UN Working Group on Arbitrary Detention

On Friday 5 February 2016, the UN Working Group on Arbitrary Detention (WGAD) announced its decision finding that the detention of Julian Assange is unlawful. The United Nations Working Group has ordered that he be released immediately and compensated by Sweden and the United Kingdom. Julian Assange’s petition was filed in September 2014.

Read the Working Group on Arbitrary Decision in Assange vs Sweden and the United Kingdom.

Interview with former UNWGAD Chair and Norwegian international Law Prof. Mads Andenæs

The Norwegian lawyer, Professor Mads Andenæs, is a legal academic and the UN Special Rapporteur on arbitrary detention was, since 2009 a chair of the United Nations Working Group on Arbitrary Detention, an expert panel which called on the Swedish and British authorities to end Julian Assange’s deprivation of liberty, respect his physical integrity and freedom of movement, and afford him the right to compensation.

Professor Andenæs, who presents in this interview his opinion about the mainstream media coverage regarding to Assange case, too, is a professor at the Faculty of Law of the University of Oslo, the former Director of the British Institute of International and Comparative Law, London and the former Director of the Centre of European Law at King’s College, University of London. He is also a Research Fellow of the Institute of European and Comparative Law, University of Oxford and a Senior Research Fellow at the Institute of Advanced Legal Studies, University of London.

He has been the General Editor of the International and Comparative Law Quarterly (Cambridge University Press), the General Editor of European Business Law Review (Kluwer Law International) and on the editorial boards of ten other law journals and book series, including the Nijhoff Series on International Trade Law.

He is an Honorary Fellow of the Society of Legal Studies (UK), a Fellow of the International Academy of Commercial and Consumer Law (where he is a member of the board), an Honorary Fellow of the British Institute of International and Comparative Law, and a Fellow of the The Royal Society of the Arts.

He was the Secretary General of the Fédération Internationale de Droit Européen 2000-2002, the Hon Secretary of the UK Association of European Law 1997-2008 and the Hon Secretary of the UK Committee of Comparative Law 1999-2005. He was the Chair, Association of Human Rights Institutes in 2008.

Please tell us about your job at Working Group on Arbitrary Detention (WGAD), during the initial part of Julian Assange case before the United Nations (UN)?

I was chair of the UN Working Group when the complaint was received, and the exchanges between the UN and the parties took place. I did not take part in the discussions of the Working Group leading up to the opinion in the Assange case. My term ran out in July 2015, and the decision was published in February 2016.

Why do you advocate for Mr. Assange?

I have spoken out in support of the opinion of the UN Working Group. Mr. Assange is in arbitrary detention and the UK and Sweden should abide by the UN ruling against them and take the steps that are necessary to bring his detention to an end.

Please specify the accusations against Julian Assange, and who accuses him.

The current case about the extradition to Sweden concerns allegations of sexual misconduct. Of course, the allegations relating to Wikileaks involves a strong interest of the security apparatus in many countries.

The fear is that the latter is allowed to influence the process and outcomes in the first case.

How do you see Washington’s allegation that Assange has threatened US security?

That are allegations that usually are fielded against use of the right to provide information and the freedom of speech. There is every reason to be sceptical to such assertions.

How do you see the UN’ decision to free Mr. Assange?

It is very clear. The UN WGAD had to decide two questions. First, whether there was a ’deprivation of liberty’ as opposed to a ’restriction of liberty’. Secondly, whether that deprivation of liberty was ’arbitrary’.

The UN WGAD clearly accepted the argument that Assange’s conditions are not ’self-imposed’, that is, if he stepped into the street, he would be arrested. There was also a ’substantial failure’ of the authorities ’to exercise due diligence’ in the ’performance of criminal administration’ (par. 98).

The line between a ’restriction of liberty’ and ’deprivation of liberty’ is finely drawn in European human rights jurisprudence. Liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention. You must consider the length of time that Assange has remained in the Ecuadorian embassy, and his ongoing circumstances.

Liberty must be capable of being realized in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice. The fact that Assange is resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.

Assange is not free to leave he Ecuadorian Embassy of his own will. He fears extradition to the US and prosecution for his involvement in Wikileaks. The Swedish authorities have refused to provide assurances of non-refoulment which respond to this fear. Assange’s deprivation is ’arbitrary’. One ground is that it is disproportionate.

There are other, less restrictive ways of proceeding. Before issuing a EAW, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room.

After Assange took residence in the Ecuadorian embassy they could have relied on ’mutual assistance’ protocols, questioned Assange by video link, and given him the chance to respond to the allegations against him.

Please clarify ’deprivation of liberty’.

The UN International Covenant on Civil and Political Rights and the UN Universal Declaration on Human Rights prohibit arbitrary deprivations of liberty in Articles 9. That is something more than a "restriction on liberty". It includes house arrest.

