No more hiding behind borders, Bahrain told
It was game, set and match for Bahraini dissidents Saeed Shehabi and Moosa Mohammed in their case against the Kingdom of Bahrain this week. The UK’s Supreme Court ruled in their favour, rejecting an appeal from Bahrain, which was claiming sovereign immunity from allegations it used spyware to infiltrate the computers of the pair in the UK back in 2011.
We’ve been following the case and it’s hard to downplay this victory both for the men and for the broader ecosystem. The Kingdom had argued that section 5 of the State Immunity Act 1978, which creates an exemption to the act in the event of personal injuries and damage to property, was being misinterpreted and unduly broadened in this case. It said that a proper reading of the Act would afford immunity to states in cases where the actors or some of the acts causing personal injury were located outside the UK.
But section 5 was enacted long before sophisticated spyware existed. The Supreme Court judges therefore rejected these arguments, stating that: “Modern technology enables acts of surveillance to be carried out in the UK remotely. Even if carried out by foreign state actors located outside the UK, such acts involve an infringement of UK territorial sovereignty.”
Leigh Day, the law firm representing Shehabi and Mohammed, said that “the Supreme Court judgment has now settled the scope of section 5 of the State Immunity Act 1978. A foreign state cannot rely on state immunity to escape accountability for personal injury caused by acts within the UK, even where other causative acts take place abroad and the state’s agents are not present in this country. The court has recognised that a rigid distinction between the location of an act and its effects is artificial and unprincipled.”
Shehabi said afterwards that “this is not just a victory for us, but for everyone targeted by authoritarian states beyond their own borders.” He’s right. We’ve been bleating on about transnational repression for years now because it’s prolific and getting worse. And when a dissident is attacked abroad, spyware is often a feature. This ruling makes clear that states can now be held officially accountable. As Shehabi also said after: “The hardest part of being targeted by alleged state-sponsored hacking is the feeling that nowhere is safe”. The UK arguably becomes a touch safer now.
Mohammed said that the “victory changes the balance of power”. He spoke about being tortured by the Bahraini regime since he was a teenager and pursued across borders. “Today, the tables have turned,” he continued. “I am no longer the one being chased. I am chasing justice. I am chasing accountability. The era of abusing victims while hiding behind state immunity is over.”
The UK has earned itself a reputation as a hunting ground for authoritarian regimes, and that’s partly because our response to counter it has been woeful. In some instances, police have told victims to keep a lower profile and that their cases are too hard to tackle because the assailants are overseas. So, it’s good to now have legal clarity on the question of proximity. Being abroad doesn’t grant you a get-out-of-jail-free card.
Jemimah Steinfeld
CEO, Index on Censorship
