Civil Litigation against perpetrators of reprisals and refugee espionage
As part of its Compromised Spaces campaign, the Unrepresented Nations and Peoples Organization (UNPO) has published a briefing paper on the potential for human rights defenders living in liberal democracies to bring civil actions against countries that have engaged in reprisals and espionage activities against them. This is a rising phenomenon where non-European countries, led by China, Iran and Russia, harass and take out reprisals against human rights defenders who have fled to Europe. This report builds on a briefing paper published in March 2022 that analyzed efforts to criminalize this conduct in certain European states, and is designed to highlight an additional avenue through which perpetrator states can be brought to justice for these activities.
In April 2021, the UNPO published a report highlighting the extent and severity of transnational reprisals committed by authoritarian states, predominantly Iran, Russia and China, against diaspora communities, refugees, dissidents, human rights defenders, civil society and ethnic minorities who reside in Europe.1 This built off of a series of investigations conducted by the UNPO since 2016 into the extent to which authoritarian states seek to limit the voices of their detractors internationally.
In this briefing paper we outline one potential avenue of redress that may be available for victims of transnational reprisals, particularly those living in Europe. The sovereign immunity (or state immunity) legal framework specifically, which is an enshrined principle of international customary law, may provide victims a novel opportunity to bring legal action against the hostile perpetrator state within the national courts of the victim’s host state.
The principle of sovereign immunity provides that states are presumed immune from civil suit or criminal prosecution before foreign national courts, unless certain exemptions apply. The so-called ‘tort exemption’ for example is one such exemption that is accepted and codified into the majority of international and national codifications on the law of sovereign immunity. The exemption provides that states should not enjoy immunity in cases of tortious acts or omissions attributable to them in foreign countries which cause individuals to suffer personal injury or physical damage to or loss of property.
Where applicable, this exemption may permit victims to sue aggressor states for damages in respect of any acts attributable to the perpetrator State in the territory of the host State that resulted in personal injury (generally interpreted to include a wide range of physical (and sometimes psychological) harms, including assault, battery and even political assassinations). The ongoing work of the UNPO’s ‘Compromised Space’ campaign documents a range of transnational reprisals prevalent on European Soil, such as harassment, threats and intimidation; physical attacks; cyber-attacks; abductions; and even assassinations. It is likely that many of these incidents are liable to be considered tortious act amounting to personal injury (notwithstanding differences in domestic interpretations of 'personal injury’ across European jurisdictions).
At present, a total of 20 European states have ratified, accepted or approved international conventions governing rules on sovereign immunity and it’s exemptions. Only 1 European state at present – the United Kingdom – has codified domestic law on state immunity. A number of other non-European have also codified domestic law on state immunity, notably the United States and it’s Foreign Sovereign Immunity Act (FSIA). In absence of ratifications of international conventions or domestic codifications, states are to rely on the customary law of sovereign immunity. Nonetheless, despite the high number of European states that have formally agreed to apply such principles and exemptions, there have been very limited cases brought before domestic courts in cases relating to acts of transnational reprisals. In this regard, there is a significant need for strategic litigation to unearth the potential of this legal framework as a potential tool of accountability.