Julian Assange and the UN Working Group on Arbitrary Detention

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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.

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    Comments

    Joanna Harrington says

    February 5, 2016

    Thank you Matthew. Your analysis is spot on. The press release from the OHCHR for the WGAD does not help matters as it advises editors that:

    "The Opinions of the Working Group on Arbitrary Detention are legally ­binding to the extent that they are based on binding international human rights law, such as the International Covenant on Civil and Political Rights (ICCPR). ... The binding nature of its opinions derives from the collaboration by States in the procedure, the adversarial nature of is findings and also by the authority given to the WGAD by the UN Human Rights Council. ..."

    http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17013&LangID=E

    Miroslav Baros says

    February 5, 2016

    Mr Assange claims that he has been vindicated. I guess this contribution has vindicated the UK and Swedish authorities now. But has it?
    I am tempted to ask the author if he would adopt the same line of argument in relation to a hypothetical situation: say an individual is sought by the Zimbabwean authorities for questioning (not charged with any offence yet); he flees to Venezuela and is given refuge by the UK embassy in Caracas. The Venezuelan authorities threaten to arrest him as soon as he makes it on the pavement". But no, I am not going ask the question!
    But I have to say that I find the position that "the UN panel has discredited itself" rather disturbing and harmful. The whole purpose of the UN is to develop friendly relations among nations (Preamble, have we forgotten?) to protect and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;and to help develop a positive human rights culture. "Discredited itself" because a UN panel took principal position, acting in accordance with the stated purposes and to protect the individual against unjustified interference and violation of human rights? The UN Refugee Convention 1951 (Article 33) imposes duty on states not to return a person where his or her life or freedom may be in danger and states have a right under international law (Saadi v Secretary of State for the Home Department, 2004) to exercise discretion as a matter of national sovereignty to grant asylum. What would remain of this fundamental right if "there is no duty under international law" to respect other states' grant of asylum as an expression of the principle of national sovereignty.
    Let's also have the fact right in the present case: the accusation of alleged rape by Assange has been disproven by the Swedish prosecutors in 2010. But the case was reopened on insistence of Claes Borgström, a Swedish politician and lawyer, who represented the two women.
    After Assange left the country, Swedish investigators questioned 44 people in connection with the case in UK. Assange was not among them. The Swedish Court of Appeal (confirmed by Sweden’s Supreme Court) found in 2014 that the prosecutor had breached her duty in the Assange case by refusing to accept Assange’s statement in the UK for 5 years.
    Assange left Sweden after being denied a residence and work permit, not fleeing an imminent arrest. He departed five weeks after the initial accusations were brought before the Swedish police, during which time the prosecutor declined to question him on a number of occasions.
    He sought refuge because of an espionage case against him, which was confirmed on numerous occasion by the US Justice Department and FBI.
    Mr Assange has not deprived himself of liberty as tabloid style media and commentators suggest; his freedom of movement is prevented by the authorities who do not respect other states' sovereignty and sovereign choice.

    Marek Linha says

    February 6, 2016

    Dear Matthew, your point that "Mr Assange was not ‘placed’ in the Ecuadorian embassy; he placed himself there" does not alone satisfactorily resolve the question of whether a specific situation does or does not constitute detention. Recall Amuur v. France, where France argued basically the same thing in respect to refugees held at the international zone of an airport. The Somali refugees arrived there themselves and were free to take a plane and go back to where they came from. The ECtHR has dismissed the argument, and rightly so.

    Terry Washington says

    February 6, 2016

    This "opinion" by the UN Working group is absurd!
    Firstly Assange fled from bail granted by the UK Supreme Court when it appeared that it would order his extradition to Sweden( and as the Guardian itself, hardly an uncritical admirer or the UK or US Governments, noted "allegations of sexual misconducr or coercion" as entertained against Mr Assange by Swedish women certainly do not fall under the claims of "political offences"). As for claims that if he is extradited to Sweden he will be turned over the US, these are a nonsensical non sequitur, contrary to the claims of his supporters. Sweden is a model social democracy with an admirable record of sturdy independence in international affairs- it sheltered Jews during WWII, refused to join NATO and as recently as the 1960s and 70s it willingly harbored thousands of young Americans "dodging the draft" from the Vietnam War despite the decided displeasure of the Johnson and Nixon Administrations!

