A UN Panel has found in favour of the claim made by Julian Assange, of WikiLeaks notoriety, that he has been subjected to ‘arbitrary detention’. This Panel, by a 3-1 count, recommends Mr. Assange’s immediate release and (for good measure) some monetary compensation.
The reasoning of this Human Rights Council Working Group on Arbitrary Detention Opinion is so incredibly feeble that it will take your breath away. Indeed I would bet big money that any law professors reading this would get better stuff out of almost all of their LL.B. students. The former director of public prosecutions in England, Ken Macdonald QC, characterised the reasoning as ‘beyond parody’. I’m inclined to think Lord Macdonald is being too kind.
Rather than speak in distorting generalities, let’s start by being clear just who comprises this UN Working Group. You have a South Korean associate professor of law specialising in international law and human rights. You have a Mexican who has headed up a university human rights program, as well as a government human rights unit. You have an assistant professor of international law and (you guessed it) human rights from Benin who has also worked at the International Criminal Court. Those are the three who decided that Assange was in fact being arbitrarily detained. Then there is an Australian who has taught (surprise, surprise) human rights at a law school. She recused herself from this case because that’s what the rules require when a ‘judge’ (I use the term in the loosest imaginable sense) shares a passport with one of the parties. Finally, you have a Ukrainian with a Ph.d. who has written in various areas, including human rights, and who ‘has an extensive practical experience in international criminal justice’. This last member of the Working Group wrote the dissent finding against Assange.
If you have read about how the UN, or the Human Rights Council, or a UN Panel has decided in favour of Julian Assange, bear in mind that a more specific claim is that three human rights law professors chosen in an incredibly opaque and unrelated-in-any-way-at-all to how judges are chosen in common law democracies have sided with Assange. None of the group was a judge or had any apparent experience with judging, or conflict of laws issues, or domestic criminal law procedures, and the list goes on.
Notice, too, that the Opinion is 18 pages in length. For those who are used to common law judgments it will come as something of a surprise to find that the first 13 pages are just a regurgitation of the submissions of the parties, with a bit of what seems to me to be cheap editorialising now and again. You then have three pages for the majority opinion and a half page dissent that in my view demolishes the majority’s claims, premises and reasoning.
The core issues are what counts as ‘detention’ and what counts as ‘asylum’ in the context of a Swedish prosecutor requesting that Mr. Assange be detained in the United Kingdom as there was in Sweden probable cause to suspect him of rape, sexual molestation and unlawful coercion. A European Arrest Warrant (EAW) was issued. Mr. Assange fought the extradition. In doing so he spent 10 days in a London prison before receiving bail, then some year and a half under house arrest as he fought the extradition to Sweden through the highest levels of the UK court system, then another three and a half years in an Ecuadorean embassy – which is where Assange fled to once he had exhausted all of his available appeals and court options in Britain.
For the majority all three of those count as arbitrary detention, and this is so despite Mr. Assange not only having avenues to challenge the supposed detentions, but the historical reality being that he did so and did so often. What the dissent describes (accurately) as ‘fle[eing] bail in June 2012’ and as ‘stay[ing] at the premises of the Embassy using them as a safe haven to evade arrest’ is magically transmogrified by the majority into being ‘arbitrarily detained’. Truly, it is beyond parody.
Think about it. If the criminal procedures in Sweden are so deficient that someone accused of a very serious criminal offence can legitimately avoid being returned there to face trial then my guess is that this UN Working Group on Abitrary Detention is going to find itself pretty busy in the years to come. After all, one can probably think of at least, oh, 150 countries with less liberal and less accused-friendly criminal procedural standards than Sweden.
Assange has been free to leave the Embassy any time he wants these last three and a half years. He chooses to stay inside rather than go outside, and be forced to face his accuser in Sweden. If that amounts to an arbitrary detention then I suppose just about any accused could engineer his own arbitrary detention. If O.J. Simpson had known his UN case law he’d have taken that white Jeep of his and driven it to a friendly embassy in Washington D.C. where, after being granted ‘diplomatic asylum’ (and I confess I can’t really even understand what the majority are saying about that) he would merely have to wait a few years and his ‘evading arrest and self-confinement’ would magically and mysteriously transmogrify into ‘arbitrary detention’ under the benevolent eyes of three international human rights ‘experts’.
This is the worst sort of politically correct nonsense you have ever read (not counting, of course, the incisive Ukrainian’s half-page dissent at the very end). Both Sweden and Britain have said they will be ignoring this Working Group’s Opinion. Luckily for us all this UN Panel’s opinion has no status or weight in any country’s domestic laws and so the response of both governments is wholly unexceptionable and correct, the laments and bleatings of all of Mr. Assange’s supporters notwithstanding.
In trying to think of an analogy to give you a flavour of the Working Group’s reasoning, the best I can do is to point you towards A. P. Herbert’s Uncommon Law mock hypothetical cases. Herbert was a genius at twisting reasoning on its head to achieve patently ridiculous outcomes. But he was doing it for laughs. Any laughs when reading this UN Panel’s opinion are wholly unintended.
Garrick Professor of Law
University of Queensland, Australia