Appearing on the balcony of the embassy of Ecuador in London with a sheet of paper in his hand and a smile lighting his tired face, Julian Assange waves to his supporters who have gathered along with a large media contingent outside what has arguably become the most famous detention centre in London. The paper is a copy of the ruling of the United Nations Working Group on Arbitrary Detention (WGAD), which, after 16 months of deliberation, has come to the unequivocal decision that his three-and-a-half-year confinement in the Ecuadorean embassy constitutes “arbitrary detention” and that he had to be freed and compensated suitably. For the founder and editor-in-chief of the celebrated whistle-blowing website WikiLeaks, the ruling vindicates not just the work of his website but also the political and legal strategy that he and his group of committed supporters and lawyers have devised in these last five and a half years, ever since a European Arrest Warrant (EAW) against him on grounds of rape was issued in 2010.
“How sweet it is!” he tells the crowds outside as he holds up the ruling. “This is a victory that cannot be denied. It is a victory of historical importance for me, my family, my children and for the independence of the U.N. system.”
The backlash against the ruling of the U.N. legal panel was swift and sharp. From the British government came a statement that said the ruling “changes nothing”. It denied that Assange had been “arbitrarily detained” by the United Kingdom and accused the U.N. Working Group of “ignoring the facts and the well-recognised protections of the British legal system”. Assange is “voluntarily avoiding lawful arrest by choosing to remain in the Ecuadorean embassy. An allegation of rape is still outstanding and a European Arrest Warrant in place, so the U.K. continues to have a legal obligation to extradite him to Sweden.” The British Foreign Secretary, Philip Hammond, went a step further, calling the ruling “ridiculous” and describing the committee itself as comprising “laypersons not lawyers”. Sweden, which was responsible for issuing an Interpol Red Notice and an EAW for Assange in 2010, announced that the U.N. body’s opinion “has no formal impact on the ongoing investigation, according to Swedish law”.
The WGAD panel comprised a team of five international experts, of whom Leigh Toomey recused herself on the grounds that she, like Assange, is Australian. Seong-Phil Hong (Republic of Korea) was the Chair and Rapporteur of the working group. The other three were José Antonio Guevara Bermúdez (Mexico), Roland Adjovi Sétondji (Benin) and Vladimir Tochilovsky (Ukraine). Tochilovsky disagreed with the majority opinion and gave a dissenting note.
“A continuous deprivation of liberty” The WGAD in its rules considered the period of Assange’s deprivation of liberty from mid-2012, when he was arrested by the U.K. police and detained in solitary confinement in London for 10 days following the issue of a EAW against him. Assange’s case, the U.N. panel argued, met all five criteria that established the denial of liberty. It said that Assange had been “subjected to different forms of deprivation of liberty: initial detention in Wandsworth prison which was followed by house arrest and his confinement at the Ecuadorean Embassy”. It also found the detention “a continuous deprivation of liberty”, because “he was held in isolation during the first stage of detention and because of the lack of diligence by the Swedish Prosecutor in its investigations, which resulted in the lengthy detention of Mr Assange”. It deemed his detention as violative of specific clauses of both the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights (ICCPR).
The WGAD asked Sweden and the U.K. to “assess the situation of Mr Assange to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention. The Working Group also considered that the detention should be brought to an end and that Mr Assange should be afforded the right to compensation.”
Sweden and the U.K. are signatories to the ICCPR, the European Convention on Human Rights and other treaties upon which the U.N. legal panel has based its recommendation. They have upheld every ruling of the same panel on “arbitrary detention”, whether of the Myanmarese leader Aung San Suu Kyi or that of former Maldivian President Mohamed Nasheed, to give but two examples. Both countries cooperated with the investigation by making detailed submissions to the WGAD. Yet, in the case of Assange, when the outcome of the investigation went against them, both governments chose to brazen it out with the argument that international law on human rights did not supersede the European justice system.
Rape allegation, a red herring? On the surface, and for those who have not followed the twists and turns of Assange’s case, the arguments put forward by the Swedish government appear eminently reasonable. Allegations of rape were made in Sweden in 2010 against the WikiLeaks founder, he fled to the U.K. to evade an arrest warrant that was issued against him, and when he saw his legal options reach a dead end, he jumped bail and sought asylum in the Ecuador embassy alleging political persecution. In this reconstruction of events, Britain only did what an upstanding fellow member of the European Union is expected to do, which is to enforce European legislation. Therefore, it placed Assange under 24-hour police surveillance and threatened to arrest him if he stepped out of the embassy. Assange is raising the bogey of extradition to the United States only to avoid being tried for rape, and the U.N. panel has fallen for the deception. The Guardian in its editorial summed up this position. “‘Arbitrary’ detention means that due legal process has not been observed. It has. This is a publicity stunt,” it stated.
Assange and his defence team have, however, long argued, and the U.N. ruling has now agreed, that this version of events is untrue.