    Miroslav Baros says

    February 6, 2016

    In my initial post I tried to state the obvious, commonsensical aspects of the issue; I deliberately avoided "injecting" it rule and case law intensive traits. Often, even though it is my job (!) I have a strong dislike towards buttressing my position and guarding my stance by reference to rules only, because frequently what one needs is a plea to common sense rather than, what I see an unwarranted formalism on occasion. And I don't like it because it may trivialise the value at stake.
    But let pursue this, personally unpreferred strategy and start by describing, legally the relevance and fundamental nature of the right to liberty and security of person.
    It is symptomatic that, domestically the right was given pivotal position even before the development of any global and formal human rights commitments.
    „No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. (Magna Carta (1297) XXIX (c. 9).
    This implicit hierarchy had also been judicially expressed. In Al-Fayed v Commissioner of Police of the Metropolis where, having considered an argument that proportionality should be imported into the test for the lawful exercise of a power of arrest, Auld LJ (implicitly rejecting any separate proportionality requirement) stated: „The extent, if at all, of that narrowing of the ambit or lightening of the burden on the claimant will depend on the nature of the human right in play - in this context one of the most fundamental, the Article 5 right to liberty ([2004] EWCA Civ 1579).
    That detention is unlawful unless authorised by law has long been recognised under the domestic law. In Liversidge v Anderson Lord Atkin stated that freedom from unlawful detention „is one of the pillars of liberty‟ and „in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act.‟ ([1942] AC 206).
    According to the Universal Declaration of Human Rights 1948 the right to liberty and security of person is the most fundamental of all rights. It is no surprise that this general consensus and the most „definitive statement on human rights in contemporary society ‟coupled it with the right to life in art 3.
    All subsequent universal and regional human rights documents accorded the same fundamental character to the right of liberty and security of person (ICCPR; ECHR; ACHPR; IACHR).
    The fundamental character of the right is also emphasised by the corresponding duty of the state to provide compensation for its breach15 and to allow access to a court for a review of the legality of the detention. (Article 5, 4 ECHR). International adjudication has always linked the right to the Rule of Law (Amuur v France [1996] 22 EHRR 533, para 50; Sadaykov v Bulgaria 2008 (App no 75157/01 C/C).
    Even failure to enable judicial control over interferences by the executive with the
    individual's right to liberty violates the rule of law (Article 5,3 ECHR).
    A prolonged arbitrary detention is categorised as a violation of customary international law of human rights together with genocide, slavery, torture or other cruel, inhuman, or degrading treatment or punishment and systematic racial discrimination (See for example „Restatement, Third, the Foreign Relations Law of the United States‟, 1987, Vol 2 American Law Institute 161) requiring instantaneous and unconditional application.

    The requirements of Article 5 ECHR go beyond benevolence and good will arguably implicit (although not sufficiently given) in the traditional concept of liberties and freedoms; it requires not only the protection of liberty but the security of the person as well. This protects the individual against arbitrariness often present in a depravation of liberty. A detention is arbitrary if it was pursued in bad faith or if it was not proportionate. (See Engel v Netherlands [1976] 1 EHRR 647, para 58; Tsirlis and Kouloumpas v Greece[1997] 25 EHRR 198, para 56; Bozano v France [1987] 9 EHRR 297).

    A detention must also be necessary, not only legal as the ECtHR put it in Witold Litwa v Poland (No.26629/95 - ). There is therefore a clear positive element in Article 5, as ECtHR stated in Amuur v France (Amuur v France that „any depravation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness…‟ ([1996] 22 EHRR 533, para 50).
    Secondly, the exceptions to the general prohibition to detain are clearly stated in art 5 ((1)(a)-
    (f); they provide an exhaustive list of circumstances in which a person can be lawfully
    deprived of his liberty meaning that interference with the individual's right to liberty and security may be effectuated for the specified purposes only, which reduces the latitude of states in determining what may constitute legitimate impingement.

    Finally, the two layers of assessing lawfulness of a detention confirm the fundamental character of the right; the procedural and substantive elements so to speak. The former relates to the ECtHR's requirement that any depravation of liberty must be prescribed by law (Sunday Times v UK (1970-80) 2 EHRR 245), while the latter relates to proportionality of the measure to restrict liberty. (Soldatenko v Ukraine [2008] ECHR 2440/07.

    The principal standard in terms of effective challenge to executive powers in relation to detention was adopted rather early in the domestic jurisprudence. In R v Governor of Durham Prison ex p Hardial Singh ([1984] 1 WLR 704) the Court ruled that the power to detain individuals is subject to certain limitations. Detention can be authorised only if: a) in one case pending the making of a deportation order and, in the other case, pending a removal; b) the power of detention is impliedly limited to a period which is reasonably necessary for carrying out the deportation, which will depend on the circumstances of the particular case; c) the Secretary of State should not exercise the power of detention if it is apparent to him that he is not going to be able to operate the machinery provided in the [the 1971 Immigration] Act for removing persons who are intended to be deported within a reasonable period (at 706).
    The Human Rights Committee, in its General Comment No. 35 on Article 9 also stated that “An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity, and proportionality.” (U.N. Doc., A/RES/70/175).

