Open letter in response to UN Special Rapporteur’s op-ed on Julian Assange

To: Ms Michelle Bachelet Jeria, United Nations High Commissioner for Human Rights; Ms Kate Gilmore, UN Deputy High Commissioner for Human Rights; Coordination Committee of UN Special Procedures (chair Ms Anita Ramasastry, Mr Victor Madrigal-Borloz, Mr Javaid Rehman, Ms Leigh Toomey, Mr Clément Voulé and Mr Dainius Puras)

Your excellencies,

On 26 June, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Nils Melzer, published a widely-shared opinion piece titled “Demasking the Torture of Julian Assange” on the blogging platform Medium. While his overarching argument may merit attention, and while we support the important work of the mandate, as practitioners and scholars in international law and human rights, we are deeply disturbed by the way he approaches the allegations of sexual assault in this case.

In a paragraph whose tone is unbecoming of a UN mandate holder, Mr Melzer contests:

Surely, I thought, Assange must be a rapist! But what I found is that he has never been charged with a sexual offence. True, soon after the US had encouraged allies to find reasons to prosecute Assange, two women made the headlines in Sweden. One of them claimed he had ripped a condom, and the other that he had failed to wear one, in both cases during consensual intercourse — not exactly scenarios that have the ring of ‘rape’ in any language other than Swedish. Mind you, each woman even submitted a condom as evidence. The first one, supposedly worn and torn by Assange, revealed no DNA whatsoever — neither his, nor hers, nor anybody else’s. Go figure. The second one, used but intact, supposedly proved ‘unprotected’ intercourse. Go figure, again. The women even texted that they never intended to report a crime but were ‘railroaded’ into doing so by zealous Swedish police. Go figure, once more. Ever since, both Sweden and Britain have done everything to prevent Assange from confronting these allegations without simultaneously having to expose himself to US extradition and, thus, to a show-trial followed by life in jail. His last refuge had been the Ecuadorian Embassy.

This echoes earlier comments Mr Melzer made in an interview with Russia Today (at 10:36):

I think it is also important to point out what is called a “rape” allegation is not by any stretch what would be called “rape” in English or any other language other than Swedish, and I know what I’m talking about because I do speak Swedish. What this “rape” allegation refers to is an offence that doesn’t involve any violence (…) [Assange] is being accused of having ripped a condom during consensual intercourse (…) this is something no one will ever be able to prove.

Leaving aside whether this is an accurate summary of the events of the case, we are deeply concerned with these remarks for three reasons.

First, Mr Melzer dismisses the allegations on the basis that they do not “have the ring of rape in any language other than Swedish”. Mr Melzer’s statement is incorrect. The practice of removing a condom without consent, called “stealthing”, is a recognized form of sexual assault in a number of jurisdictions and has been the basis of convictions in states such as Australia, Canada, Germany and Switzerland.

Simply because someone consents to sex with a condom does not mean they are consenting to sex without a condom. There can be “conditional consent” to sexual relations. This issue was considered by the High Court of England and Wales in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin). The Court explicitly found that “a jury would be entitled to find that consent to sexual intercourse with a condom is not consent to sexual intercourse without a condom”. The arrest warrant alleged Mr Assange knew the plaintiff would only have sex if a condom was used and as such, “the allegation that he had sexual intercourse with her without a condom would amount to an allegation of rape in England and Wales”.

Second, Mr Melzer grossly misunderstands the realities and legalities of sexual assault when he dismisses the allegations against Mr Assange on the basis that they “do not involve any violence”. The European Court of Human Rights has determined that most European states do not require a victim to physically resist. In M.C. v Bulgaria, the Court established that although statutory definitions of rape contained reference to coercion or violence, “in case law and legal theory, lack of consent, not force is seen as the constituent element of rape… Regardless of the specific wording chosen by the legislature, in a number of countries the prosecution of non consensual sexual acts in all circumstances is sought in practice by means of” statutory interpretation “and through a context sensitive assessment of the evidence.”

