Is Edward Snowden Protected By International Law?

07/17/2013 11:01 am ET
AP

In a lot of ways, Edward Snowden is no different from any other millennial. He likes pizza, sometimes says stupid things on the internet, and can’t stand to be separated from his computer. Unlike most people his age, Snowden's computer is full of classified documents stolen from the United States government, which is pursuing theft of property and espionage charges against him and seeking his immediate return to face a federal trial. Whether Snowden can avoid prosecution and return to some semblance of a normal millennial life now depends on how well he can navigate the intricate world of refugee law.

Snowden filed asylum requests with several countries and received asylum offers from Venezuela, Nicaragua and Bolivia. The former analyst announced on Friday that he had accepted Venezuela's invitation. However, he needs to reach the Latin American country or one of its embassies to be shielded from prosecution. The United States, for its part, has revoked Snowden's passport and placed him on a no-fly list, effectively cornering the American in the transit zone of Moscow’s Sheremetyevo Airport.

Snowden has repeatedly condemned U.S. efforts to restrict his movements, arguing Washington and its allies make it impossible to enjoy Venezuela's asylum offer. Snowden has argued that attempts to prevent him from traveling to Caracas violate international law, and in particular the right to asylum under Article 14 of the Universal Declaration of Human Rights.

Despite this rhetoric, it is unclear to what extent international law actually protects Snowden at this point.

NON-REFOULEMENT

The Universal Declaration of Human Rights inshrines a set of commonly-held fundamental rights, but is not, in itself, a legally binding document. International customary law surrounding refugees and asylum seekers is instead primarily based on the 1951 United Nations Convention Relating to the Status of Refugees.

Above all else, the Convention establishes the principle of non-refoulement, which expressly forbids states from expelling or returning "a refugee...to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Snowden argued during a press conference in Moscow that he is protected by the principle of non-refoulement, which would bar Russia, one of 145 signatories of the 1951 Convention, from sending him anywhere that would lead him back to the U.S.

To invoke that right, however, he will have to prove that he meets the standards of the UN convention, which defines a refugee as someone who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or...unwilling to avail himself of the protection of that country.”

In order to prove such a claim, Snowden would have to show that he is being persecuted for his political opinions or membership of the social group of whistleblowers, not merely prosecuted for a crime. He would additionally have to show that the crime he is accused of committing was political in nature, because refugee status is not available to those who have "committed a serious non-political crime."

The UN High Commissioner for Refugees' Handbook on Procedures and Criteria
for Determining Refugee Status under the UN Convention states that a crime should be considered political if "it has been committed out of genuine political motives and not merely for personal reasons or gain" and there is "a close and direct causal link between the crime committed and its alleged political purpose and object."

Based on his statements, Snowden's alleged crimes appear to be political in nature. His decision to leak classified documents appears to have been motivated by his political opinions about the overreaches of U.S. surveillance programs, and his goal of bringing an end to these overreaches could not have been achieved without said leaks. As Ben Saul, a professor of international law at the University of Sydney, said: "crimes like 'espionage' are widely regarded as classic 'political offenses.'"

Still, the question remains whether the United States' prosecution of Snowden for espionage rises to the level of persecution. Snowden is being prosecuted for willful communication of classified intelligence information to an unauthorized person, not for expressing his political opinions. The UNHCR Handbook states that "punishment for a common law offense" is normally not considered persecution. However, excessive punishment for such an offense can amount to persecution.

According to Jaya Ramji-Nogales, a law professor specializing in international human rights and immigration at Temple University, the ten year prison sentences for espionage charges the U.S. filed against Snowden do not appear to rise to the level of persecution under international law.

However, several prominent members of the U.S. Government, including Senators Dianne Feinstein and Bill Nelson and Secretary of State Kerry, have suggested that Snowden may be guilty of treason, which carries the possibility of a death sentence.

In 1989, the European Court of Human Rights ruled that Jens Soering, a German national, could not be extradited to the United States because he faced a possible death sentence for murder there. “If [Snowden] were charged with treason," says Ramji-Nogales, "he might have a legitimate claim under the [United Nations] Convention against Torture and maybe even under the Refugee Convention."

