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.
However, it is my clear impression that several member states of the Council of Europe need to improve the democratic control of their agencies. There are some good models: the Norwegian Parliamentary Oversight Committee, for instance, has the means to review all records and archives and appears to actively control inter-agency communications. There are other countries, however, where the oversight bodies seem to have little access to sensitive information or even strategy discussions.
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.
Furthermore, there is a clear danger that information which is secretly shared might be inaccurate, but still acted upon – without any possibility for those targeted to get any mistakes rectified. There have been cases in the last couple of years where this has led to serious injustice against individuals and, in some cases, also harmed their family and friends.
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.
Thanks to the Council of Europe, the European Parliament, media and non-governmental organisations, some facts have emerged about human rights violations which took place during the secret collaboration between the agencies.
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.
One conclusion is that exemptions in freedom of expression legislation based on national security considerations should be strictly limited.
However, it must also be recognised that there are facts which should not be made public and aspects which should legitimately be kept confidential. That is the reason why oversight bodies are needed: they should represent the public interest and control the agencies in a manner which makes them worthy of trust. Therefore, they must also be able to deal with the flow of information between the different national agencies.
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 control bodies.2
Both the supply and receipt of data should be regulated through explicit agreements between the parties. This should be required by law – as is the case in the Netherlands. The agreements should include human rights safeguards and be submitted to the relevant oversight body.
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.
The rule should be that information must only be disclosed to foreign agencies if these undertake to apply the same controls – including guaranteeing respect for human rights safeguards – as exercised by the “donor” agency. Likewise, “recipient” agencies should make imported data subject to full scrutiny by the national oversight mechanism.
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.
The national parliaments could play a definite role in promoting such contacts in order to facilitate better control of the trans-agency collaboration. Above all, they would need to make clear that such co-operation must be compliant with the agreed human rights standards.
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).