1. Introduction

On 22 January 2016 the United Nations Working Group on Arbitrary Detention (UNWGAD)[1] rendered its opinion[2] in the case concerning Julian Assange. It held that the ‘deprivation of liberty of Mr. Assange’ is arbitrary and contravenes various rights enshrined in the Universal Declaration of Human Rights[3] (Articles 9 and 10) and in the International Covenant on Civil and Political Rights[4] (Articles 7, 9(1), 9(3), 9(4), 10 and 14). Inter alia the UNWGA found that the presence of Mr Assange in the Ecuadorian Embassy, where he had taken himself, amounted to a deprivation of liberty without him being guaranteed his rights of due process and to a fair trial.[5] These findings have sparked a heated debate among academics and in the public media. Some of the voices that were raised by commentators,[6] the press[7] and British officials[8] contained harsh criticism.[9] Matthew Happold, for example, deems the opinion ‘poorly-reasoned’ and asks ‘whether the real loser here is not the UN system of human rights protection’ as ‘the Working Group has brought itself into disrepute’.[10] He strongly criticizes that the Working Group did not address the fact that Mr Assange had taken himself to the embassy which he calls ‘an enormous elephant in the room which the Working Group’s opinion entirely ignores’.[11]
This contribution, however, joins Liora Lazarus[12] – as one of the more nuanced and moderate voices – in her effort ‘to correct the imbalance of coverage on this decision’[13] and to reflect on the actual arguments brought forth by the Working Group which are neither ‘ridiculous’[14] nor ‘so wrong’[15] – if anything debatable. It will, furthermore, provide some arguments which explain why Mr Assange’s situation should be considered detention and how one could discuss the ‘elephant in the room’.
To make some preliminary points: This contribution will not deal with the right to diplomatic asylum in depth, as the Working Group did not base its finding on an alleged right to asylum by Mr Assange. Though, the opinion speaks of Assange’s ‘newly acquired status’ which follows from the fact that Republic of Ecuador has granted him asylum,[16] which could be read as an implicit acceptance of a right to diplomatic asylum by the Working Group, later in the opinion, it is explicitly left open whether this status entails a corresponding obligation for the UK and Sweden to respect the asylum that was granted to Mr. Assange. The Working Group merely criticized that the right to diplomatic asylum has not been thoroughly discussed and held that

‘irrespective of whether the grant of the asylum by the Republic of Ecuador to Mr Assange should be acknowledged by the concerned States and whether the concerned States could have endorsed the decision and wish of the Republic of Ecuador, as they had previously done on the humanitarian grounds, the grant itself and the fear of persecution on the part of Mr Assange based on the possibility of extradition, should have been given fuller consideration in the determination and the exercise of criminal administration, instead of being subjected to a sweeping judgment as defining either merely hypothetical or irrelevant.’[17]

The Working Group did well not to intertwine the right to diplomatic asylum and the arbitrariness of Mr Assange’s detention. For good reasons it is still very much debated in international academia and practice whether a right to diplomatic asylum exists or not and whether Sweden and the UK would be bound to accept it.[18] The ICJ’s judgment in the Asylum Case[19] did not accept the existence of such a ‘general right’ in 1950 and many States still refuse it – often also in contrast to their own practice.[20]
Furthermore, this contribution will focus on the aspects which deal with the presence of Mr Assange in the Ecuadorian embassy not with the two prior moments of detention, even though the Working Group assessed the different stages of Mr Assange’s detention in an overall appraisal.[21] Notwithstanding the fact that the combined length of all three detentions, as well as the overall malpractice of the Swedish prosecution with regard to the preliminary investigation procedures run like a red thread through all different steps of his detention, it would have been preferable if the Working Group would have treated them more separately as they involve different legal questions.
Most importantly, the legal assessment of Mr Assange’s presence at the Ecuadorian embassy must be clearly distinguished from the criminal allegations brought forth by the Swedish authorities and the – in the author’s view indeed very problematic – activities by Mr Assange for Wiki-Leaks. Unfortunately, it seems like these matters do inform much of the background music to the heated debate on Mr. Assange’s case – to the disadvantage of the quality of the legal arguments with regard to his detention.

