A Dangerous Verdict - Nils Melzer (UN Special Rapporteur on Torture)

In a video interview with the Austrian Journalists Club (AJC), UN Special Rapporteur on Torture, Prof. Nils Melzer, discussed the implications of district judge Vanessa Baraitser’s January 4th 2021 ruling in the ongoing show trial against Julian Assange.

The original interview, which first aired on February 26th 2021, is in German. Below is the English translation, transcribed and documented here with the kind permission of the Austrian Journalists Club.


AJC: Mr Melzer, you are the Special Rapporteur on Torture at the United Nations and have been in charge of the Assange case for several years now. How has the United Nations become a “toothless tiger” such that you are not able to help Assange?

Prof. Nils Melzer: The UN was not created as a “tiger with teeth”. Of course, the UN member states have always been keen to maintain the upper hand. This is an organisation that was founded by states for states. And the most powerful states in the world are of course the permanent members of the [UN] Security Council, and they make sure that they retain a certain amount of control.


AJC: So helping people in matters concerning human rights is no longer necessary, no longer the [organisation’s] aim, so to speak?

Prof. Melzer: The UN Charter pillars of human rights, peace, international security and development are, of course, the ideals we aspire to – and the entire world population would agree on that. But the reality is that powerful states can still assert their interests and do so brazenly in some cases. If that is the case, then of course the UN is not more powerful than these states – realpolitik still prevails.


AJC: Now we have touched on the topic of realpolitik and are dealing with three actual states, namely Great Britain, Sweden and Australia. All three states are said to be “constitutional states”, where law and justice are fundamental principles. Has an exception been made in the Assange case, or are these states no longer operating under the rule of law?

Prof. Melzer: A state under the rule of law is a state where law is above political power and political power must bow to the law. Unfortunately, it is the case that even states that are democratic in everyday legal dealings – in normal conclusion of contracts and in the political process – when seeing their national security interests and basic economic interests threatened, will cease to abide by the rule of law. We should have no illusions about this. This is not a question of Sweden, Great Britain, the USA or Australia or any other state.

There is, I believe, no state where the rule of law really applies when national security interests are concerned and the governments feel they are being threatened. The states in question are all states under the rule of law: if you have an everyday sales contract, a tenancy agreement or a divorce, that is of course handled completely correctly according to the law. [Yet] we see in the Assange case, as well as other cases that when states see their fundamental interests threatened, the rule of law no longer applies.

Espionage is a classic political offence. So even if it were espionage, which of course it is not – it is pure publishing and journalistic work – even then, it would be a political offence; a motive for which the extradition treaty between the UK and the US explicitly prohibits extradition.


AJC: There is an extradition treaty between the USA and Great Britain, can you explain to us what is contractually stipulated in it. Should there be no extradition at all in the Assange case?

Prof. Melzer: Julian Assange is currently in custody in Great Britain, pending a possible extradition. There are 18 charges against him in the USA, 17 of which relate to so-called espionage. What is being called espionage here, however, is simply the publication of secret US government documents, and publishing is what investigative journalists do professionally on a daily basis. Assange did not steal the documents, he got them from whistleblower Chelsea Manning, who at the time had access to these documents, but who herself violated her duty of secrecy by releasing the material to WikiLeaks.

The US is demanding Assange’s extradition on the grounds of so-called espionage. Espionage is a classic political offence. So even if it were espionage, which of course it is not – it is pure publishing and journalistic work – even then, it would be a political offence; a motive for which the extradition treaty between the UK and the US explicitly prohibits extradition. That is the first reason why he should not be extradited. The second reason is that he has committed no crime. The publication of secret documents that were voluntarily handed over to him by a whistleblower; that is not illegal on Assange’s part, journalists do that every day. What he published was clearly in the public’s interest. It’s [providing] evidence of war crimes, evidence of corruption – that’s not a crime either. That’s the second condition; what he did would have also had to be a criminal offence in Britain for him to be extradited at all.

