tag:theconversation.com,2011:/uk/topics/extradition-24570/articles
Extradition – The Conversation
2024-03-27T14:22:09Z
tag:theconversation.com,2011:article/224703
2024-03-27T14:22:09Z
2024-03-27T14:22:09Z
Julian Assange: how British extradition law works
<p>Julian Assange will have to wait a further few weeks to learn whether he can appeal his extradition to the US. The UK High Court has delayed making a decision on the case, giving the US three weeks to provide assurances about aspects of his trial and sentence if extradited. </p>
<p>If the US does not provide these assurances, the court will allow Assange to appeal. But if they do provide them, a further hearing in May will decide if the assurances are satisfactory, and make a final decision.</p>
<p>The WikiLeaks founder <a href="https://theconversation.com/after-years-of-avoiding-extradition-julian-assanges-appeal-is-likely-his-last-chance-heres-how-it-might-unfold-and-how-we-got-here-221217">has spent years</a> attempting to stop his extradition to stand trial on charges of espionage and computer misuse. </p>
<p>The US argues that Assange has put the lives of human intelligence sources in Afghanistan and Iraq at risk by releasing classified documents that named informants in 2010 and 2011. The UK approved his extradition in 2022 following Assange’s arrest after he finally left the Ecuadorian embassy in London, where he had been given political asylum. </p>
<p>Extradition in the UK is governed by the Extradition Act 2003. Although the UK is signatory to a number of international treaties on extradition, judges must apply domestic law only. The act sets out several <a href="https://www.gov.uk/guidance/extradition-processes-and-review">bars to extradition</a>, including human rights. The law does not give judges or politicians discretion to decide whether a person should be extradited – either a bar to extradition applies, or it does not. </p>
<p>Assange has claimed that his extradition would violate the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf">UK-US extradition treaty</a>, which bars extradition for some political offences. This treaty was signed in 2003 as an attempt to strengthen and expedite extradition between the two countries. </p>
<p>But the Extradition Act, introduced into UK law the following year as a reaction to the rise in international terrorism, removed the political offence exemption in UK law. The High Court has rejected Assange’s argument that extradition should be barred under the UK-US extradition treaty, because it is only the Extradition Act that the court can apply.</p>
<p>While the US can refuse to extradite for certain political offences, there is no reciprocal bar in UK law. Whether Assange’s extradition request relates to political offences has never been considered by a UK court.</p>
<p>Assange’s case and that of <a href="https://www.scotsman.com/news/opinion/why-clara-ponsati-shows-government-actions-can-be-threat-to-democracy-dr-paul-arnell-3165442">Clara Ponsati</a>, a Spanish politician involved in the Catalonian independence referendum wanted by Spain for the crime of sedition, have led to calls to reinstate the <a href="https://journals.sagepub.com/doi/full/10.1177/00220183231191476?casa_token=mzXdo5clBZwAAAAA%3A8pkhfzbcYYExc8-deHqEE5A7ZLNhdPWm1SCKlo1TgOdOZIQP62MjCAd0pTIvelaGUnYuo8Ve70oP">political offence exception</a> for nonviolent offences. </p>
<h2>Extradition and human rights</h2>
<p>Assange claims that extradition to the US would breach his rights protected by the European convention on human rights, including his right to <a href="https://pressgazette.co.uk/news/julian-assange-extradition-appeal/">freedom of expression</a>. The law requires that all extraditions must be compatible with human rights. However, the threshold required to bar an extradition is high.</p>
<p>There is no doubt that some of the charges against Assange relate to journalistic activity. The right to freedom of expression, however, is a qualified right. This means that it may be restricted on certain grounds, including national security. In UK law, an argument based on this right has never before prevented an extradition.</p>
<p>At Assange’s extradition hearing, the US prosecutor stated that they would argue that the first amendment (which enshrines freedom of speech and freedom of the press in the US) should not apply to Assange, who is Australian and not a US citizen. </p>
<p>If this were to happen, the High Court held Assange’s extradition could risk a flagrant denial of his human rights. The court found that failing to allow Assange to rely on the first amendment because of his citizenship status would also prejudice his trial by reason of his nationality – another bar to extradition in the Extradition Act. </p>
<p>Now, the High Court has asked the US to give three assurances, or promises, that address its concerns. First, Assange will be permitted to rely on the first amendment. Second, he will not be prejudiced at trial (including sentence) because of his nationality and he will be given the same free-speech protections as a US citizen. And, finally, the death penalty will not be imposed. </p>
<p>Death penalty assurances are relatively common, but those relating to specific aspects of a criminal trial are not. Generally, assurances in extradition remain controversial. It is of course important that they are <a href="https://publications.parliament.uk/pa/ld201415/ldselect/ldextradition/126/12605.htm#n82">genuine and effective</a>, but there is no set mechanism to monitor them, and therefore <a href="https://6kbw.infoservegroup.com/wp-content/uploads/2015/07/Recent-Developments-in-Extradition-Law.pdf">no way of knowing</a> whether they have been honoured. </p>
<p>The high-profile nature of Assange’s case would offer him protection in this regard. If extradited, his trial and treatment in the US would undoubtedly be widely reported.</p>
<h2>What the case tells us about UK extradition law</h2>
<p>This case highlights an inherent conflict in extradition law, between criminal cooperation and reciprocity with other countries, and the protection of human rights. Both the Extradition Act and existing case law lean in favour of extradition. This can only be overcome in rare and exceptional circumstances. </p>
<p>Extradition is based on <a href="https://blog.6kbw.com/posts/what-are-the-limits-of-mutual-trust-in-extradition-relations">mutual trust</a>. The High Court’s concern over Assange’s possible treatment in the US has not yet stopped his extradition, but led to a request for further assurances. The underlying judicial desire to agree to the US extradition request is clear. </p>
<p>Academics and legal experts are currently exploring these controversial issues in a scoping review on <a href="https://lawcom.gov.uk/new-collaboration-on-scoping-study-on-international-cooperation-in-criminal-law/">extradition and international cooperation</a> for the Law Commission. This could be an opportunity to bring greater clarity to aspects of this complex law. </p>
<p>But improvements to the law in the future will not grant Assange any reprieve – his case is headed towards its end, at least in the UK. If the court decides not to allow him to appeal, he is likely to bring the case higher, to the European Court of Human Rights. Whatever the outcome, Assange’s case has brought to the fore the inherent conflicts and complexities in transnational criminal justice.</p><img src="https://counter.theconversation.com/content/224703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The WikiLeaks founder has been given a temporary reprieve from extradition to the US.
Gemma Davies, Associate Professor in Criminal Law, Durham University
Paul Arnell, Reader in Law, Robert Gordon University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/226614
2024-03-26T12:48:44Z
2024-03-26T12:48:44Z
Assange wins legal lifeline against extradition to the US – but there’s a sting in the tail
<p>The High Court in London has granted Julian Assange <a href="https://www.judiciary.uk/judgments/assange-v-government-of-the-united-states-of-america-3/">leave to appeal</a> the UK Home Secretary’s order that he be extradited to the United States on charges of computer misuse, and multiple charges under its Espionage Act. </p>
<p>However, the favourable judgement has a sting in its tail – the US can stop the appeal if it submits adequate <a href="https://www.theguardian.com/media/2024/mar/26/julian-assange-granted-permission-to-appeal-against-extradition-to-us">assurances</a> on the treatment of Assange, including guaranteeing freedom of expression.</p>
<p>The two-judge panel rejected some of the grounds argued by Assange’s legal team and accepted others. They have allowed the US government and the home secretary until April 16 to provide any assurances in relation to the accepted grounds of appeal. Without assurances, leave to appeal will be granted. If assurances are filed with the court, the court will hold another hearing on May 20.</p>
<p>The court rejected the following grounds of appeal:</p>
<ul>
<li><p>that extradition would be incompatible with the US–UK extradition treaty (this essentially addresses the claim that charges are for political offences)</p></li>
<li><p>that extradition is barred because it involves prosecution for a political opinion</p></li>
<li><p>that extradition is incompatible with Article 6 (right to a fair trial) or Article 7 (ban on retroactive criminal law) of the European Convention on Human Rights (ECHR)</p></li>
<li><p>that extradition is incompatible with Article 2 (right to life) or Article 3 (prohibition on torture or inhuman or degrading treatment) of the ECHR.</p></li>
</ul>
<p>The grounds provisionally accepted by the court are:</p>
<ul>
<li><p>that extradition is incompatible with Article 10 (freedom of expression) of the ECHR</p></li>
<li><p>that the UK Extradition Act prohibits extradition in cases where the accused might be prejudiced on grounds of nationality </p></li>
<li><p>that there is inadequate protection of the principle of speciality (that a person can only be charged with offences listed in the extradition request) and against the death penalty.</p></li>
</ul>
<p>The grounds of appeal are in some ways surprising, given the District Court judgement of 2021 decided that extradition should not be allowed on the basis that it would be oppressive. </p>
<p>In the leave to appeal hearing, it seems the court was persuaded by arguments that Assange is being charged for actions that are normal journalistic activities. The European Court of Human Rights has never found that extradition would violate freedom of expression, so this case could be a major development in the law under the ECHR. </p>
<p>The issue of prejudice on the grounds of nationality appears to relate to claims that Assange, as a non-national of the US, would not be able to rely on First Amendment protections of freedom of expression. </p>
<p>The court has asked for new assurances because the grounds of appeal are outside the assurances the US government gave in 2021, which responded to the District Court judgement.</p>
<p>Today’s judgement opens the door to a full appeal. Dates for hearing will be set, but the appeal will probably be heard later this year. If the appeal succeeds, the extradition process would be over. At that point, Assange would be released from Belmarsh prison and probably deported to Australia. </p>
<p>If the appeal fails, he could seek leave to appeal to the UK Supreme Court. If leave is denied or a further appeal fails, he would at that stage have exhausted all possible remedies in the UK. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1772572351432896945"}"></div></p>
<p>US Marshals will likely seek to remove Assange to the United States as soon as possible after he exhausts his UK recourses. To prevent that, his legal team will make an application to the European Court of Human Rights. Assange’s lawyers applied to the European Court of Human Rights in 2022, but the application was declared inadmissible without published reasons on December 13 2022, probably because he had not yet exhausted potential remedies in the UK. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-years-of-avoiding-extradition-julian-assanges-appeal-is-likely-his-last-chance-heres-how-it-might-unfold-and-how-we-got-here-221217">After years of avoiding extradition, Julian Assange’s appeal is likely his last chance. Here's how it might unfold (and how we got here)</a>
</strong>
</em>
</p>
<hr>
<p>Once Assange has exhausted his last possible recourse before the British courts, an application to the European Court of Human Rights would probably be declared admissible. The application will be accompanied by a request for urgent interim measures to obtain an order prohibiting the UK from extraditing Assange until the European Court has decided on his case.</p>
<p>Interim measures are usually only granted in cases involving the right to life or the prohibition on torture or inhuman or degrading treatment. The District Court judgement in 2021 found he should not be extradited because it would be oppressive. The facts underlying that finding, that the likely prison conditions in the US increased the risk that Assange could attempt suicide, could support a claim under the European Convention on Human Rights that extradition would violate his right to be free from inhuman or degrading treatment or punishment. </p>
<p>The United Nations Special Rapporteur on Torture, Alice Edwards, said before the February hearing that the conditions Assange would face could amount to <a href="https://www.ohchr.org/en/press-releases/2024/02/un-special-rapporteur-torture-urges-uk-government-halt-imminent-extradition">torture or other forms of ill-treatment or punishment</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/politics-with-michelle-grattan-greg-barns-on-the-battle-to-free-julian-assange-185690">Politics with Michelle Grattan: Greg Barns on the battle to free Julian Assange</a>
</strong>
</em>
</p>
<hr>
<p>Last week, <a href="https://www.theguardian.com/media/2024/mar/20/julian-assange-wikileaks-plea-deal">reports surfaced</a> that the US government would consider offering Assange a plea bargain that would see him released from prison based on the time he has already served in Belmarsh. </p>
<p>Assange’s American lawyers stated at that time that they had not been contacted by the US government, and no one associated with Assange has made further comment. </p>
<p>With the prospect of legal proceedings continuing for months or years to come, a plea bargain may begin to look like a reasonable outcome for everyone concerned.</p><img src="https://counter.theconversation.com/content/226614/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen has been a volunteer for the Australian Labor Party.</span></em></p>
The Wikileaks founder will be granted leave to appeal his extradition to the US if the US and UK do not provide assurances in relation to the accepted grounds of the appeal.
Holly Cullen, Adjunct professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/221217
2024-02-19T19:05:01Z
2024-02-19T19:05:01Z
After years of avoiding extradition, Julian Assange’s appeal is likely his last chance. Here’s how it might unfold (and how we got here)
<p>On February 20 and 21, Julian Assange will ask the High Court of England and Wales to reverse a decision from June last year allowing the United Kingdom to extradite him to the United States. </p>
<p>There he faces multiple counts of computer misuse and espionage stemming from his work with WikiLeaks, <a href="https://www.aljazeera.com/news/2020/12/20/julian-assange">publishing sensitive</a> US government documents provided by Chelsea Manning. The US government has repeatedly claimed that Assange’s actions <a href="https://www.theguardian.com/australia-news/2023/jul/29/julian-assange-us-rejects-australias-calls-to-free-wikileaks-founder-during-ausmin-talks">risked its national security</a>.</p>
<p>This is the final avenue of appeal in the UK, although Stella Assange, Julian’s wife, has indicated he would <a href="https://www.reuters.com/world/julian-assanges-appeal-against-us-extradition-is-life-or-death-wife-says-2024-02-15/">seek an order</a> from the European Court of Human Rights if he loses the application for appeal. The European Court, an international court that hears cases under the European Convention on Human Rights, can issue orders that are binding on convention member states. In 2022, an order from the court <a href="https://www.theguardian.com/uk-news/2022/jun/14/european-court-humam-right-makes-11th-hour-intervention-in-rwanda-asylum-seeker-plan">stopped the UK</a> sending asylum seekers to Rwanda pending a full review of the relevant legislation.</p>
<p>The extradition process has been running for nearly five years. Over such a long time, it’s easy to lose track of the sequence of events that led to this. Here’s how we got here, and what might happen next.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-australias-bid-for-julian-assanges-freedom-presents-formidable-problems-for-joe-biden-213152">View from The Hill: Australia's bid for Julian Assange's freedom presents formidable problems for Joe Biden</a>
</strong>
</em>
</p>
<hr>
<h2>Years-long extradition attempt</h2>
<p>From 2012 until May 2019, Assange resided in the Ecuadorian embassy in London after breaching bail on unrelated allegations. While he remained in the embassy, the police could not arrest him without the permission of the Ecuadorian government. </p>
<p>In 2019, Ecuador allowed Assange’s arrest. He was then convicted of breaching bail conditions, and imprisoned in Belmarsh Prison, where he’s remained during the extradition proceedings. Shortly after his arrest, the United States <a href="https://theconversation.com/assanges-new-indictment-espionage-and-the-first-amendment-117785">laid charges against Assange</a> and requested his extradition from the United Kingdom.</p>
<p>Assange immediately challenged the extradition request. After delays due to COVID, in January 2021, the District Court decided the extradition <a href="https://theconversation.com/julian-assanges-extradition-victory-offers-cold-comfort-for-press-freedom-152676">could not proceed</a> because it would be “oppressive” to Assange. </p>
<p>The ruling was based on the likely conditions that Assange would face in an American prison and the high risk that he would attempt suicide. The court rejected all other arguments against extradition.</p>
<p>The American government appealed the District Court decision. It provided assurances on prison conditions for Assange to overcome the finding that the extradition would be oppressive. Those assurances led to the High Court <a href="https://www.iclr.co.uk/document/2021005727/casereport_3d8af061-9914-4a2d-bd2d-fa5260deeb2c/html">overturning the order</a> stopping extradition. Then the Supreme Court (the UK’s top court) refused Assange’s request to appeal that ruling. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-rocky-diplomatic-road-julian-assanges-hopes-of-avoiding-extradition-take-a-blow-as-us-pushes-back-210806">A rocky diplomatic road: Julian Assange's hopes of avoiding extradition take a blow as US pushes back</a>
</strong>
</em>
</p>
<hr>
<p>The extradition request then passed to the home secretary, who <a href="https://www.theguardian.com/media/2022/jun/17/julian-assange-extradition-to-us-approved-by-priti-patel">approved it</a>. Assange appealed the home secretary’s decision, which a single judge of the <a href="https://www.theguardian.com/media/2023/jun/09/julian-assange-dangerously-close-to-us-extradition-after-losing-latest-legal-appeal">High Court rejected</a> in June 2023. </p>
<p>This appeal is against that most recent ruling and will be heard by a two-judge bench. These judges will only decide whether Assange has grounds for appeal. If they decide in his favour, the court will schedule a full hearing of the merits of the appeal. That hearing would come at the cost of further delay in the resolution of his case.</p>
<h2>Growing political support</h2>
<p>Parallel to the legal challenges, Assange’s supporters have led a political campaign to stop the prosecution and the extradition. One goal of the campaign has been to persuade the Australian government to argue Assange’s case with the American government. </p>
<p>Cross-party support from individual parliamentarians has steadily grown, led by independent MP Andrew Wilkie. Over the past two years, the government, including the foreign minister and the prime minister, have made stronger and clearer statements that the <a href="https://www.internationalaffairs.org.au/australianoutlook/julian-assange-the-state-of-play-at-the-end-of-2023/">prosecution should end</a>. </p>
<p>On February 14, Wilkie proposed a <a href="https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansardr/27604/&sid=0001">motion</a> in support of Assange, seconded by Labor MP Josh Wilson. The house was asked to “underline the importance of the UK and USA bringing the matter to a close so that Mr Assange can return home to his family in Australia.” It was passed.</p>
<p>In addition, Attorney-General Mark Dreyfus <a href="https://www.theguardian.com/australia-news/2024/feb/14/australian-mps-pass-motion-urging-us-and-uk-to-allow-julian-assange-to-return-to-australia">confirmed</a> he had recently raised the Assange prosecution with his American counterpart, who has the authority to end it.</p>
<h2>What will Assange’s team argue?</h2>
<p>For the High Court appeal, it is expected Assange’s legal team will once again argue the extradition would be oppressive and that the American assurances are inadequate. A recent <a href="https://www.ohchr.org/en/press-releases/2024/02/un-special-rapporteur-torture-urges-uk-government-halt-imminent-extradition">statement</a> by Alice Edwards, the United Nations Special Rapporteur on Torture, supports their argument that extradition could lead to treatment “amounting to torture or other forms of ill-treatment or punishment”. She rejected the adequacy of American assurances, saying:</p>
<blockquote>
<p>They are not legally binding, are limited in their scope, and the person the assurances aim to protect may have no recourse if they are violated.</p>
</blockquote>
<p>The argument that extradition would be oppressive remains the strongest ground for appeal. However, it is likely Assange’s lawyers will also repeat some of the arguments which were unsuccessful in the District Court proceedings. </p>
<p>One argument is that the charges against Assange, particularly the espionage charges, are political offences. The United States–United Kingdom extradition treaty does not allow either state to extradite for political offences. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Explainer: what charges does Julian Assange face, and what's likely to happen next?</a>
</strong>
</em>
</p>
<hr>
<p>Assange is also likely to re-run the argument that his leaks of classified documents were exercises of his right to freedom of expression under the European Convention on Human Rights. To date, the European Court of Human Rights has never found that an extradition request violates freedom of expression. For the High Court to do so would be an innovative ruling. </p>
<p>The High Court will hear two days of legal argument and might not give its judgement immediately, but it will probably be delivered soon after the hearing. Whatever the decision, Assange’s supporters will continue their political campaign, supported by the Australian government, to stop the prosecution. </p>
<p><em>Correction: An earlier version of this article incorrectly stated Julian Assange lived in the Ecuadorian embassy after breaching bail on unrelated charges. He had not been charged with any offences and was instead wanted for questioning in Sweden over sexual assault allegations. The Swedish investigation has since been dropped with no charges laid.</em></p><img src="https://counter.theconversation.com/content/221217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen has been a volunteer for the Australian Labor Party, including for Josh Wilson, MP.</span></em></p>
Efforts to extradite Wikileaks founder Julian Assange from the UK to the US have gone on for years. Here’s what’s been going on and what might happen in court this time.