Finally, we believe that Mr Melzer’s written and oral comments demonstrate not only insensitivity to victims of sexual assault, but also a profound lack of understanding that does a disservice to the mandate he represents. Mr Assange has fundamental rights to freedom from torture, a presumption of innocence, and a fair trial. Regrettably, instead of focusing on and analyzing these issues, Mr. Melzer chose to attack the veracity of the complainants and to mock the concept of informed consent. This is a serious problem as rape is a recognized form of torture and cases of gender-based violence can and do fall within his mandate. The mandate (Human Rights Council resolution 34/19) requires Mr Melzer, inter alia, “to integrate a gender perspective and a victim-centred approach throughout the work of his or her mandate”. Yet, to observe the International Day in Support of Victims of Torture, Mr Melzer promoted an understanding of gender-based violence, including rape, that is not aligned with legal developments across a wide range of jurisdictions or the historical approach of his mandate.

Despite advances in case law, victims of sexual assault still face daily hostility from judicial systems in which both prejudice against women and distrust of rape claims are entrenched. Allegations against powerful or high-profile men such as Julian Assange are routinely dismissed as attention-seeking or part of a conspiracy to bring them down. Mr Melzer’s “op ed” perpetuates this dangerous narrative and raises serious doubt as to his ability and willingness to deal with gender-based crimes.

We understand that the functions of the Coordination Committee include acting as a bridge between the UN human rights framework and civil society, and promoting the standing of the Special Procedures system. Mr Melzer holds a position of privilege and with it comes a responsibility to use the platform created by his office with consideration and, above all, integrity. We consider Mr Melzer’s intervention as it concerns the issue of sexual violence to be both legally erroneous and harmful to the development and protection of human rights law. We hope that this letter will start a dialogue — which Mr Melzer is invited to join — on how UN Special Rapporteurs can better integrate gender perspectives when fulfilling their important mandates.

