Yesterday afternoon I did short interviews on BBC Ulster, BBC Solent, BBC Newcastle, 3CR, BBC Merseyside, BBC Nottingham, BBC Wiltshire, BBC Derby, BBC Humberside, BBC Wales, BBC Scotland about the Julian Assange case. The interviews, of course, related to the opinion just released by the UN Working Group on Arbitrary Detention, finding that Mr Assange is suffering from arbitrary detention. Naturally, every interview was a little different, but some recurring aspects are noted here.
The opinion, which can be downloaded here, is well worth reading, not least for its curious reasoning. The key is the claim, within the opinion, that Mr Assange’s time in the Ecuadorian Embassy can be seen as a continuation, in effect, of his time in “house arrest” and his short period of detention before that in a police station. Here both the claim of continuity (through which the element of coercion is at least implied into his decision not to leave the embassy), and the characterisation of his time on bail conditions while he challenged the European Arrest Warrant in the British courts as “house arrest” are surprising. These are fundamental to the overall decision, of course, as they ground the conclusion that there is a deprivation of liberty which is then characerised as arbitrary detention.
Should the finding that Mr Assange’s liberty is deprived be correct, then I think it arguable to say the detention is arbitrary. However, the opinion makes a leap of fact and law that seems unsubstantiated by either to reach that conclusion of detention in the first place. Herein lies the fundamental difficulty with the opinion. The procedures of the working group provide that it may review its opinion if, inter alia, a government that conformed with the time limits to respond to complaints requests it to (Part D of revised working group methods, available here). I would expect that the UK and/or Sweden will do this, zeroing in on this part of the reasoning.
What is the Legal Value of this Opinion?
The WGAD is part of the UN’s special procedures, thematic human rights protections established by the Human Rights Council (and previously Commission). Its mandate is, among other things, to consider individual complaints regarding detention (as it did here) but it does not have a mandate to make authoritative interpretations of any treaty, or to issue “judgments” (the mandate is outlined in Part III of the working group methods, available here). One might expect that states would take notice of its opinions, but a state is not obliged to implement them. The opinion holds little weight in a domestic court, and is likely to hold little weight in the European Court of Human Rights or the Court of Justice of the European Union. While all courts would take notice of it, none would–in my view–consider it binding (because in a broader sense it is not). Thus, Mr Assange’s chances of having this opinion “enforced” (including receiving the recommended compensation) are extremely slim.
So why did Assange go to the WGAD?
One is reduced to speculation on this point, of course, but it is certainly remarkable that Mr Assange decided that the next step in his challenge was to go to the WGAD rather than the European Court of Human Rights or the Court of Justice of the European Union. I concede that in the latter–where he would have been challenging the European Arrest Warrant issued by Sweden–he is unlikely to have succeeded. The Court takes seriously the underlining mutual trust of EAWs (see Steve Peers on this), and there is nothing to suggest that Sweden’s approach to criminal investigations and trials is incompatible with, for example, Article 6 ECHR in a general sense. Furthermore, the UK Supreme Court had already upheld the legality of the Warrant. He may have had more success in Strasbourg, particularly on Article 6 grounds (bearing in mind it’s unlikely Article 5 would have been engaged). But instead he went to this Working Group. Why?
One reason may be the likelihood of success: this is not a Court, thus the same considerations of proof and the same rigour as to law may not always be present. Another reason might be the value that a positive opinion from his perspective might have beyond its legal value. With this opinion, Mr Assange can now make analogies between himself and many political prisoners who have received such opinions from this group, such as Aung San Suu Kyi (indeed, some are already doing so). This bolsters the authority of his arguments to be allowed to leave the embassy without arrest and to enjoy fully the asylum granted to him by Ecuador.
So, What Happens Now?
In truth, this is unlikely to change anything in a substantive way. Assange still has a case to answer in Sweden, the EAW remains in place, and the UK remains obliged to execute it. The finding of the WGAD is puzzling, and the reasoning flawed. I would expect it to be reviewed, although whether that will lead to a different outcome is difficult to predict. In any case, it serves as a distraction in some ways from the troubling delays on the part of Sweden to progress this case, which do need to be addressed. This opinion may be just the catalyst to finally get the Swedish investigators to come to the UK and interview Mr Assange here, to progress the investigation to the point where it can be decided whether a charge is brought (bearing in mind that charging happens much later in the Swedish process than we are accustomed to in the UK), and the matter of guilt or innocence determined in respect of the rape allegations should a charge be made. In the meantime, however, I predict that Assange will remain in the embassy, police officers will remain at the gate, and the European Arrest Warrant will remain in place.