Remember the cold-blooded shooting of Iraqi civilians in Collateral Murder? Remember torture in Guantanamo Bay? Remember the political corruption revealed by the diplomatic cables? Those were some of the stories that broke the news back in 2010 as major international papers from The New York Times to The Guardian to Der Spiegel teamed up with WikiLeaks to expose US war crimes and a long list of shameful truths that our governments had kept secret.
Ten years down the road, the man who made these possible is fighting for his freedom in shocking indifference, kept in solitary confinement in a high-security prison and subjected to a trial that independent experts qualify as a sham for those very popular publications of the 2010 era WikiLeaks. EXB got access to the court hearings that will decide on his fate: if the court decides to greenlight his extradition to the U.S., where he’ll face 175 years imprisonment over his alleged role in revealing to the public classified documents that exposed acts of torture, war crimes and misconduct committed by the US and their allies.
EXB is committed to reporting on the court hearings that will not only seal the future of a man, but also determine the future of investigative journalism . We’ll also run a series of interviews with independent experts and journalists who worked on the leaks as well as prominent supporters.
First up, N. Vancauwenberghe and J. Brown spoke with Nils Melzer, UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, who investigated the case. Stay tuned!
Can you please explain what’s going on in London on Monday?
Yes, Julian Assange will have to face the second part of a court hearing which is to decide on his extradition to the United States. Hopefully, we will then have a first instance decision around October. Whatever the decision will be, I expect an appeal will be made to the High Court. Probably by Julian Assange, because I don’t expect the first instance to refuse the extradition. But even if a miracle happens and the judge refuses to extradite him, then the US will certainly appeal this decision
So, you believe that the judge will greenlight Julian Assange’s extradition to the US?
Yes. Now, if the British judiciary is independent and they apply the law, there is no way that they can greenlight this extradition. It’s obvious to any conscientious lawyer that this extradition cannot lawfully go forward. There’s the formal reason that 17 out of the 18 charges that Julian Assange has been indicted for are for espionage. Espionage is the quintessential, textbook example of a political offence, and you cannot extradite for political offences. The extradition treaty between the US and the UK explicitly prohibits that.
It’s obvious to any conscientious lawyer that this extradition cannot lawfully go forward.
Then there’s the eighteenth charge, the so-called hacking charge. Julian Assange is not even accused of having hacked anything, he’s accused of having attempted to help Chelsea Manning, his source in the U.S. Army at the time, to decode a system password. While this password would not have given her access to new information, it would have allowed her to cover her own tracks inside a system to which she already had full access authorization. Even if Assange’s involvement were proven, it would not be a serious crime, but merely an unsuccessful attempt to help someone commit an offence. Perhaps he could get a fine or a penalty of six weeks imprisonment for that. But everyone knows that Julian Assange has not been subject to a decade of confinement, persecution and extradition hearings simply to be thrown in prison for only six weeks.
Then how do you explain that a democratic country like the UK can possibly go ahead with extradition if it’s unlawful?
My understanding is that, in Julian Assange’s case, the UK are trying to circumvent the applicable UK-US extradition treaty, which prohibits extradition for political offences, by basing themselves exclusively on the British Extradition Act, a domestic law of subsidiary importance in this case, which does not contain such a prohibition. In essence, the UK pick and choose whatever will enable them to extradite him. Another thing is that Assange’s procedural rights have been so severely and consistently violated that, by now, this extradition proceeding has become irreparably arbitrary. He has not had adequate access to his lawyers, he has not been granted a single meeting since the lockdown in March, he has had extremely restricted access to his case documents, he only received a computer after a year in prison, he doesn’t have internet access, and on top of that, they have glued down the keys of the keyboard so he can’t write. Importantly, all of these restrictions are clearly unlawful, because Assange is imprisoned solely for the purpose of preventing his escape during the extradition proceedings. He is not serving any criminal sentence but, like any other citizen, is fully entitled to freely interact with his lawyers, friends and family and to exercise his profession as he pleases.
What are the UK’s interests here? What does the UK government have against Julian Assange so it could justify such harsh treatment?
