The mainstream media has fallen in line with the governments of the UK and Sweden to dispute the legitimacy and significance of the decision by the UN Working Group on Arbitrary Detention in favor of Julian Assange, but their claims don’t stack up.
Claim 1: the UN Working Group on Arbitrary Detention is composed of lay people not lawyers
The Working Group on Detention decided on Friday that Assange was being arbitrarily detained in contravention of the United Nations Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).
However, according to UK Foreign Secretary Philip Hammond that doesn’t matter because the Working Group is composed of ‘laypeople’ not lawyers. Columnist Marina Hyde also saw fit to inform people in the Guardian that “the finest legal minds are not drawn to UN panels as a career path.”
So who are these bumbling ignoramuses who work at the world’s premier international institution charged with safeguarding not only our most sacred values but also life on earth as we know it?
The three deciding members of the Working Group on Arbitrary Detention are:
Seong-Phil Hong: Associate Professor at Yonsei Law School and leader of the Asian Law Centre Jose Guevara: PhD in Human Rights from Carlos III University of Madrid, one time Head of Human Rights at Mexico’s Ministry of the Interior, among numerous other posts Setondji Roland Adjovi: International Criminal Court and the International Tribunal for Rwanda, Assistant Professor of Arcadia University, editorial board of International Legal Materials
I think it’s safe to say these three probably qualify as ‘independent experts’, in accordance with the Working Group’s requirements.
The only difference between the United Nations and other international bodies is that the UN has a more rigorous policy of employing people from regions other than North America and Western Europe. Thus, it can happen, that people who have not gone through the brainwashing process that Ivy-League education has become end up in some decision-making capacity. This is why the UN keeps deciding pesky things such as that Palestine is a state. In this episode, they decided that a Western country could conceivably injure a person’s rights. International law is a global process – not something dictated by the British or American governments. Jurists from other countries that don’t agree with British or American foreign policy aren’t automatically stripped of their qualifications. Oh yeah, and working at the United Nations does kind of look good on your CV, Marina. There are still some people on this earth who don’t regard mergers and acquisitions as the last word in important work.
Verdict: This claim is dead wrong. But then Philip Hammond has no legal qualifications whatsoever, having stopped at the exalted B.A. level before going into manufacturing, and Marina Hyde is a showbiz columnist, so what did you expect?
Claim 2: the Working Group’s finding has no legal significance
This one is more subtle, but still extremely misleading. The idea is that the Working Group’s decision isn’t enforceable and therefore meaningless, because as they teach you in law school, might is right.
It is true that there is no international human rights court and that should give you pause, because what it means is that the very states that bang on so incessantly about human rights have always refused to create such a court. They have not been ignorant of the possibility of setting up such a court nor do they lack the resources to do so – they have been fundamentally opposed to the idea. So, yes, there’s something a bit hypothetical about all human rights. Including whichever ones you think you have, and also all of those belonging to Syrians, Iranians and other collected peoples around the world whose non-enforceable human rights we so often go to war to… enforce.
So, if we don’t have a court, what is the enforcement mechanism that is the only thing standing between you and a world without the UN Declaration of Human Rights or the International Covenant on Civil and Political Rights? The UN Human Rights Council with all of its little Working Groups such as the one in question here. The Working Groups are charged with examining complaints and make recommendations for states to move into compliance with the aforementioned treaties, and states are (allegedly) committed to doing so. They have signed up for this process. This was the enforcement system that nations, including the UK and Sweden, created, toothless as it is. It is not some mysterious UN creation that came into being contrary to their will.
When countries such as the UK and Sweden say they refuse to acknowledge a decision because they don’t agree with its content, they are essentially saying they are willing to tear up the ICCPR – a major international treaty – to get their way. That’s one repercussion that is of serious legal significance.
The other is that UN documents of all types are used to buttress international court proceedings all of the time, because they give useful information on what states and international legal experts interpret the law to be. “United Nations – who the hell are they?” is a phrase you are unlikely to hear in such a setting. Last but not least, such UN Working Group reports are always handy as a pretext for sanctions or other international action.
Verdict: a kernel of truth to this, but one that has been twisted by pundits to downplay the fact that in international law this wishy-washy area between ‘cut-and-dried law’ and ‘no legal significance’ covers most of the profession. The Working Group decision has about the same amount of legal significance as any other finding through a UN human rights panel and to dismiss it as devoid of significance is disingenuous.
Claim 3: The UN’s decision means that Assange is escaping justice just by holding out/The fact that Ecuador gave him diplomatic asylum is irrelevant
The Working Group stated they considered Assange’s case to fall under Category III, which covers cases where a trial does not comply with international human rights norms. The Working Group found that Sweden and the UK have pursued Assange in a disproportionate manner, given that the Swedish prosecutors could have questioned Assange at any point and he had declared himself willing to cooperate.
The two claims against Assange that were ‘dropped’ by the prosecutor last year were dropped because they were about to become time-barred. The prosecutor chose to allow this rather than to question Assange. One would think that if the prosecution had the interests of the alleged victims at heart, they may have chosen to pursue questioning in the UK – a common enough activity – rather than let the investigation lapse.
So while Assange may be holding out, so is Sweden, and nations have obligations to move the wheels of justice along as swiftly as practicable. The Working Group’s assessment is basically, “how hard can it be to conduct a preliminary investigation?” with the implication that if the prosecutor were serious, they would have gotten this wrapped up by now.
Furthermore, the Working Group found that “the grant itself and the fear of persecution on the part of Mr Assange based on the possibility of extradition, should have been given fuller consideration in the determination and the exercise of criminal administration, instead of being subjected to a sweeping judgment as defining either merely hypothetical or irrelevant”.
In other words, British and Swedish authorities should have considered that Assange’s fear of persecution might be founded and questioned him in the embassy, something it was perfectly possible to do with minimal effort in the interests of pushing their case forward. Questioning Assange at the embassy would not have jeopardized their case, whereas coming out of the embassy could have jeopardized Assange’s life. Thus, it would be disproportional to force him to do so when there was nothing to be gained by it. Assange’s interest in being protected from extradition to the United States outweighed the Swedish prosecution’s interest that he only be questioned in Sweden. Dismissing these concerns out-of-hand was arbitrary.
Verdict: The pundits go wrong by accepting that everything the UK or Sweden does is automatically proportionate and reasonable. If Sweden could arrange extradition of a suspect for questioning somehow (something that would no longer be possible under British law today since this loophole was corrected immediately after the Assange case), then tough luck.
The Working Group exists for precisely the case when state mechanisms fail to live up to the treaty standards. Human rights law does not operate under the standard that if you can pull something off in a convoluted way that is technically compliant with domestic law that that somehow cancels out treaty obligations. If that were the case, it would have to apply to Burma, Egypt and China as well. Nearly everything a country does is always technically compliant with its own laws. By completely disregarding the concerns of the individual (Assange) in favor of the fact that Sweden could (but didn’t have to) technically demand Assange to be rendered to it for questioning, it acted disproportionately.