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torsdag 18 februari 2016

The Assange case and the integrity of the UN’s Special Procedures for Human Rights

This is the really serious crime: 16 000 children under five still die every day, while 1645 billionaires own about as much as half the world’s population. Meanwhile, the fate of one man in an embassy in London continues to stir our interest.
My engagement with the Assange case was prompted when a number of lies half-lies about extradition from Sweden to the US were circulated, and no journalist seemed to bother to check their veracity. Since then, I have been called again and again by journalists, and have answered questions with growing reluctance, sometimes accompanied by clarifying blogposts.
I now take up the pen again, since I care about the integrity of the UN special procedures (see below). These 55 different procedures under the UN Human Rights Council consist of working-groups, special rapporteurs and independent experts, assigned to deal with a particular situation (like Eritrea or Myanmar) or a particular human rights topic (like torture or human rights and terrorism). They perform important work and should be listened to, but they have not been given the authority to settle disputes, nor to take any other binding decisions. The special procedures are quite progressive (which often suits my taste – I have frequently referred to the work of for instance special rapporteurs Olivier de Schutter, Martin Scheinin and Pablo de Greiff) but they are not always to the liking of governments. Whatever authority they have depends entirely on the expertise and good judgment of the incumbents. I am therefore slightly concerned by the latest developments in Geneva in the Assange case. 
On 3 February, the Working Group on arbitrary Detention gave an opinion on the Assange case. Prompted by media requests, I commented on the opinion: “… Assange has been free to end his stay and surrender to the Swedish justice (which incidentally is ranked No 3 globally in terms of the rule of law … It is therefore difficult to say that his liberty has been ‘deprived’, and whoever suggests otherwise has the burden of proof. Whether any judicial or quasi-judicial body has previously assessed a situation similar to Assange’s is not known to me, and the WG does not refer to any previous practice of any other body for its surprising conclusion….” To be brief, the working group explained why the measures against Assange might have been arbitrary, but they did not explain in what way he was deprived of liberty.
On 15 February, the UN Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, who is also a professor of international law at the Geneva School of Diplomacy, offered his view on what he called a “ruling” in the Assange case, in which he called upon Sweden and the UK to observe this recommendation.
The mandate of this independent expert (IE) relates to Article 28 in the Universal Declaration of Human Rights, which states that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights can be fully realized (and which, incidentally, is the topic of my latest published article). Hence, it is about how structural injustices and similar factors can prevent the enjoyment of human rights, and his two latest, and interesting reports concern trade and investments.
It is, however, not self-evident that it is within this mandate to engage in a criminal justice case. In his statement, IE de Zayas implicitly justified his intervention by recalling “that a just and sustainable international order requires that States respect, promote and fulfill their human rights treaty obligations and observe the recommendations of human rights treaty-bodies, working groups and rapporteurs.” (It should be noted here that if the Assange case had been submitted to the Eueopean Court of Human Rights or the Human Rights Committee -- the treaty body created through the UN International Covenant on Civil and Political Rights -- the ensuing decision would have carried considerably more authority, and would surely also have been more carefully reasoned.)
De Zayas further “called on the Governments of the United Kingdom and Sweden to accept and implement without delay the findings and recommendations of the UN Working Group on Arbitrary Detention in the case of Julian Assange.” Since prosecutors and courts are independent of the government, it is not at all clear how the Swedish Government should “implement” the findings of the UNWG. While a state has a corporate responsibility for all actions of its public organs, in every state where the rule of law prevails, the division of competences makes it impossible for the government to intervene in judicial procedures. 
Professor de Zayas also found that “[t]he international order is strengthened when all States comply not only with binding treaty obligations, but also with the recommendations of UN bodies.  Not only ‘hard law’ but also ‘soft law’ commitments and human rights pledges should be given effect.” De Zayas further holds that “[i]f a State is truly committed to a philosophy of human rights, it cannot limit the enjoyment of those rights by engaging in narrow pedestrian positivism or invoking technical distinctions or loopholes in an attempt to escape ethical obligations.” 
This cannot pass without a retort. First of all, states have never deferred sovereignty to Professor de Zayas or any other UN special procedure. Unfortunately, states are quite protective of their independence and accept the jurisdiction of international courts and other organs only after careful consideration, if at all. If UN special procedures were to be given mandatory powers, I am sure that the selection process in Geneva would be quite different from what it is today. 
More importantly, though, this statement to show a quite simplistic view of human rights. Human rights are never given (what are “ethical obligations”?) and they are almost never absolute. Human rights may be limited to protect other human rights or for legitimate public purposes, such as the protection of law and order. In this case, it is not only the freedom of movement of Mr Assange that is at stake, but also the right to remedy of two alleged victims of sex crimes, as well as the general interest in upholding the prohibition of rape.
In addition, Professor de Zayas seems to be misinformed about the facts of the Assange case when he states that “[w]histleblowers are key human rights defenders in the twenty-first century”. While I fully agree with this assertion, it is malplacé in the context of the Assange case. First: Julian Assange is under an arrest warrant as a rape suspect, not as a whistleblower. (There is a perception in some circles that the rape allegation is a part of a conspiracy to have Julian Assange extradited from Sweden to the US. I have addressed legal aspects of that view here.) Second: Julian Assange is not a whistleblower. Chelsea Manning is a whistleblower, Edward Snowden is a whistleblower, but Julian Assange is a publisher.
Lastly, I have to mention an event close to home (and this is what really pushed me over the edge to write this blogpost): In a tweet the day before yesterday, my colleague Mark Klamberg asked if the UN Human Rights Office could “inform @Alfreddezayas that the arrest warrant confirmed by Supreme Courts of Sweden&UK concerns rape, not whistleblowing?” As noted above, that was a slightly sarcastic but totally justified question. As a response, Wikileaks accused Mark Klamberg of “strange trolling”, i.e., to deliberately provoke “readers into an emotional response or of otherwise disrupting normal on-topic discussion” (Wikipedia). That characterization is perhaps surprising, coming from a body that has done much to promote the freedom of information and public debate, but Wikileaks is not a public institution and is free to write whatever they want. It is more surprising that Professor de Zayas, who does have an international public office, retweeted and even “liked” this defamatory characterization of an honest and serious legal scholar.
Can we now all go back to minding the really serious problems, please?