    All the above I am stating in order to remind us all of the fundamental nature of the value at stake. As WGAD in its opinion states: "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 notion of “arbitrary” stricto sensu includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary. It should not be forgotten that Mr Assange spent 10 days in isolation in London’s Wandsworth prison (see para. 5, 85 of WGAD opinion also).

    The fact remains that Mr Assange is legally speaking in Ecuador, not in the UK, but he is not free to leave the embassy and I can only at this point refer to my hypothetical scenario in the previous post and ask what line of (legal argument) would be pursued then?
    I am finally referring again to the original post: "Under international law there is no duty to respect granting of asylum". Oh dear! What is the point then of diplomatic presence and international relations? "You are a part of your country but you know what? I don’t respect it. You can exercise your sovereign choice to the extent that we will allow and to our discretionary judgement! What is the point of legal reasoning may I also put, if not, what D. Kennedy describes an "interpretative fidelity" of those who are bound by the legal formulation of a right. States have the right to grant asylum; but there is no corresponding duty (because it is not written down) to respect that right! Really? Do I have a right under law to tie up my shoelace? I could not find that one stated specifically anywhere! If supported by academics (I sincerely hope not), may I suggest this is a sad and worrying development for academic community as a whole.
    Oh, something else, the group is made of lawyers Mr Hammond.

    Michael G. Karnavas says

    February 6, 2016

    A well reasoned and measured analysis. The lawyers have creatively managed to highlight their client's plight, however responsible he may be for finding himself in self-imposed detention. Hyperbolic claims about the validity and enforcibility of the "opinion" make for good PR, but yield little profit in the long term. However, having scored this PR coup (and generating/reviving sympathy for Mr Assange) the lawyers may now be better placed in nudging Sweden along to take a more flexible and creative approach in resolving this rather simple but highly-charged matter. It will, of course, take two to tango. And a better reasoned "opinion" might have served the parties better.

    Sarah Joseph says

    February 6, 2016

    The Assange decision - my take. Apols for long post

    The good: it reminds us that the overall actions of the UK & esp Sweden have been disproportionate, which is a key factor in deciding if detention is arbitrary. People have lots of opinions on Assange, which often mask the weird behaviour of these govts.

    The detention encompasses the initial solitary detention, 550 days of house arrest & the whole period of time in embassy, deemed an "extension" of the first 2 instances of detention. The idea that the first 2 instances are 'detention' wasn't contested by the UK or Sweden (it was contested by the dissenter)

    In particular, the UNWGAD seems worried that Sweden resorted to an EAW so quickly, given it had the option of seeking to interview Assange in UK with his consent. Also it's continuing failure to interview him in the embassy (note that Sweden has interviewed many others in the UK).

    And fact that UK has changed its law such that extradition wouldn't be ordered to Sweden in same circs now, but law won't be applied retrospectively. (UNWGAD seemed to accept that legal change was driven by the Assange case).

    Also, Assange has apparently not been afforded certain rights of access to evidence that he is entitled to under Swedish law.

    Assange, as we know, hasn't been charged by Sweden. From memory this issue was explained in UK courts as a procedural quirk which is quite normal in the Swedish system, and not as important as it might seem from a common law point of view. But, before the UNWGAD, Sweden doesn't explain this quirk, so it's not surprising the UNWGAD focuses on it as a big deal.

    UNWGAD attitude to EAW seems to require "minimum impairment" approach to prosecutorial discretion. Though it is likely influenced by fact that Assange not charged. Ie may not take such a strict approach if he had been charged.

    Finally, UNWGAD finds that Sweden & UK have been bloody minded in refusing to contemplate any change in approach in light if Ecuadorian grant of asylum. Note it doesn't insist that asylum claim be accepted but that it be considered.

    In short, it seems a cumulative approach has been taken, with the sum of UK/Swedish actions amounting to disproportionality leading to the detention being arbitrary.

    It's good to see a UN body focusing on the substantive reasons behind detention, and the proportionality of actions of detaining States, which UNHRC rarely has (it tends to focus on procedures not substantive reason for instance of detention).

    The bad: there is no examination at all of the proportionality of Assange's actions. UNWGAD points out that his 5+ years of 'detention' are likely longer than any sentence he would've served in Sweden. Sure, but surely Assange is in (large) part responsible for that. As pointed out in the dissent.

    It's possible to argue that the first 10 days of detention + 550 days in house arrest were unnecessary while he pursued his legal rights in the UK (ie right to take action to resist extradition). But his own actions since have confirmed that it was reasonable to deem him a flight risk.

