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The United Nations Working Group on Arbitrary Detention decision on Assange: ‘ridiculous’ or ‘justifiable’?

Published on February 9, 2016        Author: 

The UN WGAD Assange decision has been met with general ridicule from British officials, legal academics and the press. This piece seeks to bring some balance to the coverage on this decision, which consistently fails to outline the arguments which persuaded the Working Group.

The central argument of Assange’s lawyers’ proceeds on the basis that his confinement in the Ecuadorian embassy ‘cannot … be characterized as volitional’ (para 13). He is not free to leave, because he is protecting himself from the violation of other human rights: ‘the only way for Mr. Assange to enjoy his right to asylum was to be in detention’ (para 11). If Assange were to leave he would be arrested in the UK and extradited pursuant to a European Arrest Warrant (EAW) issued by Sweden. Consequently, he would expose himself to the risk of a ‘well founded fear of persecution’ were he to be extradited to the US from Sweden (para 12). In the words of Assange’s lawyers:

The source submits that Mr. Assange was deprived of his liberty against his will and his liberty had been severely restricted, against his volition. An individual cannot be compelled to renounce an inalienable right, nor can they be required to expose themselves to the risk of significant harm. Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterised as ‘volitional’ (para 13).

Assange’s lawyers moves on to the failure of the Swedish authorities to pursue their investigation through less restrictive means. Simply put, the Swedish authorities have ‘not established a prima facie case’ and have refused ‘unreasonably and disproportionately’ to ‘question him through alternative means offered under the process of mutual assistance’ (para 13). Furthermore, they argue that Assange has been deprived of the opportunity to know the case against him, to provide a statement regarding the charges against him, and thus to defend himself against the charges. This combination of factors thus also bears upon the principle of audi alterum partem and the presumption of innocence. The cumulative result of all of these conditions, and the failure to guarantee non-refoulement to the US, have resulted in a situation in which, on Assange’s argument, he has in effect been arbitrarily detained. The argument on arbitrariness rests on a claim of disproportionality:

‘any hypothetical investigative inconveniences regarding the interview of Mr. Assange by video link or in the Embassy pale into insignificance when compared to the grave risk that refoulement poses to Mr. Assange’s physical and mental integrity’ (para 18).

In essence, the UN WGAD had to decide two questions. Firstly, whether there was a ‘deprivation of liberty’ as opposed to a ‘restriction of liberty’. Secondly, assuming the answer to the first question is in the affirmative, whether that deprivation of liberty was ‘arbitrary’.

In response to the first question, the UN WGAD clearly accepted the argument that Assange’s conditions are not volitional, or self-imposed. The weakness of the UN WGAD decision is that it fails to address this point directly and clearly. Its justification was based instead on ‘substantial failure’ of the authorities ‘to exercise due diligence’ in the ‘performance of criminal administration’ (para 98). Inter alia, it castigated the authorities for failing to weigh up Assange’s rights to non-refoulment and asylum which should be been ‘given fuller consideration … instead of being subjected to a sweeping judgment as either merely hypothetical or irrelevant’ (para 98). The discussion doesn’t however either explicitly endorse the argument that Assange’s residence in the Embassy ‘cannot be characterized as volitional’, or directly refute the dissenting argument that Assange’s position is one of ‘self-confinement’. This is the weakness in the report which all critics have exploited. On this, there are a few points worth making.

The line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in human rights jurisprudence ‘as a matter of degree or intensity, but not one of nature or substance’ (Guzzardi). As counterintuitive as it may seem, liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention, where individuals are detained through the direct actions of the State against their will. The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. This doesn’t only relate to the length of time that Assange has remained in the Ecuadorian Embassy. Simply put, liberty must be capable of being realized in actuality. Where the exercise of such liberty would have coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice.

