The life-and-death decisions weighing on Julian Assange

There are a lot of factors in play that will influence Julian Assange's next move, Andrew Macleod writes.

There are a lot of factors in play that will influence Julian Assange's next move, Andrew Macleod writes. Photo: Getty

Julian Assange would hate to see himself as a pawn in a large chess game. Love him or hate him, few people would think Assange has anything less than a healthy ego, so he’d rather picture himself as the ‘hero knight’ against a king, but never a pawn.

But a pawn he is.

Sitting in a lonely prison cell serving his time for skipping bail in the UK, Assange now faces extradition to the US on espionage charges and to Sweden on sexual assault charges. The UK has to choose between the Swedes and the US. They also have to weigh between an espionage accusation and a sexual assault accusation.

Both options have complicated issues of balancing relations between two allied countries, and complicated optics in the days of the #MeToo movement. It is up to UK Home Secretary Sajid Javid to determine where Assange goes next.

And Javid is a contender in the leadership race to take over from failed Prime Minister Theresa May, who leaves office on June 7. Don’t think Javid is not considering Assange through the lens of his desire to be prime minister.

Javid had previously indicated that he is minded to favour the Swedish request. The US request was for a relatively low level espionage offence that would be ‘out ranked’ by a sexual assault claim. So, the US has just announced 17 more mid-level charges against Assange to up the pressure on Javid.

The US, critically, has not charged Assange with the top-level espionage crimes, which may outweigh a sexual assault claim in the mind of Javid. They have not done so as the highest crimes carry the death penalty in the US, and the UK, like Australia, will not extradite in death penalty cases.

A lot of people have Assange’s fate in their hands, including Sajid Javid. Photo: Getty

For Assange, like Javid, the choice is real and complicated. If the UK sends Assange to the US, and if Assange gets a long custodial sentence, Sweden will run out of time under its Statute of Limitations and the sexual assault charge will lapse.

If the UK chooses to send Assange to Sweden, then the US will undoubtedly seek extradition from Sweden – regardless of the outcome of the sexual assault trial. Yet if Assange is convicted in Sweden and serves a long sentence, the US may have its own Statute of Limitations problems.

Under US law most federal crimes have a five-year limitation, the period by which charges must be brought or they lapse. Yet low level espionage generally has a 10-year limitation that can be extended in some circumstances. High level espionage, where the death penalty can be imposed, has no Statute of Limitation.

Further complicating issues is that Swedish law prohibits extradition of Swedish nationals for military offences. There is an open question as to whether this provision would apply to a non-Swedish national like Assange.

So now the chess game gets very complicated and Assange needs to think through his next moves very carefully.

Julian Assange has a loyal and vocal support group. Photo: Getty

If Assange ultimately goes free from the UK or Sweden, either after a long or short custodial sentence relating to the sexual assault, there is little doubt the US will keep pursuing him.

If he is ultimately arrested and detained in a country that does extradite to the US on death penalty cases, then Assange may well face execution in the US.

However, if he is later arrested in a country, like Australia or the UK, where one assumes he will ultimately live, then the US will not be able to extradite him to face a death penalty case and the Statute of Limitations, he will argue, will have negated the lesser charges.

The US would bend over backwards to extend the Statute of Limitations or charge Assange under a death penalty provision, but give a written undertaking to the UK or Australia that the death penalty would not be sought, and only a life sentence given on conviction. This has worked for the US in past cases.

So, Assange may hope that he makes his arrest so difficult that ultimately it will ‘all go away’. But the US is patient and the political leadership on both sides of the political divide are united in their desire to see Assange in jail.

But Assange is patient too, as his multi-year stay in the Ecuadorian Embassy has shown. He loves to be the ‘hero’ fighting for justice and he may well wish to spend his entire life being the ‘hero’. And this is where Sweden offers Assange’s greatest challenge.

What Assange does next may depend a lot on his view of the sexual assault charges in Sweden. If he thinks he is likely to be convicted then he will seek to avoid that risk, not for the fear of custody, but for the fear of conviction.

Assange likes playing the ‘hero’ white knight against the king, blowing his whistle on the abuse of power. But sexual assault is an abuse of power, too. A conviction for rape or sexual assault would destroy the credibility of Assange in his key support base.

Assange’s greatest fear may not be a hero’s death in the US, but a humiliated life in Sweden. There is no such thing as a ‘hero rapist’.

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