Saturday, August 25, 2012

Professer Kevin Jon Heller on Mark Klamberg

(updated below - Update II)

Below is an email from international law professor Kevin Jon Heller at Melbourne Law School to me last night, August 24, 2012 (Professor Heller is the one who first emailed me to draw my attention to Mark Klamberg's post arguing that it is the Swedish government, not Sweden's courts, that is the final decision-maker on extradition; Klamberg was one of four legal sources I cited in my column on the false statement by David Allen Green about extradition):
_____________

Glenn,

Wow, my apologies.  I'm shocked by Klamberg's tweets -- I completely and unequivocally endorse your reading of his post.  I have no idea why he thinks you misrepresented him, because you didn't.  I can only assume he doesn't like being used to support a political position with which he disagrees. 

For the record, here is the text of a Congressional Research Service report on extradition under U.S. law, which takes exactly the same position as Swedish law: 
If the judge or magistrate certifies the fugitive for extradition, the matter then falls to the discretion of the Secretary of State to determine whether as a matter of policy the fugitive should be released or surrendered to the agents of the country that has requested his or her extradition.  United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997) (“It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited. See 18 U.S.C. §3186 (`The Secretary of State may order the person committed under section 3184 . . . of this title to be delivered to any authorized agent of such foreign government . . .’”); Executive Discretion in Extradition, 62 COLUMBIA LAW REVIEW 1313 (1962).  
_____________

Here is the first email Professor Heller sent me, from the day before:
Just one note: it is incorrect to say that the final decision to extradite Assange from Sweden to the US would be made by the courts.

As my friend Mark Klamberg -- a professor of international law at the University of Stockholm -- points out in this post, the government could refuse to extradite Assange even if the courts approved it.  
Nor is that unusual; I don't know of any states that give the final decision to courts instead of to the executive. 
_____________

Along with the four separate sources I cited in my article, Professor Heller's email makes five legal authorities all saying the same thing: that it is the Swedish Government, not its courts, that is the final-decision-maker in extradition matters.

That means that what David Allen Green wrote in the New Statesman -- "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." -- is 100%, factually false, and merits a correction by the New Statesman.

As Professor Heller notes, one of those five sources supporting this conclusion continues to be Mark Klamberg, who, when writing about the Assange extradition controversy, wrote: "Even if the supreme court has found that there are no obstacles, the government can refuse extradition." Klamberg also wrote: "in other words, even if the prosecutor-general and the supreme court finds that all conditions for extradition are fulfilled the government may veto such extradition."

Unless and until Mark Klamberg repudiates his own words, then he -- along with the other four sources I cited -- all prove Green was fundamentally wrong. Indeed, after spending all day yesterday claiming I "distorted" his argument, Klamberg today wrote regarding a different post he cited: "both [Green] and [Greenwald] are right, but also that both are wrong."

The issue I wrote about is a narrow but vital one. It was not about the general issue of whether Sweden can issue a guarantee now (an issue on which -- as I noted -- Klamberg disagrees with me). It was about one issue only: namely, is it the courts that are the final decision-maker on extradition (as Green claimed), or the Swedish government (as all of these legal sources state)?

Klamberg's post could not have been clearer on this question. It is the government, not the courts, that is the final-decision maker. That is the only proposition for which I cited him, and it is exactly what he wrote.

The fact that Klamberg, whose wife is a high-level official in the Swedish government, may be embarrassed or uncomfortable that what he wrote can be used -- and, by me, was used -- to support the Assange argument in this controversy does not change the clarity of what he wrote. I expressly noted that Klamberg was hostile to the pro-Assange argument, but the clarity of his words resolves this dispute conclusively.

If Klamberg wants to say now that it is the Swedish courts rather than the government that is the final decision-maker -- and thus reverse himself and go against the overwhelming weight of authorities who say the opposite -- then he should do so explicitly. Unless and until he does so, his post supports exactly the point I made, and I encourage everyone to compare what I cited him for to what he wrote.


UPDATE: In addition to all the other sources I cited, here is the Swedish government's official website on the process of extradition:
If the Supreme Court finds that there is any legal impediment to extradition, the Government is not allowed to approve the request. The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited.
Can that be any clearer? At this point, only the most wilfully irrational person can deny that Green made a factually false claim when he wrote that "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'."


