The UN working group’s Assange opinion

by Carl Gardner on February 5, 2016

Here’s the opinion of the UN working group on arbitrary detention, which has concluded that Britain and Sweden have arbitrarily detained Julian Assange. It calls on both countries to release him, and pay him compensation.

I wondered in my earlier post how the working group might classify the “detention”—in fact, it puts it in what it calls “category III”, where detention is arbitrary because of a grave non-observance of the right to a fair trial. I thought that was obviously the least likely possibility (Sweden being unable to put Julian Assange on trial at all, as things stand) but the working group has concluded otherwise.

The reasoning of the working group is thin, to say the least. It begins by noting that Assange was segregated from other prisoners for the ten days he was remanded in custody in Wandsworth prison—and simply goes on to say (para. 86)—

arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance …

without considering whether the decision to segregate him was justified, and without considering the fact that he had lawyers and applied for bail, so was not “left outside the cloak of legal protection”. On this approach, every segregated prisoner in the UK is arbitrarily detained.

Assange’s detention, the working group goes on, continued for 550 days in the form of what it calls “house arrest” (para. 87):

During this prolonged period of house arrest, Mr. Assange had been subjected to various forms of harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day and a bar on being outside of his place of residence at night. In this regard, the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.

This is of course the period in which Julian Assange was released on conditional bail and living at Ellingham Hall. Its quite true he had a curfew, and had to be there during the night hours. It’s true he was tagged, and had to report daily to the police. But otherwise as I understand it he was free to come and go. And these admittedly strict bail conditions are understandable given that Assange had already flown out of Sweden, where he was wanted. The working group does not consider why those bail conditions were imposed, the fact that Assange could have applied for a variation of bail, or that his move to the Ecuadorian embassy can be said to justify, after the fact, the judge’s imposition of bail conditions.

Breathtakingly, the working group fails to mention the fact that Assange entered the Ecuadorian embassy after losing his Supreme Court battle against extradition. And as far as his prolonged residence there is concerned, the working group says (para. 90)

Mr. Assange’s stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty …

but never actually addresses the question whether this really is detention, and even if it is whether Britain and Sweden are the “detainers”. Indeed in the next paragraph (91) it says revealingly

What matters in the expression ‘arbitrary detention’ is essentially the word “arbitrary”

which perhaps explains the lack of analysis of whether there is now any “detention”. To be fair, the working group says (para. 91)

Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty

but of course neither Britain nor Sweden has “placed” Julian Assange in the Ecuadorian embassy.

Perhaps paragraph 97 of the opinion gives us most insight into the working group’s approach. It criticises

a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration

complains that Assange

is still left even before the stage of preliminary investigation with no predictability as to whether and when a formal process of any judicial dealing would commence

and offers the insight that

From a time perspective, it is worse than if he had appeared in Sweden for questioning and possible legal proceeding when first summoned to do so

before concluding—

it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination.

Yet at no point does it consider whether Julian Assange might be even partly responsible for any of the delay, uncertainty or “indefinite procrastination”. This sums up an awfully reasoned opinion that in effect accepts all Julian Assange’s arguments uncritically.

In contrast, the dissenting opinion of Vladimir Tochilovsky is to the point, and hard to argue with. As far as the embassy stay is concerned, he says (para. 3)

In fact, 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. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.

As for the period on conditional bail, he says

In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” … Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.

Philip Hammond is right: this working group opinion is ridiculous.

{ 16 comments… read them below or add one }

1 Curious February 5, 2016 at 16:09

I find Tochilovsky’s following sentence to be nonsensical, in the sense of it concluding that the working group is sort of out of bounds with respect of any “mandate”, and so probably risks being attributed to being assertive and poignant, when it probably couldn’t be:

[i]”However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.”[/i]

I am inclined to want to call bs whenever I read a phrase like “for the purpose”, unless this is about something one would oneself consider to be self evident, otherwise it probably have the effect of being highly suggestive. I’d argue that the point of what Tochilovsky’s wrote in the quote just above, is not really the rational judgment that it pretends to be, but instead that it merely explains his sentiment, that purports to be conclusive by making a point of denying validity to some idea. To simply state that something is an aberration, although such an expression being considered to be something poignant by its own merit, I’d claim that such an expression isn’t really the kind of argument one would find acceptable, because the rationale (the sentence) is seemingly only intended to underline the punchline (cannot be considered..), which is that the author simply is in disagreement with something, not really suggesting that something must be invalid.

There can imo philosophically speaking, be no real difference in meaning between interpreting someone like when they express the phrase “for the purpose” in a given context, compared to explicitly arguing that something supposedly has a ‘purpose’, or by referring to having a ‘purpose’.

I think one could claim for example, that the working group doesn’t have a mandate to make a judgment or provide any opinion about what is and isn’t to be considered to being a detention area, but doing so would be wildly different than simply conclude that the working group can’t make a judgment or provide any opinion about what is and isnt’ to be considered to being a detention area, though with Tochilovsky’s being in this working group himself, that would I think be bizarre, as I argue such would seem intended to solely undermine any authority the working group had in the first place.