There is precedent for such an approach in previous UN WGAD decisions. These demonstrate that the UN WGAD subjects states to a test of higher scrutiny where the negation of other rights would follow from the exercise of the subject’s liberty. To argue that Assange has been ‘self-confined’, as is the case in the dissent, is to argue that he has chosen his conditions of residence in the Ecuadorian Embassy by his free will without any coercive factors leading to this decision. But such an assertion would be to ignore the conditions which resulted in his decision to seek asylum in the Ecuadorian Embassy in the first place, and in his decision to remain there. He is not free to leave of his own will. Assange fears ultimate extradition from Sweden to the USA on the grounds of his involvement in Wikileaks. This is arguably a ‘well founded’ fear, given the sentencing and treatment of Chelsea Manning in the USA, and the decision of Edward Snowden to take up asylum in Russia.

On the second question, the UN WGAD was persuaded that the confinement is disproportionate and thus arbitrary. In other words, it agrees that there could have been another way. Before issuing a EAW, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange took residence in the Ecuadorian Embassy they could have relied on ‘mutual assistance’ protocols and questioned Assange by video link (which he offered). He could have been provided the chance to respond to the allegations against him, or been provided with an assurance related to his refoulment to the US.

The UK and Sweden currently justify their position on the basis of the EAW procedure. Two UK Supreme Court justices considered this EAW invalid under UK law because they were issued by a prosecutor and not a judge, and one dissenting Swedish Supreme Court judge considered it disproportionate in the circumstances. Moreover, due to general political concern in the UK and pursuant to parliamentary debate, the EAW conditions have been tightened since the initial Assange decision. Despite the impact these safeguards might have to his confinement, the UK government argues that they do not apply retrospectively to Assange. There is still no charge against Mr. Assange, and he does not have the full case against him. He has, under international, European, and domestic law, the right to be presumed innocent until proven guilty. He has offered to respond to the process in other ways, and has offered to co-operate fully if he had a further guarantee of non-refoulment.

Whether or not you believe Mr. Assange is guilty of a sexual offence, whether or not you think he is a self-publicist deliberately resisting arrest, the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden. Were the current UK safeguards on the EAW to be applied to Mr. Assange retrospectively, in particular the question of ‘judicial authority’ and ‘proportionality’, it is arguable that the existing EAW would be invalidated and the conditions resulting in Mr. Assange’s continued confinement would shift. Moreover, it is arguable that 10 months on, the Swedish Supreme Court view may well move closer to the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation are now disproportionate. According to the Guardian:

“the split decision suggests that the supreme court’s position on proportionality is not set in stone, according to Anne Ramberg, the head of Sweden’s Bar Association. “The reasoning of the court indicates that it may take a different view with the passing of further time…” she said.”

Certainly, the Former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs, Hans Corell, has stated that he “does not understand why the prosecutor had not questioned Julian Assange during all the years he has been at the Ecuadorian Embassy”.

Reasonable minds may differ on many of these issues, and may be coloured by our particular position on the integrity of Assange himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all.

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12 Responses

  1. Miroslav Baros

    Many thanks Liora for this reasoned and well-balanced analysis. To me, and what I stated earlier (http://www.ejiltalk.org/julian-assange-and-the-un-working-group-on-arbitrary-detention/comment-page-1/#comment-241042) the essence of the case is the application of the Refugee Convention 1951 and the duty of non-refoulement, not any other form of asylum, like the so-called “diplomatic asylum”. Consequently, the case, to me may be summarily stated as follows:
    1. Failure of Swedish prosecutor to act diligently as the Swedish Appeal Court ruled in October 2014 (the prosecutor did not want to question the individual in the Embassy? Why wasn’t the prosecutor guided by the fact that “the alleged rape of a woman is one of the most serious violations and abuses of human rights”? Was there a more important consideration in the prosecutor’s mind than protecting this victim’s rights? This was recognised by the Swedish court as stated above”…investigation into Assange had come to a halt and prosecutors’ failure to examine alternative avenues of investigation “is not in line with their obligation” – so, it is the Swedish court criticising their own prosecution rather than this individual’s supporters’ recourse to creativity as stated by a participant in an earlier post.
    2. Mr Assange has never been charged with any offence! Why is this fundamental point so often ignored?
    3. Mr Assange has not fled Sweden but left it when his work permit expired.
    4. Mr Assange always said that he would avail himself to any procedure by the Swedish authorities if guarantees would be issued that the whole episode was not about an espionage case and extradition to the US.
    5. All the above resulted in a deprivation of liberty as recognised and ruled by the WGAD.