UPDATE II: In a letter it sent last week to the Organization of American States "on the Situation between Ecuador and the United Kingdom," the Swedish government made clear that it is not its courts that are the final decision-maker on extradition, but the government itself [my emphasis]:
The Extradition Act also includes grounds for refusal of extradition, such as political or military offences and situations in which the person who is extradited is at risk of persecution. If the person sought does not consent to the extradition, the request for extradition is examined by Sweden's Supreme Court before a final decision on extradition is made.
Like all the other above-listed evidence, this is the precise opposite of what David Allen Green told his readers: "any final word on an extradition would (quite properly) be with an independent Swedish court, and not the government giving the purported 'guarantee'." That is why, though it will not be forthcoming, the New Statesman owes its readers a correction on such a key point.

45 comments:

  1. Glen, Heller's quotation from the Congressional Research Service report is deceptively selective, and opens you up once again to the kind of allegations that Klamberg has been laying against you - the paragraph in question begins [emphasis mine]:

    "Extradition is triggered by a request submitted through diplomatic channels. IN THIS COUNTRY, it proceeds through the Departments of Justice and State and may be
    presented to a federal magistrate to order a hearing to determine whether the request
    is in compliance with an applicable treaty, whether it provides sufficient evidence to
    satisfy probable cause to believe that the fugitive committed the identified treaty
    offense(s), and whether other treaty requirements have been met. If the judge or magistrate certifies the fugitive for extradition..."

    The quotation seems therefore to speak only to extradition where the United States is the requested party. I would appreciate it if you or Prof. Heller could substantiate how this "takes exactly the same position as Swedish law".

    ReplyDelete
  2. For the sake of academic thoroughness: the case cited, the reference to the USC, and the article in the CLR are all concerned with situations where the United States are the requested, rather than the requesting, party. The article in the CLR is in fact well worth a read, as it gives a very subtle account of the balance between the power of the executive to deny extradition and the self-executing nature of extradition treaties, ultimately concluding that the former is only exercised in certain cases proscribed by the treaties themselves, and with the evidence of the given case in front of the secretary of state. The key passage follows, and the article can be found at http://www.jstor.org/stable/1120372 :

    "Both the statute and the courts are silent as to direct limits imposed on the Secretary's discretion to refuse to surrender. Usually the treaty obligation
    to extradite is absolute. The extradition statute might be interpreted to grant the Secretary broad discretion to refuse surrender in a case included within our treaty obligation. If so, although extradition treaties are considered self-executing, the extradition statute, re-enacted in 1948, would supersede prior inconsistent treaty provisions, under the rule that treaties and
    statutes are legislation having co-ordinate authority. However, the statute should probably be interpreted to grant the Secretary only the limited discretion to differ from the courts in the matter of treaty interpretation. In fact, the Secretary has always based his refusal to surrender upon a determination that the treaty did not require extradition in that instance. Thus, a formulation of the limits of the Secretary's discretion can be derived indirectly from executive and judicial construction of our treaty undertakings."

    ReplyDelete
    Replies
    1. "However, the statute should probably be interpreted to grant the Secretary only the limited discretion to differ from the courts in the matter of treaty interpretation"

      This is exactly the point I made below

      Delete
  3. Glenn, you'll find some relevant clarifications of what Klamberg probably had in mind here:

    http://palwrange.blogspot.com.au/2012/08/can-julian-assange-be-extradited-from.html

    ReplyDelete
  4. From what I understand the position is that the Swedish Government has a duty under international law to extradite if the criteria in the treaty are met. (The treaty does allow discretion but it only mentions Swedish nationals).

    However I do not think this means that the Swedish Government is bound by it's Supreme Courts decision that there is no legal bar on extradition because the jurisdiction of the Swedish Supreme court is domestic law not international law.

    Hence the Government could decide independently that it did not have to extradite under its treaty with the US. If the US wanted to take issue over this it would be a matter for an international court/arbitration &c to decide whether the treaty had been broken.

    Hence it is for the Swedish Government to decide how to comply with its international treaties not its courts.

    That being said I think any kind of Guarantee in advance of an extradition request would be practically impossible. However no doubt certain assurances could be given during negotiations.

    ReplyDelete
  5. My impression of what seems to be confusing people is, as I interpret your comments and those you quoted, that the court can disallow extradition and then the chain stops right there. At that point, it would seem that it is not a case of the final decision being the government's or not being the government's, as there would in such an instance be no decision to be made at all by the government.