2.   The factual background

Although most of the readers will be familiar with the factual background to Mr Assange’s case, a quick recapitulation may be helpful: After Mr Assange left Sweden for the UK, the Swedish prosecutorial authorities have issued a European Arrest Warrant (EAW) against him on suspicion of sexual assault and rape. In order to fulfil its obligations to implement the EAW the UK arrested Mr Assange for 10 days and kept him in house arrest thereafter. After the dismissal[22] of Mr Assange’s appeal against the EAW by the UK Supreme Court, Ecuador granted Mr Assange asylum and he betook himself to the Ecuadorian Embassy where he remains since 2012. Ever since Mr. Assange entered the Ecuadorian embassy he has been under constant surveillance by UK authorities.
Mr Assange argues that he fears extradition from Sweden to the US due to activities for Wikileaks. Sweden and the UK have not recognized Mr Assange’s claim for a right to asylum and the Swedish authorities made clear that they refuse to grant Assange any guarantee of non-refoulement to the US. The Swedish prosecutor, who is in charge for the criminal investigation, has refused to interrogate Mr. Assange on the premises of the embassy or to process the criminal investigation by other means than the execution of the EAW.


3. The UNWGAD’s findings on Assange’s situation in the Ecuadorian Embassy

The UNWGAD found that Mr Assange’s ‘current situation […] staying within the confines of the Embassy […] has become a state of an arbitrary deprivation of liberty’[23] and that it constitutes a ‘prolongation of the already continued deprivation of liberty that had been conducted in breach of the principles of reasonableness, necessity and proportionality’.[24] In the Working Group’s view Mr Assange’s detention fell within Category III as defined in the Group’s Methods of Work.[25]
The Working Group bases its finding that his detention is arbitrary, among others, on the following reasons: the fact that Mr Assange had never been formally indicted before a Swedish court,[26] that Mr Assange had not been granted access to any exculpatory material,[27] and the fact that the Swedish authorities had not made use of alternative means to process the criminal investigation, even though Mr Assange continued to express his willingness to participate in the criminal investigation without leaving the embassy. In the view of the Working Group this leads to the conclusion that the exercise and implementation of the criminal investigation was not conducted in compliance with the principle of proportionality,[28] and that the matter of investigation was put to a state of ‘indefinite procrastination’.[29] This ‘totality of the circumstances’ provided, according to the Working Group, for the arbitrariness of the deprivation of freedom,[30] and is the reason why ‘there has been a substantial failure to exercise due diligence on the part of the concerned States’ with regard to the exercise and implementation of the criminal investigation.[31]

4.   On ‘Elephants in the Room’

One major point of criticism brought forth against the opinion is the argument that Mr Assange voluntarily entered the Ecuadorian embassy and that therefore his situation would not amount to a deprivation of liberty and detention. Mr Tochilovsky, a member of the Working Group, argues in his dissenting opinion that:

‘Mr Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.’[32]

Indeed, at a first glance, it seems rather counter-intuitive to consider Mr Assange situation to be a detention; he could leave the embassy any time he wants. Therefore, it would have been also preferable if the Working Group would have addressed this issue directly and discussed it more in depth.[33]
Yet, the conclusion of the Working Group’s majority to consider Mr Assange’s situation as a deprivation of liberty deserves support. If one looks closer at the case it is difficult to argue the opposite: that the entering of the embassy is volitional and therefore does not constitute a deprivation of liberty. The reason why Mr Assange entered the premises is the fear of being arrested and extradited to Sweden. This is an external coercive force which influenced and directed his decision. The Working Group has previously found that circumstances in which the only alternative to confinement is to face a risk of persecution do not constitute volitional detention. Mr Assange’s presence is a consequence of the United Kingdom’s pursuance of the enforcement of the EAW through round-the-clock surveillance, as well as Sweden’s issuance of a European Arrest Warrant in order to execute the detention order in combination with the refusal of the Swedish Prosecution to carry out the preliminary criminal investigation by other means than questioning Julian Assange in Sweden. As Lazarus aptly noted:

‘To argue that Assange has been “self-confined” […] is to argue that he has chosen his conditions of residence in the Ecuadorian Embassy by his free will. But such an assertion would be to ignore the conditions which resulted in his decision to seek asylum in the Ecuadorian Embassy in the first place, and in his decision to remain there. He is not free to leave of his own will. The fact that Assange is resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.’[34]

Also any fear that applying such a broader understanding of the term ‘deprivation of liberty’ would dilute the prohibition of arbitrary detention is unfounded, as it is only the first prong of the test of arbitrary detention. A formalistic, narrow interpretation of the term detention being confined to traditional situations of direct arrest by state authorities would, however, open up the possibility for States to force persons to ‘self-detainment’ as a means to escape judicial assessment by the UNWGAD.

