Assange & the laws that don’t bind us

Tomorrow marks six years since Julian Assange walked into the Ecuadorian embassy to seek asylum. It is now over two years since the United Nations Working Group on Arbitrary Detention found that the detention of Julian Assange violated Articles 9 and 10 of the Universal Declaration on Human Rights, and Articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights.

On 18 August 2016 lawyers representing Mr Assange noted that ‘In February the U.N. found that his detention was unlawful and that the governments of the U.K. and Sweden must set him free and award him compensation. Although the U.N. issued a note to editors that its decision is ultimately “legally binding”, many reporters simply repeated the U.K. talking point, blasted out through the BBC, claiming it is not.’

More specifically the note from the United Nations Working Group on Arbitrary Detention stated that ‘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.’

Sweden and the United Kingdom are both parties to the International Covenant on Civil & Political Rights, and so is Australia.

Yet on 31 March 2017 documents released by the Department of Foreign Affairs and Trade pursuant to a Freedom of Information request included documents confirming that the position of the Australian government – and that of Foreign Minister Julie Bishop – is that ‘the opinions of the UN Working Group on Arbitrary Detention are not binding on States.’

On 14 June 2018 the Department of Foreign Affairs & Trade was asked whether the Government and/or the Department accept that any findings made by the United Nations Working Group on Arbitrary Detention are legally binding to the extent that its findings are based on international human rights norms which have been ratified by States. This is the expressed view of Christophe Peschoux, senior official at the High Commissioner for Human Rights.

Although the question was not case specific and did not mention Mr Assange a spokesperson from the Department of Foreign Affairs and Trade confirmed on 15 June 2018 that ‘Australia is fully committed to upholding international human rights law. The Working Group on Arbitrary Detention (WGAD) published its views in early 2016 on the matter of Mr Assange.  The opinions of the WGAD represent its interpretation and application of international human rights law. These opinions are not legally binding and cannot compel action by States.  The United Kingdom has expressly rejected the WGAD’s Opinion that their actions in relation to Mr Assange constituted arbitrary detention.’

Further clarification was sought to try to ascertain what Australia’s position would be if such findings related to any other Australian citizen. Again a spokesperson from the Department of Foreign Affairs and Trade confirmed that ‘Australia is fully committed to upholding international human rights law. The opinions of the Working Group on Arbitrary Detention represent its interpretation and application of international human rights law. These opinions are not legally binding and cannot compel action by States.’

This highlights how the Australian government says it is ‘fully committed’ but simultaneously cherry picks the human rights it wants to uphold or agitate for, depending upon what is politically advantageous to itself or its allies.  In Assange’s case this “commitment” has never been translated into any sort of action.

Australia enjoys the legitimacy and prestige it derives from participating in international processes, yet in Assange’s case it has deliberately been sitting on its hands for more than six years.  Even after the WGAD’s legally binding decision and Sweden dropping its criminal investigation without any charges being laid against Assange, it has failed to scrutinise and address the actions of the UK and Swedish governments in their treatment of an Australian citizen.  Our government’s inaction is a deliberate choice, made in the knowledge that unless it stands up for Assange as its citizen he will in all likelihood face extradition to the US where the conservative establishment hounds have long been baying for his blood.

Assange is bearing alone the brunt of a brutal and vindictive agenda of Western States.  Our country – his country – is complicit in the pursuit of that agenda by leaving him out in the cold.  Who will be next?

Copyright Kellie Tranter 2018

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