Julian Assange, Aung San Suu Kyi, Jason Rezaian, and Mohammed Morsi: All victims of arbitrary detention, according to a little known five-person panel at the United Nations charged with examining such cases.
On Friday, the U.N. Working Group on Arbitrary Detention shocked legal experts when it released a report arguing that Assange’s “detention” has been “arbitrary” in nature and that his fundamental rights have been violated. Assange sought refuge in the Ecuadorean embassy in London in 2012 to avoid being questioned by Swedish authorities on allegations of sex crimes. The U.N. panel further argued he should be granted compensation for his time in “detention.”
The working group in question first met in 1991 and is composed of five experts who receive petitions from individuals who have been detained, from their family members, or from organizations acting on their behalf, according to a fact sheet on the group. The panel can investigate cases and does so by accepting detailed statements from an imprisoned person, and presenting the case to the government holding them. The government then has the chance to respond. The government responses are forwarded to the prisoner or the person acting on his behalf, and the prisoner has a final chance to respond. The panel then adjudicates the case.
The working group can carry out fact-finding missions abroad, and describes itself as the “only non-treaty-based UN human rights mechanism to investigate and decide individual complaints.” In 2014, the working group issued 57 opinions covering the detention of 422 individuals in 30 different countries, according to its annual report.
Friday’s finding represents the latest strange turn in Assange’s five-year effort to avoid Swedish prosecutor, and the panel’s findings left legal experts scratching their heads and national governments outraged. UK Foreign Minister Philip Hammond called the report “a frankly ridiculous finding, and we reject it.” A government spokesperson said in an email the UK plans to formally challenge the report.
Mr. Assange has chosen, voluntarily, to stay at the Ecuadorean embassy and Swedish authorities have no control over his decision to stay there. “Mr. Assange is free to leave the Embassy at any point,” Anders Rönquist, the director-general for legal affairs at the Swedish Foreign Ministry, said in a statement. “Thus, he is not being deprived of his liberty there due to any decision or action taken by the Swedish authorities.”
Assange hailed the finding as vindicating his long legal battle to avoid extradition to Sweden. The working group has made the same finding in the case of Nobel Peace Prize winner Aung San Suu Kyi, whose house arrest at the hands of military authorities in Burma was also deemed “arbitrary.”
While the finding is a powerful rhetorical tool with which Assange can bludgeon the Swedish and British governments, it is unlikely to have any real practical impact on his case. Swedish and British authorities have said it does nothing to change his case. If he leaves the embassy, he will still be arrested and deported to Sweden for questioning. The Russian Foreign Ministry urged Sweden and the UK to respect the finding and allow Assange to walk free.
The finding in Assange’s case is a surprising one. As a dissent by the working group’s Ukrainian member, Vladimir Tochilovsky, points out, there is a thin basis upon which to argue that Assange is detained in the Ecuadorean embassy. “Mr. Assange fled the bail in June 2012 and since then stays at the premises of the embassy using them as a safe haven to evade arrest,” Tochilovsky wrote. “Indeed, fugitives are often self-confined within the places where they evade arrest and detention.”
Assange fears that if he is extradited to Sweden to be questioned — he hasn’t been charged with anything — that the United States will seek to extradite him and charge him for his role in disclosing American military and diplomatic secrets. Sweden said Friday that it has received no such request, and legal experts believe that it is highly unlikely Sweden would comply with such an request, if it were offered.
Assange’s legal argument rests on this fear that he will be extradited to the United States. Assange and his lawyers argue that the treatment of fellow leakers like Chelsea Manning shows that he will not receive a fair trial.
In an attempt to preempt any such prosecution, Ecuador has offered Assange what it calls “diplomatic” asylum under the 1954 Caracas Convention, a treaty that the United Kingdom is not a party to. Assange argues that through his self-imposed detention in a London embassy he has had his right to asylum denied. UK officials argued Friday that they are under no obligation respect the Ecuadorean asylum offer.
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