Sincerely,

1. Marie Davoise, human rights lawyer
2. Dr Tara Van Ho, University of Essex School of Law and Human Rights Centre
3. Sarah Kay, human rights lawyer
4. Penelope Ehrhardt, Oxford University Faculty of Law
5. Nasrin Khan, Head of Security and Justice Programming, Seefar
6. Dr Joanna Bourke Martignoni, Gender Centre, Graduate Institute
7. Catherine Philippe
8. Carrie Comer
9. Dr Nadia Bernaz, Associate Professor of Law, Wageningen University
10. Dr Katharine Fortin, Utrecht University
11. Drea Becker, barrister
12. Sangeetha Iengar, barrister, Goldsmith Chambers
13. Milica Kostic, human rights lawyer
14. Piya Muqit, Executive Director, Justice Centre Hong Kong
15. Dr Grietje Baars, Senior Lecturer, The City Law School, University of London
16. Michelle Oliel, Deputy Director, Lori E. Talsky Center for Human Rights of Women and Children, Michigan State University College of Law
17. Luna Spada
18. Emily Patterson, attorney-at-law
19. Viviana de la Peña Escobar
20. Antje Kraft
21. Andra Nicolescu, human rights lawyer
22. Claire Mahon, Director, Global Human Rights Group
23. Sandra Krähenmann
24. Nani Jansen Reventlow, human rights lawyer
25. Katie Shea, prosecutor
26. Sarah Martin, Gender-based Violence specialist and Consultant
27. Tehmina Kazi, equality and human rights professional
28. Neda Shahidyazdani, human rights lawyer
29. Maria Corina Muskus Toro, human rights lawyer
30. Christie Edwards, human rights attorney
31. Mona Haghgou Strindberg, human rights lawyer
32. Camille Guiberteau
33. Marlena Wisniak, human rights lawyer
34. Deborah Alejandra Popowski, human rights lawyer and former executive director of Center for Human Rights and Global Justice, NYU Law
35. Rumbie Elizabeth Chidoori
36. Aditi Pradhan
37. Priyanka Chirimar, Director, Action Against Prohibited Conduct
38. Kat Craig, human rights lawyer
39. Dr. Sarah Taylor
40. Akshaya Kumar, human rights lawyer
41. Azra Hot, attorney
42. Saadia Aleem, human rights lawyer
43. Dr Daria Sartori, human rights lawyer
44. Petra Molnar, human rights lawyer
45. Melissa McKay, barrister and solicitor
46. Elisabeth Wickeri, human rights lawyer and Executive Director, Leitner Center for International Law and Justice
47. Marjolaine Greentree, former ICRC and UN
48. Kindra Lakusta, criminal prosecutor
49. Kathleen Bergin, The Disaster Law Project
50. Trishna Mohan Kripalani, business and human rights lawyer
51. Dina Francesca Haynes, Professor of Law
52. Hadar Harris, human rights attorney
53. Emerlynne Gil, human rights lawyer
54. Devyani Kacker
55. Tathiana Flores, legal adviser
56. Jelia Sane, barrister at Doughty Street Chambers.
57. Alison Cole, Special Advisor on Human Rights
58. Dr. Nadine Puechguirbal, former Senior Gender Adviser
59. Tulika Bansal
60. Marla Morry, human rights lawyer
61. Dr Hannah Woolaver, Associate Professor in Public International Law, University of Cape Town
62. Dr Elinor Fry, Assistant Professor of (International) Criminal Law, University of Amsterdam
63. Natasha Lewis, Senior Advocacy and Policy Advisor Humanitarian and Gender in Emergencies, CARE International UK
64. Dr Daisy Schmitt, Women’s Rights programme officer, FIDH
65. Elise Thoen, human rights lawyer
66. Natalia Voronova
67. Claire Beston
68. Dr Anicée Van Engeland, Cranfield University
69. Dr Clare Patton, Research Fellow, Health and Human Rights Unit, School of Law, Queen’s University Belfast
70. Dr Virginie Rouas, School of Oriental and African Studies
71. Tom Gal, human rights lawyer
72. Emilie Max, Researcher, Geneva Academy of International Humanitarian Law and Human Rights
73. Valentina Cadelo
74. Catherine Imbeck
75. Jenny Kotz Bjerlestam, human rights lawyer
76. Elizabeth Atkinson, human rights lawyer
77. Brianne McGonigle Leyh, Associate Professor International Human Rights Law, Utrecht University
78. Dr Usha Natarajan, Associate Professor of International Law, American University in Cairo
