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Jason Dzubow on Political Asylum

Does WikiLeaks’s Founder Qualify for Asylum?

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This article was originally posted on the Asylumist:

WikiLeaks's Founder Julian Assange has been much in the news lately, having revealed all sorts of U.S. state secrets related to war and diplomacy.  The United States is exploring whether the Australian-born computer hacker can be prosecuted criminally under the espionage act, and Sweden has issued an international arrest warrant, stating that Mr. Assange is "suspected of rape, sexual molestation and unlawful coercion."  Australia is also threatening to arrest him on unspecified charges if he returns. 

As a result, Mr. Assange-who denies the charges-has been hiding somewhere in London, and is considering seeking asylum in Switzerland or Ecuador.  But does Mr. Assange qualify for political asylum under international law?

To obtain asylum, an individual must demonstrate a well-founded fear of persecution in his home country based on race, religion, nationality, political opinion or particular social group. 

Thus, the first question is whether a nexus exists between any potential persecution and one of the protected grounds, in this case political opinion.  Under U.S. law, whistle blowing can be a form of political activity that forms the basis for an asylum claim.  So assuming Mr. Assange's activities constitute whistle blowing (which seems an open question), he has expressed a political opinion, which could form the basis for an asylum claim.

Another question is whether Mr. Assange has a well-founded fear of persecution in Australia.  The Australian government has threatened to arrest him, though for what crime remains a mystery.  Even if he were arrested in Australia, I know of no evidence supporting the conclusion that Australia persecutes its criminals.  His detention alone-even if it were for an illegitimate reason-would only constitute persecution if the conditions of that detention were dangerous and life-threatening, a situation that does not exist in Australia.

A more interesting question is whether Mr. Assange could obtain asylum from Australia if the Australian government would extradite him to a third country where he faces persecution.   Currently, Mr. Assange could be extradited to Sweden, where he faces sexual assault charges, or the U.S., which is considering charges of espionage.  Although the United States's human rights record has been tainted of late, I doubt Mr. Assange could demonstrate a well-founded fear of persecution in either the U.S. or Sweden.  But what if Australia planned to extradite Mr. Assange to another country that does persecute its citizens?  I know of no case law or precedent that would allow Mr. Assange to obtain asylum from Australia on the basis that Australia planned to extradite him to a third country where he would be persecuted.    

So even if Mr. Assange could show that he faces prosecution in Australia or that the Australian government would turn him over to Sweden or the U.S., he would have a hard time showing that he has a well-founded fear of persecution in any of those countries.   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.

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