5. On Proportionality

One core aspect of the UNWGAD’s finding is that the detention of Mr Assange in the embassy is in violation of the principle of proportionality.[35] Notwithstanding that also with regard to the proportionality analysis a more in depth discussion would have been desirable, as one of the main sources of the Working Group’s authority is its argumentative force, the conclusion that the actions and inactions of the UK and Sweden are disproportionate is persuasive. The principle of proportionality requires that detention be used as a last resort and that strict legal limitations, as well as effective judicial guarantees be established.[36] The justifications required for the detention must be clearly defined and a proper balance between its individual situation and the interest for criminal justices has to be struck.
So what is precisely the end Mr Assange’s detention is aiming at? The only possible justification for Mr Assange’s detention is to ensure the further realization of the criminal investigation in Sweden – this is also what the EAW aims at, which is the legal basis for any apprehension of Mr Assange. One could already question whether his presence in the embassy is suitable to foster the further realization of the criminal investigation. But, arguably, the detention at least prevents the risk that Mr Assange seeks to avoid justice after all.
That takes us to whether the surveillance measures and the threat of apprehension by the UK and the inactivity of the Swedish prosecution are necessary? In other words: Did Sweden and the UK choose the least restrictive means that likewise would reach the end, namely the realization of the criminal investigation? The UNWGAD’S response to this is frank and clear: No!
In view of the Working Group Sweden and the UK did not conduct the criminal investigation ‘in compliance with the rule of proportionality, including undertaking to explore alternative ways of administering justice’ which makes Assange’s situation as a consequence ‘excessive and unnecessary’.[37]
Here the Working Group has a strong point: As the aim for the execution of the EAW is the realization of the criminal investigation the Swedish authorities could have chosen alternative means to promote the preliminary criminal investigation – such as an interrogation of Mr Assange in the embassy, or even before that, while he was under house arrest.[38] The necessary legal basis for these alternative means can be found in mutual assistance protocols which are in force between the UK and Sweden.[39] As the Former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs, Hans Corell, has made abundantly clear, he ‘does not understand why the prosecutor had not questioned Julian Assange during all the years he has been at the Ecuadorian Embassy’.[40]

6. Conclusion

To conclude: As Liora Lazarus has pointed out

‘Whether or not you believe Mr Assange is guilty of a sexual offence, whether or not you think he is a self-publicist deliberately resisting arrest, the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden.’[41]

There are very good reasons to criticize Assange’s activities for Wiki­Leaks and the allegations brought against him in Sweden may justify a court trial and that may very well end in a conviction. However, this does not discharge the UK and Swedish authorities of their duties to guarantee him his fundamental rights. The respect for these rules is even more important in cases which involve complex political implications and momentously criminal allegation, as the case at hand does. They are the yardsticks against we have to measure our legal systems.
Therefore, the UK and Sweden would have done better to take the UNWGAD’s opinion as an inducement to reconsider their handling of the Assange case; Not to mention the possible harm which the statements by the governments of the UK and Sweden will do to the authority of the Working Group in future cases in which other states may gratefully follow up on the blatant rejection and defiance of its opinions.



[1] On the role and function of the UNWAGD see the Working Group’s homepage: < www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx>.

[2]Opinion No 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland) UN Doc A/HRC/WGAD/2015/54 (22 January 2016) (hereinafter Opinion No 54/2015). The opinion is available at: <www.ohchr.org/ Documents/Issues/Detention/A.HRC.WGAD.2015.docx>.

[3] Universal Declaration of Human Rights, UN GA res 217A (III) (adopted 10 December 1948).

[4] International Covenant on Civil and Political Rights, UN GA res 2200A (XXI), 21 UN GOAR Supp (No 16), 52 UN Doc A/6316 (1966) (entered into force 23 March 1976), 999 UNTS 171.

[5] Opinion No 54/2015 (n 2) paras 89-98.

[6] See for example the critique by M Happold, ‘Julian Assange and the UN Working Group on Arbitrary Detention’ EJIL: Talk! (5 February 2016) available at <www.ejiltalk.org/julian-assange-and-the-un-working-group-on-arbitrary-detention/> (hereinafter Happold (EJIL: Talk!)), and by P Wrange, ‘The Assange case and the integrity of the UN’s Special Procedures for Human Rights’ (18 February 2016) available at < http://palwrange.blogspot.no/2016/02/the-assange-case-and-integrity-of-uns.html>.

[7] See the harsh critique by J Rozenberg, ‘How did the UN get it so wrong on Julian Assange? The Guardian (5 February 2016) available at <www.theguardian.com/commentisfree/2016/feb/05/un-julian-assange-wikileaks>, and S Høgestol, ‘Fire momenter som gjør rapporten om Assange mangelfull’ Aftenposten (16 February 2016) available at <www.aftenposten.no/meninger/debatt/Fire-momenter-som-gjor-rapporten-om-Assange-mangelfull–Sofie-A-E-Hogestol-8357593.html>.

[8] See for example the statement that the finding of the Working Group ‘changes nothing’ published on the UK government’s homepage (available at <www.gov.uk/government/news/uk-disputes-un-working-group-opinion-on-julian-assange>).