79. Laura Iñigo Alvarez
80. Nicole Garbin
81. Shannon Raj Singh
82. Elvira Dominguez Redondo, Middlesex University
83. Kathleen Cavanaugh, Lecturer of International Law in the Faculty of Law, Irish Centre for Human Rights (ICHR), National University of Ireland, Galway
84. Elvina Pothelet
85. Natalie Mazur, human rights lawyer
86. Yvette Langenhuizen
87. Dr. Kaitlin Ball
88. Guylaine Grenier, human rights lawyer
89. Alice Priddy, human rights lawyer
90. Dr Bríd Ní Ghráinne, Senior Researcher, Judicial Studies Institute, Masaryk University, Czech Republic
91. Dr Chiara Redaelli, Harvard Law School
92. Nora Mbagathi, human rights lawyer
93. Cristina Azzarello, human rights lawyer
94. Renée Chartres, human rights lawyer
95. Jo Baker, human rights consultant, London
96. Maya Linstrum-Newman, human rights lawyer, Malawi
97. Sofia Bonatti, human rights lawyer, Belgium
98. Nadia Hardman, human rights lawyer
99. Anna Khalfaoui, Satter Fellow, American Bar Association Rule of Law Initiative, Goma, DRC
100. Renuka Dhinakaran, Dhinakaran International Law Consultancy
101. Shveta Shah, Cambridge House
102. Dr Jastine Barrett, human rights lawyer and consultant
103. Louise Kennedy, Vice Chair, Northern Ireland Women’s European Platform
104. Alessandra Spadaro
105. Dr. Sara Kendall, Law, University of Kent
106. Kate Vigneswaran, human rights lawyer
107. Valentine Sébile
108. Olivia Duffield, immigration and human rights lawyer
109. Emily Winborne
110. Jill Mccarthy
111. Aisling Kelly, barrister-at-law
112. Marta Bordignon
113. Jessica Dorsey, Lecturer, University of Amsterdam
114. Dr Annyssa Bellal
115. Nupur Prakash
116. Gytha Boerwinkel, advocacy officer
117. Kristy Sim, prosecutor
118. Cannelle Lavite
119. Madleen Scatena
120. Logan Hambrick, international criminal justice lawyer
121. Hanna Maalej, associate legal officer
122. Ana María Suarez, human rights lawyer
123. Ingrid Giles, criminal lawyer
124. Lisa Majumdar
125. Gisela Schmidt-Martin, human rights advocate
126. Delphine Carlens, Deputy Head of FIDH International Justice Desk
127. Laura Milne, human rights lawyer
128. Marialejandra Moreno Mantilla, international criminal lawyer
129. Ayse Bingol Demir, human rights lawyer
130. Lara Stemple, Assistant Dean, UCLA School of Law
131. Sarah-Jane Koulen, PhD candidate
132. Swati Mehta, human rights lawyer
133. Jennifer Holligan, human rights lawyer
134. Danya Centeno, human rights lawyer
135. Jillian Tuck, human rights lawyer
136. Salma Waheedi, attorney
137. Elizabeth Elmore, international criminal justice lawyer
138. Alison Berthet, business and human rights lawyer
139. Monalisa, human rights lawyer
140. Dr Ioana Cismas
141. Raji Mangat, human rights lawyer
142. Julia Foster, human rights lawyer
143. Sally Longworth, Stockholm University Faculty of Law
144. Pornpen Khongkachonkiet, Thailand
145. Katyayani Chandola, human rights lawyer
146. Emilie Pradichit, Founder & Director, Manushya Foundation
147. Anne-Laure Macherey, ICRC detention delegate
148. Niamh Hayes
149. Dr Joseph Powderly, Associate Professor of Public International Law, Leiden University
150. Dr. Julia Gebhard
151. Biljana Kotevska, Research Coordinator, European Policy Institut, Skopje, Macedonia
152. Carmen Miquel Acosta, human rights lawyer and gender advisor
153. Dr Fleur van Leeuwen, human rights lawyer
154. Sarah E. Hager, attorney
155. Dr Chiara Macchi, researcher in International Human Rights Law, Sant’Anna School of Advanced Studies
156. Juliette Praz
157. Elizabeth Mottershaw, barrister, Garden Court North Chambers
158. Maria Noel Leoni, human rights lawyer
159. Professor Rosa Freedman
160. Scott Wortleu, Lecturer in law, University of Edinburgh
161. Sarah White
162. Diane E. Tourell, barrister, Canada
163. Sarion Bowers
164. Marie-Laure Tapp
165. Shazeera Ahmad Zawawi, human rights advocate
