Julian Assange and the deep flaw in our extradition laws

11 December 2021

11:53 PM

11 December 2021

11:53 PM

You could almost hear the rejoicing in Whitehall on Friday morning when the High Court cleared the way for Julian Assange to be extradited to the US, rejecting a plea that he was too mentally frail. The man has, after all, been a thorn in the administration’s side for 11 years: 18 months contesting his rendition to Sweden, followed by seven embarrassing years holed up in the Ecuadorian embassy, and then two-and-a-half years in Belmarsh fighting extradition to the US on espionage charges.

But there is one disquieting feature. The offences he is charged with in the US are not ordinary charges of criminality, like the accusations he faced in Sweden, but are essentially state crimes: in this case espionage and the betrayal of US state secrets. Should we be giving our aid to other countries to enforce such laws?

When a regular system of extradition was introduced in Britain in 1870, it was regarded as axiomatic that the answer to this question had to be ‘No’. However willing we might be to cooperate with other countries in the suppression of ordinary crime, when it came to the dirty work of prosecuting subversion and state offences in their own back yard we refused to lift a finger to aid them. Not only did the 1870 law give the Home Secretary a final veto over any extradition; it positively forbade extradition for any offence ‘of a political character’.

Two factors put an end to this humane regime. One was that it could help terrorists, as quickly became apparent after 1870. In 1890, for example, there was the cause célèbre of Angelo Castioni. A political activist, 1871 Paris commune veteran and upmarket Chelsea sculptor (he reputedly helped carve Princess Louise’s statue of Queen Victoria in Kensington Gardens), he showed his radicalism when on a visit to his native Switzerland he shot dead in cold blood a politician opposed to his ideas. After he returned to London, his extradition had to be refused.

The other factor was the EU a century later. That organisation’s European Arrest Warrant regime in 1989 demanded an entirely judicialised, almost rubber-stamp procedure which certainly precluded any inconvenient political offence exceptions.

The UK could have accommodated these factors quite easily, by restricting the summary EU procedure to EU states and limiting political offences to genuine state offences not involving terrorism like Castioni’s. Unfortunately, in a fit of illiberalism (and, one suspects, a certain amount of Europhilia) Douglas Hurd’s Home Office chose instead largely to assimilate its global extradition regime to the new European one. With the exception of a few states known to be inhumane, such as China and Iran, excluded from the scheme, all offences carrying a year or more in prison became extradition offences. The political offence exception went, as did the Home Secretary’s discretion. Extradition could be refused essentially only on human rights grounds, where political, racial or religious persecution was proved likely, or where someone had been formally granted refugee status under international law.

This has proved unfortunate, for a number of reasons.

First, whatever the need for international cooperation against terrorism, murder and fraud, this applies much less, if at all, to sedition and anti-state espionage. One might even say that one of the benefits of a system of nation states lies precisely in the limitation of state jurisdiction in such cases: a state is welcome to enforce its laws against subversion in its own territory, but has no legitimate reason to expect other states to help it do so. Put bluntly, however special our relationship with the US is, there is no reason we should necessarily help it enforce its espionage laws by returning Assange to be tried there. This is especially true since the acts alleged against Assange took place outside the US, and indeed the proceedings against him are controversial even there, having been attacked by (for example) the First Amendment Coalition as a threat to free speech.

Secondly, while it is true that one benefit of the political offence exception when it existed was that it helped prevent fugitives being returned to states likely to mistreat them – think the infamous King Bomba of the Two Sicilies in the nineteenth century, or in the twentieth century the Iron Curtain regimes – it was certainly not the only advantage of the exemption. It also provided a good informal system of protection for dissidents, who were essentially told that, whatever else might happen, they were protected against extradition. You may not agree with Julian Assange: you may regard Wikileaks as a thoroughly irresponsible outfit. But that is no reason to return him to the US, and certainly no reason to require him to return there without the Home Secretary having the power to stop it. (If you need evidence on this latter point, bear in mind that the United Kingdom earlier this year would have been bound to return a Catalan dissident then working at St Andrews University to Spain for punishment for sedition. She escaped rendition, but only because she skipped the country just in time.)

Nineteenth-century London life was much enriched by the discreet presence of European and other dissidents such as Louis Kossuth from Hungary, Giuseppe Mazzini from Italy and the anarchist Alexander Herzen from Russia. Why not replicate this today, not by formally granting legal residence rights (the international refugee system being as it is seriously open to abuse) but in a more limited way? For people like Julian Assange, the decent thing is to say not only that he can stay here as long as he behaves reasonably, but also that even if we do eject him we will never send him back to a country that wishes to punish him for a state crime.

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