In September 2014, Julian Assange filed a complaint against Sweden and Britain with the United Nations Working Group on Arbitrary Detention (WGAD).
In a landmark opinion issued on February 5, 2016, WGAD upheld Assange’s complaint that he is a victim of illegal and arbitrary detention, and thereby dispelled the myths that Assange chooses to remain in the Embassy or that he is a fugitive from justice.
This opinion is a victory not only for Assange, but for the right of whistle-blowers everywhere to be protected from persecution, and for the victims who benefit from their work.
WGAD affirmed that Assange had been detained continuously for more than five years: first in isolation in a prison, then under house arrest, and finally, under Embassy arrest which was comprised of continuous confinement and police surveillance.
Regarding the latter, WGAD further found that this "gilded cage" lacked the basic amenities required to satisfy the minimum rights of detainees, such as access to appropriate medical facilities and treatment.
The report said this had placed Assange’s health at “serious risk”. Assange did not choose to be detained in this manner. In February 2012, the Special Rapporteur on Torture issued findings that Chelsea Manning had been subjected to cruel and inhumane treatment in the United States while being interrogated in relation to Assange and Wikileaks.
There were also concrete indicia that the United States was conducting a full-blown investigation into Assange, and was engaged in discussions with Sweden regarding his future extradition to the US.
Assange therefore requested Ecuador to afford him protection from the well-founded risk that he would be subjected to persecution and cruel and inhumane treatment if extradited to the US.
After a thorough consideration of the application, Ecuador granted Assange asylum under the terms of the 1951 Convention relating to the Status of Refugees. Sweden and Britain have ratified this convention, but both refused to either recognise Assange’s asylum status, or provide him with assurances against refoulement to the US.
As a result, Assange was faced with an impossible catch-22; if he stayed in the Embassy, he could be detained indefinitely, but if he left he would be the next victim of the US’ war on whistle-blowers.
This risk of refoulement to the US formed the prison bars which kept him detained. In a damning indictment of the manner in which Sweden and Britain handled this situation, WGAD underscored Assange’s continued willingness to co-operate with the Swedish investigations during all stages of the procedure, and concluded that he is in fact a victim of a significant miscarriage of justice.
Concretely, for over five years, the Swedish Prosecutor refused to question Assange in Sweden, London or the embassy, and refused to provide him with access to the case file.
Assange was, as a result, denied the right to clear his name, and to dispel the cloud of suspicion which has been unfairly fanned by the high profile nature of this case. This contravened the presumption of innocence, and his right to have the uncharged allegations investigated fairly, impartially and expeditiously.
In light of these findings, WGAD upheld Assange’s complaint that he is arbitrarily detained. WGAD further recognised that Assange should not have to sacrifice his right to liberty in order to enjoy protection from torture: Sweden and Britain were requested to ensure his safety, protection and his right to freedom of movement.
In an important recognition of the fact that Assange has been a victim of this process, WGAD further ordered Britain and Sweden to accord him an enforceable right to compensation.
Of course, financial compensation can never bring back the time that Assange has lost with his family, but it may provide a powerful incentive for Sweden and Britain to implement the findings now, rather than later, given that the potential costs will continue to mount.
Such incentives are important given that Britain's foreign secretary came out swinging, with claims that Britain has no obligation to comply with the “ridiculous” finding, issued by “laypersons”.
The foreign secretary was apparently not briefed on the fact that WGAD is a specialised United Nations body composed of impartial, international legal experts, which applies binding standards of international law in the area of illegal and arbitrary deprivations of liberty.
This response is of course disappointing, but it is also untenable. Political posturing cannot and should not prevail over a detailed, impartial assessment based on facts and law.
Britain and Sweden cannot simply ignore WGAD’s findings because it is them in the dock, or because they disagree with Assange’s whistleblowing activities.
The system of international human rights law established by the United Nations Charter serves to protect the rights of all persons, weak and strong, throughout the world.
Their disregard for this decision would only serve to diminish this system of protection, and weaken the rights of victims everywhere. Of course, today it is Assange – an antipodean who challenges authority – but tomorrow, if it is someone from England or Sweden locked up illegally, what authority will Sweden and Britain have to demand their release?
Arbitrary detention is also a grave international crime, akin to torture and cruel and inhumane treatment.
If Britain and Sweden intentionally continue this crime, they may have more to worry about than financial sanctions.
Melinda Taylor is a human rights lawyer and a member of Julian Assange's legal team.