  2. Terry Washington

    Much of the arguments advanced by Mr Assange and his supporters border on the ludicrous at best- and beyond nonsensical at worst. Were he to be sought by a tyrannical or autocratic polity( Saudi Arabia North Korea, Putin’s Russia) his fears of persecution might be justifiable but given Sweden’s status as a model Social Democracy and its record of sturdy independence in international affairs(it not only sheltered Jews and other refugees from Nazi tyranny during WWII, but refused to join NATO during the Cold War, and harboured thousands of American “draft dodgers” during the Vietnam War despite the visible annoyance of the Johnson and Nixon administrations) make it unlikely that Sweden would turn him over to the US for any reason.And has nobody noticed that it was Assange’s decision to jump bail from the British courts and seek refuge in the Ecuadorian Embassy???

  3. Nihil Aliunde

    Just a few personal observations:

    “Simply put, liberty must be capable of being realized in actuality. Where the exercise of such liberty would have coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice.”

    Yes, but the questions should be were these “coercive results” fundamentally lawful or not. The very nature of a criminal investigation is to have such results. Even more. It’s hard to even imagine how a criminal investigation could be efficaciously put in practice without such results.

    “But such an assertion would be to ignore the conditions which resulted in his decision to seek asylum in the Ecuadorian Embassy in the first place, and in his decision to remain there.”

    Which were? Why did he seek the asylum in the first place?

    “Assange fears ultimate extradition from Sweden to the USA on the grounds of his involvement in Wikileaks. This is arguably a ‘well founded’ fear, given the sentencing and treatment of Chelsea Manning in the USA, and the decision of Edward Snowden to take up asylum in Russia.”

    I don’t think these cases are even remotely related. Both ES and CM were first of all american citizen and not just that. One was working for CIA and the other for the U.S. Army. They were not journalists or common “civilians” for that matter.

    Ironically, Assange seek asylium from the state which treats journalists in the same way Assange is feared to be treated by the USA.

    In other words these “well founded” fear would be maybe well founded if first of all the USA already made attempts to get him which they didn’t and secondly if it was even to be expected from UK, Sweden or any country within the EU and Council of Europe to allow the extradition of Assange to USA based on all the facts implied. At least the ECHR would clearly say “no” if not then we need to assume Europe as such is not ruled by the values of democracy, rule of law or human rights.

    But here is an even bigger flaw in this argument. Lets say the Swedish prosecutors drop the case and therefore the UK authorities won’t have any reason to arrest Assange based on the alleged rape case. Assange walks out. Meanwhile the USA demands extradition. What would in this case prevent the UK authorities to arrest him and start the extradition proceedings? This clearly shows how unrelated his “well founded” fear is to these rape investigation.

    But as I mentioned under another article I do agree Assange’s right were violated due to lengthy and disproportionate proceedings against him but that in my opinion has nothing to do with arbitrary detention from the point he decided to evade legal proceedings against him because if it had it would imply that as soon as an individual for whatever reason believes the legal proceedings against him are infringing his human rights or could do that and he start to avoid them the coercive results of such proceedings become automatically human rights infringements and he would be right to avoid them (which implies circular reasoning). The important fact is that he had all the freedom to end this “detention” any time. Saying no, he didn’t because if he did that he would face extradition to Sweden (or other coercive results) really doesn’t make no sense because it’s not up to Assange to decide about that but the courts. His rights can’t be violated just because UK wants to send him to Sweden to face criminal investigation.

