United Nations Working Group on Arbitrary Detention Decision on Assange: The Balanced View

by Liora Lazarus

[Liora Lazarus, BA (UCT), LLB (LSE), DPhil (Oxon), is an Associate Professor in Law at the Faculty of Law, University of Oxford, and a Fellow of St. Anne’s College. Her primary research interests are in comparative human rights, security and human rights, comparative theory and comparative criminal justice.]

The UN WGAD Assange decision was initially met with incredulity and general ridicule from British officials, legal academics and the international press. Noah Feldman was astonished, calling the decision ‘unjustified’. Many of the decisions detractors don’t like Assange and what he stands for. They think he is exploiting his status to avoid prosecution for rape, suggesting he is guilty of the offence. His supporters argue that the rape allegations are part of a grand conspiracy against Assange, and that their hero has been vindicated by the UN. Serious discussion needs to lie somewhere between these polar positions and address the core questions of human rights reasoning and institutional protection. Cooler contributions have followed my own initial intervention (Kirsty Brimelow QC, Dinah PoKempner General Legal Counsel to Human Rights Watch, Balakrishnan Rajagopal, MIT Professor; and Julian Braithwaite, UK Ambassador and Permanent Representative to the UN). This piece seeks to continue this trend, by examining the content and standing of the WGAD decision from a human rights lawyer’s perspective.

Some preliminary points

Mr. Assange has lived in the Ecuadorian Embassy since June 2012, after 550 days of house arrest and 10 days of confinement in Wandsworth prison. There is still no formal charge laid against him in Sweden (Assange No. 2). He does not know the full case against him. He has under domestic and international law, the right to be presumed innocent until proven guilty (Stefan Lindskog, Chairman of Swedish Supreme Court, lecture 2013). He has previously co-operated with the prosecutorial investigation in Sweden, and has since offered to co-operate through the Council of Europe ‘mutual assistance’ process. He has also offered to co-operate fully if given a further guarantee of non-refoulement to the US.

The UK is operating pursuant to the European Arrest Warrant procedure which is not without criticism. Two dissenting UK Supreme Court justices considered this EAW invalid under UK law because it was issued by a prosecutor and not a judge, and one dissenting Swedish Supreme Court judge considered its continued use disproportionate. After extensive parliamentary scrutiny, the EAW conditions have been tightened since the initial Assange ruling by the Supreme Court. Two key requirements now apply: that the EAW is issued by a ‘judicial authority’ and that its use is ‘proportionate’. Despite the impact these safeguards could have, the UK government argue that they do not apply retrospectively to Assange. 

The mandate and composition of the UN WGAD

Matthew Happold argues that the WGAD cannot ‘issue binding decisions’ but rather ‘opinions’ which States are only under a duty to take ‘due consideration’, resulting in ‘a rather weak obligation’. This strict formalistic reading of international law discredits the UN human rights system as a whole, which depends almost entirely on bodies like the WGAD.

The mandate of the WGAD is clear (see UN Commission on Human Rights Resolution 1991/42 and subsequent resolutions outlined in para 1 of HRC Resolution 30/69) and includes investigating individual cases (Para 15, HRC Resolution 1997/50). It discharges its tasks according to Basic Principles which draw on the full body of international law sources. These are applied in an independent and exacting standard of review to national authorities, precisely because it is instituted to provide the highest expression of the review of arbitrary detention that can be made by a human rights body.

HRC Resolution 20/16 (A/HRC/RES/20/16) ‘requests States to take account of the Working Group’s views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have taken’ (para 3). The resolution also ‘encourages all States to give due consideration to the recommendations of the Working Group’ (para 6). Importantly, the European Court of Human Rights has recognised that ‘in view of the composition, functions, process complaints and investigative powers of this body, the WGAD should be viewed as “a procedure of international investigation or settlement” within the meaning of Article 35 of the Convention’ (Peraldi v France).

The composition of the WGAD flows from its mandate as a body under the UN ‘special procedures’ process which stipulate either that a person of specific expertise (‘Special Rapporteur’) or a ‘working group of experts’ shall conduct its task. Judges and academic specialists both meet this benchmark of expertise, which explains why WGAD has included former judges and professors of law. Marina Hyde’s complaint that the WGAD is made up of ‘academics seemingly devoid of judicial expertise’ misses the point of the special procedures system, which (as with UN treaty bodies) is based clearly on expertise broadly understood and not only on judicial office.

We may disagree with the content of its decisions, but to deny the legal standing of the WGAD is to do wider damage to the UN human rights system as a whole and fails to take a long view of the conditions upon which international institutions rely.