[9] See however the embracement of the opinion by D PoKempner ‘On Assange, Following the Rules or Flouting Them?’ available at <www.hrw.org/news/2016/02/05/assange-following-rules-or-flouting-them>, who is General Counsel for Human Rights Watch, and by B Rajagopal, ‘The War against Julian Assange Must End’ The Wire (8 February 2016) available at <http://thewire.in/ 2016/02/08/the-war-against-julian-assange-must-end-21064/>.

[10] Happold (EJIL: Talk!) (n 6).

[11] ibid.

[12] L Lazarus, ‘Is the United Nations Working Group on Arbitrary Detention Decision on Assange ‘So Wrong’? UK Constitutional Law Association Blog (9 February 2016) available at <https://ukconstitutionallaw.org/2016/02/09/liora-lazarus-is-the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-so-wrong/>, (hereinafter Lazarus (UK Constitutional Law Association Blog) and L Lazarus, ‘The United Nations Working Group on Arbitrary Detention decision on Assange: ‘ridiculous’ or ‘justifiable’?’ EJIL: Talk! (9 February 2016) available at <www.ejiltalk.org/the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-ridiculous-or-justifiable/> (hereinafter Lazarus (EJIL: Talk!).

[13] Lazarus (UK Constitutional Law Association Blog) (n 11).

[14] See the statement by UK’s foreign secretary Philip Hammond who calls the opinion ‘frankly ridiculous’: available at <www.itv.com/news/update/2016-02-05/hammond-assange-remains-a-fugitive-from-justice/>.

[15] Rozenberg (n 7).

[16] Opinion No 54/2015 (n 2) para 88.

[17] Opinion No 54/2015 (n 2) para 88.

[18] See for example M Happold, ‘Julian Assange and Diplomatic Asylum’ EJIL: Talk! (24 June 2012) available at <www.ejiltalk.org/julian-assange-and-diplomatic-asylum/>.

[19]Asylum Case (Colombia v Peru) (Judgment of 20 November 1950) [1950] ICJ Rep 266, 275-278.

[20] See however the Convention on Diplomatic Asylum, (entered into force 29 December 1954), OAS, Treaty Series No 18, available at <www.oas.org/juridico/english/treaties/a-46.html>, to which a considerable number of American States are parties to.

[21] Opinion No 54/2015 (n 2) para 89.

[22] Assange v The Swedish Prosecution (Judgment of 30 May 2012) [2012] UKSC 22, available at <www.supremecourt.uk/cases/docs/uksc-2011-0264-judgment.pdf>.

[23] Opinion No 54/2015 (n 2) para 98.

[24] ibid para 90.

[25] Category III reads: ‘When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.’

[26] Opinion No 54/2015 (n 2) para 93.

[27] ibid paras 94 and 98.

[28] ibid para 97.

[29] ibid.

[30] ibid para 98.

[31] ibid para 97.

[32] Individual dissenting opinion of WGAD member Vladimir Tochilovsky, Appendix I, Opinion No 54/2015 (n 2) para 3.

[33]Cf Happold (EJIL: Talk!) (n 6) who strongly criticizes that the Working Group did not address this point properly.

[34] Lazarus (EJIL: Talk!) (n 11).

[35] Opinion No 54/2015 (n 2) paras 90 and 96 ff.

[36] For a short introduction on the principle of proportionality in international law see my blogpost: JR Leiss; ‘Towards an Integrated, Predictable and Coherent International Legal System: A Defence of Proportionality Balancing’ Völkerrechtsblog (10 August 2015) available at: <http://voelkerrechtsblog.org/towards-an-integrated-predictable-and-coherent-international-legal-system-a-defence-of-proportionality-balancing>. See also Lord Reed of the UK Supreme Court (Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39, per Lord Reeds, para 74) who set out the different prongs of the proportionality test.

[37] Opinion No 54/2015 (n 2) para 97.

[38] The Guardian reported that the Ecuadoran foreign minister publicly stated that Ecuador would not object to an interrogation of Mr Assange in the embassy, available at <www.theguardian.com/media/2016/jan/15/julian-assange-allowed-questioned-swedish-prosecutors-london>.

[39] See the ‘Consolidated document reflecting the applicable provisions of the European Convention on Mutual Assistance in Criminal Matters and its two Additional Protocols’ PC-OC (2011) 15 Rev (4 November 2011) available at <www.coe.int/t/dghl/ standardsetting/pc-oc/PCOC_documents/PC-OC%20_2011_%2015%20% 20Rev% 20Consolidated%20document%20mutual%20legal%20assistance.pdf>.

[40] See the report on this statement which is available at: <www.svt.se/nyheter/inrikes/professor-i-folkratt-kritisk-till-fn-rapport-om-assange>.

[41] Lazarus (UK Constitutional Law Association Blog) (n 11).