    Based on such logic even Snowden should request an opinion from this UN working group and they should decide that he’s being arbitrary detained because he can’t leave Russia without the fear of being arrested and extradited to USA. That’s how absurd this reasoning is.

    My opinion therefore is that the time he spent at the embassy surely can’t be considered detention because no one prevented him to walk out not even the lengthy and disproportional proceedings which at the time he walked into the embassy didn’t even exist yet.

    I think Assange made a major mistake by seeking asylum from Ecuador because by doing so he simply lost his credibility and integrity. He should have seek justice within the UK’s, Swedish and Council of Europe legal system and there is no doubt he’d get it. Rather than that he went and made a deal with the government which is systematically infringing the most fundamental human rights and democratic principles (https://www.hrw.org/americas/ecuador).

  4. Heiko

    To me it is simple. There may be a reason to expel him to Sweden for rape, but not for treason. But the UK cant expel him for rape alone. So I was curious on what the UK courts had allready said.

  5. Cassandra

    Both Sweden and Britain are closely allied with the USA, Sweden is certainly no saint:

    https://www.hrw.org/news/2006/11/09/sweden-violated-torture-ban-cia-rendition

    The complainants lawyer (Claes Borgström) has been involved in one of the biggest legal scandals in Sweden (The Thomas Quick case) and he, as well as the complainants, have close ties to the current government political party (social democrats). His legal-firm partner is the previous minister for justice in Sweden (Thomas Bodström). This is the same political party as that of the current foreign minister whose ministry dismissed the WGAD report out of hand. It’s the same political party, and group of persons, involved in the above mentioned CIA-rendition.

    Will he “no doubt” get a fair trial in Sweden? Well, Swedish media has more or less unanimously declared him guilty, one social democratically aligned newspaper have repeatedly refereed to him as “Australian pig”, “white-haired crackpot”, “creep”, etc. It’s pretty clear what ruling the current social democratic government and chauvinists are hoping for. That is a problem in its own right.

    From Assange’s perspective he is doing what he can to avoid extradition to the USA. He is not being persecuted by Ecuador, so seeking asylum there makes perfect sense even if their HR record isn’t perfect (beggars can’t be choosers). It’s not the report that is weird, it’s the refusal by Sweden to give assurances and/or interview Assange in London, not to mention their arrogant attitude towards the UN.

    I’m also saddened that anyone questioning Swedish and UK actions are being labelled “Assange supporters”. Whether you sympathise with Assange or not is irrelevant, everyone should be treated equally before the law and presumed innocent.

  6. Nihil Aliunde

    “Whether you sympathise with Assange or not is irrelevant, everyone should be treated equally before the law and presumed innocent.”

    Exactly. But how is he not being treated equally? The only unequal treatment I see here is that Ecuador nor any other country would ever grant asylum to an alleged rapist unless he was “Assange”.

    The other day I realized that one of the alleged rape victims still insists she was raped (I thought both changed her mind but it seems only one did). How about her “equal treatment before the law”? I mean it seems to me that a lot of people treat this case as these alleged rapes didn’t happen and that it was all a set up to get him extradited to USA or unfairly convict him and imprison him. I think we can’t possibly talk about law or equal treatment if these accusations against him are not properly investigated and put on trial if enough evidence indeed exists.

    Obviously all his rights need to be safeguarded in the proceedings against him and any wrong doing from those who are prosecuting him should be sanctioned. No doubt about that. But not in the way to deny justice to the alleged rape victim. I would even agree he deserves a fair compensation. But not because he had to stay at the embassy for all these years (that was his choice) but because the procedures against him simply took too long (despite the fact he was avoiding them) and were clearly again his expected interests.

    “Will he “no doubt” get a fair trial in Sweden?”