Let’s start with the big picture. This is not about Julian Assange or any crime he’s supposed to have committed. This is about WikiLeaks, the methodology introduced by WikiLeaks, which makes it easy for whistleblowers to disclose secret information about states’ misconduct while staying completely anonymous even for Wikileaks. And the proliferation of this methodology is what states are afraid of—not just the US, but also the UK—and I would argue just about any other state in the world, because governments worldwide strongly rely on secrecy to avoid public scrutiny. That’s why Julian Assange does not receive much support from any state. Ecuador was the only exception, until their new president, Lenin Moreno, bowed to very blunt economic pressure by the US.
This is not about Julian Assange or any crime he’s supposed to have committed. This is about WikiLeaks, the methodology introduced by WikiLeaks, which makes it easy for whistleblowers to disclose secret information about states’ misconduct while staying completely anonymous
That’s what some people would call conspiracy theory – governments relying on secrecy to commit their evil deeds and persecuting anyone who would dare to expose them.
I’ve worked for governments and international organizations for more than 20 years. So I know how political decisions are being made and I know that governments increasingly try to withhold compromising information from the public. This is not some kind of conspiracy theory. We all know about Snowden and the NSA. We know about the WikiLeaks disclosures. We also know about the recent “Cryptoleaks” scandal and countless other cases of corruption and abuse, which are but the visible tip of the iceberg. If the states persecuting Assange really had acted in good faith, they would at least have prosecuted the misconduct that has been exposed, the war crimes, the torture, some of the most serious imaginable crimes.
But what we see is that, despite compelling evidence, none of these crimes have ever been prosecuted or even investigated. That clearly proves the point that, in persecuting Assange, these governments are not pursuing justice, but are trying to protect their own impunity for war crimes, aggression and torture. The only soldiers and officials that have been prosecuted are the whistleblowers, or those who committed crimes that were not in line with what the government wanted. But all those that obeyed their government in conducting crimes enjoy complete impunity. This includes not only the Americans, but is a phenomenon we see worldwide, across the board. And WikiLeaks threatens this impunity by informing and empowering the public about government misconduct.
When released 10 years ago, the leaks were a huge thing. The mainstream media such as The Guardian, Le Monde, Der Spiegel or New York Times collaborated with Julian Assange on exposing those war crimes and cases of misconduct committed by the US and their European allies. Ten years down the road, few seem to remember the leaks themselves and most big media don’t show much sympathy for Assange. What happened?
Initially, mainstream media profited greatly from Assange’s work. They realized that WikiLeaks had explosive exposures to make, and so they jumped on the train, and participated actively in their publication. But then they must have realized that they had made the US really angry with this. I don’t know what happened behind the scenes, whether there have been threats or deals, but what we can see is that the mainstream media soon after started jumping off of the train again. Most mainstream media institutions are almost totally controlled either by governments, or by large corporations that are deep in bed with governments, and so they are no longer able or willing to exercise their function as the “Fourth Estate”, to subject political power to public scrutiny and to inform and empower the public objectively and impartially. Instead, they have bowed to power, betrayed their calling and helped to demonize Julian Assange in the service of their political and financial masters.
Mainstream media institutions are almost totally controlled either by governments, or by large corporations that are deep in bed with governments, and so they are no longer able or willing to exercise their function as the “Fourth Estate”
So do you see the media as complicit in the way they reported on Julian Assange?
Just look at the headlines during his time at the Ecuadorian embassy: Assange was alleged to be skateboarding through the embassy, playing football, mistreating his cat and smearing faeces on the wall. This was the kind of narrative spread by the media, and so that’s what our informed and cosmopolitan public fervently discussed. But the Assange case has never been about Julian Assange. It’s about the elephant in the room which everyone seems to ignore: the official misconduct of states that Assange has exposed. In 2010, at the time of the disclosures, everyone was shocked about the war crimes, the torture, the corruption, and the entire world’s public started talking about it. This made the concerned states very nervous. So it was no coincidence that, within a few weeks, the Swedish authorities deliberately leaked a headline to the tabloid press: Julian Assange suspected of double rape. Immediately, the entire world’s public obediently lost interest in discussing the crimes of the powerful, changed their focus and started debating Julian Assange’s character and personality: is he a rapist, a narcissist, a hacker, a spy?
