Intelligence secrecy must not be used as an excuse to ignore or cover up human rights violations[02/11//09] Lessons are only now being learned from the breakdown of human rights which followed the US-led “war on terror” after September 2001. While more and more detailed and shocking information is gradually emerging about systematic torture, secret detentions and other serious human rights violations, political authorities appear reluctant to face facts. There is an urgent need to improve the democratic oversight of intelligence and security agencies and to regulate cross-border co-operation between them.
Terrorism is a grim reality and states must seek effective ways to combat this threat. However, many counter-terrorism measures used today are illegal and even counter-productive. This was the conclusion of an international panel of eminent judges and lawyers, convened by the International Commission of Jurists, in an authoritative report earlier this year.1
The panel found that the failure of states to comply with their legal duties had created a dangerous situation wherein terrorism and the fear of terrorism were undermining basic principles of international human rights law.
One phenomenon documented by the panel was a trend towards intelligence agencies acquiring new powers and resources without legal and political accountability keeping pace. This tendency has become more marked since 2001.
Standards have been defined, for instance, in relation to the collection and processing of personal data. The Council of Europe’s Guidelines on human rights and the fight against terrorism (2002) allow for such activities only under certain conditions: when governed by domestic law provisions, when deemed proportionate to the aim of the interference and when they are supervised or monitored by an independent authority.
Most European countries have today some oversight arrangement to hold intelligence and security services accountable and to ensure that laws are respected and abuses avoided. In some countries this is done by a parliamentary committee on a permanent basis or through special investigations in particular cases. In others, the oversight body may be made up of experts with various relevant backgrounds to serve as supervisors or watchdogs.
The effectiveness of these bodies largely depends on their statutory
powers, on the level of co-operation from the government and the
agencies themselves and on their own competence and resources. They are
naturally bound by rules of confidentiality which makes it difficult to
assess their impact and importance.
There have been individual cases where particularly embarrassing lapses have been evident. In Sweden, the Parliamentary Committee on Constitutional Affairs reviewed the case of two Egyptians who had been deported to Egypt – where they suffered torture during interrogations - without managing to obtain basic relevant facts. It was only through subsequent investigative journalism that it became known that this operation was conducted in close co-operation with the US Central Intelligence Agency and that the deportees had, in fact, been handed over to CIA agents on Swedish soil.
In this case, the Swedish government argued afterwards that it had not been possible to even inform the parliamentary committee as this could have jeopardised intelligence operations with the foreign agency concerned. In the United Kingdom, the government tried to prevent the High Court from releasing a key document which would have thrown light on the nature of the inter-agency co-operation in a case of torture – again arguing that the US government would have reacted negatively. The same point has been made by other governments in similar situations.
This argument requires a response. Though cross-border co-operation between the services is essential, it is not acceptable that investigations into possible human rights violations or general oversight of intelligence exchanges are prevented by such “understandings”.
There is an obvious risk that the argument of maintaining good relations
with an agency in the other country will be misused – by one side or
both - to cover up illegal actions, including human rights violations or
other misconduct. When this happens, it seriously undermines the
principle of accountability.
The trading of information between intelligence services has grown
dramatically in recent years and the control systems set up previously
will be of little value if these exchanges are not covered.
These revelations have not undermined the struggle against terrorism.
Indeed, several of them, though embarrassing to some, have led to
crucial discussions on how to make the struggle against terrorism more
effective which of course requires human rights violations to be halted.
A first step in this direction is to establish that collaboration
between agencies can only be allowed according to principles established
in law and when authorised or supervised by parliamentary or expert
The supply of data should be made conditional upon clear restrictions
on its use. Further distribution should be strictly regulated. The use
of information for intelligence purposes should not be allowed in, for
instance, immigration or extradition proceedings.
It would be easier for individual European countries to conclude bilateral agreements with other states if they had agreed between themselves on principles to apply in inter-agency co-operation. In fact, the European Commission recently suggested a common “information model” which would define criteria for gathering, sharing and processing information obtained for security purposes.3 The Council of Europe is well placed to promote such understandings.
While extensive international co-operation now exists between the
intelligence and security services, this is not the case for the
national oversight bodies. The modest network which has been set up
needs to be further developed. Fortunately, models of national
mechanisms from which others can learn already exist.
1.“Assessing Damage, Urging Action”, February 2009. International Commission of Jurists. www.icj.org.
2. The suggestions in this part is largely inspired by the research of Professor Ian Leigh at the Durham Human Rights Centre. He will publish a paper entitled ‘Rendering an Account? Accountability, oversight and international intelligence co-operation’, in M. Nowak and R. Schmidt (eds.), Extraordinary Renditions and the Protections of Human Rights, (Neuer Wissenschaftlicher Verlag/ Intersentia, Vienna; 2010).
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