charge Assange,” Sydney Morning Herald, February 29, 2012,; Tony Eastley, “Pilger says the US wants Assange,” Australian Broadcasting Corporation, February 2, 2012,; Lewis, “Ecuador seeks to stop ‘evil’ of Julian Assange US extradition;” Guy Rundle, “Rape case against the WikiLeaks chief ‘weak’,” Telegraph, February 5, 2011,; Sengupta, “Assange could face espionage trial in US.”
  6. [6]Lewis, “Ecuador seeks to stop ‘evil’ of Julian Assange US extradition.”
  7. [7]Julian Assange and Swedish Prosecution Authority, paragraphs 157-158.

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