What is the traditional framework of Extradition Within Common law?

Introduction
Extradition is the response of State to the international mobility of offenders or to be exact, the international mobility of suspected criminals and convicted offenders. Where an accused is wanted for trail in other State, then his surrender to that State should be under the system of extradition laws. Extradition arrangements between States, either on a bilateral or multilateral basis, provide a means, the normatively preferred means, by which an accused person can be transferred to face prosecution. The extradition process under these international arrangements is carried out in the domestic courts and tribunals of the requested State, either because the treaty is self-executing under that State’s law or the State has passed implementing legislation. It is this interplay of international processes effected through domestic courts, processes which incorporate guarantees of rights for the accused, that makes it possible to talk of an international law of extradition, even though it is part of domestic legal systems. On the other hand ‘Extradition’ is the official process whereby one nation or state surrenders a convicted offender to another nation or state. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdiction, the concept may be know more generally as ‘rendition’. The first official use of the term ‘extradition’ appears to have been in a French ‘’decret-loi’’ of 19 February 1791,from which the term was imported into the English Language. Fugitive offenders ought to be returned by extradition and the practice has a long history which has been extensively researched. Writers agree that the first treaty dealing with extradition was concluded in 1280 BC by Rameses ii of Egypt and the Hittite prince Hattushilish iii.This treaty applied to the surrender of ‘great men’, which has been taken to refer to political offenders and not common criminals; Extradition can be defined as a process whereby states provide to each other assistance in criminal matters. To achieve this international co-operation some from of arrangement, whether formal or informal, whether general or ‘ad hoc’, is necessary between the states involved.Regardless, some level of agreement must have been reached between two State acknowledging that a fugitive might be surrendered given that certain prerequisites are met.
1.1The Function to Extradite

Whether international law imposed a duty on State to extradite common offenders was once a very controversial issue. The founders of international law did not dispute the efficacy of the practice of extradition but differed as to whether a legal or merely a moral obligation to surrender criminals existed. Grotius took the former view and held that the State of refuge should either punish the criminal itself or hand him back to the State seeking his return; according to Grotius, therefore, the strict legal basis was not so much a duty to deliver up the fugitive criminal as a disjunctive duty to punish, either by prosecuting in the asylum State or by surrenders him to be tried in the State where the crime was committed.On the other hand, respectable proponents of the opposing viewpoint were not lacking. Pufendorf regarded extradition as a matter of imperfect obligation only, which was required to be confirmed and regulated by special compact in order to secure the force of international law.The practice of States has overwhelmingly reflected the latter point of view. After some different judicial opinions, the Supreme Court of the United States definitely laid down in 1840 that no obligation to extradite existed apart from that imposed by treaty.This position has since been firmly maintained. The same attitude has been taken by the British court. Before 1815 the view was held by the law officers of the Crown that the royal prerogative extended to the power of surrender of aliens to foreign State; and there existed judicial authority to the same effect. In 1815, however, the officers advised that without statutory warrant no person might be surrendered to a foreign State. Since that time British practice has fairly consistently maintained that no power to extradite existed apart from statute; at all events the Extradition Act of 1870 left no doubt as to its intention to ‘cover the whole field’ of extradition. The Act of 1870 also made the existence of an extradition treaty a condition precedent for its application with regard to any State. The British attitude was made clear in correspondence concerning the case of ‘The Creole’ in 1842, where the slave cargo of United States vessel rose against the master, murdered a passenger and sought refuge in the Bahamas. The law officers pronounced their opinion as follow:For the reason that there is not at present any subsisting treaty to that effect with the United States of America, we think that Her Majesty’s Government in is not bound on the demand of the Government of the United States to deliver up the persons in question, or any of them, to that Government to be tried within the United States.The general practice of States, however, confirms the observation of Wheaton that extradition is not looked upon as an absolute international duty, and that if a State wishes to ensure that it must enter into treaties with other States.
