The Supreme Court has decided, by a majority of 5 to 2, that the European Arrest Warrant issued in respect of Julian Assange is valid. This means that it is highly likely that Assange will now be extradited to Sweden for questioning in respect of allegations of rape and sexual assault - allegations which he denies.
Any extradition will not be immediate. Assange’s legal team have been given fourteen days to apply for the Supreme Court to consider argument on the application of the Vienna Convention on the Law of Treaties, which in this case may affect the class of entities which can issue the warrants. Depending on the interpretation of the relevant part of the Vienna Convention, it may not be that a prosecutor rather than a judicial body can issue an EAW.
Assange’s legal team contend that this point was not subject to argument at the appeal hearing at the Supreme Court. If the Supreme Court indeed had no oral or written submissions on the Vienna Convention at all, then it would be a remarkable oversight for the judges to have then relied on it by entirely their own motion. As only the parties and the court will currently know what was submitted in written “skeleton” arguments, it is not yet clear the extent to which the point being made here is actually a good one. If the application of the Vienna Convention has not been subject to legal argument in this appeal then it certainly should be, as it is clear from the judgments that at least two judges in the majority relied on it in their decision.
The leading legal blogger Carl Gardner has also set out other applications which can be used by Assange’s legal team to delay or frustrate the extradition. The points being made on the EAW regime by Assange and his team are not without merit, and it could be for the advantage of many other people that Assange and his lawyers are forcing the formidable and often illiberal EAWs to be subjected to anxious judicial scrutiny. It should never be the case that EAWs should be issued lightly.
Assange and his legal team - like any defendant and their lawyer - are fully entitled to use any available means so that his legal rights can be properly asserted.
However, one can also be critical of Assange's litigation strategy. Assange may be well advised to return to Sweden to answer the serious allegations of rape and sexual assault, which otherwise would remain unanswered. Rather than sinking his scarce resources in this peripheral litigation in London, it would seem far more sensible to devote energy and money to his substantive legal defence in Sweden. For the allegations against Assange are objectively serious, and they do require a response. The allegations really should be responded to sooner rather than later. And it is sickening that many who should know better seek to deride or discredit the complaints and the complainants. (On this, see the US blogger Kate Harding's 2010 post here.)
Given that Assange and his supporters contend that the allegations have no basis then a focus on the allegations themselves, and not on points about European Arrest Warrants, would seem to be the course for a wise man rather than a clever man.
David Allen Green is legal correspondent of the New Statesman