Understanding the Assange decision, by Gilberto Antonio Duarte Santos

Last Friday, 5 February, 2016, the United Nations’ Working Group on Arbitrary Detention (WGAD) publicized a decision in which it understood WikiLeaks founder Julian Assange is arbitrarily detained in the Ecuadorean embassy in London. This decision has been criticized by the majority of the media in the United Kingdom. The left-leaning Guardian published an editorial (2015) in which it nearly mocked the Working Group’s decision, while other papers, such as the (alleged) Independent, prioritized exposure of these predominantly negative reactions. Even in the US, as exemplified by Elias Groll’s article on Foreign Policy (2015), did commentators chip in to expose a perceived ridiculousness of the findings.

The reactions can be divided into two general branches. The first contests the proven arbitrariness of the arrest in the United Kingdom, while the second focuses on the fact that alleged rape victims in Sweden are a step further from justice. Both arguments are misguided, simplistic and do not offer the public any insight into the most important victory in the Working Group’s decision: the upholding of due process rights and serious conflict in international legal cooperation mechanisms, which must be resolved.

Mr Assange is suspected of rape in Sweden. A strong emphasis must be placed upon the word suspected for, as the Working Group adequately pointed out, it is not the same as a (formal) accusation or an indictment. Rape must be seriously treated, as victims are entitled to justice as one type of remedy – a right enshrined in the International Covenant on Civil and Political Rights (ICCPR). Julian Assange based his claims on violations of this international treaty, by which both the United Kingdom and Sweden are legally bound.

The Swedish prosecutor in charge of the rape investigation, in which Mr Assange is a suspect, issued a European Arrest Warrant (EAW) while the suspect was in British territory, in order for him to be heard in Sweden. The sole purpose of the EAW, in this case, was to have Mr Assange undergo a preliminary hearing. In his claim to the Working Group on Arbitrary Detention, he feared that his presence in Sweden might prompt an extradition request to the United States, where he is wanted in connection to the publication of secret documents on WikiLeaks – and where he could, conjecturally, face a penalty as severe as capital punishment. Those are, therefore, Mr Assange’s reasons to obstinately fight his extradition from the UK to Sweden.

One of the first characteristics of the Assange odyssey Sweden’s insistence in his extradition. The WGAD questions the lack of resource to international legal cooperation instruments, such as mutual legal assistance (MLA), whereby Assange’s deposition could be taken in the UK or Ecuador for Sweden. In its stead, Sweden persisted on having Mr Assange detained by the European Arrest Warrant which, according to the European Council’s decision 2002/584/JHA, binds the UK to act upon it. The UK, therefore, proceeded with Mr Assange’s detention – first, in isolation for 10 days and, thereafter, for 550 days under house arrest. During that time, Mr Assange did not have access to the documentation against him, despite that being a right under the ICCPR and Swedish criminal procedure law. Nor did he have access to means by which, under a MLA request, he could have deposed in the UK. The WGAD found that he had been unnecessarily detained for a considerable amount of time, and without proper justification. Therefore, the question is: if the purpose was to obtain his deposition, if he was not formally charged or indicted, why press on with his detention?

The Working Group also understood that the conditions under which Mr Assange was placed both in isolated detention, as well as his 550 days of house arrest, were not proportionate to his situation – i.e., the conditions of someone who was not even under formal investigation. Such measures included restrictions of movement, electronic surveillance and tracking. During that house arrest period, Mr Assange sought asylum in the Ecuadorean embassy, which was granted in August 2012.

The first argument of the decision’s critics can, thus, be contested by the fact that the conditions Mr Assange was in compelled him resort to asylum seeking. According to the WGAD, the conditions he was in prior to asylum violated his rights under the International Covenant on Civil and Political Rights (articles 7, 9(1), 9(3), 9(4), 10 and 14) and how asylum was a means he found from which to protect himself.

