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15th February 2016

Assange’s ‘arbitrary detention’ gives human rights a bad name

Branding WikiLeaks’ founder Julian Assange’s detention as arbitrary tarnishes human rights

Normally, I am a great advocate not only for the United Nations (UN), but also for human rights. Human rights are not designed to be popular, they’re designed to be the basic rights and freedoms we should all expect. The sad thing is, they end up with a bad rap and are brought into disrepute when instances like this happen:

Julian Assange—a name we all know—has been in the Ecuadorean embassy in London since June 2012 at a cost to the UK taxpayer of over £10 million. Following the decisions of the Supreme Court exhausting any blockage to extradition in 2012, Assange entered the embassy and was granted political asylum (a form of asylum not recognised by the UK). This whole situation comes from the fact that Assange is wanted on a European Arrest Warrant (EAW) issued by Sweden for several charges including rape. Assange fears that if the warrant is executed, he will be extradited by the Swedish authorities to face trial in America for his involvement with WikiLeaks after standing trial in Sweden. On 5th February 2016, the UN Working Group on Arbitrary Detention (WGAD) handed down its decision that Assange has been arbitrarily detained. This decision has been the target for a barrage of derision. The national press and legal Twitterati have lampooned it. Foreign Secretary Philip Hammond, has called it “ridiculous” and political satire website The Daily Mash ran the headline: “Man is being arbitrarily detained at Argos, UN rules“.

It is worthwhile to define arbitrary detention in order to assess the validity of this decision, and to see whether the derision is founded on good grounds. Article 9 of the Universal Declaration of Human Rights (UDHR) states that: “No one shall be subjected to arbitrary arrest, detention or exile”.  Paragraphs 3a to 3e of the decision of WGAD provide us with five categories for determining what amounts to arbitrary detention. The group decided (on a majority of 3 – 1, with one member abstaining) that category III—the detention is arbitrary due to a non-observance of the right to a fair trial—is the most applicable in this situation.

It appears that the reasoning behind the decision of the group is that Mr Assange’s case was not reviewed after changes to the extradition law with the Anti-Social Behaviour, Crime and Policing Act of 2014. These changes mean that courts have the power to assess whether the EAW is correct, as well as the new amendments bar extradition—where no decision has been made in regards to whether or not a person should be brought to trial. These are key issues which are applicable to this case. They are all reasonable amendments. Had the EAW been issued today, a UK court would more likely than not uphold it due to these changes.

However, there is one key factor that appears to have escaped the mind of the working group—the law does not apply retrospectively. Any cases brought after 21st July 2014 will be subject to the amendments, but cases decided before this date will not. This interpretation is supported by the construction of the statutory provisions. Yet, for some reason this seems to have not been of any concern to the working group.

The group holds the view that Assange has been arbitrarily detained on three occasions: his time in Wandsworth Prison, his subsequent ‘house arrest’, and his time in the Ecuadorean Embassy. During his time in prison, Assange was kept in isolation and the working group held that: “arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance”. However, there is nothing to say that Assange did not have access to legal representation. Perhaps the working group has a definition of isolation far removed from the true realities of our present-day prison system.

The working group go on to argue that the ‘house arrest’ of Assange was also arbitrary detention. It is not uncommon in the UK to attach a residence condition to the bail of a suspected criminal pending trial. Whilst it is plain to see that this would constitute a restriction of liberty. It is definitely not arbitrary because of the judicial safeguards in place to ensure protection against the condition being overused.

The decision is laughable when considering the ‘detention’ in the embassy. The working group, it appears, have turned a blind eye to the fact that Assange has contravened his bail conditions and chosen to seek asylum in the embassy. Assange is free to leave the embassy whenever he wants. However, if Assange were to leave the embassy he would be immediately arrested. Not just because of the decisions made by the working group in terming his detention arbitrary.

The name of human rights has been tarnished by what Marina Hyde in The Guardian has said, are a group “of academics, seemingly devoid of judicial experience”. In no true sense of the word has Assange been arbitrarily detained, he has had full access to legal representation throughout his case. This sort of decision is a real problem for human rights law as it gives rise to a bad reputation. It leads people to think that human rights do more bad than good, always protecting the ‘bad guys’ and never thinking of the ‘good guys’. This is not the case, and on this occasion the working group have not given long overdue consideration to the realities of the situation.

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