The UN Working Group on Arbitrary Detention (WGAD) recently ruled that the continued deprivation of personal liberty of Julian Assange is arbitrary, and therefore illegal, under international human rights law. The 3-1 ruling (one member recused herself and another member dissented), is a victory for the rule of law in global affairs and a severe indictment of the outlaw tactics of the United States and its satellite countries, such as the United Kingdom and Sweden. What remains to be seen is whether the UK and Sweden recognise their legal and moral obligation to comply with this ruling and end the continued incarceration of Assange at the Ecuadorian embassy in London.
Assange has been in detention at the embassy for over three years, unable to leave, because of the threat of arrest under a warrant issued by Sweden, allegedly on charges of sexual molestation and rape. His real fear has been that he will be arrested and taken to Sweden, and then handed off or renditioned to American law enforcement or intelligence for prosecution in the US, where charges remain pending against him. The charges in the US do not relate to common crimes such as the ones he is facing in Sweden, but stem from his assiduous and courageous stewardship of Wikileaks, which has posed an existential threat to the military industrial complex and the global ruling class by revealing so many of its dirty secrets.
The WGAD ruling
For consideration before the WGAD were three questions: First, does the deprivation of liberty of Assange qualify as ‘arbitrary detention’, given that he voluntarily took refuge at the embassy and was granted diplomatic asylum by Ecuador? Second, is the indefinite and continued deprivation of his liberty in violation of human rights norms relating to the guarantee of a right to fair and speedy trial, and freedom of movement? Third, should the UK and Sweden recognise the diplomatic asylum granted to Assange by Ecuador?
The WGAD ruled that Assange has continuously been in detention since 2010, first in a British prison, then under house arrest and then at the Ecuadorian embassy where he fled seeking asylum. The dissenting member’s note disagrees with the ruling and considers Assange’s confinement at the embassy to be a case of ‘self-confinement’ and thus not within the mandate of the WGAD. But, it becomes clear from the discussion in the WGAD’s ruling that this is a very bizarre conclusion. The idea that Assange ‘voluntarily’ resides at the Ecuadorian embassy and is free to leave at any moment is belied by facts. The Swedish prosecution has clearly stated as recently as 2014 that Assange is ‘in detention’, and has not withdrawn the arrest warrant against him. The British police have maintained that they will arrest Assange even if the arrest warrant against him is withdrawn, as he violated the ‘house arrest’ rules when he fled to the Ecuadorian embassy to seek asylum – although the original Swedish warrant was the very reason for the house arrest in the first place! Assange is also continuously subjected to surveillance by the British government. By what measure of reasonable interpretation one could conclude that Assange is ‘free to leave’ is hard to fathom. The Ecuadorian embassy may not be a habitual place of detention, but it is very much the place where Assange has been forcibly and arbitrarily confined.
Indeed, as the WGAD found, on the narrower technical grounds of fair trial and judicial process guarantees, the detention of Assange is arbitrary. It pointed out that despite the lapse of time since the warrant was issued, Assange is yet to be formally interrogated by the Swedish authorities, let alone indicted. He has not been allowed elementary procedural guarantees we expect in a credible judicial process, such as the right to provide a statement or access to exculpatory evidence. Three of the four charges against Assange have expired under the statute of limitations in Sweden and he has spent more time in detention than he would have done if convicted for the expired charges. The prolonged nature of his detention, without an end in sight, is also contrary to the principle of presumption of innocence. What emerges from the WGAD’s discussion is how duplicitous and vengeful the European states are. The UK revised its extradition law in 2014 to prevent perceived abuses, so that Assange’s extradition under the original Swedish warrant would not now be allowed. However, the country has taken the view that these legal changes will not apply retrospectively in Assange’s case. This shows how the real purpose of the game is to ensure that Assange’s persecution remains alive as a warning to any whistleblowers and anyone else who dares to confront the power of the global ruling class.
The right to diplomatic asylum
The final issue of whether European states should recognise the diplomatic asylum granted to Assange by Ecuador and allow him safe passage out of the embassy to that country is not legally central to the ruling, but is a large matter that casts its shadow on the geopolitics of international law. The right to asylum is recognised under international law, while giving asylum to individuals in embassies, also known as ‘diplomatic asylum’, is more contested. Sweden and the UK have taken the view that ‘diplomatic asylum’ is not universally recognised under international law and they are not obliged to accept a Latin American regional practice, under which diplomatic asylum is indeed more recognised.
European states have a long history of denying the legitimacy of alternative interpretations or rules of international law by denying their universality, while asserting their own narrow interpretations as universal rules. In Latin America, this has a long pedigree, starting with conflicts over how investment disputes between European investors and Latin American governments should be regulated, when Europeans took a similar attitude over a hundred years ago. On humanitarian grounds, or in the interest of ‘comity’ between nations, the sovereign decision taken by Ecuador could have been recognised by the UK or Sweden, even if they didn’t agree with the idea of diplomatic asylum, although the record of European states shows that they have granted such diplomatic asylum numerous times in the past. Besides, the European states are being hypocritical in calling for universal recognition of the regional law of the EU, while refusing to recognise the regional law of others. What is obvious is that the old colonial attitudes denying legitimacy to non-European states sill permeate the very core of what we call international law.
The case of Assange, like that of Bradley Manning, the abused and forgotten victim of the American ‘legal’ system, is likely to now be determined by global public opinion and the attitude of ruling elites in Sweden and the UK. The ruling by the WGAD is a major blow to the specious, illegal and vindictive attitudes of the US and the European states, and substantially strengthens global public opinion, which remains opposed to the injustice meted to Assange. It is time now for the Obama administration to drop the charges against Assange and suspend any threat of extradition, and for the UK and Sweden to show humanitarian concern for Assange and equal respect for other nations.
Balakrishnan Rajagopal is Associate Professor of Law and Development at the Department of Urban Studies and Planning, founding Director of the Program on Human Rights and Justice, and the founder of the Displacement Research and Action Network at the Massachusetts Institute of Technology.