The Asylumist

Ecuador has granted asylum to Wikileaks founder Julian Assange. Foreign Minister Ricardo Patino said Ecuador believed Mr. Assange faced a real threat of political persecution–including the prospect of extradition to the United States, where he would not get a fair trial. “It is not impossible that he would be treated in a cruel manner, condemned to life in prison, or even the death penalty,” the Foreign Minister told journalists in Quito, the Ecuadoran capital. “Ecuador is convinced that his procedural rights have been violated.” Currently, Mr. Assange remains holed up in the Ecuadoran Embassy in London. Given the UK’s lack of cooperation (including a thinly veiled–and quite shocking–threat to raid the Embassy), it remains unclear how he will get out of England to Ecuador.

Julian Assange extradition — Could this be Julian Assange escaping from the Embassy?

I have written about this issue a few times before, and I must admit that I have mixed feelings about Mr. Assange and his “accomplishments.” While it seems that some of the information he helped exposed is important and was being withheld for illegitimate reasons, other information should have remained secret. For example, Wikileaks exposed information about individuals from Afghanistan who were cooperating with the U.S. against the Taliban. Such people now face increased danger in their home country. Also, confidential diplomatic cables that were sometimes unflattering to foreign leaders should have been kept secret. Exposure damaged our international relationships and did nothing to further the cause of freedom. Our diplomats and our military officials need to communicate frankly with each other. This is how policy is made and implemented, and it is how we reach our foreign policy goals (most of which are legitimate). I suppose overall, I believe that Mr. Assange did more harm than good. But I also suppose that my opinion in this regard is not all that important. What I really want to talk about is whether Mr. Assange qualifies for asylum under international law.

It is pretty clear to me that Mr. Assange does not meet the requirements for asylum under international law. First of all, Mr. Assange is a citizen of Australia. He is currently in England and is wanted in Sweden based on a (possibly bogus) criminal charge. If he is extradited to Sweden (as the Brits have agreed to do), he fears that he will then be extradited to the United States. Normally, a person receives asylum from his home country; not from a third country. As a citizen of Australia, he should receive protection from his own government. There is some indication that Mr. Assange is not receiving protection from Australia, but this remains in dispute (Australia claims to be providing him with consular assistance as needed). Of course, if Mr. Assange felt his government would help him, I imagine he would have gone to the Australian Embassy instead of the Ecuadoran Embassy. Regardless of all this, international law provides protection to people who fear persecution in their home country, not in a third country, and so Mr. Assange would have a hard time qualifying under this standard.

Second, Mr. Assange is wanted for two crimes–sexual assaults–in Sweden. He claims that the charges have been contrived to punish him for exposing state secrets. That may well be true, but there is no indication that Sweden would deny him a fair and public trial. Also, there is no indication that he would be punished in Sweden for his Wikileaks activities. All in all, there seems to be no basis for Mr. Assange to receive asylum from Sweden.

Third, Mr. Assange claims that Sweden would deport him to the United States, but this is pretty speculative. So far, the U.S. has not asked Great Britain to extradite him (although there was a rumor about a secret indictment). That being the case, what credible evidence can he present to demonstrate that the U.S. will ask Sweden to extradite him?

Finally, despite the comments of the Ecuadoran Foreign Minister, there is no evidence that Mr. Assange faces persecution–as opposed to prosecution–in the United States. As far as I know, exposing government secrets is illegal in every country. People who violate this law may be punished according to the law. Unless the punishment rises to a certain level of severity (for example, the death penalty), it would not equate to “persecution.” In Mr. Assange’s case, there is no reason to believe that he would face the death penalty. Even Bradley Manning, the U.S. Army private who leaked information to Wikileaks, is not facing the death penalty. Also, most European countries will not extradite a suspect to the United States without assurances that he would not face the death penalty. It is very unlikely that Sweden (or Great Britain) would extradite Mr. Assange to the U.S. without such assurances. As he does not face “persecution” in the U.S., he would not qualify for asylum from the United States.

For all these reasons, Mr. Assange would not qualify for asylum under international law. Ecuador has its own reasons for granting Mr. Assange asylum. Maybe they truly believe he will be persecuted (as opposed to prosecuted) in Sweden or the United States. Maybe they just want to annoy the the U.S. and the West. Maybe they see it as a way to score propaganda points. Who knows? What seems certain, though, is that Ecuador is not granting Mr. Assange asylum because he satisfies the requirements for asylum under international law.

Some time ago, I wrote about Wikileaks founder Julian Assange and concluded that he does not qualify for political asylum under international law.

To win asylum, Mr. Assange would need to demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group. Although Mr. Assange’s political activities might be protected under international law, he also would have to show that he faces persecution–as opposed to prosecution–in his home country (or possibly in a third country–see below). Given Australia’s positive human rights record, I felt that Mr. Assange could not show that he would be persecuted in Aussie-land. Nevertheless, I conclude:

While Mr. Assange probably does not meet the international law standard for asylum, his notoriety gives him opportunities not available to other asylum seekers. Already, Ecuador has (informally) offered him residency. Other countries might well follow suit, either because they think it is the right thing to do, or because they want to aggravate the United States and the West. But if they do grant asylum to Mr. Assange, it won’t be because he meets the requirement for asylum under international law.

Ecuador seems a lot nicer than a U.S. prison.

I agree with what I wrote back then, but there is a new development. Mr. Assange fears that if he is extradited to Sweden, he would ultimately be sent to the United States, where he has allegedly been indicted. From the Huffington Post:

Assange fears that once extradited to Sweden the local authorities would later hand him over to the U.S. government. Washington in turn could deal harshly with the WikiLeaks fugitive for leaking classified American diplomatic correspondence. The native Australian says that the Obama administration has a secret indictment against him and fears that if he is extradited to the U.S. he could face the death penalty for espionage and sedition.

First, a person normally would not receive asylum when he fears persecution in a country other than his home country. Why? Because he can presumably receive protection from his home government. In this case, however, it is unclear whether the government of Australia will intervene to protect Mr. Assange.

Assuming that Mr. Assange would be extradited to the U.S. and that he would face the death penalty here (and assuming that Australia would do nothing to protect him), he might have a case for asylum under international law. Asylum is sometimes granted for prosecution where the punishment is extremely severe or amounts to torture. For instance, as a judicial law clerk, I worked on the case of an Afghan man who committed a petty offense in his country (during the time of the Taliban). The penalty for the crime was to cut off his hand and his foot. He received asylum in the U.S. In the same way, Mr. Assange might qualify for asylum if the penalty for his actions is death.

However, my guess is that if Mr. Assange is extradited to the U.S., it will be with assurances that he will not face the death penalty (and even Bradley Manning, the United States soldier who supplied Wikileaks with much of its information, is not facing the death penalty). In that case, he will have a hard time demonstrating any potential punishment amounts to persecution, and he will not qualify for asylum under international law. But as I wrote previously, Mr. Assange is a special case, and so will have to wait and see what the government of Ecuador is willing to do for him.

Julian Assange: Legitimate Asylee or Propaganda Pawn?

Wikileaks’ Julian Assange Might Qualify for Asylum