Julian Assange extradition: six myths debunked

Aug 23, 2012
Louisa Loveluck

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.

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6. As the case of Alexander Barankov has become under greater scrutiny, Ecuador is signalling that he might no be extradited. The irony with Alexander Barankov case is that he was offer asylum by Ecuador before he was arrested and jailed on an extradition from Minsk, Belarus.

Didn't president George W Bush refer to 'goddam bits of paper' when referring to International Law and National Constitutions? Did he not advise Tony Blair to 'find another lawyer', one who would give the OK to certain actions, i.e. an attack on Iraq?
What are all of these opinions worth when power politics are in play? If Assange were to end up in Guantanamo, or some equally obnoxious place in secret locations around the world, what would the press then be saying. Very little, is my guess.

Your article starts out with information that is incorrect and you definitely lost my attention after that. If the "victim" claims she was asleep thus constituting "rape" it amounts to a "she said, he said" case, which will have very little weight in a court of law. But of course I mustn't forget that there are so many "journalists" who also fancy themselves as judge and jury. Maybe just stick to the actual facts, people?

Is it true that the accuser was in bed with the accused and that they had had intercourse once in the same bed and just hours before the second time when the accuser was asleep? If it is so then these judges and their supporters must be living in another world where things are perceived in a different way than an overwhelming majority does

Certainly in my experience, English juries are prepared to convict in rape cases where the issue is consent, and it would seem the Swedish courts are too.

Why not leave the issue up to the court in Sweden?

If she was asleep though, it would be rape. Would you agree on that?

Yes, because criminal culpability is something we vote on, like X Factor...

"neither Sweden nor the UK will extradite anyone to a country where the
accused is in peril of the death sentence if convicted".
Oh, REALLY!!!! - - and after that mouthful of hog's piss we must believe neither country has ever "renditioned" anyone when the us of a said 'bend over, I've got an itch'.

And in which country (including Sweden) do investigators not travel to suspects to interview ?. In time honored fashion they jump in cars or on planes and travel the world often fruitlessly.

The issue about rape is not the point. It is the likely extradition to the USA and the monstrous justice system there which allows waterboarding, prison without trial etc.
A number of British subjects have wound at Guantanamo a hell hole by any analysis.

They made love before. The thing is she says she fell asleep and he continued without using contraceptives.

From what I understood from the media, she invited him to Sweden, they met and made love at night, she fell asleep, he made love to her and did not use any contraceptives. She woke up and she was very angry. It was not reported if he did use them before or not during the consensual sex. Not using contraceptives against the will of a partner is a crime in Sweden, but not in most of the countries. It is not certain that Assange committed the crime under the UK law, but almost certain that he did under the Swedish law..With the other accuser it goes only about contraceptives. Weren't the contraceptives immoral according to the religious right?

I really was hoping for some clarity from David Allen Green's article – it failed to deliver, just like yours Louisa, seeming to dwell on, understanding of black & white due process, with opinionated punctuation, ignoring the hugely important nuances of this particular case.

I don't know Julian Assange. I’m certainly not an apologist for him and I don't know if I'd like the bloke that much either. I'm unsure of whether it was courage, or ego that motivated him to whistle blow on the US. Either way, he put his neck on the line to expose and embarrass the biggest and most powerful nation on earth for being less than forthright, or honest.

Like a lot of people, I am cognizant that the USA
increasingly seems to be able to do what it likes, regardless of international law and convention. I, like so many Europeans, had rather hoped that Obama would be so much more of a common sense, pragmatic and even-handed leader than he seems to have become. The US appear to be morphing into the kind of authority that it professes to be ‘at war’ with.

The most disappointing aspect of this is the apparent willingness of our country’s government, alongside fawning corporate stenographers like Ms. Loveluck, to either ignore, or be complicit in its wayward and escalating disregard for human rights.

So, with regard to the case in point; I'm unsure about the allegations coming from two women who, whilst previously unknown to each other, somehow were allowed to get together in Marianne Ny's offices, to corroborate an allegation of sexual abuse, (or rape, dependent upon which news media you digest), followed by the confusion as to whether one of them actually wants to continue to press charges.

Then, there's the rather gushing tweet that one of the women sent, saying that she was with "the worlds coolest, smartest people, it's amazing!" This was at the party she threw for Assange after the alleged assault. The waters are indeed muddy, to say the least.

Mr. Assange, as far as I can make out, could have legally been questioned by the Swedish law courts via video link, whilst in the UK – It appears that the Swedish prosecutors objected to this process for reasons that are anything but transparent.

Moreover, I'm confounded as to why the UK Government would countenance causing a diplomatic storm, and threaten to invoke an act of parliament contrary to the Vienna Convention, a ridiculous intimidation from which William Hague was forced to back-peddle. Then there is the ongoing cost of surveillance, over a mere bail skipper who is required in Sweden to answer local, albeit serious, allegations. The intimation being that there is possibly much more at stake for the UK than is immediately obvious.

I'm not one for conspiracy theories, or ‘zombie facts’, but, in the absence of any reportage uncluttered by opinion, I do sense the probability of a rather larger agenda here. Those who can’t recognise this are surely being more than just a little disingenuous, preferring to take the rather lazy view that Assange is ‘on the run’, therefore, he’s guilty of something.

Just because their argument is based upon putting the bigger picture into the ‘just too difficult’ box, certainly doesn’t make their case any more valid, or plausible than those who blindly support Assange, without question.

But that's because he's not a member of the power elite. None of them ever goes to jail, or even stands trial.