Swiss authorities have reportedly concluded that they could protect former NSA contractor Edward Snowden from extradition to the United States, should he testify before a parliamentary commission on the National Security Agency's espionage activities.
Switzerland's weekly "SonntagsZeitung" gained access to a document leaked from the country's attorney general, entitled "What rules would apply if Snowden was brought to Switzerland and the USA submitted an application for extradition?"
In the three-page document, the attorney general reportedly concluded that the whistleblower's safety could be guaranteed inside Switzerland. The only obstacle would be "higher priority state obligations," in other words, potential damage to Swiss-US relations.
In particular, the Swiss parliament could grant Snowden protection in the context of a hearing on the NSA, if the conclusion is made that his actions had "a primarily political character."
Snowden: political refugee?
There's a strong case that Snowden should be granted asylum under Swiss law and in accordance with the UN Convention relating to the Status of Refugees, according to Sarah Progin-Theuerkauf, a professor of European and migrant law at Fribourg University.
The UN refugee convention defines a political refugee as someone who has fled their home country due to a well-founded fear of persecution for their opinions. Based on the past treatment of whistleblowers, there's reason to believe that Snowden has a well-founded fear of persecution at the hands of US authorities for his actions, Progin-Theuerkauf wrote in a legal analysis.
"The case of Chelsea (formerly Bradley) Manning, who was sentence to 35 years in prison in August 2013 because of the publication of documents and videos on WikiLeaks, showed that whistleblowers face extremely hard punishment in the USA," she said.
Manning was held in pretrial detention for nearly three years and spent nine months of that time in solitary confinement. Human rights organizations such as Amnesty International and the UN Special Rapporteur on Torture, Juan E. Mendez, criticized Manning's detention as cruel and inhumane.
"It's not unlikely that Snowden faces a similar fate as Manning, even if he was not a member of the US Army and therefore - in contrast to Manning - cannot be judged under the Uniform Code of Military Justice," Progin-Theuerkauf wrote.
Exception under Swiss law
Swiss law largely mirrors the UN refugee convention. But there's one major exception: Asylum cannot be granted to people who are determined to have acted in a condemnable and unworthy fashion, or who have harmed or jeopardized the internal or external security of Switzerland.
Given that Snowden acted against US law by leaking classified documents, the Swiss government would have to take his personality, motivations and political convictions into consideration before make a decision about asylum, according to Progin-Theuerkauf. But even if authorities decide against asylum, Snowden could still be granted temporary protection.
"In the end result, Edward Snowden would likely have to be granted asylum," Progin-Theuerkauf wrote. "But at the least he would have to be temporarily taken in (as a refugee or a foreigner)."