The third and ultimate barrier to his extradition is that you cannot extradite even a serious criminal to a country where he could be at the mercy of torture or other human rights abuses. The likelihood of Assange getting a fair trial in the US is virtually nil. Even the Americans [prosecution] admitted during the hearings that the detention conditions he would be placed under are the so-called “Special Administrative Measures”. These are rightly described as equivalent to torture by Amnesty International, myself, my predecessors and all prominent human rights organisations. He should not be extradited for this reason alone.

There are other reasons too: Assange was under constant surveillance in the Ecuadorian embassy. Conversations with his lawyers were recorded by a intelligence service and leaked to the USA – this is a serious violation of the attorney-client privilege – which makes the process irrevocably arbitrary. This gives us a fourth reason why he cannot be extradited.

It is an extremely dangerous ruling because it establishes the whole precedent and says that legally he would be extraditable. Essentially saying; it is all punishable, it is all espionage and he cannot defend himself on the basis of public interest or political motivation. […] This is a trap, of course!


AJC: Why did the judge pass these sentences? She found him virtually “guilty on all counts”. 


Prof. Melzer: In these hearings [in London], it was a question of determining whether there were grounds for extradition. The question of guilt would then be put before an American court.

The American logic – inherently criminalising investigative journalism as espionage – was now substantiated by the judge in London. She even went on to explain that this would be equally punishable in the UK under the so-called “Official Secrets Act”. The judge also ruled out the argument of political offence. This is completely unrealistic – it is absolutely clear that political motivation is involved here. She even said that the prohibition of extradition for political offences was not applicable. That is a legally untenable argument.

There is the so-called “Extradition Act” – a British law – and this Act does not exclude extradition for political offences. The judge performed legal acrobatics stating that the law is binding on the national court and the international treaty is only binding at the international level. This was an improper argument to circumvent a very clear ban on extradition for political offences. She went through the whole logic, corroborating every [US argument] and established a precedent that in principle allows anyone who publishes US classified information to be extradited for espionage.

In the end, she denied extradition – for none of the legal reasons I explained earlier, but purely on medical grounds. To put it simply: Julian Assange is mentally ill, that’s why he has suicidal ideation, and the risk that he would commit suicide under the US prison conditions is very high. However, she did not imply that there was anything “flawed” about the prison conditions, but that this was down to Assange’s illness, which pathologised him. That is the only reason that the extradition was opposed.

At first glance, this looks like a victory for Julian Assange and freedom of the press, but it is not at all – on the contrary. It is an extremely dangerous ruling because it establishes the whole precedent and says that legally he would be extraditable. Essentially saying; it is all punishable, it is all espionage and he cannot defend himself on the basis of public interest or political motivation. It’s all set in stone and Britain is not extraditing him now precisely because he’s sick. This is a trap, of course!

It means Assange might not appeal – he doesn’t want to be extradited – so his lawyers wouldn't appeal the verdict, only the Americans would. And if the Americans appeal, the Court of Appeal, the High Court, will only have to deal with what the Americans criticise. And they, of course, would only criticise the argument that he is not extraditable on medical grounds. And they can then say: yes, we will adjust the conditions of his detention, we will give guarantees that he will have access to medical specialists, that he will not be held in solitary confinement and so on.

Then the Court of Appeal can say: in that case the reason why you can’t extradite him ceases to be valid and we can now extradite anyway. They don’t no longer have to judge any of the other issues, and I think that was the goal. That’s why now that the Americans have appealed, it’s important that Assange’s lawyers are far-sighted enough to cross-appeal. So not questioning the final decision, but questioning the reasoning; affirming there are still several reasons why he cannot be extradited, which then also have to be questioned by the Court of Appeal. Otherwise, this temporary victory could very quickly turn into a crushing defeat.


AJC: One of the tasks of a state is to protect its citizens – in principle. Australia is not doing that at all [for Assange], is it?

Prof. Melzer: I personally have not intervened with Australia because I am the Special Rapporteur on Torture. I can only intervene with the states that I consider responsible for its abuses and I wouldn’t say that about Australia now. But they certainly have a moral obligation to protect their own citizens and there you can see that Australia is just the “Great Absentee” – literally.

