‘We Know Where You Live’: Foreign Intimidation and Foreign State Immunity

In the years when I lived in the six counties in Northern Ireland, the first level threat issued by paramilitaries was ‘We know where you live.’ In other words, you are not safe in your house or to step outside to get the milk, and the ‘we’ is not accidental.

Intimidation takes many forms, including threats from criminal gangs and paramilitaries (not to mention ex-partners) that can arise domestically or abroad. Such foreign intimidation transpired in Corinna Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor María de Borbón y Borbón. In this case, the former King Juan Carlos II of Spain, residing in Abu Dhabi, used his connections and influence at his home state’s surveillance organisation to find and threaten a former partner residing in the United Kingdom. While some aspects of the judgment are on appeal, the first instance court’s dismissal of the claim to foreign state immunity for such acts is unlikely to be changed.

Few of us will get to rub shoulders with either former kings or their wealthy ex-partners, but foreign surveillance and intimidation are not limited to the rich and powerful. Ordinary citizens can find themselves targeted by the intelligence gathering and surveillance apparatuses of their home state from which they have relocated for political reasons. This is what happened in the United States to Mr Kidane who had by then become a United States citizen in John Doe also known as Kidane v Ethiopia at the hands of Ethiopian officials. In applying section 1605 of the Foreign Sovereign Immunities Act, the District Court for the District of Columbia (‘DDC’) found that foreign conduct had indeed ‘precipitated’ the harm that occurred in the United States to Mr Kidane. However, the transnational character of the conduct undermined the argument of Kidane’s legal team that the commission of a tort generated an exception to state immunity for the Ethiopian governmental defendants.

This disappointing result (from Kidane’s perspective) followed a common law tradition in the United States of the ‘entire tort’ needing to be located within the United States for state immunity to be displaced. Without being able to bring themselves to challenge the entire tort tradition, which may in effect have required the physical presence in the United States of the author of the tort, the DDC observed that in the modern world ‘the Internet breaks down traditional concepts of physical presence.’

Similarly, the High Court of England and Wales confirmed in Al-Masarir v Kingdom of Saudi Arabia that the personal injury exception to state immunity under section 5 of the State Immunity Act 1978 (‘SIA’) requires no more than that some relevant act or omission took place within the United Kingdom. Mr Al-Masarir, now a resident of the United Kingdom, had been a human rights activist in Saudi Arabia. His campaigns had made him a target for Saudi authorities who had infected his phone with spyware. The claim to state immunity and hence denial of jurisdiction was rejected.

Australia’s law on state immunity, the Foreign States Immunities Act 1985 (Cth) (‘FSIA’), was closely based on the United Kingdom’s SIA. Moreover, it displaces the common law. Section 13 of the FSIA mirrors section 5 of the SIA by providing that foreign states, through its agencies, will not be immune for acts or omissions causing ‘(a) the death of, or personal injury to, a person; or (b) loss of or damage to tangible property’ when the conduct is distributed across national borders. There is room for the view that the reasoning of the United Kingdom’s bench in Al-Masarir should be adopted. Sufficient nexus with Australia, especially in terms of harmful effects, would be a criterion consistent with the other exceptions to foreign state immunity provided in FSIA.

Mr Kidane and Mr Al-Masarir were not the first and will not have been the last relocated ‘enemies of the state’ to have been surveilled and threatened by foreign state apparatuses. There is no reason to think Australia is immune from such cases. Sooner or later a client will walk through the door and say ‘They know where I live’…