Julian Assange extradition: six myths debunked
What is rape - and what will happen if Assange is deported? We lead you through the legal maze
THE DEBATE about Julian Assange's extradition to Sweden, and Ecuador's offer of asylum, is mired in confusion, with supporters and critics pursuing arguments that sometimes prove baseless. Here The Week seeks to debunk six myths surrounding the case.
1. Assange's alleged sex assaults would not be deemed illegal under British law - WRONG
Assange's legal team argued this point at both the magistrates' court and the High Court. It was rebuffed by the judges, who ruled: "What is alleged here is that Mr Assange 'deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state'. In this country that would amount to rape".
2. Not all 'rape' is rape - WRONG
Prominent supporters including Tony Benn and George Galloway have insisted that Assange's alleged 'non-consensual sex' is "very different from rape". There is no foundation for this claim in British law which clearly defines all intercourse that takes place "without reasonable belief of consent" as rape. As the High Court ruled in Assange's case, "It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did." Swedish law includes three different legal gradations of rape, including ‘unlawful coercion’ - which is what Assange would stand accused of, if charged – but all still count as rape. ‘Unlawful coercion’ carries a four-year jail sentence.
3. Assange's alleged crime can't be that serious if he hasn't been charged with anything - WRONG
This claim rests on the assumption that the Swedish justice system operates along the same lines as its British counterpart, where charges are brought much earlier in the process. Barrister Anya Palmer explains that in Swedish proceedings, formal indictment takes place at a very late stage and that the law governing Sweden's extradition request takes this into account. "There is no doubt that the European Arrest Warrant did contain [an informal indictment]," says Palmer. "Assange sought to argue, first in the magistrates' court, then in the High Court, that [this was] not enough. He lost that argument." Unless he can provide compelling new evidence, then Assange would likely be charged immediately after the interview the Swedes are seeking.
4. Sweden will simply extradite Assange to the US - WRONG
It would actually be difficult to extradite Assange from Sweden to the United States. Francis FitzGibbons QC cites two factors. First, such a move would require the dual consent of Sweden and the UK, thanks to Article 28 of the 2002 EU Council Framework Decision, which binds the Swedish government until criminal proceeding are completed. Only after such proceedings end can the Swedes extradite him without reference to Britain. However – FitzGibbons's second point - "neither Sweden nor the UK will extradite anyone to a country where the accused is in peril of the death sentence if convicted".
5. Sweden could guarantee that they will not deport Assange - WRONG
This is legally impossible, according to the New Statesman’s legal correspondent David Allen Green, who says Sweden cannot "give any guarantee about a future extradition, and nor would it have any binding effect on the Swedish legal system in the event of a future extradition request". He says international law stipulates that each fresh extradition request must be dealt with on its own merits; the final word would then lie with an independent Swedish court, removing the government from having any say in the matter. AUTHOR’S UPDATE: This point is disputed by Stockholm law professor Mark Klamberg, who says the Swedish government does technically hold the power to overrule a Supreme Court decision to extradite.
6. Ecuador's offer of asylum guarantees Assange's safety - WRONG
Ecuador's human rights record is far from spotless. Despite President Rafael Correa's promise that his country "will not go back on [its] position", the country's blogging community says otherwise. As the Assange saga drags on, Ecuador is quietly preparing to extradite a blogger to whom it offered asylum in 2008. After the Belarus PM visited Ecuador for trade talks, Alexander Barankov was arrested and now faces extradition to Belarus where he is wanted for charges of 'fraud' following posts he made about corruption in the former Soviet state.