Friday 5 February 2016

Where the media get the UN's legally binding Julian Assange ruling entirely wrong.

Articles published in the popular press on the Julian Assange case, which was recently decided before the relevant United Nations body, have been both legally and morally problematic. They not only inaccurately portray the nature of international law, they also create false impressions on aspects of the decision which adhere firmly to settled procedure. They also ignore that the body decides matters where freedom of movement is denied, which is how the body defines arbitrary detention.

The decision of the body is neither controversial or unexpected, nor is it much different from previous decisions, which in most cases have involved cases where outspoken individuals are arbitrarily detained, whether de facto or in an official sense. A de facto act is an act which in its effect is the equivalent of the legally acknowledged alternative to it. For example, threatening to arrest a person if they leave their home could still be construed as house arrest in the de facto sense, even if the house arrest is not officially called what it is. Exchange a house for an Ecuadorian embassy, and you have the logic of the Working Group, in the Assange matter.

You will notice that many articles, on the United Nations Working Group on Arbitrary Detention's decision, contain a phrase that they do not attribute to any legal expert. These newspaper articles state that the Working Group's decisions are not legally binding. Unfortunately, this is a case of gross journalistic incompetence. Those legally literate voices who have spoken up have confirmed that the finding of the Working Group, is binding in international law, to the same extent that decisions of other similar bodies are binding.

Britain and Sweden have both an international and a European duty and obligation to obey the findings of the commission and set Assange free. For instance, the Council of Europe's European Court of Human Rights, which is the regional court for human rights in Europe, holds the decisions of the working group to be authoritative. The working group itself exists as an agent of the United Nations' Office of the High Commissioner for Human Rights, and is tasked with investigating and reporting on arbitrary deprivations on the right to freedom of movement.

The UN Working Group decision on Julian Assange is an opinion by authorised human rights experts. This is the sort of opinion nations generally follow. Much like decisions of the International Court of Justice, the decision interprets binding international laws, and does so with international moral authority. International Law interpretive bodies and tribunals all work in the same way. They give legal opinions, these opinions are binding internationally, but generally not directly in local law. Obviously, international tribunals cannot enforce the decisions they give, but this does not stop their decisions from being legally binding.

Britain should adhere to the decision, its refusal is a serious, and public breach of international human rights laws. Usually, failure to adhere to international law results in either moral condemnation from other nations, sanctions, or other means of soft diplomatic enforcement. In this case, the legal experts give opinions which are seen as binding by the European Court of Human Rights, which might see this body becoming the next tribunal Julian Assange approaches to beg for his human rights to be enforced.

The negligence of media in this matter is astonishing, given that the press release announcing the decision gave the following guidance to media:


'The Opinions of the Working Group on Arbitrary Detention are legally-binding to the extent that they are based on binding international human rights law, such as the International Covenant on Civil and Political Rights (ICCPR). The WGAD has a mandate to investigate allegations of individuals being deprived of their liberty in an arbitrary way or inconsistently with international human rights standards, and to recommend remedies such as release from detention and compensation, when appropriate.

'The binding nature of its opinions derives from the collaboration by States in the procedure, the adversarial nature of is findings and also by the authority given to the WGAD by the UN Human Rights Council. The Opinions of the WGAD are also considered as authoritative by prominent international and regional judicial institutions, including the European Court of Human Rights. '

Here is the full press release from the United Nations' Office of the High Commissioner for Human Rights, which affirms what I have stated, that the Julian Assange decision is legally binding on Great Britain and Sweden in International Law:

Media, furthermore, stated that the decision was only by three of five panel members, because the Australian member was recused and the Ukrainian member ruled in a minority decision that there was no arbitrary detention.

The rules of the Working Group clearly state that a member deciding a matter involving a citizen of their own nation, must recuse themselves from that matter. In such a matter, the Working Group decides based on the opinions of the four remaining judges. This is the reason for the recusal, a reason which many in media neglected to mention.

It is also standard practice for minority decisions (which are common), to be published alongside the decision of the majority. There was no malice on the part of the Ukrainian member, in his choice to disagree with the majority decision, and his dissent does not make the decision of the majority any less binding. Minority decisions are common in most jurisdictions, including amongst international law panels.

Finally, it needs to be noted that Sweden issued their arrest warrant purely in order to question Julian Assange, and the arrest warrant was not a judicially issued warrant for arrest of a person charged with a crime. Julian Assange has stated that he is prepared to be interviewed by the prosecutor from the Ecuadorian Embassy, whether via means such as skype, or in person, by the assistance of embassy officials. This is standard practice in Swedish cases, and has oddly been rejected by Sweden in this specific case. British law currently, according to Assange's legal team, demands that European Warrants not issued by judicial officers not be enforced in Britain. They assert that the Assange warrant is in fact not a judicial warrant, and have questioned why Britain continues to pursue Assange, despite the change of law which was effected to not allow non-judicial warrants to be executed for means of extradition.

Many media articles also entirely avoid the argument that Assange will be extradited to America to face possible torture and indefinite detention if not death, for his publishing of the Bradley Manning documents. They portray it as a matter of a rapist avoiding justice. Perhaps Julian Assange is in fact a rapist, but he has yet to be charged and has been refused the right in natural justice to offer his version of events to Swedish police. Without the larger background to the story, and the important factor of Assange not having been charged, their portrayal cannot be seen as anything but bizarre, given that the American desire to extradite Assange from Sweden is central to the ruling of the UN body in question.

This article does not constitute legal advice, and is provided for informative and journalistic purposes. For legal advice, please contact a lawyer with specific details of your personal legal issue.

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