    If he can’t get a fair trial in Sweden plus at the ECtHR then where can he? In Ecuador?

    What saddens me is that a lot of people can only see the worst case scenarios here which really give a person a feeling that as far as the protection of human rights is in question Europe or EU for that matter is as good as any third world dictatorship country. So, what did we get a Nobel prize for?

    “beggars can’t be choosers”

    Definitely not. But at the same time you can’t promote the freedom of speech etc. and then be quiet when such rights are breached just because it is in your personal interest to do so.

    The UN Working group decision would only make sense if based on granted asylum Assange had the right to be allowed to leave UK without being arrested. But based on the comments I read UK had no such obligation under international law. Not to mention that granted Assange the asylum could hardly have anything to do with human rights protection for the obvious reason that Ecuador would be allegedly protecting something that in its own country it is obviously not protecting at all.

    I might conclude that the problem in this case is that it turned out to be more political than legal. And that’s surely in Assange’s interest and surely not in the interest of his alleged rape victims.

  7. Cassandra

    Nihil Aliunde, most of your objections have already been addressed in previous comments (and the blog).

    The unequal treatment is most evident by the fact that the prosecutor has refused to interview Assange in London for several years now. Interviewing suspects abroad is normal procedure for Swedish prosecutors, yet the prosecutor has not in this case and she refuse to comment on why. If you compare how this case has been handled with other similar cases in Sweden I think you would find this case is exceptional and that there are many irregularities. The prosecutor has been criticised for her inaction repeatedly, as pointed out above even by the Swedish supreme court.

    Here’s an outline of what’s happened:
    20/08/10: The women contact police in order to force Assange to be tested for STDs. A criminal complaint is filed. Assange is arrested in his absence (standard procedure).
    21/08/10: Prosecutor dismiss the case.
    30/08/10: A new prosecutor decides to take on the case. A preliminary hearing is held with Assange who cooperates fully.
    27/09/10: Nothing has happened for almost a month and Assange travels to London as planed. An arrest warrant is issued the same day.
    18/11/10: The European arrest warrant is issued.
    19/06/12: After UK court decide the EAW is legal, Assange seeks political asylum at the Ecuadorian embassy (out of fear of refoulment to the USA).
    16/08/15: Three years later three of the allegations are dropped because of the statutes of limitations. The Swedish prosecutor has still not interviewed Assange in London nor charged him whit a crime. Sweden has not issued any assurance of non-refoulment.

    Ecuador has not granted him political asylum to avoid Swedish sex-crime-allegations, that is an absurd notion. He is afraid of persecution by the USA because of his involvement with Wikileaks. Considering how the US have treated Manning and Snowden, some US politicians even calling for his assassination, this is a well founded fear.

    The complainants rights should not be forgotten, indeed, and that just goes to show how blinded people are by their prejudices against Assange. Surely the complainants are also suffering because of the stalemate. Already three of four allegations have been dismissed because the statutes of limitations have been exceeded. They are being denied justice and Assange is being arbitrarily detained because of the prosecutors inaction (and Sweden’s refusal to give guarantees).

    (“So, what did we get a Nobel prize for?” For not starting yet another world war, supposedly thanks to the EU project, not because we have an infallible justice system.)

