Edward Snowden

Speculation rife in Hong Kong over Edward Snowden's fate

PUBLISHED : Monday, 10 June, 2013, 5:25pm
UPDATED : Thursday, 29 August, 2013, 4:13am

As Hong Kong authorities remain silent on the whereabouts and potential fate of US whistle-blower Edward Snowden, legal and political experts are weighing in on what could happen and the choices available to 29-year-old former intelligence contractor.

If Snowden wanted to stay in Hong Kong, his best chance would be to apply for refugee status, under the claim that he could be subjected to torture or cruel, inhuman or degrading treatment (CIDTP) or punishment if extradited back to the United States, said Patricia Ho, a solicitor with local human rights law firm Daly and Associates

"With the reports about the treatment of Bradley Manning, there's an arguable case for him facing CIDTP," said Ho in a phone interview with the South China Morning Post on Monday. 

Manning, whose trial started last week, has been held in solitary confinement, made to strip naked at night, and checked every five minutes, causing the UN special rapporteur on torture Juan Mendez to formally accuse the US government in 2012 of violating his human rights.

"The recent judgment in the Court of Final Appeals with Ubamaka, clearly ruled that anyone facing CIDTP cannot be removed from Hong Kong," said Ho.

Hong Kong does not grant asylum itself, but allows those seeking it to stay indefinitely until they are able to find a country willing to host them.

Ho said if it's a simple application for protection as a refugee, the matter would not end up in the city's courts, and be dealt as an administrative issue, but that it would likely end up in the courts if the United States files an extradition order.

She said if the US government could make diplomatic assurances that Snowden would not face degrading treatment or torture if sent back, they could have Snowden sent back home, but whether or not they would be believed after their treatment of Manning, was another question.

Cosmo Beatson, founder of Vision First, an organisation that helps refugees in Hong Kong, said he didn't think claiming refugee status is a viable option for Snowden.

"He'll have to surrender his passport, and he'd have to stay in Hong Kong until his claim is settled. I don't see him wanting to give that up if he's being chased," said Beatson.

He added that since 1992, only four out of 12,500 such claims have been approved.

In Hong Kong, a request for asylum would also trump any US extradition requests, said Nicholas Bequelin, a Hong Kong-based senior researcher with Human Rights Watch.

Yet, the US has yet to charge Snowden for leaking the information he claims to have provided to the Washington Post and The Guardian, but the US Justice Department has confirmed a criminal investigation into the leaks.

Hong Kong has a 1998 extradition treaty with the US, but could refuse to hand Snowden over if Beijing believed its national interests would be compromised, according to the city’s law.

"It is not so much up to the Hong Kong government to do much, after all the Chinese authorities probably have a say in this," said Joseph Cheng Yu-shek, a professor of political science at City University, referring to a clause in Hong Kong's extradition treaty with the US, which gives Beijing a veto in extraditions. 

"If one wants the Hong Kong government to do something, there must be sufficient voice from the civil society," he said. "Mr Snowden has to articulate his position first. Does he want to stay in Hong Kong, what does he propose to do in Hong Kong?"

"Why not give him asylum?" said a senior European diplomat, speaking on condition of anonymity. "A human rights case in which the Chinese grant asylum to an American - what a master stroke for Beijing."

Advisory note by HKU Professor of Law Simon Young on Hong Kong law and procedures concerning Edward Snowden