The Legal Webs of Transnational Repression

On October 2, 2018, Saudi journalist Jamal Kashoggi was killed in the Saudi embassy in Istanbul. Intelligence services quickly determined his death to be a targeted assassination ordered by the Saudi crown prince.

The instance was a brazen act of transnational repression: the process by which regimes attempt to silence or intimidate critics beyond their borders.

Notorious cases, like Kashoggi’s assassination, play an outsized role in deterring activists and journalists living in exile. But many repressive acts are more covert, accomplished through surveillance, threats, intimidating family members, enforced disappearances and forced return.

With the digital age, such extraterritorial repression has become increasingly pervasive, particularly among authoritarian states. Governments in the Middle East and North Africa are no exception in their attempts to cling to power by silencing critical voices and activities, even beyond their borders. A recent report by Freedom House on transnational repression lists Turkey, Egypt and Iran as among the worst offenders.[1] But the method is widespread in the region.

These governments depend on the law—not only domestic legislation but international legal frameworks—as a way to legitimize transnational repression and decrease backlash. While the exact relationship of transnational repression and law depends on the forms of repression applied, as often as not, repression across borders occurs outside of and in contradiction to ratified legal frameworks.

 

Legal Targets

 

Since the Arab Uprisings in 2011, many states in the Middle East and North Africa have revisited their legal foundations for repression in an attempt to control and regulate dissent.

For example, over the past decade countries have introduced comprehensive anti-terrorism legislation with vague definitions of terrorism, which can be used as a tool for silencing opposition. Jordan’s 2014 anti-terrorism law criminalizes such opaque offences as “disturbing” Jordan’s bilateral relations. The law has become an efficient tool for the monarchy to silence critical voices, used to target not only those who speak out against Jordanian rule but those who criticize other authoritarian regimes. In 2020, the prominent Jordanian cartoonist Emad Hajjaj was arrested in Jordan for a cartoon mocking the de facto ruler of the UAE, Mohammed bin Zayed.

At times, states use these laws to target critics in the diaspora who are convicted in absentia or surveilled on the basis of domestic legislation. Again in 2020, an Egyptian terrorism court sentenced Bahey el-Din Hassan, a prominent human rights defender in exile in France, for “disseminating false news” and other fabricated charges.[2]

States in the region have also introduced new cybercrime laws that similarly rely on vague definitions to criminalize open expression. The UAE passed a cybercrime law in September 2021 that criminalizes any digital platform opposing the ruling regime. The law also prohibits the spreading of “false rumours” that contradict “what has been officially announced” by the state.[3]

In 2018, Egypt passed a cybercrime law banning content that “violates Egyptian family values”—a law that has since been used to target a number of women TikTok influencers.[4] Between 2017 and 2019, a broad coalition of Jordanian civil society successfully protested against a Cybercrimes Law that defined hate speech as any statement that incites conflict. It also punished the broadcasting of false rumors. But in the summer of 2023, Jordan introduced a new Draconian cybercrime law with a similar scope and intent (the new law also prohibits anonymously access the internet). The language of these laws reflects global trends in media and censorship, where “fake news” and morality are criminalized alongside terrorism and defamation.

Another way regimes use the law to silence voices both within and beyond their borders is through restrictive anti-NGO regulations. For example, the UAE in 2017 and Egypt in 2019 each introduced new restrictions on the foreign funding of NGOs. Such laws undermine one of the critical links between the diaspora and domestic civil society.

 

Bending International Law

 

This domestic legislation often contradicts international law, even laws these countries have ratified. For example, defamation law in Tunisia, Libya and Algeria considers defamation offenses under criminal law. Doing so contradicts the African Charter on Human and Peoples’ Rights, which generally holds that defamation offenses should fall under civil law. All three states have ratified the charter.

States also rely on their embassies and foreign missions to implement repressive measures across borders. Services like getting one’s passport renewed become prime entry points for states to target critics in the diaspora. For instance, in 2023 Human Rights Watch reported that Egyptian missions in Turkey and Qatar now require people applying for passports to fill out so-called “security clearance” forms with information about their social media, a practice that is not stipulated by laws.[5] Turkey, meanwhile, has abused Interpol’s Stolen and Lost Travel Document database—a database that exists to help catch criminals using fraudulent travel documents. Turkey has used the service instead to cancel passports of critics, rendering them stateless.