Holly Cullen, Adjunct professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/215562
2023-11-07T15:08:32Z
2023-11-07T15:08:32Z
Longer sentences? Overcrowded UK prisons are already failing society
<p>The UK government plans to impose tougher sentences on those convicted of serious crimes, <a href="https://www.bbc.co.uk/news/uk-politics-67337441">it announced</a> via this year’s king’s speech at the state opening of parliament. Political pundits reacting to the speech <a href="https://www.bbc.co.uk/iplayer/episode/m001s7n5/the-state-opening-of-parliament-2023">on the BBC</a> immediately questioned the rationale behind potentially putting more people in prison, when UK prisons are struggling to accommodate those already under their purview.</p>
<p>The England and Wales prison watchdog <a href="https://www.theguardian.com/uk-news/2023/sep/25/one-in-10-prisons-in-england-and-wales-should-be-shut-down-watchdog-says">has said</a> that one in ten prisons in those two countries should be shut down because of overcrowding and inhumane regimes. Similar concerns <a href="https://www.bbc.co.uk/news/uk-scotland-66121355">have been voiced</a> over prisons in Scotland and in <a href="https://www.bbc.co.uk/news/uk-northern-ireland-67228069">Northern Ireland</a>. </p>
<p>The <a href="https://theconversation.com/the-dire-state-of-british-prisons-and-what-they-could-learn-from-europe-to-get-better-212907">deteriorating state of the UK’s prisons</a> was emphasised most recently by news reports that, in August 2023, <a href="https://www.bbc.co.uk/news/uk-scotland-66121355">an Irish judge</a> blocked a man’s extradition to Scotland, due to the long hours prisoners in the Scottish estate spend in cells (up to 22 hours a day). The judge also raised concerns about this man’s complex mental health needs, <a href="https://www.gov.scot/binaries/content/documents/govscot/publications/research-and-analysis/2022/09/understanding-mental-health-needs-scotlands-prison-population/documents/understanding-mental-health-needs-scotlands-prison-population/understanding-mental-health-needs-scotlands-prison-population/govscot%3Adocument/understanding-mental-health-needs-scotlands-prison-population.pdf">highlighting recent research</a> which identified poor recognition of neuro-developmental disorders across the UK prison estate, despite their relatively high prevalence.</p>
<p>And in September 2023 <a href="https://www.theguardian.com/society/2023/sep/05/germany-refuses-extradite-albanian-man-uk-jail-conditions">a German court</a> in Karlsruhe followed suit, refusing to extradite a man to the UK. Here too, the court report cited concerns over prison conditions in a decision described by a member of the UK’s Law Society as a “severe rebuke” and “an embarrassment for the UK”. </p>
<p>As <a href="https://www.sccjr.ac.uk/wp-content/uploads/2021/06/Getting-it-right-for-families-Briefing-Paper.pdf">our research</a> and the wider body of scholarship <a href="https://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/PSJ%20263%2C%20Families%20inside.pdf">makes clear</a>, what happens on the inside affects both those who are incarcerated and the prison staff. And those struggles, in turn, affect people on the outside – often profoundly. </p>
<h2>The UK’s high rates of imprisonment</h2>
<p>Overcrowding is not a new problem, but is now being seen and felt – as HM Chief Inspector of Prisons for Scotland Wendy Sinclair-Gieben put it in her annual report for 2022-2023 – at an <a href="https://www.prisonsinspectoratescotland.gov.uk/sites/default/files/publication_files/HM%20Chief%20Inspectors%20of%20Prisons%20Scotland%20-%20Annual%20Report%20-%202022-2023.pdf">“exacerbated scale”</a>.</p>
<p>British <a href="https://theconversation.com/prison-numbers-set-to-rise-24-in-england-and-wales-it-will-make-society-less-safe-not-more-172566">rates of imprisonment</a> are among the highest in western Europe. In Scotland, the prison population rate stands at <a href="https://www.prisonstudies.org/country/united-kingdom-scotland">144 per 100,000</a> of the national population. In England and Wales, the figure is a little higher, at <a href="https://www.prisonstudies.org/country/united-kingdom-england-wales">146 per 100,000</a>. </p>
<p>The <a href="https://wp.unil.ch/space/files/2023/06/230626_Key-Findings-SPACE-I_Prisons-and-Prisoners-in-Europe-2022.pdf">European average</a>, by contrast, is 118 per 100,000 population (although the median is lower, at 104 per 100,000). The UK’s close European neighbours including the Republic of Ireland, the Netherlands and Germany, as well as all the Nordic nations, have <a href="https://wp.unil.ch/space/files/2023/06/230626_Key-Findings-SPACE-I_Prisons-and-Prisoners-in-Europe-2022.pdf">rates of less than 90 per 100,000</a>. </p>
<p>Imprisonment rates have been <a href="https://prisonreformtrust.org.uk/wp-content/uploads/2023/06/prison_the_facts_2023.pdf">climbing</a> in England and Wales over the last 30 years, as well as <a href="https://onlinelibrary.wiley.com/doi/10.1111/hojo.12516?af=R">in Scotland</a> with rates described as “stubbornly high” by criminologists. Yet, overall rates of crime have been <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingjune2023">consistently falling</a> in England and Wales and <a href="https://www.gov.scot/binaries/content/documents/govscot/publications/statistics/2023/06/recorded-crime-scotland-2022-23/documents/recorded-crime-scotland-2022-23/recorded-crime-scotland-2022-23/govscot%3Adocument/recorded-crime-scotland-2022-23.pdf">Scotland alike</a>. </p>
<p>In Northern Ireland, historically, rates of imprisonment have been closer to those in the Republic of Ireland. While the current rate (99 per 100,000) is lower than the other UK jurisdictions, <a href="https://www.justice-ni.gov.uk/sites/default/files/publications/justice/Northern-Ireland-Prison-Population-2022-23.pdf">it is rising</a>.</p>
<h2>How incarceration impacts prisoners, families and society</h2>
<p>Research has long shown that overcrowded prisons <a href="https://www.emerald.com/insight/content/doi/10.1108/IJPH-04-2018-0014/full/pdf?title=overcrowding-and-its-impact-on-prison-conditions-and-health">serve no one</a>. For those incarcerated, they are harder environments to live in. They reduce opportunities to engage in programmes. They increase people’s risk of coming to physical harm, with rising tensions and inadequate staffing to de-escalate and respond. </p>
<p>For prison staff, overcrowding intensifies an inherently complex and demanding job. Officers <a href="https://onlinelibrary.wiley.com/doi/10.1111/hojo.12394">expend considerable emotional labour</a> in carrying out their roles. When they are put in charge of more people than a facility is designed to accommodate, the extra burden <a href="https://www.theguardian.com/uk-news/2023/sep/28/prisons-struggle-to-keep-staff-as-officers-leave-for-border-force-and-police">fuels</a> a cycle of burnout, attrition and understaffing. </p>
<p>Our research <a href="https://www.sccjr.ac.uk/wp-content/uploads/2021/06/Getting-it-right-for-families-Briefing-Paper.pdf">shows</a> that the wider impact of bad prison conditions is felt by the families of loved ones in custody – and society at large. Data is not routinely captured on the number of family members affected by imprisonment, although the UK charity, Families Outside, estimates that around <a href="https://www.familiesoutside.org.uk/27000-children-in-scotland-are-given-new-rights/">27,000 children in Scotland</a> alone are affected by the imprisonment of a parent each year. </p>
<p>Part of the impact on families is literally <a href="https://journals.sagepub.com/doi/full/10.1177/0961463X16633235">hanging around and waiting</a>, in all kinds of ways – waiting for the <a href="https://researchbriefings.files.parliament.uk/documents/CBP-8372/CBP-8372.pdf">trial</a>, waiting for <a href="https://journals.sagepub.com/doi/full/10.1177/02645505211025592#bibr43-02645505211025592">the bus</a> to go to the prison and waiting <a href="https://journals.sagepub.com/doi/full/10.1177/0264550516663644">in corridors</a> before the visit.</p>
<p>Further, family members <a href="https://www.sccjr.ac.uk/wp-content/uploads/2021/06/Getting-it-right-for-families-Briefing-Paper.pdf">experience</a> societal stigma and judgment, along with financial stresses. Some suffer from the <a href="https://www.tandfonline.com/doi/full/10.1080/13668803.2011.580125?needAccess=true">loss of breadwinner earnings</a>. The family member outside may need to do less paid work, to do more <a href="https://www.jrf.org.uk/report/poverty-and-disadvantage-among-prisoners-families">(unpaid) childcare</a>, which the (now) prisoner previously did. </p>
<p>In addition, the emotional toll on families is pronounced. <a href="https://www.emerald.com/insight/content/doi/10.1108/JCP-03-2017-0011/full/html">Keeping in touch</a> is very important. This in turn also adds pressure to household budgets however, for example with <a href="https://www.familiesoutside.org.uk/content/uploads/2022/11/Paying-the-Price-October-22022.pdf">travel costs</a> associated with prison visits.</p>
<p>Sociologists have long warned about the <a href="https://journals.sagepub.com/doi/full/10.1177/2632666320936432">“pains of imprisonment”</a>, the unique deprivations – of liberty, security, autonomy – that characterise a prison sentence. Family members frequently, and intensely, worry about the impact on incarcerated loved ones. As one family member in a study one of us (Rebecca Foster) undertook in 2019 <a href="https://link.springer.com/chapter/10.1007/978-3-030-12744-2_13">put it</a>: “If it’s hard visiting, it’s a lot worse being in there. You need to remember that.”</p>
<p>Building more prisons, will not, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1038765/prisons-strategy-white-paper.pdf">as has been suggested</a>, result in less overcrowding, nor in a reduction in its associated ills. Rather, it will just see <a href="https://howardleague.org/blog/it-is-time-to-stop-building-prisons/">more people</a> being sent to fill them. </p>
<p>Truly addressing overcrowding has to start with <a href="https://cdn.penalreform.org/wp-content/uploads/2013/05/10-pt-plan-overcrowding.pdf">reducing the number of people</a> sent to prison in the first place. Community-based punishments should prevail, with prison reserved for only the most <a href="https://www.iprt.ie/site/assets/files/6132/scotlands_choice.pdf">serious offenders</a>. The <a href="https://theconversation.com/fixing-the-prison-crisis-in-birmingham-and-beyond-its-about-more-than-process-and-punishment-102134">harms of imprisonment</a> have always had a ripple effect. Prisons at crisis point cause even more, far-reaching damage.</p><img src="https://counter.theconversation.com/content/215562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Foster has previously received funding from the Dawes Trust, the Scottish Government, and the Scottish Centre for Crime and Justice Research.</span></em></p><p class="fine-print"><em><span>Kirstin Anderson previously received funding from the Scottish Government, Royal Society of Edinburgh, the British Academy and the Scottish Centre for Crime and Justice Research. </span></em></p>
The UK imprisons more people than most of its western European neighbours and the conditions in its prisons are getting worse.
Rebecca Foster, Lecturer in Criminology, Edinburgh Napier University
Kirstin Anderson, Lecturer in Criminology, Edinburgh Napier University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/207402
2023-06-09T02:18:55Z
2023-06-09T02:18:55Z
Do federal or state prosecutors get to go first in trying Trump? A law professor untangles the conflict
<figure><img src="https://images.theconversation.com/files/531053/original/file-20230609-23-4oy7lo.jpg?ixlib=rb-1.1.0&rect=790%2C431%2C5200%2C3556&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks at a campaign event in New Hampshire on April 27, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-at-a-campaign-event-at-news-photo/1252522283?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p>A federal grand jury in Florida indicted former President Donald Trump on June 8, 2023, on multiple criminal charges related to classified documents he took from the White House to his home in Mar-a-Lago, Florida, <a href="https://www.nytimes.com/live/2023/06/08/us/trump-indictment-documents">according to multiple sources</a> cited in The New York Times and The Associated Press.</p>
<p><a href="https://truthsocial.com/@realDonaldTrump/posts/110511161240386878">Trump himself said</a> on his social media outlet, Truth Social, that he had been indicted.</p>
<p>The seven counts against Trump – the first president to face federal charges in U.S. history – include <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73">obstruction of justice</a>, false statements and <a href="https://www.law.cornell.edu/uscode/text/18/1924">willful retention of documents</a>, The New York Times reported. </p>
<p>Trump said he was <a href="https://www.businessinsider.com/trump-says-he-indicted-on-truth-social-2023-6">set to appear</a> in a <a href="https://www.miamiherald.com/news/local/article276225626.html">Miami federal courthouse</a> on June 9 at 3 p.m. </p>
<p>The Justice Department <a href="https://www.pbs.org/newshour/politics/donald-trump-says-hes-been-indicted-on-charges-of-mishandling-classified-documents">did not immediately comment</a> on the reported charges.</p>
<p>But the federal charges come on top of other legal trouble Trump is facing at the state level.</p>
<p>Manhattan District Attorney Alvin Bragg <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">charged Trump</a> in April 2023 with 34 felony counts of falsifying business records. </p>
<p>And in Georgia, the Fulton County district attorney is investigating <a href="https://www.vox.com/politics/2023/6/4/23748503/georgia-trump-investigation-rico">Trump’s alleged attempts</a> to overturn the results of the 2020 election. This, too, could result in criminal charges under Georgia law. </p>
<p>If a person is charged by federal and state prosecutors – or prosecutors in different states – at the same time, which case goes first? </p>
<p>Who gets priority?</p>
<p>I am a <a href="https://scholar.google.com/citations?user=xANL5ZkAAAAJ&hl=en">scholar of criminal law.</a> It’s important to recognize that criminal law provides no clear answer how to settle that question. </p>
<h2>No law dictating a path ahead</h2>
<p>Nothing in the U.S. Constitution or federal law dictates that, say, federal criminal cases get priority over state cases, or that prosecutions proceed in the order in which indictments are issued. </p>
<p>The solution ordinarily is that the various prosecutors will negotiate and decide among themselves which case should proceed first. Often, the one that involves the most serious charges gets priority, although the availability of key witnesses or evidence could play a role. </p>
<p>There are a few cases to look to as reference for state charges competing with federal ones. </p>
<figure class="align-left ">
<img alt="A white man with a beard looks very serious." src="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Special Counsel Jack Smith has filed a seven-count indictment against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/prosecutor-jack-smith-of-the-us-waits-for-the-start-of-the-news-photo/1229563865?adppopup=true">Peter Dejong /AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>After <a href="https://apnews.com/article/ohio-us-news-ap-top-news-crime-charlottesville-2e61587a0b9c4849b4aec1ec3695ef22">neo-Nazi James Fields drove his car</a> into a group of protesters at the Unite the Right Rally in Charlottesville, Virginia, in 2017, killing one person and injuring others, he was charged with crimes in both federal and state courts. </p>
<p>The state homicide trial went first. Then, <a href="https://www.justice.gov/opa/pr/ohio-man-pleads-guilty-29-federal-hate-crimes-august-2017-car-attack-rally-charlottesville">Fields pleaded guilty</a> to federal hate crime charges after the state conviction and <a href="https://www.npr.org/2019/07/15/741756615/virginia-court-sentences-neo-nazi-james-fields-jr-to-life-in-prison">received two life sentences</a> for his crime from both the state and federal charges.</p>
<p>By contrast, <a href="https://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/index.html">“D.C. Sniper” John Allen Muhammad</a> was finally apprehended at a highway rest stop in Maryland in 2002, after a deadly series of sniper shootings in Maryland, Virginia and the District of Columbia, which killed 10 people and injured three. </p>
<p>Maryland police <a href="https://www.washingtonpost.com/history/2022/10/01/timeline-dc-sniper-attacks/">arrested Muhammad</a>. Then, <a href="https://abcnews.go.com/US/story?id=91093&page=1">federal officials were the first</a> to file charges. But Muhammad was first put on trial and convicted of murder <a href="https://mdcourts.gov/data/opinions/coa/2022/29a21.pdf">in Virginia</a>.</p>
<h2>Trump’s circumstances</h2>
<p>In Trump’s case, his federal charges – which were not unsealed as of June 8 – are likely to carry longer potential sentences than the state offenses. </p>
<p>The felonies he is facing in New York are white-collar crimes and may <a href="https://www.forbes.com/sites/alisondurkee/2023/04/05/will-trump-go-to-prison-counts-against-him-could-result-in-136-year-sentence-but-its-highly-unlikely/">not result in any prison time</a>, legal experts have said.</p>
<p>Of course, much about Trump’s case is unique. Never has a former president faced federal or state prosecution. That fact alone probably makes priority for the federal prosecution more likely. </p>
<p>An active presidential candidate has faced criminal charges in the past, though. </p>
<p>Socialist Party <a href="https://www.smithsonianmag.com/history/fiery-socialist-challenged-nations-role-wwi-180969386/">nominee Eugene Debs</a> was <a href="https://www.oyez.org/cases/1900-1940/249us211">prosecuted and convicted under the Espionage Act</a> for his opposition to World War I in 1918. He <a href="https://theconversation.com/the-presidential-campaign-of-convict-9653-203027">campaigned from prison</a> for the 1920 election, before <a href="https://www.loc.gov/rr/program/bib/elections/election1920.html">losing to Republican Warren G. Harding</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unsealed a search warrant that showed the FBI was investigating former president Donald Trump for possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<p>Federal authorities could assert priority over state officials by taking custody of the defendant. States cannot arrest suspects who are outside the state’s borders, but federal law enforcement officers <a href="https://www.fbi.gov/about/faqs">can arrest suspects anywhere</a> in the country. </p>
<p>It is exceedingly unlikely that federal prosecutors would ask a court to detain Trump in jail before trial. Rather, they are likely to allow him to be released on bail <a href="https://www.nytimes.com/2023/04/04/nyregion/trump-bail-reform.html">as the New York court did</a> in April. But their nationwide jurisdiction gives federal authorities an advantage over states in controlling the defendant, in terms of placing and enforcing bail conditions, for example, regardless of where he resides at the moment.</p><img src="https://counter.theconversation.com/content/207402/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darryl K. Brown does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
If a person – in this case, the former president of the United States – is charged by federal and state prosecutors, or prosecutors in different states, at the same time, which case goes first?
Darryl K. Brown, Professor of Law, University of Virginia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/184952
2022-06-21T14:02:45Z
2022-06-21T14:02:45Z
What it’ll take for the Guptas to face corruption charges in South Africa
<figure><img src="https://images.theconversation.com/files/469780/original/file-20220620-20-84slwt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Atul Gupta (pictured) and his brother Rajesh are the alleged masterminds behind state capture in South Africa.</span> <span class="attribution"><span class="source">Kevin Sutherland/Sunday Times via Getty Images</span></span></figcaption></figure><p>Now that Rajesh and Atul Gupta have <a href="https://www.bbc.com/news/world-africa-61713832">been arrested</a> in the United Arab Emirates (UAE), there is <a href="https://www.iol.co.za/sunday-tribune/news/gupta-brothers-extradition-could-take-years-86fe3f64-e47c-4c5c-b5f6-49df51568bcc">a great deal of speculation as to when</a> the brothers may ultimately set foot on South African soil to face charges of money laundering and other financial crimes.</p>
<p>The brothers are the alleged kingpins behind <a href="https://www.bbc.com/news/world-africa-48980964">state capture</a> in South Africa – the <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">massive corruption and repurposing of state organs</a> for private gain during the <a href="https://pari.org.za/betrayal-promise-report/">ruinous reign</a> of their friend, former president <a href="https://www.gov.za/about-government/contact-directory/jacob-gedleyihlekisa-zuma-mr">Jacob Zuma</a>. They fled South Africa for Dubai <a href="https://www.news24.com/citypress/news/why-guptas-left-sa-20160409-2">in April 2016</a>.</p>
<p>The judicial commission into state capture and corruption – <a href="https://www.statecapture.org.za/">Zondo Commission</a> – found that the Gupta family had considerable access to Zuma, influencing political decisions, such as ministerial appointments and staffing at the various state-owned enterprises, and rearrangement of the revenue service to advance their financial interests.</p>
<p>The evidence outlined in the Zondo Commission reports offers substantive, chronological and narrative detail. That’ll assist prosecutors in building cases of fraud, money-laundering and a host of other financial crimes against named individuals, including Rajesh and Aptul Gupta.</p>
<p>This means that <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">South Africans are now aware</a>, having been provided with considerable information and in great detail, about the financial malfeasance that had been carried out for over a decade or more.</p>
<p>Despite this, there have only been a few arrests, and even a smaller number of <a href="https://www.sowetanlive.co.za/news/south-africa/2022-05-27-former-transnet-boss-siyabonga-gama-appears-in-court/">prosecutions</a>. Having the Guptas in court will send a strong signal that the days of impunity are over.</p>
<p>The likelihood of the brothers ultimately being forced to face their alleged crimes depends on how strong the case against them is, and how adroit the prosecutors are. So far, it’s clear that there is a very strong case against the brothers. But the jury is still out on the ability of the country’s prosecutors to do a good job.</p>
<p>Nevertheless, it’s important to understand bringing the Guptas to account might take a while.</p>
<h2>A drawn out process</h2>
<p>Arresting a suspect in pursuance of an extradition order usually signals a preliminary legal victory for the requesting country. Once the fugitive is in police custody, formal proceedings may start to have the suspect brought to trial. </p>
<p>But the victory is usually short-lived. This is because the process of extradition is lengthy, often proceeding in fits and starts. It may in fact take years to bring the suspect to justice.</p>
<p>A recent international example is the case of <a href="https://www.bbc.com/news/uk-61839256">Julian Assange’s extradition</a> from the United Kingdom to the United States to face espionage charges, which has been in the works <a href="https://www.npr.org/2022/06/17/1105827493/julian-assange-extradition-explained">for over a decade</a>. Assange has used court challenges and extra-legal measures (<a href="https://www.theguardian.com/world/2018/may/15/julian-assange-ecuador-london-embassy-how-he-became-unwelcome-guest">refuge in the Ecuadorian Embassy in London</a>) to halt his extradition.</p>
<p>One closer to home is the case of Mozambique’s former finance minister Manuel Chang, who is wanted in both Mozambique and the United States for corruption involving $2 billion. The High Court in Johannesburg has ruled that Chang, who has been in jail in South Africa since 2018, be <a href="https://www.news24.com/news24/southafrica/news/just-in-mozambiques-former-finance-minister-to-be-extradited-to-the-us-20211110">extradited to the US for trial</a>.</p>
<p>It is probable that the Guptas will use the court systems in both the UAE and South Africa to delay their day of legal reckoning. They are also likely to seek political or diplomatic alternatives to facing trial in South Africa. </p>
<p>These could include, for example, seeking intervention from the Indian or UAE governments to pursue a legal settlement that might involve returning their allegedly ill-gained revenue in exchange for withdrawing the charges.</p>
<h2>Strong case</h2>
<p>The first precondition for securing the brothers’ presence in court would be a bulletproof case by South Africa’s <a href="https://www.npa.gov.za/">National Prosecuting Authority</a>. This must withstand both South African and UAE judicial scrutiny. Such a case would have to be built on an incontrovertible body of evidence including sworn documents, financial records, witness testimony, and an irreproachable timeline of misdeeds. </p>
<p>Such a bulletproof case is mapped out in voluminous detail in the <a href="https://www.statecapture.org.za/">reports of the Zondo Commission</a>. The reports outlined how Zuma’s friends and associates diverted billions of rand from parastatals to offshore accounts, mostly at the behest of the Gupta family. </p>
<p>A searing example is the purchase by <a href="https://www.scribd.com/document/556244158/Part-2-Vol-1-Trasnet-Report-of-the-State-Capture-Commission-PART-II-Vol-I-010222">Transnet</a>, the transport parastatal, of unsuitable locomotives, in violation of state procurement laws and policies, and with allegedly huge kickbacks to the Guptas. Another example is the slew of <a href="https://www.iol.co.za/business-report/companies/eskom-gupta-dealings-exposed-2086293">criminal activities at Eskom</a>, the power utility, that were allegedly devised entirely to profit the Gupta family and their enablers in the governing party.</p>
<p>These financial crimes have had several deleterious effects on South Africa. They robbed South Africans of basic social and economic resources (electricity, transport) they need to live a decent life. Even with prosecutions, it may take years (if at all) to recoup the stolen money.</p>
<p>In short, the Gupta footprint is all over the thousands of pages of the <a href="https://www.corruptionwatch.org.za/january-2022/">Zondo Commission Report</a>. The task is now up to the NPA to develop an unimpeachable case against Rajesh and Aptul Gupta.</p>
<h2>Prosecutors</h2>
<p>The second precondition to ensuring the Guptas return to South Africa to face charges is the adroit handling and ultimate success of the prosecutors in prevailing over the many legal challenges that are certain to be raised by the Gupta brothers.</p>
<p>It helps that the brothers have lost their enormous influence and access to South Africa’s presidency, and other senior ANC politicians with the election of Cyril Ramaphosa as party leader <a href="https://theconversation.com/who-is-cyril-ramaphosa-a-profile-of-the-new-leader-of-south-africa-89456">in 2017</a>, and national president <a href="https://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">in 2018</a>.</p>
<p>The jury is still out as to whether the National Prosecuting Authority, which was hollowed out as part of the state capture project, has the capability to successfully prosecute those implicated in the Zondo Commission reports. </p>
<p>Despite the appointment of <a href="https://issafrica.org/about-us/press-releases/ndpp-appointment-signals-ramaphosas-commitment-to-rule-of-law">new leadership</a> three years ago, and formal support from President Ramaphosa, the agency continues to be underfunded. The record so far does not inspire confidence. </p>
<p>The prosecution of those named in the Zondo Commission reports remain lacklustre. This is so despite the <a href="https://www.msn.com/en-za/news/other/npa-and-hawks-to-act-against%20-accused-in-zondo-commission-report/ar-AASHr24">public commitment</a> made by the prosecutors in the wake of the Zondo Commission reports. </p>
<p>Yet the expectations of South Africans that the state will succeed in prosecuting those who have committed atrocious financial crimes remain high. Despite its disappointing record, the prosecuting authority has been giving a vital legal lifeline by the Zondo Commission reports, with their detailed listing and description of the crimes committed.</p>
<p>The prosecuting authority has also enlisted some of the country’s leading legal minds from the private sector in efforts to <a href="https://theworldnews.net/za-news/bid-to-extradite-gupta-brothers-back-to-sa-receives-boost">extradite the Guptas</a>, and to prosecute state capture cases. This bodes well for ensuring that the Gupta brothers will face charges in a South African court.</p>
<h2>Conclusion</h2>
<p>South Africa’s prosecutors should seize the lifeline provided by the Zondo Commission, and the addition of capable legal talent, to reinvigorate a distressed institution. </p>
<p>Successful prosecution of the Guptas and others implicated in state capture will be good for the prosecutors’ reputation. It’ll also be good for the country – in economic and political terms. Their success will be appreciated not just locally, but could serve as a model for prosecuting corruption in Africa – and globally.</p><img src="https://counter.theconversation.com/content/184952/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penelope Andrews does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
A judicial commission into state corruption found that the Gupta family influenced former President Jacob Zuma’s political decisions.