  8. Miroslav Baros

    This is a correct chronology Cassandra. It is symptomatic regarding this particular discussion that participants who state facts, law, relevant sources; cases; institutional involvement etc are branded “Assange supporters” by those who instead of relying on relevant sources are expressing their opinion only. “Ludicrous”; “ridiculous” “liberal democracies cannot violate human rights” (there are more than 120.000 cases before the ECtHR against “liberal democracies” if I may observe); “Mr Assange did not have any reason to fear” and similar expressions are used.
    A question is being continuously asked what the relevant authorities have precisely done to violate this individual’s rights? Again, according to refugee law “persecution includes a failure of a state to protect…non-derogable human rights” (please see Gashi and Nikshigi v Secretary of State for the Home Department [1997] INLR 96. The authority reflects the well-established principle of positive duty (X v Netherlands, 1969, ECtHR). A question is also posed: “Why did Ecuador grant asylum? The country itself violates human rights…” According to the international law principle of national sovereignty it is within states’ discretion to grant asylum (the Refugee Convention 1951 is clear of course that the discretion should not be abused and asylum granted to criminals). Regarding the claim that Mr Assange did not have any reason to fear persecution all I can say is that under refugee law, the required standard of proof is not actually very high; it is lower than “balance of probabilities” in civil proceedings, meaning more likely to succeed than not. The standard is “real likelihood” or “reasonable chance” that persecution may take place (please see: Fernandez v Government of Singapore [1971] 2 All ER; 1 WLR 987, HL). Did Mr Assange have well-founded fear of persecution? Well, maybe the best way to handle the question would be to ask readers to, for a moment try to be in this individual’s shoes and to honestly ask themselves what they would be thinking. Talking about “objective” fear (if participants insist?) there is an interesting case recently, which indicates how sensitive circumstances surrounding this episode may actually be. In October 2015, in Case 362/14 Schrems v Data Protection Commissioner (the “safe harbor” ruling), the Court again considered the processing of personal data by reference to Charter on Fundamental Rights, Articles 7 and 8. Max Schrems, an EU privacy activist, decided to file a complaint to the Irish DPA in order to stop the transfer of his data by Facebook Ireland to Facebook Inc. located in the US. The Court struck down an arrangement with the US which allows EU citizens’ data to be transferred to other countries provided their laws ensure an adequate level of privacy (please see: Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/96 on the adequacy of the protection provided by the safe harbour privacy principles. I leave the readers to draw their own conclusion about the implications of the case.
    As stated by a participant: “…human rights are not meant to favour the popular amongst us; they are meant to favour us all.

  9. Nihil Aliunde

    “The unequal treatment is most evident by the fact that the prosecutor has refused to interview Assange in London for several years now.”

    This is a very narrow interpretation of what’s been going on. In the outline of what’s happened you clearly point out two important facts: 1. Swedish authorities issued the EAW and and even more importantly 2. UK court decide the EAW is legal. Up to this point there was nothing that could suggest unequal treatment. Then Assange does something that basically means breaking the law and by doing so you presume he is automatically granted the right to demand from Swedish authorities to accommodate his unlawful behavior by seeking alternative ways to achieve the same or similar goal that they seek to achieve when they issued the EAW. So, this is the context in which one is supposed to look at this matter. It’s not just about Swedish authorities not wanting to question Assnage but it’s also about Assange evading proceedings which would obviously allow the Swedish prosecutors to do just that. It seems that for some people these two facts are completely irrelevant. Why do then we even have EAW if they are so irrelevant. And why do we have courts if their decisions are so irrelevant and that all that matters is whether someone believes his rights are being breached or that they might be. This is what I find really ridiculous. As if the UK courts didn’t consider Assange’s “fears”. But because they didn’t consider it in the way Assanged wanted them to then such a considerations automatically becomes completely irrelevant.

    And as I pointed out despite all this one can indeed conclude that the proceedings against him were taking too long but when it comes to interrogation it wasn’t just about what the Swedish authorities wanted or didn’t want but what the Ecuadorian authorities were willing to accept as well. For example, I read that Ecuador never allowed for the Swedish prosecutors to interrogate Assange in person inside the embassy.

    Further more personally I don’t think the equality before the law is breached every time someone’s rights are being infringed (that would be absurd) but it has to be proven that the unequal treatment was intentionally applied to handicap a particular individual based on his personal circumstances. In other words unless the Swedish prosecutors delayed the case intentionally because Assange was involved in it only then we could possibly talk about such unequal treatment. Not handling the case properly definitely can’t automatically mean unequal treatement.

