What the UK court’s arguments in the Assange extradition case tell us about misuse of humanitarianism in law.
In the United Kingdom court decision sparing WikiLeaks founder Julian Assange from extradition to the United States (for now, pending appeal), the intimately symbiotic relationship between humanitarianism and violence was evident once again.
Judge Vanessa Baraitser ruled that it would be “oppressive” to extradite Assange – but not because of the injustice of the US government’s campaign of retribution against him for exposing its massacres, misrepresentations and manipulations, but rather due to the fragility of Assange’s mental health.
The same “justice” system that has eviscerated Assange’s mental wellbeing with prolonged psychological torture, in the assessment of the UN special rapporteur on torture, now poses as his hope for salvation.
Like a large-scale governmental version of Munchausen by proxy, the state mystifies its own role in producing the pathology in question, then attempts to extract moral capital from exhibiting a modicum of care. Structural violence creates the need for humanitarianism, which mitigates some of the excesses of violence, ensuring the flourishing of both violence and humanitarianism.
Judge Baraitser not only declined to find that the US’s prosecution of Assange is for political “offences” – and therefore barred by the UK-US Extradition Treaty – but held that there is no judicially enforceable barrier against political extraditions at all: “the defence has not established that the UK-US treaty confers rights on Mr Assange which are enforceable in this court” since the treaty is “not yet incorporated into domestic law”. Perversely, according to this judgement, Assange (and other extradition targets) are subject to the treaty, but precluded from invoking its protections.
The fact that Assange revealed damning truths about state atrocities that would otherwise have remained concealed was also dismissed as irrelevant. “The defence have not established that the principle of the ‘right to truth’ is a legal rule that is recognised in either international law or domestic law.”
The defence of necessity was similarly discarded: “he [Assange] has not provided evidence of any individual incident which was going to create a danger to members of the public which his disclosure was designed to avoid.”
US allegations that WikiLeaks endangered the lives of US military informants, in contrast, were accepted as reality despite the absence of evidence. In a remarkable feat of guilt transfusion, it is not the US military but Julian Assange who is inculpated for having “blood on his hands”.
Having stripped away all of Assange’s defences, the court left him with no shield against extradition other than his own psycho-pathologisation – continuing the long tradition of depoliticising claims for justice by reframing them as issues of the claimants’ “mental illness”.
Judge Baraitser concluded that exposing Assange to the tortures of US super-maximum security imprisonment under “special administrative measures” – characterised by intensive solitary confinement and sensory deprivation – would create a serious risk of suicide. She located the underlying problem, however, not in the pathologies of the US carceral system but in the dark recesses of Assange’s psyche. “Whilst the imminence of extradition or extradition itself would trigger the [suicide] attempt, this would not be its cause; it [would be] Mr Assange’s mental disorder that would lead to an inability to control his wish to commit suicide.”
In some quarters, this decision has been hailed as a takedown of US mass incarceration. But in fact, the carving out of such “humanitarian” exceptions has proven to be perfectly compatible with the entrenchment of carceral rule.
“Reform efforts targeting protected categories like the young, or the mentally ill, or more recently, pregnant women, leave behind a core of people who are not young, not (yet) mentally ill, not pregnant, and therefore not deserving of protection,” notes criminologist Keramet Reiter. “This durable core of punishable subjects becomes an ongoing justification for the need for solitary confinement.”
Professor Reiter’s research shows how human rights litigation provided the design template for the torture chambers of US super-max prisons. Judges castigated the dark, unsanitary, violent, noisy “holes” of previous solitary confinement regimes. So in the super-max version of solitary 2.0 (constitution-compliant edition), the fluorescent lights are left on 24 hours a day, the cells are constructed of sterilised concrete and steel, hi-tech automated food flaps remove the need for any human interaction, and heavy sealed doors muffle the sounds of prisoners’ cries.
Everything exceeding the courts’ bare minimum requirements has been recast as a superfluous “privilege” and eliminated – corroborating writer Arundhati Roy’s observation about human rights serving as a discount substitute for justice.