Penelope Andrews, Professor of Law, New York Law School
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/185363
2022-06-18T08:19:26Z
2022-06-18T08:19:26Z
UK government orders the extradition of Julian Assange to the US, but that is not the end of the matter
<figure><img src="https://images.theconversation.com/files/469587/original/file-20220618-2246-86f16f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/AP/Matt Dunham</span></span></figcaption></figure><p>On June 17 2022, UK Home Secretary Priti Patel issued a <a href="https://www.theguardian.com/media/2022/jun/17/julian-assange-extradition-to-us-approved-by-priti-patel">statement</a> confirming she had approved the US government’s request to extradite Julian Assange. The Australian founder of Wikileaks faces 18 criminal charges of computer misuse and espionage. </p>
<p>This decision means Assange is one step closer to extradition, but has not yet reached the final stage in what has been a years-long process. Patel’s decision follows a March <a href="https://www.supremecourt.uk/news/permission-to-appeal-march-2022.html">decision to deny leave to appeal</a> by the UK Supreme Court, affirming the High Court decision that accepted assurances provided by the US government and concluded there were no remaining legal bars to Assange’s extradition.</p>
<p>The High Court decision overruled an earlier decision by a District Court that extraditing Assange to the US would be “unjust and oppressive” because the prison conditions he was likely to experience would make him a high risk for suicide. In the High Court’s view, the American government’s assurances sufficiently reduced the risk.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assanges-extradition-case-is-finally-heading-to-court-heres-what-to-expect-132089">Julian Assange's extradition case is finally heading to court – here's what to expect</a>
</strong>
</em>
</p>
<hr>
<h2>Another appeal ahead</h2>
<p><a href="https://twitter.com/wikileaks/status/1537726323858219009">Wikileaks</a> has already announced Assange will appeal the home secretary’s decision in the UK courts. He can appeal on an issue of law or fact, but must obtain leave of the High Court to launch an appeal. This is a fresh legal process rather than a continuation of the judicial stage of extradition that followed his arrest in 2019. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1537726323858219009"}"></div></p>
<p><a href="https://www.reuters.com/world/uk/assange-appeal-against-extradition-include-reported-assassination-plot-2022-06-17/">Assange’s brother has stated</a> the appeal will include new information, including reports of plots to assassinate Assange. </p>
<p>Several legal issues argued before the District Court in 2020 are also likely to be raised in the next appeal. In particular, the District Court decided the question of whether the charges were political offences, and therefore not extraditable crimes, could only be considered by the home secretary. The question of whether and how the home secretary decided on this issue could now be ripe for argument. </p>
<p>Assange’s next appeal will also seek to re-litigate whether US government assurances regarding the prison conditions Assange will face are adequate or reliable. His lawyers will also again demand the UK courts consider the role of role of freedom of expression in determining whether to extradite Assange.</p>
<p>Assange will remain detained in Belmarsh prison while his appeal is underway. The decision of the High Court on his appeal against the home secretary’s decision may potentially be appealed to the Supreme Court. </p>
<p>If, after all legal avenues are exhausted in the UK, the order to extradite stands, Assange could take a human rights action to the European Court of Human Rights. </p>
<p>However, the European Court has rarely declared extradition to be contrary to the European Convention on Human Rights, except in cases involving the death penalty or whole-life sentences. It has not yet considered freedom of expression in an extradition case.</p>
<p>Further appeals could add years more to the saga of Assange’s detention. </p>
<h2>Responses from the Assange family and human rights advocates</h2>
<p>Assange’s wife, Stella Moris, called Patel’s decision a ‘“travesty”. His brother Gabriel Shipton called it “shameful”. They have vowed to fight his extradition through every legal means available. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/irvl0TyVGtw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>According to Secretary General of Amnesty International Agnes <a href="https://www.theguardian.com/australia-news/live/2022/jun/18/australia-news-live-updates-federal-government-julian-assange-energy-crisis-nsw-victoria-labor-health-economy?filterKeyEvents=false&page=with:block-62acfdd78f08daac4266b5e1#block-62acfdd78f08daac4266b5e1">Callamard</a>: </p>
<blockquote>
<p>Assange faces a high risk of prolonged solitary confinement, which would violate the prohibition on torture or other ill treatment. Diplomatic assurances provided by the US that Assange will not be kept in solitary confinement cannot be taken on face value given previous history.</p>
</blockquote>
<h2>What role for the Australian government?</h2>
<p>Australian Foreign Minister Penny Wong and Attorney-General Mark Dreyfus <a href="https://www.foreignminister.gov.au/minister/penny-wong/media-release/uk-decision-extradite-julian-assange">responded</a> to the latest development last night. They confirmed Australia would continue to provide consular assistance to Assange: </p>
<blockquote>
<p>The Australian government has been clear in our view that Mr Assange’s case has dragged on for too long and that it should be brought to a close. We will continue to express this view to the governments of the United Kingdom and United States.</p>
</blockquote>
<p>However, it remains unclear exactly what form Australia’s diplomatic or political advocacy is taking. </p>
<p>In December 2021, Anthony Albanese <a href="https://www.theguardian.com/australia-news/2022/jun/02/labor-backbenchers-urge-albanese-to-stay-true-to-his-values-on-julian-assange-trial">said</a> he could not see what purpose was served by the ongoing pursuit of Assange. He is a signatory to a petition to free Assange. Since he was sworn in as prime minister, though, Albanese has resisted calls to demand publicly that the US drop its criminal charges against Assange. </p>
<p>In contrast, Albanese recently made a public call for the release of <a href="https://www.sbs.com.au/news/article/myanmar-military-junta-using-detained-australian-sean-turnell-as-a-chess-piece-human-rights-watch-says/dotp9nwpn">Sean Turnell</a> from prison in Myanmar. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-new-book-argues-julian-assange-is-being-tortured-will-our-new-pm-do-anything-about-it-183622">A new book argues Julian Assange is being tortured. Will our new PM do anything about it?</a>
</strong>
</em>
</p>
<hr>
<p>In a way, Patel’s decision this week <a href="https://www.google.com/amp/s/www.bbc.com/news/world-australia-61727941.amp">closes</a> a window for stronger advocacy between Australia and the UK. While the matter sat with the UK Home Secretary, the Australian government might have sought to intervene with it as a political issue. Now it seems possible Australia may revert to its long established position of non-interference in an ongoing court process.</p>
<p>Some commentators argue this is insufficient and that Australia must, finally, do more for Assange. Tasmanian MP Andrew Wilkie <a href="https://www.abc.net.au/news/2022-06-18/julian-assange-to-be-extradited-to-us/101164152">said</a> it was high time Australia treated this as the political matter it is, and demand from its allies in London and Washington that the matter be brought to an end. </p>
<p>Barrister Greg Barns <a href="https://www.abc.net.au/news/2022-06-18/julian-assange-to-be-extradited-to-us/101164152">likened</a> Assange’s situation to that of David Hicks, who was imprisoned at Guantanamo Bay: </p>
<blockquote>
<p>The Howard government at the time brought him back to Australia. This is not unprecedented. It is important that Australia is able to use the great relationship it has with Washington to ensure the safety of Australians.</p>
</blockquote>
<p>These comments suggest that Australia ought to focus any advocacy towards the US government, making a case for the criminal charges and extradition request to be abandoned. At this stage it is impossible to say if the Albanese government has the will to take a stronger stand on Assange’s liberty. The prime minister and foreign minister have certainly <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/05/24/remarks-by-president-biden-and-prime-minister-anthony-albanese-of-the-commonwealth-of-australia-before-bilateral-meeting-tokyo-japan/">invested</a> heavily in foreign relations in the early weeks of their government, with emphasis on the significance of the US alliance. </p>
<p>Perhaps strong advocacy on Assange’s behalf at this time might be regarded as unsettling and risky. The US has had plenty of opportunity, and its own change of government, and yet it has not changed its determination to <a href="https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment">prosecute</a> Assange. This is despite former President Barack Obama’s decision to <a href="https://theconversation.com/clemency-for-chelsea-manning-but-will-assange-or-snowden-also-find-the-us-merciful-71473">commute</a> the sentence of Chelsea Manning, the whistleblower who provided classified material to Assange for publication through Wikileaks. </p>
<p>Stronger Australian advocacy may well be negatively received. Assange’s supporters will continue to demand that Albanese act regardless, banking on the strength of the Australia-US alliance as capable of tolerating a point of disagreement.</p><img src="https://counter.theconversation.com/content/185363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen has done occasional volunteer work with the Australian Labor Party..</span></em></p><p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Wikileaks has already announced it will appeal the decision, and the year-long drama could drag on for many years more.
Holly Cullen, Adjunct professor, The University of Western Australia
Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/178461
2022-03-04T13:13:01Z
2022-03-04T13:13:01Z
Interpol red notice: what it means and why South Africa requested it
<figure><img src="https://images.theconversation.com/files/450026/original/file-20220304-19-1yurh80.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ajay, right, and Atul Gupta are on the run from the law in South Africa. Their sibling Rajesh is wanted on fraud and money laundering along with Atul.</span> <span class="attribution"><span class="source">Pic: Martin Rhodes. 02/03/2011. © Business Day</span></span></figcaption></figure><p><em>The brothers Atul and Rajesh Gupta <a href="https://www.bbc.com/news/world-africa-61713832">have been arrested</a> in the United Arab Emirates. They are accused in South Africa of profiting from their close links with former president Jacob Zuma and exerting unfair influence. Their arrests follow the issuing of a <a href="https://www.news24.com/news24/southafrica/news/just-in-interpol-issues-red-notices-for-atul-and-rajesh-gupta-on-cronjes-last-day-as-id-head-20220228">red notice</a> by International Criminal Police Organisation (Interpol) at the beginning of March 2022. This paved the way for their arrest to face fraud and money laundering charges in South Africa. At the height of their activities in South Africa they owned a business empire spanning computer equipment, media, and mining. A judicial commission of inquiry into state capture recently found that the brothers, who are in their 40s, <a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">orchestrated massive corruption</a> with Zuma’s help. Thabo Leshilo asked Bernadine Benson to explain.</em></p>
<h2>What is Interpol, and what does it do?</h2>
<p><a href="https://www.interpol.int/">Interpol</a> is an inter-governmental organisation, aiming to help connect police agencies across the globe. It’s <a href="https://www.interpol.int/en/Who-we-are/General-Secretariat/Secretary-General">headquartered </a> in Lyon, France. Its primary purpose is to create a framework that enables policing and other law enforcement agencies across the globe to work together. These agencies can share information on crime, criminals and criminal activities through an advanced secure <a href="https://www.interpol.int/en/How-we-work/Databases">e-communications system</a>. </p>
<p>Currently, the three primary crime programmes considered a global priority are counter terrorism, organised and emerging crime and cybercrime. All Interpol actions are bound by the law of the country it may be assisting and are politically neutral.</p>
<h2>Who belongs to Interpol and what’s its jurisdiction?</h2>
<p>Interpol has <a href="https://www.interpol.int/en/Who-we-are/Member-countries#:%7E:text=INTERPOL%20has%20195%20member%20countries,police%20with%20our%20global%20network.">195 member countries</a>, including South Africa. At the click of a button a country can reach out to the network and get assistance on transnational crime, criminals and other criminal threats from other members countries. The <a href="https://www.interpol.int/en/How-we-work/Command-and-Coordination-Centre">Command and Coordination Centre </a>, its nerve centre, provides a 24-hour support service. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">State capture in South Africa: how the rot set in and how the project was rumbled</a>
</strong>
</em>
</p>
<hr>
<p>The four official languages used by Interpol are Arabic, English, French and Spanish.</p>
<p>Each member country has a <a href="https://www.interpol.int/en/Who-we-are/Member-countries/National-Central-Bureaus-NCBs">National Central Bureau</a> which is the point of contact between it and the General Secretariat, in Lyon. These bureaus are staffed by the police officials of that country. They usually fall under the governmental department responsible for policing.</p>
<h2>What is a red notice? Are there others?</h2>
<p>Interpol uses a notice system to facilitate the speedy and effective transfer of time-sensitive information. Their international notices are colour-coded: red, blue, green, yellow, black, orange, and purple.</p>
<p>A red notice is issued when a member country seeks assistance to locate and arrest an individual with the aim of having them extradited to face a criminal charge. The notice will only be issued if a valid warrant of arrest has been issued for the person in the requesting country. The other notices are:</p>
<ul>
<li><p>Blue: to locate, identify, or gather information on a person of interest in a criminal matter.</p></li>
<li><p>Green: warn member countries of possible threats posed by criminal activities.</p></li>
<li><p>Yellow: to seek to either identify a person who is unable to identify themselves (such as a mentally challenged person who appears to be from another country), or to find a missing person.</p></li>
<li><p>Black: when information is sought on unidentified bodies.</p></li>
<li><p>Orange: when an event, person, object or a process could pose a threat to the property or lives of people.</p></li>
<li><p>Purple: when information on hiding places, objects, devices or <em>modus operandi</em> of criminals are to be shared with member countries.</p></li>
</ul>
<p>In addition to these colour notices, Interpol can also issue a <a href="https://www.interpol.int/en/How-we-work/Notices/INTERPOL-United-Nations-Security-Council-Special-Notices">United Nations Security Council Special Notice</a> to inform member countries when the UN has activated sanctions against an individual or an entity. </p>
<p>The last type of notice are the “diffusion notices”. They are like the colour-coded notices, except they are sent directly to a specific country or selection of countries by the member country.</p>
<h2>Has something like this happened before?</h2>
<p>South Africa has previously requested the extradition of wanted fugitives. A well-known example is the extradition of <a href="https://www.bbc.com/news/uk-england-bristol-26931880#:%7E:text=Honeymoon%20murder%20suspect%20Shrien%20Dewani,He%20denies%20murder">Shrien Dewani</a> in April 2014 from Britain to be tried for for his alleged involvement in the 2010 murder of his wife, Anni Dewani while on honeymoon in Cape Town. He was eventually <a href="https://www.bbc.com/news/uk-england-bristol-30375335">tried and acquitted</a> in December of that year. </p>
<p>More recently, South Africa requested the extradition of self-proclaimed prophet <a href="https://ewn.co.za/Topic/Prophet-Shepherd-Bushiri">Shepherd Bushiri</a> and his wife from Malawi to face money laundering and <a href="https://www.news24.com/news24/southafrica/news/just-in-bushiri-extradition-malawi-high-court-to-deliver-judgment-on-tuesday-20220206">other charges in South Africa</a>.</p>
<h2>A red notice has been issued: what now?</h2>
<p>The issuing of an Interpol red notice is a process that can be seen to run parallel with the extradition process. The red notice is not an ‘international warrant of arrest’. But it will make international travel difficult for the person for whom the notice has been issued.</p>
<p>The red notice is a forerunner for initiating a formal request for their extradition to stand trial in South Africa.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/state-capture-report-chronicles-extent-of-corruption-in-south-africa-but-will-action-follow-174441">State capture report chronicles extent of corruption in South Africa. But will action follow?</a>
</strong>
</em>
</p>
<hr>
<p>In June 2021, the <a href="http://www.dcs.gov.za/?page_id=166">Ministry of Justice and Correctional Services</a> announced the</p>
<blockquote>
<p>finalisation and ratification of the treaties on extradition and mutual legal assistance between South Africa and the UAE.</p>
</blockquote>
<p>This paved the way for South Africa to start the extradition request for the two Gupta brothers, who ostensibly fled to the UAE to avoid prosecution in South Africa for massive corruption. </p>
<p>Extradition is often a time consuming and drawn-out process consisting of complicated legal steps. The outcome of such an extradition request, however, will be determined in a court of law.</p>
<p><em>This story was updated following the arrest of Atul and Rajesh Gupta in the United Arab Emirates.</em></p><img src="https://counter.theconversation.com/content/178461/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bernadine Benson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
A judicial commission has found that the Guptas orchestrated massive corruption and the capture of the South African state, with the help of their friend, former president Jacob Zuma.
Bernadine Benson, Associate Professor: Police Practice, University of South Africa
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/163015
2021-06-18T14:17:13Z
2021-06-18T14:17:13Z
Inside a ransomware attack: how dark webs of cybercriminals collaborate to pull them off
<figure><img src="https://images.theconversation.com/files/407209/original/file-20210618-26-d4o3ua.jpeg?ixlib=rb-1.1.0&rect=17%2C8%2C5973%2C3197&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/insecure-network-several-red-platforms-connected-530465965">BeeBright/Shutterstock</a></span></figcaption></figure><p>In their Carbis Bay communique, the G7 <a href="https://www.g7uk.org/wp-content/uploads/2021/06/Carbis-Bay-G7-Summit-Communique-PDF-430KB-25-pages-5.pdf">announced</a> their intention to work together to tackle <a href="https://theconversation.com/ransomware-gangs-are-running-riot-paying-them-off-doesnt-help-155254">ransomware groups</a>. Days later, US president Joe Biden met with Russian president Vladimir Putin, where an <a href="https://www.ft.com/content/81c644d4-811f-4d9c-b4ac-bb0ee1038526">extradition process</a> to bring Russian cybercriminals to justice in the US was discussed. Putin reportedly agreed in principle, but insisted that extradition be <a href="https://www.telegraph.co.uk/news/2021/06/14/putin-says-open-prisoner-swap-russia-us/">reciprocal</a>. Time will tell if an extradition treaty can be reached. But if it is, who exactly should extradited – and what for? </p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/inside-a-ransomware-attack-how-dark-webs-of-cybercriminals-collaborate-to-pull-one-off-163015&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/uk/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<p>The problem for <a href="https://doi.org/10.1016/j.cose.2019.101568">law enforcement</a> is that ransomware – a form of malware used to steal organisations’ data and hold it to ransom – is a very slippery fish. Not only is it a blended crime, including different offences across different bodies of law, but it’s also a crime that straddles the remit of <a href="https://theconversation.com/how-cities-can-fight-back-against-ransomware-attacks-132782">different policing agencies</a> and, in many cases, <a href="https://www.nytimes.com/2021/05/29/world/europe/ransomware-russia-darkside.html">countries</a>. And there is no one key offender. Ransomware attacks involve a distributed network of different cybercriminals, often unknown to each other to reduce the risk of arrest.</p>
<p>So it’s important to look at these attacks in detail to understand how the US and the G7 might go about tackling the <a href="https://theconversation.com/the-increase-in-ransomware-attacks-during-the-covid-19-pandemic-may-lead-to-a-new-internet-162490">increasing number</a> of ransomware attacks we’ve seen during the pandemic, with at least <a href="https://www.itgovernance.co.uk/blog/list-of-data-breaches-and-cyber-attacks-in-may-2021-116-million-records-breached">128 publicly disclosed incidents</a> taking place globally in May 2021. </p>
<p>What we find when we connect the dots is a professional industry far removed from the organised crime playbook, which seemingly takes its inspiration straight from the pages of a <a href="https://link.springer.com/article/10.1007%2Fs12117-020-09397-5">business studies manual</a>.</p>
<p>The ransomware industry is responsible for a huge amount of disruption in today’s world. Not only do these attacks have a crippling economic effect, costing <a href="https://blog.emsisoft.com/en/38426/the-cost-of-ransomware-in-2021-a-country-by-country-analysis/">billions of dollars</a> in damage, but the <a href="https://www.itgovernance.co.uk/blog/list-of-data-breaches-and-cyber-attacks-in-may-2021-116-million-records-breached">stolen data</a> acquired by attackers can continue to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3429958">cascade down</a> through the crime chain and fuel other cybercrimes. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ransomware-gangs-are-running-riot-paying-them-off-doesnt-help-155254">Ransomware gangs are running riot – paying them off doesn't help</a>
</strong>
</em>
</p>
<hr>
<p>Ransomware attacks are also changing. The criminal industry’s business model has shifted towards providing ransomware <a href="https://www.bleepingcomputer.com/news/security/darkside-affiliates-claim-gangs-bitcoin-deposit-on-hacker-forum/">as a service</a>. This means operators provide the malicious software, manage the extortion and payment systems and manage the reputation of the “<a href="https://www.wired.com/story/ransomware-gone-corporate-darkside-where-will-it-end/">brand</a>”. But to reduce their exposure to the risk of arrest, they recruit affiliates on generous commissions to use their software to launch attacks. </p>
<p>This has resulted in an extensive distribution of criminal labour, where the people who own the malware are not necessarily the same as those who plan or execute ransomware attacks. To complicate things further, both are assisted in committing their crimes by services offered by the wider cybercrime ecosystem.</p>
<figure class="align-center ">
<img alt="A hooded hacker" src="https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407210/original/file-20210618-25-1967hxz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Even a lone hacker draws upon the criminal capabilities of others.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cybercriminal-hood-without-face-sits-dark-1576054075">trambler58/Shutterstock</a></span>
</figcaption>
</figure>
<h2>How do ransomware attacks work?</h2>
<p>There are <a href="https://conference.cepol.europa.eu/media/cepol-online-conference-2021/submissions/DBR7WE/resources/Wall_Cybercrime_and_Covid_CEPO_Zx0nGyn.pdf">several stages</a> to a ransomware attack, which I have teased out after analysing over 4,000 attacks from between 2012 and 2021.</p>
<p>First, there’s the reconnaissance, where criminals identify potential victims and access points to their networks. This is followed by a hacker gaining “initial access”, using log-in credentials bought on the dark web or obtained through deception.</p>
<p>Once initial access is gained, attackers seek to escalate their access privileges, allowing them to search for key organisational data that will cause the victim the most pain when stolen and held to ransom. This is why <a href="https://www.nytimes.com/2020/11/26/us/hospital-cyber-attack.html?campaign_id=158&emc=edit_ot_20210429&instance_id=29942&nl=on-tech-with-shira-ovide&regi_id=95633146&segment_id=56818&te=1&user_id=b427913b60c799d875886038d08ae44e">hospital medical records</a> and <a href="https://www.databreaches.net/threat-actors-claim-to-have-attacked-city-of-dade-city-florida/?campaign_id=158&emc=edit_ot_20210429&instance_id=29942&nl=on-tech-with-shira-ovide&regi_id=95633146&segment_id=56818&te=1&user_id=b427913b60c799d875886038d08ae44e">police records</a> are often the target of ransomware attacks. This key data is then extracted and saved by criminals – all before any ransomware is installed and activated.</p>
<p>Next comes the victim organisation’s first sign that they’ve been attacked: the ransomware is deployed, locking organisations from their key data. The victim is quickly <a href="https://www.databreachtoday.com/maze-promotes-other-gangs-stolen-data-on-its-darknet-site-a-14386?highlight=true">named and shamed</a> via the ransomware gang’s leak website, located on the dark web. That “press release” may also feature <a href="https://therecord.media/ransomware-gang-threatens-to-expose-police-informants-if-ransom-is-not-paid/?campaign_id=158&emc=edit_ot_20210429&instance_id=29942&nl=on-tech-with-shira-ovide&regi_id=95633146&segment_id=56818&te=1&user_id=b427913b60c799d875886038d08ae44e">threats to share</a> stolen sensitive data, with the aim of frightening the victim into paying the ransom demand.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A ransomware lockout screen" src="https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=454&fit=crop&dpr=1 600w, https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=454&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=454&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=571&fit=crop&dpr=1 754w, https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=571&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/407212/original/file-20210618-24-1b6u2cr.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=571&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Victims of ransomware attacks are typically presented with a screen like this.</span>
<span class="attribution"><a class="source" href="https://i1.wp.com/www.technollama.co.uk/wp-content/uploads/2017/05/ransomware.jpg">TechnoLlama</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Successful ransomware attacks see the ransom paid in cryptocurrency, which is difficult to trace, and converted and laundered into fiat currency. Cybercriminals often invest the proceeds to enhance their capabilities – and to pay affiliates – so they don’t get caught.</p>
<h2>The cybercrime ecosystem</h2>
<p>While it’s feasible that a suitably skilled offender could perform each of the functions, it’s highly unlikely. To reduce the risk of being caught, offender groups tend to develop and master specialist skills for different stages of an attack. These groups benefit from this inter-dependency, as it offsets criminal liability at each stage. </p>
<p>And there are plenty of specialisations in the cybercrime underworld. There are <a href="https://krebsonsecurity.com/2019/05/legal-threats-make-powerful-phishing-lures/#more-47793">spammers</a>, who hire out spamware-as-a-service software that <a href="https://theconversation.com/phishing-scams-are-becoming-ever-more-sophisticated-and-firms-are-struggling-to-keep-up-73934">phishers</a>, scammers, and fraudsters use to steal people’s credentials, and <a href="https://nos.nl/artikel/2374024-datalek-bij-autobedrijven-treft-mogelijk-miljoenen-nederlanders.html">databrokers</a> who trade these stolen details on the dark web.</p>
<p>They might be purchased by “<a href="https://www.theregister.com/2021/06/09/trend_micro_nefilim_ransomware_research/">initial access brokers</a>”, who specialise in gaining initial entry to computer systems before selling on those access details to would-be ransomware attackers. These attackers often engage with <a href="https://krebsonsecurity.com/2021/01/arrest-seizures-tied-to-netwalker-ransomware/">crimeware-as-a-service</a> brokers, who hire out ransomware-as-a-service software as well as other malicious malware.</p>
<p>To coordinate these groups, <a href="https://www.zdnet.com/article/us-weve-just-seized-1bn-in-bitcoin-stolen-from-silk-road-by-individual-x-hacker/">darkmarketeers</a> provide online markets where criminals can openly sell or trade services, usually via the Tor network on the dark web. <a href="https://www.nytimes.com/2021/05/29/world/europe/ransomware-russia-darkside.html">Monetisers</a> are there to launder cryptocurrency and turn it into fiat currency, while negotiators, representing both victim and offender, are hired to settle the ransom amount.</p>
<p>This ecosystem is constantly evolving. For example, a recent development has been the emergence of the “<a href="https://geminiadvisory.io/ransomware-unmasked/">ransomware consultant</a>”, who collects a fee for advising offenders at key stages of an attack. </p>
<h2>Arresting offenders</h2>
<p>Governments and law enforcement agencies appear to be ramping up their efforts to tackle ransomware offenders, following a year blighted by their continued attacks. As the G7 met in Cornwall in June 2021, Ukrainian and South Korean police forces coordinated to arrest elements of the infamous <a href="https://www.theregister.com/2021/06/16/clop_ransomware_gang_arrests_ukraine/">CL0P ransomware gang</a>. In the same week, Russian national <a href="https://www.bleepingcomputer.com/news/security/us-convicts-russian-national-behind-kelihos-botnet-crypting-service/">Oleg Koshkin</a> was convicted by a US court for running a malware encryption service that criminal groups use to perform cyberattacks without being detected by antivirus solutions.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1405212347912839174"}"></div></p>
<p>While these developments are promising, ransomware attacks are a complex crime involving a distributed network of offenders. As the offenders have honed their methods, law enforcers and cybersecurity experts have tried to keep pace. But the relative inflexibility of policing arrangements, and the lack of a key offender (Mr or Mrs Big) to arrest, may always keep them one step behind the cybercriminals – even if an extradition treaty is struck between the US and Russia.</p><img src="https://counter.theconversation.com/content/163015/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David S. Wall receives funding from UKRI EP/P011721/1 & EP/M020576/1</span></em></p>
Ransomware has gone professional, with criminal consultants, affiliates and brokers – arresting them all will be difficult.