    Most importantly, it's not enough to just say blithely that the embassy stay is an extension of his detention. Is it "detention" at all? It can only be detention if his claims of likely persecution (ie likely to be sent from Sweden on to USA) are reasonable. I don't think they are. Either way, UNWGAD didn't analyse the issue. It may have just accepted Ecuador's decision but if so, it doesn't do so explicitly. It seems to ignore this issue, which isn't acceptable IMO.

    The tantalising kicker: check paras 100 - 101 of decision. They DON'T order release. They order an appropriate remedy taking into account his human rights. So, for example, an expedited Swedish interview in the embassy followed by the laying of charges could change the human rights status of the whole situation. Possibly maybe. (of course I also realise an interview could lead to Sweden dropping the whole thing).

    I realise that release is mentioned as a remedy in the press release but not in the decision. And it's only "a" remedy.

    Alessandra Asteriti says

    February 6, 2016

    Terry, unfortunately more recently Sweden participated in the extraordinary rendition of Mr Al-Zari and another individual at the request of the United States. Maybe Mr Assange and his legal team are thinking of this precedent.

    Sarah Joseph says

    February 6, 2016

    Apologies for the stilted grammar in my post. It was cut & paste from Facebook on an iPad.

    Joseph Nahal-Macdonald says

    February 6, 2016

    Really enjoyed reading this, Miro. Certainly very measured and not overly critical of what you acknowledge is a body with an important mandate in other situations. Can't really see how they would ignore the point about him hosing been on bail and then voluntarily entered the embassy, as it is such central point.

    Marko Milanovic says

    February 6, 2016

    Many thanks for this Matt, spot on. I would add that it is unfathomable that the Working Group would spend 14 pages of its opinion on summarizing the arguments of the parties, only to then say NOTHING substantive about why and how Assange's presence in the embassy constitutes a deprivation of liberty. (This is completely regardless of whether one thinks that the Swedish case against Assange is meritless, or has not been pursued with due diligence, which are issues outside the WG's jurisdiction). Assange went to the Ecuadorian embassy precisely to AVOID a deprivation of liberty (his arrest by the UK police), and it's simply absurd to say that the very method of his flight itself constitutes a deprivation of liberty. He may as well as have hid in a cave somewhere - would the WG's approach be any different?

    This lack of reasoning is only the worse because rigorous reasoning and expertise are the only sources of the WG's authority, and this is why essentially unreasoned opinions such as this one can only serve to undermine that authority. The statement Jo refers to about how the WG's opinions are legally binding to the extent that they are based on binding international law, like the ICCPR, just boggles the mind. I myself have opinions based on binding international law, but that doesn't make them binding on anyone (not even me). Even as a human rights lawyer I find this to be just an insufferable example of droit de l'hommisme.

    Ed Bates. says

    February 6, 2016

    A member of the WG was on BBC TV 'Newsnight' last night (Friday 5 Feb 2016) [on BBC i-player, about 20 mins 30 secs in]. Unfortunately his responses on the issue of why there was a deprivation of liberty were (to me) as opaque (putting it politely) as the WG's opinion itself. His main criticism seemed to be about the lack of due diligence on the part of the Swedish authorities, although subsequent questions to him on that did not inspire much confidence...

    Does anyone know why, if Assange was claiming deprivation of liberty, he did not bring a claim under the HRA, or try to take his case to Strasbourg (was this considered, or even argued for, in domestic legal phases?)?
    Even if he had been detained, it would seem that there were arguable grounds for his detention under Art 5(1) (which is not to say that it could not be arbitrary).

    Sarah Joseph says

    February 6, 2016

    Ed, I don't know a lot about the WG but on Twitter some are saying it has a very high success rate for applicants ... unlike the ECHR.

    Also, its page on international complaints doesn't mention any rule re domestic remedies, & they aren't mentioned in the decision, alleviating any need to pursue HRA, where it'd seem success v unlikely (could only be based, surely on the non refoulement argument).

    It's extraordinary if one really doesn't have to exhaust domestic remedies before accessing the WG.

    Cassandra says

    February 6, 2016

    Why isn't the UK refusal to respect that Ecuador have granted Assange asylum an issue (refusal to let him travel to Ecuador and thereby confining him to the embassy)? Seems to be at the heart of the issue to me. Also, Swedish authorities haven't really done anything to try to resolve the issue in a timely manner, e.g. by interviewing Assange in London.

    "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."

    Indeed. It will basically render the working group meaningless since no one will respect their decisions in the future if western democratic countries (such as the UK and Sweden) wilfully ignore their ruling when not in their interest. Whether it's a failing on behalf of the UNWGAD or UK/SE will be a matter of opinion. The looser isn't just the UNWGAD but all those who are working for human rights issues around the world.