How do you evaluate the United Kingdom (UK) and Sweden’s decision of not respecting UN’ decision?

Rulings by the UN WGAD are not always followed by states, but rarely do they result in such personal attacks as made by UK politicians after the Assange opinion.

I know that the words used by the Foreign Secretary and the Prime Minister were not the ones provided by the the civil servants advising on human rights and international law. The UK politicians aimed at weakening the authority of the UN body for short term opportunistic gain.

I fear that these politicians have weakened the international community’s possibility to protect some of the most vulnerable victims of human rights violations.

Their words have circulated among the states responsible for the worst human rights violations. The words of these UK politicians will cost life and human suffering.

The UK may lobby for some support when the matter is reported to the UN Human Rights Council, but the UK will certainly be criticised by other states for its response, and clearly deserve that.

The damage done to the UK in the UN and its moral authority in human rights issues is another matter, but there is no doubt about the damage done to the authority of the UK.

Professor Andenæs, comment the current status of the ’preliminary’ investigation in Sweden, and US ’pending prosecution’ against WikiLeaks.

Also those who are convinced that Mr. Assange is guilty of rape, whether or not you think he is a self-publicist deliberately resisting arrest (and I do not), the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden.

It is timely to remind ourselves that Assange has not been found guilty of rape: at this stage the prosecutor and courts in Sweden has held that there are probable grounds. Professor Andrew Ashworth, Oxford, stated in an Expert Opinion from 2011 that Assange’s team has made reference to, that "I do not consider that any of the incidents alleged in box of the EAW (that are the allegations cited in the arrest warrant) is sufficient of itself to constitute any offence under English law".

The Swedish Supreme Court Vice President has reminded us that the accused is presumed innocent until found guilty (video below), and that when there are contradictory statements, it is for the courts to decide whether there the requirements for a conviction are satisfied. (See video)

The Swedish courts, also the majority in the Swedish Supreme Court, the Vice President was not on that panel, expressed that the arrest warrant even if it could not be executed against Assange, limited his liberty in a way that was relevant to question whether it remains proportional. The majority noted with approval that steps were now taken to interview Assange in London.

Over time, the Swedish Supreme Court may well grow sympathetic to the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation are now disproportionate (a view presented by Anne Ramberg, head of Sweden’s Bar Association and Judge Charlotte Edvardsson, the reporting staff judge in the Supreme Court, in her (public) proposal to the court in the case).

Certainly, Former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs, Hans Corell, has stated that he ’does not understand why the prosecutor had not questioned Julian Assange during all the years he has been at the Ecuadorian Embassy’.

Reasonable and judicial minds have differed on many of these issues. No doubt they have been coloured by views on the integrity of Assange himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all.

Why do you think the UK is acting so strongly according to US interests in this case?

Wikileaks has made very important contributions to our knowledge about the diplomatic and political process. It has changed my perception of major events and institutions. Wikileaks makes it much more difficult to manipulate us.

The so-called intelligence community base itself on working methods that are cloaked in secrecy. There are strong institutional forces that want to put an end to Mr. Assange’s activities. That go for very many countries.

How do you see Ecuador government regarding Mr. Assange, and the importance of world solidarity with him not only by other governments, but also by activists and civilians in general, Professor Andenæs?

Ecuador’s government has made a very important contribution to the protection of an international public sphere, and to the protection of freedom of information, freedom of expression and accountability for human rights violations. The expressions of solidarity for him not only by other governments, but also by activists and others around the world arre very important.

How do evaluate the mainstream media approach regarding to WikiLeaks revelations, especially involving Assange judgement?

I had expected a more muscular defence of the right to provide information and the freedom of speech. But media in all countries operate in a complex interaction with governments and take account of the state interest in different ways. In my view, in this case with too much respect for the perceived state interest.

How do you evaluate recent WikiLeaks revelations of US spying on UN Secretary General Ban Ki-moon and German Chancellor Angela Merkel at a private climate change strategy meeting in Berlim, and the United Nations High Commissioner for Refugees (UNHCR)?

They reveal wholly unacceptable practices. They also justify the work of Wikileaks.

Interview by Edu Montesanti

WHAT IS THE UN WORKING GROUP ON ARBITRARY DETENTION (WGAD)?

Under the authority of the UN Office of the High Commissioner of Human Rights, the WGAD was established in 1991 to investigate and adjudicate whether states are in compliance with their international human rights obligations. It receives submissions from the individual complainant and the respondents (the states), and decides whether the case amounts to arbitrary (that is to say unlawful, or prohibited) detention. The European Court of Human Rights draws on judgments of the WGAD in cases concerning deprivation of liberty (violations against Article 5).

