Assange detention illegal under English, European and international law, defense argues

26 Feb, 2020 11:33 / Updated 3 minutes ago

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A banner supporting Julian Assange outside Woolwich Crown Court. © REUTERS/Henry Nicholls 

Day three of the Julian Assange extradition hearing is focusing on whether the allegations against Assange amount to “political offenses.” If so, it would likely be outside of the judge’s jurisdiction to approve extradition.

Kicking off proceedings at Woolwich Crown Court on Wednesday, defense counsel Edward Fitzgerald argued that 17 of the 18 counts with which the WikiLeaks founder has been charged fall under the US Espionage Act, which makes them political on face value. He added that the 18th count, of conspiracy to commit computer intrusion, was in order to carry out the other alleged offenses.  

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Discussing the policy of not extraditing for political offenses, Assange’s lawyer said: “It is an essential fundamental protection, which the US puts in every single one of its extradition treaties.”

Fitzgerald said that political defence from extradition goes back 100 years and is standard in treaties based on the UN model, including the European Union convention on extradition, the Interpol convention and many others.

The more we research this, the more one sees this is a universal norm.

He also noted that while the US adds the ‘political defense’ extradition provision into all of its treaties, authorities there only take issue when it is invoked against them, despite using it to protect US citizens from extradition to hostile nations.

Presiding judge Vanessa Baraitser said during the close of Tuesday’s proceedings that, although Article 4.1 of the US/UK Extradition Treaty cited does forbid political extraditions, this does not, in fact, appear in the UK Extradition Act – the only legal document which has force in court.  

Picking up that point on Wednesday, Fitzgerald argued that international human rights law provides jurisdiction for an abuse of process argument under Article 5 of the European Convention on Human Rights (ECHR), which prohibits arbitrary detention. 

However, the judge stated that the defense must establish whether Assange’s detention is unlawful under English law, not international law. A similar issue arose previously when the Jamaican government sought the death penalty. 

Fitzgerald cited numerous precedents tying international law and the ECHR with English law in determining the legality of detention, essentially arguing that Assange’s detention is illegal under all three. 

Furthermore, the initial charge of conspiracy to commit computer intrusion is illegal under US law, not English law, rendering all subsequent arguments inadmissible. 

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He continued that the right to due process has been a part of English law since the Magna Carta, while also forming a cornerstone of the constitution. 

Fitzgerald then added that the existence of a treaty is the fundamental basis of the Assange extradition request and that, without a treaty, there would be no such request in the first place. Choosing to ignore the provisions of such a treaty is itself an abuse of process, he added. 

When pressed by Judge Baraitser on why the contentious ‘political defense’ statute of the treaty was removed in 2003, Fitzgerald responded that the version signed by the UK government in 2007 still contained it and is thus the enforced version. 

The defense also argued that many of the prosecution’s arguments in favor of extradition were based on international law and precedent, not English. Any subsequent acts of parliament are irrelevant when the specific defense which precludes extradition for so-called ‘political offenses’ is contained within the treaty signed between the US and the UK.