Tag Archives: extradition

IP Law and Extradition Agreements

The recent extradition case against Richard O’Dwyer, involving the breach of US copyright law, raises serious issues about the use of extradition agreements between states.  The 23 year old student ran tvshack, a website hosting links to tv programmes and films which could be streamed online for free. By providing links to protected creative material, his website was allegedly in violation of US copyright law. Despite the indirect function of the site, the links can amount to secondary infringement which is a criminal offence under US law.

Richard O'Dwyer with his mother Julia outside Westminster Magistrates Court

How do these US laws apply outside it’s own jurisdiction? The simple answer would be that they don’t.. Or that’s what we would assume. The crimes O’Dwyer is being sought for by the American authorities are not actually offences in the UK. However under an extradition agreement between the US and Britain he could be tried for crimes in US courts. The the Extradition Act passed by Labour post 9/11 in 2003, was primarily designed for extraditing terror suspects and appears quite unsuitable in relation to this case. Clearly Richard O’Dwyer is not being sought for terrorism offences, so how can this treaty be applied to someone who has merely violated US copyright law.

In the US O’Dwyer could face a maximum sentence of 10 years, while he would most likely only face a fine in the UK for equivalent copyright violations. Sir Menzies Campbell, who is currently leading a review of UK extradition arrangements, stated:

Sir Menzies Campbell is leading a review into extradition on behalf of the Lib Dems

“It seems anomalous to say the least that an action taking place in the United Kingdom which would not be regarded as criminal can justify extradition to the U.S.”

In January, District Judge Quentin Purdy said that he was satisfied the alleged conduct would constitute an offence under British law, and ruled that the extradition could go ahead. He stated that it was important that justice was not hindered by national borders, to ensure alleged victims of crime along with the public could maintain faith in the legal system. It seems to me that being extradited for copyright infringement on agreements created to deal with terrorism suspects, is a strong incentive for the public to lose their confidence in the judicial system. Why can O’Dwyer not go on trial in the UK if Judge Purdy believes his conduct would constitute an offence in Britain?

If there are such grave concerns relating to protection of intellectual property, why do they not create cross border agreements relating to intellectual property law allowing individuals to be tried in their home countries?  It seems fundamentally wrong to use an agreement designed for an entirely different purpose to extradite a British citizen on much lesser offences. It appears that the British courts are dealing with American pressure to extradite O’Dwyer under the Extradition Agreement rather than addressing the nature and gravity of his case. Julia, Mr O’Dwyer’s mother, has been running a campaign to to fight his extradition and allow him to stand trial in the UK. In an interview with the World Socialist website, she criticised the UK’s willingness to extradite its own citizens without considering the alleged offences:

“With America, it is a whole different treaty and law. It’s very difficult to fight because you’re not addressing the alleged crime. You are fighting the extradition law. When you go through the extradition courts, they want you to go to America to prove your innocence. They don’t want to be looking at the allegations against you”

The O’Dwyer case draws worrying parallels with the case of Gary McKinnon, who has been fighting extradition to the US after hacking into the Pentagon website. The Asbergers sufferer claimed that he had hacked into the site in 2001 and 2002 in an attempt to find evidence relating to UFO’s. He has also been subject to the 2003 Extradition Agreement between the UK and US since it came into force in 2005 some years after he committed the relevant offences. If McKinnon is extradited and charged he could face up to 70 years in prison.

US President Barack Obama tried to distance himself from the issue of extradition when forced to answer a question about O’Dwyer’s case in a live digital questioning session in the White House. Thousands of web users had voted for it to be the top issue to be put to the president. Obama claimed that as a president he did not take a direct role in the case.

“I’m not personally doing anything, I want to make sure everybody understands… the president doesn’t get involved with prosecution decisions or extradition decisions and this has been a decision by the Justice Department”

While the US president may not be personally seeking O’Dwyer’s extradition, he did not criticise the case. Nor did he comment on the use of anti-terrorism legislation relating to the extradition agreement. In a stereotypical style of a politician he looked shifty and tried to move away from giving a clear answer.

The Extradition Agreement 2003 makes it much easier to extradite British citizens to the US than the other way round. The ratio of extradition currently stands at 5:2 in Americas favour. Mrs O’Dwyer has been very open in voicing her disappointment in the UK’s  handling of the case, she told the Daily Mail:

“The UK government’s passive acceptance of disproportionate extradition is shameful, but well known.” 

Extradition agreements should be reserved for serious crimes involving dangerous criminals. While the tvshack website may have been in violation of copyright laws in the US, extradition and custody measures  seem to be a hugely disproportionate punishment for a young university student. The role of British courts in this case is hugely alarming and raises concerns regarding the protection of British citizens. The extradition process should not be welcomed by UK courts but rather enforced as a last resort in serious circumstances. The laws used to extradite individuals should relate to their offences rather than serving a means to put them on trial in that country. If we constantly extradited British citizens for breaching laws of other states we probably wouldn’t be left with much of a population. Perhaps due to increased globalisation and internet piracy, a strengthening of intellectual property law is needed across borders. However extradition measures created for terrorism offences have no application in such circumstances.

A petition has been set up to campaign for a fair trial for Richard O’Dwyer in the UK.

Here is a short video on the case from RT News

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Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.