David S. Wall, Professor of Criminology, University of Leeds
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/152676
2021-01-05T02:56:20Z
2021-01-05T02:56:20Z
Julian Assange’s extradition victory offers cold comfort for press freedom
<p>When UK District Judge Vanessa Baraitser declared she was rejecting the US request to extradite Julian Assange, his partner Stella Moris wept with relief. In an emotional speech outside the court, Moris described the ruling as “the first step towards justice”, and called on President Donald Trump to halt further extradition efforts. </p>
<p>According to <a href="https://www.judiciary.uk/wp-content/uploads/2021/01/USA-v-Assange-judgment-040121.pdf">Baraitser’s ruling</a>, Assange could not be extradited because he was depressed and at risk of committing suicide. Assange’s lawyers are planning to apply for bail, while lawyers for the US government say they are going to appeal. </p>
<p>Although he is by no means a free man, this crucial round goes to the Australian WikiLeaks founder.</p>
<p>But on every other point of law, the judge found in favour of the US. She rejected claims that Assange’s case was politically motivated, that he would not get a fair trial and that it was an assault on press freedom. </p>
<p>So, is this a victory for Assange and his supporters, or a blow to those who believe this case to be about protecting press freedom? A close reading of the verdict and its implications suggest it is both. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377122/original/file-20210105-23-1d3zpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters demanded Assange’s release in a rally outside the British embassy in Brussels, Belgium.</span>
<span class="attribution"><span class="source">Stephanie Lecocq/EPA</span></span>
</figcaption>
</figure>
<p>There have been legitimate questions with regard to <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24665">whether Assange’s human rights have been abused</a>. Moris has claimed Assange has been held in <a href="https://www.euronews.com/2020/12/13/wikileaks-julian-assange-struggling-in-atrocious-british-prison-conditions-says-partner">appalling conditions</a> in London’s Belmarsh prison, and the judge concluded his mental health is in a dangerous state. </p>
<p>Trump has also poisoned the political environment in the US in a way that would surely test the American judicial system’s ability to deliver a verdict in his case free of political influence. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-on-google-surveillance-and-predatory-capitalism-43176">Julian Assange on Google, surveillance and predatory capitalism</a>
</strong>
</em>
</p>
<hr>
<p>To be clear, I applaud much of WikiLeaks’ extraordinary work in exposing evidence of US war crimes. The shocking <a href="https://collateralmurder.wikileaks.org">Collateral Murder video</a> showing a US Apache helicopter gunning down a dozen unarmed civilians, for example, was one of the most important leaks in recent history. </p>
<p>But in the past, <a href="https://www.smh.com.au/national/assange-is-no-journalist-don-t-confuse-his-arrest-with-press-freedom-20190412-p51di1.html">I have argued</a> Assange did not apply ethical journalistic practices and standards to his work more broadly, and therefore cannot claim press freedom as a defence. </p>
<p>Soon after he published unredacted US diplomatic cables in 2011, a wide range of news organisations <a href="https://www.theguardian.com/media/2011/sep/02/wikileaks-publishes-cache-unredacted-cables">distanced themselves from WikiLeaks</a> for that reason.</p>
<h2>Implications for press freedom</h2>
<p>But this is where nuance is important. Baraitser’s judgement also has clear implications for press freedom that must concern anyone who believes in the oversight role journalists play in a democracy. </p>
<p>In rejecting the notion the case threatens press freedom, Baraitser was ignoring the way it exposes journalists and their sources who seek to hold governments to account. </p>
<p>The Obama administration was notoriously aggressive in <a href="https://cpj.org/reports/2013/10/obama-and-the-press-us-leaks-surveillance-post-911/">attacking press freedom</a> by using the Espionage Act. But even it baulked at prosecuting Assange because of what it came to think of as “<a href="https://www.politico.com/blogs/media/2013/11/the-dojs-new-york-times-problem-with-assange-178396">The New York Times Problem</a>”. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/assanges-new-indictment-espionage-and-the-first-amendment-117785">Assange’s new indictment: Espionage and the First Amendment</a>
</strong>
</em>
</p>
<hr>
<p>As former Justice Department spokesman Matthew Miller <a href="https://www.washingtonpost.com/world/national-security/julian-assange-unlikely-to-face-us-charges-over-publishing-classified-documents/2013/11/25/dd27decc-55f1-11e3-8304-caf30787c0a9_story.html?utm_term=.1744d3623b8f">told The Washington Post in 2013</a>,</p>
<blockquote>
<p>The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. </p>
<p>And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.</p>
</blockquote>
<p>This may sound like splitting hairs, but it is a crucial distinction. </p>
<p>Journalists have a responsibility to uphold ethical principles, particularly if they are going to maintain public confidence in their watchdog role. However, we must also push back when press freedom is threatened either directly or indirectly.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377123/original/file-20210105-15-lcrt0c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">There are fears the Trump administration views Assange’s prosecution as a precedent-setting case.</span>
<span class="attribution"><span class="source">Michael Reynolds/EPA</span></span>
</figcaption>
</figure>
<p>At Assange’s extradition hearing, Trevor Timm, the executive director of the US-based Freedom of the Press Foundation, <a href="https://freedom.press/news/julian-assange-extradition-press-freedom-wikileaks-trevor-timm-daniel-ellsberg/">said</a></p>
<blockquote>
<p>every single expert witness has some sort of fear that a prosecution of Assange will lead to the prosecution of many other reporters. </p>
</blockquote>
<p>This would specifically include the large number of reporters whose work might sometimes include secret documents. In other words, Timm said, US prosecutors seek a precedent that would “criminalise every reporter who received a secret document whether they asked for it or not”. </p>
<p>It is hard to overstate the significance of that problem. History tells us that governments will always try to hide their misdemeanours. One of journalism’s most important roles is to uncover them. It is how we hold governments to account in a democracy, but it also means there will always be a necessary tension between the press and the powerful. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/journalisms-assange-problem-115421">Journalism's Assange problem</a>
</strong>
</em>
</p>
<hr>
<p>While I believe that anyone who claims “press freedom” as a right also has responsibilities, I also believe we must push back against anything that threatens the media’s oversight role. </p>
<p>Baraitser’s ruling did not set any legal precedent in that regard, and for that we should heave a sigh of relief. But she also missed a critically important opportunity to recognise what Assange’s prosecution means for press freedom — and its importance to all who live in a democracy.</p><img src="https://counter.theconversation.com/content/152676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Peter Greste is UNESCO Chair in Journalism and Communication at the University of Queensland and a founding director of the Alliance for Journalists' Freedom. </span></em></p>
In her ruling, the judge rejected claims that Assange’s case was an assault on press freedom, which must concern anyone who believes in the oversight role that journalists play in a democracy.
Peter Greste, Professor of Journalism and Communications, The University of Queensland
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/133579
2020-11-23T17:00:45Z
2020-11-23T17:00:45Z
The UK is leaving the European Arrest Warrant – and extraditing criminals could be more difficult as a result
<p>The UK is to <a href="https://www.theguardian.com/uk-news/2020/feb/27/uk-to-withdraw-from-european-arrest-warrant">withdraw</a> from the European Arrest Warrant after the end of the Brexit transition period – currently scheduled for the end of 2020.</p>
<p>The European Arrest Warrant is a framework designed to make it easier for European Union nations to transfer people to either face prosecution or serve a prison sentence in another EU member state. It was used, for example, to arrest a Bosnian man in Germany for his role in the 2015 <a href="https://www.theguardian.com/world/2019/jun/27/bosnian-man-arrested-germany-2015-paris-attacks">terrorist attacks in Paris</a>, including those at the Bataclan concert hall.</p>
<p>While it should not come as a surprise that the UK is leaving the scheme, since it is a tool available only to EU member states, the decision will have a significant fall out. </p>
<p>The European Arrest Warrant was designed to simplify and expedite extradition procedures. Before it was introduced in 2002, the process was much <a href="https://rm.coe.int/1680064587">slower and more expensive.</a> It tied up more government resources, left suspects at large or waiting in pre-trial detention, and left victims without justice for much longer periods of time.</p>
<p>The new system imposed strict times limits and a more streamlined process. Alison Saunders, the former <a href="https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/77/77.pdf">director of public prosecutions</a> in the UK, described the European Arrest Warrant as “three times faster and four times less expensive than the alternatives”.</p>
<p>It also beefed up oversight and human rights protections – such as Court of Justice of the European Union ruling that people should not be extradited if there is a risk that they will face ill treatment. The UK even added in additional human rights protections – allowing judges to refuse extradition if it would be incompatible with the domestic Human Rights Act.</p>
<p>Under the European Arrest Warrant, extradition became less political because judges make the decisions. Before the European Arrest Warrant, diplomatic channels were used, which meant extradition took longer (as political negotiations were often required) and that decisions could be influenced by political considerations rather than strictly legal considerations.</p>
<p>Countries could also simply refuse to extradite their own nationals if they were wanted in another country. And restrictive rules on political offences meant states could refuse to extradite terrorism suspects. </p>
<p>All this shows just how useful the introduction of the European Arrest Warrant has been – and why we should be concerned. </p>
<h2>Efficiency and clarity</h2>
<p>When an arrest warrant is issued, it is transmitted immediately to all member states through the <a href="https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen-information-system/alerts-and-data-in-the-sis_en">Schengen Information System</a>. Domestic police forces know exactly how to engage with the system, alerts are received in real time so officers can begin operations immediately. This makes the process efficient and leaves less room for error.</p>
<p>The UK says it intends to negotiate an <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%253A22006A1021%252801%2529">Iceland/Norway-style agreement</a> when it comes to extradition. This agreement is similar to, but separate from the European Arrest Warrant. While this is a positive step, it must be emphasised that the arrangement will be inferior to the European Arrest Warrant arrangements.</p>
<p>Based on our <a href="https://pure.qub.ac.uk/en/publications/evolving-justice-arrangements-post-brexit">research</a>, including interviews with those working in the criminal justice system, we believe this move is likely to cause considerable disruption and delay to the transfer of people across jurisdictions.</p>
<p>These expected delays will mean that people who have committed crimes and may pose a safety risk will take longer to move. Victims will wait longer for justice. Trials could also be jeopardised, since delay could undermine witnesses’ ability to remember events and the reliability of evidence. </p>
<p>During the Brexit transition period, three EU countries <a href="https://www.businessinsider.com/eu-countries-have-stopped-extraditing-criminals-to-uk-after-brexit-2020-1?r=US&IR=T">have not been able</a> to extradite their citizens to the UK. </p>
<p>The constitutions of Austria, Germany and Slovenia, have strict rules on extraditing their own citizens – and will only send them to other EU nations. Germany had to amend its constitution to allow extradition to other EU members when it entered the European Arrest Warrant and it seems unlikely that it would be willing to do the same again just for the UK. Where possible, these cases would likely be dealt with on German soil. </p>
<p>It is also possible that other EU countries will push for broader nationality bars – even when their constitutions don’t require it. What this means in practical terms is that people who have committed crimes in the UK may be able to evade justice (if these crimes are not prosecuted in their home country).</p>
<p>Having efficient, effective, and human-rights-compliant extradition measures in place is an important part of the UK criminal justice system. It helps to guard against people committing crimes in the UK and then fleeing to other jurisdictions to avoid prosecution – and to ensure that people cannot hide out in the UK after committing crimes in other countries. Although it is not a perfect system, the European Arrest Warrant allowed for extradition between the UK and EU member states to take place quickly and more in line with human rights protections.</p>
<p>Whatever deal is agreed on extradition is unlikely to provide the same level of efficiency, effectiveness and protections as the current arrangements. As this deal is still being negotiated, there are opportunities for the UK government to push for things like time limits and built-in human rights protections. It is essential that it takes those opportunities.</p><img src="https://counter.theconversation.com/content/133579/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Kramer received funding for research which informed the current article from the Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission.</span></em></p><p class="fine-print"><em><span>Rachael Dickson received funding for research which informed the current article from the Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission.</span></em></p>
Leaving the shared system will make it harder to get criminals out of European countries when they are suspected of a crime.
Amanda Kramer, Lecturer, Queen's University Belfast
Rachael Dickson, Research Fellow, University of Birmingham
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/146549
2020-09-21T08:49:12Z
2020-09-21T08:49:12Z
Israeli court rules Malka Leifer should be extradited to Australia, but obstacles remain
<figure><img src="https://images.theconversation.com/files/359012/original/file-20200921-25-6m5taf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malka Leifer is brought into a Jerusalem courtroom in 2018.</span> <span class="attribution"><span class="source">AAP/AP/Mahmoud Illean</span></span></figcaption></figure><p>The Jerusalem District Court has <a href="https://ajn.timesofisrael.com/judge-rules-extradite-leifer/">ruled</a> Malka Leifer should be extradited to Australia.</p>
<p>The former Melbourne headmistress faces 74 charges of child sexual abuse against three alleged victims. </p>
<h2>How is this ruling significant?</h2>
<p>Leifer’s case has been protracted and politicised. Today’s is the first ruling on the merits of Leifer’s extradition case, following over 70 court hearings taken up with her repeated attempts to <a href="https://theconversation.com/malka-leifer-has-been-ruled-fit-to-stand-trial-will-extradition-to-australia-follow-139463">avoid extradition</a>. </p>
<p>Leifer, a former headmistress of the ultra-orthodox Adass Israel girls’ school, fled to Israel in 2008 when the allegations against her first surfaced. Australia lodged an <a href="https://www.smh.com.au/politics/federal/pm-called-to-intervene-in-extradition-of-accused-paedophile-malka-leifer-from-israel-20191003-p52x7t.html">extradition request in 2013</a>, which Israeli police eventually acted on. Leifer was <a href="https://www.theguardian.com/world/2014/aug/18/melbourne-jewish-schools-ex-principal-arrested-in-israel-on-sex-assault-charges">arrested in 2014</a>. However, she was later bailed. </p>
<p>Leifer managed to delay today’s outcome for several years by claiming to be too unwell to attend multiple subsequent hearings. In 2018, she was <a href="https://www.abc.net.au/news/2018-03-19/malka-leifer-to-remain-in-prison/9564732">again jailed</a> when it emerged she had been living and socialising in an orthodox Israeli settlement. </p>
<p>Israel’s Deputy Health Minister, Ya’acov Litzman, <a href="https://www.haaretz.com/israel-news/.premium-israeli-health-czar-pressured-psychiatrist-to-soften-assessment-of-pedophile-1.6978817">was accused of</a> pressuring a psychiatrist to soften a medical assessment to insure against Leifer’s extradition. Israeli police recommended Litzman be indicted for witness tampering.</p>
<p>Australian politicians, including Attorney-General Christian Porter, commented that the slow progress of Australia’s extradition request was regrettable. Porter <a href="https://ajn.timesofisrael.com/attorney-general-holds-leifer-talks/">personally raised the case</a> with Israeli officials on a visit to Israel in 2019. In 2020, he confirmed <a href="https://www.attorneygeneral.gov.au/media/media-releases/malka-leifer-court-decision-26-may-2020">Australia’s view </a> that the appropriate outcome was Leifer’s extradition to answer the serious charges against her.</p>
<p>District Court Judge Chana Miriam Lomp’s ruling today is very significant. It addresses the <a href="https://theconversation.com/the-israeli-supreme-court-has-cleared-the-way-for-malka-leifers-extradition-hearing-what-happens-now-142986">substantive legal question</a> at the heart of the extradition request from Australia. In order for extradition to be possible, an Israeli court had to determine a clear case existed against Leifer that justified her surrender to Australia’s jurisdiction. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-israeli-supreme-court-has-cleared-the-way-for-malka-leifers-extradition-hearing-what-happens-now-142986">The Israeli Supreme Court has cleared the way for Malka Leifer's extradition hearing. What happens now?</a>
</strong>
</em>
</p>
<hr>
<h2>What happens next?</h2>
<p>A key concept in relation to extradition is jurisdiction. Article 2 of the <a href="https://www.un.org/en/sections/un-charter/chapter-i/index.html">United Nations Charter</a> makes clear the significance of political independence, territorial integrity and domestic jurisdiction to the status of a country. The international legal system is built on an assumption countries are equally entitled to non-interference in their domestic affairs.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359015/original/file-20200921-21-p2qusj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sisters Elly Sapir, Dassi Erlich and Nicole Meyer.</span>
<span class="attribution"><span class="source">AAP/James Ross</span></span>
</figcaption>
</figure>
<p>According to the <a href="https://unijuris.sites.uu.nl/wp-content/uploads/sites/9/2014/12/The-Concept-of-Jurisdiction-in-International-Law.pdf">territoriality principle</a>, crimes committed within a country’s territory are subject to prosecution there. This is so whether the person accused of the crime is a national of the prosecuting country or not.</p>
<p>On this basis, Australia has <a href="https://www.ag.gov.au/international-relations/international-crime-cooperation-arrangements/extradition">requested</a> Israel agree to transfer Leifer to Australia for prosecution. A court in Victoria can only exercise criminal jurisdiction over Leifer’s case once she is physically present to stand trial. </p>
<p>At this stage, three potential obstacles to Leifer’s trial in a Victorian court remain. </p>
<p>The first is a potential <a href="https://www.abc.net.au/news/2020-09-21/israeli-court-rules-on-malka-leifer-extradition/12684138">appeal</a> from the District Court decision to the Israeli Supreme Court. </p>
<p>Leifer is likely to lodge a request to appeal. This would be subject to “special leave” being granted by the Supreme Court. The possible outcomes are: </p>
<ul>
<li><p>the Supreme Court refuses leave to appeal, ending the Israeli legal process and clearing the path for extradition </p></li>
<li><p>the Supreme Court gives leave to appeal, but denies the appeal on the merits (which would similarly clear the path for extradition)</p></li>
<li><p>the Supreme Court gives leave to appeal before rejecting the District Court’s finding. </p></li>
</ul>
<p>In the last case, Australia’s request for extradition would be denied, with no obvious avenue for reversal of that outcome. No written ruling has been issued by the District Court, so it is not possible to read the judge’s reasoning for today’s decision. However, it is fair to say the Supreme Court would need a very strong reason to reverse the lower court’s substantive decision. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">Explainer: what is extradition between countries and how does it work?</a>
</strong>
</em>
</p>
<hr>
<p>The second potential obstacle is a political one. If the Israeli legal process ends with confirmation of today’s decision, Israeli Justice Minister <a href="https://www.abc.net.au/news/2020-09-21/israeli-court-rules-on-malka-leifer-extradition/12684138">Avi Nissenkorn</a> will be asked to sign an extradition order. He could refuse to do so. </p>
<p>Given this case has raised <a href="https://ajn.timesofisrael.com/federal-mps-plea-extradite-leifer/">tensions</a> in the Australia-Israel <a href="https://www.smh.com.au/world/middle-east/australian-jewish-community-slams-israel-s-deplorable-appointment-20191230-p53nlh.html">relationship</a>, it seems unlikely - and certainly undesirable - for Nissenkorn to refuse extradition. However, it is by no means impossible. Again, in such a case, Australia has no way of compelling Leifer’s extradition. </p>
<p>The third potential obstacle is a practical one. Australia’s borders are currently closed. None of the <a href="https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-covid-19-restrictions/coronavirus-covid-19-advice-for-international-travellers">exemption</a> categories appear to allow for a travel exemption to facilitate Leifer’s speedy transfer to Australia. </p>
<p>It is possible Leifer could remain in custody indefinitely in Israel, due to the pandemic, even if an extradition order is approved. </p>
<h2>Extradition is in the public interest</h2>
<p>Dassi Erlich, Nicole Meyer and Elly Sapper - the <a href="https://www.abc.net.au/austory/the-justice-principle/9677140">sisters</a> who accuse Leifer of sexually abusing them when they were schoolgirls - have campaigned tirelessly for Leifer’s extradition. Justice delayed, in this case, has certainly been justice denied. </p>
<p>As the court process in Israel is not yet final, the Australian government will likely be restrained in its response to today’s news. However, it would be appropriate for the Australian government to confirm the District Court has reached the right decision. There is a clear public interest in Australia for Israel to approve an extradition order and allow for Leifer’s transfer to Melbourne. </p>
<p>Should an appeal confirm today’s District Court decision, the Israeli government should act quickly to facilitate Leifer’s extradition. As a condition of extradition, Israel could require Leifer be returned to Israel to serve a sentence delivered by a Victorian court.</p>
<p>However, it could show its good faith in the integrity of Australia’s legal system by refraining from imposing any such limitation on the justice process.</p>
<p><em>Correction: this piece originally said “Israel’s Deputy Health Minister, Ya’acov Litzman, was accused of altering medical records to insure against Leifer’s extradition. This has been amended to read Litzman was accused of pressuring a psychiatrist to soften a medical assessment to insure against Leifer’s extradition.</em></p><img src="https://counter.theconversation.com/content/146549/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
After years of delay, an Israel court has ruled the former Melbourne headmistress can be extradited to Australia to face charges of child sexual abuse.
Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/142986
2020-09-02T23:03:11Z
2020-09-02T23:03:11Z
The Israeli Supreme Court has cleared the way for Malka Leifer’s extradition hearing. What happens now?