    Miroslav Baros says

    February 7, 2016

    Of course Cassandra that showing disrespect towards Ecuadorian sovereign choice is at the heart of the isue. And that is, to me the essence of the WGAD's ruling. I find buzzare the proposition that referring to Swedish lack of dilligence should not be within the Group's jurisdiction as a participant stated. Which body should examine the failures that led to this incredible situation? There is also a shift in the discussion from talking about action or inaction by the relevant authorities that created this situation to asking what the individual has contributed to his own confinement! A question is also posed, and a view expressed that WGAD did not say anything about why and how the depravation of liberty took place in the embassy and a comparison was even made with the individual hiding in a cave. May I respectfully, and using a similar comparison express this deliberation: say I am pursued by a group of people (like vigilantes) and I find a refuge in a cave where the group surround me and threaten me with harm if ever leave the cave. A pack of wolves in the meantime protect me from the vigilantes. Have I contributed to my confinement? The fallacy of the proposition stems from fundamental misunderstanding of how human rights concept operates in principle. The concept is positive in character, not negative in the sense that positive action is required by a state to protect the individual under its jurisdiction (see X v Netherlands, ECtHR, 1969). The WGDA explains that Swedish failure to act diligently led to the eventual depravation of liberty. Who would believe so indilligent procedures and voluntarily avail themselves to the protection of such authorities? That is why Cassandra you are right in stating that the essence of the issue is the rejection of granting the asylum in the first place. And also, all we need in these complex and dangerous times is disrespect for the UN!

    Neverwasowt says

    February 7, 2016

    I am puzzled by those who accuse the UK of lack of respect for "Ecuadorian sovereign choice". What do they want the law to be?

    Consider eg X. X murders his daughter and her boyfriend for bringing his family into disrepute. X then enters the embassy of State Y. Y then promptly grants him asylum and citizenship.

    Would they want the UK to allow X safe passage to Y?

    Would they be happy to see impoverished States "sell" safe citizenship and safe passage to criminals?

    Gavin Phillipson says

    February 7, 2016

    Judging by a few of the comments above, a reminder of some of the facts of this case, as opposed to the myths that have been so persistently propagated by Assange's supporters might be useful http://www.newstatesman.com/blogs/media/2012/09/legal-mythology-extradition-julian-assange

    Gavin Phillipson says

    February 7, 2016

    Miroslav, your argument above rests on an analogy between being 'pursued by a a group of people' threatening you harm and a valid international arrest warrant issued by a liberal democracy that Assange has been able to challenge judicially in every court he wanted to in the UK up to and including the Supreme Court. I would respectfully suggest that this rather important difference renders your purported 'analogy' unpersuasive, to say the least.

    I would add that Assange also challenged the warrant for his arrest in Sweden, up to the Court of Appeal. As has been observed, this is important because it shows that the case against Assange has been judicially examined (repeatedly) and found to be sufficiently probative to require him to surrender himself for formal questioning. I find it extraordinary that Miroslav blames Sweden for the long delays in this case, not Assange, who first of all left Sweden when under investigation and then skipped bail in the UK for the same reason. The case would have been disposed of years ago had Assange simply submitted to arrest for formal questioning in Sweden. His sole ground for avoiding doing so is the patently spurious fear that it would somehow be easier to extradite him to the US from Sweden than from the UK, an assertion that lawyers have refuted countless times. It is of course also the case that the US has never issued an extradition request to any country for Assange.

    As David Allan Green, in his post http://www.newstatesman.com/blogs/media/2012/09/legal-mythology-extradition-julian-assange points out:

    'A number of the UK’s leading human rights lawyers had made detailed and complex submissions [on Assange's behalf] to a number of England’s top judges at three hearings, and all of the submissions had been addressed in three lengthy judgments. Few respondents in English legal history have ever had such an opportunity to challenge an extradition request. But Assange...failed and the [European Arrest Warrant] was upheld.'

    It is regrettable as Casandra says that other countries may be encouraged to ignore similar opinions by the UN because of this, but the fault likes with the Panel for producing so patently unpersuasive and poorly argued an opinion.

    The remedy for this entire situation is the same as it has always been: for Assange to go and face due process in Sweden.

    Miroslav Baros says

    February 7, 2016

    Apologies for few typos; was typing it from my IPad!

    Cassandra says

    February 8, 2016

    Gavin Phillipson,

    "...Assange, who first of all left Sweden when under investigation and then skipped bail in the UK for the same reason."