    ReplyDelete
  6. Tom,

    You need to improve your reading skills. I mentioned the U.S. position to make the point that even the U.S. entrusts the final decision to extradite to the executive branch instead of to the judiciary. That's all. How you could read that as a suggestion that U.S. extradition procedure somehow governs Swedish extradition procedure -- an absurd idea -- is beyond me.

    ReplyDelete
    Replies
    1. Kevin - thanks for responding, and (less genuinely) for your concern for my education. I remain, I'm afraid, perplexed by your email. If you're happy to deny (as I would) "that U.S. extradition procedure somehow governs Swedish extradition procedure", and hold that such a link would be "an absurd idea", then what exact point *were* you trying to make by noting that "even the U.S. entrusts the final decision to extradite to the executive branch"?

      If we set aside reading it as an attempt to make a general point about how all international law works (by generalising from a decontextualised account of the US), I can only read your post as an attempt to make a point of comparative law ("which takes exactly the same position as Swedish law") - without giving a corresponding Swedish statute for us to compare the US position to! This strikes me as odd from the point of view of scholarship, but more directly and importantly, it tells us nothing about the very Swedish law which is under contention here, and thus contributes nothing to the debate.

      Delete
    2. TOM - His point was obvious, simple and explicit:

      The process in Sweden -- in which the executive, not the courts, retains final decision-making authority over extradition -- is not unusual.

      As I quoted him saying in my original article: "Nor is that unusual; I don't know of any states that give the final decision to courts instead of to the executive."

      His citing U.S. law was an example of this. There's nothing unusual about Sweden's system in which the government, not courts, retain final decision-making authority. It's par for the course, and he cites U.S. law to show examples of how that is the same arrangement elsewhere.

      It's not complicated.

      And it's just obnoxious and irresponsible to accuse him of taking this quote out of context (or accuse me of doing that) when it's EXPRESSLY noted that he's citing U.S. law.

      Delete
    3. Glen - I think we might be arguing at cross purposes, and I've tried to flesh out my point in my longer response below. I don't think that you're wrong and David Allen Green is right, or vice-versa - I feel (perhaps wrongly) that the concept of decision-making authority over extradition is much more complex than you, Heller or Green give it credit for, and doesn't break down straightforwardly (taking the US model) into one branch of government or another. I still maintain that Heller's email tells us little of use about Swedish law, and it was the claim that it did (and the way in which is was phrased) that I was taking objection to.

      Delete
    4. This is exhausting, but not in the way a first stab at differential calculus can be exhausting, namely, because it is intellectually intimidating. Yes, there are plenty of finer points to occupy endless conversation about the vicissitudes of extradition. In those situations, it is likely discussants will work at cross purposes. But here the focus is precise: Glenn is looking at one discreet component of the legal arguments by Green, Klamberg, Heller, and others. The evidence is squarely and completely in Glenn's favor. That fact has no bearing on how "complex" the matter of authority for extradition might be. It merely determines that one legal aspect of the matter is clear.

      Delete
    5. Dean: I was tempted to ignore your snide post, but thought I'd reply in kind instead - the mathematical concept of a rate of change should not be 'intellectual intimidating' if you're capable of operating a car's accelerator pedal, and 'discreet' is spelt 'discrete' in the context you're attempting to use it in. Please don't condescend - it doesn't suit you. Meanwhile, a more interesting legal debate continues in the comments below.

      Delete
  7. Tom.

    The point was that almost no no countries(if any?) entrusts the power to say: "extradite him goddamn" to the court.

    This final go-ahead power lies with the executive - Hellers example showed that this goes for the US, and the example from the Swedish governments website, shows that this goes for Sweden too.

    "The Government can, however, refuse extradition even if the Supreme Court has not declared against extradition, as the law states that if certain conditions are fulfilled, a person "may" be extradited - not "shall" be extradited"

    If you know of any countries that gives the final power to the judiciary, please do provide details, I'd be rather interested to see which.

    Best,
    Peter

    ReplyDelete
    Replies
    1. Actually, the UK comes pretty close to leaving extradition to the judiciary. For extradition to "category 1" territories (i.e. within the EU), the final decision does in fact rest with the court (see s 21 of the Extradition Act 2003). Of course, you could fairly describe this as a special case because of the European Arrest Warrant scheme.

