Tuesday
Mar102009
Text: UN Report on Counter-Terrorism, Human Rights, and Torture
Tuesday, March 10, 2009 at 13:25
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Related Post: The BBC and the UN Report on Torture - Shhhh, Don’t Tell Anyone
The full report is available via The Guardian website.
Summary
Following the introduction, chapter I of the present report highlights the key activities of the Special Rapporteur, from 17 December 2007 to 31 December 2008. The main report, contained in chapter II, highlights several concerns of the Special Rapporteur regarding the role of intelligence agencies in the fight against terrorism. Section A stresses the need for a specific and comprehensive legislative framework to regulate the broader powers that have been given to intelligence agencies in the aftermath of the terrorist attacks of 11 September 2001. The collection and sharing of “signal” intelligence has led to several violations of the right to privacy and the principle of non-discrimination, while “human intelligence” - the gathering of intelligence by means of interpersonal contact - has even led to violations of jus cogens norms such as the prohibition against torture and other inhuman treatment.
Evidence suggests that the lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies. This issue is addressed throughout the report, but in section B of chapter II the Special Rapporteur examines in particular the challenges that the increased cooperation between intelligence agencies pose in this context. He clarifies the human rights obligations of States when their intelligence agencies perform joint operations, participate in interrogations and send or receive intelligence for operational use. When unlawful conduct by intelligence agencies occurs, it may have been condoned or even secretly directed by government officials. In this context the Special Rapporteur looks into best practices of different oversight bodies. In section C he emphasizes that domestic State secrecy or public interest immunity clauses cannot discard their positive obligations under human rights law to conduct independent investigations into severe human rights violations and provide the victims of these violations with an effective remedy.
The concluding section makes recommendations to different key actors (intelligence agencies, domestic legislative assemblies, domestic executive powers and the United Nations) in order to improve the accountability of intelligence agencies in the fight against terrorism.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
64. The increased powers of intelligence services to conduct measures that seriously interfere with individuals’ rights, as well as the increasing relevance of intelligence for legal and administrative actions, make it essential that adequate accountability mechanisms are put in place to prevent human rights abuses. Under international human rights law, States are under a positive obligation to conduct independent investigations into alleged violations of the right to
life, freedom from torture or other inhuman treatment, enforced disappearances or arbitrary detention, to bring to justice those responsible for such acts, and to provide reparations where they have participated in such violations. States retain this positive obligation to protect human rights where they grant privileges within their national territory to another State, including to intelligence services.
B. Recommendations
For legislative assemblies
65. The Special Rapporteur recommends that any interference with the right to privacy, family, home or correspondence by an intelligence agency should be authorized by provisions of law that are particularly precise, proportionate to the security threat, and offer effective guarantees against abuse. States should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such
methods enable a terrorist offence to be detected, prevented or prosecuted with adequate effectiveness. Decision-making authority should be layered so that the greater the invasion of privacy, the higher the level of necessary authorization. Furthermore, in order to safeguard against the arbitrary use of special investigative techniques and violations of human rights, the use of special investigative techniques by the intelligence agencies must be subject to appropriate supervision and review.
66. There should be a domestic legal basis for the storage and use of data by intelligence and security services, which is foreseeable as to its effects and subject to scrutiny in the public interest. The law should also provide for effective controls on how long information may be retained, the use to which it may be put, and who may have access to it, and ensure compliance with international data protection principles in the handling of information. There should be audit processes, which include external independent personnel, to ensure that such rules are adhered to.
67. The Special Rapporteur also recommends the adoption of legislation that clarifies the rights, responsibilities, and liability of private companies in submitting data to government agencies.
68. Parliamentary oversight committees, ad hoc parliamentary inquiry committees, royal commissions, etc. should have far-reaching investigative powers, access to the archives and registers, premises, and installations of the executive and the agency, in order to fulfil their domestic oversight function. These bodies should also be able to proactively investigate the relationship of a domestic agency with a particular State or service, or all exchanges of
information with foreign cooperating services pertaining to a particular case. After their inquiry these bodies should produce simultaneously a confidential report for the executive and a separate report for public disclosure.
69. The Special Rapporteur supports the recommendation of the Eminent Jurist Panel on Counter-Terrorism, Terrorism and Human Rights that intelligence agencies should not perform the functions of law enforcement personnel.80 If, despite the potential for abuse, intelligence services are nonetheless accorded powers of arrest, detention and interrogation, the Special Rapporteur urges that they be under the strict and effective control of ordinary civilian authorities and operate with full respect for international human rights law.