    Not entirely true, the case in Sweden was dismissed by the first prosecutor on the case. Assange then continued to London as scheduled. After that the claimant's lawyer challenged the dismissal and prosecutor Marianne Ny decided to pick up the case again. She then issued the European arrest warrant. Eventually Assange asked for asylum in Ecuador out of fear of being extradited to the USA via Sweden claiming the case was politically motivated.

    The Swedish prosecutor and UK/SE governments are not showing any good faith, they have refused to try to alleviate the concerns of the Ecuadorian government and the defendant. All this lends credibility to the idea that Assange is either being arbitrarily detained out of malice or that the case is politically motivated. Everybody loose.

    ****
    Neverwasowt, It's the nature of political asylum. The country someone is fleeing from is going to claim the accusations aren't politically motivated whereas the country granting asylum is going to claim they are. Who is right? The UK only have jurisdiction on UK soil, whereas Ecuador has jurisdiction in Ecuador, if they want Assange to roam free in Ecuador it has to be their decision as a sovereign nation and not the government of the UK.

    Assange has repeatedly asked to be interviewed by the prosecutor in London (this is not uncommon) and that he would travel to Sweden if they could give some assurance he would not be extradited to the US...

    Miroslav Baros says

    February 8, 2016

    It is good that participants have started to make more substantive points. Some of the contested issues I stated in my first post. It is important to remind readers that the Swedish court of appeal in 2014 ruled that Sweden’s investigation into Assange had come to a halt and prosecutors’ failure to examine alternative avenues of investigation “is not in line with their obligation – in the interests of everyone concerned – to move the preliminary investigation forward”. This was related to the prosecutor's refusal to come to London to question the individual. In October 2014 Britain’s Foreign Office said it would “actively welcome” a request by the prosecutor to question Assange inside the embassy and would “do absolutely everything to facilitate” such a move. Why do people think that this kind of guarantee issued by one liberal state was not sufficient for the prosecutor to come to London to question the individual?(implication is made that "liberal states cannot violate human rights"!). Let me also clarify an important point: I do not support nor blame anybody in this episode; I am trying to interpet the law, facts and chronology of these extraordinary events. This individual was never chrgaed with any offence. He has always claimed that he would be prepared to face a Swedish court were it not for a threat that he would be extradited to the US for political crimes. Neither the US nor Swedish governments have responded to his requests for guarantees. This is in response to somebody comparing the situation with committing a murder and fleeing to an embassy! May I make a suggestion to this effect: a standard for taking part in discussion, at least in a journal with reputation thet EJIL rightly enjoys should really be relevance, substantive knowledge based on relevant authorities and sources and not just expressing agreement or disagreement. To summarise: it's not me who "blames" Sweden; it's a UN body that said in their opinion that a lack of diligence on her part led to a depravation of liberty - please read the Opinion.

    johh morss says

    February 8, 2016

    Hi Miroslav
    I don't see how you can state (if I read you correctly)that JA is residing on Ecuadorian soil. That soil is good old British soil! Its just that parts of the building have special protections agreed by the Brits (just as correspondingly in reverse in Quito one presumes) JRM

    Miroslav Baros says

    February 8, 2016

    Johh Morss
    Vienna Convention on Diplomatic Relations, 1961, ratified by 190 states: Article 22:"The premises of a diplomatic mission, such as an embassy, are inviolable and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."
    I am not saying the embassy constitutes an Ecuadorian soil; that would be nonsensical since Ecuador is in South America, but in terms of diplomatic relations it is a space where they exercise their sovereign rights. The whole point and spirit of the law is to enable unimpeded and effective relations among states to take place. What would remain of this fundamental principle if embassies are violable? The Iranian Hostage Crisis in 1979 shows how dramatic consequences may occur if the principle is violated?

    Neverwasowt says

    February 8, 2016

    @ Cassandra

    Just to be clear, when you say

    "Ecuador has jurisdiction in Ecuador, if they want Assange to roam free in Ecuador it has to be their decision as a sovereign nation and not the government of the UK."

    you are saying that the same would apply if Assange jumped bail in connection with murder?

    Or child sex abuse?

    Or bombing a mosque with the death of 50 men, women and children?

    Or putting polonium in a tea urn in "The Jungle"?

    And of course apply also to other States - eg North Korea or Libya?

    These are consequences you need to address if you want a "get out of country free" law.

    Nihil Aliunde says

    February 8, 2016

    I think the main reason why all these different opinions are possible is because the alleged rape case against Assange is indeed weak (like even the alleged victims claim now they were not raped). If he was investigated for murdering 10 people and evidence against him was solid then he'd be nothing but a criminal on the loose. With no exceptions apart maybe some hard core conspiracy theorists. In other words proceedings against him might indeed appear to not be proportionate as it's been pointed out. But even that is not the full story.