      However, although with "category 2" territories (the rest of the world) the final decision does rest with the executive, the legislation makes it clear that the executive has very limited discretion. Under the 2003 Act, once a court has decided that the requirements for extradition are met, the Secretary of State "must" order extradition unless one of a very limited number of exceptions (e.g. the possibility of the death penalty being imposed) apply (s 93). So while it would be correct to say that the UK leaves the final decision to the executive for extradition outside of the EU, it would be wrong to interpret that as meaning that the executive has full discretion over the final decision - actually, its discretion is very limited indeed. The 2003 Act makes it very clear that the UK could never itself give a guarantee such as the one which Assange is asking for from Sweden.

      The US position is different. The US case law makes it clear that where the courts conclude that the requirements for extradition are met, the Secretary of State has the final decision and is not obliged to give reasons for this. As one relatively recent court decision puts it, "the Secretary of State has sole discretion to weigh the political and other consequences of extradition and to determine finally whether to extradite the fugitive" (Cheung v US, 213 F.3d 82, 88). But it has been observed elsewhere that it is very rare for the Secretary of State to deny extradition, and that when this has happened it seems invariably to have been because the Secretary disagreed with the court's conclusion on the legality of the extradition, and not for another reason (see the Columbia LR note cited earlier at 1316, and also Lobue v Christopher, 839 F.Supp 65, 69-70).

      The reason, of course, that the Secretary of State is unlikely to depart from the court's view is that to do so would involve a violation of the US's obligations under international law: and so, in practice, such departures seem only to happen when the Secretary disagrees with the court and concludes that the US is not actually obligated under international law to extradite. But the US case law does make it clear that if the Secretary of State declines to extradite, that will be a final decision and not subject to challenge. So the US government can, if it wants, decline to comply with its obligations under international law and take the consequences, if any (most likely of reciprocal non-compliance with treaty obligations from the state which loses out). But that doesn't mean all governments can do that: as I've noted above, the UK legislative framework seems to mean that the UK government can't do this, although in practice we have seen some cases (primarily Gary McKinnon's) where extradition has been very significantly delayed.

      And so, to Sweden. [I'll have to continue this in a second post to comply with the length limit...]

      Delete
    2. And so, to Sweden. The legislation says that the government "may" extradite. And that obviously suggests discretion. Glenn, in a tweet, has fairly asked "Why would Swedish law vest a power in the govt that it is not permitted to use legally? that makes zero sense".

      It does make sense, though, because the legislation is designed to deal with all extraditions (other than those under the European Arrest Warrant or Nordic schemes). Sometimes an extradition treaty will contain a discretionary ground for refusal; sometimes extradition will be negotiated in the absence of a treaty. In those cases, the executive has a discretion and "may" allows them to exercise that. To put it differently, the Swedish legislation sets out the procedural steps which must be followed before the government "may" extradite anyone - but that is entirely compatible with the fact that in some (probably most) cases the government will in fact be obliged to do so as a matter of international law.

      Extradition treaties create a duty to extradite where the conditions set out in them are satisfied (leaving aside any discretionary grounds for refusal which they might contain). So even if the government can use "may" to decline to extradite as a matter of domestic law, it would be in breach of international law if it did so. The government cannot use the fact that its domestic law contains a discretion to somehow superimpose a discretion on a treaty which creates an obligation to extradite. These points are, I think, uncontroversial but are covered by arts 26-27 on the Vienna Convention on the Law of Treaties.

      Now, here is the interesting question, which I haven't yet seen answered. Could the Swedish government simply say that, even if a request came in for an individual which met the criteria set out in an extradition treaty, it was going to deny that request despite its obligation under international law to give effect to the treaty provisions?

      And the answer to that isn't obvious. If you look at the two other countries mentioned above, it's clear that the US could do that as a matter of domestic law (and take the consequences). It also seems clear that the UK couldn't do that - if it did, it would be open to challenge in the domestic courts. It might be that if Sweden did this, the US would be able to challenge that decision in the Swedish courts as a breach of international law; alternatively it might be that the Swedish courts would view it as an executive action which was not liable to judicial review. And I don't know nearly enough Swedish law to answer that point. But regardless of the answer to the question, it's clear that if Sweden (or any other country) declined to fulfil an extradition request which met the requirements of a treaty, it would at least be acting in violation of international law, whatever its domestic law said.

      Delete
    3. Great information in those two comments.

