We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).
To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.
The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.
What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.
Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion.
The Working Group considered that Mr Assange’s detention was in violation of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights. Article 9 of the UDHR provides that ‘No one shall be subjected to arbitrary arrest, detention or exile’, while Article 10 sets out the right to a fair trial before an independent and impartial tribunal. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Article 9 ICCPR covers the right to a fair trial and provides that:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Article 10 ICCPR provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’ while 14 covers the right to a fair trial in all its aspects. The UDHR is not a treaty, but a resolution of the UN General Assembly, although most of its provisions are considered to reflect customary international law binding on all States. The ICCPR is a treaty and both Sweden and the UK are parties to and bound by it.
Accordingly, the Working Group considered that Mr Assange’s detention fell within Category III as defined in the Group’s Methods of Work; that is, that it:
When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.
As a result, the Working Group requested the Swedish and UK Governments ‘to assess the situation of Mr. Assange, to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention.’ It also stated that it considered that an adequate remedy would be to bring Mr Assange’s detention to an end and to afford him an enforceable right to compensation.
There is, however, an enormous elephant in the room which the Working Group’s opinion entirely ignores; that Mr Assange voluntarily entered the Ecuadorian embassy and, in breach of his bail conditions, has remained their ever since. Moreover, even prior to his taking refuge, Mr Assange was not in detention but on bail, albeit subject to a number of conditions. The Working Group analysed Mr Assange’s situation as having encompassed three forms of ‘deprivation of liberty’. The first was the 10 days spent in HMP Wandsworth between 7 and 16 December 2010 before being granted bail. The Working Group ‘expressed its concern that he [Mr Assange] was detained in isolation at the very beginning of an episode that lasted longer than 5 years. The arbitrariness is inherent in this from of deprivation of liberty.’ This, however is an entirely ex post facto reading of the situation. There was no way the UK authorities could have known then how long matters would continue. And the fact that Mr Assange was able to access a court and gain his release on bail, one might think, suggests that his initial detention was not arbitrary in the sense of lacking legal safeguards.
The Working Group viewed matters differently, as its second period of deprivation of liberty was the 550 days when Mr Assange was on bail. This is described as ‘a prolonged period of house arrest [during which] Mr Assange had been subjected to various forms of harsh restriction, including monitoring by an electronic tag, an obligation to report to the police every day and a bar on being outside his place of residence at night..’ One might consider that the very fact that Mr Assange was able to leave his assigned place of residence during the day meant that he was not under ‘house arrest’ but rather simply subjected to a curfew (and that the ‘harshness’ of his bail conditions were justified by the risk that Mr Assange might abscond and, indeed, did not prevent him from doing so). In his individual dissenting opinion, Mr Tochilovsky pointed out that previously the Working Group had considered that when a person is allowed to leave his place of assigned residence the situation is one of restriction rather than deprivation of liberty, and consequently outwith the Working Group’s competence. And as for the length of time, it should be recalled that it was during this period that Mr Assange was challenging the European Arrest Warrant all the way up to the UK Supreme Court. The only comment on this issue made by the Working Group is ‘to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.’
The final period of deprivation of liberty was, of course, the period of Mr Assange’s stay in the Ecuadorian embassy in London. But Mr Assange’s decision to take refuge there was entirely his, and neither the Swedish nor the UK authorities have ever sought to prevent him from leaving. The Working Group criticised the Swedish and UK Governments for failing to recognize the asylum granted to him by Ecuador but provided no reasons why they should have. If States were obliged to respect other States’ grants of diplomatic asylum, then it would follow that a refusal to allow Mr Assange to leave the embassy unmolested would violate his right to liberty and security of the person. But no such obligation exists under general international law, and neither Sweden nor the UK are parties to the only relevant treaty, the OAS Convention on Diplomatic Asylum (see my earlier post here).
The Working Group grounded its categorisation of Mr Assange’s embassy stay as a deprivation of liberty on the basis that: ‘Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty’. The short point, however, is that Mr Assange was not ‘placed’ in the Ecuadorian embassy; he placed himself there. Mr Tochilovsky made the point very effectively in his dissenting opinion:
Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.
Mr Assange’s supporters are, not unnaturally, claiming that the Working Group’s opinion vindicates their position and requires Sweden and the UK to abandon their pursuit of Mr Assange. They point out that by refusing to follow the Working Group’s advice, the two States are putting themselves in unattractive company. Both the Swedish and the UK Governments, however, have already announced their disagreement with the opinion, and, as we have seen, they are under no legal obligation to comply with it. Indeed, it cannot be argued that they have failed to give ‘due consideration’ to it, as their opposition has been motivated. One might ask whether the real loser here is not the UN system of human rights protection. By producing such a poorly-reasoned opinion, the Working Group has brought itself into disrepute, whilst Sweden and the UK’s decisions not to follow the Working Group’s advice is likely to encourage other States to do the same in other, less acceptable circumstances.