The UN WGAD decision

In essence, the WGAD had to decide two questions: first, whether there was a ‘deprivation of liberty’ as opposed to a ‘restriction of liberty’; second, whether that deprivation of liberty was ‘arbitrary’.

In response to the first question, although the WGAD clearly accepted the argument that Assange’s conditions are not ‘self-imposed’, its decision failed to address this point directly. The discussion does not explicitly endorse Assange’s argument that his detention is involuntary, nor does it directly refute the dissenting argument on the WGAD that Assange is self-confined. This weakness in the report has been exploited by critics, and the arguments require elaboration.

The line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in European human rights jurisprudence ‘as a matter of degree or intensity, but not one of nature or substance’ (Guzzardi). As counterintuitive as it may seem, liberty deprivation doesn’t consist only in the easily recognizable conditions of state detention. The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. To be clear, liberty must be capable of being realized in practice. Where exercising liberty has considerable coercive results, this constitutes a restriction of liberty in actuality. Assange can hardly be said to be voluntarily ‘self-confined’. He will be extradited to Sweden and detained there if he leaves the embassy, and he fears further extradition to the US and prosecution there. The fact that Assange is deliberately resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation. But liberty is not a privilege gained for good behavior, it is a right which demands justifications from those seeking its restriction.

To argue that Assange’s conditions are a ‘deprivation of liberty’ is not to argue that this deprivation is necessarily ‘arbitrary’. It is essential to demonstrate here that the onus of justification on the UK and Sweden for restricting Assange’s liberty is fulfilled. This relates to due diligence grounds as well as proportionality, and the requirements of proportionality will change over time. I do not share the WGAD view that Assange’s initial arrest was arbitrary. But as time moved on, the grounds for maintaining the stand-off with Assange needed to remain proportionate to the ends sought. As events unfolded there could have been another, less restrictive way of proceeding. For example, before issuing a EAW, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange took residence in the Ecuadorian embassy they could have relied on ‘mutual assistance’ protocols, questioned Assange by video link, and given him the chance to respond to the allegations against him. The proportionality of the process has to be read as a whole.

This approach is accepted in principle by the majority of the Swedish court which noted with approval at that time that steps were being taken to interview Assange in London ( Case No. Ö 5880.14 of May 11, 2015, see summary translation). With the passage of time, this Court may well join the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation have become disproportionate. There is now growing support in Sweden for this dissenting view (Anne Ramberg, head of Sweden’s Bar Association; Hans Corell, former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs; and Sven-Erik Alhem, former Swedish chief prosecutor).

Reasonable and judicial minds have evidently differed on these issues, and emotions have run high. No doubt the initial outcry was coloured by views on the integrity of Assange himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all. Importantly, human rights limitations demand rigorous State justifications. Over time, these justifications have looked less convincing, and the WGAD is the body best placed to say so.

http://opiniojuris.org/2016/03/01/united-nations-working-group-on-arbitrary-detention-decision-on-assange-the-balanced-view/

14 Responses

  1. Thanks for the post . Many complications here , yet , the post insist on the ” refoulement ” by extradition to the US . Yet , I don’t understand , what are the allegations there concerning him ?? Can one argue , that he wouldn’t receive fair trial there ?? The judicial system in the US , is not independent ?? He wouldn’t get there fair trial ?? due process ?? would he be there subjected to tortures ?? Any risk for life ?? Arbitrary persecution ?? here are the legal sources , defining the refoulement doctrine :

    ” Article 3

    1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

    2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” ( Convention against Torture )

    And :

    ” Article 33. – Prohibition of expulsion or return (“refoulement”)

    1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the
    frontiers of territories where his life or freedom would be threatened on account of his race, religion,
    nationality, membership of a particular social group or political opinion.” (Convention relating to the Status of Refugees )

    So , in accordance , can the respectable author of the post , explain to us , what is the connection with it precisely ??
    Thanks

  2. The post makes no claims about whether Assange has the’ right to non-refoulment’. The only point it makes is that Assange has offered to co-operate with the Swedish rape investigation if guaranteed non-refoulment (i.e. no extradition) to the US. Assange believes that going to Sweden forces him to face extradition to the US. There are of other course cases brought in human rights law in Europe where applicants argue their ‘right to non-refoulment’ to the US. This usually relates to death penalty cases, but there have also been attempts to do this when the applicants are faced with irreducable life sentences. But this isn’t the point being made here about Assange.

