Implications of the Extradition of Julian Assange in Treaty Interpretation Under International Law
Julian Assange, Australian native, and controversial founder of Wikileaks, is making a last-ditch effort to avoid extradition to the U.S. on espionage charges by claiming that the extradition is politically motivated.[1] Under the 2003 U.S.-U.K. extradition treaty, the obligation to extradite is suspended “if the offense for which extradition is requested constitutes a political offense.”[2] The U.S.’s 2018 indictment against Assange lists 18 charges of violating 18 U.S.C § 371, 103O(a)(l), 103O(a)(2), & 103O(c)(2)(B)(ii)), also known as the Espionage Act, in response to Assange’s publishing of thousands of classified documents from the Iraq and Afghanistan wars.[3] Attorneys representing the U.S. government claim that Assange’s national security breach put thousands of American lives at risk and therefore his extradition would be just, while Assange’s lawyers paint a drastically different picture of a man who is being criminally punished for his political views.[4]
Assange considers the publication of classified U.S. military documents to be “scientific journalism,” a radical method of journalism where the public is provided access to unaltered primary sources. This process eliminates the journalistic interpretation that accompanies fact-sharing and storytelling in mainstream media sources, such as newspaper articles and televised reporting programs.[5] The U.S. government claims Assange’s behavior went beyond journalism, and “created a grave and imminent risk” to members of the U.S. military that rose to the level of espionage and is punishable with criminal charges.[6]
In both the U.S. and U.K., extradition is governed primarily, though not exclusively through treaties.[7] In 2003, the two states signed a bilateral agreement governing extradition which included a political offense exception clause, as is customary in extradition treaties.[8] Art. 4(3) of the 2003 U.S.-U.K. Extradition Treaty states that “notwithstanding the terms of paragraph 2, extradition shall not be granted if the competent authority of the Requested State determines that the request is politically motivated.”[9]
There is no universally adopted definition of a general “political offense,” but U.S. case law has distinguished between “pure” political offenses, which target the government directly and do not violate individuals’ private rights, and “relative” political offenses, which are common crimes that are committed with a political motivation.[10] Pure political crimes are limited in scope and are usually limited to crimes of treason, sedition, and espionage.[11] U.S. courts have largely held that offenders of pure political crimes are not subject to extradition.[12]
Assange’s legal team has correctly argued that the charges against Assange are politically motivated, and he, therefore, falls into the exception to the obligation to extradite carved out in Art. 4 of the Extradition Treaty of the U.K.[13] Assange’s actions fit within the description of a “pure political crime.” By leaking diplomatic cables and military files, Assange targeted the U.S. government as an entity directly, rather than committing a common crime that is politically motivated and incidentally harms citizens in the carrying out of the action. Espionage has been classified as a pure political offense by both U.S. and U.K. courts, therefore this factor should weigh heavily in favor of rejecting the U.S.’s request for Assange’s extradition on espionage charges.[14] The naming of individuals involved with the military operations leaked by Wikileaks makes the situation less clear-cut, but should not be considered to “impact citizens’ private rights” because there is no evidence that the harm proposed by the U.S. ensued following the unredacted intelligence publication.[15]
If the U.K. chooses to comply with the U.S.’s extradition request, it will set a dangerous precedent in international law that allows for extradition for pure political offenses, despite contractual obligations to refrain from doing so that has become customary in treaties.[16] The lack of a set definition of a “political offense” allows fact-finders great deference, and allowing the U.S. interpretation to prevail will set a dangerous precedent in international law that will allow journalists all over the world to be extradited, likely to have a chilling effect on reporting of governmental affairs. Failing to Interpret the 2003 U.K.-U.S. Extradition Treaty according to its plain language will also have major implications for the U.S.’s ability to enter foreign relations, as such an action will send a signal to other sovereigns that the U.S. cannot be relied upon to honor its treaty commitments. Because espionage has historically been considered a non-extricable offense, the U.K. should not disturb this precedent by extraditing Assange to the U.S. in response to his publication of classified military and diplomatic intelligence on Wikileaks.[17]
Olivia Miles is a staff member of Fordham International Law Journal Volume XLVII.
[1]Lauren Said-Moorhouse et. al., Julian Assange Makes Last-Ditch Attempt in U.K. Court to Avoid Extradition to U.S., CNN (Feb. 20, 2024), https://www.cnn.com/2024/02/20/uk/julian-assange-extradition-appeal-ruling-review-intl-gbr/index.html.
[2]Id.; Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, U.K-U.S. (Oct. 3, 2003), https://www.congress.gov/treaty-document/108th-congress/23/document-text?overview=closed.
[3]Michael Ray, Julian Assange, Britannica (Feb. 27, 2024), https://www.britannica.com/biography/Julian-Assange; Indictment In re United States of America v. Julian Assange, E.D.Va.Adm.R.3, Crim No. 1:18cr, (Mar. 6, 2018) https://www.justice.gov/opa/press-release/file/1153486/download.
[4]See Said-Moorhouse, supra note 1.
[5]https://ips-dc.org/telling_the_story_of_wikileaks/ [finish this cite, this is just a link]
[6] See supra note 1.
[7]See generally, Customary International Law- Extradition- Eleventh Circuit Holds that “Rule of Specialty” Applies Only When Provided by Treaty- United States v. Valencia-Trujillo, 573 F3d 1171 (11th Cir. 2009), 123 Harv L. Rev. 572 (2009) (discussing various U.S. District Court Cases ordering extradition under treaties and in the absence of a treaty).
[8]Indictment In re United States of America v. Julian Assange, supra note 3; Charles L. Cantrell, The Political Offense Exemption in International Extradition: A Comparison of the United States, Great Britain, and the Republic of Ireland, 60 Marq. L. Rev. 777, 783 (1977).
[9] Indictment In re United States of America v. Julian Assange, supra note 3.
[10] Curtis A. Bradley, Extradition and Other Means of Criminal Law Enforcement, International Law in the U.S. Legal System (2nd. ed. 2015),
https://opil-ouplaw-com.fls.idm.oclc.org/display/10.1093/acprof:oso/9780190217761.001.0001/acprof-9780190217761-chapter-9.
[11] See Cantrell, supra note 8.
[12] Id.
[13]See Said-Moorhouse, supra note 1.
[14] See Cantell, supra note 8.
[15] Sam Tobin, Assange Wanted for ‘Indiscriminately’ Publishing Sources’ Names U.S. Lawyers Say, Reuters (Feb. 21, 2024), https://www.reuters.com/world/uk/assange-charged-indiscriminately-publishing-sources-names-us-lawyers-say-2024-02-21/.
[16] See Cantrell, supra note 8.
[17] Id. at 778-82; Said-Moorhouse, supra note 1.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.