“The Assange case is about setting a precedent”
“Press freedom and freedom of information in Western democracies would be severely restricted”
Interview with Professor Dr. Nils Melzer*, UN Special Rapporteur on Torture
Link to the original German version:
Link to the original German version:
Zeitgeschehen im Fokus: You are involved in the Julian Assange case. Why are you doing this?
Professor Dr. Nils Melzer: First of all, I should clarify that I am not Julian Assange’s lawyer, but I stand up for the rule of law and for the prohibition of torture. Of course, I defend victims of torture. However, in the case of Assange, I was initially even hesitant to get involved.
I think it has to do with the negative image that the press has spread about Julian Assange for years. Only after examining evidence and opinions written by doctors, experts and other UN bodies, I became aware of my own prejudices and took a closer look at the case. But as soon as you scratch the surface, a lot of dirt comes to light, a lot of abuse by authorities. The deeper I went into the matter, the worse it became. It became clear to me how much the case had been politicized, and so I finally decided to visit this man personally in prison to get an objective picture of him and his situation.
Did you visit him alone?
No, I was accompanied by two doctors specialized in examining torture victims. They are both very experienced and can distinguish very well between the consequences of torture and the stress symptoms caused by a normal detention regime. So in May 2019, the three of us visited Assange in Belmarsh prison. We had four hours at our disposal, and the doctors examined him independently from eachother. Afterwards, we all agreed: Assange showed the symptoms typical for victims of psychological torture.
How did that become apparent?
The detailed medical diagnoses are, of course, confidential. In essence, he showed extreme post-traumatic stress symptoms, but also measurable neurological and cognitive impairments, which are typical of the overall picture of detainees in solitary confinement. As the UN Special Rapporteur on torture, I am confronted with this pattern on a regular basis. The next question, of course, is where these symptoms come from, because they could theoretically have causes other than torture or ill-treatment. Assange was blocked in the Ecuadorian embassy for six years and was always exposed to the same environment, which with a high degree of probability must have caused the observed symptoms. My investigations revealed an overall picture of various, mutually reinforcing forms of abuse inflicted on Assange during this period, by all the authorities involved.
Which authorities were these?
One was the rape allegations by the Swedish authorities, which were never investigated in good faith, but were deliberately misused for the purpose of publicly demonizing Assange.
What do you mean by that?
The Swedish prosecution unlawfully disseminated these allegations through the mass media, suppressed exculpatory evidence, and gave Assange no opportunity to defend himself without simultaneously risking extradition to the U.S., where he would certainly be subjected to serious human rights violations. Behind the scenes, the Swedish authorities had done everything they could to avoid a trial in which he would have had to be acquitted for lack of evidence. Since he was in Ecuadorian asylum, they could conveniently blame it all on him. But the British authorities also systematically violated procedural law.
In which way?
Assange has been detained in a British high-security prison since April 2019, under very restrictive conditions which are comparable to solitary confinement and make it extremely difficult for him to have contact with his lawyers, his family and other inmates. This has further aggravated his health condition. This is neither necessary nor proportionate, since he is not a criminal, but is in pure extradition custody. When finding himself in the same legal situation, the Chilean ex-dictator Pinochet was placed under house arrest and accommodated in a London villa. The American extradition proceedings and the expulsion from the Ecuadorian embassy were also marked by serious procedural violations. It is rather obvious that this man’s rights have been systematically violated for ten years. These are not just the odd irregularities that can occur in any procedure. We are talking about countries like Sweden, Great Britain or the USA. These countries have highly developed legal systems in which such things do not happen by coincidence.
In this context, how should the decision not to extradite be judged?
It is not a gesture of humanity. The court has quite deliberately affirmed the logic of the US indictment for espionage regarding the publication of secret documents. Ultimately, the court refused to extradite him only based on a purported mental illness, which almost certainly would push him to commit suicide when facing American prison conditions. From a legal perspective, however, the British have confirmed everything that the USA wanted. The U.S. is primarily interested in setting a deterrent precedent for the future, according to which any journalist who publishes secret U.S. information can be prosecuted as a spy. And this ruling takes them a big step closer to that goal.
What then is the significance of adding that they would not extradite him because of his medical condition?
They probably hope that Assange’s lawyers will not appeal, so that the precedent set by this ruling will not be questioned as such. An American appeal, on the other hand, will of course only challenge that part of the ruling which refuses extradition on medical grounds. If the U.S. now issues guarantees that it would adjust detention conditions and provide Assange with a specialist doctor, then the appeals court could overturn the decision and still have him extradited, without reviewing the rest of the precedent ruling. That is the risk now.
What, if anything, can be done about it?
Assange’s lawyers would now have to cross-appeal themselves the other points of the first-instance ruling, so that these issues would also have to be discussed by the appeals court.
CouldAssange’s situation change with President Biden?
It could be that President Biden does not necessarily want an espionage trial, as this might cause a confrontation with the U.S. mainstream media, but could also be rejected by the US Supreme Court. He might be quite happy to leave things as they are with the first-instance British ruling. So he could withdraw the appeal, either now or at a later stage. Irrespective of this, he could still uphold the US indictment. Assange would then have to be released, but would not be able to leave the UK, because the U.S. could immediately demand extradition again from any other country. Assange would then have to spend his entire life under this sword of Damocles.
With this strategy, he would actually be crippled.
Yes, the U.S. could use this approach to prevent him from ever returning to his traditional profession as a journalist or to Wikileaks. Because if he did that, the U.S. could immediately request his extradition again. I do not believe that these four countries have invested millions in his persecution for ten years just to simply release him now for humanitarian reasons. Let us not forget that this is not a legal process, but a purely political one.
The accusations of “treason” and “rape” are, in your opinion, contrived?
