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Human-Rights Lawyers React to a UN Official’s Definition of Rape


Nils Melzer, the UN special rapporteur on torture, was criticized by hundreds of international human-rights lawyers recently for his “problematic definition of rape,” as expressed in an essay he wrote online about Julian Assange of Wikileaks. JEAN-MARC FERRE/UN PHOTO

A group of several hundred international human-rights lawyers reacted to a first-person opinion piece published by the United Nations expert on torture that “had a problematic definition of rape,” according to the lawyers’ open letter, published on July 1, expressing their legal views.

The exchange between the human-rights experts and proponents and the UN specialist, Nils Melzer, played out on the blogging site Medium and on Twitter most of last week, where PassBlue discovered the exchange.

The letter, signed by more than 320 human-rights lawyers as of July 7 and led by a group called Atlas Women, focused on an essay by Melzer, the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in which he describes his assessment of the Julian Assange case, including Assange’s related past rape allegations in Sweden. Melzer is an international lawyer and academic based at the University of Glasgow.

Originally from Switzerland, Melzer was named the special rapporteur on torture, an unpaid position, by the UN Human Rights Council in 2016, to independently investigate allegations of abuse. Previously, he held the human-rights chair at the Geneva Academy of International Humanitarian Law and Human Rights. He is an expert in international law governing the use of force and a former delegate for the International Committee of the Red Cross in conflict areas.

Melzer landed in the news in May 2019 for visiting Assange, the Wikileaks founder, in a British prison to assess his condition, after Assange was arrested for bail violations after holing up for years in the Ecuadorean embassy in London, amid extradition charges by the United States government. (Melzer described the treatment Assange had received by various related governments, including the US and Britain, as “psychological torture” and the US indictments as the “criminalisation of investigative journalism.”)

Assange faces extradition charges for leaking confidential US documents; years ago, he was also accused of rape by the Swedish government, charges that were dropped but Sweden has since reopened.

The letter from the human-rights lawyers associated with Atlas Women, a global organization supporting women in careers in international public law, takes issue not only with the conduct of Melzer regarding what legally constitutes rape but also whether his view aligns with “the demands” of his UN mandate, according to the letter posted on Medium.

The letter notes at the top that the signees “are deeply disturbed by the way he approaches the allegations of sexual assault in this case.”

Melzer’s opinion piece, published on June 26 to commemorate the International Day of Torture Victims, is a first-person account, titled “Demasking the Torture of Julian Assange,” explaining why, as the UN special rapporteur on torture, he considered looking at the case of Assange.

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It begins: “I know, you may think I am deluded. How could life in an Embassy with a cat and a skateboard ever amount to torture? That’s exactly what I thought, too, when Assange first appealed to my office for protection. . . . But once I looked into the facts of this case, what I found filled me with repulsion and disbelief.”

He delves into the rape allegations against Assange, the tone of which the letter writers found “unbecoming of a UN mandate holder.”

Melzer writes: “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 “go figure” trope continues, as he writes: “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.”

The letter writers say, in response, “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, they say Melzer “dismisses the allegations on the basis that they do not ‘have the ring of rape in any language other than Swedish’ ” — which they say is “incorrect.” They note that 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.”

Second, the lawyers note that 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, the writers also note in their response, “has determined that most European states do not require a victim to physically resist.”

Finally, the signees say, “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 letter further points out Melzer’s general thoughts on rape, published on June 8 in an interview with Russia Today, the government-run media site, in which he says:

“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.”

The international lawyers’ group sent their letter to top Human Rights Council officials, including Michelle Bachelet, the human rights commissioner, as well as to António Guterres, the UN secretary-general.

Melzer continues his first-person essay on Medium, after discussing the rape allegations against Assange, by relating them to his Wikileaks-disclosure actions, saying, among other things, “In the end it finally dawned on me that I had been blinded by propaganda, and that Assange had been systematically slandered to divert attention from the crimes he exposed.”

He also put at the end of his essay: “This Op-Ed has been offered for publication to the Guardian, The Times, the Financial Times, the Sydney Morning Herald, the Australian, the Canberra Times, the Telegraph, the New York Times, the Washington Post, Thomson Reuters Foundation, and Newsweek. None responded positively.”

Melzer has replied to the signees in another Medium post. In his July 2 response, he wrote about the rape accusation from Sweden, saying, “Most notably, you take issue with my conclusion that the allegations made by the two concerned women (AA and SW) do not warrant the prosecution’s finding of ‘rape.'”

He adds: “I fully agree with you that the defining element of ‘rape’ is lack of consent, and not the use of violence, and also that such consent can be conditional (e.g. on the use of a condom) and can be withdrawn at any moment. We have all come a long way in getting this definition of ‘rape’ accepted in international law, and nothing in my article intends to question this important achievement in any way, neither generally nor in the case of Assange.

I also would like to point out that sexual allegations not amounting to ‘rape’ may still amount to serious sexual offences, such as sexual assault. My article discusses the deliberate misuse of the term ‘rape’ by the Swedish prosecution in the case of Assange, against the stated intent and account of both women involved.”

After describing the rape accusations and the Swedish government’s response, Melzer concludes, saying, “As far as the case of Assange is concerned, however, I stand by my conclusion that the available evidence does not warrant the prosecution’s finding of ‘rape.’ “

He also addresses the attitude of his June 26 essay: “Beyond questions of law, you also take issue with my tone, which you deem to be ‘insensitive to victims.’ Please let me assure you that, in two decades of work with victims of war and violence, sometimes under very difficult and dangerous circumstances, I have seen and suffered too much myself to be intellectually or emotionally capable of ‘mocking’ potential victims.”

Contrite, he adds, “No one can always find ‘bullet-proof’ wording, which cannot be criticized, taken out of context, or simply be misunderstood in good faith. I therefore sincerely apologize to anyone who has been inadvertently hurt by my words, and I hope you will accept my assurance that my mandate and I will always stand by your side.”

Dulcie Leimbach is a co-founder, with Barbara Crossette, of PassBlue. For PassBlue and other publications, Leimbach has reported from New York and overseas from West Africa (Burkina Faso and Mali) and from Europe (Scotland, Sicily, Vienna, Budapest, Kyiv, Armenia, Iceland and The Hague). She has provided commentary on the UN for BBC World Radio, ARD German TV and Radio, NHK’s English channel, Background Briefing with Ian Masters/KPFK Radio in Los Angeles and the Foreign Press Association.

Previously, she was an editor for the Coalition for the UN Convention Against Corruption; from 2008 to 2011, she was the publications director of the United Nations Association of the USA. Before UNA, Leimbach was an editor at The New York Times for more than 20 years, editing and writing for most sections of the paper, including the Magazine, Book Review and Op-Ed. She began her reporting career in small-town papers in San Diego, Calif., and Boulder, Colo., graduating to the Rocky Mountain News in Denver and then working at The Times. Leimbach has been a fellow at the CUNY Graduate Center’s Ralph Bunche Institute for International Studies as well as at Yaddo, the artists’ colony in Saratoga Springs, N.Y.; taught news reporting at Hofstra University; and guest-lectured at the Columbia University Graduate School of Journalism and the CUNY Journalism School. She graduated from the University of Colorado and has an M.F.A. in writing from Warren Wilson College in North Carolina. She lives in Brooklyn, N.Y.

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