Can whistleblowers be recognized as refugees?
A Berlin-based NGO has launched a campaign to have whistleblowing defined as grounds for seeking political asylum. Top international lawyers support the initiative.
In early July 2013, just over a week after his arrival in Russia and less than a month after the first details of his revelations about mass government surveillance were published, Edward Snowden applied for asylum in 21 different countries.
One of these applications was to Germany, whose government turned the whistleblower down on the grounds that the "preconditions" for asylum had not been met. The United States, after all, was a democratic country with a strong rule of law, then-Interior Minister Hans-Peter Friedrich said, and anyway Germany had an extradition agreement with it.
But many German people felt differently, and within months campaigns had sprung up calling on the government to grant the former NSA contractor asylum. Tens of thousands of people even bought stickers for their front doors offering "a bed for Snowden," should he make it to German soil.
It didn't work. Edward Snowden is still living at an undisclosed location in Moscow on a residency permit, because the threat of imprisonment for exposing the abuse of power by the US government was not enough of a reason to grant him safety.
Whistleblowers suffer a loss of their livelihoods and persecution for exposing corruption
A legal frontier
But a new campaign by the NGO Blueprint for Free Speech is out to change that, by campaigning for whistleblowing to be formalized as a legal category for political asylum. To that end, the organization hosted a symposium of major legal minds in Berlin on Thursday to discuss the notion. After all, if you expose wrongdoing, corruption, or crime in one country, shouldn't you be entitled to protection?
"We want to see how we can link whistleblower protection law with asylum law," said Blueprint's executive director Suelette Dreyfus. "It's an area that hasn't been explored before. We're on a legal frontier here."
Blueprint describes its campaign, entitled "the Berlin Partnership on Whistleblower Asylum," as the first international effort to establish asylum rights, and the group is setting out to work with the United Nations, the European Union, as well as national governments. "You need both," said Dreyfus. "You need recognition at international level and also at national level to respect international standards or treaties that have been signed on to."
Guy Goodwin-Gill, professor at Oxford University in the UK and a respected authority on international refugee law, saw the potential in the campaign.
"Sometimes national systems of protection don't work, either because of the nature of the information that is disclosed, but also because states often don't have an interest in protecting those who disclose information because they're more interested in protecting their companies, which might be threatened by the disclosure of corrupt practices," he told DW. "If whistleblower protection at a national level fails then those who disclose that sort of information ought to be able to call on international protection."
William Bourdon, a renowned human rights lawyer who represents the LuxLeaks whistleblower Antoine Deltour and is part of an international group of lawyers defending Snowden, was enthusiastic about Blueprint's initiative.
"Whistleblowers should be helped more and more, because it's the duty of the judge to adapt his view to the evolution of society, and it's his duty to adjust his legal views in light of this new generation of whistleblowers," he told DW. "The question is: can we adapt the general legal framework protecting asylum? Because it's a new paradigm, this idea that any citizen coming from nowhere, extremely anonymously sometimes, takes a risk to impose a new public debate, and they can endure political persecution even in countries that are not tyrannies."
William Bourdon (left) arriving in court with LuxLeaks whistleblower Antoine Deltour
Whistleblowing as political opinion
The 1951 UN Convention Relating to the Status Refugees hasn't been updated for the age of the international whistleblower - it doesn't mention persecution for reporting wrongdoing. That's why Blueprint's efforts are being focused on the attempt to bring whistleblowing under the remit of political opinion.
The key, Goodwin-Gill said, is understanding the political dimension to whistleblowing. "The refugee who is a refugee by political opinion is typically the dissident, or the trade unionist, or the activist, not necessarily a whistleblower," he said.
But, he argued, "increasingly the public-private divide is not as clear as it once was," because governments are handing over more government functions to private corporations. If corruption in such corporations is then exposed, it becomes in the public interest - and is therefore political. "And if governments don't step in to protect those who expose corruption, then you've got a degree of complicity on the part of the government, which accentuates the political dimension," he added.
Bourdon agreed: "If you denounce in a despotic country, your move is always political, and you endure political persecution," he said.
There have been cases where whistleblowers have won asylum in other countries - people like Christoph Meili, a security guard at the Swiss bank UBS, who received death threats and was granted asylum in the US after reporting UBS officials who destroyed documents related to Jewish property orphaned by the Holocaust.
"Whistleblowers give up so much of their lives: their freedom, their safety, their anonymity, often their whole careers," said Blueprint's Dreyfus. "They do that for the public good. Well, there's an obligation from the court side to ensure that they're protected."