SCOTTISH PERSPECTIVE
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Only exceptionally has the arcane and obscure process of extradition made it to the front pages. This exceptionalism interestingly and perhaps worryingly appears to be becoming routine. In recent times only the case of the former President of Chile, Augusto Pinochet, has gained such stature. In contrast, three cases are presently hitting the headlines. Wikileaks founder Julian Assange, Catalonian nationalist Clara Ponsati and Huawei CFO Meng Wanzhou are currently the subject of extradition proceedings. Such are the circumstances of their cases that they have come to transcend academic journals and find a place in public and political consciousness. Two questions arise from this fact – why has it happened and should we be concerned?
Extradition is a centuries-old practice whereby accused and convicted persons are transferred from one country to another. Generally governing the process are bilateral treaties. These are quite common because most countries are eager to engage in the process. Naturally they want to apprehend persons abroad who have committed crimes against their law. Further, countries do not want to become safe-havens where criminals could congregate in the knowledge that they are immune from extradition and prosecution. The essence of extradition is its reciprocal and co-operative nature.
Contrasting with the co-operative function of extradition is its protective purpose. This has led to countries balking in the face of certain requests. Historically, the most well-known ground for refusal arose in the face of political offences. The rationale here was that countries should avoid involvement in foreign disputes and therefore not return political dissidents to authorities abroad. Enlightenment notions of democracy and the freedom of expression supported this sentiment. Notably, in recent years this ground of refusal has been curtailed as part of the fight against terrorism.
Over the years the protective facet of extradition has widened to encompass ill-health and human rights. Both can substantiate the refusal of an extradition request. In the UK, for example, there is a long-standing prohibition on extraditing individuals to face the death penalty. The ‘death-row phenomenon’ in the United States, where convicted persons can spend decades waiting to be executed, was a factor in this development.
The conflict between the co-operative and protective features of extradition explain in general terms how the law works. It does not shed particular light on why the subject has found itself on the front pages. The answer to that is found in the scale and ease of international travel, the ability to commit crimes remotely, apparent attempts to re-politicise the process and the determination of some countries, especially the US, to extend its law extraterritorially.
The sheer volume of international travel is now taken for granted. A connection in Heathrow or Schiphol provides a reminder of the numbers of people, including suspected criminals, who travel abroad. Even more important, though, has been the emergence of a novel form of criminality where a crime can be committed in almost any country in the world from the comfort of one’s home. Indeed, in Assange’s case he needn’t have stepped foot in the US to have committed his alleged crimes. Hacking, fraud, stock-market manipulation and indeed espionage can all be committed remotely.
Further exacerbating the conflicts within extradition are apparent attempts by some countries to re-politicise the process and, at the same time, to stridently apply their law on an extraterritorial basis. Here, at its extreme, extradition can be conceived as a tool of legal imperialism. The process is employed in an attempt to impose a state’s understanding of what is appropriately criminal.
The central issue in Assange’s, Ponsati’s and Meng’s cases is what is appropriately criminal. Is the dissemination of classified information that may expose ill-treatment and other nefarious activities by one country in another, even if that may also entail a risk to those in some way involved in that activity? Is the participation in an independence referendum not sanctioned by the federal authorities where it takes place? Is alleged trading with a concern based in Iran, which whilst lawful under the domicile of one’s employer is in violation of a third state’s sanctions?
Extradition law attempts to ascertain what is appropriately criminal through the principle of double criminality. Under it an individual will only be extradited if the act in question is also unlawful under the requested country’s law. In Assange’s case, for example, a question for the court in London will be whether the computer misuse and espionage charges he faces in the US would amount to a crime in English law in converse circumstances. This point, of course, only goes so far because the fact that an act is criminal in both countries does not mean it is legitimately subject to punishment.
The fate of Assange, Ponsati and Meng is uncertain. Courts in London, Edinburgh and Vancouver will consider the US and Spanish requests according to the applicable law. If extradited all three face the prospect of lengthy periods of imprisonment. The question of whether these cases are something that should give rise to wider concern is moot. On the one hand the freedom of expression, selfdetermination and human rights are central tenets of liberal democracy and must be protected. On the other transnational criminality can threaten those very values and to that extent at least it must be addressed.
The considerable challenge facing the law is to find the appropriate balance between these two conflicting aims.
Dr Paul Arnell, Reader in Law, Robert Gordon University Aberdeen
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