  3. Let’s unpack this defense of the UN decision a bit. The post starts off with the assertion that detractors of the “decision” don’t like Assange. An assertion for which no support is offered, but one that is clearly intended to undermine their opinion that the decision was incorrect or unjustified by suggesting a motive to criticize the working group’s decision that is unrelated to its merits. I am not sure that more needs to be said of this tactic, but I note that this tactic was not resorted to by any of the critical opinions cited by the author (i.e., none of the criticisms of the “decision” that I have read have suggested that the members of the UN Panel or those defending their “decision” are supporters of Assange). So we start off with a logical fallacy. Where do we go from there?

    After a somewhat slanted recitation of facts, we are told that the UK is operating pursuant to the European Arrest Warrant procedure, which is “not without criticism”. I am unfamiliar with the right to ignore laws that have been criticized? Or is the operative principle the prohibition against enforcing laws that have been criticized? I am not familiar with that human right either. The working group, in its decision, did not explicitly decide that operating pursuant to the European Arrest Warrant system was a violation of any of Mr. Assange’s human rights, so they do not seem to be familiar with whatever principle is being relied upon either.

    The post takes issue with the point that the working group cannot issue binding decisions but rather opinions to which States should give due consideration, then goes on to prove that this point is legally correct.

    We next learn that the failure of the working group to issue a reasoned opinion in relation to one of the two issues within its mandate has been “exploited by critics”. The post then provides an informative discussion of European HR principles on restriction of liberty, none of which is to be found anywhere in the decision. It also contains an interesting proportionality argument. This reasoning also does not appear in the working group decision. It is difficult for me to understand how substituting reasoning for the working group serves as a defence of the Working Group’s decision or is somehow fairer or more balanced than the critiques of those who criticized the working group’s decision based on its own merits.

    Turning to the position put forward in the post, which was not articulated in the decision of the Working Group (at least not with any clarity), the notion is that the fact of extradition to Sweden to face a criminal charge transforms Assange’s voluntary confinement in the Ecuadorean embassy into a restriction of liberty. Since Assange does not have special human rights, for this position to be accepted, it must be the case that every person who evades arrest for a criminal charge and who therefore cannot move freely has had their liberty restricted. While this may be true, I am not familiar with any human rights authority which states that an arrest warrant on the basis of a felony charge is not sufficient justification by the State for such a restriction. The post goes as far as to note that this restriction on liberty demands justification, but ignores that the justification is based on a felony charge. This is simply ignored. So we have no answer from either the working group or the post as to why a felony charge is not a sufficient justification for a restriction on liberty.

    The post then moves from a restriction on liberty to deprivation of liberty without pausing for breath. Apparently the voluntary nature of Assange’s confinement is also irrelevant to the notion that he has been deprived of liberty as well. We get no support for that leap from a restriction to a deprivation by a citation to any authorities, though. So a restriction of liberty by the issuing of an arrest warrant and an extradition order (after due process) is a restriction of liberty which is apparently the exact same thing as a deprivation of liberty (despite the post suggesting that distinguishing between the two was one of the issues to be decided by the Working Group). Any voluntary evasion by the individual of the enforcement of an arrest warrant/extradition order is irrelevant to the fact that the State has restricted/deprived the individual of their liberty, and the only question is whether it was arbitrary. With respect to arbitrariness, the post suggests that you can be arrested for a felony charge initially, but over time the State’s authority to arrest seemingly recedes. Like the Working Group’s opinion, this part of the post does not address Assange’s own role in prolonging the process by evading arrest and extradition. Apparently that is irrelevant. The upshot is that where an individual is charged with a crime, an initial arrest is not an arbitrary deprivation of liberty, but, if the individual is able to basically abscond and refuse cooperation with the criminal process for long enough, then the State must alter its criminal procedures and essentially meet the demands of the individual as to his preferred method of cooperating with the investigation. Failure to do so means that the State has violated the human rights of the individual under investigation. Perhaps that characterization is unfair, maybe there is some legal relevance to the fact that Mr. Assange is in the Ecuadorean embassy. If that is relevant, it goes unmentioned in the post. If that is the precedent, it seems that what has been created is an additional incentive to evade arrest for any person charged with a felony.

    In my view, the issue with this sort of human rights reasoning, that is reasoning that ignores the legal limitations of UN human rights bodies deliberately built into the system by States, and reasoning that suggests that an individual’s own voluntary and clearly relevant actions can have no impact on the question of whether that person’s rights have been violated, is that it overreaches. And by doing so provides fodder for those who are critical of the human rights project as a whole. It does more harm than good. The Working Group’s opinion is a prime example of this. It will be ignored because it deserves to be ignored.

  4. Liora ,

    Thanks for your comment or reply . Of course, if Assange insist on : non – refoulment, then this is the issue: refoulment and : yes or not!!

