Yesterday, following nearly two years of deliberation, a prominent panel of the world's top legal body at the United Nations confirmed what many observers have long suspected: dissident publisher and founder of WikiLeaks Julian Assange is being arbitrarily detained by the UK and Swedish governments.
The 17-page opinion of the UN Working Group on Arbitrary Detention (WGAD) accords with the UN's Human Rights Council stated brief of "independent fact-finding and monitoring" of alleged human rights violations. The WGAD's decision is monitory democracy in action. Unsurprisingly, it sparked an instant global media event, with several million published reactions, including bitter backlashes in high circles.
The UK's foreign minister Philip Hammond tweeted that Assange is "a fugitive from justice, voluntarily hiding in the Ecuadorian embassy". No signs of mercy there, or in the reaction of the Swedish government. Ignoring the real danger of extradition to the US, and certain arrest by the London Metropolitan police, it said that Assange "is free to leave the Ecuadorian Embassy at any point in time". Australia's Science and Innovation Minister Christopher Pyne compounded the mockery by describing Assange as a troublemaking "no hero" responsible for putting "a whole lot of people's lives at risk".
Hypocrisy of democracies
The strange thing about these reactions to the WGAD decision is their inconsistency. Some would use the stronger word hypocrisy to grasp the odd fact that the Swedish and UK and Australian governments are themselves signatories to the Universal Declaration of Human Rights (Articles 9 and 10) and several articles of the International Covenant on Civil and Political Rights, on which the Working Group based its opinion. The inconsistencies run even deeper.
Think on these facts: Assange has never been formally charged with any crime. WGAD plausibly defines his arrest as dating from 7 December 2010: including today, two leap years and a 10-day period of solitary confinement, that's 1,887 days by my calculation, a much lengthier punishment than he would have received if the Swedish courts had issued charges, found him guilty and sentenced him to prison. During this period, the Swedish legal authorities have bungled badly. Not only have they failed to issue criminal charges. Since 2010, they have refused Assange's offer to provide evidence and denied him access to exculpatory counter evidence. They have thus voided his legal right to defend himself against rumours in a fair trial. That's not the end of the inconsistencies.
Rumour justifying arrest
The WGAD judgment notes that since July 2014 UK domestic law bars extradition where no decision to bring a person to trial has been made. In other words, bare accusations and rumours are no longer grounds for dragging someone across borders and into court. The WGAD further complains that in matters of criminal administration both governments have demonstrated 'a substantial failure to exercise due diligence' and consistently violated "the rule of proportionality".
The summary recommendations of the WGAD expert panel are far-reaching. They call on the Swedish and British authorities to end Assange's confinement, to return his passport and to grant him freedom of movement, with "an enforceable right to compensation". Assange expressed immediate delight at the ruling. "How sweet it is", he said, standing defiantly on the balcony of the Ecuador Embassy, glancing at a London sky he rarely sees. During a press conference held shortly after the WGAD ruling was formally published, he described the decision as much more than a moral victory. It is "legally binding", he said.
His legal team was similarly fulsome in its praise of the work of WGAD. The celebrated Spanish jurist Baltasar Garzón said the time for "indefinite procrastination" was over. Continued arbitrary detention would amount to a justiciable form of "torture and inhumane treatment". Melinda Taylor, who led Assange's case before the UN panel, concurred. She said the historic ruling showed "there's light at the end of the tunnel".
Fight over Assange's fate
The sad truth is there's probably another tunnel at the end of this moment of light. The hostile reactions of both the Swedish and UK governments suggest not only that legal appeals and battles are far from finished. Their swank and swagger potentially set a dangerous precedent. Their swashbuckling writes "a pass for every dictatorship to reject UN rulings", as Edward Snowden tweeted. The verbal bravado of the Swedish and UK governments equally confirms that the drawn-out drama featuring Assange centres ultimately on the vexed relationship between state power and the rule of law.
"Macht geht vor Recht," ("might before right") runs the old German proverb: in the real world of power, the ability of rulers to boss and bully others typically trumps ethical and legal standards. The governments desperate to get their claws into the anarchist flesh of Assange seem determined to follow that proverb. They are finally showing their hand. Put bluntly, they have opted for arbitrary power. In effect, they have declared themselves enemies of democracy as we know it.
Can they be persuaded to back down and draw back? Might they come to their senses, by embracing the legal principles to which they have freely given their consent? Will they desist from breaking their own laws? Or will their inaction add to the creeping lawlessness of our 21st-century world? We don't yet know. Just one thing is certain: politics, not law, will hereon decide whether Assange is released, finally freed from his rotten fate of miscarried justice and arbitrary detention.
John Keane is professor of politics at the University of Sydney and the WZB Berlin. Among his many works is the first full-scale history of democracy, The Life and Death of Democracy (Simon and Schuster 2009).