Interpol’s red notices—alerts issued by member states ordering the detention of wanted individuals with a view to extradition—have also been abused by certain states to get hold of dissidents abroad or in transit. For example, in 2022, Bahraini labor activist Ahmed Jaafar was extradited from Serbia to Bahrain following his arrest due to a red notice issued against him by Bahrain. Another feature of Interpol, the so-called I-CORE project, cross links its data banks and digitizes border policing and control. Unless perpetrator states’ access to this unified biometric data bank is controlled strictly, their capacities to repress political opponents are likely to increase.

Not all repression that crosses borders happens through legal means. Journalists and activists living in exile are harassed and assaulted. Their family members back home are threatened, confined or refused permission to travel. Digital surveillance, too, operates beyond the law. Israel’s Pegasus spyware grants the Pegasus customer full access to a phone’s data and can even monitor a victim’s microphone without their knowledge. Despite their denial, Morocco, Saudi Arabia and the UAE have all been implicated in using the software to spy on activists, journalists, lawyers and politicians around the world, including the relatives of Khashoggi and the Turkish prosecutor who investigated his death.

 

Targeting Transnational Repression

 

Over the last four years, governments in Europe and the United States have grown increasingly vocal on the issue of transnational repression. Efforts to address it, however, have largely focused on issuing statements and drafting bills denouncing its use. Meanwhile, continued US support of authoritarian regimes in the Middle East, not to mention Europe’s xenophobic anti-migration policies, raise questions about how effective these efforts to target transnational repression will be.

The US National Defense Authorization Act in 2022, for example, took on board suggestions of the US Helsinki Commission—which exists to push for compliance with the Helsinki Final Act and other OSCE commitments—to hold perpetrators of transnational repression accountable. The Helsinki commission has also recommended reforms to Interpol’s red notices, and the US Department of State has begun publishing biannual reports evaluating the abuse of Interpol’s mechanisms.

In March of 2023, the governments of Australia, Germany, Estonia, Kosovo, Latvia, Lithuania, Slovak Republic, Chile and the United States signed a “Declaration of Principles to Combat Transnational Repression.” The signatory states are also calling for a reform of Interpol alerts as well as for the passage of national laws that would allow officials to prosecute perpetrators of transnational repression.

Moreover, in May of this year, the Committee on Legal Affairs and Human Rights of the Council of Europe adopted a draft resolution on “Transnational repression as a growing threat to the rule of law and human rights.” This document concluded that the European Court of Human Rights—despite having never used the term in its judgements—has sufficient case law to guide it when determining a state’s responsibility for transnational repression. The resolution proposes establishing a jurisdictional link between an act of transnational repression and the persecuting state. These steps allow the court to apply the European Convention on Human rights and to clarify the obligations of European states to protect victims of transnational repression.

The next months and years will reveal the extent to which this increasing awareness will lead to new international legislation and meaningful changes in law enforcement practices. In the meantime, alongside efforts to protect dissidents in exile, the populist and xenophobic sentiment that has spread across Europe and elsewhere provides a significant obstacle to combatting transnational repression. In the EU, right-wing positions dominate negotiations on migration and asylum policies. The draft on the Common European Asylum System, which passed the Council of the European Union in June of 2023 and is now under discussion in parliament, limits the rights of refugees to access legal assistance in Europe.

The new system strives to expand the cooperation with so-called third countries, such as Algeria, Morocco and Tunisia, declaring them safe countries to which asylum seekers can be pushed back. But as Amnesty International, and other organizations advocating for migrants’ rights have pointed out, this policy will likely increase the risk of chain deportations, making it harder for dissidents to evade the reach of repressive regimes.

 

[Mirjam Edel is senior lecturer at the Institute of Political Science at University of Tuebingen.]

 

This article appears in MER issue 307/308 “Frontlines—Journalism and Activism in an Age of Transnational Repression.”

 

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Endnotes

 

[1] Yana Gorokhovskaia, Nate Schenkkan, and Grady Vaughan, “Still Not Safe: Transnational Repression in 2022,” Freedom House, April 2023.

[2] “Egypt: Human rights defender Bahey el-Din Hassan handed outrageous 15-year prison sentence,” Amnesty International, August 25, 2020.

[3] “United Arab Emirates: New cybercrime and anti-rumour law violates rights,” Article 19, January 24, 2022.

[4] Basil El-Dabh, “Egypt’s TikTok Crackdown and ‘Family Values‘,“ TIMEP, August 13, 2020.

[5] Amr Magdi, “Exile or Prison: Egypt’s Offer to Critics Abroad,” Human Rights Watch, March 28, 2023.