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

Marie Davoise
Jul 1 · 12 min read

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