Nils Melzer on the Julian Assange Case
Reposted from German publication into English, Twitter link here:
“A precedent is to be established for Julian Assange”
Thomas Kaiser, current affairs in focus / 02/12/2021 The UN special rapporteur on torture Nils Melzer says that the freedom of information of the western public is under threat.
Professor Dr. Melzer, you are involved in the Julian Assange case. Why do they do that?
Professor Dr. Nils Melzer First of all, I have to make it clear that I am not Julian Assange’s lawyer, but that I advocate the rule of law and the prohibition of torture. Of course I defend the victims of torture. In the Assange case, however, I was initially reluctant to get involved.
I think this has to do with the negative image that the press has spread of Julian Assange for years. However, after reading the first evidence and reports from doctors, experts and other UN bodies, I became aware of my own prejudices and took a closer look at the case. As soon as you scratch something on the surface there, a lot of dirt comes to the fore, a lot of abuse by authorities. The deeper I went into the matter, the worse it got. I realized how politicized the case was, 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 who specialize in examining victims of torture. They are both very experienced and can very well distinguish between the consequences of torture and the stress symptoms of a normal detention regime. So in May 2019 the three of us visited Assange in Belmarsh prison. We had four hours and the doctors examined him independently. After that we all agreed: Assange did indeed show the typical symptoms of victims of psychological torture.
How did that show?
The detailed medical diagnoses are of course confidential. But basically it was about extreme post-traumatic stress symptoms, but also measurable neurological and cognitive impairments that are typical for the overall picture of isolation prisoners. As a torture reporter for the UN, I am regularly confronted with it. The next question, of course, is where these symptoms come from, because theoretically they could have other causes than torture or ill-treatment. Assange was blocked in the Ecuadorian embassy for six years and always exposed to the same influences, which must therefore have caused the symptoms observed with a high degree of probability. For this time, my investigations gave an overall picture of various,
Which authorities were they?
On the one hand, there were the Swedish authorities’ allegations of rape, which were never investigated in good faith, but were deliberately used for the purpose of publicly demonizing Assange.
What do you mean?
The Swedish Prosecutor’s Office illegally disseminated these allegations through the mass media, suppressed exculpatory evidence and failed to give Assange an opportunity to defend himself without risking extradition to the United States, where he would certainly face serious human rights violations. The Swedish authorities had done everything behind the scenes to prevent a trial in which he would have been acquitted for lack of evidence. Since he was in the Ecuadorian asylum, all this could easily be blamed on him. But the British authorities have also systematically violated procedural law.
With which procedure?
Assange has been in a British maximum security prison since April 2019, under very restrictive conditions, which are comparable to solitary confinement and which make contact with his lawyers, his family and other inmates extremely difficult. This made his health even worse. That is neither necessary nor proportionate, because he is not a criminal, but is in custody purely for extradition. The Chilean ex-dictator Pinochet was placed under house arrest in a London villa in the same legal situation. The American extradition proceedings and expulsion from the Ecuadorian embassy were also marked by serious procedural violations. You can see very clearly that this man’s rights have been systematically violated for ten years. These are not just the irregularities that can occur once in every procedure. We are talking about countries like Sweden, Great Britain or the USA. These countries have sophisticated legal systems in which this does not happen by accident.
How is the decision on non-extradition to be assessed in this context?
It is not a gesture of humanity. The court deliberately upheld the logic of the US criminal case for espionage and the publication of classified documents. In the end, the court wrote that the only reason he was not being extradited was because he was mentally ill and the American prison conditions would therefore most likely drive him to suicide. From a legal point of view, however, the British have confirmed everything the US wants. The USA is particularly interested in having a deterrent precedent in the future, according to which every journalist who publishes secret information from the USA can be prosecuted as a spy. And with this judgment they have come a big step closer to this goal.
What then is the meaning of the addition of not extraditing him because of his state of health?
It is likely hoped that Assange’s attorneys will not appeal so that this precedent judgment is not challenged as such. An American appeal, on the other hand, will of course only challenge the part of the judgment that denies extradition on medical grounds. If the Americans now guarantee that they will adjust the conditions of detention and provide Assange with a specialist doctor, then the appeals court could overturn the decision and still have him extradited without questioning the rest of the precedent judgment. Now that’s the risk.
What can you possibly do about it?
Assange’s lawyers would now have to appeal the other points of the first instance judgment themselves, so that these issues must also be discussed by the appeals court.
Could the situation for Assange change with President Biden?
It could be that President Biden does not necessarily want an espionage trial, as this risks a conflict with the major US media but also a rejection before the Supreme Court. Perhaps he would be very happy if the British judgment of first instance stayed. So he could withdraw the appeal, either now or at a later stage. Regardless of this, he could still uphold the indictment in the USA. Assange would then have to be released, but he could not leave the UK because the US could demand extradition immediately in any other country. Assange would then have to spend his whole life under this sword of Damocles.
With this strategy he would actually be paralyzed.
Yes, the US could prevent that he could ever go back to his traditional job as a journalist or to Wikileaks. If he did that, the US could demand extradition again immediately. I hardly believe that these four states have invested millions in persecuting him for ten years only to just let him go on humanitarian grounds. You have to be aware that this is not a legal, but a purely political process.
The allegations of “betrayal of secrets” and “rape” are, based on your remarks, constructed?
