The Gulf nation to Argue at British Supreme Court Over Sovereign Immunity in Spyware Allegations

Bahrain is preparing to argue before the Britain's highest judicial body that it possesses state immunity from allegations that it deployed surveillance software on the devices of two dissidents during their stay in London.

Court Proceedings Context

The Gulf country has previously lost its sovereign immunity claim in the lower court and court of appeal. Bringing the matter to the highest court demonstrates the significance of this issue for the nation's global standing.

Should Bahrain prevail, the ruling could have wider implications for how authoritarian states utilize surveillance technology to monitor and possibly target political dissidents living in the UK.

Key Focus of Legal Proceedings

The supreme court hearing, starting this midweek, will focus on whether the two men have the standing to claim compensation despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher spyware to compromise their computers while they were living in London, resulting in emotional distress. The court of appeal last October upheld a high court ruling that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.

Article 5 of the legislation states that a country does not have protection from claims for physical or psychological harm resulting from an action or inaction that took place in the United Kingdom.

The ruling will also provide clarity regarding other surveillance allegations being pursued by legal teams on behalf of affected individuals.

Software Capabilities

Attorneys stated that "The surveillance program can gather vast amounts of information from compromised equipment, including capturing every keystroke, telephone conversations, text communications, electronic mail, calendar records, instant messaging, contacts lists, internet activity, images, data collections, documents and videos. It enables recording of real-time sound from the device's microphone and visual recording device."

Legal Interpretation

The court of appeal found that external control, from abroad, of a computer located in the UK constituted an action within the British territory. Even if the hacking took place overseas, the effect was that the territorial sovereignty of the United Kingdom had been violated.

A overseas nation does not have immunity for psychological harm caused by an act in the United Kingdom, although certain acts take place overseas. The judicial body also determined that "personal injury" as defined in the immunity legislation encompassed independent psychological damage.

Defense Position

The appeal court ruling noted that Bahrain rejected the accusers' claims of infecting the activists' devices with spyware, but the high court judge "found, on the basis of expert evidence, that the plaintiffs had discharged the burden upon them of proving on the balance of probabilities that their devices were infected by malicious software by Bahraini representatives."

Claimants' Comments

Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my computer. It sends a clear message to foreign governments who pursue their non-violent critics with various means including violating their personal affairs and devices."

Mohammed, who fled Bahrain in 2006 after experiencing repeated arrests within the country, stated: "Our journey has now arrived at the highest court in the land. I have a responsibility to reveal what I endured when I am convinced Bahrain hacked my device. The effect has been devastating – especially for those who had confidence in me, and for my loved ones."

"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to hide behind diplomatic immunity to pursue their cross-border persecution on UK territory."

Both men have had their Bahraini citizenship withdrawn.

Legal Perspective

A lead attorney commented: "These proceedings raise essential issues about responsibility for the use of intrusive surveillance technology against civil society members and human rights defenders. Our clients, and numerous additional people we advocate for, have waited a considerable period for resolution on these issues."