The way I see it, it would be meaningful if Tochilovsky’s simply disagreed with the rest of the members of the working group. For the world to try use Tochilovsky’s lambasting opinions to try invalidate the work of the working group seem bizarre to me.

2 Curious February 5, 2016 at 16:14

Hm, I know nothing about Tochilovsky, so I can’t help but wonder if perhaps there could perhaps be a translation error, or ill formed paraphrasing in the English versions of documents (or whatever).

3 botzarelli February 5, 2016 at 16:58

I’m not sure I follow the first comment. I read Tochilovski as saying that Assange’s self-confinement (as he very elegantly put it) was not detention and that it not being detention, it fell outside the ambit (or mandate, jurisdiction, whatever) of what the Working Party is entitled to opine upon.

That doesn’t mean it can’t consider it at all, in the manner of one English Crown Court Judge I saw repeatedly saying “I can’t hear you” to an increasingly flustered young barrister whose Court dress was deficient. Rather that the Working Party cannot consider the arbitrariness or otherwise of something which is not detention (and as the Working Party majority opinion states, it is really only looking at arbitrariness). That is, the majority were wrong to conclude that Assange is detained so the issue of arbitrariness of detention cannot arise because the type of detention they are charged with opining upon is detention by a State rather than self-detention.

4 thomas February 5, 2016 at 18:58

Not much of the opinion other than the presentation analyzes the threat of extradition to the US, treating it almost as vaguely as the threat is itself.

The only court that has considered that threat was the first decision made in the UK. When presented as an idea, Assange’s own legal expert was forced to admit that it would create a media firestorm against it, with the Judge summarizing that it was all but impossible. See the court transcripts, as far as I can tell, this is the only time this idea has been tested in a court.

Next up is Assange’s claim that the US investigation is illegal, or impinging, or whatever. See the August timeframe when the Manning verdict was handed down, two days later Wikileaks released an “insurance file” – [google the several instances of them releasing insurance files] – a 400gb file secretly encoded and available for download. All that has to be done to release the information in that file is release the password, it’s out there just as the last release was.

I think it’s justifiable to keep an investigation open on a previously convicted (and boastfully skillful) hacker-cum-journalist-activist who has previously released mass loads of files.

I also think that the ongoing activities of Wikileaks and Assange obviously preclude any sort of blanket extradition guarantee, which always was a ridiculously thought.

What Ecuador’s embassy in London has effectively become is HQ for Wikileaks. I’m surprised their other interlocutors in international relations have not chided them on this, quick specifically the Saudi OPEC delegation upon the recent release of a massive tranche of their FM files.

Will Assange need to ask Ecuador to guarantee to not extradite him to Saudi Arabia?

5 thomas February 5, 2016 at 19:06

For ongoing activities, see also offering a Reward/Incentive for leaks on the TPP. That combined with releasing insurance files is questionable for news agency, I’d be surprised if anyone from the wider landscape of old and new media would support that as a general operating procedure. Wikileaks has not laid out a dedicated argument for such activity, preferring to lay out tidbits of its publishing philosophy in interviews and tweets, and it seems leaving itself wiggle room if ever called on it.

6 thomas February 5, 2016 at 19:12

Lastly, the group’s opinion should have only been required if and when the US implemented any extradition efforts (I know, the conspiracy side says the world ‘sealed’ to scare you, but that’s just the way things work, like Oscar awards) and other, quite competent bodies, such as the Swedish Supreme court and then to the UK supreme court, a process that could last for years. Just ask Gary McKinnon how long it takes. Then give us a call.

My solution was always a crazy one: Ecuador demands his extradition for crimes upon the release of trial and prison in Sweden, thus satisfying the other fantasy of order or extradition warrants (i.e. the US couldn’t sneak in before them). Sweden and UK agree to this in advance (hold trials and everything). We all go on our way.

7 thomas February 5, 2016 at 19:19

Or in other words, the only way to guarantee non-refoulement to one (or any) location is to demand and waive refoulement to another, very specific location, in this case Ecuador.

The other way around puts the cart before the apple.

8 Coventry Man February 5, 2016 at 20:19

This is very sad. The UK has a respectable history of supporting personal freedom. This sort of opinion cannot help but support those who rubbish the whole organisation.

9 Curious February 5, 2016 at 20:24

Presumably, for politicians and the media to start a discussion about if the working group should or should not consider what is and isn’t an area of detention, would be sidetracking the serious issues in this case.

10 BlackBess February 5, 2016 at 20:42

As his lawyer Melinda Taylor explains it, he cannot obey the law without putting his own life at risk. This is why he was granted asylum by Ecuador. By that reasoning he is detained. Despite the feelings on this fora, the UN panel has granted these conditions are real and are true. He is therefore by the expressions of the UN Panel, detained.

His life is at risk from whom you may ask, extradition to the US where charges held under seal are pending which include ‘communicating with the enemy’ and ‘espionage’.