1.2Extradition of Fugitive Offenders in the Lack of Treaty
Few countries in the world possess no extradition treaties at all. Nevertheless a number of countries are parties to relatively few extradition treaties. Other reasons for the few of treaty relations would seem to be that some states prefer as a matter of principle or convenience to enter into treaties only with those foreign countries which will not extradite in the absence of a treaty or with which, by reason of territorial contiguity or strong commercial ties, it is seen to be especially desirable to have formal and binding extradition commitments. With respect to other countries. Where the occasions for extradition seem likely to be infrequent, these States would appear to prefer to enter into no formal arrangements. The question thus not infrequently arises of the possibility of securing the surrender of a criminal from one country to another in the absence of an extradition treaty.At the outset it must be noted that the common law countries, on the whole, do not extradite in the absence of a treaty. United States law requires the existence of a ‘treaty or convention for extradition’,while the extradition legislation of Great Britain applies only ‘where an arrangement has been made with any foreign State’.The word ‘agreement’ is arguably of wide meaning and might extend to an exchange of diplomatic correspondence concerning a particular individual, but this view has never been tested. Most of the States of the Britain Commonwealth are similarly inhibited by their laws from extraditing in the absence of a treaty except for a few examples of special statutory regimes applying within limited geographical areas. While countries outside the common law bond are generally not prevented from extraditing in the absence of a treaty, there are a few exceptions. The constitution of the Netherlands requires the existence of a treaty before extradition may be conceded.Weighty arguments may be addressed against a policy of non-extradition in the absence of a treaty. The members of he Royal Commission on extradition in Great Britain in 1878 pointed out that no State could desire that its territory should become a place of refuge for the malefactors of another countries and that it was obviously in its interest to get rid of them. In Great Britain (at least since 1905) the practical question is whether a foreign fugitive criminal is to be removed by way of extradition or by deportation , i.e. whether he is to be restored to a competent jurisdiction or removed simpliciter, not whether his freedom is to be interfered with or not. In the case of a British subject, however, deportation would not be available, and the question is posed more as one of balance: is it a reasonable expectation, worthy of protection by the law, that a British subject who commits a crime in a foreign country should return to his homeland secure in the thought that no extradition treaty exists with that country. Extradition in the absence of treaties, which was supported also in 1880 by a resolution of the Institute of International Law, has long been sanctioned by the practice of most civil law countries.
1.3The Role of War on Extradition Agreements
The effect of war on treaties generally has been said to be ‘an obscure topic with only the vaguest guiding principles’. It seems that the only generalization which may safely be made in the present state of the law is that the effect of war on treaties must be assessed in the light of the nature of the particular treaty obligation in question. The statement of older writers that war ‘ipso facto’ terminates all treaties between the belligerent parties can no longer be accepted. Several tests have been suggested in order to assess the effect of war on treaties; whether a treaty should be regarded as having been abrogated altogether, or as being merely in suspense during the period of hostilities, or as continuing in force during hostilities, has been said to depended on the objective compatibility of the treaty with a belligerent situation. Alternatively, the subjective intentions of the parties or their political conduct with regard to the treaty may be considered. On any test a treaty of perpetual friendship and alliance, for example, would fall to the ground on the outbreak of hostilities, whereas the Geneva conventions on the treatment of prisoners of war would by virtue of their very object apply during hostilities. Extradition treaties lie at neither of those two extremes. The effect of war on an extradition treaty was directly question in ‘Argento v. Horn’, where the fugitive argued that, despite the purported ‘revival’ bye the United States of the extradition treaty with Italy pursuant to article 44 of the peace treaty of 1947, the treaty had been abrogated by the outbreak of war and could be replaced only by an altogether new treaty. The court laid down that the treaty had not been merely suspended, and has not been abrogated, during the war. The provisions of the peace treaties following World War II did not advert to the question whether any classes of treaty irrevocably disappeared as a result of war. The provisions merely invited the signatories to notify the former belligerent ‘which treaties it desires to keep in force or revive’ and declared that ‘treaties not so notified shall be regarded as abrogated’. The disruptive effect of war on extradition treaties is felt most keenly in respect of Germany, with which country no peace treaty has yet been concluded by the allied powers.
Part 2
2.1 Exemptions of the Extradition
The relevant legislation- be it the 1989 Act, the Act’s first schedule provides that certain kinds of fences cannot be the subject of extradition and the extradition and that extradition either cannot or may not be granted in certain circumstancesThose exceptions are more numerous in the Part III of 1989 Act. Several exceptions are provided for the United Kingdom’s reservations made when adhering to the 1957 European Convention. In some of these instances, the exception is subject to the principle ‘dedere aut punire’.In other words, if a State refuses to extradite a person because a particular exception applies in the circumstances, then that State is obliged to prosecute that person before its own courts for the crime in question.
