Commonly, critics discredited the substance of the decision and the mandate and composition of the WGAD. Arguing that it is not a court, but rather made up of ‘lay people, rather than lawyers’, they concluded that the decision has no binding force. The Assange legal team argues to the contrary: that the decision vindicates its position, and that the UK and Sweden are under an international obligation to follow it. The truth lies somewhere in between these positions, and is ultimately coloured by views on human rights and the system designed to protect them.

Some preliminary points

Julian Assange has been in the Ecuadorian Embassy since June 2012, after 550 days of house arrest and 10 days of confinement in Wandsworth prison. There is still no formal charge laid against him in Sweden (Assange No. 2). Mr Assange does not know the full case against him. He has, under domestic and international law, the right to be presumed innocent until proven guilty (see also on this right in Sweden: Stefan Lindskog, Chairman of Swedish Supreme Court, lecture at University of Adelaide 2013). He has previously co-operated with the prosecutorial investigation in Sweden, and has since offered to co-operate through the ‘mutual assistance’ process. He has also offered to co-operate fully if given a further guarantee by the Swedish authorities of non-refoulment to the US where he fears prosecution for his involvement in Wikileaks.

The UK is operating pursuant to the European Arrest Warrant (EAW) procedure, which is not without criticism. Two dissenting UK Supreme Court justices considered this EAW invalid under UK law because it was issued by a prosecutor and not a judge (Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] UKSC 22), and one dissenting Swedish Supreme Court judge considered its continued use disproportionate. Due to general political concern in the UK and pursuant to extensive parliamentary scrutiny (The European Arrest Warrant Opt-in, House of Lords Select Committee on Extradition Law, 1st Report of Session 2014–15), the EAW conditions have been tightened since the initial Assange ruling by the Supreme Court ([2012] UKSC 22). Two key requirements now apply: that the EAW is issued by a ‘judicial authority’ and that its use is ‘proportionate’. Despite the impact these safeguards could have, the UK government argued before the WGAD that they do not apply retrospectively to Assange.

The mandate and composition of the UN WGAD

Matthew Happold, Professor of Public International law at the University of Luxembourg, argues that the WGAD cannot ‘issue binding decisions’ but rather ‘opinions’, and the ‘most that can be said is that States are under a duty to take “due consideration” to Working Group’s recommendations, which is a rather weak obligation’. On a strict formalistic reading of international law this position is arguable. The WGAD is not the European Court of Human Rights (ECtHR), where the treaty structure imposes strong obligations on States to abide by its rulings.

But the fact that the WGAD is not a court, doesn’t mean that it is operating without a mandate under international law. To argue that would be to discredit the UN human rights system as a whole. Human rights arguments can only be made indirectly in the International Court of Justice, which, like the international criminal tribunals, does not have competence to address individual human rights complaints. Consequently, the UN depends almost entirely on non-judicial arrangements relating to individual and thematic human rights violations. The lynchpin of this non-judicial system is the Human Rights Council, whose members are elected by the General Assembly, and under which the WGAD operates.

The mandate of the WGAD is clearly substantiated under international law. It was created by the UN Commission on Human Rights Resolution 1991/42 as part of its special procedures responding to human rights violations (Economic and Social Council Resolution 1235 (XLII), 42 UN ESCOR Supp (No. 1) at 17, UN Doc E/4393 (1967)). Since then, the WGAD mandate has been developed under a series of resolutions (see para 1 of HRC Resolution 30/69), and now includes country visits, reports, and ‘investigating cases of deprivation of liberty imposed arbitrarily’ (Commission on Human Rights Resolution 1997/50).

The WGAD discharges its tasks according to Basic Principles which were adopted by the HRC in September 2015. These draw on the full body of international standards and good practice, underpinned by international human rights treaties, instruments and judicial decisions. The WGAD applies these in an independent and exacting standard of review to national authorities, precisely because it is instituted to provide the highest expression of the review of arbitrary detention that can be made by a human rights body.

The Basic Principles include directions on State implementation (para 117). These complement HRC Resolution 20/16 (A/HRC/RES/20/16). This ‘requests States to take account of the Working Group’s views and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have taken’ (para 3). The resolution also ‘encourages all States to give due consideration to the recommendations of the Working Group’ (para 6). Importantly, the ECtHR has recognised that ‘in view of the composition, functions, process complaints and investigative powers of this body, the WGAD should be viewed as ‘a procedure of international investigation or settlement’ within the meaning of Article 35 of the Convention’ (Peraldi v France, 2096/05, Decision 7.4.2009).

The composition of the WGAD flows from its mandate as a body under the UN ‘special procedures’ process which stipulate either that a person of specific expertise (‘special rapporteur’) or a ‘working group of experts’ shall conduct its task. Judges and academic specialists both meet this benchmark of expertise, which explains why WGAD has included former judges and professors of law. Like others, Marina Hyde in The Guardian refers to the current membership as ‘academics seemingly devoid of judicial expertise’. But this refrain misses the point of the special procedures system, which is based on expertise broadly understood and not only on judicial office.