The asylum being granted, Julian Assange was not guaranteed safe passage to Ecuador. The UK government argued that diplomatic asylum was an institution known only to Latin America and that it was not bound by the Caracas Convention. Consequently, it would arrest Mr Assange should he attempt to leave the Ecuadorean Embassy. The UK, additionally, was also acting upon rules pertaining to the EAW, and to which it is bound. With Sweden not withdrawing the EAW, nor the INTERPOL Red Flag notice, the UK had to arrest Mr Assange if he left the embassy. With this situation practically impeding the suspect’s freedom of movement, the Working Group found that it constituted a prolongation of his detention and, for the same reasons as previously stated, violated his rights under the ICCPR. An arbitrary decision, in the Working Group’s words, ‘is not to be equated with “against law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity, and proportionality.’

With that, the WGAD also signalled that the EAW cannot be used as the only ground for the deprivation of liberty, especially in light of the violations thereto committed. This is of significant importance because it shows how international legal cooperation mechanisms are also bound by human rights standards and other treaties. This means that, under that view, there is a hierarchy between the Untied Kingdom’s obligations under the ICCPR and under the European Council’s decision, with the former surpassing the latter as a result of rights violations committed in the process. The Working Group went as far as citing case law from the UK itself to support its position.

Aside from these factors, another issue that came into question was due diligence from British and Swedish authorities. The Working Group on Arbitrary detention questioned the time it had taken and the fact that the suspect was not even charged or indicted. Therefore, the message cannot be clearer: due process rights may not be violated in the course of an investigation.

Is Julian Assange guilty of rape? That was not the question brought before the Working Group, neither did it devote any attention to it. He may or may not be guilty, but that is beside the point. The Working Group rightly understands that justice may not come at the expense of a suspect’s rights. The Working Group’s decision must not be viewed as an obstacle to justice being made, especially because of the severity of rape as a crime and human rights violations. The interpretation must be that all crimes must be brought to justice with adequate respect for human rights.

Two important international legal issues are touched upon by the Working Group and which may still be object of further discussion. They both concern the legal constraints imposed by international treaties. On the one hand, the WGAD indicated, as stated above, that there are be a human rights consideration before fulfilling international legal cooperation requests, such as the EAW. The second dwells upon the applicability of a legal regime to which the UK is not bound – the 1954 Caracas Convention. Again, a possible means to guarantee the respect for a non-binding instrument within a given territory falls upon human rights considerations. Despite the fact that the UK is not bound by that Convention, its obligations under the ICCPR now require it to ensure safe passage to Mr Assange to Ecuador.

Ultimately, the critics of the Working Group on Arbitrary Detention’s decision display their near-sightedness not for their groundless arguments, but rather for the personification of a victory which, despite being brought by a single individual, belongs to all. Given Downing Street’s latest comments, the WGAD’s ruling will not bear any practical effects upon Mr Assange. It may, however, have practical effects for others in the future if people and governments perceive this as a triumph for human rights, due process and the International Covenant on Civil and Political rights, rather than an individual’s battle against the system.



Elias Groll, “The Obscure U.N. Body Behind the Ridiculous Claim Assange Is Arbitrarily Detained”, Foreign Policy, February 5, 2016, accessed February 7, 2016, http://foreignpolicy.com/2016/02/05/the-obscure-u-n-body-behind-the-ridiculous-claim-assange-is-arbitrarily-detained/

“The Guardian view on Julian Assange: no victim of arbitrary detention”, The Guardian, 4 February 2016, accessed 7 February, 2016, http://www.theguardian.com/commentisfree/2016/feb/04/the-guardian-view-on-julian-assange-no-victim-of-arbitrary-detention.

Gilberto Antonio Duarte Santos, Master in International Relations, University of Brasilia, and Analyst at the United Nations Office on Drugs and Crime (UNODC). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

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Editoria Mundorama. "Understanding the Assange decision, by Gilberto Antonio Duarte Santos". Mundorama - Revista de Divulgação Científica em Relações Internacionais, [acessado em 15/02/2016]. Disponível em: <http://www.mundorama.net/2016/02/15/understanding-the-assange-decision-by-gilberto-antonio-duarte-santos/>.

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