Can Sweden grant Assange any assurances?

no extradition for Julian Assange

no extradition for Julian Assange (via Vertigogen, Flickr)

There’s an interesting online debate currently ranging about whether Sweden can grant Julian Assange any assurances that he will not be extradited to the USA. The debate erupted after the New Statesman’s legal commentator David Green wrote an article entitled Legal Myths about the Assange extradition. The article made several points, all of which merit further analysis, but the most contentious was his claim that it would not be possible for the Swedish government to give any legal guarantee about possible future extradition. Green claimed that:

Any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported ‘guarantee’.

This is supported by Swedish Foreign Minister Carl Bildt who recently said that the government could issue no assurances:

The Swedish court system is independent. I cannot make any declaration that bind the court system in any way. I would then be violating the Swedish constitution.

American critic Glenn Greenwald picked up on Green’s article claiming it was false and demanded that Green issue a clarification and apology to New Statesman readers. Greenwald quoted Swedish legal professor Mark Klamberg who had earlier addressed the issue on his personal blog saying:

Even if the supreme court has found that there are no obstacles, the government can refuse extradition. This is because section 1(1) provides that if certain conditions are fulfilled, a person ‘may’ not ‘shall’ be extradited. In other words, even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition.

Klamberg then hit back saying he had been misquoted by Greenwald. In a post entitled Sequencing and the discretion of Government in extradition cases, he claimed that the situation was not as straightforward as Greenwald claims. Klamberg writes:

In essence (Greenwald) is arguing that the Government should have the first and the last say with the Supreme Court in the middle. That would make the Supreme Court redundant which is contrary to the sequence that is provided for in the Extradition Act which I have tried to describe. It may also violate the principle of separation of powers.

Klamberg also quoted fellow international law professor Ove Bring interviewed in Swedish newspaper Dagens Nyheter who says:

The Supreme Court can not predict its own decision. If such a request is asked for it must be processed pursuant to the established manner. Subsequently the Government may deny extradition even if the Supreme Court has said yes but the Government can not issue any guarantees at the current stage. That would mean that the Government bulldozes the judicial system and says that it is irrelevant. It does not work that way in a democracy.

Finally, Klamberg also highlighted US-Swedish extradition treaty obligations which may complicate the issue further.

Greenwald wrote a repost to this on his personal blog this time quoting the Swedish government website which seemed to agree with Klamberg’s original assessment. Greenwald later took aim at Klamberg on Twitter questioning his objectivity on this issue because he is married to a Swedish government minister.

It does seem therefore that although the Swedish government would have final say, it can’t do anything until an extradition request has been made and the Swedish Supreme Court has considered that request. The question is then, can the Swedish government even issue any kind of worthwhile statement to Assange? Perhaps a simple public statement of the law is all that’s possible.

I suggested this possibility to Klamberg several days ago in the comment thread of most recent post:

Thanks for this detailed analysis Mark. Would it be fair to say then that the Swedish government could issue a statement along the lines of: “The government has discretion on any Supreme Court ruling on extradition but it should be remembered that it is also bound by international extradition agreements that may take precedent.”

So far there has been no reply. Greenwald made a similar point in his post:

Swedish authorities could, for instance, publicly state that they view espionage charges for the “crime” of reporting on government secrets to be a “political crime” not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one.

However, you can understand the Swedish government’s reluctance to simply state Swedish law. In their view, the law is the law and it would be applied to Assange the same way as it would anyone else. Making an exception for him with some kind of public statement would be simply unnecessary in their eyes. If Assange really is asking for something impossible from the Swedish government, it seems the situation will remain deadlocked for a very long time to come.


9 thoughts on “Can Sweden grant Assange any assurances?

  1. This is a war ‘twixt those that want a better world, and the minority who actually control it. Apathy and ignorance will end all hope of securing the future, for the majority.

  2. An excerpt: “the request for extradition is examined by Sweden’s Supreme Court before a final decision [of the Government] on extradition is made. … In the hypothetical event of an extradition request being received, all the legal guarantees under Swedish law and Swedish obligations under international law will be respected fully.” Is this enough? It appears to fit your proposal.

  3. The issue GG has with this pompous British ass is a very specific point. As he’s told you umpteen times, does the Supreme Court have the final word on extradition? No! ….You are arguing a similar but larger argument, that can’t be resolved until this so called British legal expert retracts his falsehoods.

  4. @fusako Thanks for highlighting this. It seems Rydling has written for something called Newsmill in the past but indeed has no legal background. I’ve removed the quote.

  5. @g, Thanks for that excerpt. It does seem that it fits the sort of thing I’m proposing. If this is not enough for Assange, then maybe a public statement of it by the Swedish government is the closest thing to an assurance that Assange can hope for.

    @Anonymous, I agree that Green’s statement is misleading. The Swedish government clearly has final say when all the proceedings in Sweden have taken course. Green should at least issue a clarification of this.

  6. I think this is from Glenn Greenwalds blog according to the post. He states:

    “Swedish authorities could, for instance, publicly state that they view espionage charges for the “crime” of reporting on government secrets to be a “political crime” not subject to extradition, but still reserve the right to formally decide upon any extradition request if and when they receive one.”

    Swedish authorities could, for instance, publicly state that there are no polar bears in Stockholm streets and we drive on the right hand side of the road. There is no need to make any statements on what the law is. Julian Assange is afraid. Someone need to help him with his fears. It is not a matter for the Swedish government.

    The problem here is the disinformation by Assangistas that claim that Sweden’s history on extraditions is really bad. Something that is not true. In more than 400 cases of military and political crimes not one single person has been extradited. In 1992 the US asked for the extradition of a CIA defector, Edward Lee Howard. Extradition was refused. The Prime Minister of Sweden at the time was Carl Bildt. The same Carl Bildt that is now branded as some kind of US Embassy Informant by Julian Assange.

    What Glenn Greenwald and others cannot understand is that the case of the two Egyptian citizens in 2001 were not an extradition case. They were refused political asylum and sent back to Egypt. I agree that the way this was done was illegal and it violated the two Egyptians human rights. But the case has no similarity with an extradition case.

    Green’s statement is somewhat misleading but I think his statement that Sweden cannot offer a guarantee is correct.

    Greenwald’s statements are misleading. And he is most definitely wrong when he claims that the government can issue a guarantee.

    And in an e-mail response to me Greenwald cannot discriminate between an extradition case and a case of political asylum. He obviously does not no anything about Sweden’s track record of extraditions to the US. Not one person in the last 50 years is extradited for political or military crimes. Not one.

    I am not a lawyer as someone correctly noted.

  7. @Göran, I tend to agree. It seems highly unlikely that the Swedish authorities would make an exception for Assange and publicly state what the law is on extradition. Thanks for highlighting that no-one has been extradited politically from Sweden in the past 50 years too – that’s an important point too.

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