Bahrain to Argue at British Supreme Court Over Sovereign Immunity in Surveillance Allegations

The Bahraini government is preparing to claim before the UK's supreme court that it enjoys sovereign immunity from accusations that it deployed surveillance software on the computers of two activists during their stay in London.

Court Proceedings Context

Bahrain has previously lost its immunity argument in the lower court and court of appeal. Bringing the case to the highest court highlights the importance of this matter for the nation's global standing.

If Bahrain prevail, the decision could have broader implications for how authoritarian governments utilize digital spyware to track and possibly target political dissidents living in the UK.

Central Issue of Legal Proceedings

The supreme court hearing, starting this Wednesday, will concentrate on whether the two individuals have the standing to seek compensation despite Bahrain's immunity claim, rather than determining whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher spyware to compromise their computers while they were living in London, causing psychological harm. The court of appeal last autumn supported a previous court decision that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.

Section 5 of the legislation specifies that a state does not have protection from claims for physical or psychological harm caused by an act or omission that took place in the UK.

The ruling will also offer guidance regarding other spyware claims being pursued by law firms on behalf of clients.

Software Capabilities

Attorneys claimed that "The surveillance program can collect large quantities of information from compromised equipment, including capturing all keyboard inputs, telephone conversations, text communications, electronic mail, scheduling information, instant messaging, contacts lists, internet activity, images, data collections, documents and recordings. It allows capture of real-time sound from the equipment's audio input and visual recording device."

Legal Interpretation

The appellate court found that external control, from abroad, of a electronic device located in the United Kingdom represented an act within the British territory. Although the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the United Kingdom had been violated.

A overseas nation does not have protection for psychological harm caused by an action in the UK, even if certain activities occur overseas. The court also ruled that "psychological harm" as defined in the state immunity act included standalone psychiatric injury.

Defense Position

The appeal court ruling noted that Bahrain rejected the accusers' claims of compromising the dissidents' computers with surveillance software, but the high court judge "determined, on the basis of expert evidence, that the claimants had met the burden upon them of demonstrating on the balance of probabilities that their devices were compromised by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the progress to date of the court case regarding the cyber intrusion of my electronic device. It delivers a strong signal to overseas authorities who target their non-violent critics with various means including violating their personal affairs and devices."

Mohammed, who fled Bahrain in 2006 after facing frequent detention within the nation, commented: "This process has now reached the supreme judicial body in the country. I have a duty to reveal what I experienced when I believe Bahrain compromised my device. The impact has been profound – particularly for those who had confidence in me, and for my loved ones."

"Abusive foreign states like Bahrain must be held accountable for wrecking our lives. They cannot be allowed to hide behind state protection to advance their transnational repression on UK territory."

The two individuals have had their nationality withdrawn.

Attorney Commentary

A lead attorney commented: "These proceedings raise fundamental questions about responsibility for the use of invasive monitoring systems against civil society members and human rights defenders. Our represented individuals, and many others we represent, have waited a long time for clarity on these matters."