A. Political Offence
In the old time, when the early extradition treaties were being negotiated, a major concern all around was that State should remain free to grant asylum to political refugees. In the 1957 European Convention, this exception is extended to offences connected with a political offence. In recent years, this exception has been greatly circumscribed by multilateral treaties on various aspects of terrorism, which have been enacted into national law, for instance the European Convention on the Suppression of Terrorism of 1977, implemented by the Suppression of Terrorism Act 1978.
B. Reciprocity
Reciprocity is the very basis of extradition arrangements, meaning that State-parties to such arrangements will treat each other in like manner. Some extradition treaties expressly stipulate that they shall be implemented on the basis of reciprocity. All State-parties are bound by its various obligations, except for those which they made the subject of reservations at the time they ratified or acceded to the Convention and also offences excluded in accordance with its article 2(3). Even where a treaty is subject to an overriding requirement of reciprocity, the question remains whether the wanted person, as compared with the requested State, can insist on adherence to reciprocity.
C. Military Offence
Many extradition laws and treaties exempt from their application military offences, meaning offences under military law as compared with the general law, for instance breaches of military discipline. Part III of 1989 Act Section6(1)(b) of the 1989 Act forbids extradition to a Part III State or country where the offence in question ‘is an offence under military law which is not also an offence under the general criminal law’. This too is a question that can be raised before the committing magistrate or sheriff, as well as on appeal. Article 4 of the 1957 European Convention is in similar terms.
D. Fiscal Offence
Many countries’ extradition laws and treaties do not apply to fiscal or revenue offences, although the trend in recent years is decidedly against exempting these offences. The justification for this exception is the general reluctance of countries to enforce the tax laws of foreign States, which is evidenced in the principle of provide international law that, generally, tax laws do not apply extraterritorially and the courts will not enforce judgments in favour of a foreign revenue authority. In recent years, however, especially with the spread of double taxation frauds, the reluctance to assist foreign revenue agencies is declining.Part III of the 1989 ActThere is no provision in the 1989 Act exempting fiscal or revenue offences from extradition. Article 5 of the 1957 European Convention requires extradition for offences in connection with taxes, duties, customs and exchange control only if the Contracting Parties ‘have so decided’. In other words, unless a requested state has decided to grant extradition in respect of fiscal offences, a person does not have to be extradited.
E.Specialty
By specialty in the context of extradition is meant that, when a wanted person is surrendered, the requesting State will prosecute or imprison him only for extradition unless, either the law of the requesting State or by arrangement, the wanted person will not be prosecuted for any offences allegedly committed before he was extradited, until he has had opportunity to return to the UK or Her Majesty’s dominions. The principle of Specialty, accepted by most States as part of the rules of extradition, is that a fugitive should only be tried in the requesting State for those offences for which he was surrendered. Any offence not disclosed in the request, which occurred before surrender should, thus, no longer be capable of prosecution. In RvMacDonald, for example, the fugitive was granted ‘habeas corpus’ because following his surrender by Australia for trail in relation to narcotics offences, he was imprisonment under a robbery conviction which had not formed part of the extradition request. White J. held that domestic Canadian law had to be applied so as to respect Canada’s international commitments and the comity of nations. Effectively, the fugitive should receive immunity through the extradition laws. However, the principle of specialty is not centrally concerned with protecting the fugitive’s rights. While it prevents a fugitive being requested for one offence and tried for another, it upholds the contractual nature of the agreement between the two States, in that the requesting State has to accept that the requested State has granted extradition for the specified offences and no others.
F.Bad Faith Request
Rights under international treaties should not be invoked in bad faith and at times States refuse to extradite wanted persons where their delivery up is being sought on some pretext or other. Formerly the courts absolutely refused to even consider allegations that the requesting State, under an extradition treaty, was acting ‘mala fides’(bad faith), which was described as ‘a very grave and serious statement to put forward, and one which ought not to be put forward except on very strong grounds’. But lack of ‘bona fides’(good faith) was a ground that could be raised in fugitive offenders cases, although always a very difficult one to establish. The 1989 Act makes a very significant step forward in this regard. Part III of 1989 ActSection 11(3)(c) of the 1989 Act requires the High Court to refuse extradition to a Part III State, country or a colony where, ‘because the accusation [the wanted person] is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.