Three seats were reserved in the courtroom for the Australian Embassy (the Australian High Commission) in London, but they remained empty. The Australians never attended the hearings, were obviously not interested. Australia is closely allied with the US and the UK, they are also part of the intelligence alliance “Five Eyes” along with Canada, US, UK and New Zealand. They work very closely together and are very critical of WikiLeaks. Actually, they would be very happy if Assange was removed from circulation.

AJC: We had a resolution in Austria at the end of February 2020, which the Parliament adopted unanimously, to stand up for Julian Assange. It was a follow-up to the Council of Europe resolution. The AJC repeated the demand [For what?] several times and approached the Austrian federal government with it. Does it make any sense at all for other European states to get involved in this case now – for example by offering a humanitarian visa?

Prof. Melzer: We have here two of the most powerful states in the world that are pursuing Assange and want to “shut him down”. You have to be realistic about how much states that might not have that kind of influence can achieve . I think that the willingness of governments to become openly confrontational and directly confront the UK or the US with these violations of international law will always be very limited. But of course there are also these face-saving solutions like the humanitarian visa, which was initiated by Switzerland last year in February by the canton of Geneva. It wanted to grant Assange a humanitarian visa and had also applied for it to the Swiss Federal Government and the Federal Council in Bern.

I can well imagine that the Swiss government would be prepared to grant this visa if Great Britain and the USA with the new President Biden were now interested in a face-saving solution. They could say: we don’t have to judge the legal case, we don’t have to acquit him, but we don’t have to find him guilty either, we can simply release him on humanitarian grounds because his health is so bad and he has been in captivity for far too long. We could find an arrangement to bring him – without judging guilt or innocence – to a recognised neutral country, such as Switzerland, which has this long tradition [of granting humanitarian visas]. The canton of Geneva would then rehabilitate his health with a stay at the university hospital in Geneva, and from there he could return to his home country at some point, when the dust had settled.

Such solutions are of course conceivable, but then above all the new American government would have to accommodate. It is not impossible that this could happen and that is where I see the great potential of the other governments – that they do not pursue this in an openly confrontational manner, but behind the scenes, with their diplomatic contacts, convince these governments that now is the time to find a solution.

The prosecution of Assange was clearly a mistake initiated by the Trump administration. With Biden, a representative of the “old school” is coming back to the White House, which actually did not want to prosecute Assange – precisely because of freedom of the press. That was the credo of the Obama administration. If Biden remains true to this and perhaps also sees that he now has a chance to withdraw the appeal and drop the criminal proceedings, so that a gentleman’s agreement is reached with Assange behind the scenes, a solution such as a humanitarian visa could pave the way forward.

AJC: It’s probably going to be a game between the intelligence services – the five big ones that you mentioned that work together and are interested in making sure that this doesn’t happen again – and the political administrations. So, if you consider the more liberal Biden administration now – is this going to be a fight between the Biden administration and the intelligence services?

Prof. Melzer: I can well imagine that discussions are currently being held. One should have no illusions; President Obama was not a good president in terms of freedom of information either. No president has prosecuted as many whistleblowers as Obama – and as harshly. He had zero tolerance for these leaks. At the same time, people that committed these most serious war crimes [under his tenure] were not convicted; none of the CIA torturers have been prosecuted, the “Collateral Murder” perpetrators have not been prosecuted – the Obama administration has already left a problematic trail here. I think it is precisely the [enduring] impunity of violent crimes such as these that is perhaps partly responsible for inhumane scenarios such as we saw with George Floyd, whom the police shamelessly strangled in public without somehow batting an eyelid …

I think that the Americans have received a wake-up call. They now have to make sure that such crimes are prosecuted and should actually be grateful to the whistleblowers for bringing these dirty secrets out into the open so that they can be dealt with. And of course they should be grateful to a man like Assange for his work.

In the end, it is also fair to say that there are legitimate reservations about certain whistleblower activities. You can also have a civilised discussion about it, but at the same time it must be clear: the rule of law is not negotiable. And the rule of law demands that serious crimes are also and especially prosecuted by the authorities. Of course, Assange and the whistleblowers have made a great contribution to this, and this must be protected.

Translation: Team “Assange Tent Embassy”

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  • Last modified: 2021/04/11 19:26