Author: fdelondras

The Julian Assange Case

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

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.

Repeal the 8th Amendment: Debate at TCD

Last night I made my way back to Dublin for the evening, to participate in a debate organised jointly by the TCD Law Society and TCD Student’s Union on the legal implications of repeal of the 8th amendment (i.e. the provision of the Irish Constitution by which unborn life and the lives of pregnant women are deemed equal). The debate was a little unusual inasmuch as (a) it didn’t have a proposition per se, but was rather framed as a topic, and (b) it was undertaken in good spirit and rigour, and nobody seemed to lose his or her temper.

In as much as there was a proposition side (which we might vaguely describe as a side in favour of repeal of the 8th amendment and confident that the legal consequences would not lead to some form of disaster) it comprised of myself and Máiréad Enright (University of Kent). Máiréad and I have written together on the issue of Irish abortion law before, and we were also both in the group that drafted and published the Access to Abortion Bill last year. The opposition side (opposed to repeal of the 8th Amendment and to the legalisation of abortion in Ireland) comprised William Binchy and Gerry Whyte, both of Trinity Law School (Binchy is now emeritus there), and William Binchy is also legal advisor to the Pro Life Campaign. I don’t know if there was an exact head count taken, but I would imagine there was over 200 people in attendance and the debate went on for close to two hours.

It was also made available on Periscope, so you can look and listen to it here. The University Times and Trinity News carry reports of the debate here and here.

Online Now: Webinar on EU Counter-Terrorism

Last week I visited Oxford to present a live Oxford Human Rights Hub ‘webinar’ on counter-terrorism in the EU, including an analysis of the proposals for reform after the the Paris attacks of the past year. The webinar can be accessed online here (audio + slides).

The attacks in Paris in November 2015 resulted in a wave of counter-terrorism law and policy reform proposals at EU level. In the webinar, I outlined these reforms, placed them in the wider context of EU counter-terrorism, and critically engaged with them from a human rights perspective.

The webinar covered the following topics:

  • What was the state of EU counter-terrorism law and policy before the Paris Attacks?
  • What are the particular perceived security vulnerabilities in Europe and how do these justify the involvement of the EU?
  • What proposals have been advanced at EU level and what are their implications for human rights?
  • How do these EU-level proposals interact with international and national proposals and measures to counter terrorism?

Hybrid (Counter-) Terrorism: New Chapter

In March 2014 I spoke at a workshop at the University of Birmingham on the idea of hybridity. At the time, as this post shows, I was somewhat skeptical of what the concept of hybridity (as lens, or frame, or otherwise) might have to bring to law and, especially, to counter-terrorism and the law. However, the workshop got me thinking and next year (2016) an edited book from the workshop will be released for which I wrote a chapter building on my intervention at the workshop.

The chapter was written in the fall of 2014, and may be revised before finalisation of the manuscript to take account of post-Paris developments, but it brings together in a short form some of my key thoughts about hybrid (counter-) terrorism. I have uploaded the pre-print here, and the introduction gives a flavour:

Legal scholars have written much about different ‘models’ of counter-terrorism, with the ‘criminal justice’ and ‘military’ models dominating the discourse. However, these models of counter-terrorism law and its place within a broader ecosystem of counter-terrorism measures, policies and practices, fail to appreciate the breadth, complexity and drivers of counter-terrorism when viewed in the round. Indeed, this is indicative of legal scholarship on counter-terrorism, which tends (in contrast to some sociological scholarship in the field) to focus almost exclusively on doctrinal legal research, infrequently placing counter-terrorist law and policy within its broader context. In this, hybridity may be a helpful lens through which to view counter-terrorism law and practice; it may facilitate our understanding of counter-terrorism as a field of practice with multiple limbs and elements, indicating more fully the terrain on which critical engagement with terrorism and counter-terrorism ought to focus. This chapter aims to illustrate the hybrid nature of terrorism and counter-terrorism as mechanisms of resistance within asymmetrical power relationships and, through considering its combination of measures and engaged actors, to illustrate the critical usefulness of conceptualizing counter-terrorism as a hybrid phenomenon.