    What personally troubles me is that I often hear arguments which are using real or imaginary cases from Burma, Indonesia, Zimbabwe, Venezuela... I mean, is this really what we have in Europe? Can a person in Europe really expect no higher protection of his rights than in Burma or Zimbabwe?

    But the main questions for me to ask here are basically two: 1. is the investigation against Assange from Swedish prosecutors lawful and if it is then 2. was the EAW issued against Assange lawful. If the answer to both questions is yes then it's indeed hard to agree with UN Working group opinion which of course it's not even in the position to answer to these two questions. And if they are lawful then we can only conclude that Assange's actions were not lawful. And that's not something we can just ignore.

    But of course, even if his decision to avoid lawful proceedings against him was not lawful that doesn't mean that proceedings against him didn't have to remain lawful. Because indeed just because Assange was breaking the law that doesn't mean the Swedish or British authorities didn't have the obligation to run their proceedings against him in a lawful way. And of course what is problematic about proceedings against Assange is that they were taking too long and that they could be disproportionate. But of course the questions is were they taking this long just because Swedish prosecutors didn't do their job or it was also because they couldn't do their job properly since Assange was avoiding them. For example, as far as I know Ecuador government didn't really offer Swedish authorities to question Assange but they only agreed to be handed a list of questions they would then hand over to Assange to answer. And I don't think that's what one can really call questioning.

    In my opinion in this case it wasn't about arbitrary detention but rather about unfair trial (in a broader sense) because proceedings against him were simply taking too long and I would say his right to be presumed innocent was also breached for the same reason. Because for too long he was under investigation without being charged. Or we could even say that the principle of legal certainty was breached since Assange's legitimate interests and expectations were certainly not fully protected. And yes, of course one could argue that the arbitrary detention is just a result of all this but this link is questionable exactly because of the fact that no one forced Assange to do what he did. If he didn't unlawfully avoid (he had hardly the same justifiable reasons to seek asylum protection in the way he did as maybe he could have them in Burma or even Ecuador for that matter which I will point out at the end) extradition then such delay would probably not occur.

    The arbitrary detention verdict doesn't make sense because it implies that Swedish authorities with the help of British authorities were not allowed to arrest Assange once he decided he didn't want to get arrested and extradited to Sweden. From that point on the threat of arrest apparently meant arbitrary detention. And this kind of reasoning is indeed hard to digest. In other words the UN Working group in question had basically no case to deal with. That doesn't mean Assange's rights were not being breached but it surely wasn't about rights concerning his freedom even if again one could argue that even if restricting his freedom was in principle lawful it wasn't lawful from the point of proportionality. But still, does that automatically make it a detention to begin with?

    And finally I would like to point out to another absurdity concerning this case. Are you aware what is happening in Ecuador recently? According to reports the Ecuador governments is systematically oppressing various fundamental freedoms such as the freedom of expression. And I find it kind of ridiculous that Assange is being protected by a government that he should be the first to condemn since his colleagues in Ecuador are truly being politically prosecuted.

    Matthew Happold says

    February 8, 2016

    Given the number and richness of the comments, I shall only respond selectively.

    Miroslav, in your first post you selectively quote me and in your second you misquote me. It is untrue to say that I said ‘Under international law there is no duty to respect granting of asylum’. What I wrote was: ‘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…’ There is a distinction between diplomatic asylum (asylum granted by a State outside its territory, particularly in its diplomatic mission) and territorial asylum (granted by a State within its borders). The Geneva Convention on the Status of Refugees applies only in the latter, not the former, case (and, incidentally, this is why the analogy with Amuur v France falls down). It is not just my opinion that States’ are not obliged to respect other States’ grant of diplomatic asylum. In the Asylum Case the International Court of Justice court ruled that no general rule in international law existed permitting states to grant diplomatic asylum; a legal basis had to be established in each particular case. It was dissatisfaction with this result that lead Latin American States to adopt the OAS Convention on Diplomatic Asylum, which does provide such a basis, but only for those States parties to it (which Sweden and the UK are not). Indeed, the situation is the reverse of what you argue. Far from the UK failing to show respect for Ecuador’s sovereign choice; Ecuador is intervening in the UK’s internal affairs, which is how the ICJ described the granting of diplomatic asylum. All these points were made in my earlier blogpost, to which this one provided a link.

