Julian Assange, you’re not being ‘arbitrarily detained’: step forward and stop evading the rule of law

The United Nations couldn’t have got this any more wrong if it’d tried

Earlier this year, more than a few eyebrows were raised when the United Nations Working Group on Arbitrary Detention (UNWGAD) gave its views on WikiLeaks founder Julian Assange’s stay in the Ecuadorian Embassy.

I will not rehearse the history of this matter — suffice to say that following allegations of sexual offences committed in Sweden, and the issuing of a European Arrest Warrant, Assange fled bail and then chose to seek refuge in the Ecuadorian embassy in London, in the full knowledge that this would frustrate any attempts by the Swedish authorities to pursue their enquiries.

Whether Assange is guilty of the crimes he is accused of or whether the allegations were an attempt to have him extradited to the USA are not matters that can be commented on. What is of interest is that a man — one that has made it his life’s mission to hold those in power to a higher standard and to make them accountable to their citizens and the rule of law — has now spent a significant period of time evading justice for matters of which he stands legitimately accused.

Assange is famous for a single thing: the founding of WikiLeaks — a website dedicated to speaking truth to power and to ensuring that a cold spotlight is shone on governments to combat corruption.

These are admirable causes, but ones that have stirred up significant controversy and notoriety for the site and its founder. WikiLeaks was the driving force behind the release of classified materials appropriated by US Army Private Chelsea Manning (then known as Bradley), and it played a significant role in the Edward Snowden revelations.

It is perhaps understandable, if a little disheartening, that the institutions caught out by the WikiLeaks spotlight have roundly denounced Assange and his endeavours. These endeavours have, however, been an integral part of a modern movement of transparency. This movement is changing the world, and is no doubt a development which history can and will judge with more objectivity than can be possibly done today.

What is far more disheartening is that the founder of this noble endeavour has spent nearly four years attempting to evade his accusers and to pervert the course of justice. Assange is a very clever man — of that there can be no doubt — and at this stage several of the accusations made against him have fallen away because of the extended period of time that has passed since the alleged offences occurred. This is because, unlike in the UK, Sweden has a statute of limitations for sexual offences. One accusation remains (and this is the most serious) and will remain live until 2020. Assange has not been charged with any of the crimes that he is accused, and to date has not even been questioned by the Swedish authorities in regards to the accusations.

Initially, the Swedish prosecutor demanded that Assange be interviewed in Sweden and this caused a major problem. Assange maintained that if he left the protection of the diplomatic asylum he was enjoying, he would be immediately arrested and then refouled to the USA to stand trial for espionage crimes, mainly for his involvement with the Manning and Snowden matters. It took some time, but eventually the Swedish prosecutor agreed to question Assange at the Ecuadorian embassy rather than in Sweden, and now the details of the method and form of that questioning are being hashed out between the Ecuadorian authorities and the Swedish authorities.

This brings us back to the current position. Assange is still inside the Ecuadorian embassy. The UK has expended significant funds to maintain a watch on the situation, and the Swedish prosecutors are still keen to have the opportunity to at least question Assange in relation to the allegations. Assange’s lawyers have tried every avenue that they could to try and ensure his freedom — they have taken matters to the UK Supreme Court, the Swedish Supreme Court, and have requested asylum in France, but all have failed.

The UNWGAD then considered Assange’s position and have come to the conclusion that his circumstances can be categorised as arbitrary detention.

The reason for this is lengthy. There is a single dissenting opinion from Vladimir Tochilovsky included that raises the concerns echoed by several UK commentators, namely that a self imposed confinement to evade the law should not be considered detention.

The majority view however, is that Assange’s present position can and should be considered arbitrary detention. The UNWGAD has come to this conclusion primarily because the Swedish authorities have refused to give a definitive answer on whether they would extradite Assange to the USA, were the US authorities to request it. This led to the conclusion that Assange is forced to remain under diplomatic asylum at the Ecuadorian embassy as he has no assurance that if he leaves this protection he will not be arrested and refouled elsewhere for prosecution.

As mentioned above, I cannot comment on whether Assange’s fears of being sent to the USA have any basis in reality. What seems clear is that, if such an event was to occur, then it would be spread like wildfire across the press. The media spotlight that Assange has managed to attain for himself is all encompassing and would ensure that any attempts to ‘play dirty’ would be immediately seen by the public and almost certainly spark an international crisis. Just imagine the headline: ‘Australian citizen under the protection of diplomatic asylum provided by the Republic of Ecuador has been arrested by UK police under a European Arrest Warrant issued by Swedish authorities for sexual offences allegedly committed in Sweden, has been abducted and refouled to the USA to stand trial for unrelated espionage offences that he has not been charged with’. Clearly not an event that would pass without comment.

It seems ridiculous to allow the rule of law to be overturned because to an unproven fear. What seems more ridiculous is that the UNWGAD has bought into this fear whole-heartedly, and has given little credence to the reasonable concerns of the Swedish authorities, namely that they cannot give a definitive answer on an unknown quantity. There is no request for refoulment to the USA for the Swedish authorities to give a decision on, so it is understandable that the Swedish authorities are unwilling to bind themselves in regard to future decisions that consist of completely unknown factors.

There are numerous jurisdictions involved in this fiasco, all that have legal relationships rooted in international treaties and conventions, and these cannot simply be ignored because something bad might happen. Sweden would be in dereliction of their commitments and responsibilities under numerous international agreements if they stated, without the full set of facts before them, that they could guarantee that Assange would not be extradited to the USA or any other state while under the care of the Swedish authorities.

This isn’t to say that Sweden would automatically consent to such a request either. Sweden has more stringent checks against extradition than the UK. Specifically, in relation to the USA, Sweden’s extradition agreement prohibits extradition on the basis of a political offence. There is not a long list of instances where Sweden has extradited someone to the USA. In 1992, Sweden refused to extradite the only CIA agent who defected to the Soviet Union, Edward Lee Howard. It is clear that Sweden takes its responsibilities seriously, and would not simply acquiesce because of pressure from international allies.

This is a delicate and messy situation, and it is true that the Ecuadorians, the UK authorities, and the Swedish authorities could have dealt it with differently. What is an unassailable fact is that Assange has fled bail and has used his significant means and connections at his disposal to evade the rule of law. This man, who has spent his adult life demanding that states and figures of authority be held to account for their actions, is now expecting the world to allow him to do just that. It diminishes the work of his colleagues in the WikiLeaks organisation and it brings disrepute to his supposedly noble endeavours. It makes all of his actions seem like self aggrandising acts of narcissism, whether that is a fair assessment or not.

Assange, step forward and trust that the rule of law will not allow you to be whisked away in the night with a bag over your head. Do not be a hypocrite and please do not stay in the Ecuadorian embassy until 2020 and escape this matter on a technicality. Be the example of the straight shooting, transparent, law-abiding citizen that you have demanded of others.

Michael Guina is a county court advocate and an associate lecturer with the University of Derby.