Yesterday was a breathtaking one for global criminal justice. First, British police arrested Julian Assange at the Ecuadorian embassy in London and then, just hours later, the Sudanese military arrested President Omar al-Bashir, ending his almost thirty-year reign there. Both men were fugitives; the United States has indicted Assange for conspiracy to commit computer intrusion while the International Criminal Court (ICC) wants al-Bashir for genocide, crimes against humanity, and war crimes.
What comes next in these two cases? And what do they tell us about the challenges of cross-border law enforcement?
Assange and U.K. Extradition Proceedings
Most analysts have highlighted how the U.S. Department of Justice’s (DOJ) narrow, single-count indictment likely defangs Assange’s arguments regarding First Amendment journalist protections. And yet this discussion overlooks the imminent extradition proceedings within the United Kingdom itself. Extradition proceedings can take months, even years in cases with particularly litigious defendants. Much will turn on the vigor with which Assange challenges various aspects of his case, both before the court of first instance and any subsequent appeals. Among the issues the U.K. courts will grapple with is how to characterize Assange’s conduct under the political offense exception—provided for under Article 4 of the U.S.-U.K. extradition treaty and construed under U.K. law—which distinguishes between “pure” offenses such as espionage and “relative” political offenses with political motivations.
Bearing on the political offense question will be whether the United States requests extradition on additional charges—beyond that of computer intrusion conspiracy—during this critical window of time before Assange’s first extradition hearing. While some have suggested that the U.S. government can simply “pile on” more charges against Assange once he is extradited to the United States, the reality is that the United States would be more constrained at that later stage. Pursuant to a requirement known as “the rule of specialty” provided in Article 18 of the U.S.-U.K. treaty, the United States is restricted to prosecute only the offenses for which the United Kingdom grants extradition.
For any additional charges after Assange’s extradition, the United States must request that the United Kingdom waive the rule of specialty. The United Kingdom would then have complete discretion over whether to waive. Historically, waiver practice varies by country and is based on the nature of the additional charge(s), though a requested country is more willing to waive the rule of specialty when a case does not involve its own national. In this particular case, it is hard to predict how the United Kingdom might respond to such a request: while the British government has already stated that Assange—an Australian national—is “no hero,” the heightened public scrutiny could conceivably have some impact on its decisionmaking.
If the United States were to later pursue additional charges without British consent and, for some reason, the Brits did not protest, would Assange have standing to raise a violation of the rule of specialty? The circuits are split on the question of whether an extradited individual has standing before a U.S. court to raise a specialty violation, with some reasoning that only the extraditing country (here, the United Kingdom) can complain about a purported treaty violation. Others have held that an extradited individual may raise any objections the extraditing country would have been entitled to raise. While noting this split, the U.S. Court of Appeals for the Fourth Circuit—which would have jurisdiction given Assange has been indicted in the Eastern District of Virginia—has never explicitly ruled on the question.
Finally, for the sake of completeness: regardless of the ultimate constellation of charges, there is no risk that Assange would face the death penalty here in the United States. The computer intrusion conspiracy for which Assange has been charged does not constitute a capital offense and, regardless, the United States typically gives assurances to European countries as a condition precedent to extradition that it will not seek the death penalty, as provided in article 7 of the U.S.-U.K. treaty. It will certainly do so in Assange’s case as well.
Al-Bashir and Sudanese Authorities
And what of al-Bashir? The ICC stands ready to prosecute, despite an earlier indication that it was halting investigations. While the ICC issued its first arrest warrant against al-Bashir in 2009, he has remained at large since that time, even boldly visiting ICC states parties such as South Africa without being apprehended. The situation became so gridlocked that the Prosecutor of the ICC, Fatou Bensouda, had announced she was suspending investigations due to international inaction in facilitating the arrest. Bashir’s arrest and transfer to The Hague would almost certainly revive proceedings.
The future thus lies squarely in the hands of the current Sudanese authorities, who have custody of al-Bashir and have just recently declared they will not turn al-Bashir over to the ICC. It is too early to know what their motivations are, what they might consider their options to be, or what other events may transpire on the ground in Sudan in the coming days and weeks.
Libya is a potentially instructive example: Muammar Gaddafi had also been charged by the ICC but was killed in Libya in 2011, while his brother-in-law and intelligence chief, Abdullah al-Senussi, was tried and convicted in Libya in 2015 after the ICC found his case to be inadmissible. Bensouda would be wise to wait to hear what Sudanese officials intend to do with al-Bashir before announcing any actions.
The Challenges of Cross-Border Criminal Cases
The simultaneous climax in two seemingly dormant cases—Assange and al-Bashir—exemplifies the contemporary reality in which two distinct systems of criminal process unfold.
The first system involves U.S. criminal cases with some significant foreign nexus, cases that I have previously called “foreign affairs prosecutions” because they engage the executive branch as both prosecutor and diplomat. The second is the international criminal court system, led by the ICC in The Hague. Though the line of responsibility between the two systems may at times be blurry, broadly speaking both systems address a cross-jurisdictional need to investigate and prosecute crimes that would otherwise result in certain perpetrators living in impunity.
When a criminal case plays out in either of these two systems, various and potentially competing national and international stakeholders have an important role to play in determining how the criminal process will play out. This stands in contrast to a typical domestic criminal case, which involves more straightforward questions of federal, state, and/or local investigation and prosecutorial discretion. Assange’s case, for example, has turned on the actions of more than five nation-states: the United States (investigation and charging), United Kingdom (arrest and extradition), Ecuador (embassy protection), Sweden (first extradition request), Australia (country of nationality), plus other nations with open investigations into Wikileaks and/or Assange himself. Meanwhile, al-Bashir’s case involves Sudan; the over 120 current members of the ICC Assembly of States Parties (including those that failed to arrest al-Bashir when he was in their territory); as well as the countries that have and currently do make up the U.N. Security Council.
When the interests of the various stakeholders are in tension with one another—as in these two complex cases—it is of little surprise that both undergo significant delays, not to mention revived accusations about the ICC’s “anti-Africa bias” for al-Bashir or debate about journalistic privilege and cyber instrumentalities in the case of Assange.
At the same time, when these global interests and political incentives align, it is similarly unsurprising that, as happened yesterday, the cases can simultaneously “break” and garner front-page headlines all over the world. For many months in the wake of its 2017 election, Ecuador had determined that it was worth giving Assange asylum, despite rising internal and external pressures; for even longer, Al-Bashir had clung to power in the face of rising doubts among the Sudanese military. In both cases, it may still take years for any justice to be served. But for both suspects, yesterday the dam finally broke and the reckoning began.