    Ed, I can’t get the BBC on I-player, not being in the UK, but I think this must be the interview you mention: https://www.youtube.com/watch?v=bZkKf18a40k&feature=youtu.be I shall refrain from comment but I will also note that the same member of the Working Group is quoted as making some rather injudicious comments in a RT report here (from 2.30): https://www.youtube.com/watch?v=fsAJPEEcQpw

    Finally, we should remember that there are other persons involved in this case in addition to Mr Assange and the Swedish and UK governments. I, in my post, was as guilty of this as anyone else. So I will finish by quoting the comments of the complainant SW’s lawyer: ‘The panel seems to have a lack of understanding of the fact the alleged rape of a woman is one of the most serious violations and abuses of human rights. That a man arrested on probable cause for rape should be awarded damages because he has deliberately withheld himself from the judicial system for over five years is insulting and offensive to my client – and all victims. It is time that Assange packs his bag, steps out of the embassy and begins to cooperate with the Swedish Prosecuting Authority.’ http://www.mirror.co.uk/news/uk-news/julian-assanges-alleged-rape-victim-7318264

    Miroslav Baros says

    February 8, 2016

    Thanks Matt for the reply. First of all, "diplomatic" asylum is not recognised in international law at all and therefore the case has nothing to do with "diplomatic asylum". This individual is protected on the basis of the inviolability of the Ecuadorian embassy, not because of his "diplomatic asylum". I am stating this again: inviolability of the premises is granted by Article 22 of the VCDR. The Refugee Convention 1951 is applicable in the present case to the extent that the individual has right to seek asylum, not a right to be granted one of course. The essence of this episode in my mind can 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" - You see, it is not me who is blaming Sweden, but the Swedish court criticising their own prosecution.
    2. This individual has never been charged with any offence! Why is this fundamental point so often ignored?
    3. This individual has not fled Sweden but left it when his work permit expired.
    4. This individual 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.
    Finally, participants should not really adapt a legal argument to their political conviction; not that all participants do that I have to say; the original post is actually pretty good in my mind from that perspective. But there are (academics!) taking part in the discussion who are using newspapers or magazines as the MAIN source of their argument, routinely based on a journalist's interpretation of the facts! And it is usually those who would brand people that they do not agree with as "supporters" of Mr Assange regardless of how relevant and objective sources they use! Maybe Professor Koskenniemi is right in not taking seriously blogging, as he stated recently in his conversation with Professor Weiler, and with this thought, which I readily apply to my own argument expressed here,I am brining my contribution to an end. Very best of wishes to all participants and, as somebody said: "Let's use all this energy and creativity to encourage the relevant authorities "to take a more flexible and creative approach in resolving this rather simple but highly-charged matter."

    Toby Fenwick says

    February 8, 2016

    Miroslav,

    As Matthew makes clear, this is a case where purported "diplomatic" asylum clearly does not apply, as the UK isn't party to the OAS Convention - and the ICJ held that there is not a customary rule for diplomatic asylum, so for these purposes it doesn't exist.

    Matthew/all: I had a question about Ecuador's actions in allowing Julian Assange to remain in their Embassy. The actions of the Ecuadorian diplomats would seem to run counter to VCDR Art 41(1) prohibition on the internal affairs of the host state, and the use of the mission for this purpose seems contrary to VCDR Art 41(3). Thoughts?

    (Even if this is correct, the problem is presumably that though the UK and Sweden both have lodged ICJ Art 36(2) declarations for compulsory jurisdiction, Ecuador has not, and therefore it is hard to see in which forum the UK could sue Ecuador to force it to cease it's illegal action.)

    Miroslav Baros says

    February 8, 2016

    Toby, did Matt really make it clear? This is his statement: "If States were obliged to respect other States’ grants of diplomatic asylum..."Ecuador is intervening in the UK’s internal affairs, which is how the ICJ described the granting of diplomatic asylum." Matt is confusing the two actually; he is saying that Ecuador by "granting diplomatic asylum interferes in the UL's internal affairs". Ecuador does not have to rely on any diplomatic asylum, but simply on the inviolability of its premises under VCDR and granting asylum under the Refugee Convention 1951 - an individual has a right to seek asylum on, among other reasons, persecution on political grounds..Can you please explain how he made it clear? community" etc.) Thanks

    Cassandra says

    February 8, 2016

    "Finally, we should remember that there are other persons involved in this case in addition to Mr Assange and the Swedish and UK governments."

    The complainants are not forgotten, at least not by those who seek a solution to the current stalemate. Surely it is in the complainants best interest if Assange is interviewed by the prosecutor and travel to Sweden to face the allegations as quickly as possible. Already three of the allegations have been dropped because of the statutes of limitation.

    If the authorities keep stalling the likely outcome will be that Assange stays on the embassy four more years until the last allegation is dropped. This will be the worst possible outcome for the complainants.

    Isn't this yet another reason for the Swedish prosecutor to quickly interview him (and/or make some assurances he will not be extradited to the USA).