Arbitrary Detention and Julian Assange

The recent news about United Nations working group issuing its opinion on Julian Assange detention raised widespread interest.

For introduction sake, Julian Assange is editor in chief of Wikileaks, an organisation which published highly confidential, secret and sensitive documents leaked by Chelsea Manning (alias Bradley Manning). As a result, Manning was subjected to cruel, inhuman and degrading treatment according to a report from the United Nations special rapporteur on torture. Manning is serving a 35 years prison sentence in the United States now. In November 2010, the U.S Attorney-General confirmed of an active ongoing criminal investigation into Wikileaks. The U.S has been investigating Wikileaks and Assange with a view to prosecute under the Espionage Act of 1917. There have been reports that a grand jury is investigating Assange and others. The disclosure Wikileaks and Assange have been involved with have been termed as an “attack on international community” and allegedly of having risked lives of “diplomats and intelligence professionals”. Thereafter, Assange was accused of rape in Sweden. Critics should remember that whistle blowers or opponents against a government have always been subjected to prosecution on criminal charges or / and revulsion by those in power such as, Janis Karpinski, Craig Murray, Scott Ritter, and David Kelly. They were all more or less faced criminal charges and this came immediately after their dissent with the establishment. The intention of this piece is to consider legalities and not about getting into discussion of whether Assange was rightly accused by the alleged victims or not as this may be debatable. However, the usual norm is innocent until proven guilty but many of the critics seem to believe in vice versa.

There is a lot written around the initial prosecutor having refused to prosecute Assange and thereafter, another prosecutor decided to pursue the matter allegedly due to American influence. However, the new prosecutor at the time when Assange was in the UK made it clear that Assange investigation was at preliminary stage. The matter went to UK’s Supreme Court and the key question was whether the arrest warrant “issued by Swedish Prosecutor” and was upheld by a Swedish Judge on appeal had the “judicial authority” to do so under the 2003 Extradition Act and the UK Supreme Court, in 2012, found the prosecutor indeed had the judicial authority to issue a warrant. It should be noted that the court case in the UK was not about the substance of the allegations against Assange since there is no criminal charge or conviction pending against him. In addition, in 2014 the Extradition Act was amended which would have been more favorable for Assange due to the absence of a criminal charge or conviction against him but the amendment may not be applied retrospectively.

Assange took shelter in Ecuadorian embassy in London in 2012 and seeked Asylum to flee persecution and to avoid extradition to Sweden which he believes will lead to extradition to the United States to face charges or indictment under the Espionage Act. Julian Assange wilfully entered the Ecuadorian Embassy in London while he was on bail and was subject to deportation to Sweden for questioning which Assange supporters call fishing expedition. It is important to note that Sweden did not charge Assange till date even after 5 years. Prosecution Authority’s director of communications Karin Rosander in an interview earlier admitted that Swedish prosecutors have interrogated suspects abroad in the past and it is possible to do so. However, till date, Swedish prosecution services did not interrogate Assange in Ecuadorian embassy in London. While the UK spent millions of pounds in policing Assange and made it clear that Assange will be arrested when he leaves the embassy for breaching his bail conditions and is likely to be extradited to Sweden. While Sweden refused to give any undertaking that Assange will not be extradited to the U.S which is what Assange fears would happen upon going to Sweden.

There is an argument that Assange can as well be extradited to the U.S from the U.K than from the Sweden and therefore, Assange is just making excuses to avoid facing prosecution in Sweden. The U.S may make an extradition request to the UK as well in future and probably the current Asylum with Ecuador seems to protect from the eventuality as well in a situation where any U.S grand jury indictment is issued or / and disclosed. Additionally, the Swedish authorities made the extradition request before any other country did.

The United Nations working group on Arbitrary Detention (WGAD) works under the purview of United Nations Human Rights Council. The UK is a member of the council. The working group gives opinions on the compliance with international law. The members involved in deliberations and decision making work pro bono and are experts consisting of university professors and belonging from different countries across the world.

Is Assange detained? There are various comments on television channels and newspapers alike that Assange is not detained since he entered Ecuadorian embassy on his own free will and is free to leave as and when he wants. The usual definition of detention is any form of imprisonment which curtails freedom of liberty. In Assange’s case it seems to be a sort of ‘false imprisonment’ where the person is restrained against his will. Arbitrary detention refers to an arrest or detention where there is no likelihood of evidence of having committed a crime. As stated earlier, the Swedish authorities have not charged Assange for more than 5 years and still seek him for preliminary investigation which the prosecutor says will take place only when Assange is in Sweden. The WGAD termed the detention as house arrest and deprivation of liberty. Assange is not free to leave and will be immediately arrested by the UK Police upon leaving the embassy and therefore, is subjected to house arrest and deprived of liberty against his own will.

The working group agreed that the reason it considers arbitrary detention in Assange’s case is because of inability to access the full-intended benefit of the grant of asylum by the Republic of Ecuador in August 2012. The WGAD considered the fact that even prisoners have rights such as one hour fresh air, family visits and appropriate medical treatment and all of it were denied to Assange. The UK government in 2015 refused Assange medical treatment, as he had to get a MRI scan, and implied that he will have to give up his asylum with Ecuador if he wants to receive medical treatment. The working group agreed in previous cases that deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well-founded risk of persecution. It also agreed with legal authorities quoted that arbitrary deprivation of liberty arises, where a state forces an individual to ‘choose’ between confinement and risking persecution, confinement and the ability to apply for asylum, indefinite confinement and deportation and several other circumstances where an individual feels compelled to ‘choose’ to suffer indefinite confinement.

It may well be embarrassing for the UK for being in violation of international human rights laws while being a member of the UN Human Rights Council and will be accused of not practicing what it preaches around the world to the countries which breach international human rights laws. The working group believes its opinion and findings are legally binding and if Assange and his legal team bring a claim in the UK courts or international courts (European court of Human Rights) then there is likelihood that Assange will benefit from the findings of WGAD.

Author – Amit Kapadia

Amit is the Executive Director of the HSMP Forum. He campaigns against issues such as – unfairness, inequality and abuse of human rights.

Twitter @ amit_kapadia