Treason can be ruled out, because Assange never had a duty of confidentiality towards the USA and did not steal the published information, but published it just like other journalists. One has to be careful with the rape allegation. It may well be that he did not behave properly, I simply don’t know. But if you look at these allegations from the perspective of a lawyer, you can immediately see that they cannot possibly be proven beyond reasonable doubt, unless Assange would make a confession or had a relevant criminal record. Neither was the case.
So the allegations that were made can hardly be proven?
In both cases, criminal liability depends on factors for which there are simply no forensic means of investigation. Whether a condom was destroyed intentionally or accidentally, by whom and at what time, and whether a woman was asleep or not at the moment of intercourse, simply cannot be established beyond reasonable doubt in retrospect. The fact that Assange was branded a “fugitive rapist” for nine years, even though the investigating authorities knew very well that they ultimately would not be able to prove the allegations, demonstrates that they had something quite different in mind.
How did these allegations come about?
Each of the women had voluntary sexual intercourse with Assange and did not actually want to report a crime, but wanted to get him to take an HIV test. The authorities then convinced the women that something very bad had been perpetrated against them, which absolutely had to be prosecuted. The authorities knew, of course, that they would not be able to prove these allegations, but they wanted to make the story public in order to destroy Assange’s reputation. In doing so, they deliberately exposed also the women to media attention, and when the allegations could not be proven, the women were soon accused of lying – a quite perfidious strategy.
How were the allegations made public?
Within hours, the authorities leaked Assange’s name and so much information about the women to the press that they could not remain anonymous either. However, according to Swedish law, the names of those involved in a criminal investigation cannot be made public until there is a formal indictment.
How has Assange dealt with this?
He extended his stay in Sweden by a month, always cooperated fully with the police, and even obtained the prosecutor’s authorisation to leave the country two weeks before his departure. The authorities, on the other hand, waited until he left Sweden and then immediately accused him of trying to evade justice. Thereafter, they artificially kept the accusations alive while at the same time preventing the case from going to trial. Given that the Swedish investigating authorities knew that Assange would have to be acquitted for lack of evidence, they constantly procrastinated their investigation and never brought charges against him. In the media, however, the image of the suspected rapist evading trial was deliberately maintained for ten years.
How did Assange get into the Ecuadorian embassy?
Sweden submitted an extradition request to the British, which he evaded by fleeing to the embassy. He assumed that Sweden would informally pass him on to the United States. After all, Sweden had a relevant history and had already done that with other people before.
Would this have been that easy?
There is a passage in the extradition treaty with the U.S. that allows someone to be temporarily “borrowed” by the U.S. without an extradition proceeding and for an unspecified duration, an instrument called “temporary surrender”. Assange had always offered that he would come to Sweden if the authorities gave him a guarantee that they would not extradite him onward to the USA. But he has been denied that. That is the only reason he requested asylum in the Ecuadorian embassy. Ecuador did not protected him from prosecution for the sexual offences, but only from onward extradition to the US. So Assange never evaded the Swedish process.
One has the impression that Julian Assange is to be worn out because he revealed unpleasant things.
If journalists get reliable evidence of crimes and corruption by authorities, they will in all likelihood publish it. That is the function of the press. No one was endangered due to Assange’s publications, except perhaps the impunity of the criminals. Also, contrary to widespread allegations, he has made great efforts at censoring names. The accusation that he published everything without redactions is not true. Rather, a Guardian journalist in a book published the password that allowed access to all unredacted documents. As a result, Assange decided to publish the concerned unredacted documents also on WikiLeaks. That’s why he is being prosecuted today, so actually for redistributing material that was already in the public domain.
Has the Guardian journalist also been prosecuted?
According to what you have said we have to ask the question, how is it possible that legal principles have been so obviously broken here and, as you stated at the beginning, that one does not shy away from forms of psychological torture. Has the crackdown on people who oppose the mainstream or expose government machinations intensified in recent years?
In the aftermath of 9/11, we can see that torture has unfortunately become more prevalent again with the CIA’s activities at Guantánamo, the Abu Ghraib scandal, and so on. That is one side. But the fact that Western dissidents or whistleblowers are now being persecuted so aggressively is primarily the responsibility of the Obama administration. Obama has had more whistleblowers prosecuted than all previous US presidents combined.
Is this a US phenomenon?
It is a growing trend, especially in Anglo-Saxon countries. In Australia, for example, there is the case of David McBride, who drew the public’s attention to atrocious war crimes committed by the Australian army in Afghanistan and is now on trial for this, facing a heavy prison sentence. Already Chelsea Manning had originally received 35 years in prison. This is completely disproportionate. In our legal system, such a long sentence does not exist, not even for the worst violent criminals. But the people mentioned here are threatened with draconian punishments simply for telling the truth.
There really seems to be a methodology to this?
Assange is not the only one to have met this fate, of course, nor is he the worst torture case I have seen in my job. I have a dozen reports like this on my desk every day – always horrific stories. Beyond that, however, the Assange case is emblematically important because a precedent is being established here.
What would be the consequences?
Press freedom and the freedom of information in the West would be decisively restricted, and people who expose the dirty secrets of the authorities would be criminalized. Once that happens, we should have no illusions about where the journey will take us. So we have to ask ourselves, how do we deal with the truth, how transparent are our governments today? How much insight do we actually still have? Today, we supposedly have freedom of information everywhere, but as soon as you make a delicate information request, all you get are blacked-out pages. But if we are no longer allowed to know what our authorities are doing with the power they have been given, if our citizens’ queries become a purported security risk, and if anyone who questions the impunity of the powerful ends up being prosecuted, then the rule of law and democracy are also acutely endangered. It is therefore very important to prevent structures from being created that could become dangerous in the future.
Professor Melzer, thank you very much for the interview.
Interview Thomas Kaiser