G. Death Penalty
Almost all of the European countries have abolished the death penalty, either entirely or for most offences, and on a number of occasions the US Supreme Court has that aspects of capital punishment are unconstitutional. Most modern extradition treaties at least partly exempt offences which could attract that penalty.In ‘Soering v. United Kingdom’, the applicant successfully challenged his proposed extradition from Britain to the United States on the grounds that the penalty which would be imposed on him if convicted would be ‘inhuman or degrading’ punishment. Part III of 1989 ActSection 12(2)(b) of the 1989 Act empowers the Secretary of State to refuse extradition to a Part III State, a Commonwealth country or a colony in respect of‘an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in [the requesting country].
2.2Extradition of Political Criminals
Extradition originally served as a device for surrendering political dissidents and as means by which medieval rulers attempted to secure their political structure. Often political offenders were extradition in the absence of any treaty. As various forms of constitutional government supplanted monarchies, however, political dissent increasingly gained acceptability and the use of extradition as a political tool diminished in importance.The political offense exception first emerged in the extradition treaty between Belgium and France in 1834. Philosophical concepts generated by the French revolution encouraged political participation and political change and legitimized resistance to tyrannical rule. Granting asylum to political criminals was therefore conceived as a duty in almost all cases. The heightened concern for individual liberty, political dissent, and human rights in the world has led recently to various international enactments. International concern perhaps peaked with the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. The farmers of the Declaration sought to promote uninhibited political debate by providing that foreign nations grant asylum to those accused of political acts.The political offense exception is not limited to nonviolent dissent; revolutionary or counterrevolutionary violence may also be protected from extradition. While this view might, from time to time, lead to distasteful result, it is clear that revolution falls within the ambit of political activity.Certain acts of violence, however, existing at the fringe of legitimate revolution, challenge the conscionability of protecting such activities from extradition and punishment. It is the objective of the political offense exception to protect those violent acts which are necessary and corollary to political activity, not to sanction gratuitous assaults on human life.The policy of providing asylum for dissidents without becoming a haven for terrorists is easier to state than to implement. All terrorists, and certainly all invoking the political offense exception, claim the mantle of political justification. Courts have found drawing a line of demarcation between protected political activity and criminal terror to be quite difficult.
2.3International Tensions
he refusal of a country to extradite suspects or offenders to another may lead to international relations being strained. Often, the State to which extradition is refusal will accuse the other State of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of ‘Ira Einhorn’ in which some US commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law. The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision to extradite lies with the national executive (prime minister, president or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. One the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting State will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting State, may possibly result from the unwillingness of the country’s to extradite. For example, there is at present a disagreement between the United States and the United Kingdom about the ‘Extradition Act 2003’ that dispenses with the need for a ‘prima facie’ case for extradition. It is important to emphasize, however, that even had the treaty been ratified by the U.S., the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the U.S. must show a ‘’reasonable case’’ that the suspect committed the offense, but requests from the U.S. to the UK have no such requirement imposed on them.
