The legal complexities surrounding the extradition (or not) of Julian Assange

WikiLeaks co-founder Julian Assange arrives at Westminster Magistrates Court in London, Britain, 11 April 2019. Assange was due to appear before the Westminster Court after he was arrested in London on 11 April. EPA-EFE/STRINGER

WikiLeaks founder Julian Assange is now physically in London, as opposed to being a fugitive in the sanctuary of the Ecuadorian Embassy in that city. Both the United States and Sweden are seeking his extradition: Sweden so that he can stand trial for alleged sexual assault and rape, the US on charges of leaking secret documents. The case has ramifications for international – and South African – extradition laws.

Extradition is the procedure by which a nation-state, upon receipt of a formal request by another state, turns over (surrenders) to that second jurisdiction an individual charged with or convicted of a crime in that jurisdiction. It is a bilateral event between two nation states. It is a key feature of states’ co-operation in criminal matters. Such cooperation has become vital in holding criminals to account, bearing in mind the developing cross border criminal activity in for example, terrorism, corruption and cyber-crime.

Extradition is to be distinguished from deportation, expulsion, or expatriation. The latter are unilateral acts in which one sovereign state gets rid of an unwanted or illegal foreigner.

Now that Julian Assange is physically in London, and not in the inviolable Ecuadorian embassy, he faces extradition to the United States and possibly Sweden. This latest development in the Assange saga is an opportunity to consider the nature and common features of the international act of extradition, some features of extradition under South African law and the interesting question of competing extradition requests.

In the absence of an international treaty governing extradition, states have no international legal obligation to extradite (surrender) a person requested by another state. But the absence of a treaty does not prevent states from extraditing accused or convicted persons requested by another state. That issue will depend on the requested state’s internal (domestic) laws. South Africa, for example, does permit extradition in the absence of an extradition treaty with the requesting state. It does so on the basis of reciprocity or comity, which are recognised bases under international law for extradition without a treaty.

Many, if not all, extradition treaties require double criminality before extradition can occur. The rule of double criminality is that the crime for which a person is being sought must be a crime in both the requesting and requested state. For example, if a state requested from South Africa the extradition of a person for committing the crime of homosexual sodomy, then South Africa could not extradite the sought person. The crime of homosexual sodomy is not a crime under South African law.

Extradition treaties also include the rule of speciality: the sought person cannot be convicted and punished for any offence other than the offence in respect of which extradition was sought. So if Assange is extradited to the United States for computer invasion, then he cannot be tried in the United States for a sexual offence. He could only be tried for the espionage of which the United States accuses him and sought his surrender.

The United Kingdom has expressed that it will not extradite any person if that person would face a death penalty in the requesting state. A common feature of extradition treaties is that they entitle the requested state to deny the extradition request on human rights grounds. Often this translates to retentionist states (states that have the death penalty) having to assure the requested state that the sought person will not be subjected to the death penalty. In South Africa, for example, the Constitutional Court in Mohamed famously set aside as unconstitutional the extradition of Mr Mohamed to the US because the South African authorities had not secured an assurance from the former that he would not face capital punishment. This means that if Assange could be given the death penalty for his alleged crimes and the United States does not exempt him from the death penalty, the United Kingdom could lawfully refuse the United States’ extradition request.

What if both the US and Sweden request the extradition of Assange? Most extradition treaties have an article dealing with conflicting requests. Their formula is normally that if a state receives conflicting requests for an extradition, then its executive (normally a designated minister) shall make its decision between the requests having regard to all the circumstances, especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another state. Many of the extradition treaties to which South Africa is party also contain an article to this effect.

However, a peculiar feature of South African law is that the Extradition Act, 67 of 1962, which regulates how extraditions are dealt with under South African law, is silent on the issue of competing extradition claims. It does not in terms authorise the Minister of Justice to decide between competing extradition requests.

It is worth mentioning that if South Africa were ever in a position similar to that which the United Kingdom may face – dealing with two separate requests – it would have to consider its obligations in respect of combating gendered violence when deciding which extradition request to accept. South Africa is under international legal and constitutional duties to take positive steps in combating gendered violence and protecting women. This would be a relevant factor in deciding between competing requests where one request is an alleged gendered crime (like sexual harassment or rape).

If the minister decided to extradite a sought person to one state, for example for hacking, when another state sought the person for rape, and the minister did so without considering the seriousness of the rape allegations and South Africa’s obligations to combating crimes like rape, then his decision could be irrational, unconstitutional and unlawful.

Lastly, it is emphasised that in almost all countries, extradition requests are dealt with by both the courts and the executive branch of government. The courts consider the legal issues arising from the request and the executive is seized with policy considerations. But, it is often difficult to separate the legal and other matters involved in an extradition request. Obviously, policy considerations include constitutional and legal matters.

Ultimately, the success of an extradition request depends on the intersection with (on the one hand) international law and domestic law and (on the other) international and domestic politics. Whether Julian Assange will be extradited to the United States or to Sweden – or at all – will depend on the realpolitik relationship between the states concerned, quite apart from the legal position. In a similar vein, whether or not South Africa will accept one extradition request over another for a sought person in its jurisdiction will depend on its relationship with the requesting states concerned.

Although, under South African law, the government’s decision in this regard will always have to be rational and lawful. DM

Anton Katz SC is a practising senior advocate in Cape Town, with wide experience in extradition matters. He is a former member of the United Nations Working Group on mercenaries (2011 – 2018).

Eshed Cohen is an advocate of the High Court; he will be reading for the BCL at the University of Oxford in 2019.

Katz and Cohen are finalising the publication of a handbook on extradition.


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