<figure><img src="https://images.theconversation.com/files/356161/original/file-20200902-18-13dlg4h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/AP/Mahmoud Illean</span></span></figcaption></figure><p>Israel’s Supreme Court ruled on September 2 that Malka Leifer is <a href="https://www.canberratimes.com.au/story/6907924/malka-leifer-loses-appeal-in-israel/">fit to stand trial </a> on charges she faces in Victoria. Leifer is accused of 74 counts of rape and sexual assault. </p>
<p>This ruling is a significant milestone in the ongoing effort to extradite Leifer from Israel to Australia. It is the final legal hurdle to a full assessment of Australia’s extradition request. The District Court will decide on September 21 if Leifer should be extradited, although that hearing will still offer avenues for appeal and may result in further delay.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">Explainer: what is extradition between countries and how does it work?</a>
</strong>
</em>
</p>
<hr>
<h2>The charges</h2>
<p>In 2000, Leifer was employed from Israel to become headmistress of the ultra-orthodox Adass Israel girls’ school in Melbourne. During her time at the school, Leifer is alleged to have sexually abused three students - sisters Dassi Erlich, Nicole Meyer and Elly Sapper. </p>
<p>When the allegations emerged in 2008, Leifer fled to Israel with her family. The school funded her flights. Her <a href="https://theconversation.com/malka-leifer-has-been-ruled-fit-to-stand-trial-will-extradition-to-australia-follow-139463">alleged victims</a> have doggedly pursued Leifer’s extradition to Australia in the years since, at considerable personal toll. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/356162/original/file-20200902-24-1wzvdy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Elly Sapir, Dassi Erlich and Nicole Meyer.</span>
<span class="attribution"><span class="source">AAP/James Ross</span></span>
</figcaption>
</figure>
<h2>Australia seeks extradition</h2>
<p>In 2013, Australia lodged an extradition request with Israel. <a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">Extradition</a> is a process by which an alleged offender may be apprehended by an “extraditing state” and transferred to a “requesting state” in order to be tried for a crime in the requesting state’s jurisdiction. </p>
<p>Although extradition is a longstanding concern of international law, it relies on extradition arrangements between states rather than an overarching system of enforcement. </p>
<p>Australian law governs extradition through the <a href="https://www.legislation.gov.au/Details/C2012C00497">Extradition Act</a>. The act sets a framework for courts to determine if a person is to be extradited from Australia. It also empowers the government to make extradition requests of other governments.</p>
<p>Following Australia’s request, Israel eventually <a href="https://www.theguardian.com/world/2014/aug/18/melbourne-jewish-schools-ex-principal-arrested-in-israel-on-sex-assault-charges">arrested Leifer</a> in 2014. However, she was <a href="https://www.abc.net.au/news/2019-10-02/melbourne-principal-malka-leifer-granted-bail-in-israel/11568444">later bailed</a>, claiming to be too unwell to attend multiple subsequent court hearings on her case. </p>
<p>In 2018, Leifer was again jailed, when <a href="https://www.abc.net.au/news/2018-02-13/alleged-sex-offender-arrested-in-israel-faked-mental-illness/9425178">evidence emerged</a> that she had been living and socialising normally in an orthodox Israeli settlement. </p>
<h2>Where does the extradition request stand now?</h2>
<p>Extradition is a complex process, including legal and political elements. </p>
<p>In January this year, a <a href="https://www.abc.net.au/news/2020-01-10/malka-leifer-fit-to-stand-trial-israeli-psychiatric-panel-finds/11857494">psychiatric panel</a> determined Leifer was mentally fit to stand trial. In May, the District Court in Jerusalem confirmed that finding. </p>
<p>Leifer appealed the May ruling, and it was that appeal that has now been dismissed in the Supreme Court of Israel. The judges noted the case has <a href="https://www.haaretz.com/israel-news/.premium-israel-s-top-court-clears-way-to-extradite-accused-pedophile-leifer-to-australia-1.9122368">dragged on</a> considerably longer than is reasonable. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/malka-leifer-has-been-ruled-fit-to-stand-trial-will-extradition-to-australia-follow-139463">Malka Leifer has been ruled fit to stand trial. Will extradition to Australia follow?</a>
</strong>
</em>
</p>
<hr>
<p>Leifer’s lawyer, Nick Kaufman, had argued she would not receive a fair trial in Australia, because the case has been so widely reported. In Kaufman’s view, a jury would be prejudiced against Leifer because of the earlier findings she was faking her mental illness to avoid extradition. </p>
<p>The Supreme Court rejected this argument. But this does not mean Leifer will soon be extradited to Australia (never mind the additional complication of arranging her travel during the pandemic). </p>
<p>In extending the legal process for so long, Leifer has managed to avoid any substantive decision on the extradition claim itself. Years of hearings have been concerned with her fitness to stand trial. </p>
<p>So this week’s decision paves the way for the substantive extradition process to commence. Hopefully it will proceed more quickly than all the steps that have led to this point. The District Court in Jerusalem is due to give its finding on the substantive extradition matter on <a href="https://thenewdaily.com.au/news/2020/09/02/malka-leifer-extradition-appeal-israel/">21 September</a>.</p>
<p>If the District Court concludes Leifer should be extradited to Australia, she will again have an opportunity to appeal. </p>
<p>Extradition decisions in Israel are governed by Israeli law. Once the matter is resolved in the courts, responsibility will shift to the <a href="https://www.justice.gov.il/En/Units/StateAttorney/DepartmentInternational/Pages/Extradition.aspx">Department of International Affairs</a> in the Israeli Ministry of Justice. </p>
<p>This means the eventual political outcome of Leifer’s case, even if Israel agrees to extradite her to Australia, may come with conditions. For example, Israel could require that Leifer be returned to Israel to serve a sentence of imprisonment, should she be convicted in Victoria on the charges she faces. </p>
<p>This would be a challenging outcome for Australia, particularly in light of the current controversy regarding the conviction of an Australian national for the <a href="https://www.mamamia.com.au/podcasts/the-quicky/could-christchurch-gunman-be-brought-back-to-oz/">Christchurch massacre</a>. In that case, some in New Zealand are calling for Australia to repatriate the convicted man to serve his life imprisonment sentence in Australia. </p>
<p>One thing is certain - this week’s ruling will bolster Australia’s strong and consistent demands for Leifer’s extradition to face prosecution in Victoria. This case has strained relations between Australia and Israel. A swift resolution of the remaining processes, and Leifer’s extradition, would be significant in shoring up friendly relations between the two countries.</p><img src="https://counter.theconversation.com/content/142986/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
After years of delays, an Israeli court has found the former Melbourne headmistress fit to stand trial. But the extradition process may still be long and complex.
Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/139463
2020-05-27T03:30:04Z
2020-05-27T03:30:04Z
Malka Leifer has been ruled fit to stand trial. Will extradition to Australia follow?
<figure><img src="https://images.theconversation.com/files/337804/original/file-20200527-141312-r2uilf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malka Leifer is brought to the Jerusalem District Court for a hearing in 2018.</span> <span class="attribution"><span class="source">AAP/EPA/Atef Safadi</span></span></figcaption></figure><p>The Jerusalem District Court has <a href="https://www.timesofisrael.com/court-rules-alleged-pedophile-malka-leifer-fit-to-be-extradited-for-trial/">ruled</a> that Malka Leifer is fit to stand trial on charges of child sexual abuse. This is a significant ruling in a very long process seeking Leifer’s <a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">extradition</a> to Australia. </p>
<p>Leifer was employed from Israel to be headmistress of Melbourne’s Adass Israel Girls School in 2000. She is accused of 74 counts of child sexual abuse against former students of the school. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">Explainer: what is extradition between countries and how does it work?</a>
</strong>
</em>
</p>
<hr>
<h2>A six-year court battle for extradition</h2>
<p>Her alleged victims – sisters Dassi Erlich, Nicole Meyer and Elly Sapper – have described their relief at this ruling, in a “<a href="https://www.9news.com.au/national/malka-leifer-fit-to-stand-trial-extradition-melbourne-rape-child-sex-assault-charges-school-principal-israel-crime-news/8e7ccfc8-a85a-4d3e-a965-eb7451c65b6a">bruising</a>” six-year court battle involving 66 hearings to date. </p>
<p>The sisters had a difficult home life within an ultra-orthodox Jewish community, and for many years did not disclose their alleged abuse to anyone, even each other. </p>
<p>A 2018 ABC <a href="https://www.abc.net.au/news/2018-04-23/sisters-fight-for-justice-against-alleged-abuser-malka-leifer/9672550?nw=0">Australian Story</a> report used Dassi Erlich’s childhood diary entries to help relate the sisters’ story of abuse in the early to mid-2000s. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/337834/original/file-20200527-141275-18d12li.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sisters Elly Sapir, Dassi Erlich and Nicole Meyer.</span>
<span class="attribution"><span class="source">AAP/James Ross</span></span>
</figcaption>
</figure>
<p>When allegations against Leifer emerged in 2008, the Adass Israel School funded her flights to flee with her family to Israel. Australia <a href="https://www.smh.com.au/politics/federal/pm-called-to-intervene-in-extradition-of-accused-paedophile-malka-leifer-from-israel-20191003-p52x7t.html">issued an extradition request in 2013</a>, which Israel eventually acted on by arresting Leifer in 2014. </p>
<p>Leifer has by turns been bailed and imprisoned in Israel since that time. She has repeatedly claimed she suffers from mental illness to the extent that she is unfit to face trial on the charges against her. Government minister Yaakov Litzman has been <a href="https://www.news.com.au/world/middle-east/accused-paedophile-principal-malka-leifer-on-bail-in-israel/news-story/7be62bacef2adc1ac9979b9d33827c2d">accused</a> of altering medical documents in Leifer’s favour to influence the outcome of court hearings regarding her health and fitness. Israeli police have recommended Litzman’s <a href="https://www.nytimes.com/2020/05/26/world/middleeast/malka-leifer-extradition-abuse.html">indictment</a>.</p>
<p>One result of the delays and twists in the case is that no Israeli court has yet considered the substantive issues that are key to Australia’s extradition request. </p>
<p>In January this year, an expert <a href="https://www.abc.net.au/news/2020-01-10/malka-leifer-fit-to-stand-trial-israeli-psychiatric-panel-finds/11857494">psychiatric panel</a> determined Leifer had been feigning her claimed mental illness to avoid extradition. In this week’s District Court ruling, Judge Chana Miriam Lomp accepted the panel’s opinion and decided Leifer was fit to stand trial. </p>
<h2>Where to next for Leifer?</h2>
<p>Judge Lomp has scheduled an extradition hearing for July 20. Leifer’s lawyers stand prepared to appeal a decision of that hearing. </p>
<p>This means Leifer’s alleged victims are hopefully at last close to the point where an Israeli court will make decisions central to the extradition process. The court will need to be convinced a clear case exists against Leifer to justify her <a href="https://theconversation.com/explainer-what-is-extradition-between-countries-and-how-does-it-work-124637">extradition</a>. </p>
<p>The point of extradition is to facilitate Leifer’s trial for crimes allegedly committed within Australia, which fall within the state of Victoria’s jurisdiction to prosecute. Although extradition is a concept emerging from international law, it is not governed by a multilateral treaty obliging one country to accept another country’s jurisdiction over its national. </p>
<p>Where Australia believes extradition is justified – and that a request fits within the framework of the <a href="https://www.legislation.gov.au/Details/C2018C00197">Extradition Act</a> 1988 – it can request but not expect extradition to occur. </p>
<p>Israeli law will govern the process followed in Israel. This may mean Israel would only permit Leifer’s extradition to Australia on the proviso she be <a href="https://www.justice.gov.il/En/Units/StateAttorney/DepartmentInternational/Pages/Extradition.aspx">returned to Israel</a> to serve any prison sentence delivered to her by an Australian court. </p>
<p>Any appeal against an extradition ruling will delay the process further. Prosecuting authorities in Israel may challenge a successful appeal, but it is impossible to say what prospects of success would be. Although the most recent ruling is a very positive development for the alleged victims, it by no means secures the outcome they and the Australian government are seeking. </p>
<h2>High-level political advocacy</h2>
<p>The lengthy history of this case has strained relations between Australia and Israel. Several Australian <a href="https://www.smh.com.au/politics/federal/court-again-rejects-bid-to-speed-up-extradition-proceedings-against-malka-leifer-20200311-p548xd.html">politicians</a> have directly <a href="https://www.smh.com.au/national/victoria/malka-leifer-still-behind-bars-as-israeli-judge-considers-bail-appeals-20191004-p52xnn.html">approached</a> Israeli officials to seek an expedited process. </p>
<p>Even Israel’s ambassador to Australia publicly celebrated the latest ruling.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1265248839344119813"}"></div></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1265253140556689409"}"></div></p>
<p>Attorney-General Christian Porter also <a href="https://www.attorneygeneral.gov.au/media/media-releases/malka-leifer-court-decision-26-may-2020">welcomed</a> the decision: </p>
<blockquote>
<p>The allegations against Ms Leifer are very serious and the Australian Government remains strongly committed to ensuring that justice is served in this case. To achieve that, it is appropriate and remains the Government’s strong view that Ms Leifer is ultimately extradited to stand trial in Australia on the 74 counts of child sexual abuse against her and I travelled to Israel last year to make that case to Israel’s Attorney-General.</p>
<p>At this time, the thoughts of the Australian Government are very much with alleged victims and hopefully this positive development will give them some confidence that proceedings in Israel are moving towards their aim of seeing proceedings commence in Australia within the Australian justice system.“</p>
</blockquote>
<p>Such high-level representations between governments reflect the extent to which Australia is committed to seeing Leifer tried in the Victorian courts.</p>
<p>Australia’s willingness to advocate for the rights of Leifer’s alleged victims vindicates the sisters’ long-standing commitment to pursuing this matter publicly, despite the inordinate toll the process has taken.</p><img src="https://counter.theconversation.com/content/139463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The former head of Melbourne’s Adass Israel School has been ruled fit stand trial on charges of child sexual abuse. After many delays, she will now face an extradition hearing.
Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/132089
2020-02-23T19:58:46Z
2020-02-23T19:58:46Z
Julian Assange’s extradition case is finally heading to court – here’s what to expect
<figure><img src="https://images.theconversation.com/files/316374/original/file-20200220-92541-1h13zu0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">FACUNDO ARRIZABALAGA/EPA</span></span></figcaption></figure><p>The extradition hearing to decide whether to send Julian Assange to the United States to be tried for publishing classified military documents on Wikileaks is expected to finally begin today in London. </p>
<p>Assange is <a href="https://www.justice.gov/opa/press-release/file/1165556/download">charged</a> with 17 counts under the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>, involving receipt, obtaining and disclosing national security information. He has also been charged with <a href="https://www.justice.gov/usao-edva/pr/wikileaks-founder-charged-computer-hacking-conspiracy">one count of conspiracy</a> to assist Chelsea Manning to crack a US Department of Defense password to enable her to access classified information.</p>
<p>Assange has been in Belmarsh prison since his arrest <a href="https://www.theguardian.com/uk-news/2019/apr/11/julian-assange-arrested-at-ecuadorian-embassy-wikileaks">in April 2019</a>. He had been in solitary confinement in a prison medical unit, but was <a href="https://www.abc.net.au/news/2020-02-18/wikileaks-founder-julian-assange-health-improving-in-prison/11978336">recently moved</a> into a less isolated section of the prison <a href="https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30383-4/fulltext">due to concerns about his mental health</a>. </p>
<p><a href="https://www.theguardian.com/media/2019/sep/14/julian-assange-to-remain-in-jail-pending-extradition-to-us">From May to September of last year</a>, Assange served a sentence for bail absconding, but since then has been <a href="https://www.theguardian.com/media/2019/sep/14/julian-assange-to-remain-in-jail-pending-extradition-to-us">waiting for the extradition hearing</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Explainer: what charges does Julian Assange face, and what's likely to happen next?</a>
</strong>
</em>
</p>
<hr>
<h2>How will the process play out?</h2>
<p>The case will be heard at Woolwich Crown Court before Judge Vanessa Baraitser, who has agreed to <a href="https://www.reuters.com/article/us-britain-assange/extradition-hearing-for-wikileaks-assange-to-be-split-in-two-parts-idUSKBN1ZM1LN">split the hearing into two parts</a> to give both sides more time to gather evidence and prepare.</p>
<p>Legal arguments will be heard this week and evidence will be presented in a three-week hearing in May.</p>
<p>Unless Assange’s legal team successfully argues the extradition request should be dropped for legal reasons without the need to hear evidence, this week’s hearing will just be a step in the process. </p>
<p>Given the complex legal questions involved, Baraitser will likely deliver her judgement later in the year, taking time to consider the evidence and arguments. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1231208080408489984"}"></div></p>
<h2>What arguments can we expect to be made?</h2>
<p>One key argument for Assange is the assertion he would not receive a fair trial if extradited to the US, as <a href="https://www.theguardian.com/media/2019/dec/17/julian-assanges-extradition-fight-could-turn-on-reports-he-was-spied-on-for-cia">advanced by professor Guy Goodwin-Gill</a> of UNSW. </p>
<p>International human rights instruments, including the European Convention on Human Rights, include access to legal representation as part of the right to a fair trial. The European Court of Human Rights has also ruled a defendant has <a href="http://hudoc.echr.coe.int/eng?i=001-90592">the right to confer with counsel in private</a>. </p>
<p>Revelations that Assange <a href="https://www.theguardian.com/media/2019/dec/17/julian-assanges-extradition-fight-could-turn-on-reports-he-was-spied-on-for-cia">may have been spied on</a> in the Ecuadorian embassy in London, including while meeting with lawyers, raise serious questions concerning the fairness of any process where prosecutors might have access to defence material. </p>
<p>The claim Assange will not receive a fair trial in the US has been unintentionally strengthened by US government lawyers. In a new affidavit submitted in January, the lawyers argued the First Amendment of the US Constitution, which protects freedom of expression, <a href="https://www.sbs.com.au/news/julian-assange-may-not-be-able-to-use-first-amendment-press-protection-if-extradited">would not apply to foreign nationals</a> like Assange.</p>
<p>Assange’s lawyers are also expected to argue the extradition request <a href="https://www.reuters.com/article/us-britain-assange/extradition-hearing-for-wikileaks-assange-to-be-split-in-two-parts-idUSKBN1ZM1LN">should be blocked</a> because it is an abuse of process or politically motivated. </p>
<p>In a preliminary hearing last week, Edward Fitzgerald QC, one of the barristers representing Assange, proposed bringing evidence <a href="https://www.theguardian.com/media/2020/feb/19/donald-trump-offered-julian-assange-pardon-russia-hack-wikileaks">the US allegedly offered Assange a pardon</a> if he stated Russia had nothing to do with the 2016 hacking of the Democratic National Committee and leaking of Democratic emails to Wikileaks. </p>
<p>The White House has acknowledged Republican Congressman Dana Rohrabacher contacted then-Chief of Staff John Kelly to discuss a potential deal with Assange, but the discussions didn’t go any further.</p>
<p>Baraitser ruled the <a href="https://www.abc.net.au/news/2020-02-20/donald-trump-offered-julian-assange-presidential-pardon-alleged/11982676">evidence is admissible</a> at this week’s hearings.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/as-assange-faces-court-over-extradition-attempts-the-case-is-complex-and-the-stakes-are-high-128999">As Assange faces court over extradition attempts, the case is complex and the stakes are high</a>
</strong>
</em>
</p>
<hr>
<p>The extradition hearing will focus on the UK’s <a href="http://www.legislation.gov.uk/ukpga/2003/41/contents">Extradition Act</a> and the <a href="https://www.gov.uk/government/publications/extradition-treaty-between-the-uk-and-the-usa-with-exchange-of-notes">UK-US Extradition Treaty</a>. </p>
<p>The treaty has been frequently criticised because it imposes unequal conditions on extradition between the countries. When the UK seeks to extradite someone from the US, it must demonstrate a “reasonable basis” for believing the accused committed the offence. The US does not need to provide similar evidence when requesting the extradition of someone from the UK.</p>
<p>However, there are still arguments available to Assange’s legal team under the UK Act that could lead to extradition being refused. In particular, they could argue either the extradition’s true purpose was to prosecute or punish Assange for his political opinions, or that he would be prejudiced at his trial because of those opinions. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/316379/original/file-20200220-92530-bzqq19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Assange’s supporters are likely to ramp up their protests during this week’s extradition hearing.</span>
<span class="attribution"><span class="source">WILL OLIVER/EPA</span></span>
</figcaption>
</figure>
<h2>A possible appeal to the European Court of Human Rights</h2>
<p>There are also several scenarios which could unfold when the judge makes her decision. </p>
<p>Whether or not she orders extradition, an appeal from the losing side is almost inevitable. This would go to the Court of Appeal, and afterwards, probably to the UK Supreme Court. </p>
<p>If Assange loses at that stage, he may make an application to the European Court of Human Rights, which <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-146372%22%5D%7D">has decided</a> state parties to the European Convention on Human Rights may not extradite someone to another country where serious human rights violations are likely. This includes cases where they may be subject to a “whole life” sentence with no prospect of release. </p>
<p>The <a href="https://www.law.cornell.edu/uscode/text/18/793">combined maximum sentence</a> in the US for the crimes Assange is accused of is 175 years.</p>
<p>Given this, human rights arguments will likely be a significant part of the legal process before the British and European courts. While the European Court of Human Rights has no enforcement powers, states do follow its rulings, including in cases when extradition would infringe human rights.</p>
<h2>What happens if Assange is deported to Australia?</h2>
<p>Pressure for the Australian government to intervene in Assange’s case has grown, led by MPs George Christensen and Andrew Wilkie, who <a href="https://www.theage.com.au/world/europe/our-ratbag-julian-assange-suffers-from-psychological-torture-say-two-australian-mps-20200218-p5423b.html">visited Assange and his legal team</a> last week. They want the Australian government to intervene with British Prime Minister Boris Johnson to stop the extradition.</p>
<p>If Assange does win the extradition fight and ends up deported to Australia, his lawyers have expressed concern the US could make a new extradition request. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-arbitrary-detention-of-julian-assange-54342">The Arbitrary Detention of Julian Assange</a>
</strong>
</em>
</p>
<hr>
<p>However, there are mechanisms under the <a href="https://www.legislation.gov.au/Details/F2004C00101">Australia-US extradition treaty</a> that are not available under the UK-US treaty, which could be used to boost Assange’s case. Notably, either party can refuse to extradite its own nationals.</p>
<p>Much depends on politics. The US government would certainly put pressure on the Australian government to extradite, and Australia would be reluctant to refuse an extradition request from an ally. However, if the British courts find Assange is unlikely to receive a fair trial in the US, it would be difficult for the Australian government to ignore that ruling.</p>
<p>And if the Australian government does act to bring Assange back, it would be difficult for it to then support another extradition request. </p>
<p>But as <a href="https://www.theage.com.au/world/europe/our-ratbag-julian-assange-suffers-from-psychological-torture-say-two-australian-mps-20200218-p5423b.html">Assange’s lawyer Jennifer Robinson has noted</a>, the threat of extradition will continue, at least in some form, until the US withdraws the charges.</p><img src="https://counter.theconversation.com/content/132089/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Assange’s legal team is expected to argue the US extradition request is politically motivated and the Wikileaks founder is unlikely to receive a fair trial in the US.