US super-maxes are a “clean version of hell,” in the words of a former warden quoted in another extradition case, Babar Ahmad and Others vs the UK. While the UK requires assurances that those extradited will not be subject to the quick death of execution, imposition of the slow, “living death” of solitary confinement is allowed.
In extradition cases like Babar Ahmad and Others vs the UK – in which the defendants have been British Muslims accused of amorphous “terrorism” offences – mental illness and disability have not been grounds for empathy and alleviation of punishment, but further demonisation. The colonial exception to humanitarian protections for those deemed “savages” and “barbarians” – or as they are known in contemporary terminology, “terrorists” and “unlawful combatants” – continues to operate under the aegis of universal human rights.
Babar Ahmad and Talha Ahsan, for example, were extradited to solitary confinement in the US in 2012, despite diagnoses of post-traumatic stress disorder (Ahmad) and depression and Asperger syndrome (Ahsan).
In the European Court of Human Rights decision green-lighting the transfer, the US’s supposedly “long history of respect of democracy, human rights and the rule of law” was cited as a justification. Both Ahsan and Ahmad ultimately pleaded guilty under the threat of life sentences, although the sentencing judge subsequently acknowledged that neither was engaged in “operational planning or operations that could fall under the term ‘terrorism’.”
Their co-complainant Haroon Aswat received a temporary reprieve from extradition, due to his diagnosis of paranoid schizophrenia, but this was ripped away following US assurances he would receive treatment in incarceration.
“No mechanism is available for verifying the claims made in the assurances,” as a group of experts on US terrorism prosecutions pointed out. “In effect, the decision meant Haroon Aswat could be subjected to the mental health deterioration that will most likely result from solitary confinement … so long as he enjoys occasional access to a psychiatrist.” “Assurances” become a humanitarian shield for abuse.
In our “humanitarian present”, the “moderation of violence is part of the very logic of violence,” as academic Eyal Weizman dissects in his book The Least of All Possible Evils: Humanitarian Violence from Arendt to Gaza. “It is through this use of the lesser evil that societies that see themselves as democratic can maintain regimes of occupation and neo-colonization” – not to mention torture and mass incarceration.
Documents publicised by WikiLeaks illuminated how practices of domination are packaged in the logic of humanitarianism: a blueprint for self-proclaimed virtuous violence.
The Guantanamo Standard Operating Procedures manual, for instance, contained detailed instructions for stripping and shackling detainees (many wrongfully captured, including elderly men and children), inflicting psychological terror with military dogs, force-feeding hunger strikers (a form of torture), violently disciplining “mass suicide” attempts, and performing “Muslim funerals and burials”. But not to worry – camp officials must “respect all detainees as human beings and protect them against all acts of violence.”
The US military’s Rules of Engagement for Iraq, meanwhile, authorised soldiers to inflict “collateral damage” of up to 30 civilians at a time. But rest assured – all “use of force” will be “necessary and proportional.”
In practice, as we also know from WikiLeaks, this meant shooting pregnant women, disabled people, and children at checkpoints, killing Iraqis trying to surrender, and gunning down journalists and rescuers from helicopters (the infamous “collateral murder” video). None of which were prosecuted as war crimes, under an international humanitarian law (law of war) that condemns the indiscriminate violence of the poorly-resourced while privileging the “precise,” technologically-advanced carnage of powerful states.
As US General James Mattis warned prior to the invasion of Fallujah in 2004, “We will always be humanitarian in all our efforts … May God help them when we’re done with them.”
And yet Assange is the one who is in the dock. Having unmasked the machinery of imperialism, he is now being crushed within its gears. In one of his final acts as US president, Donald Trump refused requests to grant Assange clemency, having previously pardoned four Blackwater mercenaries for the 2007 Nisour Square massacre in Baghdad: a reminder that the power to save and the power to condemn are two sides of the same coin.
If the prosecution of Assange is permitted to succeed, it will be yet another brick in the fortress of impunity for those who kill, torture and invade in humanitarianism’s name.
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