      I've not read all of this but p.286 onwards is interesting - seems UK minister can delay on human rights grounds and it goes back through the court again.

      http://www.homeoffice.gov.uk/publications/police/operational-policing/extradition-review?view=Binary


      It also mentions, but says has never been used, a national security exemption. I guess all countries have something like that but not really relevant here.

      Delete
    4. Dear Peter,
      Two points:
      1) I feel it's misleading to call the (American or Swedish) executive's power in this circumstance a "go-ahead power", as it is not the full positive power to extradite someone, but merely a negative power to veto a decision already made by (and vested in) the judiciary. To borrow your words, the executive doesn't have the power to say "extradite him goddamn" on their own either.

      This distinction is definitely splitting hairs if the question is 'who makes the final decision over extradition' - that is the executive, and if that's how Glen understands Allen Green's 'final word', then Glen is correct. If the question is instead '(under what legal grounds) can the executive exercise its veto? ' - which seems to be the important question in any practical case - then we're back to what I take to be Mark Klamberg's point: that the executive may be the highest power in terms of being where the buck stops in making a decision, but it would still be acting arbitrarily (with regard to international law, but also potentially Swedish law) if it were to veto a Supreme Court decision concerning a country with which Sweden has an extradition treaty. I think this is the important argument (and, fortunately, the far more interesting one), and I'd love to hear more of it.

      2) An example of a country where *the law* appears to give the final power over extradition decisions to the judiciary is Germany. See Gesetz über die internationale Rechtshilfe in Strafsachen (IRG), §29 and passim.

      I emphasize 'the law', however, because in reality things seem far more complicated than that. There is a further authorisation step to put this judgement into action ('Auslieferungsbewilligung') which appears to lie with the Federal Ministry of Justice - but it's unclear (to my eyes) whether they have a veto, because it's unclear how they could take a decision to veto a court-approved extradition that would be grounded in law (outside of the rather limited conditions explicitly set out in §83b IRG). I'd very much appreciate the input of an expert in German constitutional/international law on this point.

      Delete
    5. Interestinglyu if Assange were himself Swedish then the treaty explicity allows for the discretion of either the Swedish or US Executives:

      "There is no obligation upon the requested State to grant the extradition of a person who is a
      national of the requested State, but the executive authority of the requested State shall, subject to
      the appropriate laws of that State, have the power to surrender a national of that State if, in its
      discretion, it be deemed proper to do so."

      Delete
  8. Chalmers: 'Actually, the UK comes pretty close to leaving extradition to the judiciary. For extradition to "category 1" territories (i.e. within the EU), the final decision does in fact rest with the court (see s 21 of the Extradition Act 2003). Of course, you could fairly describe this as a special case because of the European Arrest Warrant scheme.'

    I know this is prior to 2003, but Jack Straw used his executive powers to override a decision of our Supreme Court (Law Lords as then).

    http://news.bbc.co.uk/1/hi/special_report/1998/10/98/the_pinochet_file/232499.stm

    More recently, the executive allowed a fugitive from justice escape the UK despite an arrest warrant being issued for him.

    http://news.bbc.co.uk/1/hi/uk/7251954.stm

    Another suspected war criminal was given immunity by the executive to prevent this happening again.

    http://www.guardian.co.uk/world/2011/oct/06/tzipi-livni-war-crime-arrest-threat

    ReplyDelete
    Replies
    1. This comment has been removed by the author.

      Delete
    2. Without wanting to answer for James Chalmers (whose two posts above make many of the points I have wanted to make in this discussion with infinitely greater eloquence and erudition) - I think the relevance of the three cases you raise to the issue at hand can be fairly straightforwardly set aside: Pinochet's extradition was vetoed by Jack Straw under the 'general discretion' afforded to the Secretary of State by s. 12 of the Extradition Act 1989, which was repealed in whole by the 2003 Act; and the two Israeli cases were not to do with extradition, but rather were prosecutions for war crimes in a British court claiming universal jurisdiction.

      (previous post deleted and reposted due to atrocious typos!)

      Delete
  9. The two Israeli cases were examples of how the British state can let those it considers friends avoid arrest and prosecution.

    I gave the Pinochet case as an example of how our government did and other governments continue to exercise their powers of discretion. If a Pinochet were to be arrested today, I'm sure government lawyers would reinterpret the statute to revive such a power.