Holly Cullen, Adjunct professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/128999
2019-12-19T00:37:51Z
2019-12-19T00:37:51Z
As Assange faces court over extradition attempts, the case is complex and the stakes are high
<p>Julian Assange may be an odious character in the eyes of some. He may not be a journalist in the estimation of others. He may be regarded as a serial pest by his detractors, but his case in the British courts has become a <a href="https://www.theguardian.com/media/2019/may/24/julian-assange-arrest-trump-free-speech-attack-experts">cause celebre for free speech</a> and civil liberties advocates.</p>
<p>In a London <a href="https://www.theguardian.com/media/2019/dec/17/julian-assanges-extradition-fight-could-turn-on-reports-he-was-spied-on-for-cia">magisrate’s court on Friday</a>, early shots will be fired in the Assange defence team’s efforts to block his extradition to the United States on <a href="https://www.reuters.com/article/us-wikileaks-assange-usa/u-s-charges-wikileaks-founder-julian-assange-with-espionage-idUSKCN1ST2L4">17 charges under the Espionage Act</a> with a separate indictment under the Computer Fraud and Abuse Act.</p>
<p>Assange is facing a jail sentence of 175 years on alleged breaches of the Espionage Act, and further penalty under the <a href="https://www.washingtonpost.com/technology/2019/04/11/what-law-is-julian-assange-accused-breaking/">Computer Fraud and Abuse Act</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Explainer: what charges does Julian Assange face, and what's likely to happen next?</a>
</strong>
</em>
</p>
<hr>
<p>At issue, and separate from the extradition proceedings, is whether an agent of the Central Intelligence Agency (CIA) spied on Assange during his seven years in the Ecuador embassy, after taking refuge there in 2012.</p>
<p>He sought Ecuadorian diplomatic protection to avoid extradition to Sweden on charges of sexual misconduct. Those charges have been cancelled.</p>
<p><a href="https://www.nytimes.com/2019/04/11/world/europe/julian-assange-wikileaks-ecuador-embassy.html">British authorities arrested Assange in April this year</a> after he was ejected from the embassy. Bail was refused on grounds he had absconded before.</p>
<p>Spain’s national court will hear evidence on whether Spanish surveillance company UC Global had provided transcripts, videos and other material from surveillance equipment secretly installed to monitor Assange’s private communications. It is alleged these were provided to the CIA.</p>
<p>Assange is due to give testimony via video link from Belmarsh prison outside London to the Spanish court, and in person, also by video link, at Westminster Magistrate’s Court.</p>
<p>Findings in this case will inform arguments against his extradition to the United States. Those extradition hearings are set to begin before a London magistrate’s court on February 24 2020.</p>
<p>Among <a href="https://www.nytimes.com/2019/04/11/us/politics/assange-indictment.html">extradition claims</a> is that he coached former US army intelligence analyst Chelsea Manning into <a href="https://abcnews.go.com/Politics/julian-assange-chelsea-manning-intertwined/story?id=62344376">cracking a password</a> on the Pentagon computer to obtain top-secret material about the US wars in Iraq and Afghanistan.</p>
<p>These became known as the “<a href="https://www.bbc.com/news/world-middle-east-11612731">war logs</a>” and included graphic video of an Apache helicopter attack on Iraqi civilians. This attack led to the <a href="https://www.theatlantic.com/ideas/archive/2019/04/julian-assange-arrested-journalists-defend/586936/">deaths of two Reuters journalists</a>.</p>
<p>The US application for extradition relates to Assange’s WikiLeaks activities before – not during – the 2016 presidential election. In <a href="https://www.nytimes.com/interactive/2018/09/20/us/politics/russia-trump-election-timeline.html">those elections it’s widely believed he collaborated with Russia</a> to publish leaked documents from the Democratic National Committee to undermine Hillary Clinton’s bid for the presidency.</p>
<p>During the 2016 campaign, Trump said more than once he <a href="https://www.abc.net.au/news/2019-04-12/donald-trump-administration-pressing-charges-julian-assange/10995934">“loved” WikiLeaks</a>. However, within a year or so his administration was <a href="https://www.theguardian.com/media/2019/apr/12/hatred-love-cold-indifference-julian-assange-trump-wikileaks">pursuing Assange</a> for alleged breaches of the Espionage Act and the Computer Fraud and Abuse Act.</p>
<h2>What happens now?</h2>
<p>The Assange saga will drag on for months, if not years, before the UK courts, as his British lawyers fight the extradition proceedings tooth and nail.</p>
<p>This is a highly complex case – if it reaches the US court system, it will involve arguments about whether Assange was performing the role of a journalist or whistleblower and therefore entitled to First Amendment free speech protections.</p>
<p>In the first instance, his defence team will no doubt contend that his extradition is excluded under <a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Britain’s extradition treaty with the US</a>. This includes an exception for political offences.</p>
<p>In other words, the case has the potential, even the likelihood, of becoming a broader argument about the extraterritorial reach of the US. This leaves aside a free speech argument about the definition of what is, and what is not, journalism in a social media age.</p>
<p>The Obama administration had <a href="https://www.theguardian.com/media/2019/may/23/julian-assange-indicted-what-charges-mean-for-free-speech">considered and then baulked</a> at seeking Assange’s extradition, after concluding it would be perilous to charge him under the Espionage Act. This act does not make a distinction between journalists and non-journalists.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-indictments-set-up-a-confrontation-between-the-us-and-julian-assange-117741">New indictments set up a confrontation between the US and Julian Assange</a>
</strong>
</em>
</p>
<hr>
<p>Obama-era Justice Department attorneys had also concluded that a First Amendment defence, questioning the definition of what constitutes journalism in the US, would vastly complicate attempts to convict.</p>
<p>American publications, including principally The New York Times, had collaborated with Assange in the publication of material from war logs whose disclosure embarrassed the US government.</p>
<p>In its reporting of the Assange matter, the Times has been <a href="https://www.nytimes.com/2019/05/23/us/politics/assange-indictment.html">assiduous in its defence of journalistic inquiry</a>. The paper commented:</p>
<blockquote>
<p>Though he is not a conventional journalist, much of what Mr Assange does at WikiLeaks is difficult to distinguish in a legally meaningful way from what traditional news organizations like the Times do: seek and publish information that officials want to be secret, including classified national security matters, and take steps to protect the confidentiality of sources.</p>
</blockquote>
<p>The above reflects widespread concern among American media about implications more broadly for reporting sensitive national security issues that might themselves become subject to the Espionage Act.</p>
<p>Other <a href="https://www.theguardian.com/media/greenslade/2010/jul/26/press-freedom-wikileaks">publications across the world</a>, among them The Guardian, Der Spiegel, Le Monde and El Pais, also cooperated with Assange. Newspapers in his native Australia published extensively from the leaked documents.</p>
<h2>View from Assange’s homeland</h2>
<p>In Australia, support for Assange has been patchy. <a href="https://www.facebook.com/senatormarisepayne/posts/2359590340927198">The Australian government</a> has gone through the motions in providing him with consular assistance.</p>
<p>However, in recent months a <a href="https://www.theguardian.com/media/2019/oct/15/australia-must-oppose-any-move-to-extradite-julian-assange-to-us-labor-mp-says">trickle of support</a> for Assange has emerged. Politicians from both sides of politics have expressed their concerns about the possibility of him being extradited to the US on charges that would confine him to jail for the rest of his life.</p>
<p>The prospect of a life sentence would be very real.</p>
<p>As Assange’s case proceeds, it is likely support for him will build. In the process, this will pressure the Australian government to do more to persuade the Americans to back off.</p>
<p>A risk for Canberra is that inaction would be interpreted as being complicit in Assange’s removal to the US.</p>
<p>Australian journalism has been conflicted over the degree to which Assange should be supported, with arguments for and against. These have centred on his practice of simply dumping documents into the public domain without subjecting them to rigorous editorial processes.</p>
<p>However, what has not been properly addressed by those Australian journalists who have been quick to disavow him is whether Assange should be extradited for what amounts to a capital crime for leaking material that their own news organisations disseminated.</p>
<p>Perhaps we should leave the last word to former Guardian editor <a href="https://www.theguardian.com/commentisfree/2019/may/26/prosecuting-julian-assange-for-espionage-poses-danger-freedom-of-press">Alan Rusbridger</a>, whose organisation collaborated with – then fell out with – Assange in the publication of the “war logs”.</p>
<p>Rusbridger defends Assange against attempts to extradite him on grounds that “whatever Assange got up to in 2010-11, it was not espionage”.</p>
<p>He alludes to perhaps the strongest argument against Assange’s removal to the US to face charges under the Espionage Act. This is that he is not a US citizen and his alleged crimes were committed outside the US. This is the extraterritorial argument.</p>
<p>Rusbridger quotes Joel Simon of the Committee to Protect Journalists who observed: </p>
<blockquote>
<p>Under this rubric anyone anywhere in the world who publishes information that the US government deems to be classified could be prosecuted for espionage.</p>
</blockquote>
<p>It is a good point.</p><img src="https://counter.theconversation.com/content/128999/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tony Walker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
As British courts this week hear arguments for and against the Wikileaks founder’s extradition to the US, the questions about journalism, the law and freedom of speech it raises are vital ones.
Tony Walker, Adjunct Professor, School of Communications, La Trobe University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/124637
2019-10-03T22:38:20Z
2019-10-03T22:38:20Z
Explainer: what is extradition between countries and how does it work?
<figure><img src="https://images.theconversation.com/files/295515/original/file-20191003-52796-1ux6abj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malka Leifer's extradition process has been in train since Australia lodged its request with Israel in 2013.</span> <span class="attribution"><span class="source">AAP/supplied</span></span></figcaption></figure><p>Extradition cases are relatively rare but often controversial. Many in Australia are following the case of former Melbourne principal Malka Leifer, currently under house arrest in Israel. Leifer is <a href="https://www.abc.net.au/news/2019-10-02/melbourne-principal-malka-leifer-granted-bail-in-israel/11568444">wanted for extradition</a> to Victoria on 74 charges of child sexual assault. </p>
<p>It is widely accepted that offenders should not be able to evade justice by crossing borders. Over <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/stlulj28&div=16&id=&page=">thousands of years</a>, countries have developed processes to apprehend and transfer accused and convicted people to other jurisdictions to face trial and/or imprisonment. </p>
<p>In the contemporary process of extradition, the “requesting state” is the country where a relevant crime has been committed. The “extraditing state” is the country from which extradition is requested. </p>
<h2>Extradition in international and Australian law</h2>
<p>Extradition is a matter of international law, in the sense that it requires the participation of two or more countries. It also relies on principles that have emerged through international customary and treaty law. </p>
<p>The key related concept is jurisdiction. Article 2 of the <a href="https://www.un.org/en/sections/un-charter/un-charter-full-text/">United Nations Charter</a> makes clear the significance of political independence, territorial integrity and domestic jurisdiction to the status of a country. The international legal system is built on an assumption that states (countries) are equally entitled to non-interference in their domestic affairs.</p>
<p>According to the <a href="https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-2/the-case-of-the-s-s-lotus-france-v-turkey/">territoriality principle</a>, crimes committed within a country’s territorial jurisdiction are subject to prosecution there. This is so whether the person accused of the crime is a national of the prosecuting country or not. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-why-the-government-pulled-australias-extradition-treaty-with-china-74984">Explainer: why the government 'pulled' Australia's extradition treaty with China</a>
</strong>
</em>
</p>
<hr>
<p>However, extradition as a process is not governed by an international treaty regime or overseen by the United Nations. It typically involves a treaty between two states. If one country agrees to extradite a person to another, this is done as a matter of comity rather than because of a legal obligation. </p>
<p>Australian law governs extradition through the <a href="https://www.legislation.gov.au/Details/C2012C00497">Extradition Act</a> 1988. The act sets a framework for courts to determine if a person is to be extradited from Australia. It also empowers the government to make extradition requests of other governments. </p>
<p>The Australian government can consider extradition requests from countries <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Pages/default.aspx">designated</a> under domestic regulations as extradition countries. The majority of these are countries with which Australia has <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/australias-bilaterial-extradition-arrangements.pdf">bilateral extradition treaties</a>. </p>
<p>Australia also has extradition obligations through <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/countries-that-are-party-to-multilateral-treaties-with-extradition-obligations-that-australia-is-also-a-party-to.pdf">multilateral treaties</a> that focus on specific forms of crime. It may consider extradition requests from other Commonwealth countries through the non-binding <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/countries-that-are-a-member-of-the-london-scheme.pdf">London Scheme</a>.</p>
<p>In a case where Australia is the requesting state, it can request extradition from any other country. However, it cannot expect extradition. </p>
<h2>How are extradition decisions made?</h2>
<p>Under the Extradition Act, extradition matters are formally dealt with by the Commonwealth Attorney-General. <a href="https://ngm.com.au/extradition-australia-new-zealand/">Exceptional arrangements operate</a> with New Zealand, with extradition matters largely being dealt with police-to-police rather than between the national governments. </p>
<p>If another country makes an extradition request of Australia, the Attorney-General will issue a written notice to the Federal Circuit Court. A judge must then determine if the person subject to the request is eligible to be extradited. </p>
<p>In making this decision, a judge will <a href="https://ngm.com.au/the-extradition-process/">consider</a>: </p>
<ul>
<li><p>dual criminality - an act must be criminal under Australian law as well as under the law of the requesting state</p></li>
<li><p>if any extradition objections exist - Australia will refuse extradition if, for example, a person has already been punished for the offence in Australia or is unlikely to receive a fair trial if extradited</p></li>
<li><p>whether a person will face execution if extradited - Australia would not permit extradition if capital punishment was a possible outcome. </p></li>
</ul>
<p>After a judge finds a person is eligible for extradition, the Attorney-General has the final say. </p>
<p>In the reverse case, where Australia is the requesting state, the process will depend on the law of the extraditing state. This is painfully apparent in the Leifer case for her alleged victims. </p>
<p>Leifer fled to Israel in 2008 when allegations first surfaced publicly. Israeli police arrested her in 2014 following Australia’s 2013 extradition request. However, she was later bailed. She has claimed to be too unwell to attend multiple subsequent hearings and over 30 psychiatrists have given <a href="https://www.timesofisrael.com/alleged-serial-pedophile-malka-leifer-ordered-released-to-house-arrest/">various reports</a> of her mental health. </p>
<p>In 2018, Leifer was again jailed when it emerged she had been living and socialising normally in an orthodox Israeli settlement. This week, she was <a href="https://www.abc.net.au/news/2019-10-03/malka-leifer-bail-backlash-israeli-court-labelled-a-farce/11570144">again bailed</a> into house arrest with her sister.</p>
<p>Israel’s Deputy Health Minister has been accused of <a href="https://www.news.com.au/world/middle-east/accused-paedophile-principal-malka-leifer-on-bail-in-israel/news-story/7be62bacef2adc1ac9979b9d33827c2d">altering medical records</a> to insure against Leifer’s extradition. </p>
<p>Attorney-General Christian Porter has committed to personally raising the case when he visits Israel this year. He said this week the lack of progress towards Leifer’s extradition is “<a href="https://www.smh.com.au/politics/federal/pm-called-to-intervene-in-extradition-of-accused-paedophile-malka-leifer-from-israel-20191003-p52x7t.html">regrettable</a>”, considering Australia lodged its request with Israel in 2013. </p>
<p>Indeed, the <a href="https://www.theaustralian.com.au/nation/victims-blast-pedophile-principal-malka-leifers-parole-bid/news-story/84dec0107764f5d4d7c8bb442a92d0f7">substantive issues</a> in Australia’s extradition request have not yet been addressed at all in the Israeli courts. A December hearing will determine if Leifer is mentally fit to face trial. </p>
<p>Dassi Erlich, one of Leifer’s alleged victims, <a href="https://www.facebook.com/bringleiferback/posts/933495463681702">called the latest decision</a> to release Leifer “intolerable” and reported it was a “massive betrayal of justice” that “left us reeling”. </p>
<p>Should Leifer eventually face extradition proceedings in an Israeli court, some special features will apply under Israeli law. The court must determine a clear case exists against Leifer to permit extradition. Israel may also require Australia to stipulate it will <a href="https://www.justice.gov.il/En/Units/StateAttorney/DepartmentInternational/Pages/Extradition.aspx">return Leifer to Israel</a> to serve any term of imprisonment.</p>
<h2>Extradition is inherently political</h2>
<p>At any given moment, cases around the world highlight the deeply politicised nature of extradition. </p>
<p>Australian national Julian Assange, now serving a prison sentence in England for parole violations, will face likely extradition to the United States once that term ends. His lawyers will surely argue that he would face a <a href="https://theconversation.com/julian-assange-has-refused-to-surrender-himself-for-extradition-to-the-us-what-now-116173">political prosecution</a> in the US. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-has-refused-to-surrender-himself-for-extradition-to-the-us-what-now-116173">Julian Assange has refused to surrender himself for extradition to the US. What now?</a>
</strong>
</em>
</p>
<hr>
<p>Meanwhile, in Hong Kong, mass protests have <a href="https://www.bloomberg.com/graphics/hong-kong-protests-timeline/">continued</a> for almost five months. The spark for the protest movement was an attempt by the the Special Administrative Region government to amend its extradition law and <a href="https://theconversation.com/hong-kong-protests-against-extradition-bill-spurred-by-fears-about-long-arm-of-china-118539">permit extradition</a> to Taiwan and mainland China.</p>
<p>Australia and all countries must tread carefully when managing extradition requests or amending extradition laws. When problems arise, they reveal the frustration inherent in a system that relies on good will and cooperation between countries. </p>
<p>International law supposes that cooperation is a shared and essential goal. Yet domestic political concerns so often trump good intentions.</p><img src="https://counter.theconversation.com/content/124637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of Amnesty International. </span></em></p>
Extradition laws are based on the idea that offenders, or alleged offenders, should not be able to evade justice by fleeing to another country. But the case of Malka Leifer shows just how difficult that can be.
Amy Maguire, Associate Professor, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/118539
2019-06-13T15:44:53Z
2019-06-13T15:44:53Z
Hong Kong protests against extradition bill spurred by fears about long arm of China
<p>The dramatic protests unfolding in Hong Kong evoke memories of the most sensational episodes of the country’s “<a href="https://theconversation.com/hong-kong-leaders-in-lockstep-against-divided-protesters-32534">umbrella movement</a>” five years ago at the very same sites. At the end of the unprecedented 79 days occupation in 2014, demanding genuine universal suffrage, protesters vowed to be back. Few would have expected that it would be so quick and with such vengeance. </p>
<p>A mass demonstration on June 9 was followed by protests three days later that shut down streets around government buildings as <a href="https://www.bbc.co.uk/news/world-asia-china-48591001">police fired rubber bullets</a> at protesters. The demonstrations were triggered by the decision of the Hong Kong Special Administrative Region government to propose amendments to its extradition bill. This would allow extraditions to new areas such as Taiwan and Macau, but more importantly the People’s Republic of China. </p>
<p>Hong Kong’s chief executive, Carrie Lam, argued that the “loophole” in the law must <a href="https://www.scmp.com/news/hong-kong/politics/article/3005942/hong-kong-man-wanted-taiwan-murder-case-could-escape">urgently be closed</a> to allow the transfer of a fugitive wanted for murder in Taiwan before he could leave Hong Kong.</p>
<p>But the “loophole” was deliberately included during the Sino-British negotiations in the 1980s over the transfer of sovereignty of Hong Kong from the UK to China in 1997. After 1997, Hong Kong residents and businesses were guaranteed the rule of law and shielded from the party-controlled judicial system across the border. Fortunately, over the past decades, rule of law has differentiated Hong Kong from the Chinese mainland. Among 125 jurisdictions examined by the World Justice Project in its 2019 <a href="https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2019-Single%20Page%20View-Reduced_0.pdf">Rule of Law Index</a>, Hong Kong was ranked 16th and mainland China 82nd.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/hong-kong-in-crisis-over-relationship-with-china-and-there-does-not-appear-to-be-a-good-solution-118591">Hong Kong in crisis over relationship with China – and there does not appear to be a good solution</a>
</strong>
</em>
</p>
<hr>
<h2>Rushed legislation</h2>
<p>The recent demonstrations are the largest in Hong Kong’s post-1997 history, uniting people of different generations, occupations and interests in a way comparable only to the protests in Hong Kong against the Tiananmen massacre in 1989. Anger and despair are widespread and so is a sense of powerlessness at the way the relationship between Hong Kong and China has dramatically changed during the past five years.</p>
<p>The initial details of the extradition proposals heightened fears that the long arm of the Chinese law was reaching further into Hong Kong. It would enter the territory into extradition arrangements with China on a <a href="https://www.hkba.org/sites/default/files/HKBA%20Observations%20on%20FOMLACM%20Bill%202019%20%28Final%29.pdf">case-by-case basis</a>, in which the chief executive has the sole power to surrender fugitives to China <a href="https://static1.squarespace.com/static/58ecfa82e3df284d3a13dd41/t/5cc9dcd753450a0e1da5bcab/1556733145217/Broken+Firewall+-+The+Extradition+Law+and+the+rule+of+law+in+Hong+Kong.pdf">without the need to consult</a> Hong Kong’s Legislative Council. </p>
<p>Critics such as Lam Wing Kee, a Hong Kong bookseller targeted by the Chinese authorities, have pointed out the dangers of such a set-up. Lam left <a href="https://www.bloomberg.com/news/articles/2019-04-26/china-fugitive-escapes-again-as-hong-kong-mulls-extradition-law">Hong Kong for Taiwan in April</a> over fears that once the bill passed, Beijing would demand his immediate extradition. </p>
<p>Fears were further exacerbated by news the government wanted to rush the law through before the Legislative Council session ends in July. The pro-Beijing majority in the legislature pushed the bill quickly through its committee stages in an attempt to avoid proper legislative scrutiny. While the second reading of the bill was postponed by the protests, <a href="https://www.theguardian.com/world/2019/jun/13/hong-kong-protests-extradition-carrie-lam-riot-police">Lam still plans to go ahead</a> with it. Once the bill reaches the voting stages it will be passed by the pro-Beijing majority.</p>
<p>The legislative process reveals how the government and its pro-Beijing allies are using the non-democratic and partisan nature of Hong Kong’s institutions to give the appearance of democracy. Law-making power is concentrated with the chief executive, who is <a href="https://www.economist.com/the-economist-explains/2017/03/21/how-hong-kong-picks-its-chief-executives">selected by a committee</a> of merely 1,200 of Hong Kong’s 7.4m citizens. Only half of the Legislative Council is directly elected and pro-Beijing legislators enjoy a structural majority. Since the 2014 umbrella protests even previously neutral bodies, such as the well-respected civil service and police force, <a href="https://www.hongkongfp.com/2017/10/15/mainlandization-communist-party-works-control-assimilate-hong-kong/">have become politicised</a>. </p>
<h2>China’s growing confidence</h2>
<p>Hong Kong’s status as an international financial centre is still of great importance to China and its ruling elite, providing access to crucial financial services unattainable in Shanghai and Shenzhen. But Hong Kong’s role as a model for economic development in China has diminished as the regime grows ever more confident in its own brand of state capitalism. Previous <a href="http://edition.cnn.com/2003/WORLD/asiapcf/east/07/01/hk.protest/">mass protests in Hong Kong</a>in 2003 and 2004 against national security legislation were partially successful, and a proposed bill was postponed. At that time, the Beijing regime still valued international perceptions and even promised the territory further democratisation. </p>
<p>This has changed as China has also become significantly more confident as a rising global power. Under the leadership of Chinese president, Xi Jinping, Hong Kong has been at the receiving end of this new confidence. Since the umbrella movement, the Hong Kong government has been supported by the Chinese government to gradually shut down various avenues for dissent and opposition. After the umbrella movement, the frustrations of the younger generation over China’s policies towards Hong Kong were channelled into <a href="http://epubs.surrey.ac.uk/813308/">a movement, known as “localism” asking</a> for more political, economic and cultural autonomy from China. Yet its proponents were disqualified from office, barred from running in elections or outlawed. The leadership was <a href="https://www.ft.com/content/edd3b148-7c32-11e9-81d2-f785092ab560">imprisoned or driven into exile</a>. </p>
<p>The simple act of rallying is now easily interpreted as a criminal act, using Hong Kong’s <a href="https://static1.squarespace.com/static/58ecfa82e3df284d3a13dd41/t/5ce7d19253450a5fe8fe860a/1558696339084/Public+Order+Ordinance+briefing.pdf">outdated Public Order Ordinance</a>. The Hong Kong police commissioner has already labelled the current protest as a “riot” and justified the escalated use of police force against protesters. It is the same “rioting” charge under which localist leader Edward Leung Tin-kei was sentenced to <a href="https://www.hongkongfp.com/2018/06/11/localist-edward-leung-sentenced-six-years-jail-mong-kok-unrest-participation/">six years of prison</a> in 2018.</p>
<p>What is being observed in Hong Kong is now a collective expression of anger towards the extradition law and the government, distrust of the Chinese government and, crucially, an unwavering search for hope.</p><img src="https://counter.theconversation.com/content/118539/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malte Phillipp Kaeding is affiliated with a charity that researches threats to Hong Kong's autonomy.</span></em></p>
Why protests have returned to the streets of Hong Kong.
