If you’re reading this on a PC, there’s a good chance that your anti-virus protection is based on a program designed by John McAfee.  Mr. McAfee, 67, was a pioneer of anti-virus software, and the company that bears his name is today one of the largest anti-virus companies in the world.  At one time, his net worth exceeded $100 million, but his fortune dwindled and in 2008, he moved from the U.S. to Belize.

There, Mr. McAfee apparently led an increasingly extreme lifestyle, which included drugs, prostitutes, and feuds with his neighbors.

It’s seems Mr. McAfee also had an uneasy relationship with the authorities in his new country.  In April of this year, the Belize Gang Suppression Unit raided his house looking for a Meth lab.  Mr. McAfee was briefly detained and then released.

His current odyssey began on November 12, 2012 when police started searching for him as a “person of interest” in connection to the murder of his neighbor in Belize, another expatriate American, who was shot to death.

Mr. McAfee fled to Guatemala and–like any respectable computer guy–started a blog to chronicle his ordeal.

After almost a month on the lam, the Guatemalan authorities apprehended Mr. McAfee for entering the country illegally, and prepared to deport him to Belize.  Mr. McAfee promptly requested asylum.  Just as promptly it seems, the Guatemalan authorities denied his request.  According to the Washington Post:

McAfee’s legal team said they were preparing to appeal the denial of asylum to the country’s constitutional court, a process that could give McAfee perhaps another day or two in Guatemala.  The court would have to issue a decision within 48 hours.

For his part, Mr. McAfee appealed for his blog readers to please “email the President of Guatemala and beg him to allow the court system to proceed, to determine my status in Guatemala, and please support the political asylum that I am asking for.”  He adds, “Please PLEASE be very POLITE in your communications, and I thank you.”  (Mr. McAfee is blogging from jail in Guatemala, which he called a “groundbreaking activity”).

As of this writing, Mr. McAfee’s asylum case is still on appeal.  But it seems to me that under the international law definition of asylum, Mr. McAfee simply does not qualify.  First, to receive asylum, a person must demonstrate that he has a well founded fear of persecution (as opposed to prosecution).  “Persecution” is (usually) some type of severe physical harm. There is no indication that Mr. McAfee will be prosecuted in Belize, let alone persecuted. He is currently a person of interest in a criminal investigation. This is a far cry from being detained and/or physically harmed.

Possibly, the murder investigation is a pretext for persecuting Mr. McAfee.  Indeed, he claims that there is a “political vendetta” against him because he did not “donate enough money to the government.”  Even if this is the case, he must show that the persecution is “on account of” his race, religion, nationality, particular social group or political opinion.  Unless there is more to the story, failure to “donate” money to the government would not fall into one of these protected categories.

Finally, even if Mr. McAfee faces persecution in Belize on account of a protected ground, he is still not eligible for asylum.  The reason is that he is a citizen of the United States.  Asylum is available to people who face persecution from their home country; not from a third country. To avoid persecution, Mr. McAfee could (theoretically at least) receive protection from the U.S. government. In his blog, Mr. McAfee states that he asked the United States Embassy for help, but they told him that there was nothing they could do.

While I think that Mr. McAfee cannot qualify for asylum, I certainly believe that the government of Guatemala should not return him to Belize if there is reason to believe that he will be persecuted or tortured in that country. The UN Convention Against Torture (which Guatemala ratified) would prevent Mr. McAfee from being sent to Belize if he would be tortured there.

While his claims seem far-fetched (the president of Belize called them “bonkers“), Mr. McAfee, like everyone else who fears harm if he is deported, should not be removed without due process of law.  Obviously, asylum law and the UN Convention Against Torture cannot be used to subvert the criminal law.  But if someone fears harm in a country, he should not be sent to that country until his claim is reviewed on the merits.  In this case, before he is sent anywhere, Guatemala and the United States (through its embassy) should ensure that Mr. McAfee does not face persecution or torture if he is returned to Belize.