Mr Assange’s Doubtful Victory

Julian Assange appeared on the balcony of the Ecuadorian embassy on 5th February 2016 to proclaim ‘a victory that cannot be denied’. If so, was the Opinion of the UN Working Group on Arbitrary Detention about his case a victory for Wikileaks (of which Mr Assange is the co-founder and prime mover) and its noble aim of a more just society based on truth?

The connection between Mr Assange’s current personal position and Wikileaks, depends on a conspiracy theory which runs roughly as follows.

  1. Mr Assange is under investigation by the US Department of Justice and FBI about Wikileaks.
  2. Any US proceedings against Mr Assange resulting from these investigations would inevitably breach his human rights.
  3. The UK and Swedish justice systems would not protect Mr Assange’s human rights in the event of US proceedings. There is in fact a UK/Swedish plot to facilitate such proceedings.
  4. The aim of this plot is to extradite Mr Assange to Sweden (for the investigation of a rape allegation which he strongly denies) and then to extradite him from Sweden to the USA so he can be prosecuted about Wikileaks.

This theory is the unspoken premise on which the Working Group’s Opinion rests. Otherwise, there is little more to support it beyond some criticisms of the Swedish criminal process, which, justified or not, are outside the Working Group’s remit.

Without accepting the theory, the Working Group could not have reached the key conclusion that Mr Assange’s residence in the Ecuadorian embassy amounted to detention by the UK authorities (on the basis that he could not leave the embassy without exposing himself to a risk of persecution and cruel and inhuman treatment – ie to the US justice system – so that the option of leaving the embassy was not a real one).

The dissenting member of the Working Group disagreed with the majority (of 3 against one) on precisely this point. His view was that “…..fugitives are often self-confined within the places where they evade arrest and detention.”

It is a pity that the theory is not articulated, let alone explained or justified, in the Opinion. It does not seem to have been covered in any of the submissions to the Working Group (including those on behalf of Mr Assange). The Working Group refers to Ecuador having made an elaborate evidential determination of the risk of US persecution faced by Mr Assange but does not appear to have asked for details of the determination or of the evidence on which it was based (neither of which seem to have been made public by Ecuador). Indeed no submission seems to have been requested of or made by Ecuador, notwithstanding its close interest in Mr Assange’s case.

The Working Group’s failure to expressly consider the theory, whilst implicitly accepting it, rather undermines its Opinion precisely because the theory is open to a number of obvious challenges.

How exactly could the rape allegation help (rather than hinder) an extradition to the USA? Why exactly should it be necessary to extradite Mr Assange to Sweden first, given that the UK has a well-used Extradition Treaty with the USA?

Why was the timing of Mr Assange’s asylum so obviously driven by what happened in the UK High Court rather than by any developments in the USA?

What exactly is the basis for thinking that US proceedings would automatically breach Mr Assange’s human rights, or, in the event that the USA was to request his extradition from the UK, that the human rights bar built into the UK extradition process would not protect him?

There may be good answers to all these questions. If so, they should have been explained. Otherwise, as the Swedish and UK Governments have said, the Opinion changes nothing.

The Working Group itself says that its opinions are ‘legally binding to the extent they are based on binding international human rights law’ – but that is a circularity (‘if what I say represents law that is binding then what I say is binding law’). In the last resort, effect can only be given to the Working Group’s view of the law by national courts. This poses a conundrum for Mr Assange, whose current situation arises precisely because he wishes to avoid the jurisdiction of the UK courts.

Will Ecuador permit the Swedish prosecutor to interview Mr Assange in its embassy? If so, perhaps an interview could result in a conclusion to the Swedish investigation, with charges being either brought or dropped. Either way, a number of further conundrums will arise for Mr Assange.

If there are no charges, would Mr Assange leave the UK for permanent asylum in Ecuador? Not going would suggest that the conspiracy theory is imaginary. If he goes, there will be strings attached (for example the President of Ecuador has said that Mr Assange’s asylum is conditional on him refraining from criticising any government with which Ecuador has good relations).

If charges are brought, should Mr Assange go to Sweden to answer them? If he does not, the charges will remain with him indefinitely. Probably most people, including most Wikileaks supporters, would hope that he could answer the charges in court. The principle of a more just society based on truth cuts both ways – it is not just the state that has to act in accordance with the truth.

The sadness of Mr Assange’s situation arises from the possibility that the time he has spent in the Ecuadorean embassy is time wasted, both for himself, his family and for Wikileaks and its cause. Above all, there is sadness in the suspicion that Mr Assange has painted himself into a corner from which he cannot easily extract himself.

Of course, if he wants to take it, there is a way out of the corner, through the front door of the embassy. Taking that short journey, together with whatever may follow, would be a heroic act. If he takes it, we must wish him well and hope his fears turn out to be more imagined than real.

Jan Karpinski

16th February 2016


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