A UN panel terms the restriction on the whistleblower’s movement as arbitrary, but the governments of Sweden and the UK are in no mood to let him breathe easy
Shreerupa Mitra-Jha | February 13, 2016
On February 5, WikiLeaks founder Julian Assange brandished a copy of a UN report from the balcony of the Ecuadorian embassy in London. The report – a UN panel’s opinion on Assange’s case – vindicated the 44-year-old Australian who stood under the red, blue and yellow flag of Ecuador and declared, “This is a victory that cannot be denied. It is a victory of historical importance…”
The Working Group on Arbitrary Detention (WGAD), a United Nations’ body of independent human rights experts, adopted its ruling on Assange on December 4 last year and announced its views to the world two months later. It states that the deprivation of liberty of Assange is “arbitrary” calling upon the governments of Sweden and the UK to ensure his freedom of movement, and additionally “accord him an enforceable right to compensation”.
Under the authority of the UN Office of the High Commissioner for Human Rights (OHCHR), the WGAD was established in 1991 and is the highest authoritative body in the UN for conflict resolution between individuals and states, the rulings of which are recognised by the European Court of Human Rights (ECHR).
What happens now?
The opinion of the UN panel on Assange was dismissed by the governments of Sweden and the UK, the latter stating that the ruling “changes nothing” and that the London Metropolitan Police will arrest Assange if he leaves the premises of the Ecuadorian embassy. The British foreign secretary, Philip Hammond, called the opinion “frankly ridiculous” and added that the panel was a bunch of laypeople and not lawyers. Defending the panel and its members, Christophe Peschoux, chief of section for working groups at the OHCHR, said Hammond’s comments were “very disrespectful” and that panel members are internationally recognised experts in their fields.
The ruling also unleashed discrepant statements on whether the panel’s opinion was legally binding for the UK. While the UK ruled out any obligation, the UN said it was “indirectly binding” to the extent that it was based on international human rights laws. According to Melinda Taylor, Assange’s lawyer, the opinion is legally binding because the panel mentions treaties like the Universal Declaration of Human Rights, the International Covenant for Civil and Political Rights and the 1951 Refugee Convention – all of which both the UK and Sweden have ratified. The governments concerned have two months to approach the UN for a review of the decision. The UK has already declared its decision to do so.
Regardless of whether the opinion is enforceable or not, the panel’s ruling does put moral pressure on the governments concerned. In the past, WG panels’ opinions have led to the release of former Maldivian president Mohamed Nasheed and Iranian-American reporter for the Washington Post Jason Rezaian. The panels have also provided opinions on arbitrary detention for Myanmar politician Aung San Suu Kyi and former Egyptian president Mohamed Morsi though the latter has not been released yet.
After the UK declared the ruling “ridiculous”, Assange’s team of lawyers said they will go to ECHR. Taylor told a TV channel, “How can Great Britain sit on this [human rights] council and still violate international law?”
He says, she says, and what the panel says
The UK government presented the argument to the WG that Assange lives in the embassy voluntarily. His lawyers, in a counter-argument, said that in previous cases of WGAD, opinions had granted that deprivation of liberty exists when someone is forced to choose either confinement or forfeiting a fundamental right – such as the right to asylum – against a well-founded risk of persecution. His continuing stay at the embassy, therefore, cannot be termed as volitional. “The only way for Mr. Assange to enjoy his right to asylum was to be in detention,” they argued.
Also, the basis for Assange’s confinement has become so disproportionate that its nature is rendered arbitrary, argued his lawyers. It is important to note that in November 2010, a district court of Sweden had issued a domestic arrest warrant which was converted into an international arrest warrant – European Arrest Warrant or EAW which works within the EU and Interpol Red Notice – and which was done without judicial oversight. However, in the last five years Sweden has still not charged Assange and the investigation has remained at a preliminary stage. The Swedish prosecutors have rejected all suggested alternative methods of interrogating Assange short of him leaving the embassy. They have argued that his personal presence is required though it is unclear why that is considered an absolute necessity. Thus, Assange remains in a situation of indefinite detention without any charges formally slapped on him. Last year, though Swedish authorities dropped two cases of sexual molestation against him, the more serious allegation of rape remains.
“He has been available for questioning. He exited the country with legal documents. He was available first in Sweden, Germany and then Great Britain. It was extraordinary that an EAW was initiated,” said judge Baltasar Garzón, director of the legal team of Assange, at a press conference in Geneva in January last year. “There have been a number of petitions why the Swedish government has not questioned him [yet],” he added.
Ironically, the UK’s supreme court in 2013 made changes to its extradition legislation following the Assange case. The UK will no longer permit extradition of individuals under an EAW where the warrant has not been initiated by a judicial authority, unlike in Assange’s case where a domestic arrest warrant was converted into an EAW by a prosecutor. Moreover, the UK will also not permit an extradition under EAW on the basis of a bare accusation, like in the Assange case, but only after a completed decision to charge and prosecute and also, will extradite only after a consideration by a court of its proportionately, again, unlike what happened with Assange. However, these changes cannot be applied retrospectively which means that though the positive changes were triggered by the Assange case but Assange himself will not benefit from them.