    ReplyDelete
  10. Just to pick up on some of the comments immediately above, if I may:

    @Matthew: Thanks! And yes, national security is another potential reason for the Secretary of State to refuse extradition from the UK (ss 93(4)(c) and 208 of the Extradition Act 2003). The human rights issue is more complicated, because the 2003 Act does not on its face contain a general “human rights” ground for the Secretary of State to refuse extradition on: a human rights claim should be determined by the judiciary and not the executive. However, it has been accepted in practice that (a) the circumstances might change between the judicial decision and the executive decision and (b) if they do change, and as a result extradition would be incompatible with human rights, the Secretary of State cannot order extradition. This is because of the general rule that the Secretary of State cannot act in a way which is incompatible with the European Convention on Human Rights (Human Rights Act 1998 s 6).

    @Giles Bradshaw: Yes, the US-Sweden treaty does provide for a discretion for either the US or Sweden to refuse to extradite their own nationals. However, Swedish domestic law prohibits Sweden from extraditing its own nationals (s 2 of the Extradition for Criminal Offences Act 1957). This is the converse of the situation we’re discussing, because the treaty provides for discretion but domestic law demands that this discretion always be exercised in a particular way. It’s another example of why you can only get a complete picture of the rules regarding extradition by reading the domestic statute and the relevant treaty together; relying on one alone can mislead.

    @Ilkley Chess: I’m certainly not going to defend the non-extradition of Pinochet, but as Tom observes it tells us nothing about current UK law. One of the clear purposes of the 2003 Act was to minimise the role of the executive in extradition. There is no way in which the 2003 Act could be interpreted to restore the “general discretion” of the Secretary of State: that has gone. But would the Home Office bend over backwards to help someone it considered a “friend” of Britain? Probably, yes, but it would have far less flexibility now than it did at the time of the Pinochet case. It should be said that Jack Straw did not in any way “override” the decision of the House of Lords in 2000. Under the law at the time, all that court decided was that Pinochet *could* be extradited, while explicitly saying that the Secretary of State (Jack Straw) had to decide whether or not to proceed.

    @Tom: Thanks also. I agree about the risk of hair-splitting here. I do have some sympathy for Glenn Greenwald’s position, because so much of what was written about this early on (by Klamberg and others) did indeed read as if it claimed that the Swedish government had a discretion here. But there’s an important distinction to be made between decision-making power and discretion, which has often been lost. The fact that X (whether a government or otherwise) has the responsibility for deciding a particular issue does not necessarily mean they always have a choice in the decision which they reach.

    ReplyDelete
    Replies
    1. @james - Thanks for that. Looking and a converse situation it is of course perfectly possible that Swedish law allows extradition in a situation where the treaty does not require it. In such a situation the court might well rule that the extradition can go ahead under Swedish law but the executive could then decide if it wanted to or not.

      If it chose not to then whether or not it had the right to would be an issue of international law for an international court. It is of course perfectly entitled to extradite even when no treaty requires it as long as it is legal under Swedish law.

      You are right about decision verses discretion. For example the decision on whether to throw a brick through that jewellers window is mine but whether legally I have the discretion not to is highly dubious!

      My point though is that it is not for the guy standing next to me to make a legal ruling on whether I've the right to. It's for the magistrates court tomorrow morning if I do.

      Surely a Swedish court's ruling that extradition CAN take place (under Swedish law) is not also a ruling that it HAS to under international law?

      That decision is down to the executive and it's legality would be a matter for another court.

      Delete
    2. @Giles - Well, if (a) Sweden has signed a treaty with the US saying that it *shall* extradite if certain conditions are satisifed and (b) the court rules that those treaty conditions are satisfied, then that looks like a decision that Sweden has to extradite, functionally if not formally. So perhaps that means both sides of this debate are right. Or wrong. I'm not sure it matters that much, actually.

      In principle, if the Swedish government wanted not to extradite in such circumstances, it could respond by saying (a) "actually, we disagree with the court on the question of law" or (b) "we are not going to follow our obligations under international law". (I do not know whether either of those responses could themselves be subject to challenge in the Swedish domestic courts.)

      So, to go back to the question that prompted this debate: could Sweden guarantee not to extradite Julian Assange to the US? I think not: clearly Sweden cannot preemptively offer response (a) in respect of a hypothetical request which it has never seen and may never be made, and I don't see how it could be expected to offer response (b).

      Delete
    3. @james "the court rules that those treaty conditions are satisfied"

      Is that what the court is actually ruling on though? Or is it ruling that under Swedish law the person MAY be extradited?

