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Why did Nils Melzer, the UN Rapporteur on Torture, feel obliged to write this book as part of his official function? That is the question you have to ask yourself before you read it. The answer lends an authority and motivation to the book which puts it beyond challenge and ensures its place in the chronicle of the undermining of free speech and the rule of law in our times.
Let Melzer answer the question for himself:
Like any other independent expert or abiter, I conduct my investigations observing the strictest standards of objectivity and impartiality. Once I have come to the conclusion that an act of torture has been committed, however, my task is not to be impartial between torturers and victims. Instead, I must cry foul and insist on justice, reparation and the rule of law. If the state in question cooperates, all of this can be done discreetly and diplomatically. But if a government refuses to engage in constructive dialogue and repeatedly violates its obligations in a serious way, then there is a point when I must make myself unpopular and mobilize the public. Anything else would make me a traitor to my mandate. Which is precisely why I am writing this book.It is important that I point out here that the "rule of law" does not consist solely of obeying the laws currently on the statute book. If that were the case many dictators would be technically observing the rule of law when they clearly are not.
The term has a much wider meaning and includes independent publicly accessible judicial oversight, the presumption of innocence, lack of arbitrariness, and a host of other factors. Just as the term "democracy" goes well beyond mere majority rule, as those of us brought up in the knowledge of what was going on in Northern Ireland following the foundation of that statelet know only too well.
This book is one of the few, if not the only, sources that forensically and comprehensively records the blatant, systematic and serious abuses of process by the four governments or justice systems involved in the Assange case: British, Swedish, American and Equadorian.
The best credential for this book is Melzer's original scepticism. He had totally subconsciously absorbed the public vilification of Assange and so he rejected initial appeals to look into the case. He's a seasoned investigator/reporter and, based on his own experience, sceptical of administrations in the first place. So, if he had fallen for this campaign, how must it have penetrated the consciousness of the general public. When Melzer finally acceded to appeals to look into the case he was appalled.
The purpose of the vilification involved in the campaign against Assange was to isolate him from public sympathy and leave the authorities free do what they liked to him without restraint. But at the end of the day, the persecution of Assange had the wider function of suppressing opposition to the ongoing erosion of free speech and accountability.
So who are these régimes accountable to. There do not appear to be any adequate checks within their own legal systems so we are relying on international law here. And in this area, the UN Rapporteur on Torture, Nils Melzer, is the adjudicator. He has concluded that these régimes have blatantly broken international law and he has documented this forensically. He has served notice on them and they have forcefully told him to fuck off.
Since President Trump's election a different wind had been blowing across the Atlantic. Gone was the diplomatic façade of his predecessor, along with any more pretence of multilateral equality and cooperation. American foreign policy had become blunt, crude and erratic, while the British government had settled for an increasingly uncritical position of servility - the only part left for it to play in its "special relationship".
On 16 August 2012, the day Ecuador formally approved Assange's asylum request, BBC reporter Tom Phips recommended via Twitter that the Metropolitan Police "drag Assange out of the embassy and shoot him in the back of the head in the middle of Trafalgar Square". And Hilary Clinton, then Secretary of State, reportedly asked during a team meeting, "Can't we just drone this guy?"During his trial in early 2020 in front of Judge Baraitser, Assange's counsel made the case against his extradition to the United States. Melzer summarises these arguments as follows:
First, counsel argued that the decision to prosecute Assange was politically motivated, and that seventeen of the eighteen counts of the US indictment concerned espionage, which is the classic textbook example of a political offence. Given that the Anglo-American extradition treaty expressly prohibits extraditions for political offences, Assange could not lawfully be surrendered to the United States.Melzer goes on to elaborate regarding political offences. The explanation here is quite complex but as I understand it, both from this book and Craig Murray's earlier explanation in his online post on the subject, the current position is as follows: When the UK signs an international treaty it is bound by its terms in international law. The treaty is then transposed into UK law by way of a separate act reproducing its clauses. However the UK sometimes cheats by not fully transcribing the treaty into domestic law. The missing parts are not then enforceable in national law, though they remain obligations in international law. This appears to have happened in the case of the UK-US Extradition Treaty where the exclusion of political offences was omitted from the domestic law version. Judge Baraitser could therefore ignore this exclusion in a domestic UK trial even though it remained an obligation under international law. This is indefensible and, as Melzer points out, the UK is here blatantly breaking international law.
Second, during his asylum at the Ecuadorian embassy, Assange had been systematically surveilled, and notably his confidential conversations with his lawyers were recorded by agents cooperating with US intelligence services. This constituted such a serious abuse of process, that it rendered the entire extradition proceeding irreparably arbitrary.
Third, no person could be lawfully extradited to a state where such extradition would have to be regarded as oppressive. If extradited to the United States, there was a real risk that Assange would be exposed to a flagrant denial of justice both at trial and at the sentencing stage, that he could receive a grossly excessive sentence of up to 175 years in prison, and that he would be subjected to cruel, inhuman and degrading detention conditions, all of which set an insurmountable bar against his extradition.
