Persecution vs. Prosecution: The Question of Snowden

By Kathleen Tang, Assistant Contributor

The distinction between persecution and prosecution is a fine line that many asylum seekers tread when looking to leave their home country and resettle in another. Asylum seekers who are prosecuted for committing a crime in their country of origin are typically not granted asylum because doing so may lead to one country stepping on another country’s sovereignty and right to prosecute criminals within its borders. However, prosecution in the country of origin that may result in disproportionately severe punishment, or punishment for a law that is contrary to international human rights standards may fall under persecution. The UN Convention Relating to the Status of Refugees (“Convention”) includes persecution in defining a refugee as someone “unable or unwilling to return to his or her home country because of a well-founded fear of future persecution on account of one of several protected grounds: race, religion, nationality, membership of a particular social group, or political opinion.”

A case that tackles the issue of persecution vs. prosecution and has garnered international attention lately is that of the “whistleblower” Edward Snowden. The Convention states that any person who “has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee,” is not a refugee. Although it seems obvious that Snowden’s act of releasing classified information about American surveillance programs is both political and serious, the analysis is not necessarily so straightforward.

Each country party to the Convention has interpreted it differently. Russia, who has signed the convention, legally (and arguably, politically) made the decision that Snowden fell within the definition of a refugee and granted Snowden temporary asylum in August 2013. Germany is also considering granting Snowden asylum in order to have him testify before an investigative committee of the German parliament. If Snowden leaves Russia, he will lose his asylum status and will necessarily need to reapply. Therefore, if Snowden leave Russia to testify in Germany, they will have to grant him asylum. Political motivations aside, can Snowden legally be considered a refugee under the Convention?

One way that Snowden could be considered a member of the persecuted class versus the prosecuted is if he falls under the protected ground of social group. In this context, social group could be government “whistle blowers” or those who expose misconduct, dishonest or illegal activity occurring within the government. Although political opinion also seems another plausible persecution ground, a US legal case against Snowden would likely center around his leaks and not whatever beliefs led him to leak the information. Therefore it would be difficult for Snowden to claim that he is being persecuted for his political opinion; instead, he probably has a better claim for persecution based on his membership in the social group of “whistle blowers,” amongst others like Wikileaks’ chief Julian Assange.

This leads to an interesting question: how much leeway should countries have in defining these ambiguous groups, both in terms of what is a legally protected social group and who falls within the persecuted vs. prosecuted camp? The question, at least in Snowden’s case, seems to be tinged with politics. Countries are deciding the question of persecution vs. prosecution based on potential political US relation repercussions or bargaining power. In Germany the general public and politicians have gotten involved in calls for granting Snowden asylum, with a group of senior German officials writing a joint appeal requesting asylum for Snowden.

In addition, these are questions that affect many asylum seekers on a day-to-day basis in many countries; however, it is only high profile cases such as Snowden’s that garner widespread attention. Some critics claim that Snowden’s case has delegitimized the claims of many asylum seeks who are truly persecuted by their countries of origin. To these claims, Lory Rosenberg, a former Board of Immigration Appeals Judge responds:

“it does a disservice to the development and practice of asylum law to suggest that the determination of what may constitute unacceptable harm done to human beings by any government is so clear-cut or easily made, or that fears of persecution may be so easily dismissed.”

In her mind, high profile politically charged cases that may seem clear-cut do in fact blur the line between persecution and prosecution. Each individual claim needs to be accorded legitimacy, especially because courts have ruled in the past that persecution arises when an individual may be tortured upon return to a country or receive an unfair trial, a stark reality for someone like Snowden. A challenge to government authority that could trigger retaliation, even under established government laws, can amount to persecution.

The question of persecution and prosecution is one that many countries, asylum seekers, and immigration officials seeks to answer on a daily basis. Although the standards have been set by the UN convention, each case presents its own challenges as to whether a person falls within one of the protected grounds of the convention.  The case of Edward Snowden highlights some of these issues that litter the distinction between persecution and prosecution and since Snowden’s asylum in Russia expires in less than a year, time will tell which camp he will ultimately fall under.