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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

3 thoughts on “The Working Group on Arbitrary Detention and the Julian Assange Case

  1. Normally it is your reviews on Lago Agrio that interest me, but this case is also interesting, particularly as an English person whose taxes are being used to guard Ecuadors embassy in case he tries to leave. I’m sure no one suspected when he walked into their embassy all that time ago, that he would still be there now, least of all Mr Assange.

    When I heard on the news that the UN had found Julian Assange to have been ‘arbitrarily imprisoned’, whatever that means, I was a bit surprised, for the same reasons you cite. I had thought that you may be able to cast some light as to how they arrived at that decision, and it’s maybe strangely reassuring that you are also bemused by it.

    That said, in the underlying case I think Mr Assange has a point. He claims to be in fear that if he allows himself to be extradited to Sweden, that he will quickly find himself in the states on charges relating to wikileaks. I think he is correct. The charges against him in Sweden look a bit suspect, and I think they are a means to an end.

    1. Peter, thanks for the comment. I don’t think my reaction is unusual: folks who know much more about this area of law than I do (e.g., Matthew Happold, Julian Ku) are also critical, though Liora Lazarus is more sympathetic to the opinion.

      I think Mr. Assange’s fears are probably fantasies, and certainly his fears about torture, waterboarding, etc. I personally question whether the United States will ever charge him with a crime. But in any event, I don’t know why we should dismiss or discount the Swedish rape charge, nor do I think we can expect Sweden to make the kind of commitments Assange says he wants in advance of any request for extradition or even any indictment from the United States. It takes a special kind of chutzpah for someone who skipped bail after having the full measure of due process in England and then holed himself up in a foreign embassy to be making demands, but you may feel differently.

      1. I don’t think we are far apart on this, and I’m not sure how much sympathy I have with Assange, who has after all, put himself in this position. But I do think the charges against him in Sweden look a bit flaky, and I don’t think the UK government would normally be spending £millions each year guarding the embassy on the basis of these allegations alone.

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