However, as Dylan Matthews notes in the Washington Post, the chances that Snowden will actually be charged with treason are low, because the definition of treason set in the U.S. Constitution is an exceedingly high standard. Less than 3 dozen people have been charged with treason in U.S. history, and even Julius and Ethel Rosenberg, who were caught passing state secrets to the Soviet Union in the 1960s, were not. Instead, the pair was charged under the 1917 Espionage Act, the law Snowden is officially accused of violating.

DOMESTIC V. INTERNATIONAL LAW

As of yet, we have no clear indication that Snowden has actually sought refugee status with any nation or formally invoked the principle of non-refoulement. Our best indication of the tenor of Snowden's asylum requests, a leaked copy of the asylum letter he sent to Poland, makes no mention of the UN Refugee Convention or any other legal standards. According to Ramji-Nogales, the letter "is not really a legal document" at all.

Consequently, Snowden's many asylum requests fall under the domestic asylum laws of each country separately, not international law. The specific criteria to receive political asylum vary from country to country, as demonstrated by Snowden's tally of acceptances and rejections. Ultimately, “domestic law governs the availability and procedures for any 'asylum' category arising purely under domestic law and separate from refugee status," explains Professor Saul.

On July 5, Venezuelan President Nicolas Maduro stated that he had granted Snowden "humanitarian political asylum." Under Venezuelan law, asylum falls under a different category than refugee status, and can be granted to anyone who is "persecuted for his or her beliefs, opinions or political affiliation, for acts that could be considered as political crimes, or for common crimes committed for political purposes."

The Venezuelan asylum offer resembles the diplomatic asylum Ecuador granted to WikiLeaks founder Julian Assange, who has been living in the Ecuadorian embassy in London since June 2012. Ecuador cited the possibility of "political persecution” or capital punishment that awaited Assange in the U.S. to justify the approval.

While Ecuador recognizes Assange as an asylum seeker, it did not give the WikiLeaks founder refugee status. Snowden's Venezuelan offer makes the same distinction. This is important, because if Snowden's Venezuelan asylum fell under UN refugee status, other signatories of the 1951 Convention would be bound, at the very least, not to return Snowden to the United States. That is not the case for asylum seekers.

So while Snowden argued in his press conference on Friday that “no state has a basis by which to limit or interfere with my right to enjoy that asylum,” the situation is more complicated from a legal perspective.

SAFE PASSAGE

In addition, if Edward Snowden wants the same protection Assange enjoys, limited though it is, he will have to get himself to Venezuela or one of its embassies or consulates.

The primary barrier to Snowden's travel right now is his lack of travel documents. Snowden accused the United States of "using citizenship as a weapon" and making him a "stateless person" by revoking his passport in a statement released in the WikiLeaks website. However, under U.S. law, the State Department has the right to revoke the passport of a federal felony warrant subject.

According to The Guardian, Snowden was able to travel to Russia using a temporary travel pass issued by Ecuador. In recent days, however, Ecuador’s President Rafael Correa has stated in interviews that the document was issued in error by the Ecuadorian Consul in London. Under Venezuelan domestic law, asylees have the right to be granted identity documents, but the availability of temporary travel documents is not specified.

Snowden's lawyer announced on Tuesday that Snowden applied for temporary asylum in Russia. According to Professor Saul, the approval of temporary asylum could garner Snowden the travel documents necessary to fly to other countries, including Venezuela.

Even if Snowden can get a valid travel document, however, he may still have difficulty reaching Caracas. International law does not require countries to grant safe passage to domestic asylum candidates, and Spain, France and Portugal have already indicated they may refuse Snowden access to their airspace.

Max Fisher at the Washington Post came up with a series of possible routes that avoid the airspace of the U.S. and its allies, but whether such routes are actually feasible remains to be determined.

If Snowden can fly to the Russian Far East airport of Petropavlovsk-Kamchatsky and charter a plane across the Pacific Ocean, as Fisher suggests, he may be able to reach a Latin American country without crossing any unfriendly airspace. From there, he is guaranteed safe passage as a Venezuelan asylee under the 1928 Havana Convention on Asylum, which is signed by most Latin American countries. However, such a flight is both literally and figuratively a long shot.

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