166. Dr Edel Hughes, Senior lecturer in law, Middlesex University London
167. Yvette Issar, international lawyer
168. Jessica Smeaton, barrister
169. Mark Klamberg, Professor of International Law, Stockholm University
170. Sarasvathi Arulampalam
171. Lisa Reinsberg, human rights lawyer
172. Louise Edwards
173. Dr Jo Easton
174. Dr Anki Sjoeberg, Fight for Humanity
175. Ebba Lekvall, PhD candidate
176. Dr Anil Yilmaz Vastardis, University of Essex School of Law and Human Rights Centre
177. Dr Corina Heri, University of Amsterdam
178. Indiana Jiménez Guerrero, human rights lawyer
179. Erin Maher, human rights lawyer
180. Carolyn Janusz
181. Wes Rist, human rights attorney
182. Daniel Huegli
183. Macarena Saez, Director, Center for Human Rights & Humanitarian Law, American University Washington College of Law
184. Matthew Happold, University of Luxembourg
185. Jane-Marie Collins, University of Nottingham
186. Colin R. Moore, Lecturer, School of Law and Human Rights, University of Essex
187. Marta Achler, human rights lawyer
188. Karine Bonneau, International Justice Desk Director, FIDH
189. Selbi Durdiyeva, researcher
190. Luke Moffett, Queens University Belfast
191. Dr Elizabeth Fortin, solicitor
192. Jeanne Sulzer, human rights lawyer and lecturer at SciencesPo Paris
193. Dr Koldo Casla, Newcastle University, United Kingdom
194. Kelly Arnesen, human rights lawyer
195. Matt Pollard, human rights lawyer
196. Juliette Rousselot, South Asia Program Officer, FIDH
197. Agata Helena Winkiel-Skóra, international criminal and human rights lawyer
198. Dr Anne-Laurence Graf, University of Neuchatel, Switzerland
199. Matthew Brown
200. Camilla Escobar
201. Dr Daria Davitti, University of Nottingham and Lund University
202. Cécile Greard
203. Brittany West, human rights attorney
204. Mooya Nyaundi, human rights lawyer
205. Leisa Gibson, senior gender adviser
206. Alexandra Lily Kather, legal advisor
207. Carmi Lecker
208. Lena Holzer, PhD candidate, Graduate Institute
209. William Nicholas Gomes, human rights activist and freelance journalist, York, UK
210. Abhimanyu George Jain
211. Philip Neff, board member, Network in Solidarity with the People of Guatemala
212. Alejandra Muñoz
213. Jessica Lynn Corsi
214. Berber Biala-Hettinga, human rights advocate
215. Camila Suárez, postgraduate student in international human rights law
216. Charlene A. Atkinson, attorney-at-law (Caribbean)
217. Anamika Misra, researcher and PhD candidate, University of Kent
218. Jennifer Norris, human rights lawyer
219. Flavia Kroetz
220. Margaux Lenormand, human rights lawyer
221. Ananya Ramani, human rights lawyer
222. Orsolya Kizer, human rights lawyer
223. Lea Kulinowski, human rights consultant
224. Uriy Bielousov, Expert Center for Human Rights
225. Anna Olsen, lawyer
226. Claerwen O’Hara, PhD candidate and Teaching Fellow, Melbourne Law School
227. Ruth Ssekindi, human rights lawyer
228. Anniek de Ruijter, Associate Professor, European University of Amsterdam
229. M. Zhou, human rights lawyer
230. Priya Pillai, PhD, international lawyer
231. Kimberly M. Brown, human rights lawyer
232. Julia de Koenigswarter, FDFA (Federal Department for Foreign Affairs)
233. Aakash Chandran, Faculty of Legal Studies, South Asian University, Delhi
234. Juliana Gil Borenstein, Radboud Universiteit
235. Dr Alice Donald, Middlesex University
236. Lena Larsson, human rights activist
237. Susie Alegre
238. Edna Aquino, #BabaeAko convenor, feminist human rights activist
239. Alix Vuillemin, Women’s Initiatives for Gender Justice
240. Akila Radhakrishnan, Global Justice Center
241. Róisín Pillay, human rights lawyer
242. Massimo Frigo, human rights lawyer
243. Elizabeth Kate Mc Guinness, research specialist on gender-based violence
244. Ben Buckland
245. Dominique Caillat, author and lawyer
246. Eithne Dowds, Queen’s University Belfast
247. Dr Yassin Brunger, Co-Director QUB Gender Network, School of Law, Queen’s University Belfast