70. Intelligence cooperation must be clearly governed by the law (including human rights safeguards) and by transparent regulations, authorized according to strict routines (with proper “paper trails”) and controlled or supervised by parliamentary or expert bodies.
For the executive power
71. The executive should have effective powers of control, provided for in law, over the intelligence agencies and have adequate information about their actions in order to be able to effectively exercise control over them. The minister responsible for the intelligence and security services should therefore have the right to approve matters of political sensitivity (such as cooperation with agencies from other countries) or undertakings that affect
fundamental rights (such as the approval of special investigative powers, whether or not additional external approval is required from a judge).
72. The Special Rapporteur urges all relevant authorities of countries that have allegedly participated in extraordinary renditions, torture, disappearances, secret detentions or any other serious human rights violation to investigate fully any wrongful acts of intelligence agencies committed on their territory. States must ensure that the victims of such unlawful acts are rehabilitated and compensated. States must also stop transferring anyone to the
custody of the agents of another State, or facilitating such transfers, unless the transfer is carried out under judicial supervision and in line with international standards.
73. The Special Rapporteur recommends that States insert a clause in their intelligence-sharing agreements which makes the application of an agreement by a party subject to scrutiny by its review bodies and which declares that the review bodies of each party are competent to cooperate with one another in assessing the performance of either
or both parties.
For intelligence agencies
74. The Special Rapporteur recommends that classified information may be shared with other intelligence agencies only when it contains a written caveat, which limits the further distribution of such information among other governmental agencies in the receiving State, such as law enforcement and immigration agencies, which have the power to arrest and detain a person. In this regard, the Special Rapporteur advises that sanctions against a
person should not be based on foreign intelligence, unless the affected party can effectively challenge the credibility, accuracy and reliability of the information and there are credible grounds to believe that the information is accurate and reliable.
75. The Special Rapporteur urges Member States to reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security. Information and evidence concerning the civil, criminal or political liability of State representatives, including intelligence agents, for violations of human rights must not be
considered worthy of protection as State secrets. If it is not possible to separate such cases from true, legitimate State secrets, appropriate procedures must be put into place ensuring that the culprits are held accountable for their actions while preserving State secrecy.
76. The Special Rapporteur recommends that intelligence agencies develop internal and international training programmes in how to comply with human rights in their operations. Such training should be based on the idea that compliance with human rights is a part of professional qualifications, and a source for professional pride, for any
intelligence officer.
77. A codified regulation should be in place which guarantees appropriate support and security for whistle-blowers within the intelligence agencies.
For the Human Rights Council
78. The Special Rapporteur recommends the elaboration and adoption of an instrument such as guidelines for human rights compliance and best practice by intelligence agencies.
Related Post: The BBC and the UN Report on Torture - Shhhh, Don’t Tell Anyone
The full report is available via The Guardian website. Summary
Following the introduction, chapter I of the present report highlights the key activities of the Special Rapporteur, from 17 December 2007 to 31 December 2008. The main report, contained in chapter II, highlights several concerns of the Special Rapporteur regarding the role of intelligence agencies in the fight against terrorism. Section A stresses the need for a specific and comprehensive legislative framework to regulate the broader powers that have been given to intelligence agencies in the aftermath of the terrorist attacks of 11 September 2001. The collection and sharing of “signal” intelligence has led to several violations of the right to privacy and the principle of non-discrimination, while “human intelligence” - the gathering of intelligence by means of interpersonal contact - has even led to violations of jus cogens norms such as the prohibition against torture and other inhuman treatment.
Evidence suggests that the lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies. This issue is addressed throughout the report, but in section B of chapter II the Special Rapporteur examines in particular the challenges that the increased cooperation between intelligence agencies pose in this context. He clarifies the human rights obligations of States when their intelligence agencies perform joint operations, participate in interrogations and send or receive intelligence for operational use. When unlawful conduct by intelligence agencies occurs, it may have been condoned or even secretly directed by government officials. In this context the Special Rapporteur looks into best practices of different oversight bodies. In section C he emphasizes that domestic State secrecy or public interest immunity clauses cannot discard their positive obligations under human rights law to conduct independent investigations into severe human rights violations and provide the victims of these violations with an effective remedy.
