Before the Law

Amid all the clamour around Julian Assange, it's proving dangerously easy for parties on both sides to forget why the law matters - and what it is for. We must not let political games or cults of personality distract us from its vital role in protecting the innocent - and even the guilty.

When all this first blew up I, as a journalist, was extremely worried about what looked like a plot to extradite an individual who had made enemies through his pursuit of the truth to the US, a country with a terrible record on the treatment of (unofficially) political prisoners. I was suspicious about the rape allegations as the nature of the crime, coming down to one person's word against another, makes it a common choice for framing individuals with powerful enemies. That changed for me when I read Assange himself describe, almost casually, how he had sexually penetrated a woman he was staying with without her consent. Now either Assange is a liar, in which case he cannot be trusted when he proclaims his innocence and anyone should be able to see that he must face trial; or he is an honest man, in which case he is a self-confessed rapist and must face trial. His victim (and possibly a second victim) is the only innocent here.

That doesn't change the fact that issuing an international arrest warrant for rape is an exceedingly unusual move. Several factors need to be taken into consideration here. Yes, Sweden could be trying to obtain custody of Assange so it can hand him over to the US in exchange for political or diplomatic favours. It could be taking the case more seriously because Assange's high profile means it can use him to set an example (something any good defence lawyer should challenge). It could even be that, in light of the popularity of the Millennium books and films, which challenged Sweden's record on the prosecution of crimes of violence against women (in specific relation to the protection of an individual perceived as a foreign policy asset, no less), it is anxious to redeem its reputation. And there is the possibility that it has simply decided it ought to take rape more seriously. There lies the rub. Why doesn't every country take rape more seriously? Why is it still so easy for people to get away with it by skipping across national borders?

Now Ecuador enters the fray. One wonders, what did those who raised bail money for Assange think they were supporting? Was it Wikileaks and the principle of freedom of speech? Now that they have lost it, as he has forfeited his bail conditions to take refuge in the Ecuadorian embassy, it's painfully clear that Wikileaks was, for him, never the priority (imagine what it could have done with that money - or what a difference it might have made to Pte. Manning's defence fund, something Assange keeps claiming to support whilst actually doing very little). The superb work that Wikileaks has done in many areas no longer makes headlines; all the focus is on its sometime leader, with the self-styled martyr's image that probably helped him to get access to his victim(s) in the first place. Of course, a martyr can be a political asset like any other, and many people are assuming that's why Ecuador has taken him in (and now granted him asylum) - to make a grand statement and stick two fingers up at the United States. If I were them (and if I were Assange) I'd be more wary. The value of assets varies over time. Can he really guarantee that Ecuador won't choose to sell him on in the future? In 2006 the IVK PAX study found that Ecuador had the fourth highest kidnapping rate of any country in the world. In such a context it would be easy for a valuable asset to disappear and turn up in American hands without anybody being able to prove who was responsible. No law could protect Assange from this.

Then there's the matter of Assange's current self-imposed house arrest in that embassy. How could he get to Ecuador without first traversing UK territory and being arrested? He might be smuggled out, but where to? No Ecuadorian ship will be allowed into UK waters in this situation, so he'd need to undertake quite a journey under the eyes of multiple expert security teams and journalists. Giving him diplomatic status is not an option as that would require the permission of the nation in which the embassy is based, i.e. the UK. That country retains the option of announcing that it has found a new home for the embassy, reassigning its protected status to that building, and arresting Assange during he transfer, but it is unlikely to undertake this because the precedent it would set could endanger its own diplomatic staff in a number of other countries. So everybody waits.

In the midst of this, Assange's supporters claim he has offered (a) to be questioned by Swedish investigators within the embassy; and (b) to go to Sweden if they can guarantee he won't be extradited to the US. Both of these offers look reasonable on the surface, but let's look more closely. What kind of precedent would it set for Sweden to be bullied into shifting part of its judicial process overseas? What damage would that do to Sweden's international reputation? More than it could afford, as it would undermine any future international arrest warrants it might feel the need to issue. And could Sweden realistically rule out all possibility of a future extradition under the terms of a warrant it may as yet have no inkling of? Of course not - in fact, it may very well find that it lacks the legal power to resist such a warrant.

Swedish justice has been extensively demonised in the course of this case. Nevertheless, the fact remains that the UK has effective extradition treaties with the US - ones particularly amenable to the latte party, in fact, as they even allow the extradition of UK citizens with learning disorders that leave them ill-equipped to cope in the US judicial system. If I were seriously worried about being extradited to the US, I'd far rather be in Sweden than in the UK.

Temporarily, we have a stalemate. Unless it has got ulterior motives (which may include bargaining over Assange whilst he's still in London), Ecuador has bitten off more than it can chew. Sweden cannot be seen to back down and the UK cannot escape its duties to Sweden. Everybody seems hamstrung by legal restrictions and we come back to that question, what is the law for?

At the bottom of this are three sets of abuses. The first is the abuse of due process at Guantanamo Bay and in the trial of Pte. Manning - if the US had not chosen to go down that road, nobody (except possibly Assange himself) would have a problem with him being sent there. The second is the abuse of diplomatic process by Assange and by the staff at the Ecuadorian embassy who chose to shelter him, which places at risk the embassy's greater duty, to promote its national interests and thereby to support Ecuadorian citizens. Thirdly, there is what started all this - an allegation of rape. The ugliest thing about the case is that this is now rarely discussed in anything other than political terms. People are forgetting that, if it happened as Assange described, it was an act with real human consequences - and not just for its perpetrator. It is treated as an inconvenient detail in a much bigger political game.

What is the law for? It is for this: to give an individual who has been the victim of injustice some hope of mediated restitution. It is there to persuade a raped woman that she has options beyond picking up a knife and plugging her attacker full of holes.

We all benefit from the rule of law, whether innocent or guilty. And no matter how tempting different bargaining strategies may seem to the various governments involved in this case, it would behove them to remember that when faith in the rule of law disappears at that very basic level, so does the foundation on which the whole edifice of civic society is built. Regardless of the other issues here, none of us can afford to perpetuate a process whereby powerful men can get away with abusing others because there is always something more important to deal with. There is nothing more important than justice, and if we can't secure it for victims of rape, we can forget about trying to remedy injustices between nations.