Fourth, based on the requirement of dual criminality, Assange's extradition to the United States can be permissible only if the offence for which his extradition is sought is punishable in both the US and the UK. This raised the question of whether the activity Assanged is accused of - namely, "unauthorised obtaining and disclosure of National Defense Information" - can constitute a criminal offence at all, particularly in view of the public interest in having that information disclosed, and of the protection of the freedom of expression under both international and domestic law.
p292 (my reformatting)
While I'm on this subject I should point out that Melzer is one of the very few people I've read who fully understood the significance of Baraitser's verdict. She implicitly accepted the US claim to extra-territorial jurisdiction over the press and all that this implied, while refusing Assange's extradition on purely personal health grounds, which refusal was easily overruled in the higher court based on assurances from the US that Assange would not be mistreated there unless they felt like it.
In a chapter called "British Torture by Attrition" Melzer makes the following statement:
The blatant failure of all three branches of government to uphold the rule of law when dealing with the case of Julian Assange seriously calls into question the stability and reliability of Britain's democratic institutions.That is how serious this case is. We are all, well most of us, aware of failures of these institutions in other areas and I've drawn attention to these elsewhere. From the lies of the EU referendum Leave campaign to mislead the British people into voting against their own interest, through the Prime Minister lying to the Queen to get her to illegally suspend Parliament, to the daily lying in public of every single member of the British cabinet in their attempt to cover up their appalling record of more than a decade of ruinous misgovernment. These are matters for elsewhere but they do tend to support Melzer's conclusion from the Assange case.
My own feeling is that this case should be on the UK senior schools curriculum and certainly studied in detail by the legal profession in any legal course on human rights.
A point that Melzer covers, and that I had been wondering about, is how such a junior judge as Baraitser, who came into court every day with her script already written out for her, was put on this case in the first place. Melzer has it figured out. Her boss, Judge Arbuthnot, was compromised and so he used her to take the heat off himself, and avoid any possible appeals. I'm inclined to think that he was, however, most likely the person writing her daily script in the background.
The hearing is presided over by Vanessa Baraitser, a district judge subordinate to Senior Judge Arbuthnot who has been tasked with Assange's extradition trial - presumably in order to pre-empt further recusal applications against Arbuthnot. Despite strong objections on the part of Assange's lawyers, who demand more preparation time, Judge Baraitser confirms that the extradition hearing will begin on 24 February 2020 as requested by Prosecutor Lewis on behalf of the United States.I do not have sufficient space here to fully detail the erratic and prejudicial behaviour of this judge in the course of the trial. If you want the grimy details you'll just have to read the book. But, believe me, she was a disgrace.
I will simply cover this particular matter as an illustration of how extreme Baraitser's perverse behaviour was. Assange was confined in a bulletproof glass box in the courtroom where he could neither hear the proceedings clearly nor confer with his lawyers, as was his right. Baraitser insisted that there would need to have been a bail hearing to allow Assange to join his lawyers outside the box.
When Assange's defence counsel protested in court that these obstructive conditions severely jeopardized due process, the arbitrariness had become so blatant the even the prosecution counsel, James Lewis, stood up to assert that he wanted Assange to have a fair trial, that he wa not convinced a bail application was repuired to allow Assange to sit with his legal counsel, and that it would be standard practice for the judge to intervene with the prison authorities in order to ensure due process. But Baraitser was not swayed. She insisted that she had no jurisdiction over the prison authorities and refused to allow Assange to leave his glass box.
Nils Melzer, Stella Assange, Edward Snowden, Julian Assange, Chelsea Manning
Sculpture by Davide Dormino
'Anything to Say?' A Monument to Courage
Sculpture by Davide Dormino
'Anything to Say?' A Monument to Courage
This picture, for me, encapsulates the message I take from this book. Melzer is providing the underpinnings for the campaign for Assange's release from this political persecution and it underscores Assanges status as a defender of freedom in an increasingly hostile and authoritarian world. Assange acted as a journalist, simply publishing classified information provided, in the public interest, by whistleblowers. What these three sculpted figures have in common is their shameless persecution by the very authorities responsible for the warcrimes they have exposed.
The book will make your blood boil and you may, as I did, have to take frequent breaks and go for walks to cope with its content. It is wider than the Assange case and should alert us to the drift into authoritarianism now underway all around us.
I'll leave Melzer with the last word:
My most important message is that, ultimately, the trial of Assange is not relly about Assange. It is about the integrity of our consitutional institutions and, thus, the essence of the "republic" in the original sense of the word. At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truch has become a crime. I have alswys understood my UN mandate as a duty to use my privileged position in order to protect human rights, to expose violations and systemic shortcomings, and to fight for the integrity of our institutions - "speaking truth to power" as it has been so aptly termed. This I have done since I was first appointed by the Human Rights Council. I have addressed issues as diverse as police brutality, the inhumanity of prevailing migration policies, psychological methods of torture, and the cruelty of domestic violence. I have also highlighted the interrelations between corruption and torture, as well as the collective patterns of self-deception without which torture and ill treatment could not be practiced with such impunity worldwide.
My objectivity as an independent legal expert then repuires me to side wit the victim of torture, with human rights and with justice. I therefore write this book not as a lawyer for Julian Assamge, but as an advocate for humanity, truth, and the rule of law.