In a major legal victory for international human rights law, the UN acknowledged the risk of extradition to the United States faced by journalist Julian Assange. This decision marks a significant development in the law of detention, and has enormous consequences not only in Mr. Assange's case, but also for the protection of whistleblowers and refugees worldwide.
The UN Working Group on Arbitrary Detention (WGAD), the UN's final authority on detention, issued a decision that Sweden and the United Kingdom are arbitrarily detaining Mr. Assange and must “ensure his safety.” That conclusion was reached after a 16-month independent investigation which took into account all evidence submitted by Sweden and the UK.
Mr. Assange has been confined to the Embassy of Ecuador in London for over three years due to a risk of persecution and cruel, inhumane and degrading treatment in the United States. That risk arises from ongoing attempts by the U.S. government to prosecute Mr. Assange for his work as publisher and editor-in-chief of WikiLeaks. CCR applauded Ecuador's decision to grant Mr. Assange asylum in light of his circumstances. Shamefully, to this day, the governments of Sweden and the UK still refuse to recognize Mr. Assange's right of asylum or offer any guarantee that they will not extradite him to the United States. The WGAD admonished both countries, holding that “the grant [of asylum] itself and the fear of persecution on the part of Mr. Assange based on the possibility of extradition, should have been given fuller consideration.”
In our briefs to the WGAD, we argued that someone is effectively detained when they are forced to choose between confinement and running the risk of persecution. That is the precise dilemma faced by Mr. Assange, who would lose the protection of his asylum if he stepped out of the embassy. The risk of extradition is the 'fourth wall' for the now repudiated claim that he is free to leave the embassy. As a result, it has been years since Mr. Assange has had access to proper medical care, sunlight, or the ability to see his family.
The WGAD's decision in Mr. Assange's case sets an important precedent for refugees. In our submissions we analogized the situation faced by Mr. Assange to that of asylum-seekers in detention facilities. States may claim that asylum-seekers held in subhuman conditions are not 'detained' because they are technically free to leave for their home country, but this is a non-choice, since the home country would persecute the asylum seeker.
The WGAD decision could mean that so-called 'open' facilities like the Israeli Holot, deep in an Israeli desert, and the Australian-run center in Nauru are legally equivalent to closed prisons. This concept of detention builds on arguments already adopted by many sources of international law, including the European Court of Human Rights, the UN High Commissioner for Refugees, and WGAD case law. We expect this decision to be cited in future refugee detention challenges.
The decision is also resounding victory for freedom of expression as it recognizes that whistleblowers and publishers need protection, and acknowledges the coercive effect of an extradition threat. The WGAD announced today that the “Republic of Ecuador granted asylum because of Mr. Assange’s fear that if he was extradited to Sweden, he would be further extradited to the United States where he would face serious criminal charges for the peaceful exercise of his freedoms.” The decision is a major milestone in the growing international consensus about the need to protect those who promote the publication of truth about government. Last October, the European Parliament voted to protect whistleblower Edward Snowden from extradition to the United States. That same month, the UN envoy charged with safeguarding free speech around the globe issued a report calling on governments to protect whistleblowers and confidential sources rather than punishing them.
For years, Mr. Assange has lived without access to proper medical care, sunlight, or the ability to see his family. Nevertheless he has been accused of bringing this situation on himself. This unfounded myth has now been demolished on the basis of a detailed, evidence-based decision.
We now look to the governments of the UK and Sweden to honor their international law obligations and implement the WGAD decision without delay.
Melinda Taylor is a human rights attorney and External Defence Counsel at the International Criminal Court.
Carey Shenkman is a human rights attorney and former Ella Baker Fellow working for Michael Ratner.
Michael Ratner is President Emeritus of the Center for Constitutional Rights.
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