Hans Thoolen on Human Rights Defenders

It should not have been terribly surprising to Sweden or the United Kingdom that the United Nations Working Group on Arbitrary Detention found that the various forms of confinement suffered by WikiLeaks founder Julian Assange violate his human rights. The Working Group has many times warned that it is unlawful to force someone to choose between liberty and a fundamental right, such as asylum, which Assange now enjoys only so long as he stays inside the walls of the Ecuadorean embassy.

What is news are the deplorable rhetorical parries from the UK and Swedish governments, who both stated not just disagreement, but that the Working Group opinion would have absolutely no effect on their actions. This is not what one expects from democratic governments who usually support the UN mechanisms and international law.

“This changes nothing,” declared the UK Foreign & Commonwealth Office. The foreign secretary diplomatically called the ruling “frankly ridiculous,” disparaging the Working Group as “a group of laypeople, not lawyers” (in fact, many of the experts are professors of law or human rights or both – see below). Sweden managed to avoid imprecation, but was no less unreceptive. The Foreign Ministry declared that the Working Group had no right to “interfere in an ongoing case handled by a Swedish public authority” and continued to insist that “Mr. Assange is free to leave the Embassy at any point.” As for the Prosecutor’s Office, it declared the UN body’s opinion “has no formal impact on the ongoing investigation, according to Swedish law.”

While the Working Group does not have the authority to force governments to heed its decisions, it is the authoritative voice of the UN on the issue of arbitrary detention, and its opinions are given great weight as interpretations of binding international law obligations. The Office of the UN High Commissioner for Human Rights today attempted to remind Sweden and the UK of that in a discrete Note to Editors, saying the opinions should be taken into consideration as they are based on international human rights law that binds the relevant states.

Not much consideration appears to be happening. The UK has said that it will arrest Assange if he leaves the shelter of the embassy, either because of the European arrest warrant the Swedish prosecutor issued to investigate allegations of sexual offenses, or because he violated the conditions of his house arrest by going directly from his last UK court appearance to the Ecuadorean embassy in London to apply for asylum.

The Working Group found that Assange’s confinement – first in a UK prison, then under house arrest, and now in the embassy – violated his human rights. Given that Assange has claimed political asylum, a claim Ecuador recognizes but the UK and Sweden have not taken into account, the Working Group said his freedom of movement and security as a refugee should be respected, and compensation awarded.

Both Sweden and the UK are parties to the International Covenant on Civil and Political Rights, the treaty on which much of the decision rests, and are bound by other customary international law against returning refugees to locations where they risk persecution. Their failure to give due consideration to these international rights and obligations is what drove the conclusion that Assange’s confinement is “arbitrary.”

Let’s be clear: the issue is not Assange fleeing Swedish justice; he has continually expressed his willingness to be investigated by Sweden. What he won’t do is risk eventual extradition to the United States, which would like to prosecute him under the Espionage Act.

That is because WikiLeaks revealed the embarrassing diplomatic cables that Chelsea Manning leaked. And if you look at Manning’s fate, Assange has plenty to fear. Manning was abused in pretrial detention, denied the defense that the public interest justified her disclosures, and sentenced to 35 years. A secret US grand jury has been investigatingAssange on related Espionage Act charges for close to five years. Neither Sweden nor the UK will promise Assange he won’t be extradited, and both are close US allies in national security and intelligence affairs.

So who are the losers? Assange, who has already been confined longer than the maximum term he would serve in a Swedish prison were he found guilty, and the Swedish women who made the original allegations, and whose government won’t pursue the matter if it means protecting Assange from extradition to the US.

And now the UK and Sweden are big losers as well. Their fatuous dismissal of the Working Group won’t impugn this necessary and neutral body that was established by the world’s governments to uphold rights. But both have severely damaged their own reputation for being so ready to dismiss upholding inconvenient human rights obligations and their credibility as global advocates for rights by refusing to respect the institution of asylum.