    It is that the post , doesn’t offer , any insight on the nature or the configuration of such possibility , in the case of Assange .

    Reading latter, I have learned, that if at all, we deal here with espionage against the US . Amazing, slim probability !!

    Thanks

  5. Loira, I have myself referred to your commentary on Assange several times. It is indeed, the best analysis of the opinion I have read. However, the suggestion that the Working Group on Arbitrary Detention may be binding ignores very basic principles of international law. Your reference to the European Court of Human Rights’ statement is obscure and misleading, since it refers to admissibility criteria, rather than the binding nature of any decision.

    I have argued elsewhere that the WGAD does represent the UN and its acts can be attributed to the UN, although this is open to discussion, because mandate-holders have been guilty of schizophrenic behaviour, insisting both on acting under UN authority, but independent from it.

    According to well-established principles of international law, the consent required to be bound by a treaty is different from the consent needed to endow an international organ with power to monitor compliance of that treaty or any other international legal norm. Until the adoption of the Code of Conduct for Special Procedures and the establishment of the Universal Periodic Review, it was difficult to find sound legal basis to explain the competence of special procedures to intervene in individual cases (see here) However, the opinions of the WGAD/other special procedures and the resolutions of the Human Rights Council/Commission on Human Rights you mention are not binding, as any international lawyer would know.

  6. Apologies for double posting. I did not realise hyperlinks don’t work in answers. Here again with relevant links:
    Loira, I have myself referred to your commentary on Assange several times. It is indeed, the best analysis of the opinion I have read. However, the suggestion that the Working Group on Arbitrary Detention may be binding ignores very basic principles of international law. Your reference to the European Court of Human Rights’ statement is obscure and misleading, since it refers to admissibility criteria, rather than the binding nature of any decision.

    I have argued elsewhere (http://ilg2.org/2016/02/14/the-assange-saga-who-does-the-working-group-on-arbitrary-detention-represent/) that the WGAD does represent the UN and its acts can be attributed to the UN, although this is open to discussion, because mandate-holders have been guilty of schizophrenic behaviour, insisting both on acting under UN authority, but independent from it.

    According to well-established principles of international law, the consent required to be bound by a treaty is different from the consent needed to endow an international organ with power to monitor compliance of that treaty or any other international legal norm. Until the adoption of the Code of Conduct for Special Procedures and the establishment of the Universal Periodic Review, it was difficult to find sound legal basis to explain the competence of special procedures to intervene in individual cases (see https://www.academia.edu/693333/Rethinking_the_legal_foundations_of_control_in_international_human_rights_law_the_case_of_special_procedures_Netherlands_Quarterly_of_Human_Rights_vol._29_no._3_2011_261 ) However, the opinions of the WGAD/other special procedures and the resolutions of the Human Rights Council/Commission on Human Rights you mention are not binding, as any international lawyer would know.

  7. Professor Lazarus

    I’m puzzled by the assertion that describing the WGAD’s opinions as non-binding and advisory is a “strict formalistic reading” that denies the legal standing of the working group and “discredits the UN human rights system as a whole”.

    As you explain, states are requested by the UN Human Rights Council to take WGAD opinions into account and are encouraged to implement the WGAD’s recommendations; this sounds like the sine qua non of a procedure that is advisory, not legally binding. The ECtHR’s decision in Peraldi v France asserts that WGAD recommendations have “made it possible” to determine State liability in cases involving arbitrary detention and that there are monitoring procedures in place to ensure that WGAD recommendations are implemented. But since the ECtHR was only addressing the WGAD in the context of admissibility under the Article 35 criteria, it requires something of a leap to infer that the ECtHR considers WGAD recommendations to be legally binding.

    Whatever the normative authority of WGAD opinions may be — and I would submit, as others have elsewhere, that this turns almost entirely on whether an opinion’s reasoning is comprehensive and persuasive — it is misleading to suggest that WGAD opinions are legally binding in the same way as decisions by, for example, the ICJ, the regional human rights courts, or investor-state or inter-state tribunals. The fact that WGAD opinions are non-binding and advisory does not mean they should not be taken seriously or have no legal relevance. But ascribing a power to the WGAD that it does not have — that is, the power to issue legally binding decisions — raises unwarranted expectations about the impact of WGAD opinions and blurs the distinction between very different judicial, quasi-judicial, and political bodies within the UN system. This strikes me as far more damaging to the UN human rights system as a whole than does the measured and accurate description of the WGAD that you criticize.