To summarise, the WGAD is a body that has a designated place in the international human rights system to decide (as a body of last instance) on the quality of liberty and the conditions that make its deprivation legitimate or arbitrary. To this end, it applies international standards and good practice. Consistent with all non-judicial special procedures bodies, it deploys a broad concept of expertise. The official UK line on the competence of the WGAD is based on a formalistic description of international human rights law. Conversely, those who recognise the weight of the WGAD decision, respect the substantive moral foundations of international human rights law. We may disagree with the content of its decisions, but to deny all authority of the WGAD is to do wider damage to the system as a whole. What we have here is a conflict between national pride, and a long view appreciation of the conditions upon which international institutions rely, and upon which international co-operation and global society depends (see also: Elvira Dominguez Redondo, ‘The Assange Saga’). If Sweden and the UK cannot take this broader view, how can we expect non-democratic countries to do any better?

The WGAD decision

In essence, the WGAD had to decide two questions: first, whether there was a ‘deprivation of liberty’ as opposed to a ‘restriction of liberty’; second, whether that deprivation of liberty was ‘arbitrary’.

In response to the first question, the WGAD clearly accepted the argument that Assange’s conditions are not ‘self-imposed’. The decision fails to address this point directly. Its justification was based instead on ‘substantial failure’ of the authorities ‘to exercise due diligence’ in the ‘performance of criminal administration’ (para 98). The discussion does not explicitly endorse Assange’s argument that his residence in the Embassy ‘cannot be characterised as volitional’, nor does it directly refute the dissenting argument on the WGAD that Assange’s position is one of ‘self-confinement’. This is the weakness in the report which critics have exploited. On this, there are a few points worth making.

The line between a ‘restriction of liberty’ and ‘deprivation of liberty’ is finely drawn in European human rights jurisprudence ‘as a matter of degree or intensity, but not one of nature or substance’ (Guzzardi). As counterintuitive as it may seem, liberty deprivation doesn’t consist only in the easily recognisable conditions of state detention. The conceptual grounds for describing Assange’s conditions as a form of deprivation of liberty are arguable. This relates both to the length of time that Assange has remained in the Ecuadorian embassy, and his ongoing circumstances. Simply put, liberty must be capable of being realised in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice. The fact that Assange is resisting arrest doesn’t resolve this issue, as this would be to argue that liberty is a right contingent on his co-operation.

To argue that Assange has been ‘self-confined’, is to ignore the fact that he is not free to leave without further restrictions on his liberty. He fears extradition to the US and prosecution for his involvement in Wikileaks. Given the conviction and sentencing of Bradley Manning in the US, and recent revelations regarding Scandinavian-US extradition co-operation relating to Edward Snowden, it is understandable that Assange may wish to seek further reassurance. Notwithstanding, the Swedish authorities refuse to provide a guarantee of non-refoulment which responds to Assange’s concern.

To argue that Assange’s conditions are a ‘deprivation of liberty’ is not to argue that this deprivation is necessarily ‘arbitrary’. More is needed to show this. The most persuasive ground presented by Assange’s team was that of disproportionality: that there could have been another, less restrictive way of proceeding. Before issuing an EAW, the Swedish authorities could have followed the normal practice of interviewing Assange in a British police interview room. After Assange took residence in the Ecuadorian embassy they could have relied on ‘mutual assistance’ protocols, questioned Assange by video link, and given him the chance to respond to the allegations against him.

Whether or not you believe Mr Assange is guilty of rape, whether or not you think he is a self-publicist deliberately resisting arrest, the fact remains that the authorities could use less restrictive means without compromising the initial investigation into the allegations regarding his sexual conduct in Sweden. Even the majority of the Swedish court accepted that the EAW is subject to the proportionality test, and noted with approval that steps were being taken to interview Assange in London (Case No. Ö 5880.14 of 11 May 2015, see summary translation). Over time, this court may well move closer to the dissenting judgment of Justice Svante Johansson, that the conditions of the investigation have become disproportionate. This disquiet is shared by Anne Ramberg, head of Sweden’s Bar Association; Hans Corell, former Legal Counsel to the United Nations and Legal Adviser to the Swedish Ministry of Foreign Affairs; and Sven-Erik Alhem, former Swedish chief prosecutor.

Reasonable and judicial minds have differed on these issues, and indeed, support for the WGAD decision is growing (see commentary of Kirsty Brimelow QC; Dinah PoKempner, General Legal Counsel to Human Rights Watch; MIT Professor Balakrishnan Rajagopal; and Johann Ruben Leiss, University of Oslo). No doubt the initial outcry was coloured by views on the integrity of Assange himself. But human rights are not meant to favour the popular amongst us; they are meant to favour us all.

Contributor Dr Liora Lazarus, Associate Professor in Law at the University of Oxford