Why extradition would mean a human rights violation.

For over a decade now, WikiLeaks publisher, journalist and whistleblower Julian Assange has been subject to persecution. He is currently in detention in the United Kingdom, possibly facing extradition to the United States, where he has been indicted on charges of espionage. In reality, Assange’s work has been that of a journalist and not that of a spy. Assange has been exercising his right to freedom of expression by exposing crime and wrongdoing at the highest level in both the political and the economic sphere. In this article, I seek to lay out why Julian Assange’s right to freedom of expression under the European Charter on Human Rights (ECHR) was and is being violated and why it would be in violation of international human rights law to extradite him or to keep him in custody any further.

The Freedom of Expression

The right to freedom of expression is provided for in numerous human rights treaties, charters, and covenants. In the following, I will give a brief overview on the right to freedom of expression as prescribed in the ECHR, which I think of as the most relevant human rights instrument regarding the case of Julian Assange.  Both Sweden and, even more importantly, the United Kingdom are states parties to the convention. Therefore, the governments and authorities of these countries are bound by the convention’s provisions.

Article 10 of the ECHR states that the right to freedom of expression includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”. This right being rather broadly defined, there are some conditions set in the convention under which it can be restricted to some extent. The restrictions must be “prescribed by law” and “necessary in a democratic society”. Furthermore, restrictions may only be imposed for the following reasons:

• Interests of national security
• Territorial integrity or public safety
• Prevention of disorder or crime
• Protection of health and morals
• Protection of the reputation or rights of others
• Preventing the disclosure of information received in confidence
• Maintaining the authority and impartiality of the judiciary

As will be further examined below, some of these reasons justifying a restriction on the freedom of expression are of high relevance to the case of Julian Assange.

According to the jurisdiction of the European Court of Human Rights (ECtHR), the restrictions applied must also be proportional. The interest of the government to keep certain information confidential must be weighed against the interest of the public to receive this information.

I must add that the right to freedom of expression is not only provided for in the ECHR but also in other instruments, for example the Universal Declaration on Human Rights. I chose to limit this article to the European Charter on Human Rights as a breach by states parties such as the UK or Sweden would already constitute a breach of international human rights law and would therefore be unlawful.

The case of Julian Assange

In the following, I will lay out a brief summary of the events involving Julian Assange and the infringement on his right to freedom of expression.

Julian Assange, born in 1971 in Australia, founded, together with others, the investigative journalism platform WikiLeaks in 2006.

WikiLeaks, under Assange’s leadership, went on to publish further classified documents and material which they received from anonymous sources, some of which have subsequently been found out, persecuted and prosecuted by government authorities. A very prominent of these sources is former United States Army soldier Chelsea Manning.

Probably the most widely known publication of WikiLeaks, titled “Collateral Murder”, is a video showing the arbitrary killing of civilians carried out by US soldiers that took place in 2007 during the US occupation of Iraq. The act has been described as a potential war crime by international law experts.

The publications of WikiLeaks do not only concern crime and wrongdoing by state actors, government officials and intelligence services but also corruption in the economic sector. While his critics have called Assange a “terrorist”, or even demanded his execution, many see his work as being of paramount importance and a key contribution to holding governments accountable.

An US criminal investigation against Assange on charges under the Espionage Act of 1917 has been ongoing since 2010. In the same year, charges of sexual misconduct were raised against the journalist. The charges were soon dropped due to a lack of evidence and the accusers indeed not wishing to raise sexual assault charges but only have Assange undergo and STD test. But the investigation was subsequently reopened by the head prosecutor, possibly due to US or UK pressure. An international arrest warrant was issued against Assange, at a time at which he (with explicit permission by the authorities) had already left Sweden for the United Kingdom. An extradition request was filed by Sweden and a procedure was initiated by UK authorities. Assange was allowed to walk free under conditional bail after bail was paid by supporters. He was not given assurance by Swedish authorities that he would not be extradited by Sweden to the US.

After his appeal against the extradition was dismissed, Assange sought refuge in the Ecuadorian embassy in London, in fear of being extradited from Sweden to the US, where he could face the death penalty. He was subsequently granted asylum and went on to live in the embassy. Assange would have faced immediate arrest for breaching his bail conditions, had he left the premises. Police were stationed day and night outside the embassy.

Swedish authorities intended to drop all charges and withdraw the extradition request in 2013 but were persuaded otherwise by UK prosecutors, who stated the case was not “just another extradition”. The United Nations Office of the High Commissioner on Human Rights (OHCHR) held in 2016 that Assange was under arbitrary detention since he was under effective house arrest and was under constant surveillance.

In 2017, a new government came to power in Ecuador, which sought a closer relationship with the US. This government being less sympathetic to Assange than the previous one, UK police were invited into the Ecuadorian embassy in April 2019 and Assange was arrested. He has since been detained in the UK. Assange was sentenced to 50 weeks in prison for breaching his bail, a sentence that has been described as disproportional by the OHCHR. During this time, the Swedish charges were dropped for good.

On the day of Assange’s arrest, he was indicted by US courts on charges related to espionage and hacking which carry (including subsequent charges) a total maximum sentence of 170 years in prison. An extradition request was filed and proceedings began. In January 2021, a UK court ruled that the extradition should be refused due to Assange’s concerning state of mental health. The US has appealed against this judgment. Assange is still in custody to this day.

A human rights violation

The actions conducted against Julian Assange, his extensive arbitrary detention and the charges brought against him are clearly in violation of his right to freedom of expression as prescribed by the ECHR and other human rights conventions, as Assange was hindered to freely impart information by means of charges, detention, effective house arrest and possible extradition. Should Assange be extradited to the US, he would be prosecuted and penalized for exercising this right.

I will now explain why the UK would be in breach of international human rights law, should they move on to extradite Julian Assange to the US.

Out of the reasons contained in Article 10 of the ECHR to justify an infringement on the right to freedom of expression, the interests of national security, territorial integrity or public safety and preventing the disclosure of information received in confidence come into question regarding the present matter.

Regarding national security, one might argue that the information published by Assange through WikiLeaks endangers national security through undermining for example secret operations by intelligence agencies or the war effort of the US in Iraq. In reality, the publications only show wrongdoing within and overreach by the organizations involved. Furthermore, it is highly questionable if the Iraq War has or ever had any positive effects on the national security of the UK or any other country. The same applies for territorial integrity or public safety.

Regarding the prevention of the disclosure of information received in confidentiality, while it is true that WikiLeaks did publish this information, WikiLeaks did not receive the information in confidentiality. The sources of the information are or were anonymous at the time of the publication.

An additional key factor as for the legality of a restriction on the right to freedom of expression is that the restriction has to be necessary in a democratic society. It is clear, that in the present case, the restrictions applied do not pass this threshold. The public knowing about their government’s conduct and being able to hold those in power accountable is a fundamental pillar of a democratic society. It is true that the interest of the public to receive certain information must be weighed against the interest of the state keeping this information classified. But in this case, the interests of the public to know about their government’s wrongdoing, clearly outweigh the interest of secrecy.

An extradition of Julian Assange would therefore constitute a violation of the right to freedom of expression as prescribed by the European Charter on Human Rights, as did and do his arbitrary detention and de-facto house arrest. While Sweden has already dropped its charges against Assange, the UK must, in compliance with the ECHR, deny the US request for extradition and let Assange go free.