  8. I do not think I have said anywhere that the WGAD decision is strictly binding under international law. In fact, I made it quite clear that in strict legal terms it is not binding. But there is a long way from arguing that the decision is binding to arguing that it is ridiculous, and that the WGAD as a whole is illegitimate. I have included links to a number of sources which took the view that the body is irrelevant and should merely be ignored.

  9. David: You raise a number of objections: I will try and respond to each in turn.I

    don’t have a view on Assange’s guilt or innocence. I do think that there is quite a bit of evidence in some of the posts I have included in the piece which shows antipathy to Assange. I am trying to separate views on the person, to views on the content of the rights he claims.

    As I said before, I am not arguing that the WGAD decision is strictly legally binding, but that views on the weight of the decision depends on your view of the human rights system as a whole.

    I made it quite clear in m post, and in others, that to say something constitutes a ‘restriction of liberty’ in fact, doesn’t mean it constitutes an ‘arbitrary’ restriction.

    The proportionality argument is not a substitution for the WGAD’s reasoning, as it is mentioned a number of times in the decision.

    I am not making the claim that a person ‘has a right to disobey laws which have been criticised’. I am saying simply that proportionality of the EAW goes to the question of arbitrariness as a whole. The point about’ criticism’ also goes to the basis of Assange’s objections to the EAW process. Assange is not merely absconding. He is asking to have the initial investigation conducted without extradition to Sweden.
    It isn’t enough merely to say that the EAW is justified because it relates to a felony charge. The UK Supreme Court accepts in Assange (No. 2) that there is no charge yet.

  10. Thank you for the response, Professor Lazarus. The WGAD did mention proportionality in its decision, I disagree that their treatment of it was the same as your own. They mention it in para. 91, in relation to the notion of arbitrariness, then again in a quote from an HRC General Comment in para. 92. These are statements of human rights principles, not applications of those principles to the facts.Again, in paragraph 96, the WGAD introduces an opinion of one Lord Reed from the UK Supreme Court concerning certain criteria relating to proportionality. They never bother to apply these criteria to the facts of the case, at least not in any clear manner. In the next paragraph, the WGAD turns to a discussion of “due diligence” in pursuing the criminal charges, and, in that discussion briefly returns to the issue of proportionality, mentioning that this principle includes “undertaking to explore alternative ways of administering justice”. Those are the only mentions of proportionality that I found in the discussion section.

    This gets to the heart of the criticism of the WGAD opinion, which is that it is almost entirely bereft of reasoning

    Absconding with a reason, even a reason that some people might find persuasive, is still absconding.

    I am not persuaded that human rights law requires states to accede to the demands of absconders as to their preferred method of cooperating with a criminal investigation. Of course, if the passage of time were only attributable to the State, then this would be a relevant factor to consider when considering the appropriateness of that State’s actions in pursuing the investigation. But the fact that the State has the burden of demonstrating that its investigation has complied with human rights principles does not mean that the actions of the individual under investigation can or should be ignored. This is not how burdens of persuasion work in law. Mr. Assange’s choice to abscond is a relevant fact when considering whether he has been deprived of his liberty.

    This gets to another major criticism of the WGAD opinion, related to, or part of the lack of reasoning, is the WGAD’s persistent choice to ignore facts and arguments inconvenient to its conclusion.

  11. David: I agree that the WGAD decision could have been reasoned better and the points could have received more justification. But this declaratory style is consistent generally with WGAD decisions, and other bodies of this type. If you are looking for a full judicial decision you won’t find it here. But I would note that they also laid out the arguments presented by Assange’s lawyers on proportionality.

    On the ‘absonding’ issue:

    The arbitrariness and proportionality analysis implicitly attributes weight to Assange’s own response to the investigation. If Assange was merely being contained by the State in this way for no reason, then the ‘detention’ would be entirely arbitrary (in the sense of groundless, or having no legitimate objective). So the fact that the UK and Sweden are pursuing a criminal investigation against Assange, and are containing him inside the embassy for that reason, goes to the legitimacy of the authorities objectives. But proportionality also requires that the means adopted by the State in pursuing such legitimate objectives are proportionate to those goals. The issue here is whether the EAW process is proportionate at this stage of the investigation, given there are other lesser means of achieving this objective at this point.

    I do not accept that Assange forfeits his right to liberty, because he is seeking to challenge this process. Rather, that the balance between his liberty rights and the State’s pursuit of the legitimate objectives of investigating a rape complaint, and their subsequent response to taking asylum in the Ecaudorian embasssy, need to be proportionate.

    Your argument concludes that: ‘this is not how burdens of persuasion work in law’. But the point is precisely that human rights law always requires that the State discharges the burden of justification. It is inside that justification process that the reasons (legitimate objectives) of State action count in the balance.

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