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5 February 2016

Q&A: Why the UN’s Julian Assange ruling is meaningless

The UN Working Group on Arbitrary Detention has no legal force in the UK.

By Henry Zeffman Henry Zeffman

Why is Julian Assange even in the Ecuadorean embassy?

In June 2012, the Wikileaks founder fled bail, walked into the embassy, and applied for political asylum to the Ecuadorean government. And he’s stayed there ever since.

Assange was on bail because the UK was trying to extradite him to Sweden, where authorities want to question him in relation to an allegation of rape. Investigations into two counts of sexual molestation and one count of unlawful coercion were dropped in August 2015 after they reached their statute of limitations – that is, the window for the Swedish authorities to bring the case expired. The statute of limitations for the rape investigation expires in 2020.

A European Arrest Warrant is in force for Assange, so the UK has an obligation to extradite him to Sweden. Which, if he had set foot outside the Ecuadorean embassy since 2012, is what the government would have done.

The UK cannot enter the embassy to arrest Assange under the 1961 Vienna Convention on Diplomatic Relations.

What is the UN Working Group on Arbitrary Detention?

First, let’s be clear about what the Working Group is not. It is not a court. It has no legal jurisdiction in the UK.

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It is exactly what it says it is: a working group. If that’s too opaque, think of it as a bit like a think tank. A think tank set up by the UN that only considers alleged cases of arbitrary detention.

The panel has five members, all academic lawyers. One of them, Leigh Toomey, recused herself from this case because, like Assange, she is an Australian citizen. The four remaining lawyers who decided this case (all men) are from South Korea, Ukraine, Benin and Mexico.

The group reports to, and is mandated by, the United Nations Human Rights Council, which counts members from notable human rights-respecting countries China, Qatar and Russia among its governing Commission. And in September last year the UNHRC attracted criticism for appointing Faisal bin Hassan Trad, an official from Saudi Arabia, to chair an influential panel of independent experts. Yes, the same Saudi Arabia that sentenced the free speech blogger Raif Badawi to be flogged. 

It’s probably also worth noting that between 2009 and 2014 the Working Group ruled in favour of the detainee in all but four of the 1,325 claims it heard.

What did the Working Group say?

That Assange had been subjected to more than one “deprivation of liberty”: not only his present confinement in the Ecuadorean embassy, but also when he was initially detained in Wandsworth prison and was subsequently under house arrest in the early stages of his legal battle against extradition.

The opinion also argued that Assange’s detention was “arbitrary” because he had been held in isolation at Wandsworth, and because of “the lack of diligence by the Swedish prosecutor in its investigations”.

The panel concluded that Assange’s apparent detention “should be brought to an end, that his physical integrity and freedom of movement be respected”, and that he “should be afforded the right to compensation”.

Was this a unanimous ruling?

No. The Ukranian panellist, Vladimir Tochilovsky, disagreed. He pointed out that “fugitives are often self-confined within the places where they evade arrest and detention”, and argued that this case lies outside the mandate of the Working Group.

What happens now?

Nothing. The government still stands ready to arrest and extradite Assange if he leaves the embassy, although the continuous police guard outside the building ended in October.

A government spokesperson today rejected the idea that Assange has ever been arbitrarily detained, and said instead that he is “voluntarily avoiding lawful arrest by choosing to remain in the Ecuadorean embassy”.

Has this got anything to do with Wikileaks?

No. It’s about a man fleeing questioning on suspicion of rape.