On February 5, the United Nation’s highest authority on detention, the Working Group on Arbitrary Detention (WGAD), found that our client Julian Assange is being arbitrarily and illegally detained, and is entitled to freedom and compensation. The decision comes after the WikiLeaks founder has spent more than three and a half years in continued detention in the Ecuadorean Embassy in London, along with 10 days of imprisonment in Wandsworth Prison and over 500 days of house arrest—even though he has not been charged with a crime.
The WGAD’s decision is a clear victory for Assange, as well as for journalists and whistle-blowers everywhere, who have come under increased attack in recent years. But two weeks after the panel called for an end to his detention, he is not free. He remains confined to the Ecuadorean embassy, a victim of both Sweden and the United Kingdom’s refusal to honor the very human-rights machinery they helped create.
The two countries’ blatant noncompliance—with a process in which they participated—highlights the lengths to which states will go to shut down Assange and WikiLeaks. It also threatens the foundation of the international human-rights system, as well as treaties binding on both countries and the rights of future detained persons. Even the New York Times editorial board opined last week that it is time for the UK and Sweden to “walk away.”
In willfully flouting the decision, both countries argued that Assange cannot be considered “arbitrarily detained” because, they say, he is not actually detained (the Swedish Ministry for Foreign Affairs called it “self-confinement”). Yet, as Assange argued before the WGAD, there is nothing voluntary about his stay in the embassy. He is detained by virtue of the simple fact that he is not free to leave the Ecuadorean Embassy without risking life and limb. If he left, he would be arrested and almost certainly extradited to the United States, where he would face persecution and inhumane treatment.
As confirmed by the Justice Department in federal court in December, the United States has been pursuing an unprecedented investigation of WikiLeaks—one that press freedom organizations have warned could gut the core of the First Amendment. American Civil Liberties Union Executive Director Anthony Romero has said it has already had “a profound chilling effect.” This investigation has involved invasive searches and surveillance of WikiLeaks staff, affiliates, and supporters, and the NSA’s placing Assange on a “Manhunting” list with members of terrorist organizations. Indeed, alleged WikiLeaks source Chelsea (formerly Bradley) Manning was subject to inhumane treatment and solitary confinement, reportedly to force her to implicate Assange.
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The WGAD largely confirmed Assange’s position in its February 5 decision: It argued that his detention is a result of both the UK’s and Sweden’s failure to consider the grave risk he faces in the United States. “The grant [of asylum] itself and the fear of persecution on the part of Mr. Assange based on the possibility of extradition, should have been given fuller consideration,” committee members wrote in their majority decision.
It bears emphasizing that both Sweden and the UK participated in the WGAD process. But, when the verdict went against them, they came out swinging. Shockingly, the UK’s foreign secretary claimed that his country has no obligation to comply with the “ridiculous” finding, issued by “laypeople.” The foreign secretary was apparently not briefed on the fact that WGAD is a specialized United Nations body composed of impartial, international legal experts, which applies binding standards of international law in the area of illegal and arbitrary deprivations of liberty.
Nor did he seem aware of the long and valued role the WGAD has played in past instances of arbitrary detention. Since 1991, the working group has investigated—and issued rulings on—hundreds of cases in which a person has claimed to have been imprisoned arbitrarily or “otherwise inconsistently with the relevant international standards.” Aung San Suu Kyi was one of those detainees. So was US journalist Jason Rezaian, who was just released from an Iranian prison, and Alan Gross, the US aid worker arrested in Cuba.
Sweden’s and the UK’s gross dismissal of the panel’s findings has not gone over well, both within the UN and beyond. The UN’s human-rights chief, Zeid Ra’ad al-Hussein, condemned both countries for attempting to undermine UN institutions over the case, while a leading UN expert warned that the attitude of both countries “erodes the credibility of the entire system.” At the same time, the responses in support of the decision have been wide and far-reaching; dozens of members of the European Parliament called on the UN decision to be implemented, while Spain’s Podemos party hailed the decision in Assange’s case as an “important precedent” for defending fundamental free-speech rights.
The reactions of the UK and Sweden are also grossly out of step with the growing international consensus concerning the need to protect rather than prosecute those who promote the publication of truth about government abuses. Last October, the European Parliament voted to protect whistle-blower Edward Snowden from extradition to the United States. That same month, the UN envoy charged with safeguarding free speech around the globe presented a report calling on governments to protect whistle-blowers and confidential sources rather than punish them.
At the end of the day, the current political posturing from the UK and Sweden cannot prevail. States chose to establish and become part of the UN human-rights system because it serves their interest to do so. Yet, by attacking the Assange decision, the UK and Sweden have attacked that very system.
Today it is Assange who is illegally detained in the UK. Crippling the UN might serve the immediate interests of Sweden and the UK, but what happens if tomorrow, British and Swedish citizens detained and tortured by despotic states turn to the UN to uphold and protect their rights? What authority will Sweden and the UK have to demand the release of their own citizens when the whole world knows that they are illegally detaining Assange on British soil?
The UK and Sweden have a window of opportunity now to show the world that they subscribe to the principle that no state should ignore the UN with impunity, and that no victim is too great or small to be excluded from the UN’s protection. But if the UK and Sweden decide instead to keep Assange locked up illegally and indefinitely, they are guilty of more than noncompliance.
Arbitrary detention is also a grave international crime, akin to torture and cruel and inhumane treatment. In the era of universal jurisdiction, anyone who intentionally commits, or contributes to such a crime is a fair target for arrest and prosecution. The UK foreign secretary might find the WGAD decision a little less ridiculous if he were to find himself detained, and desperately dependent on the very rights he sought to crush.