    “Interviewing suspects abroad is normal procedure for Swedish prosecutors…”

    As it probably is to issue an EAW.

    “Sweden has not issued any assurance of non-refoulment.”

    Why should they do that’ If such assurance is an obligation under international law? And why should they if it’s not? Why do you think a person being suspected of a rape crime in a sovereign country is eligible to set conditions based on which he is going to cooperate with authorities or not? I mean just imagine: someone accuses you of raping someone then the police comes to your home to arrest you and your lock yourself in the basement and then you say, sure, but I will only let you arrest me if you assure me that you will do this, this, this and this. Even if Sweden issued such assurance what would then happen if the USA demands extradition based on international treaties Sweden has signed and ratified? Could Sweden then just say, sorry, we promised Assange to break international law for him?

    Also, what would happen if Swedish prosecutors finally charge Assange with rape and the case ends in court? How would that change anything from the Assange’s point of view? Would then he agree to be arrested and sent to Sweden for trial? I don’t think so because he would keep using the “USA wants me” argument. What might be the outcome then? He being tried in absence and if convicted he will be serve sentence where? At Ecuador embassy?

    The thing many seems to not realise is that from the position of Assange this rape allegation case is dead from very beginning. For him there never was such a case because for him he simply was no guilty. But to make everything more plausible he made up all these “fears” with which he in the end “bought” himself a ticket to Ecuadorian embassy. And indeed he might be even innocent and he indeed is until he’s proved guilty but based on his position his innocence is not even supposed to be questioned.

    “Ecuador has not granted him political asylum to avoid Swedish sex-crime-allegations, that is an absurd notion.”

    Because Ecuador is saying so?! Do you have anything more substantial to back up such a claim? It is definitely less absurd than claiming it granted him political asylum to avoid USA persecution for a simple fact that such prosecution is a common practice in Ecuador. So, once again, let someone explain me how can we believe Ecuador is sincerely protecting the same human rights it is systematically breaching? That’s the absurd part.

    “They are being denied justice and Assange is being arbitrarily detained because of the prosecutors inaction (and Sweden’s refusal to give guarantees).”

    They are being denied justice because Assange decided not to comply with the UK court decision (how about equality before the law in this case – aren’t courts decision binding for him?). It seems that for you, again, this fact doesn’t matter at all.

    And one can’t possibly be detained if such “detention” is based on his will alone. No one locked him up in the embassy. Just because he might have his own reasons to not walk out of it that doesn’t mean he is being detained because of the simple fact that his reason (whatever they might be) are not legally justifiable. We have a court decision that says Assange can be sent to Sweden. That’s what the law says. And many point out (even the article we are commenting under) that even the UN working group didn’t explain why his stay at the embassy was not self-imposed which is to expected because logically it can’t be explained at all. They simply “invented” the relation between faulty proceedings against him with his stay at the embassy that is logically absurd.

    “For not starting yet another world war, supposedly thanks to the EU project, not because we have an infallible justice system.”

    Citation from the official Nobel prize website: “Prize motivation: “for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe“.

    No justice system will ever be infallible but that doesn’t mean it’s up to anyone to decide whether the justice system in his or her case failed or not.

    Personally I have nothing against Assange. But what bothers me is that apparently for some people it is ok to forget how the law is supposed to work. I perfectly agree that Sweden maybe didn’t even have legal ground to issue an EAW. Based on this I can also agree that the UK courts decision to allow extradition based on this EAW was wrong. But if it comes down to everyone being a legitimate “judge” in their own cases then I don’t think law really matters in the end but rather how much resources and opportunities one have to avoid law being applied on his or her actions.

  10. Nihil Aliunde

    ““Ludicrous”; “ridiculous” “liberal democracies cannot violate human rights” (there are more than 120.000 cases before the ECtHR against “liberal democracies” if I may observe);”

    Indeed they can but the point I am personally trying to make is hidden in the same above citation. Who is to decided about these violations? Me, you, Assange… No, courts, in particular you mention ECtHR. That’s the point. What Assange “fears” or not in this case was not a decision form the ECtHR was it? Nor any other court for that matter.

