The Working Group on Arbitrary Detention and the Julian Assange Case

A few years ago, I commented on Julian Assange’s bid to win “diplomatic asylum” from Ecuador. As my post indicated, I’m not really sympathetic to Mr. Assange’s legal plight, and my view on that hasn’t changed since 2012. The case was recently in the news again as the UN’s Working Group on Arbitrary Detention released an opinion concluding that Mr. Assange was being arbitrarily detained. Leaving aside sympathy or lack of sympathy for Mr. Assange, I really cannot see how the Working Group could have reached its decision or what kind of sense the decision makes.

The key facts, to my mind, are these: the Swedish government issued a warrant for Mr. Assange’s arrest on the basis of complaints of rape and sexual molestation. Because Mr. Assange was in the UK, the Swedish authorities applied for extradition. Mr. Assange was free on bail during the UK proceedings, but after the UK Supreme Court ruled against him, he skipped bail (rendering several of his supporters liable to forfeit £ 93,500) and sought refuge in the Ecuadoran embassy in London. The Ecuadoran government later said it had granted him diplomatic asylum. He has been in the embassy ever since, and he is subject to arrest if he leaves.

Suppose that instead of hiding in plain sight in the Ecuadoran embassy, Mr. Assange had instead become a real fugitive, moving from one friend’s country house to another, one step ahead of the authorities, like a recusant priest being moved from one priest-hole to the next. Could anyone claim he was being detained? The situation in which Mr. Assange has put himself arises only because, instead of behaving like a more traditional fugitive, he chose to seek refuge in the Ecuadoran embassy, and then to claim that he was being prevented from leaving!

The dissenting member of the working group, Vladimir Tochilovsky, recognized this point:

In fact, 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.

What I find most distressing about the opinion is that it doesn’t seem to take on this obvious and important issue. The opinion seems to me to focus on arbitrariness to the exclusion, really, of the question of detention.

I’m not claiming any special expertise here, but it does seem to me that you don’t need a lot of expertise to recognize that, as the Foreign Secretary has said, the decision is ridiculous.

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