It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.
Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.
Background: The Working Group on Arbitrary Detention consideration of individual cases
The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.
While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.
Undermining human rights bodies: reactions to the opinion of the Working Group on Assange
It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.