The case of Julian Assange, the WikiLeaks founder who has been living in the Ecuadoran embassy in London for more than three years to avoid extradition to Sweden to face a sexual-assault investigation, should reopen debate on the often ineffectual human-rights machinery of the United Nations, which allows governments to ignore or defy nonbinding and unenforceable decisions.
In early February, the Working Group on Arbitrary Detentions, which falls under the purview of the United Nations Human Rights Council, released a decision made last fall that Assange, after more than five years of loss of liberty—first in a British prison, then under house arrest and finally sequestered in the Ecuadoran mission in London under a grant of diplomatic asylum by the Ecuadoran government—has been deprived of his rights under accepted international humanitarian law. Assange remains in the Ecuadoran embassy because, as he has long argued, if he were released to Sweden, which has secured a European warrant for his arrest, he could be extradited to the United States to face persecution and possible physical and mental harm, given that his case is still under investigation it here for his involvement in the release of stolen and leaked American documents.
“Let’s be clear,” Dinah PoKempner, general counsel at Human Rights Watch, wrote in a commentary following the release of the decision. “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 investigating Assange 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.”
The Working Group rejects the claim by Britain and Sweden that Assange remains in the diplomatic mission of his own volition. It points to the constant surveillance around the mission and repeated statements from the British government saying unequivocally that Assange would be arrested, and deported to Sweden, if he left the premises. Sweden has said there is no link in this case to extradition, which would be a separate matter and process that has not arisen in this case.
Britain’s responses were wide-ranging. It argued that the government of Ecuador had granted Assange “diplomatic” asylum under the 1954 Caracas Convention (to which the British government is not a party), not “political” asylum. It also said: “Mr Assange is wanted for interview in Sweden in connection with allegations of serious sexual offences…. The British Government takes violence against women extremely seriously and co-operates with European and other partners in ensuring that justice is done.”
The working group nevertheless found Britain and Sweden in violation of articles in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. “Consequent upon the opinion rendered” the Assange decision says, “the Working Group requests the Government of Sweden and the Government of the United Kingdom of Great Britain and Northern Ireland to assess the situation of Mr. Assange, to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner, and to ensure the full enjoyment of his rights guaranteed by the international norms on detention.
“The Working Group considers that, taking into account all the circumstances of the case, the adequate remedy would be to ensure the right of free movement of Mr. Assange and accord him an enforceable right to compensation, in accordance with article 9(5) of the International Covenant on Civil and Political Rights.”
The working group’s decisions are, however, nonbinding, and rely on cooperation from governments, which often disagree with findings. In this case, writes Dinah PoKempner of Human Rights Watch, “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 is where the questionable and often ineffective machinery of UN human-rights work kicks in. The United Nations Human Rights Council, a body of elected member nations, presides over 56 “special procedures” that include the work of independent human-rights experts, with 41 mandates to report and advise on human-rights issues based on themes—as in the case of arbitrary detention—and 14 country situations involving visits to problem nations such as Mynamar/Burma or Sri Lanka recently. The experts, supported by the UN High Commissioner for Human Rights, report annually to the Human Rights Council and sometimes also to the General Assembly. Their mandates are created by UN member nations, not by the UN Secretariat or the Security Council, which alone has the power of enforcement.
Felice Gaer, director of the Jacob Blaustein Institute for the Advancement of Human Rights at the American Jewish Committee, has been a member of the UN’s Committee Against Torture for 16 years and has served as its vice chair. The first American nominated by the US government and elected by signers of the Convention Against Torture, Gaer has become a leading American expert on international human-rights monitoring and the functioning of relevant institutions. The Committee Against Torture, for example, is not part of the “special procedure” system but is rather an independent expert body, one of 10 that monitor implementation of the core international treaties on human rights. Members of these “treaty bodies,” which meet in Geneva, are human-rights law experts elected to their respective committees for four-year terms.
The 10 treaties they monitor for compliance cover the International Covenant on Economic, Social, and Cultural Rights; the International Covenant on A Civil and Political Rights and its optional protocols; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women and its optional protocol; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the International Convention on the Rights of Persons With Disabilities; the International Convention for the Protection of All Persons from Enforced Disappearances; and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, established under the Optional Protocol of the Convention Against Torture to allow visits to places of detention.
Findings of the treaty committees, Gaer said, are also nonbinding in strictly legal terms. “Governments argue that they are decisions, not judgments,” she said. But a country like Sweden would generally follow the committee’s guidance, she added. The decisions of the special-procedures individuals or groups are, however, less binding than those of the treaty committees. Special-procedure decisions, viewed from the treaty bodies, can seem to fall “somewhere in between law and advocacy,” Gaer said, noting that the working group on the Assange case, whose conclusions are challenged by some legal experts, has recently asked the Human Rights Council to change its name from the Working Group on Arbitrary Detentions to the Working Group on Deprivation of Liberty.
Gaer said in an interview that a proposal to consolidate at least the 10 treaty bodies into something like a universal human-rights court with the authority to issue binding decisions through established judicial processes is under active discussion among scholars. Whether a similar mechanism could be created from the working groups and individual rapporteurs is doubtful, since they are more fluid and they already have a “home” in the Human Rights Council.
The Working Group on Arbitrary Detentions has five members: Seong-Phil Hong (Republic of Korea), the chairman-rapporteur; Leigh Toomey (Australia); José Antonio Guevara Bermúdez (Mexico); Roland Adjovi Sètondji (Benin), and Vladimir Tochilovsky (Ukraine). Its final vote on the Assange decision was 3 to 1. Toomey recused herself because she is an Australian national, as is Assange. Tochilovsky filed a seven-point dissent. In it, he said, “The adopted Opinion raises serious question as to the scope of the mandate of the Working Group…. That is not to say that the complaints of Mr. Assange could not have been considered. There exist the appropriate UN human rights treaty bodies and the European Court of Human Rights that do have mandate to examine such complaints regardless whether they involve deprivation of liberty or not.”