For a start, Assange has never been charged with rape, nor has he been part of an investigation for rape. He has repeatedly offered to be questioned by the Swedish prosecution authorities over the allegations of rape by two Swedish women in 2010, but with the caveat that his evidence be taken at the Ecuador embassy in London, as he fears that if he returns to Sweden he could well be extradited to the U.S. where he is wanted under the far more serious Espionage Act. These fears are well founded. The U.S. Department of Justice has confirmed on more than one occasion that there is a pending prosecution and grand jury against him and WikiLeaks. Chelsea Manning, whose damning Iraq revelations were first carried on WikiLeaks, was tortured in a long pre-trial detention and convicted to 35 years’ imprisonment.
In 2010, two women went to a police station in Stockholm to ask how Assange could be compelled to take an HIV test as he had unprotected sex with them. The police treated this as a complaint and opened a preliminary case based on the allegations. (Later, according to Swedish police transcripts of their phone records accessed by Assange’s defence team, the women changed their versions, both denying rape, and one complaining of feeling “railroaded” by the police.) The Stockholm public prosecutor, Eva Finns, closed the case saying that the evidence on rape had no substance. On the intervention of an ambitious Swedish politician, who became the new legal adviser for the two women, the case was reopened, this time under another prosecutor, Marianne Ny, on allegations of “lesser rape”.
Assange waited in Sweden for five weeks to give evidence and then left for London with the written permission of the prosecutor in October 2010. Soon after his departure, the Iran War Logs were published in WikiLeaks, followed by Cablegate. Marianne Ny issued a Red Notice in November, which Interpol put up on its front page. Sweden’s arrest warrant against Assange was acknowledged by the U.K. authorities that December and Assange was arrested the same month and kept in solitary confinement for 10 days. In mid-December he was released on bail, and for the next year and a half he stayed under house arrest at the house of a well-wisher while contesting his extradition in the U.K. courts. With the U.K. Supreme Court’s rejection of his petition and his legal options closing, at least in the short term, Assange sought and received asylum from Ecuador. He could not enjoy the full benefits of political asylum as the real and ever present threat of arrest by the U.K. police ensured that he remain holed up in the embassy. During this time, his repeated offers to give evidence on the rape allegations were not acted upon. The Swedish prosecution case has been at a standstill since 2010.
In July 2014, a new piece of legislation was passed in the U.K. to prevent the abuse of the EAW. Had the legislation been applied retrospectively, Assange’s extradition to Sweden would have been barred. The President of the Supreme Court, Lord Phillips, argued for a proportionality assessment of the EAW in the future, noting that in the Assange case, “It does not necessarily follow that an offence that justifies the issue of a domestic warrant will justify the issue of an EAW.” More significantly, the new legislation bars extradition where no prosecution decision has been made.
The stubborn refusal of the Swedish prosecuting authorities to advance the investigation, Assange’s defence lawyers argue, only strengthens the assumption that Sweden and Britain are acting as proxies for the U.S. which has long had Assange in its crosshairs.
That the U.N. panel was under pressure from the U.S. and U.K. governments has been alleged by the former chair of the WGAD, the Norwegian lawyer Mads Andenas, who was involved in the early stages of preparing the report. He told a European television channel that the panel came under “considerable political pressure from the U.S. and the U.K.” Later, speaking to the U.S.-based Democracy Now, Andenas argued that Assange “had no other choice than to go and seek refuge, and he did that in the Ecuadorean Embassy. That was not his choice. That was not his volition. It was the only way he could uphold his own rights in this situation.” The Swedish side made a series of procedural mistakes, while on the U.K. side there was “no proportionality review”, he said.
WikiLeaks’ exposures have deeply angered the Washington security establishment. The video called Collateral Murder (leaked by Chelsea (then Bradley) Manning) of U.S. Forces killing innocent civilians as if in play, the Afghan War Diaries, the Iraq War Logs, and in April 2011, the secret files on the Guantanamo Bay camp detainees, revealed shocking proof of the lawlessness and inhumanity with which the U.S. armed forces operate. In November 2012, WikiLeaks collaborated with major global media organisations to release U.S. State Department diplomatic cables after redaction.
Britain’s response to the U.N. panel’s ruling may have won praise from the U.K. media, but it appears to be rapidly losing international support. Both Russia and Germany have supported the U.N. request for Assange to be allowed to walk free, as has UNASUR, the Union of South American Nations. Julie Bishop, Australia’s Foreign Minister, said she was seeking legal advice on the U.N. view that Assange, an Australian citizen, had been unlawfully held.
With his case now established in law, Assange’s fight has received the boost it needed. The long-term consequences of the actions of Britain and Sweden, Assange argues, could include the restriction of their participation in international bodies, and eventually even sanctions. In the short term, there is the reputational blow to their international standing that the two countries must face. The legal and moral victory is Assange’s, surely the most satisfying endorsement a persecuted whistle-blower could ask for.
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