(Feinstein-Bond Ask Attorney General to Prosecute WikiLeaks Founder Julian Assange for Espionage http://www.intelligence.senate.gov/press/feinstein-bond-ask-attorney-general-prosecute-wikileaks-founder-julian-assange-espionage)

The US intends to disallow any 1st amendment rights as they have stated they do not recognise that Assange is a journalist.

Elsewhere than the United States this condition is held to be unfair and even illegal (enshrined freedom of the press).

Further to this, despite being ordered by Swedens Courts of Appeal the case prosecutor apparently continues to refuse to question Assange in London. This despite an agreement in place between the states of Ecuador and Sweden to facilitate.

He has asked Sweden interview him in London – refused
He has asked Sweden guarantee no onward extradition – refused
Ecuador summoned Sweden to interview him in the Embassy 47 times – refused.

As Assange can neither forward the cases progress and the prosecution refuses to, nor establish his grant to asylum, he is left in a precarious legal limbo that 3 states, the US, the UK, and Sweden seem witless or to actively encourage.

The UK position is there is still an active warrant to arrest him and it dutifully will. Despite the law they wish to arrest him on being repealed for EAW’s where there are no charges or Judge presiding court approval.

If he steps outside the Embassy he risks extradition by either Sweden or the UK and a very certain future of detention for a very long time ‘at the very least’. There is also the burden of the death penalty which Members of Congress have publicly urged. This notwithstanding the poor record of detention in the US, where at GITMO the most secure facility on Earth, 8 persons have managed to die in custody.

The UN’s panel was sought to highlight this conundrum to encourage these states to make some progress in his case, or simply let him go. But even this they seem determined to fight.

11 Curious February 5, 2016 at 20:56

Having look at this article by The Washington Post just now, it seems to me, given my earlier points in my comment(s) above, about the danger of attributing meaning to the kind of assertiveness Tochilovsky appear to exhibit, his seemingly conclusive opinion imo clearly isn’t merited by his reasoning in the text I quoted earlier, for the reasons which I already have explained. All the eight points listed there becomes moot points as far as I am concerned.

https://www.washingtonpost.com/news/worldviews/wp/2016/02/05/three-members-of-u-n-panel-said-assange-was-arbitrarily-detained-one-didnt-heres-his-dissent/

12 Alex February 5, 2016 at 22:55

I’d find it really helpful if someone set out the process which this panel follows to progress their cases and the status of the panel itself.

I’ve seen vauge references to “looking into this for 16 months” but no clarity on what that means. Do they investigate? Interview? Cross examine?

Finally who writes the response from the governments? Are they lawyers or diplomats?

13 Tim February 7, 2016 at 21:31

I would describe this is ‘constructive detention’, although that’s too charitable to the UK and others.

I hope the UN are equally diligent and forthright when looking into the UK’s abuse of disabled people.

14 georgethebushpig February 9, 2016 at 10:31

“And these admittedly strict bail conditions are understandable given that Assange had already flown out of Sweden, where he was wanted.”

Didn’t Assange leave Sweden with the agreement of the prosecutor? Furthermore, until now no charges have been laid against Assange. Not quite sure the characterization of being “wanted” is accurate.

I wrote the following re: your previous post:

It must be noted that Julian Assange has not been charged with any crime. The extradition order is so that they can interview him in Sweden, which they could have done by coming to the UK or via video conference (considered normal practice). The unwillingness of the Swedish prosecutor to facilitate this is the reason Assange is in the situation he is (either incompetence on the part of the Swedish prosecutor or political motivations). The troubling question is whether the Swedish prosecutor would have gone to the extent it has in trying to get an extradition, and whether the UK would have gone to the extent it has (spending 11.1 million pounds on policing) in facilitating the request if it were an ordinary person. If people are arguing that it is so obvious that it was a decision on Julian’s part to place himself in detention, they should also see the obvious politicization of this case because of Julian’s WikiLeaks activities.

15 Alex February 9, 2016 at 10:47

I look at this the other way round. If this were a normal person would they have been given bail with substantial surety given by celebrity backers, or been able to abscond to an embassy by claiming political asylum? Would a normal person been able to argue the bail point all the way up to the Supreme Court?

Let’s face it, Assange has only been able to drag this out for 5 years because of his celebrity. It’s no surprise that with the high profile nature of this case the UK and Sweden are reluctant to let it go as if they do it’ll be seen to be giving a celebrity special treatment.

If you were accused of rape in another European country do you think you’d be able to abscond from bail (for whatever reason) and not have the police pursue it?

16 georgethebushpig February 9, 2016 at 17:33

Dear Alex,

If it was a normal person the prosecutor Marianne Ny would not have reopened a case that had been closed by the Chief Prosecutor Eva Finne who stated that “[she] made the assessment that the evidence did not disclose any offence of rape” and that “The conduct alleged by SW disclosed no crime at all and that file (K246314-10) would be closed.”

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