As an average reader of the press, you think you are making full use of your freedom of expression and opinion when freely discussing media headlines, but you don’t realize that those discussion topics have already been pre-selected for you, and that they only reflect a “sanitized” fraction of what is really going on. If the media only offer headlines asking whether Julian Assange is a good guy or a bad guy, then we’re not discussing the war crimes anymore.
As a matter of fact, when you mention Julian Assange to people, you usually get this visceral reaction that he is that “bad guy” – and this mainly due to the sexual assault allegations in Sweden.
But that’s exactly the point. I don’t know whether Julian Assange committed sexual assault or not, but what I do know is that Sweden never cared to find out. They wanted to use these allegations to discredit him. And once they had actively spread these allegations into every corner of the world, they then made sure that there would never be a proper trial because, as the prosecutor finally admitted in November 2019, they never had sufficient evidence to even press charges against Julian Assange.
Could you focus on the Swedish rape allegations for a minute, because that’s something you actually investigated. For many it’s still a major contentious point – few realize that the charges were dropped.
It’s a very convenient, classic way of discrediting political dissidents in the court of public opinion. Throughout history, allegations of treason, blasphemy and, more recently, sexual misconduct have been very efficiently used to manipulate public opinion against particular persons.
Assange case has never been about Julian Assange. It’s about the elephant in the room which everyone seems to ignore: the official misconduct of states that Assange has exposed.
Sweden went out of its way to make sure the public was informed of the allegations against Assange, even against the will of the concerned women, and then systematically procrastinated their investigation for almost a decade, before they were finally forced to abandon the case and admit that they never had sufficient evidence in the first place. Despite the enormous harm inflicted by the deliberate arbitrariness of the Swedish proceedings, no Swedish officials have ever been sanctioned and the government never offered to pay due compensation to Assange. Quite obviously, the damage was intentional.
Can you tell our readers how you got involved in this? Because you too had that visceral reaction when you first heard Assange’s name, right?
The story started in December 2018, when Julian Assange was still at the embassy. His lawyers contacted my office and asked me to intervene on his behalf, saying that his living conditions at the Ecuadorian embassy had become inhumane. When I saw his name, I immediately declined. It was not only that I was too busy with other cases, but I had this almost subconscious perception of him as a rapist, narcissist, spy and hacker, which prompted my negative reaction. They contacted me again three months later, saying that the rumours were becoming more dense, that Assange might be imminently expelled from the embassy and then extradited to the US. I then remembered that I had previously declined to look into this case, but I realized I didn’t really know why. So I started questioning myself: why did I have this visceral reaction? I didn’t know Julian Assange, I had never met him, I had never really dealt with WikiLeaks. Even the disclosures in 2010 had not been really big news to me because, at the time, I was a legal adviser to the International Red Cross, I had been posted in various conflict zones and so I had a fairly realistic sense of what was going on behind the scenes. But I still had this prejudice inside of me about Julian Assange being a rapist, a narcissist, a spy and a hacker.
What specifically made you change your mind?
First, I realized I did not have an objective basis for my opinions, and so I decided to look at the evidence. And when I did, I immediately saw that things were not adding up, that there were various contradictory narratives and that it was so politicized that it was impossible for me to come to an objective conclusion without carrying out an onsite visit to Assange. To be honest, I didn’t expect anything dramatic to come out of it. But I had to go and see him myself. So, in the first week of April 2019, I officially requested Ecuador to freeze the situation and not to expel Assange from the embassy. I also announced that I intended to investigate the case and requested authorization to visit Julian Assange inside the Embassy on 25 April. I also officially asked the British authorities, should Julian Assange come within their jurisdiction, not to extradite him to the US because I feared he might be exposed to serious risks for his human rights there. I released a press statement on Friday evening, April 5th, and on the following Monday I sent my official letters to Ecuador and the UK. Three days later, Julian Assange’s asylum was terminated, his Ecuadorian nationality withdrawn and he was expelled from the Embassy – all without any form of due process.
Do you think you might have inadvertently prompted his expulsion and arrest?
