We awoke to the extraordinary news that Julian Assange had announced he’d leave the Ecuadorian embassy in London tomorrow and submit to arrest if the UN working group on arbitrary detention turned down his complaint to them. Shortly afterwards, the BBC reported that the working group has come down in his favour. That would be an astonishing conclusion for the working group to reach.
We won’t be able to read the working group’s opinion at least until tomorrow. In the meantime, here’s the 42-page submission Julian Assange sent to the working group, and that it seems has persuaded them.
The reason this opinion is so astonishing is because it’s hard to see how either Britain or Sweden can be described as detaining Julian Assange at all, or depriving him of liberty (to use the expression the working group prefers (see pages 15-16 of its 2015 annual report).
Julian Assange refers in his submission to cases like Riad and Idiab v Belgium in which the European Court of Human Rights ruled that two failed asylum seekers were deprived of liberty contrary to article 5 of the ECHR when effectively trapped in an airport transit zone. In that case, the Belgian authorities took the two men to the airport to technically free them, following court decisions ordering their release; in the transit zone they were able to leave only by consenting to deportation. It seems they were wholly dependent on charity for food and drink.
But in his own case, of course, Assange was not taken to the Ecuadorian embassy by the British authorities. Nor is his being there part of any official strategy to force him out of the country. He truly is there by choice, and the fact that he’s not deprived of his liberty either by Britain or Sweden is conclusively shown by the fact that both countries would very much like to do so, if they can get their hands on him.
When we do see the opinion, a point of special interest will be how the working group categorises this “deprivation of liberty” in terms of the classification scheme it adopts:
A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).
D) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV)
There is a category V — where detention is discriminatory — but Julian Assange does not allege that.
The working group might well put this “deprivation of liberty” in “category I”: once you conclude that a situation like Julian Assange’s amounts to a deprivation, then it will clearly be impossible to find a legal basis for it. That’s because neither Britain nor Sweden is currently able to exercise any official powers over Julian Assange, and cannot therefore identify any legal powers they’re exercising, or justify them. There’ll be some irony about it, if this if their conclusion.
“Category II” is I suppose possible, if the working group thinks this is all a conspiracy to silence or punish Asange’s work with Wikileaks—so that the detention results from the exercise of his freedom of expression under article 19 UDHR.
It’s hard to see how they can find a “category III” deprivation of liberty, since he’s not on trial on Britain, and Sweden is unable to put him on trial. Nor is it obvious how either country has gravely impaired the fairness of any future trial in Sweden.
Finally, “category D” is I guess a possibility, if the working group starts from the assumption that Assange is a refugee (Ecaudor has granted him diplomatic asylum, a concept not accepted by Britain or most countries outside Latin America) and is “in custody” without the possibility of review. Even that’s hard to imagine since he can apply to the High Court at any time, arguing that the police or government are holding him in breach of the Human Rights Act.