      As far as I know there is no Swedish law which lays down conditions under which a person MUST be extradited and don't forget that whether the treaty conditions are met or not is not relevant to the question of whether he can be extradited. It would be perfectly legal for the government to extradite him even if the treaty conditions were not met providing Swedish law allowed it. Just as is the case where there is no treaty.

      There is a treaty with the USA under which the person MUST be extradited but that treaty does not form part of Swedish law.

      The Swedish court may SAY that the treaty conditions are met but it can only RULE that they are met if it is a court of international law.

      Just as my friend on our drunken night out can INFORM me that chucking a brick through that window would be a crime - but only the magistrate the next morning can RULE that it is.

      Please forgive my caps not meaning to be rude or shouty just for emphasis. The matter of jurisdiction is important imo.

      However I completely agree with you that the Swedish Government could give no binding guarantee over a hypothetical future request. No more than a court could.

      Whether it should give non binding assurances is a completely different and entirely political matter. I'd suggest there are a lot of sensible arguments against it doing so.

      Delete
    4. James - thanks again for your contributions. In exploring whether the executive have any discretion worth of the name, I thought I'd pick up on your point as to whether any actions of the Swedish executive which was clearly in breach of obligations under international law "could themselves be subject to challenge in the Swedish domestic courts". From what I can tell, Swedish law has a well developed principle of judicial review enshrined in the constitution (RF 11 § 14) since the late 1970s, and recently strengthened . The constitution also enshrines the supremacy of the ECHR (RF 2 § 19) in much the same way as s.3 of the UK's Human Rights Act 1998, providing both legal and actual precedent that there exists a remedy in Sweden's (domestic) courts for breach of an ('international') Convention right. The crux of the issue then is whether such a domestic remedy (and hence, a meaningful 'judicial supremacy' in extraditions) would also be available in the case of the breach of an extradition treaty which is international law. I do not know how this typically works in contemporary international law (I'm rather hotter on the 14th century), and am unfamiliar with the (as it were) conventions surrounding the Vienna Convention.

      I am however struck by the mention in 10 § 9 of the Swedish constitution that it is possible that "an international agreement shall have validity as Swedish law". I would be interested as to what international agreements may be read in such a way, as that would appear to offer a clear domestic legal remedy to - in our case of an extradition treaty - the government exercising a veto contrary to the treaty.

      Delete
    5. @tom - excellent post - that to me is the crux of the matter. It might be interesting to dig out other rulings on extradition by the supreme court?

      Delete
    6. @Giles: in substance and in practice yes, I think it would be fair to say that the court is deciding whether the treaty condition is satisfied: the 1957 Act is designed to implement Sweden's treaty obligations in domestic law. But you can read more on the procedure in the post Mark Klamberg has just written, which he has posted a link to below.

      @Tom: these are questions which I can't really answer. The extent to which states have a discretion (under domestic law) to refuse extradition requests after positive decisions by their own courts is a somewhat obscure and undeveloped point, mainly because states don't go around breaking their treaty obligations. In the US, we know that the Secretary of State has a complete and unreviewable discretion - but only because the courts keep telling us this in cases dealing with other points, not because the issue has itself been properly litigated. In the UK, we know that the Secretary of State has very little discretion - but only because we have passed an incredibly detailed and somewhat tortuous extradition statute which sets all this out in minute detail.

      In other countries, the matter is likely often to be doubtful simply because states adhere to their treaty obligations and it doesn't actually arise in practice: see e.g. page 10 of the discussion of German domestic law at this link.

      So, while I haven't entered the intemperate debate above, Kevin Jon Heller is right to cite the US as an example of a state which leaves the final decision to the executive, and the Congressional Research Service report is valid evidence for this. But it would be wrong to conclude that what the CRS report says about the scope of the Secretary of State's discretion in reaching a final decision, as a matter of US domestic law, is true elsewhere. And we are not going to find out from the Assange case what the answer is in Sweden, because Sweden is not going to breach its obligations under international law.

      Delete
    7. This comment has been removed by the author.

      Delete
    8. @james - in that case the Swedish court is sitting as a court of international law which surprises me but it may be true.

      The only alternative is to say that under all conceivable circumstances if an extradition may be made under Swedish law it must be made under its treaties. I can't really see how anyone could say that for sure nor how a court could rule that.