With hindsight, I think that may well be what happened. It may well be that the US, Ecuador and the UK all wanted to rush Assange out of the Embassy and into British custody before the UN Rapporteur on torture started digging up a lot of dirt and complicate things for them. But this knee-jerk reaction struck me as very odd. I knew from experience that states acting in good faith wouldn’t normally behave like that. I was the UN Rapporteur, not a journalist or activist. Assange had been in this embassy for six and a half years, and there was no reason to rush. I asked the involved states officially, publicly, formally and diplomatically, to freeze the situation for two weeks so I could properly investigate the allegations made. And then three days later they summarily deprive him of his asylum and his Ecuadorian citizenship, and throw him out of the embassy without even giving him a chance to defend himself?
And not only that, but, on the very same day of his arrest, the British authorities even drag him to court and convict him of a criminal offence in a summary hearing conducted the very same day, a hearing in which Assange is personally insulted by the judge, and in which his defence counsel’s objections against conflicts of interest are non-gallantly swept under the carpet. That, to me, was really strange.
You ended up visiting him at Belmarsh prison in May 2019. What were your conclusions?
I brought two medical experts with me, a forensic and a psychiatrist, both specialized in the examination of potential torture victims. The doctors examined him separately from each other, but all of us came to the same conclusion, that Julian Assange showed typical signs of prolonged exposure to psychological torture. This included extremely elevated levels of stress and anxiety. This is not comparable to the stress and anxiety any criminal defendant might face, but rather traumatizing levels of stress and anxiety that begin to affect your nervous system and cognitive capacities in a manner that is physically measurable. These traumatic symptoms are the typical result of isolation, constant exposure to a threatening and arbitrary environment where the rules are being changed all the time and nobody can be trusted.
There are two things that are very important to say; first is that the primary purpose of torture is not necessarily interrogation, but very often torture is used to intimidate others, as a show to the public what happens if you don’t comply with the government. That is the purpose of what has been done to Julian Assange. It is not to punish or coerce him, but to silence him and to do so in broad daylight, making visible to the entire world that those who expose the misconduct of the powerful no longer enjoy the protection of the law, but essentially will be annihilated. It is a show of absolute and arbitrary power. Secondly, psychological torture, unlike physical torture, doesn’t leave traces that are easily identifiable from the outside. But it is extremely destructive, as it aims directly at destabilizing and then destroying the personality and innermost self.
Can you give concrete examples of the kind of psychological torture Julian Assange was subjected to?
In this case the symptoms of torture are the result of an accumulative process. Overshadowing everything is the constant threat to be extradited into a country where he will with certainty be exposed to a politicized show trial, deprived of his human dignity and due process rights, and then imprisoned in cruel, inhuman and degrading conditions for the rest of his life. Then you have several states cooperating and deliberately abusing their legal system in order to ensure this will actually happen, confining him for years to the Ecuadorian embassy as his last refuge. However, even inside the embassy he was constantly surveilled, deprived of his privacy, exposed to death threats, isolated, humiliated and demonized.
But is this torture, really?
This is what persecution is about, it works very much like the mobbing we know from schools, the work place or the military and which can lead victims to complete psychological breakdown or even suicide. When I visited Julian in prison he looked tidy and normal, but I could tell he was anxious, constantly asking me questions and never letting me answer them. It’s a typical sign that the brain has gone into overdrive, that the victim wants to understand and control the situation but cannot. I recognised this pattern from many other political detainees across the world who have been isolated. It is not an abnormality or mental disorder, but a normal reaction of a healthy person to constant exposure to abuse and arbitrariness.
So you’re saying this is a case of a political prisoner held in a European prison and subjected to psychological torture?
Yes, clearly Julian Assange is a political prisoner, because he has never been charged for an actual crime. The Swedish prosecution authorities, which bear the primary responsibility for Julian Assange’s unjustified demonization and abuse, took almost a decade to “find out” they never had enough evidence to charge him for sexual assault. In fact, the Chief prosecutor of Stockholm publicly acknowledged this already a few days after the initial allegations in 2010, but she was quickly overruled and pushed off the case by a superior prosecutor.
And the charges in the US as so obviously arbitrary and in direct violation of the fundamental freedom of opinions and expression that their political nature simply cannot be ignored. So, yes, in my opinion Julian Assange is a political prisoner.