fredag 5 februari 2016

Brief Comments on the Opinion of the UN Working Group on Arbitrary Detention on Julian Assange’s case

The Working Group finds that Assange’s stay at the Ecuadorian Embassy constitutes an arbitrary deprivation of liberty, inter alia because, as far as acts of Swedish authorities are concerned, the prosecutor did not act promptly to speed up the investigation. Questions regarding criminal procedure are not within my field of expertise, but I want to comment on the working group’s (WG) conception of “detention” (the word used in the press release) and "deprivation of liberty".

In order for a deprivation of liberty to be arbitrary, the WG for first of all needs to establish that it was in fact a deprivation of liberty. Unfortunately, the WG never discusses that issue (see para 98). Perhaps the Working Group has seen Assange’s surely painful stay on the embassy’s premises as a sort of de facto house arrest. However, Assange has been free to end his stay and surrender to the Swedish justice (which incidentally is ranked No 3 globally in terms of the rule of law This is, of course, fundamentally different from a real house arrest, which in essence means the opposite, namely that the person involved is not allowed to leave the house. It is therefore difficult to say that his liberty has been “deprived”, and whoever suggests otherwise has the burden of proof. Whether any judicial or quasi-judicial body has previously assessed a situation similar to Assange’s is not known to me, and the WG does not refer to any previous practice of any other body for its surprising conclusion.

One of the group's five members dissented and another one did not participate in the decision, because she shared nationality (Australian) with Assange. The decision is thus backed by three of the group's five members.

The Working Group does very valuable work and its reports and advice should be taken seriously. However, the group has no decision-making power, and therefore, its advice must be assessed on the weight of the arguments that they present. In my opinion, this opinion does not carry great weight, for the reasons stated above. A judgment of the European Court of Human Rights (bindning as such) or an opinion of the UN Human Rights Committee has much greater authority.

At any rate, the Swedish Government cannot order the prosecutor or a court to terminate the Swedish arrest warrant and detention order, since judicial authorities are independent in Sweden (as in many other countries). Those authorities, as state organs, should take human rights into account. That means that they should seriously consider the working group's opinion and assess whether the arguments in the opinion are convincing or not. As said, the WG's reasoning is not convincing, but it cannot be ignored.