2.4Paradigms of the Extradition and Abduction
issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state without previously requesting permission, or following normal extradition procedures. Such abductions are usually in violation of the country in which they occur, as infringements of law forbidding kidnapping. Many also regard abduction as violation of international law- in particular of a prohibition on arbitrary detention. A small number of countries have been reported to use kidnapping to circumvent the formal extradition process. Notable or controversial cases include the abduction of :
– Morton Sobell from Mexico by the United States in 1950
– Adolf Eichmann from Argentina by Israel in 1960
– Isang Yun from West Germany by South Korea in 1967
– Mordechai Vanunu from Italy by Israel in 1986
– Humberto Alvarez Machain from Mexico by the United States in 1990
– Mir Aimal Kansi from Pakistan by the United States in 1997
– Abdullah Ocalan from Kenya by the United States and Turkey in 1991
– Martin Mubanga from Zambia to Guantanamo Bay by the United States in 2002
– Khaled El-Masri from Republic of Macedonia by the United States in 2004
– Hassan Mustafa Osama Nasr from Italy to Egypt by the United States in 2005
Part 3
3.1 The process of Extradition in the United States
Extradition of a fugitive may be based upon comity or reciprocity, or upon a treaty obligation. In certain extreme cases, a country might use abduction, kidnapping, or some informal procedure though jurisdiction over an individual. Although the extent of the United States’ obligations to grant an extradition request absent a treaty was the subject of much debate un the nineteenth century, it is now generally well established that the United States will honor an extradition request only pursuant to its treaty obligations. Furthermore, congress has required implementation of certain safeguards before returning an individual to the requesting country.Extradition is a criminal proceeding which the authorized representative of a requesting country may initiate by filing a verified complaint with the nearest court having jurisdiction over the individual. A judicial officer then may issue a warrant for the individual’s arrest and further detention if the complaint satisfies all requirements. Once the individual is custody, the presiding judicial officer may set or deny bail. The requesting nation may supplement this procedure by filing a requisition with the Secretary of State asking that the accused be returned in accordance with the terms of the existing treaty. The requesting nation may file the requisition either prior to or during the judicial proceedings. The role of the court of extradition is ultimately to determine whether there is sufficient evidence in support of the request. The requesting country bears the burden of establishing probable cause to believe that the accused committed the charged offense. To reach the issue of probable cause, the court must make three additional findings. First, the extradition treaty must be in effect and applicable to the case. Second, the person named in the complaint must be the same individual who is before the magistrate of extraditing judge. Finally, the ‘’rule of dual criminality’’ requires that the acts charged constitute a criminal offense in both the requesting country and the forum states. This decision-making process, which has been recognized either implicitly or explicitly by most courts of extradition, does not specifically contemplate a political offense defense.The Supreme Court has analogized the extradition hearing to a preliminary hearing in a criminal case. Because the hearing is not a plenary proceeding involving the actual guilt or innocence of the accused, the judicial officer may afford the requesting country wide latitude in producing evidence to established the commission of the offense and probable cause. The evidence may consist of hearsay in the form of affidavits, deposition, or other pertinent documentation. The requesting country need not produce witnesses.Evidence admissible on behalf of the accused is restricted, again on the theory that the proceeding is preliminary. The extraditee has a limited right to present, and even subpoena, witnesses material to his defense. However, the court only will permit the defendant to introduce evidence which is offered either to show that he is not the actual person being sought by the requesting, or to explain the circumstances of the offense. The defendant may not present any other evidence in defense of the charge, such as an alibi, because it would have no bearing on whether the requesting country has establishes a prima facie case. The accused, however, may offer evidence of the political nature of the crime, to show that the offense is not extraditable under the treaty. Evidence of the crime’s political nature is admissible exclusively to explain the circumstances of the crime. It is not admissible, for example, in aid of a defense of justification or necessity.The decision as to the admissibility of evidence lies within the sound discretion of the extradition judge, and it is not reversible unless it negates the purpose of the hearing. Review of the magistrate’s decision within the judicial system is limited.If the courts ultimately authorize extradition, the department of State must independently decide whether to deliver the accused to the requesting government. In addition to reviewing matters beyond the record, the Secretary may differ from the committing magistrate on the weight or sufficiency of the evidence. Such a disparate reading of the record occurred when the Russian government requested the extradition of Krishan Rudewitz in 1908 on charges of murder and arson. Thus, the role of the judicial officer in the extradition process, although theoretically preliminary to that of the State Department, might well be determinative of the entire proceeding and might effectively preempt the Executive Branch in the conduct of American foreign policy.
