Extradition from A to Z: Assange, Zentai and the Challenge of Interpreting International Obligation

• Author: Holly Cullen and Bethia Burgess
• Position: Professor of Law at the University of Western Australia/BA/LLB graduate of the University of Western Australia and is currently studying for a Master International Relations at Melbourne University
• Pages: 208-238

208

EXTRADITION FROM A TO Z: ASSANGE, ZENTAI AND

THE CHALLENGE OF INTERPRETING INTERNATIONAL

OBLIGATIONS

HOLLY CULLEN AND BETHIA BURGESS*

AUTHORS’ NOTE:

One of Professor Peter Johnston’s main areas of expertise was the law of

extradition. Notably, he appeared before the High Court of Australia in

the Zentai case, concerning the request for extradition of an alleged war

criminal. His interest in the law of extradition was, furthermore, wide-

ranging and scholarly. In 2013, he taught seminars on extradition in the

UWA law unit Selected Topics of Public International Law. In

correspondence with the first author of this article, he proposed co-

writing an article comparing the approach of the Australian and United

Kingdom courts to extradition through the lens of the Zentai case and

that of Julian Assange. He wrote, ‘There are some fascinating similarities

and differences, including the different ways in which the UK Supreme

Court approaches interpretation of international instruments compared

to that of the High Court.’ Unfortunately, other commitments intervened

and the article was never written. The second author of this article was a

student in the 2013 cohort for Selected Topics of Public International

Law and wrote an essay on issues in the Zentai case under Professor

Johnston’s guidance. We present this article as a realisation of Professor

Johnston’s idea and a tribute to him.

I INTRODUCTION

Extradition of persons accused of a crime to face trial in another country is

considered an essential element of transnational criminal law.1 Developments

such as the European Arrest Warrant,2adopted by the European Union, are

* Holly Cullen is a Professor of Law at the University of Western Australia. Bethia Burgess is a

BA/LLB graduate of the University of Western Australia and is currently studying for a Master

International Relations at Melbourne University.

1 See Neil Boister, An Introduction to Transnational Criminal Law (Oxford University Press, 2012).

2 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender

procedures between Member States, 2002/584/JHA, [2002] OJ L190/1, as amended by Council

Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions

2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing

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designed to make the process faster and easier. However, with these

developments come concerns about safeguards for the rights of the accused,

particularly whether greater efficiency in extradition comes at the cost of

respect for the human rights of the accused. As extradition is always based on

some form of international measure, whether a European Union Framework

Decision in the case of the European Arrest Warrant (EAW), or international

treaties, domestic courts face the challenge of how to interpret domestic law

based which is based on international measures. This challenge includes the

question of how international human rights commitments should be integrated

into such an interpretation process. Two decisions in 2012, from the High

Court of Australia, Minister for Home Affairs of the Commonwealth & Ors v

Charles Zentai & Ors,3 and the United Kingdom Supreme Court, Assange v the

Swedish Prosecution Authority,4shed light on the difficulty of interpreting

domestic extradition law in light of its international law foundations, and in

giving due weight to human rights in the extradition process.

Factually, Assange and Zentai are very different. In Assange, the main issue

for the United Kingdom Supreme Court was whether the Swedish Prosecuting

Authority was authorised to issue an EAW. The alleged crimes were recent, and

the victims still alive and potentially available for cross-examination. In Zentai,

the request was in relation to a historic crime, a murder in 1944. The main

concern before the courts was the fact that the crime in the extradition request,

a war crime, was not a crime in the requesting country in 1944. In the lower

court cases, concerns were also raised about the potential for a fair trial.5

Furthermore, the relationship between the requesting country and the country

in which the accused was arrested differed – the EAW derives from the efforts

of the European Union to enhance police and judicial cooperation overall,

rather than the conventional bilateral extradition treaty in issue in Zentai.

While both cases involved allegations of serious crimes, the war crime in Zentai

raises the matter to one of concern to the international community as a whole.

In Zentai, the nature of the crime was the most significant aspect of the case,

whereas in Assange, the key issue became the status of the authority issuing the

the procedural rights of persons and fostering the application of the principle of mutual recognition

to decisions rendered in the absence of the person concerned at the trial, [2009] OJ L 81/24.

3Minister for Home Affairs of the Commonwealth v Zentai [2012] HCA 28 (‘Zentai’).

4Assange v Swedish Prosecution Authority [2012] UKSC 22 (‘Assange’).

5Zentai v Honourable Brendan O’Connor (No. 3) [2010] FCA 691 [260]-[292]. The court rejected the

claim that the Minister had failed to consider seriously the question of whether the accused could

receive a fair trial.