Malte Phillipp Kaeding, Lecturer in International Politics, University of Surrey
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/117741
2019-05-25T06:15:22Z
2019-05-25T06:15:22Z
New indictments set up a confrontation between the US and Julian Assange
<p>Australians woke to the news on Friday that the United States had unveiled new charges against Wikileaks co-founder Julian Assange. </p>
<p>The <a href="https://www.justice.gov/opa/press-release/file/1165556/download">indictment</a>, issued by the US Department of Justice, includes 17 charges of <a href="https://www.law.cornell.edu/uscode/text/18/793">espionage</a>: </p>
<ul>
<li>one count of conspiracy to receive national defense information </li>
<li>seven counts of obtaining national defense information </li>
<li>nine counts of disclosing national defense information. </li>
</ul>
<p>These charges are in addition to the charge of conspiracy to commit computer misuse contained in the initial US request for extradition in April. </p>
<p>Here’s what the new charges mean for Assange, how he could fight them, and what’s likely to happen next.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-on-google-surveillance-and-predatory-capitalism-43176">Julian Assange on Google, surveillance and predatory capitalism</a>
</strong>
</em>
</p>
<hr>
<h2>What factors will affect whether the UK approves extradition to the US?</h2>
<p>Extradition includes a mixture of judicial and political processes. Assange could plead a number of legal objections to his extradition, including human rights concerns. This could see the case go through all levels of the English court system, as <a href="https://www.supremecourt.uk/cases/uksc-2011-0264.html">happened in 2011-12</a>. The charges could also be challenged in the European Court of Human Rights.</p>
<p>Assange’s main legal objection to extradition is likely to be that the offences charged are political offences, and therefore not extraditable offences under the treaty.</p>
<p>In addition to the American extradition request, the Swedish prosecutor has announced she is reopening the investigation of a rape accusation against Assange. She <a href="https://www.theguardian.com/media/2019/may/20/julian-assange-sweden-files-request-arrest-rape-allegation">has applied to the Swedish courts</a> for a detention order, which is the first step towards the issuing of a European Arrest Warrant (EAW). </p>
<p>Both the EU’s <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32002F0584">Framework Decision on the European Arrest Warrant</a> and the US-UK extradition treaty allow the UK to decide which of the two competing extradition requests to prioritise. There’s a good chance that the UK would decide to prioritise the Swedish request because the rape prosecution must be brought by August 2020, at the latest. It’s likely that the English courts would expedite any legal challenges to prevent time running out. </p>
<p>If the UK decides to prioritise the American request, it would effectively prevent the Swedish prosecution being brought in time.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/chelsea-manning-and-the-rise-of-big-data-whistleblowing-in-the-digital-age-102479">Chelsea Manning and the rise of 'big data' whistleblowing in the digital age</a>
</strong>
</em>
</p>
<hr>
<h2>If he goes to Sweden first to face the rape charges, would Sweden be more or less favourable on the US indictment?</h2>
<p>The <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=16&ved=2ahUKEwiFu4WHrrTiAhXv6XMBHZ1HDv0QFjAPegQIBxAC&url=https%3A%2F%2Ftreaties.un.org%2Fdoc%2FPublication%2FUNTS%2FVolume%2520494%2Fvolume-494-I-7231-English.pdf&usg=AOvVaw3geBB-eA2HIVx_8Q1zsGJ3">US-Swedish extradition treaty</a> appears to be stricter than the US-UK treaty. It only allows extradition for listed offences, and espionage is not listed. </p>
<p>Given that the treaty was adopted in 1961, computer crimes are not listed, although they might be understood to be included in one of the forms of fraud listed in the treaty. </p>
<p>The US-Swedish treaty also prohibits extradition for political offences or when the death penalty is imposed. </p>
<p>The Swedish government <a href="https://www.government.se/government-of-sweden/ministry-of-justice/international-judicial-co-operation/extradition-for-criminal-offences/">declares that it will not extradite</a>: </p>
<blockquote>
<p>if there is reason to fear that the person whose extradition is requested runs a risk – on account of his or her ethnic origins, membership of a particular social group or religious or political beliefs – of being subjected to persecution threatening his or her life or freedom, or is serious in some other respect.</p>
</blockquote>
<h2>Do these charges attract the death penalty?</h2>
<p>These offences could lead to a long prison sentence, but do not attract the death penalty. </p>
<p>Like the US-Swedish treaty, the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf">US-UK extradition treaty</a> also allows the UK to refuse extradition if the accused is likely to face the death penalty, unless the US gives assurances that the death penalty will not be imposed.</p>
<h2>Could Assange be protected under the US constitution?</h2>
<p>Civil liberties groups and journalists in the United States argue that the charges in the new indictment are unconstitutional. The First Amendment of the American Constitution guarantees freedom of expression, and American courts have historically provided strong protection for journalism. </p>
<p>Many argue that what Assange and Wikileaks did in obtaining information from Chelsea Manning about the detainees at Guantanamo Bay and rules of engagement in Iraq, and disseminating it, is not meaningfully different from what news outlets do on a regular basis. American officials who worked for the Obama administration <a href="https://www.theguardian.com/media/2019/may/23/julian-assange-indicted-what-charges-mean-for-free-speech">say their decision</a> not to pursue Assange was based on concerns that such a prosecution would be contrary to the First Amendment. </p>
<p>Assange’s legal team are likely to argue that extradition to the US would constitute a violation of Assange’s right to freedom of expression under international law. If the extradition occurs, it’s likely they would seek to have the charges thrown out by American courts as unconstitutional.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-part-of-chelsea-mannings-legacy-increased-surveillance-71607">Is part of Chelsea Manning's legacy increased surveillance?</a>
</strong>
</em>
</p>
<hr>
<h2>Will these new charges change the way the Australian government treats the case?</h2>
<p>The new charges are much more serious than the computer misuse charge in the initial extradition request. The total sentence could be up to 175 years in jail – effectively a “whole of life” sentence, which some human rights advocates consider to be a form of cruel and inhumane treatment. </p>
<p>Australian government support for its nationals caught up in criminal proceedings overseas is largely negotiated out of the public eye. Nonetheless, there have been cases, such as the recent campaign to bring <a href="https://theconversation.com/hakeem-al-araibis-case-is-a-test-of-world-soccers-human-rights-credentials-heres-why-110580">Hakeem al-Araibi</a> back to Australia from Thailand, where the government was a <a href="https://www.smh.com.au/politics/federal/scott-morrison-intervenes-in-hakeem-al-araibi-case-20190129-p50ubd.html">public advocate</a>. </p>
<p>Assange’s Australian legal adviser <a href="https://www.theguardian.com/media/2019/may/24/assange-extradition-could-test-patience-of-australia-and-us-allies-bob-carr-warns">Greg Barns</a> has called on Foreign Affairs Minister Marise Payne and Prime Minister Scott Morrison to raise his case personally with the US and UK governments.</p>
<p>Assange’s case is certainly exceptional, and the human rights concerns over US extradition could justify exceptional intervention.</p><img src="https://counter.theconversation.com/content/117741/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The new charges are much more serious than the computer misuse charge in the initial US extradition request. Will the Australian government intervene?
Holly Cullen, Adjunct professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/116173
2019-05-03T02:01:44Z
2019-05-03T02:01:44Z
Julian Assange has refused to surrender himself for extradition to the US. What now?
<p>In the case of Julian Assange, focus has turned to the United States’ efforts to extradite him from Britain to the US to face a charge of conspiracy “<a href="https://www.abc.net.au/news/2019-04-11/julian-assange-arrested-in-london/10995280">to commit computer intrusion</a>”. </p>
<p>The initial extradition hearing, which took place on Thursday, was a preliminary step in what will be a long, drawn-out process. Assange appeared before the court by video link and made it clear he <a href="https://www.nytimes.com/2019/05/02/world/europe/julian-assange-us-extradition.html">opposes extradition</a>. The next procedural hearing is set for May 30. </p>
<p>Assange had been arrested by London Metropolitan police on April 11, and removed from the Ecuadorian embassy. He had been granted asylum by the embassy seven years earlier, after fleeing arrest out of fear he would be extradited to the United States.</p>
<p>Earlier this week, Assange was <a href="https://www.theguardian.com/media/2019/may/01/julian-assange-jailed-for-50-weeks-for-breaching-bail-in-2012">convicted</a> of breaking the conditions of his bail in 2012, and sentenced to <a href="https://www.judiciary.uk/wp-content/uploads/2019/05/sentencing-remarks-assange-010519.pdf">50 weeks imprisonment</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-the-assange-indictment-a-threat-to-the-first-amendment-115420">Is the Assange indictment a threat to the First Amendment?</a>
</strong>
</em>
</p>
<hr>
<h2>What happens next?</h2>
<p>The actual extradition hearing will be some time off, following these preliminary hearings. After an initial decision by a judge, either side may have access to an appeal procedure through the courts. </p>
<p>Regardless of that outcome, the final step rests with <a href="https://www.gov.uk/guidance/extradition-processes-and-review?fbclid=IwAR2dYyGKIS_gbQUyIrhBZLVhPW8JRiEGTY79UTO3OGphUVvzq4i_GUIRhA0#extradition-from-the-uk-category-2-territories">Home Secretary Sajid Javid</a>. Despite <a href="https://www.cnbc.com/2019/04/13/uk-lawmakers-urge-british-government-to-extradite-wikileaks-founder-assange-to-sweden.html">pressure from UK lawmakers</a>, Javid cannot make a political decision on whether to extradite Assange – rather, his role is to approve a court order for extradition unless there are statutory provisions that prohibit it.</p>
<p>His decision to extradite Assange might also be subject to High Court appeal.</p>
<h2>What is extradition?</h2>
<p>Extradition is a legal process that states use to facilitate the <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Extradition/Pages/default.aspx">transfer of a person from one jurisdiction to another</a> in order for that person to be prosecuted for a crime. Many extradition arrangements between states rely on <a href="https://www.gov.uk/guidance/extradition-processes-and-review">bi-</a> and <a href="https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/024">multilateral</a> extradition and mutual assistance treaties.</p>
<p>The US and UK signed an <a href="https://www.state.gov/documents/organization/187784.pdf">extradition treaty in 2003</a>. Under this treaty, both countries agreed to extradite people sought for trial or punishment for extraditable offences. An offence is extraditable where the conduct is punishable under the laws of both countries</p>
<blockquote>
<p>by deprivation of liberty for a period of one year or more.</p>
</blockquote>
<p>The offence for which Assange is wanted in the US is punishable by up to five years’ imprisonment. It is grounded in an <a href="https://www.forbes.com/sites/thomasbrewster/2019/04/16/unpacking-the-alleged-assange-manning-password-hacking-conspiracy/#53b601406ee8">allegation</a> that Assange engaged in a <a href="https://theconversation.com/clemency-for-chelsea-manning-but-will-assange-or-snowden-also-find-the-us-merciful-71473">conspiracy</a> with Chelsea Manning to hack US Department of Defence files, and publish classified information on Wikileaks.</p>
<p>Assange maintains his innocence, and his defenders argue that his extradition would set a <a href="https://www.canberratimes.com.au/story/6031078/assange-extradition-dangerous-precedent/?cs=14231">dangerous precedent</a> for journalism and the publication of truthful information – particularly as it may affect the US.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116393667193909249"}"></div></p>
<p>It is important to note the parallel, but now lapsed extradition claim from Sweden, which had earlier sought Assange for a preliminary investigation and <a href="https://www.hrw.org/news/2019/04/16/she-accused-assange-rape-give-her-chance-justice">possible prosecution</a> for rape charges. Assange had claimed an extradition to Sweden to face those charges would result in another extradition from there to the US. Having lost his protection under Ecuador, Assange now faces exactly that prospect.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-q-a-wikileaks-founder-arrested-in-london-115325">Julian Assange Q+A: WikiLeaks founder arrested in London</a>
</strong>
</em>
</p>
<hr>
<h2>Constraints on extradition</h2>
<p>Extradition is a heavily regulated and multi-stage process. Rules and procedures within and beyond the 2003 Extradition Treaty potentially protect Assange from extradition to the US, or at least constrain its conditions. </p>
<h3>Political offences</h3>
<p>The 2003 extradition treaty between the UK and the US explicitly provides:</p>
<blockquote>
<p>Extradition shall not be granted if the offence for which extradition is requested is a political offense.</p>
</blockquote>
<p>It is common for countries to retain a power to refuse extradition where it is sought in relation to political offences. Such an exemption can protect whistleblowers and others who legitimately challenge the exercise of governmental power. </p>
<p><a href="https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1443&context=ilj">Pure</a> political offences are those that directly target the government, such as treason, sedition or espionage. Relative political offences are ordinary offences that are “<a href="https://www.ejiltalk.org/the-political-offense-exception-punishing-whistleblowers-abroad/">committed for political motives or in a political context</a>”.</p>
<p>The UK does not have a <a href="https://www.ejiltalk.org/the-political-offense-exception-punishing-whistleblowers-abroad/">statutory or generally accepted judicial definition</a> of a relative political offence. However, the Anglo-American system uses the “incidence-test” <a href="https://www.ejiltalk.org/the-political-offense-exception-punishing-whistleblowers-abroad/">according to which</a></p>
<blockquote>
<p>the act must be incidental to and forming a part of political disturbances.</p>
</blockquote>
<p>The “requested state” may also refuse extradition if it determines that the request was politically motivated.</p>
<p>Assange’s lawyers are expected to make this a chief <a href="https://m.cnn.com/en/article/h_b04d7872de1ef20cb9ebf4a2c29a5806">argument against extradition</a>. Such an argument could not succeed on the basis that conspiracy to commit computer intrusion is a pure political offence under UK legislation, because it is not. </p>
<p>However, the UK courts or authorities may regard the charge Assange faces as a relative political offence. Alternatively, they may be convinced by Assange’s argument that his work with WikiLeaks is purely journalistic and the US charge <a href="https://www.nytimes.com/2019/04/11/world/europe/julian-assange-wikileaks-ecuador-embassy.html">politically motivated</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-charges-does-julian-assange-face-and-whats-likely-to-happen-next-115362">Explainer: what charges does Julian Assange face, and what's likely to happen next?</a>
</strong>
</em>
</p>
<hr>
<h3>The ‘Rule of Speciality’</h3>
<p>The “<a href="https://www.state.gov/documents/organization/187784.pdf">Rule of Speciality</a>” under the extradition treaty offers Assange protection against new charges. According to this rule, an extradited person may only be charged for the offence for which the extradition is granted, or for crimes committed thereafter. However, the requested state may waive the rule of speciality in which case Assange may end up facing more charges than originally specified.</p>
<p>This rule is important for both Assange and the UK authorities. The UK is entirely opposed to the imposition of the <a href="https://www.gov.uk/government/publications/strategy-for-abolition-of-the-death-penalty-2010-2015">death penalty</a> in any circumstances. The UK would be <a href="https://www.theguardian.com/media/2019/apr/15/letters-support-claim-julian-assange-would-not-be-extradited-to-us">bound to refuse</a> to extradite Assange to the US were he to face charges that carried a possible death penalty. </p>
<p>There will be pressure on the UK authorities to respect the rule of speciality, in which case Assange would face a maximum of five years imprisonment should he be extradited to the US. </p>
<h3>Time and appeal procedures</h3>
<p>Final decisions on extradition requests take considerable time. For example, the extradition of Abu Hamza from the UK to the US <a href="https://www.theguardian.com/law/2012/sep/24/abu-hamza-extradition-us">took eight years</a>. Progress of the extradition request is likely to be slow through the UK courts and bureaucracy. It will be further delayed by any appeal procedures Assange seeks to utilise, whether through the UK courts or the European human rights system. </p>
<p>It is impossible to say, for now, what awaits Assange. At the very least, following the completion of his current prison sentence, there will be renewed uncertainty about his liberty. Controversy, of course, will persist over whether Assange deserves <a href="https://tenthamendmentcenter.com/2019/04/18/julian-assange-political-prisoner/">protection against political prosecution</a>, if he may actually have nefarious <a href="https://www.abc.net.au/radio/programs/russia-if-youre-listening/julian-assange-russias-favourite-publisher/11029806">links to Russia</a>, or indeed whether the most just course would be for the <a href="https://www.bbc.com/news/uk-47910820">Swedish charges</a> to be revived first.</p><img src="https://counter.theconversation.com/content/116173/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Extradition is a heavily regulated and multi-stage process. For now, it’s impossible to say what awaits Assange.
Samuel Berhanu Woldemariam, PhD Candidate (Law), University of Newcastle
Amy Maguire, Associate professor, University of Newcastle
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/115362
2019-04-12T06:08:02Z
2019-04-12T06:08:02Z
Explainer: what charges does Julian Assange face, and what’s likely to happen next?
<p>Julian Assange, the Australian cofounder of <a href="https://theconversation.com/au/topics/wikileaks-1091">Wikileaks</a>, was <a href="https://www.bbc.com/news/uk-47891737">arrested on April 11 by British police at the Ecuadorian embassy</a> in London, where he had been claiming political asylum for almost seven years.</p>
<p>He has faced a range of criminal charges and extradition orders, and several crucial aspects of his situation remain to be resolved.</p>
<p><strong>What are the British charges against Assange, and what sentence could be imposed?</strong></p>
<p>Assange moved into the Ecuadorian embassy in London in <a href="https://www.theguardian.com/media/2012/jun/20/julian-assange-asylum-ecuador-embassy-live">June 2012</a> after losing the final appeal against his transfer to Sweden on a <a href="https://e-justice.europa.eu/content_european_arrest_warrant-90-en.do">European Arrest Warrant (EAW)</a>. He was then charged with failing to surrender to the court. </p>
<p>While in the embassy, Assange could not be arrested because of the international legal protection of diplomatic premises, which meant police could not enter without Ecuador’s consent. On April 11, British police were invited into the embassy and made the arrest. On the same day, Assange was found guilty, and awaits sentencing. The charge of <a href="https://www.legislation.gov.uk/ukpga/1976/63">failing to surrender</a> to the court carries a jail term of up to 12 months. </p>
<p><strong>What are the US charges against Assange?</strong></p>
<p>Also on April 11, the United States government unsealed an indictment made in March 2018, <a href="https://www.justice.gov/usao-edva/pr/wikileaks-founder-charged-computer-hacking-conspiracy">charging Assange</a> with a conspiracy to help whistleblower <a href="https://theconversation.com/au/topics/chelsea-manning-19496">Chelsea Manning</a> crack a password which enabled her to pass on classified documents that were then published by WikiLeaks. The US has requested that the UK extradite Assange to face these charges before a US court.</p>
<p><strong>What were the Swedish charges, and could they be revived?</strong></p>
<p>In 2010, a Swedish prosecutor issued the EAW requesting Assange’s transfer to Sweden to face sexual assault allegations, which he denies. In 2016, Assange was questioned by Swedish authorities by video link while he remained in the Ecuadorian embassy. In 2017, they closed their investigation. </p>
<p>After Assange was arrested and removed from the embassy, the lawyer for one of the complainants indicated she would ask the prosecutor to reopen the case, as the statute of limitations on the alleged offence does not expire until 2020. As of April 12, Sweden’s Prosecution Authority is formally reviewing the case and could renew its request for extradition.</p>
<p><strong>What are Britain’s legal obligations to extradite to Sweden or the US?</strong></p>
<p>The UK, as a member of the European Union (for now!), is obliged to execute an EAW. The law on EAWs is similar to extradition treaties. However, the law also says it is up to the UK to decide whether to act first on the EAW from Sweden or the US extradition request.</p>
<p>Bilateral extradition treaties are usually based on identical reciprocal obligations. But the current <a href="https://www.state.gov/documents/organization/187784.pdf">UK-US extradition treaty</a>, agreed in 2003, has been criticised for allowing the UK to extradite a person to the US solely on the basis of an allegation and an arrest warrant, without any evidence being produced, despite the fact that “probable cause” is required for extradition the other way. </p>
<p>The relative ease of extradition from the UK to the US has long been one of the concerns of Assange’s legal team. The treaty does not include a list of extraditable offences but allows for extradition for any non-political offence for which both states have criminalised the behaviour, which carries a sentence of at least one year in prison. </p>
<p>Espionage and treason are considered core “political offences”, which is why the US request is limited to the charge of computer fraud. Conspiracy to commit an extraditable offence is covered in the US-UK treaty, as it is in the EAW (and in the US-Australia extradition treaty).</p>
<p>Assange may legally challenge his extradition either to the US or to Sweden (as he previously did). Such challenges could take months or even years, particularly if Assange applies to the European Court of Human Rights arguing that an extradition request involved a human rights violation.</p>
<p>Given Assange’s previous conduct, and the likelihood that he will be sentenced to prison for failure to surrender to court, he will probably remain in a UK prison until all legal avenues are exhausted.</p>
<p><strong>What are Australia’s obligations to Assange?</strong></p>
<p>As an Australian citizen, Assange is entitled to consular protection by the Australian government, which means staff from the Australian High Commission in London will provide support for him in the legal process. The extent of that support is not set in stone, however, and both Foreign Minister Marise Payne and Prime Minister Scott Morrison have declined to provide detail on the basis that the matter is before the courts.</p>
<p>One possibility is that Assange will serve his sentence for failing to surrender to the court, after which the UK will deport him to Australia. At that point, it is possible the US could request extradition from Australia, and the <a href="https://www.legislation.gov.au/Details/F2004C00101">US-Australian extradition treaty</a> would apply. The US charges would most likely be covered although not specifically mentioned in the treaty. </p>
<p>As with the UK-US treaty, political offences are excluded, and an extradited person can only be tried for the offence in the extradition request or a related offence, and in any event not for an offence not covered by the treaty. In addition, the treaty specifies that neither Australia nor the US is obliged to extradite its own nationals, but may do so. The fact that Australia has the option to refuse extradition purely on the ground of Assange’s nationality could lead to intense pressure on the government to do just that.</p><img src="https://counter.theconversation.com/content/115362/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Holly Cullen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
If the Swedish charges against Assange are revived he could face a second extradition request, on top of the existing request from the US. Then it will be up to the UK to decide which to prioritise.
Holly Cullen, Adjunct professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/115325
2019-04-11T18:41:56Z
2019-04-11T18:41:56Z
Julian Assange Q+A: WikiLeaks founder arrested in London
<p><a href="https://theconversation.com/uk/topics/julian-assange-2002">Julian Assange</a>, founder of WikiLeaks, has been arrested in London and charged with conspiracy to commit computer intrusion over his alleged role in the leaking of classified United States government documents. Assange has already been found guilty of failing to surrender British police, who took him from the Ecuadorian embassy, where he has been living for nearly seven years, having claimed asylum there. Here’s what we know so far. </p>
<p><strong>Why was Assange in the Ecuadorian embassy in the first place?</strong></p>
<p>Assange sought extraterritorial asylum in the Ecuadorean embassy in London in June 2012 when an arrest warrant was issued against him in Sweden for accusations of sexual assault. He claimed that these charges were part of an international effort to silence his organisation WikiLeaks, which has become famous for publishing leaked, and often classified, information about governments across the world.</p>
<p>Importantly, the government of Ecuador took the view at the time that if the UK arrested him, he would be sent to the US to face treason charges relating to WikiLeaks exposures. Assange claimed that he could face the death penalty for those charges. Since both Ecuador and the UK are parties to the <a href="https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en">1951 Convention on Refugees</a>, they are obliged to consider whether there is a real risk that a person seeking asylum could lose their life if they were handed over to another authority when deciding whether they have to protect them.</p>
<p><strong>What were the charges against him in Sweden?</strong></p>
<p>The Swedish charges related essentially to a “preliminary investigation” into accusations of sexual offences, including an alleged rape. The proceedings began in 2012, but by August 2015, the Swedish prosecutors dropped parts of their investigation. The investigation into the allegation of rape was also dropped in May 2017. </p>
<p><strong>What are the charges against him in the US?</strong></p>
<p>The exact charges against Assange have not been clear up until now. This was partly why Ecuador and so many of his supporters backed his claims to political asylum. In the wake of Assange’s arrest, the US government has issued <a href="https://www.justice.gov/usao-edva/pr/wikileaks-founder-charged-computer-hacking-conspiracy">further details</a> about a federal charge of conspiracy to commit computer intrusion “for agreeing to break a password to a classified US government computer”. A statement from the Department of Justice accuses Assange helped former intelligence analyst Chelsea Manning crack a password that would enable her to download classified records to transmit to WikiLeaks. </p>
<p><strong>Assange has already been found guilty of failure to surrender. What does that mean?</strong></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116275669447716864"}"></div></p>
<p>In pursuit of the sexual assault charges, Sweden issued a European Arrest Warrant against Assange, which meant the UK authorities were required to act. Judges in the UK granted Assange bail at the time of this initial arrest, but with strict conditions. However, while the case was being considered, Assange entered the Ecuadorian embassy and was granted political asylum on June 16 2012. In failing to leave the embassy, he breached his bail conditions. When his asylum was revoked, he was immediately charged and subsequently found guilty of failing to surrender. He is yet to be sentenced but could face up to 12 months jail time under UK law.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116338318768263168"}"></div></p>
<p><strong>Why were British police suddenly able to enter the Ecuadorian embassy?</strong></p>
<p>Simply put, the police could go into the embassy for the first time in nearly seven years because the Ecuadorian government revoked Assange’s asylum. The “premises of a diplomatic mission” including buildings or parts of buildings and the land ancillary to it are, inviolable according to the <a href="http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf">Vienna Convention on Diplomatic Relations 1961</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116307375009431552"}"></div></p>
<p>However all such rights are subject to the right of a country to grant a waiver and the agents of a receiving state may enter diplomatic premises with the consent of the head of the mission. Such waivers are expected to be in writing and there will be a document to evidence this in the hands of the UK government.</p>
<p><strong>Why did the Ecuadorian government withdraw asylum from Assange?</strong></p>
<p>The Ecuadorian government issued a statement accusing Assange of “discourteous and aggressive behaviour” and of violating international asylum conventions. We don’t know exactly what he has done but Ecuadorian president Lenín Moreno said in a video statement that he had failed to abide by the norm of “not interfering in the internal affairs of other states”. </p>
<p>Assange has been a difficult guest in some ways. His continuous communication with the outside world and the way he <a href="https://www.nytimes.com/2016/07/27/us/politics/assange-timed-wikileaks-release-of-democratic-emails-to-harm-hillary-clinton.html">wrote himself into the legend</a> of the last US presidential elections would certainly have been against the intentions of Ecuador in granting him extraterritorial asylum.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1116290826559262720"}"></div></p>
<p>Extraterritorial asylum – which is asylum granted outside the territory of the state itself – is indeed a contested practice in international law and the UK had been quite accommodating in recognising what is, in essence, a subpractice of Latin American states within international law. </p>
<p><strong>What will happen to Assange now?</strong></p>
<p>Although the British authorities appear to have given some assurances to the Ecuadorean authorities that Assange will not be extradited to the US, they will probably embark on a very truncated extradition process in conjunction with the US authorities and he may soon be in the US. It is unclear what president Donald Trump’s position on his case is, but the president has spoken in his favour in the past. There might be a clash of political interests between the US intelligence community and the presidency about what to do with Assange. </p>
<p><strong>Can the UK demand that the US commit to not executing Assange if he is extradited?</strong></p>
<p>Yes, this demand can be easily made and will most likely be granted because it is simply not in line with modern democracies to apply the death sentence in political and crimes of conscience cases. The US government has said he faces a maximum penalty of five years in prison. Actual sentences for federal crimes are typically less than the maximum penalties.</p><img src="https://counter.theconversation.com/content/115325/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gbenga Oduntan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The Wikileaks founder has been removed from the Ecuadorean embassy after nearly seven years.