248. Eleanor Sheerin
249. Iain Byrne, Fellow, Human Rights Centre Essex University
250. Marisa McVey, PhD Researcher, University of St Andrews
251. Melissa L. Simms, trial lawyer, The Hague
252. Stanley L. Cohen, attorney-at-law
253. Barbara Oliveira, JU,S Jurídico Social
254. Maria Agnes Bere, JU,S Jurídico Social
255. Yousuf Syed Khan
256. Sufiya Bray, human rights activist
257. Stella Anastasia
258. Erica Hall, child rights specialist
259. Kevin Jon Heller, University of Amsterdam/Australian National University
260. Danielle Anne Pamplona
261. Rada Tzaneva, human rights professional
262. Chris Chapman, human rights activist
263. Sergey Vasiliev
264. Dr Emily Jones, University of Essex
265. Ewelina U. Ochab, legal researcher and human rights advocate
266. Sam Jackson
267. Emma Crichton
268. Dalila Seoane, international criminal lawyer, UBA
269. Juliette McIntyre, Lecturer in Law, University of South Australia
270. Miriam Reventlow
271. Anna Blus
272. Yasmina Gourchane
273. Dr Lesley Ann Foster, Masimanyane Women’s Rights International
274. Mark B. Taylor, Faculty of Law, University of Oslo
275. Anne Lardy, human rights lawyer
276. Aoife Duffy, School of Law/Human Rights Centre, University of Essex
277. Salil Tripathi, writer
278. Martin Clark, advocacy consultant
279. Rafael Braga da Silva, criminal lawyer
280. Ezequiel Heffes
281. Dr Marco Longobardo, University of Westminster
282. Prof. Ronald C. Slye, Seattle University School of Law
283. Laura Carter, human rights researcher
284. Bellinda Chinowawa
285. Khadidja Nemar, MENA Rights Group
286. Taisuke Komatsu
287. Brian Frenkel
288. Anna Chiapello, international humanitarian law and human rights lawyer
289. Dr Simone Jeger
290. Vijaya Khaitan, AFI/IRC
291. Eleanor Pritchard
292. Federica Tronchin
293. Amanda Ghahremani, international criminal lawyer
294. Professor Louise Mallinder, Queen’s University Belfast, School of Law
295. Kirsten Ainley, London School of Economics
296. Stephanie Johanssen, UN Representative, Women’s Refugee Commission
297. Helena Marambio
298. Linda MacDonald, Persons Against Non-State Torture
299. Jeanne Sarson, Persons Against Non-State Torture, Canada
300. Gunilla S. Ekberg, human rights lawyer
301. Katherine Gallagher, human rights attorney
302. Sarah Kihika Kasande, human rights lawyer
303. Maya Brehm, Article 36
304. Tess Graham
305. Dr Kate Seear, Associate Professor, Monash University; Lawyer
306. Làzarie Eeckeloo
307. Douglas Guilfoyle, University of New South Wales, Canberra
308. Dr Xavier Aurey, Essex University, School of Law
309. Nicolás Carrillo-Santarelli, Universidad de La Sabana
310. Megan Walker, Executive Director, London Abused Women’s Centre
311. Lucia Kula, law researcher, SOAS University of London
312. Tina Minkowitz
313. Melissa Akhir
314. Teresa Cabrita
315. Julie Bardeche, human rights lawyer
316. Ilaria Fevola, human rights lawyer
317. Ana María Mondragón D.
318. Nicoletta Montefusco, international criminal and human rights counsel
319. Audra Martin Merrick
320. Andra Matei, Avant-Garde Lawyers

Note: The list of signatories to this letter is being regularly updated. As at 6 July 2019 00.30am CEST, it contained 320 signatories. Institutional affiliation is made for identification purposes only, the views may not reflect the position of our employers, and the signature is made in our personal capacity.

CC: Prof. Nils Melzer, United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

H.E. Mr António Guterres, Secretary-General of the United Nations

Ms Beatriz Balbin, Chief of Special Procedures Branch

Mr Coly Seck, President of the Human Rights Council

Mr Christophe Peschoux, UN Chief of Section for mandates on torture, religion and belief, and human rights and counter-terrorism

Ms Peggy Hicks, Director, Thematic Engagement, Special Procedures and Right to Development Division