Antinuclear

This point of this piece is to correct the imbalance of coverage on this decision, which consistently fails to explain the arguments which persuaded the Working Group in the first place.

Julian Assange UN Ruling – Geoffrey Robertson QC Joseph Kotrie-Monson interviewed

Factual background

Mr. Assange is wanted for questioning in Sweden to answer allegations of sexual assault. The Swedish prosecutorial authorities have issued a European Arrest Warrant (EAW) which the UK authorities are bound to implement. Mr. Assange, after arrest of 10 days and house arrest thereafter, was granted asylum by Ecuador after his appeal against the EAW failed. This is when he took up residence in the Ecuadorian Embassy in 2012. Assange argues that he fears ultimate extradition from Sweden to the USA on the grounds of his involvement in Wikileaks.

This is obviously no small fear, given the sentencing and treatment of Chelsea Manning in the USA, and the decision of Edward Snowden to take up asylum in Russia. The Swedish authorities refuse to grant Assange any guarantee of non-refoulement to the US, and his right to asylum has also not been recognized by the UK or Sweden. ……..

Mr. Assange argues that he is not free to leave the Embassy; he would have to accept the conditions of his immediate arrest, his extradition to Sweden and his subsequent questioning there. He would have to undertake the risk that he would be extradited to the US, and the subsequent risks to his rights were that to happen.

The mandate of the UN WGAD and the test for ‘deprivation of liberty’

In order to establish its competence, and to decide upon the case, the UN WGAD has to decide whether there is a ‘deprivation of liberty’ under Article 9 of the International Covenant on Civil and Political Rights (ICCPR). This involves a more severe restriction of motion within a narrower space than mere interference with liberty of movement. (This is explained in General Comment 35 by the UN Human Rights Committee, para. 5……..

The UN WGAD is given a very specific mandate by the United Nations and its Members to decide on these very issues. ……..

The European Arrest Warrant and the Swedish investigation

As easy as it might be in the press to simplify the issues surrounding this case, it is worth elaborating on some key technicalities. The UK authorities are acting pursuant to the conditions of a EAW issued by Sweden who are asking to question Mr. Assange on allegations of sexual assault in order to decide whether to charge him.

The prosecutorial authorities in Sweden re-opened the case against Assange, despite an earlier preliminary investigation (in which Assange had co-operated while in Sweden) that decided there was no case against him in respect of the alleged rape. There is to date no charge against Mr. Assange. The EAW has been at the core of Sweden’s approach, and there had been no attempt by Swedish prosecutors to make use of ‘mutual assistance protocols’ in which Mr. Assange could be interviewed by video-conference (a procedure available under Article 9 of Second Additional Procotol on ‘mutual assistance’)………

Assange’s lawyers have offered co-operation on this alternative a number of times. The Swedish prosecutorial authorities have refused to explore these alternatives, relying instead on the EAW they have issued. They have also failed to disclose the full case against Assange.

Assange has tried but failed to challenge the European Arrest Warrant against him in Sweden and in the UK. In a judgment handed down on 11 May 2015, the majority of the Swedish Supreme Court held that the EAW was valid, but a dissent in this case by Justice Svante Johansson also argued that the arrest warrant was ‘in violation of the principle of proportionality’, as the reasons for continued detention did not ‘outweigh the intrusion and inconvenience’ caused to Assange. According to the Guardian coverage of this case, the ‘Swedish Supreme court also stated … that the investigating authorities “must examine what alternative investigative opportunities are available to drive the investigation forward”. 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”………….

The main arguments of Assange’s lawyers

The central argument of Assange’s lawyers’ proceed 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 UK, Assange’s challenge goes to the validity of the EAW under UK law……….

Evaluation

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 UN WGAD was persuaded that the confinement was arbitrary. The most compelling grounds were those based on proportionality. In short, there could have been another, less restrictive way of proceeding. Before issuing a European Arrest Warrant, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange, sought asylum in the Ecuadorian embassy they could have questioned Assange by video link. He could have been provided the chance to respond to the allegations against him, or provided with an assurance related to his refoulment to the US. But his conditions currently are based on the legitimacy of an EAW which two UK Supreme Court justices consider invalid under UK law, and which one Swedish Supreme Court judge considers disproportionate……….

There is still no charge against Mr. Assange. 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 would 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. ……….

Reasonable (and even judicial) minds have clearly differed on these issues, which suggests that the UN WGAD decision cannot fairly be described as ‘ridiculous’, ‘ludicrous’, or ‘so wrong’. No doubt views on this may be coloured by our particular position on the integrity of Assange’s himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all.

Liora Lazarus is a Fellow of St. Anne’s College and an Associate Professor in Law at Oxford University. https://ukconstitutionallaw.org/2016/02/09/liora-lazarus-is-the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-so-wrong/