Snowden asylum claim opens another can of worms

27 June 2013

The US has demanded that other countries cooperate in bringing Snowden to justice, but the law does not simply follow the political demands of a superpower, says Professor Ben Saul.
The US has demanded that other countries cooperate in bringing Snowden to justice, but the law does not simply follow the political demands of a superpower, says Professor Ben Saul.

The flight of Edward Snowden has again focused attention on the global reach of American security powers, privacy and accountability, and debate about brave whistleblowers or ''traitors''. The political controversy has obscured a balanced assessment of the legal issues involved in Snowden's extradition and asylum claim.

The United States has demanded that other countries co-operate in bringing Snowden to justice. But what the law requires does not simply follow the political demands of a superpower. There may be good legal reasons why Snowden should not be extradited, and why Ecuador is entitled to grant him asylum.

International law does not require one country to extradite a foreigner who allegedly has committed national security crimes at home. Some international crimes demand co-operation under widely accepted international treaties, including war crimes, genocide, torture, crimes against humanity, and terrorism.

Beyond those crimes, however, extradition is largely a matter for bilateral co-operation. Individual countries are free to enter into extradition treaties with others - or not. When treaties are made, countries are also free to decide what goes in them. Most importantly, this includes what crimes are covered (usually only serious ones), and whether exceptions may preclude extradition.

For these reasons, extradition law worldwide is a dog's breakfast. Arrangements vary widely depending on countries' interests and domestic legal systems. There are also gaping holes in extradition arrangements. For example, Australia has bilateral treaties with only 38 countries - out of 200 or so worldwide. The US has just more than 100 treaties, including with Ecuador but not Russia. Half the world is Snowden's oyster.

Despite the diversity, some common principles are often found in extradition treaties. First, the ''double criminality'' rule requires the crime to be an offence in both countries. Thus, if Snowden is facing espionage charges in the US, there must be an equivalent offence in the other country's law.

Secondly, a ''political offence exception'' will often preclude extradition where the alleged crimes are ''political'' in nature. Different national laws treat different offences as political or not. But security offences such as espionage are often regarded as political and are thus not subject to extradition.

The historical reasons are complex but boil down to the idea that one country should not interfere in acute domestic political disputes in another, particularly where issues of conscience and liberty are concerned. On this view, it is not the job of Russia or Ecuador or Australia to assist the prosecution of Americans of conscience who breach American national security laws.

Of course, governments are free to depart from this principle by making different arrangements in their treaties. Australia, for example, might decide that its common security interests with the US justify co-operating in the extradition of US national security offenders. Different Australians will have strong views for or against taking sides in this way. But there are good reasons for the exception, born of long historical experience. Extradition law wasn't born yesterday.

The refusal of extradition for political offences historically went hand-in-hand with a grant of political asylum - which Snowden (like Assange) has claimed from Ecuador. Snowden is not claiming ''refugee'' status. But Ecuador's constitution allows asylum to be granted. International law does not prohibit it. Ecuador is entitled to permit foreigners to stay according to its national immigration laws, assuming it does not breach its extradition treaty with the US. It is no different than if Australia granted a discretionary visa to allow a foreigner to stay. It is, of course, politically controversial, but that does not make it unlawful.

Third, extradition law normally imposes a requirement of ''specialty'', meaning that a person can only be prosecuted for the offence for which their extradition was sought. A country cannot request extradition for shoplifting and then, when the person arrives home, spring on them a charge of murder. This may be important in Snowden's case as US investigations gather steam and prosecutors change tack in light of new evidence.

Fourth, a person cannot be extradited to face an unfair trial, discrimination or persecution, or torture or inhuman or degrading treatment. Many countries, including Australia, also forbid extradition to the death penalty. These are absolute human rights limits that cannot be transgressed regardless of the severity of the crime. These are particularly important in Snowden's case, because espionage can carry the death penalty, and we know that Bradley Manning was held in inhuman and degrading conditions in military custody.

Finally, extradition requests must be in the proper form, following the procedure in the treaty and domestic law, and usually involving judicial supervision. These are vital safeguards against abuse. A person must not be deprived of liberty if the requesting country cannot provide enough evidence, due process, or properly fill out the paperwork. Not enough is known to say whether Hong Kong's refusal of the US request was justified - or itself political. Whatever Snowden's good intentions, he is now part of a much larger strategic game.

Snowden's case is another iteration of old battles between those who wish ''to take the gloves off'' to maintain security and those who, as the Israeli Supreme Court said, demand that democracies must respect the law and fight with one hand tied behind their backs. Even a wounded bull must be corralled by law.

Ben Saul is Professor of International Law at Sydney Law School.

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