This, of course, is a central question in refugee and asylum law -- when does prosecution by a state cross the line from legitimate investigation into persecution, thus rendering the accused eligible for refugee status? We've recently seen an abundance of examples of this phenomenon, which illustrates the complex relationship between refugee law and global politics.
In some cases, the prosecuting state's motives are obviously illegitimate, seeking to punish dissidents for engaging in activities protected by international law.
So, we saw yesterday, in Burma, Aung San Suu Kyi was arrested and charged with "violating the rules of her house arrest" after an American man entered her home; under Burmese law, she could face five years in prison for this infraction. Not only is the underlying house arrest an attempt to silence a political critic, but the charges seek to punish Suu Kyi for exercising her right to freedom of association.
The same day, in Zimbabwe, human rights lawyer Alec Muchadehama was arrested outside Harare's Magistrates Court for "obstruction of justice"; his "crime" was speaking to the court clerk in an attempt to free three political prisoners.
These examples illustrate one end of the prosecution/ persecution spectrum, with obviously politically motivated charges in countries that lack any pretense of the rule of law, and make for relatively straightforward refugee claims.
Determining the existence of persecutory prosecution can be significantly more complicated, however, as illustrated by Monday's spat between Bolivia and Peru. Bolivian President Evo Morales, who seeks extradition of three former government officials accused of genocide, was angered by Peru's grant of asylum to one of these officials (and review of asylum claims by the other two). Morales has charged these and other officials, as well as the former Bolivian president, with genocide for their role in soldiers' killing of 63 anti-government demonstrators in 2003. The officials argue that the charges are a "political witch hunt" and that they can't get a fair hearing. Presumably on similar grounds, the former president, Gonzalo Sanchez de Lozada, was granted asylum in the United States in 2007. So are these criminal charges persecution? The other side would argue that the former government's security forces violently gunned down indigenous protesters demanding political representation, and should be held accountable for their crimes.
A similarly complex story unfolded in England last month, when the High Court held that four accused génocidaires from Rwandans could not be extradited because they would not receive a fair trial in Rwanda. The decision relies on extensive evidence, including expert testimony from Filip Reyntjens and Philippe Sands on behalf of the accused and William Schabas on behalf of the Rwandan government, to analyze whether the accused would face an independent and impartial tribunal and whether there would be adequate protection for their witnesses in Rwanda. Is the lack of procedural safeguards in Rwandan courts so dire that trials before them would constitute persecution? This was not, of course the precise question before the court, which was, rather, deciding whether or not to extradite. But its opinion amply illustrates the heavily politically contested nature of this point. In such situations, where assertions of fact are diametrically opposed and an offer of asylum can itself be viewed as a politically aggressive act, is there any hope that refugee determination processes can remain apolitical, impartial, and fair?