Gbenga Oduntan, Reader (Associate Professor) in Law, University of Kent
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/99997
2018-07-17T10:45:59Z
2018-07-17T10:45:59Z
If the 12 indicted Russians never face trial in the US, can anything be gained?
<figure><img src="https://images.theconversation.com/files/227888/original/file-20180716-44097-1lmyd2k.jpg?ixlib=rb-1.1.0&rect=82%2C23%2C2693%2C1652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deputy Attorney General Rod Rosenstein announcing the indictments</span> <span class="attribution"><span class="source">AP/Evan Vucci</span></span></figcaption></figure><p>During the Cold War, the Soviet Union and the United States regularly exchanged accusations of espionage. The prototypical image of Cold War spies is etched in the minds of anyone who lived through that period or watched its movies – trenchcoat-wearing, <a href="http://toonopedia.com/spyvsspy.htm">“Spy vs. Spy”</a> caricatures exchanging packages in dark alleys.</p>
<p>Modern-day espionage has a different image. Instead of a grizzled Cold Warrior, we picture millennials behind a computer screen hacking <a href="https://www.federaltimes.com/civilian/2017/09/22/sec-under-fire-for-being-hacked-despite-warnings-on-security/">government agencies</a>, <a href="https://www.nbcnews.com/politics/elections/u-s-intel-russia-compromised-seven-states-prior-2016-election-n850296">state election systems</a>, <a href="https://www.americandefense.com/defense-contractors-face-aggressive-ransomware-attacks/">military contractors</a>, <a href="https://www.infosecurity-magazine.com/blogs/top-10-worst-social-media-cyber/">social network behemoths</a> and – as <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">alleged</a> last week – major political parties. </p>
<p>On Friday, the <a href="https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-announcing-indictment-twelve">Department of Justice announced the indictments</a> of 12 Russian nationals for hacking into emails and servers of the Democratic National Committee, party functionaries and state election officials as part of the investigation into interference with the 2016 U.S. presidential election. </p>
<p>As an <a href="https://www.sc.edu/study/colleges_schools/law/faculty_and_staff/directory/samuels_joel.php">expert on U.S.-Russian relations and the international rule of law</a>, I believe the indictments are an important step in the effort to establish what happened in the months leading up to the 2016 U.S. presidential election.</p>
<p>Democracy functions best when efforts to undermine it are brought into the open. Individual facts, when confirmed, become pieces to a puzzle that fit together to tell a story. In the end, even if the 12 Russians are never tried in the United States and this particular story cannot be uncovered fully, the example these indictments set will provide a road map for other countries facing similar challenges to their democracy. </p>
<p>But that positive example may be little solace for Americans who will feel frustrated if the facts behind Russia’s alleged role in election disruption are not fully uncovered.</p>
<h2>Extradition unlikely</h2>
<p>At the time of the alleged crimes, <a href="https://www.nytimes.com/2018/07/13/world/europe/what-is-russian-gru.html">all 12 indicted individuals were employed by the GRU</a>, the main intelligence agency for the Russian military and a Soviet-era remnant. They live and work in Russia.</p>
<p>Despite President Vladimir Putin’s promises to review the situation, no one expects that Russia will extradite the accused individuals. After all, if the indictments are true, those individuals were working <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">for the Russian government when they committed the alleged crimes</a>.</p>
<p>We have seen this very issue arise before, notably after Edward Snowden <a href="https://www.washingtonpost.com/world/snowden-departs-hong-kong-for-a-third-country-government-says/2013/06/23/08e9eff2-dbde-11e2-a9f2-42ee3912ae0e_story.html?utm_term=.29c75f860805&noredirect=on">fled to Moscow in 2013</a>. The United States accused Snowden of espionage and sought his extradition. </p>
<p><a href="https://www.washingtonpost.com/world/europe/russia-denies-that-it-could-have-handed-snowden-to-us-authorities/2013/06/25/3767d7b8-dd7d-11e2-948c-d644453cf169_story.html?utm_term=.192a6775f55b">Russia refused</a>, saying vaguely that Russia did not have grounds to arrest him. </p>
<p>The United States has similarly refused to extradite individuals to Russia, most recently <a href="https://www.npr.org/sections/thetwo-way/2013/08/07/209846990/3-extradition-cases-that-help-explain-u-s-russia-relations">Ilyas Akhmadov, a Chechen rebel leader</a> who was accused by Russia of terrorism and subsequently granted asylum in the United States in 2004. </p>
<p>So the tenuous path to extradition runs in both directions.</p>
<p>Russia is not legally bound to extradite any of the 12 men who were indicted. Indeed, there is some question whether the United States and Russia have an extradition treaty at all. </p>
<p>In 1893, <a href="https://archive.org/stream/jstor-27899926/27899926_djvu.txt">the Senate ratified an extradition treaty with the Emperor of Russia</a>. President Grover Cleveland signed it into law. But by 1974, the U.S. State Department called the treaty “<a href="https://www.nbcnews.com/news/us-news/how-would-u-s-put-indicted-russians-trial-n891581">obsolete</a>.” </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=891&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=891&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=891&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1120&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1120&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227889/original/file-20180716-44100-t8igva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1120&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President Grover Cleveland signed an extradition treaty with Russia in 1893.</span>
<span class="attribution"><span class="source">Library of Congress</span></span>
</figcaption>
</figure>
<p>Even if the 1893 treaty is still in force, one provision states that both the United States and Russia “shall not be required to deliver up their own citizens or subjects.” </p>
<p>So the treaty would only apply to foreign nationals located in one of the two states – for example, to Germans in Russia, but not to Russians in Russia. In short, Russia will not be bound by the treaty to turn over any of the men indicted on Friday.</p>
<h2>Getting to the truth</h2>
<p>If the 12 men are unlikely to be extradited by Russia, there won’t be a trial for them in the United States.</p>
<p>What does this mean for establishing the truth of what happened from March through November 2016?</p>
<p>As the indictment itself makes clear, the Mueller investigation has already turned up a number of specific details outlining the source of hacks of both the DNC and accounts of <a href="https://d3i6fh83elv35t.cloudfront.net/static/2018/07/Muellerindictment.pdf">prominent individuals in the Democratic Party</a>. </p>
<p>As someone who has been involved in litigation for more than 20 years, I believe that the public dissemination of the indictments may lead to other sources who can verify the underlying alleged facts. It is in the nature of complex criminal investigations to seek <a href="https://www.vox.com/world/2017/7/24/16008272/robert-mueller-fbi-trump-russia-explained">indictments on many fronts</a> in the hopes of putting pressure on as many individuals as possible, knowing that not all indictments will lead to prosecution. </p>
<p>Failure to secure convictions or pleas will not be a sign of failure of the indictments. Instead, it can be used to put pressure elsewhere in the investigation that may lead to new information about what happened.</p>
<p>There are a couple of additional ways the truth may come out. All 12 of the individuals who were indicted will now face severe travel restrictions. The United States is likely to place them on the <a href="https://www.interpol.int/notice/search/wanted">Interpol wanted list</a>, and they would be subject to arrest and potential extradition if detained outside of Russia.</p>
<p>In a parallel case that involved the hacking of more than 100 million LinkedIn accounts, the <a href="https://www.justice.gov/usao-ndca/pr/yevgeniy-nikulin-appears-us-court-following-extradition">United States successfully secured the extradition of a Russian hacker</a> whom the Russian government had sought to protect from extradition. <a href="https://www.justice.gov/opa/press-release/file/904516/download">Indicted in 2016, that hacker, Yevgeniy Nikulin</a>, was arrested in the Czech Republic on an international arrest warrant and <a href="https://www.justice.gov/usao-ndca/pr/yevgeniy-nikulin-appears-us-court-following-extradition">extradited to the United States</a> in March of this year.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227892/original/file-20180716-44082-19tjhyv.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Screenshot from YouTube of Russian hacker Yevgeniy Nikulin.</span>
<span class="attribution"><span class="source">YouTube</span></span>
</figcaption>
</figure>
<p>An additional possibility is that one or more of the indicted individuals will voluntarily appear in the United States out of frustration with the travel restrictions that will now apply to them. Or, if one of them makes the mistake of leaving Russia, that person may end up providing information – either at trial or as part of a plea agreement – after being caught. </p>
<p>Just Monday, in his joint press conference with Donald Trump, Putin hinted at another path to the truth. </p>
<p>Putin noted <a href="https://www.congress.gov/treaty-document/106th-congress/22/document-text">a 1999 treaty between Russia and the United States</a> on mutual legal assistance in criminal matters and offered to allow use of that treaty to question the 12 indicted individuals. </p>
<p>Putin even offered to allow Robert Mueller and his team <a href="https://www.cnbc.com/2018/07/16/putin-asked-special-counsel-to-come-and-work-with-russia-trump-says.html">to come to Russia</a> to be present at the questioning (though not to ask the questions themselves). But Putin expressly noted a condition to such an offer – reciprocity – and specifically the right to do the same for his <a href="https://www.newsweek.com/who-bill-browder-694598">public enemy number one</a> and most vociferous critic, <a href="https://www.bbc.com/news/magazine-25190975">former American citizen Bill Browder</a>. </p>
<p>That type of condition smacks of Cold War politics – expel 10 of our spies, and we will expel 10 of yours. So, while Monday’s press conference may have offered a glimmer of hope, it is likely an illusory one. </p>
<h2>Other paths</h2>
<p>It may prove impossible to secure any of the 12 men indicted on Friday. </p>
<p>As the Cold War period demonstrated, individuals like these men are often <a href="https://www.wired.com/2010/12/russian-sleeper-agent-gets-a-golden-parachute/">hailed as heroes at home</a> and protected until the end of their lives. If that proves to be the case, the 12 indictments may not lead to any new witnesses or information. </p>
<p>In that event, the Mueller investigation will have to pursue other paths to concretely – and publicly – piece together the full story of what happened in the months leading up to the 2016 election. </p>
<p>The effort to find out what really happened during that period may offer important lessons – and prosecutorial models – for other nations. After all, efforts to influence elections are rampant around the globe, including recent reports that suggest large-scale hacking attempts by state-sponsored <a href="https://www.fireeye.com/blog/threat-research/2018/07/chinese-espionage-group-targets-cambodia-ahead-of-elections.html">Chinese hackers aimed at impacting upcoming national elections in Cambodia</a>. </p>
<p>As these new developments unfold, the path being laid out by the United States offers an important light that may guide other nations facing similar threats to their democracy.</p>
<p>But while these efforts may provide guidance for other nations, it is unclear whether Americans will get the clarity and satisfaction they seek – and their democracy needs – from this investigation.</p><img src="https://counter.theconversation.com/content/99997/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joel Samuels does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Will 12 Russians indicted for hacking the 2016 US election ever come to trial? They may not, but the indictments themselves are an important step in the effort to determine the truth of what happened.
Joel Samuels, Professor of Law, University of South Carolina
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/74984
2017-03-28T02:42:02Z
2017-03-28T02:42:02Z
Explainer: why the government ‘pulled’ Australia’s extradition treaty with China
<figure><img src="https://images.theconversation.com/files/162782/original/image-20170327-3308-1xcx3ji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia's extradition treaty with China was completed in 2007, but it has never been ratified.</span> <span class="attribution"><span class="source">AAP/Dan Himbrechts</span></span></figcaption></figure><p>The federal government <a href="http://www.abc.net.au/news/2017-03-28/government-pulls-australia-china-extradition-treaty/8392730">today announced</a> it will not proceed with the ratification of an extradition treaty with China. This followed <a href="http://www.smh.com.au/federal-politics/political-news/labor-greens-xenophon-team-likely-to-link-with-cory-bernardi-to-block-china-extradition-treaty-20170324-gv5rx1.html">strong indications</a> that the Senate would block it from coming into force.</p>
<p><a href="http://www.aph.gov.au/%7E/media/02%20Parliamentary%20Business/24%20Committees/244%20Joint%20Committees/JSCT/2016/2Mar2016/2007%20ATNIF%2026_China%20Extradition%20Treaty.pdf?la=en">The treaty</a> contains most of the usual protections against anyone being extradited to China where their human rights would be violated. But an important omission is a guarantee that extradition would not be approved when it would be “unjust or oppressive”.</p>
<p>This failure to implement puts Australia at a significant disadvantage. The usual procedures for extradition between countries with substantial and complex bilateral relations will now not be available.</p>
<h2>Background to the treaty</h2>
<p>The treaty was concluded in 2007. Under the standard procedure for ratification, the government submitted the treaty to the Joint Standing Committee on Treaties, <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Extradition-China/Report_167/section?id=committees%2freportjnt%2f024024%2f24292">which recommended its ratification</a>. </p>
<p>However, the committee made several recommendations for better human rights protections – not all of which the government accepted.</p>
<p>A <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Extradition-China/Report_167/section?id=committees%2freportjnt%2f024024%2f24319">dissenting report</a> by the committee’s Labor MPs recommended that ratification be delayed until after an independent review of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ea1988149/">Extradition Act</a>:</p>
<blockquote>
<p>… to ensure that Australia’s extradition system continues to be consistent with community expectations and international legal obligations regarding the rule of law and human rights. </p>
</blockquote>
<p>The government did not accept that recommendation on the grounds that the act had been subject to several reviews in recent years.</p>
<p>There has been some confusion over what the Senate would actually have done had the government not pulled the treaty. The Senate cannot prevent ratification, which is entirely a matter for the government. The Senate’s relevant power is that it can disallow regulations. </p>
<p>Independent Senator Cory Bernardi <a href="http://www.abc.net.au/radionational/programs/breakfast/bernardi-opposes-china-extradition-treaty/8392234">had given notice</a> of a motion to disallow the regulations approved by the governor-general that would have added China as “an extradition country” under the Extradition Act. This would have meant no extradition to China could take place under the treaty.</p>
<p>The government’s decision to withdraw the treaty apparently means it will not proceed to ratification. It recognised it could not be implemented.</p>
<h2>What are the objections to the treaty?</h2>
<p>The objections to the treaty are mostly based on the Chinese legal system’s deficiencies.</p>
<p>The Law Council of Australia <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Extradition-China/Report_167/section?id=committees%2freportjnt%2f024024%2f24292">has said</a> that China:</p>
<blockquote>
<p>… does not act in accordance with procedural fairness and rule of law standards in criminal proceedings. </p>
</blockquote>
<p>And political theorist <a href="http://www.tandfonline.com/doi/full/10.1080/23812346.2016.1212522">Francis Fukuyama</a> wrote last year that:</p>
<blockquote>
<p>China does not have true rule of law because there is no independent judicial system.</p>
</blockquote>
<p>The treaty does include the standard provisions that extradition would not take place where:</p>
<ul>
<li><p>the offence is political; </p></li>
<li><p>the person may have been prosecuted on discriminatory grounds (including race, religion, nationality and political opinion);</p></li>
<li><p>the person has already been convicted or punished (double jeopardy);</p></li>
<li><p>the offence is a military offence only; or</p></li>
<li><p>if transferred, the prisoner was likely to suffer torture or face the death penalty.</p></li>
</ul>
<p>The Australian government also emphasised that the Extradition Act contains a general discretion to refuse surrender. This enables consideration by the decision-maker (the attorney-general or the justice minister) of human rights concerns, including whether an extradited person would have access to a fair trial.</p>
<p>However, the Law Council of Australia has assessed that the assurances regarding this right provided inadequate protection. This is because they relied on the discretion of the decision-makers in each country, and the process could be “influenced by a wide range of factors”.</p>
<p>The treaty contains a discretionary ground for refusal of an extradition request where extradition would be:</p>
<blockquote>
<p>… incompatible with humanitarian considerations in view of that person’s age, health or other personal circumstances. </p>
</blockquote>
<p>However, the treaty did not add to this provision the words “unjust or oppressive”, which are contained in ten other Australian bilateral extradition treaties. The attorney-general’s department was unable to explain to the parliamentary committee why these words had not been included. It stressed that each extradition treaty is unique.</p>
<p>The decision not to proceed with the extradition treaty creates an anomalous situation in which Australia does not have bilateral extradition arrangements with its <a href="http://dfat.gov.au/geo/china/pages/china-country-brief.aspx">largest two-way trading partner</a> in goods and services. The two-way movement of students, tourists and businesspeople is very large. It is bound to give rise to situations in which a valid request for extradition may be made by either Australia or China. </p>
<p>An extradition agreement is not essential to responding to an extradition request, which can be handled ad hoc. But there is now no mechanism with appropriate safeguards to mandate how such a request should be dealt with.</p><img src="https://counter.theconversation.com/content/74984/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Boreham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The usual procedures for extradition between countries with substantial and complex bilateral relations – like those that Australia and China have – will now not be available.
Kevin Boreham, Lecturer in International Law, Australian National University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/69569
2016-12-01T23:17:42Z
2016-12-01T23:17:42Z
How hard will it be for Australia to extradite and prosecute Neil Prakash?
<figure><img src="https://images.theconversation.com/files/148218/original/image-20161201-17763-1l1usip.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Previously presumed dead, Australian citizen Neil Prakash was arrested at the Turkish border in late November.</span> <span class="attribution"><span class="source">ABC News</span></span></figcaption></figure><p>Australia is seeking the extradition from Turkey of <a href="http://www.abc.net.au/news/2016-11-26/extradition-of-is-recruiter-neil-prakash-could-take-a-while/8060680">Neil Prakash</a>, an Australian citizen who is accused of being a leading propagandist and recruiter for Islamic State (IS).</p>
<p>Earlier <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/SecondQuarter/5-May-2016-Death-of-Australian-citizens-Neil-Christopher-Prakash-and-Shadi-Jabar-Khalil-Mohammad.aspx">presumed killed</a> in a US airstrike, Prakash is also accused of planning terrorist attacks in Australia. The extradition process could be prolonged, as Turkey and other countries may want to interrogate Prakash or seek his extradition. But Australia has a strong case for extradition.</p>
<h2>Who is Neil Prakash?</h2>
<p>Turkish forces apparently captured Prakash while he was trying to cross into the country from Syria using false identity papers. An Australian government spokesman <a href="http://www.nytimes.com/reuters/2016/11/25/world/middleeast/25reuters-mideast-australia-recruiter.html?_r=0">has said</a> Prakash’s arrest was:</p>
<blockquote>
<p>… the result of close collaboration between Australian and Turkish authorities.</p>
</blockquote>
<p><a href="http://www.abc.net.au/radionational/programs/breakfast/australian-government-seeks-to-extradite-'high-value'-prakash/8062314">Justice Minister Michael Keenan</a> has confirmed that Australia has made a formal application for Prakash’s extradition. Earlier this week he said that Australia had a very good relationship with the Turkish authorities, “and they’re very aware of our keen interest”.</p>
<p>Prakash, known in IS as Abu Khaled al-Cambodi, is of Cambodian and Fijian-Indian background. The Australian Federal Police <a href="http://www.theage.com.au/federal-politics/political-news/australia-seeks-extradition-of-islamic-state-terrorist-neil-prakash-20161126-gsy6fv.html">issued a warrant</a> for his arrest in 2015 as a member of a terrorist organisation and for incursions into a foreign state with the intention of engaging in hostile activities. </p>
<h2>The case for extradition</h2>
<p>Australia has an <a href="http://www.austlii.edu.au/au/legis/cth/num_reg/er20032003n228379/sch1.html">extradition treaty with Turkey</a>, providing for extradition of a person charged with an offence punishable by imprisonment for at least one year. The Parliamentary Joint Standing Committee on Treaties <a href="http://www.aph.gov.au/parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/reports/report10/report10.pdf">has reported</a> that the treaty is:</p>
<blockquote>
<p>… subject to the full range of human rights safeguards and provides the same range of obligations and exemptions provided by other modern extradition agreements.</p>
</blockquote>
<p>The rule of <a href="http://definitions.uslegal.com/d/double-criminality/">double criminality</a> applies to Australia’s application to extradite Prakash. This means the crimes with which Prakash would be charged in Australia must also be crimes under Turkish law. This does not require the crimes to be identical in both countries’ criminal law, but just perceived as punishable under both countries’ laws.</p>
<p>There may be competition to Australia’s extradition application. Turkey itself, European Union countries and the US may want to interrogate Prakash. The US may also want to prosecute him. </p>
<p>However, Australia has a strong case for extraditing Prakash to face trial in an Australian court, based on both the traditional grounds of jurisdiction of territoriality and nationality.</p>
<p>Prakash is allegedly associated with acts or attempted acts of terrorism that have occurred in Australia. These include <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjztsPNj9TQAhXFvLwKHWsIBsUQFggZMAA&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fnews%2Finquirer%2Fnuman-haider-life-and-death-of-a-teenage-jihadist%2Fnews-story%2F8b063949e551c2531ea009482ec72e24&usg=AFQjCNFv368-1ofLCer45Hloc5UJHZLNcg&bvm=bv.139782543,d.dGc">Numan Haider’s attack</a> on two police officers in Melbourne in 2014, and the planned attack on <a href="http://www.abc.net.au/news/2016-04-25/teen-charged-over-anzac-day-plot-communicated-with-is-recruiter/7356518">ANZAC Day commemorations</a> in Melbourne in 2015.</p>
<p>Australia can also claim jurisdiction over Prakash because he is an Australian citizen. A country has the ability to prosecute and punish its citizens solely on the basis of their nationality, wherever their alleged offence takes place. </p>
<p>Traditionally, common-law jurisdictions like Australia have tended to exercise extra-territorial jurisdiction over their citizens only for very serious crimes. The Prakash case falls into that category.</p>
<h2>Potential difficulties with a prosecution</h2>
<p>Prakash could be charged in Australia under the provisions of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Commonwealth Criminal Code</a>. These provide for extended geographical jurisdiction over terrorism offences committed by Australian citizens, and for prosecution of “foreign fighters” who fight alongside terrorist organisations in overseas conflicts.</p>
<p>However, there would be difficulties in prosecuting Prakash in an Australian court for crimes he allegedly committed outside Australia, including by acting as a foreign fighter. This would stem from difficulties in obtaining admissible evidence. </p>
<p>The former independent national security legislation monitor, Bret Walker, <a href="https://www.inslm.gov.au/sites/default/files/publications/inslm-annual-report-2014.pdf">said in 2014</a> that:</p>
<blockquote>
<p>… the problem of overseas evidence is peculiarly challenging for the prosecution of terrorist offenders.</p>
</blockquote>
<p>He added:</p>
<blockquote>
<p>… prosecutions but also investigations are presently stillborn on account of problems of foreign evidence that might otherwise have succeeded.</p>
</blockquote>
<p><a href="https://www.legislation.gov.au/Details/C2014A00116">Legislation</a> passed in 2014 gave judges greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while maintaining existing protections of the rights of the defendant. </p>
<p>Previously, the law provided that only foreign evidence obtained through a government-to-government request was admissible. It now provides for admission of evidence obtained through informal co-operation between Australian and overseas agencies, such as police.</p>
<p>The law also provides that any such material is not admissible if the court is satisfied it was obtained directly as a result of torture or duress.</p><img src="https://counter.theconversation.com/content/69569/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Boreham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The extradition process for Australian citizen Neil Prakash could be prolonged, as Turkey and other countries may want to interrogate him or seek his extradition.
Kevin Boreham, Lecturer in International Law, Australian National University
Licensed as Creative Commons – attribution, no derivatives.