The Swedish government has further argued that “there is no causal link between the Swedish EAW and Mr. Assange’s confinement.” The British, however, have said that the only reason for hounding Assange is their obligation to extradite him under the EAW. The Scotland Yard had confirmed in October last year that the Metropolitan Police’s round-the-clock guarding of the Ecuadorian embassy has cost the British taxpayer 12.5 million pounds causing a furor among the British public.
The disproportionate nature of his detention also accrues from the fact that the Swedish district court does not recognise the 10 days in isolation in Wandsworth prison, 550 days under house arrest in the UK and more than three years in the Ecuadorian embassy, as a deprivation of Assange’s liberty. As such, he has spent more time in detention than what he would have had to if the rape allegations were to be proved true.
Therefore, neither can Assange avail the rights of an undertrial including access to exculpatory material, nor have the basic rights guaranteed to detainees, including health rights – the Met police threatened to arrest Assange when he was required to go out for an urgent MRI in December last year.
The UK and Sweden additionally do not recognise the “diplomatic asylum” (as opposed to political asylum) given by Ecuador arguing that the UK is not a signatory to the Caracas Declaration and, therefore, has no obligation to recognise it. However, both the UK and Sweden have practised diplomatic asylums in the past even though they are not signatories to this convention. For instance, the UK was prepared to give diplomatic asylum to a large number of people in Iran under the Shah in its Tehran embassy.
Sweden has also argued that though it is a signatory to the 1951 Refugee Convention, the right to seek and enjoy asylum does not apply if an asylum has been sought for an ordinary, non-political crime. However, Assange’s legal team has argued that Sweden has misconstrued the basis for him seeking asylum which is a “well-founded fear of persecution” if he were extradited to Sweden rather than to escape rape investigations. Though Sweden has maintained that no country (indicating to the US) has asked for Assange’s extradition, the US, his lawyers argue has been building a case against him. In May last year, the US admitted that there is an ongoing FBI criminal investigation on Assange for leaking secret official documents. The US may file an independent extradition request any time if the EAW proves ineffective.
“Both Sweden and the Great Britain have not given him any assurances that he will not be extradited to the US and that’s the foundation of why he is in the embassy,” Taylor stated after the UN verdict. “The UN special rapporteur on torture ruled that the interrogation techniques applied to Chelsea Manning constituted cruel and inhumane treatment where [during the interrogation] he was asked about WikiLeaks and Julian Assange,” she added.
The computer hacker, who founded WikiLeaks in 2006, had released 5,00,000 secret US military files on the wars in Afghanistan and Iraq and 2,50,000 diplomatic cables in 2010 chronicling civilian killings and bloody encounters enraging Washington. The detention for rape investigation is a front for his final extradition to the US under espionage charges, his lawyers argue. They also state that the US has ongoing talks with Sweden regarding his extradition.
“Julian Assange and WikiLeaks are targets of a massive US criminal investigation for their journalistic activities going back at least four years,” said Michael Ratner, WikiLeaks’ US lawyer last year. Bolstering Ratner’s claim, Google had admitted that the US enforcement officials had wanted all data related to three of WikiLeaks’s journalists, including Assange. “It was clear that one way or the other he would be stopped,” said Garzón in the press conference last year.
The panel opined that Assange has been subjected to different forms of deprivation of liberty since 2010 to date “as a result of both the actions and the inactions” of Sweden and the UK. “The arbitrariness is inherent in this form of deprivation of liberty” when an individual has no access to legal assistance. Despite the asylum status granted by Ecuador, the UK and Sweden have not recognised his changed status since 2012, him being subject to intensive surveillance by the British police, including monitoring by an electric tag when he was under house arrest.
The only basis for such deprivation of liberty is the EAW issued by Swedish prosecutors on the basis of rape allegations. However, the case has been frozen at the preliminary investigation stage which is made to determine whether it will lead to an indictment or not. Though Assange has expressed his willingness to participate in criminal investigation the matter has not moved in last five years. Therefore, Sweden has assigned him to a fate of indefinite detention.
“Assange is in a catch-22 situation where if he stayed in the Embassy, he could be detained indefinitely, but if he left he would be the next victim of the US’ war on whistle-blowers,” Taylor wrote in an editorial. Moreover, the panel ruled that the fear of persecution on the part of Assange based on the possibility of extradition should have been given better consideration in the criminal investigations instead of dismissing it as irrelevant or hypothetical.
Finally, Assange, the panel ruled, had a right to compensation for his five years of deprivation of liberty.
As with most international laws, opinions from UN panels do suffer from lack of an enforceability mechanism. The verdict, nevertheless, has put the UK and Sweden in a somewhat tight spot.
The unfolding events indicate that even though the judgment is a huge morale booster for the whistleblower’s cause, there would be much legal and diplomatic rumpus if and when Assange walks free again.