    “Again, according to refugee law “persecution includes a failure of a state to protect…non-derogable human rights””

    Why don’t you use the logic from the first citation? On one side people doubt the validity of UK courts decisions, Swedish and UK authorities proceedings etc. on the other side they accept for granted the fact that Ecuador granted asylum to Assange. There is no doubt the asylum was granted but have you ever asked yourself how legitimately it was granted? Because one could question this as well. What if it was a total misuse or abuse of international law? How did it affect alleged rape victims? The way I see it it’s not just about achieving “justice” for Assange but about achieving “justice” as such.

    And then you go on saying: “According to the international law principle of national sovereignty it is within states’ discretion to grant asylum (the Refugee Convention 1951 is clear of course that the discretion should not be abused and asylum granted to criminals).”

    Indeed, and is it not part of the national sovereignty to bring to justice criminal offenders? So, how did Sweden got it wrong to issue an EAW and how did UK got it wrong to comply with it after the court verdict? They are both sovereign countries claiming such granted asylum has no effects on their sovereign territories. If they are wrong then as I mentioned before the UN Working group opinion make sense. If they are right then there is no case of “arbitrary detention” whatsoever.

    “Regarding the claim that Mr Assange did not have any reason to fear persecution all I can say is that under refugee law, the required standard of proof is not actually very high; it is lower than “balance of probabilities” in civil proceedings, meaning more likely to succeed than not.”

    Again, who is to decide about such claims? In this case the UK court did. So, what is the morale of the story here? If the UK courts decide your fear of persecution is not justifiable then go to Ecuador’s embassy to get the asylum which would then be the proof that the UK courts were wrong?

    “Well, maybe the best way to handle the question would be to ask readers to, for a moment try to be in this individual’s shoes and to honestly ask themselves what they would be thinking.”

    That’s a good point but as I keep repeating Assange already was in Sweden and he traveled there based on his own choice and even with the intention of staying and working there (he officially applied for such permission which was later denied). Now, try to explain me why would someone who feared Sweden would send him to USA do that? And how come he conveniently changed his mind after the rape case?

    It seems indeed that some people only question those circumstances which are against Assange and some other do just the opposite. I am just trying keep things in balance. There is certainly been things going wrong in the proceedings against him but definitely not as wrong as the UN Working group suggested. Because in the end my point is that Assange has to face rape allegations as long as such allegations on a legal basis exist. And he’s been avoiding them in the way that personally I don’t find legally justifiable. But obviously I understand that no one would like to go to jail. Not even Assange.

    So, sure, lets rely on relevant sources but they need to be objectively and not unbiasedly interpreted in the context of the particular case. I don’t believe anyone here believes it would be right, just or legal to send Assange to USA. That’s a non-case. But at the same time it wouldn’t be right, just or legal not to send him to Sweden if they indeed have a solid rape case against him. But in the end that’s not something that is decided on blogs but in courts.

  11. […] for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk […]

  12. Mark Pryce

    Why would the US have wanted to extradite Assange from Sweden rather than the UK? This leap of logic has alluded me ever since the extradition saga became public.

    If the prosecution in Sweden is in fact, as Assange claims, a smokescreen for his refoulement onward to face politically motivated charges in the USA, why would the USA not simply have empaneled a Grand Jury, sought charges for espionage, and applied for his extradition from the UK directly?

    The UK – USA Extradition treaty does not make this particularly difficult. I see no coherent reason for a Swedish leg and have heard no arguments in favour, including from Assange and his lawyers. It’s pretty fundamental, as it goes to whether his expectation of refoulement is well-founded, which in turn goes to whether his current confinement is or is not self-inflicted.