The only thing Assange has ever been charged and convicted for is the administrative offence of bail violation. When the UK wanted to extradite Assange to Sweden, and Sweden consistently refused to guarantee that they would not extradite him onward to the US, he failed to report to the UK police and sought – and received – diplomatic asylum from political persecution at the Ecuadorian embassy. Asylum from persecution being a fundamental human right, Assange even had a legal justification for not respecting his bail conditions. Moreover, these bail conditions were issued in relation to a Swedish proceeding which had to be terminated due to lack of evidence. And the charges in the US as so obviously arbitrary and in direct violation of the fundamental freedom of opinions and expression that their political nature simply cannot be ignored. So, yes, in my opinion Julian Assange is a political prisoner.
Has Julian Assange served his sentence for bail violation?
Yes, he received a prison sentence of 50 weeks for this offence, which is completely out of any proportion. I’m saying this objectively, I’m not a WikiLeaks person or Assange fan, just as a professor of law. In the real world, bail violations are almost never punished with imprisonment, unless the offender exploits it to commit another, serious crime. Because of good conduct, Assange had to serve only 25 weeks of this sentence. So, in essence, since late September 2019, Assange is being deprived of his liberty exclusively for the purpose of preventing him from escaping US extradition in case it should go forward. But for this purpose he doesn’t need to be in the most securitized high security prison of the country, imprisoned together with convicted murderers and terrorists and subject to the same hyper-restrictive regime.
I’m saying this objectively, I’m not a WikiLeaks person or Assange fan, just as a professor of law
Julian Assange is not dangerous, he is not violent and, most importantly, he is presumed innocent and not convicted for any crime. In essence, until the final decision on his extradition, he should be allowed to work and enjoy a normal life, for example in a semi-open institution where he is prevented from escaping but can see his family, lawyers, doctors and friends, and have all the facilities and contacts of a regular life. But Julian Assange is being deliberately and unlawfully deprived of all of these things, with grave effects on his health, wellbeing and ability to prepare his legal defence. It is clear that there is a political motivation to prevent him from being professionally active and that the US and UK governments want to make an example of him, saying to the entire world: ’if you do what Julian Assange did we will stop you and we will silence you and we will destroy your entire life and that of your family’. I think most states will be happy if nobody tries to imitate Julian Assange.
Do you think Assange would have been subjected to the same kind of treatment if he were detained in Berlin?
I think Germany probably would not dare to treat Julian Assange in the same way as the UK. The UK can do it because they are a permanent member of Security Council, and the US has never shown much hesitation to break the law in order to get whatever they want anyway. I don’t think Germany would dare to do the same, particularly in the light of its own history. This said, the Foreign Ministry (Auswärtiges Amt) had requested a meeting with me when I was in Berlin last November. They immediately brought up the Assange case and they asked, ‘Are you sure this is within your mandate? Aren’t there more serious cases of torture in the world?’ I said, ‘Yes, there are people being stoned and flogged in other countries, and I’m intervening on their behalf also, but here I’m intervening on behalf of someone who is being relentlessly persecuted for having exposed serious government crimes – crimes that, like torture, fall within my mandate.
These crimes are not being prosecuted despite existing evidence, instead it is the publisher and the whistleblower who are being persecuted. That sets a very dangerous standard for the rule of law in the world.’ The German officials suggested that they had no reason to doubt the UK would respect the rule of law. When I gave them specific examples of how Assange’s rights were being systematically violated by the UK, my interlocutors quickly changed the topic and said: ‘yes, but there were also these Swedish accusations’. Of course, when I explained that this proceeding had just been closed for lack of evidence, after almost a decade of spreading an unsubstantiated rape suspect narrative, they again deflected to another topic. This type of evasive behavior is quite typical for what I experience with the political establishment everywhere. They are so uncomfortable with the truth about the persecution of Assange and its implications for the rule of law, that they just want this whole case to somehow go away as quickly and quietly as possible.
Do you think there is anything you can still do to help him at this point?