You can rule out betrayal of secrets, because Assange never had a duty of confidentiality towards the USA and did not steal the published information, but published it like other journalists. You have to be careful with rape. It could be that he didn’t behave properly, I don’t know. But if you listen to the two allegations as a lawyer, you immediately see that they cannot be proven, unless Assange would make a confession or had a relevant criminal record. Neither was the case.
Then the allegation put forward can hardly be proven?
In both cases, the criminal liability depends on factors for which there is simply no evidence-based investigation. Whether a condom was intentionally or accidentally destroyed, by whom and at what point in time, and whether or not a woman slept at the moment of intercourse, can simply not be ascertained with sufficient legal certainty in retrospect. The fact that Assange was branded a “fugitive rapist” for nine years, even though the investigating authorities knew they would not be able to prove the allegations in the end, shows that they were up to something completely different.
How did the ads come about?
The women had voluntary sexual contact with Assange and actually did not want to advertise, 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 here, which must now be prosecuted. The authorities knew, of course, that the evidence would not succeed, but they wanted to make it public in order to destroy Assange’s reputation. They then deliberately exposed the women to media interest, and because the allegations could not be proven, the women were soon accused of lying. That is very perfidious.
How did all this get to the public?
The authorities leaked Assange’s name and so much information about the women to the press within hours that they could not remain anonymous either. According to Swedish law, however, the names of those involved in a criminal investigation cannot be published until charges are brought.
How did Assange deal with it?
He extended his stay in Sweden by a month, always cooperated fully with the police and even obtained an exit permit two weeks before his departure. The authorities, on the other hand, waited for him to leave Sweden and then immediately accused him of trying to evade jurisdiction. After that, the allegations were artificially kept alive and at the same time prevented a trial. Since the Swedish investigative authorities were aware that Assange should have been acquitted due to the lack of evidence, they constantly delayed the proceedings and never brought charges. In the media, however, the image of the suspected rapist who eludes the trial was deliberately maintained for ten years.
How did Assange get into the Ecuadorian embassy?
Sweden submitted an extradition application to the British, which he evaded by fleeing to the embassy. He assumed that Sweden would informally pass it on to the USA. Because Sweden has a relevant history and had already done that with other people.
Would it have been so easy?
There is a passage in the extradition contract with the USA that allows someone to be temporarily “loaned out” to the USA without an extradition process, which means “temporary surrender”, whereby the duration of this loan is not limited. Assange had always promised that he would come to Sweden if the authorities gave him a guarantee not to extradite him to the USA. But he was denied that. That is the only reason why he asked for asylum at the Ecuadorian embassy. Ecuador did not protect him from the prosecution of the sex offense, only from extradition to the USA. So Assange never evaded the Swedish trial.
One has the impression that Julian Assange is to be finished off because he has uncovered something unpleasant.
If journalists get reliable evidence of crime and corruption from authorities, they are likely to publish it. That is also the function of the press. As a result of Assange’s publications, no one was endangered, except perhaps impunity for the criminals. Contrary to popular claims, he also went to great lengths to censor names. The accusation that he published everything unprotected is not true. But a Guardian journalist published the password in a book that allowed access to all censored documents. As a result, Assange decided to publish the affected documents uncensored at WikiLeaks. That’s why he’s being persecuted today, actually for the redistribution of material
Was the Guardian journalist followed?
After what you said, the question arises as to how it is possible that legal principles have been so obviously broken here and, as you said at the beginning, not shrinking from forms of psychological torture. Has the crackdown on people who oppose the mainstream or expose machinations of governments intensified in recent years?
In the aftermath of 9/11 we can see that torture was unfortunately increasingly practiced again with the activities of the CIA in Guantánamo, the Abu Ghraib scandal, etc. That is one side. But the fact that Western dissidents and whistleblowers are being persecuted so aggressively is primarily the responsibility of the Obama administration. Obama has persecuted more whistleblowers than all previous US presidents combined.
Is that a phenomenon in the USA?
It’s an increasing trend, especially in the Anglo-Saxon countries. In Australia, for example, there is the case of David McBride, who drew the public’s attention to the cruel war crimes of the Australian army in Afghanistan and is now on trial for them and threatened with a long prison sentence. Chelsea Manning had already received 35 years imprisonment. That is completely disproportionate. In our legal system there is no such long punishment, not even for the worst violent criminals. But the people mentioned here are threatened with draconian punishments just for telling the truth.
Does it really seem like a method?
Assange is of course not the only one who has suffered this fate, and of course it is not the worst case of torture that I have seen in my work. I have a dozen such reports on my desk every day, they are always terrible stories. The Assange case is also emblematically important because a precedent is to be established here.
What would the consequences be?
The freedom of the press and the freedom of information of the Western public would be severely restricted and people who uncovered the authorities’ dirty secrets would be criminalized. Once that happens, we no longer have to have any illusions about where we are headed. So we have to ask ourselves how do we deal with the truth, how transparent are our governments today? How much insight do we still have? We supposedly have freedom of information everywhere, but if you ask something delicate, you only get blackened pages today. But when we are no longer allowed to know what our authorities are doing with the power made available to them, when our citizens’ questions become a supposed security risk, and when everyone is being persecuted, who questions the impunity of the powerful, the rule of law and democracy are also acutely at risk. It is therefore very important to prevent structures from being created that could become dangerous in the future.