3.2Rendition in the United States
endition between states is required by Article Four, Section Tow of the United States Constitution. This section is often termed the rendition clause; Article Four of the United States Constitution relates to the state. The article outlines the duties states have to each other, as well as those the federal government has to the states. Article Four also provides for the admission of new states and the changing of state boundaries.Section 2: Obligation of states Clause 1: Privileges and Immunities: ‘’The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several State.’’ Clause 2 : Extradition of fugitives: ‘’A person charged in any State with Treason, Felony, or Crime, who shall flee from justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime.’’Clause 3: Fugitive Slave Clause: ’’No person held to Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any law and Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.’’ Each state has a presumptive duty to render suspects on the request of another state, as under the ‘full faith and credit’ clause.Section 1: Full faith and credit: ‘’Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general laws prescribe the Manner in which such Acts. Records and Proceeding shall be proved, and the Effect thereof. The Supreme Court has established certain exceptions; a state may allow its own legal proceeding against a suspect to take precedence, for example: it was established in ‘Kentucky v. Dennison that interstate rendition and extradition were not a federal writ; that is, a states could not petition the federal courts to have another state honor its request for rendition, if the state receiving the request chose not to so. In rare cases, usually involving the death penalty, state have refused or delayed rendition. In 1987, this was overturned by ‘Puerto Rico v. Branstad’, so a federal interest in resolving interstate rendition disputes was established. Nevertheless, the right of refusal of rendition was not overturned. Extradition for fugitives who are charged with a crime is commonly requested by state or county prosecutors. Formal interstate rendition will involve both state governors. Other procedures can involve waiving documentary formalities before surrender of the fugitive. Under the Uniform extradition Act adopted in 48 states, Puerto Rico and Virgin Islands (but not in Mississippi and South Carolina) , there is a distinction between fugitives who were in the demanding state at the time of the crime and those non-fugitives whose prior presence is not so alleged. The first type is mandatory under the United States Constitution. The less frequent second type allows for some Governor discretion. The cases can involve bad checks or failure to pay child support but they still must be criminal matters. Bounty huntersand bondsmanonce had limited authority to capture fugitives, even outside the state where they were wanted by the courts, when they deliver such a person, this is considered rendition, as it did not involve the intervention of the justice system in the state of capture. Under more recent law, bounty hunters are not legally permitted to act outside of the state where the offense took place, but cases of rendition still take place due to the financial interest the bondsman have in returning a fugitive and recovering the bail. Formally, such fugitive cases should be turned over to the state for exception under the Uniform Criminal Extradition Act (1936) and the United States Marshals Service, when it is not. Rendition was infamously used to recapture fugitive slaves,who under the Constitution and various federal laws had virtually no human rights. As the movement for abolition grew, Northern states increasingly refused to comply or cooperate with rendition of escaped slaves, leading to the ‘Fugitive Slave Law of 1850. This non-cooperation was behind the longstanding principle of refusal, only reverted in the 1987 decision.
Part 4
Assessment of the Assange Extradition Case
Julian Assange is an Australian publisher, journalist, software developer and Internet activist. He is the spokesperson and editor in chief of ‘WikiLeeaks’, a whistle-blower website and conduit fro worldwide news leaks, with the stated purpose of creating open government. Assange worked as a computer programmer and was a hacker during his youth. He has lived in several countries and has made public appearances in many parts of the world to speak about freedom of the press, censorship and investigative journalism.WikiLeaks was founded in 2006. That year, Assange wrote two essays setting out the philosophy behind WikiLeaks: ‘’ To radically shift regime behavior we must think clearly and boldly for if we have learned anything, it is that regimes do not want to be changed. We must think beyond those who have gone before us and discover technological changes that embolden us with ways to act in which our forebears could not.’’Assange says that WikiLeaks has released more classified documents than the rest of the world press combined. WikiLeaks has been involved in the publication of material documenting extrajudicial killings in Kenya, a report of toxic waste dumping on the coast of Church of Scientology manuals, Guantanamo Bay procedure, the 12 July 2007 Baghdad airstrike video, and material involving large banks such as Kaupthing and Julius Baer among other documents.On 10 June 2010, it was reported that Pentagon officials were trying to determine his whereabouts. Based on this, there were reports that U.S. officials wanted to apprehend Assange.On 28 November 2010, WikiLeaks began releasing of the 251,000 American diplomatic cables in their possession, of which over 53 percent are listed as unclassified, 40 percent are Confidential and just over six percent are classified Secret. The United States Department of Justice launched a criminal investigation related to the leak. US prosecutors are reportedly considering charges against Assange under several laws, but any prosecution would be difficult. In relation to its ongoing investigations of WikiLeaks, on 14 December 2010 the US DoJ issued a subpoena ordering Twitter to release information relating to Assange’s account, amongst others. He received the 2009 Media award from Amnesty International for Kenya and he has been recognized as a journalist by the Center for Investigative Journalism.A number of political and media commentators, as well as current and former US government officials, have accused Assange of terrorism. US Vice president Joe Biden argued that Assange was ‘’closer to begin a high-tech terrorist than the Pentagon papers.’’ In May 2010 Senate Minority Leader Mitch McConnell had used the phrase, calling Assange ‘’a high-tech terrorist’’, and saying ‘’he has done enormous damage to our country. I think he needs to be prosecuted to the fullest extent of law’’.The Australian Federal Government has retracted its previous comments that the action of Julian Assange constituted a crime. Luiz Inacio Lula da Silva, then president of Brazil, expressed his ‘’solidarity’’ with Assange following his arrest in the United Kingdom. He further criticized the arrest of Assange as ‘’an attack on freedom of expression’’.Prime Minister of Russia, Vladimir Putin condemned Assange’s detention as ‘’undemocratic’’.He has received a number of awards and nominations, including the 2009 Amnesty International Media Award for publishing material about ‘extrajudicial killing’ in Kenya and Readers’ Choice for Time magazine’s 2010 Person of the Year. On 20 August, Swedish police began an investigation into two separate sexual encounters involving Assange. He has said the allegations of wrongdoing are ‘’without basis’’, describing both sexual encounters as consensual. In December, Assange, now in British, learned that the Swedish authorities had issued a European Arrest Warrant (EAW) for his extradition to Sweden. Assange appealed the EAW, and a District Judge (Magistrates Court) in England ruled that Assange should be extradited. Assange has appealed the extradition decision.Finally On 24 February ‘Howard Riddle’ Senior District Judge (Chief Magistrate) said: I have specifically considered whether the physical or mental condition of the defendant is such that it would be unjust or oppressive to extradite him. In fact as I am satisfied that extradition is compatible with the defendant’s Convention rights, I am order that Mr Assamge be extradite to Sweden.
Conclusion
The principle rules and practices of international extradition constitute a significant body of international law. It is noteworthy that this body or international law was derived almost wholly from treaty sources and grew to recognized stature before treaties had overtaken custom as the most important matters there is considerable uniformity in bilateral treaties and municipal extradition statues. In many other respects, however, extradition treaties and legislation present a complex and varying picture throughout the world, and there is great need for further development and harmonization.The practice of extradition enables one state to hand over to another suspected or convicted criminals who have fled abroad. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law. It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that of specialty, i.e. a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted.In general, offences of a political character have been excluded, but this would not cover terrorist activities. As noted above, it is common for many treaties laying down multiple bases for the exercise of jurisdiction to insist that states parties in whose territory the alleged offender is present either prosecute or extradite such person. In addition, many treaties provide for the automatic inclusion within existing bilateral extradition treaties between states parties to such treaties of the offence concerned. Many states will not allow the extradition of nationals to another state, but this is usually in circumstances where the state concerned has wide power to prosecute nationals for offences committed abroad. Further, the relevance of human rights law to the process of extradition should be noted.Extradition treaties and legislation not only supply the broad principles and the detailed rules of extradition but also dictate the very existence of the obligation to surrender fugitive criminals. It is clear that States do not extradite criminals in the absence of a treaty or a municipal law which empowers them to do so. The existence of a treaty commitment to the requesting State in an express condition precedent to extradition in the United States, Great Britain, and countries of the Commonwealth whose extradition laws are modeled on those of Great Britain.In some other countries, extradition many take place in the absence of a treaty but as an act of grace rather than of obligation, and in accordance with the provisions of municipal statues operating in the absence of treaties. Furthermore in many such countries ‘extradition by statue’ is dependent upon an ‘ad hoc’ guarantee of reciprocity which is tantamount to a treaty.
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– Geoff Gilbert, Aspects of International Law (1991)
– Micheal Forde, The Law of Extradition in the United Kingdom (1995)
– John Bassett Moore, The American Law Register and Review (1896)
– Steven Lubet and Morris Czackes, The Role of the American Judicary in the Extradition of Political Terrorists- Source: The Journal of Criminal Law and Criminology (1973)
– I.A. Shearer, Extradition in International Law (1971)
– The Cypherpunk Revolutionary Robert Manne on Julian Assange
Sources
– Extradition Act 1870
– Report of the Royal Commission on Extradition 1878
– Convention on the Non-Applicability of statutory Limitation to War Crimes and Against Humanity UN 1968– The Universal Declaration of Human Rights U.N 1948
– The Extradition Act 2003
– The Journal of Criminal Law and Criminology 1973
– The Guardian
– The Times
– Sydney Morning Herald
– Judiciary.gov.uk
– European Court of Human Rights 1989