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.
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.
Originally posted on the Asylumist: www.Asylumist.com.
Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.