I have repeatedly written to the governments and have alerted both the UN Human Rights Council in Geneva and the UN General Assembly in New York. I think my letter to the Swedish government probably triggered the termination of their investigation into the allegations of rape. Given that the concerned States consistently refuse to enter into a constructive dialogue with me on this case, I will also have to keep informing the public about my findings through all channels accessible to me.
A few years ago, there was a ruling of the UN working group on arbitrary detention stating that Assange’s situation in the Ecuador Embassy in London amounted to arbitrary confinement by the UK and Sweden. What was the British response to the UN?
In my experience, the UK government responds to UN interventions only when and to the extent they deem it convenient and to their own advantage. In this case, the big picture is clear: the UK want to extradite him to the US to help make an example of him, end the challenge to secrecy and impunity arising from WikiLeaks and make it clear to the public that this behaviour is not tolerated by those in power. In order to do this, they are prepared to twist and distort the law to extremes. This clearly has been so with the British, Swedish and Ecuadorian judiciaries and would certainly be no different in the US.
When the British wanted to extradite Assange to Sweden it was based on a European arrest warrant, that had been issued by the Swedish prosecutor. The problem was that, in the international treaty on the European arrest warrant, it says that these warrants must be issued by a judicial authority, and the prosecutor is not a judicial authority in the UK. In the end, to be able to extradite Assange to Sweden despite the invalidity of the arrest warrant, the British Supreme Court simply decided to apply the French treaty text, instead of the English one. This is because, in France, the prosecutor can be interpreted to be a judicial authority. But the case did not concern France, it concerned Sweden and the UK. Do you see the sheer absurdity of this?
Clearly the British Government did not respect the decision of the UN working group on arbitrary detention. They then authorized me to visit Julian Assange in Belmarsh because they probably did not expect me to look into the case in any significant detail and to be so outspoken and clear in my assessment. So, consistent with their approach towards the Working Group’s ruling, when I looked at the facts and concluded that Assange’s persecution and mistreatment amounted to psychological torture, they decided to ignore my findings and refused to enter in a dialogue with my mandate on this case, not only the British, but also Sweden and the US.
If Assange were to reach the US, could he be facing the death penalty?
Theoretically, it is possible he could face the death penalty. The British are misleading the public when they say that no additional charges could be added once Assange has been extradited. That’s not true. The extradition treaty allows additional or different charges to be added as long as they are based on the same facts that are alleged in the indictment used for the extradition request. But I don’t think the US necessarily want to execute Assange, they want to ensure that they make an example of him. The message of the US to the world is this: “If you do what Assange did, you will never walk free again, you will never be able to open your mouth again and speak to the public again”. This is not about punishing Assange, this is a show of power addressed to the public worldwide. This is also why they aren’t rushing to extradite Assange, this doesn’t really matter, as long as he is isolated in his cell and cannot speak out. It isn’t about who wins the trial, the governments have already won, because Assange has been silenced. And unfortunately, in the world of powerpolitics, states like the UK and US know that they can get away with it.
The message of the US to the world is this: “If you do what Assange did, you will never walk free again, you will never be able to open your mouth again and speak to the public again”.
If Julian is sent to the US during your mandate, would you attempt to check the conditions in the US? Do you think you would be given a visa?
If he is sent to the US, nobody can do anything for him anymore. I certainly would not be given access. My predecessor tried to get access for Chelsea Manning and he was told that he would not be allowed to interview her without witnesses, which is part of the standard terms of reference for any prison visit carried out by a UN Special Rapporteur.
International criminal court judges in the US have been sanctioned for asking the government to investigate US war crimes in Afghanistan. Do you imagine that you could also be targeted by sanctions for your interventions in this case?
I wouldn’t be surprised. I think, so far, they believe that I am not influential enough to actually worry them. While my official communications are certainly perceived as a nuisance, they are not legally binding and haven’t caused a public uproar so far. But it is difficult to predict what would happen if ever I triggered something that becomes more impactful. In any case, I am under no illusions that my UN career is probably over. Having openly confronted two P5-States (UN security council members) the way I have, I am very unlikely to be approved by them for another high-level position. I have been told, that my uncompromising engagement in this case comes at a political price. But then, remaining silent also comes at a price. And I’ve decided that I’d rather pay the price for speaking out, than the price for remaining silent.