      " the 1957 Act is designed to implement Sweden's treaty obligations in domestic law." I don;t think that is correct, the law also covers situation where there are no treaty obligations - indeed ones where there is no treaty.

      Delete
    9. @Giles: There's nothing unusual or surprising about a domestic court applying a rule of international law which has been incorporated into domestic law.

      Delete
    10. @james absolutely. Therefore the substantive question is - has the treaty been incorporated into domestic law. If it has then the supreme court would be perfectly within its domestic jurisdiction to rule that the extradition must take place.

      Delete
  11. Interesting article on the validity of assange's extradition to Sweden http://www.cjicl.org.uk/index.php?option=com_easyblog&view=entry&id=22&Itemid=102

    ReplyDelete
  12. Of course the 2003 act only seems to apply to EAW countries. In the case of Gary McKinnon's extradition to the US, the final say is with the Home Secretary and is subject to judicial review.

    ReplyDelete
    Replies
    1. No, that's wrong: see the first two paragraphs of my initial post (timed 26 Aug 6.56am). The 2003 Act applies to all extraditions from the UK.

      The final decision in the McKinnon case is with the Home Secretary but she has does not have a discretion as to whether or not he is extradited. Instead, there are very limited grounds on which she could (and if they were made out, would probably have to) decline to surrender McKinnon. The case seems to turn on whether surrender would violate his human rights based on new material presented to the Home Secretary after the case was dealt with by the courts (see the 2nd para of my post timed 26 Aug 12.14pm).

      Delete
    2. 'The final decision in the McKinnon case is with the Home Secretary'

      I see.

      'Instead, there are very limited grounds on which she could (and if they were made out, would probably have to) decline to surrender McKinnon. '

      Limited, but not non-existent.

      'The case seems to turn on whether surrender would violate his human rights based on new material presented to the Home Secretary after the case was dealt with by the courts.'

      Which is uncannily like the situation with Pinochet and Straw.

      In short, after the courts have dealt with a case, the executive can still stop the extradition.


      Delete
    3. I did, I think, say all of that in my very first post.

      Delete
  13. I have written a response on my blog in response to Glenn Greenwald's entry on the Guardian website.

    ReplyDelete
    Replies
    1. That's really helpful, especially the reference to SOU 2011:71. That should settle the issue, but I have a feeling I might be over-optimistic in thinking that!

      Delete
    2. Hi Mark - could I ask you what the jurisdiction of the Swedish Supreme court is and on what law it is ruling. Is it ruling on Swedish domestic law based on the extradition Act or is it making a ruling on the extradition treaty?

      It seems to me that the Act stipulates when extradition MAY take place and the treaty stipulates when it MUST take place.

      It seems the assumption is being made that if under domestic law it MAY take place then under the treaty it MUST.

      Is it not the case that any discretion (under domestic and international law combined) open to the Swedish government exists over the cases where they may extradite under domestic law but do not have to under treaty obligations.

      Delete
    3. Giles,
      I have a preliminary view on the matter but I need to check it. Need to work on other stuff for a couple of days and will answer on my blog where you have posted the same question.

      Delete
  14. This comment has been removed by the author.

    ReplyDelete
  15. Glenn: I'm well aware that I'm starting to sound like a stuck record, but I'm not sure that Update II tells us anything. While the letter from the Swedish Government to the OAS confirms that, after examination by the Supreme Court, "a final decision on extradition is made", it doesn't actually tell us who that final decision is made by. (To take a really obvious example from US domestic law, NFIB v. Sebelius was examined by the Supreme Court, then a final decision was made - of course - by the US Supreme Court).

    I'm willing to accept opprobrium if people think that the conclusion you take from the letter is utterly obvious, but I feel it's more likely that the Swedish government are being *deliberately* vague in what they're saying, and not unnecessarily closing off any potential options that they might want to use in the future. Being diplomatic, in other words.

    ReplyDelete
    Replies
    1. In fact, if you want to read anything into the OAS letter at all, I'd be more worried that their response commits the Swedish government to the position that they definitely *would* extradite Assange if the US criminal case met the conditions in the US-Sweden treaty.

      "In the hypothetical event of an extradition request being received, all the legal guarantees under Swedish law and ***Swedish obligations under international law will be respected fully***." (emphasis mine)

      They are obligated to observe the treaty under international law through the VCLT, and the treaty contains no possibility for an executive veto.

      Delete