WHAT IS THE DECISION ABOUT?

The WGAD decides, according to pre-defined criteria:

  • Whether a person is ’detained’
  • Whether that detention is ’arbitrary’ (unlawful)

WHAT HAPPENS NEXT?

The United Nations Working Group on Arbitrary Detention has found that Julian Assange is arbitrarily detained. The UK and Sweden must immediately release and compensate him. The decision is binding, as the UN Office of the Hight Commissioner for Human Rights has explained.

WHAT TREATIES AND INTERNATIONAL LAW DIRECT WGAD INVESTIGATIONS?

The international laws looked to by the WGAD include:

  • International Covenant on Civil and Political Rights (ICCPR), the most universally-ratified human rights treaty;
  • The UN Standard Minimum Rules for the Treatment of Prisoners;
  • The UN Declaration on Human Rights;
  • The European Convention on Human Rights.

WHICH OTHER IMPORTANT CASES HAS THE UN WGAD DECIDED?

Against Myanmar: WGAD found that Aung San Suu Kyi (2007) had been arbitrarily detained while under house arrest. The regime released her in 2010. Last year her party won 86% of the vote in democratic elections.

Iran: (December 2015) for arbitrarily imprisoning Washington Post journalist Jason Rezaian. Iran released him on 16 January 2016.

Maldives (October 2015) for illegally imprisoning former pro-democracy president Mohamed Nasheed, who was promptly released. On 23 January 2016 Nasheed visited 10 Downing Street with his lawyers Amal Clooney and Ben Emerson QC.

Malaysia: for the arbitrary imprisonment of opposition leader Anwar Ibrahim in a politically motivated sodomy case.

Egypt (April 2014) for arbitrarily imprisoning former president Mohamed Morsi, deposed by current President al-Sisi. He has not been released.

WHO ARE THE MEMBERS OF THE UN WORKING GROUP ON ARBITRARY DETENTION?

Sètondji Adjovi (Benin, Second Vice-Chair) Adjovi, an academic and practitioner specialising in international criminal procedure and judicial reform, worked at the International Criminal Court and at the International Criminal Tribunal for Rwanda before his appointment to the UN WGAD.

Mads Andenas (Norway, Chair and member until mid-2015) Chair of UN Working Group on Arbitrary Detention until mid-2015. Has previously held positions as Director of the Centre of European Law at King’s College, University of London and Director of the British Institute of International and Comparative Law, London. Professor at the Faculty of Law of the University of Oslo.

Mr. José Guevara (Mexico, First Vice-Chair) Guevara is a legal academic and practitioner who focuses on Human Rights Protection and International Criminal Law. Prior to joining the WGAD, worked in the NGO sector, Mexico City’s Ombudsman’s office and in government in the area of human rights. Guevara is the recipient of the Open Society Foundation’s New Executives Fund leading the Mexican Commission for the Defense and Promotion of Human Rights.

Seong-Phil Hong (Chair-Rapporteur, Republic of Korea) An expert member of the Asian Council of Jurists of the Asia Pacific Forum and legal academic, Seong-Phil Hong has specialised in the case for reparations regarding Japan’s Enforced Sex Slavery during the Second World War and accountability for human rights violations by the North Korean regime.

Vladimir Tochilovsky (Ukraine) A legal academic and practitioner whose expertise lies in international criminal justice and procedure. Tochilovsky was part of the Preparatory Committee and Commission that drafted the guidelines on criminal procedure for the International Criminal Court.

Leigh Toomey (Australia) An expert in the UN Human Rights system, Toomey has taught at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and has served as a UN human rights expert both in the capacity as an NGO representative and as a representative for Australia at the UN General Assembly and Commission for Human Rights.

WHO SUBMITTED THE COMPLAINT ON JULIAN ASSANGE’S BEHALF?

On behalf of Julian Assange’s international legal team:

PRESS CONTACTS

Julian Assange submitted a complaint against Sweden and the United Kingdom to the UN Working Group on Arbitrary Detention on 12 September 2014. For press inquiries, contact Julian Assange’s legal team:

English: Melinda Taylor (The Hague) - +31 611566009 (mobile) melindataylor@gmail.com

John Jones QC, Doughty St. Chambers +44 20 7404 1313 j.jones@doughtystreet.co.uk

Jennifer Robinson (UK) - jkr.robinson@gmail.com

Carey Shenkman (US) - careyshenkman@riseup.net

Spanish: Baltasar Garzon, ILOCAD (Spain) Contact (ILOCAD): +34 645209998 +34 616039340 +34 914343445

French: Christophe Marchand, Jus Cogens (Belgium) +32486322288 (mobile) cm@juscogens.be

2237 days under house arrest.

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