As anticipated, the UN's Working Group on Arbitrary Detention (WGAD) overnight announced it had found Julian Assange had been arbitrarily detained by the United Kingdom and Sweden. The British government, which was advised of the decision two weeks ago, leaked the news to the BBC yesterday.
One immediate issue raised in press coverage of the announcement was that that the working group's decision isn't "legally binding" on the UK and Sweden. The UN Human Rights Office issued a statement claiming that the decision is legally binding, but that prompts the question of how exactly the UN thinks it can enforce it if the UK or Sweden decline to allow Assange to go free and give him safe passage to Ecuador, which has granted him asylum.
The problem for the "not legally binding" argument, however, is that both the Swedish and British governments have willingly taken part in the WGAD process so far, providing detailed responses to Assange's initial complaint; to now dismiss the entire process as not legally binding and therefore irrelevant looks a lot like taking their bat and ball and going home. It's also ironic that governments that have steadfastly refused to pursue proper legal process for Assange would now cite the strict letter of the law in their response to the ruling.
The UK Telegraph, which operates as a media arm of the Tory party, also ran a piece seeking to discredit the working group by claiming that 99% of its determinations favour complainants. The trouble with that angle is that many of the WGAD's findings (you can read the full list here) relate to governments such as China, Iran, Cuba, Saudi Arabia, North Korea, the Palestinian Authority and Russia -- all of which, presumably, Assange's critics are quite happy to see pilloried for their human rights abuses. Western countries occupy only a tiny fraction of the complaints to the working group, which is overwhelmingly focused on arbitrary detention in the Middle East, Africa and North Asia. That "99%" relates to the world's worst dictatorships, theocracies and tinpot tyrants, many of whom are hostile to the West.
The official spin from the UK government is that "Mr. Assange has never been arbitrarily detained by the U.K. but is, in fact, voluntarily avoiding lawful arrest by choosing to remain in the Ecuadorean embassy. The U.K. continues to have a legal obligation to extradite Mr. Assange to Sweden.”
As Crikey explained yesterday, the first point in fact is central to Assange's complaint to the WGAD: it has found that Assange's choice of either remaining confined to the Embassy or allowing himself to be arrested for extradition and possible rendition to the United States is detention, whether the British like it or not. And as WikiLeaks quickly pointed out, there is no extradition agreement between the UK and Sweden. Moreover, the European Arrest Warrant mechanism that applied to Assange has since been removed from British law. If the same circumstances occurred in 2016, the UK would not be able to send Assange to Sweden, courtesy of changes the Cameron government made to its own laws.
As for the Swedes, their only response so far, apart from acknowledging the finding, has been to claim "the prosecutor responsible for the case is on a journey and has not yet been able to take a position on the latest development". Those who have followed the case will recognise yet another lame excuse from prosecutor Marianne Ny, who for over five years has been confecting excuses not to interview Assange either when he was in Sweden, when he was on bail in London or after he entered the Ecuadorean embassy.
The ruling removes the Australia government's excuse for continuing inaction about Assange. In 2012, then-foreign minister Bob Carr moved heaven and earth to help get Australian International Criminal Court lawyer Melinda Taylor out of illegal detention in Libya. Now another international body has found that an Australian citizen is being arbitrarily detained and should be freed. At the time, Julie Bishop wondered why the Labor government hadn't intervened to help Assange in the same way that it intervened to help Taylor and other high-profile Australians detained overseas, saying "it is the inconsistency in the approach which is concerning me". Now she has the opportunity to make good on her own words. Assange's legal adviser Jennifer Robinson met with Foreign Minister Julie Bishop in London this morning after writing to brief her and the Prime Minister on the decision.
Also running out of excuses are the British and Swedish governments, whose joint policy of deliberately leaving Assange in legal limbo because of WikiLeaks' publications is now an increasing international embarrassment.
History will conclude that the critics of Labor’s GFC response 10 years ago were hopelessly wrong. By avoiding a sudden, deep recession, Australia also avoided testing out what its effect may have been on our democratic system.