The concluding section makes recommendations to different key actors (intelligence agencies, domestic legislative assemblies, domestic executive powers and the United Nations) in order to improve the accountability of intelligence agencies in the fight against terrorism.
III. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
64. The increased powers of intelligence services to conduct measures that seriously interfere with individuals’ rights, as well as the increasing relevance of intelligence for legal and administrative actions, make it essential that adequate accountability mechanisms are put in place to prevent human rights abuses. Under international human rights law, States are under a positive obligation to conduct independent investigations into alleged violations of the right to
life, freedom from torture or other inhuman treatment, enforced disappearances or arbitrary detention, to bring to justice those responsible for such acts, and to provide reparations where they have participated in such violations. States retain this positive obligation to protect human rights where they grant privileges within their national territory to another State, including to intelligence services.
B. Recommendations
For legislative assemblies
65. The Special Rapporteur recommends that any interference with the right to privacy, family, home or correspondence by an intelligence agency should be authorized by provisions of law that are particularly precise, proportionate to the security threat, and offer effective guarantees against abuse. States should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such
methods enable a terrorist offence to be detected, prevented or prosecuted with adequate effectiveness. Decision-making authority should be layered so that the greater the invasion of privacy, the higher the level of necessary authorization. Furthermore, in order to safeguard against the arbitrary use of special investigative techniques and violations of human rights, the use of special investigative techniques by the intelligence agencies must be subject to appropriate supervision and review.
66. There should be a domestic legal basis for the storage and use of data by intelligence and security services, which is foreseeable as to its effects and subject to scrutiny in the public interest. The law should also provide for effective controls on how long information may be retained, the use to which it may be put, and who may have access to it, and ensure compliance with international data protection principles in the handling of information. There should be audit processes, which include external independent personnel, to ensure that such rules are adhered to.
67. The Special Rapporteur also recommends the adoption of legislation that clarifies the rights, responsibilities, and liability of private companies in submitting data to government agencies.
68. Parliamentary oversight committees, ad hoc parliamentary inquiry committees, royal commissions, etc. should have far-reaching investigative powers, access to the archives and registers, premises, and installations of the executive and the agency, in order to fulfil their domestic oversight function. These bodies should also be able to proactively investigate the relationship of a domestic agency with a particular State or service, or all exchanges of
information with foreign cooperating services pertaining to a particular case. After their inquiry these bodies should produce simultaneously a confidential report for the executive and a separate report for public disclosure.
69. The Special Rapporteur supports the recommendation of the Eminent Jurist Panel on Counter-Terrorism, Terrorism and Human Rights that intelligence agencies should not perform the functions of law enforcement personnel.80 If, despite the potential for abuse, intelligence services are nonetheless accorded powers of arrest, detention and interrogation, the Special Rapporteur urges that they be under the strict and effective control of ordinary civilian authorities and operate with full respect for international human rights law.
70. Intelligence cooperation must be clearly governed by the law (including human rights safeguards) and by transparent regulations, authorized according to strict routines (with proper “paper trails”) and controlled or supervised by parliamentary or expert bodies.
For the executive power
71. The executive should have effective powers of control, provided for in law, over the intelligence agencies and have adequate information about their actions in order to be able to effectively exercise control over them. The minister responsible for the intelligence and security services should therefore have the right to approve matters of political sensitivity (such as cooperation with agencies from other countries) or undertakings that affect
fundamental rights (such as the approval of special investigative powers, whether or not additional external approval is required from a judge).
72. The Special Rapporteur urges all relevant authorities of countries that have allegedly participated in extraordinary renditions, torture, disappearances, secret detentions or any other serious human rights violation to investigate fully any wrongful acts of intelligence agencies committed on their territory. States must ensure that the victims of such unlawful acts are rehabilitated and compensated. States must also stop transferring anyone to the
custody of the agents of another State, or facilitating such transfers, unless the transfer is carried out under judicial supervision and in line with international standards.
73. The Special Rapporteur recommends that States insert a clause in their intelligence-sharing agreements which makes the application of an agreement by a party subject to scrutiny by its review bodies and which declares that the review bodies of each party are competent to cooperate with one another in assessing the performance of either
or both parties.
For intelligence agencies
74. The Special Rapporteur recommends that classified information may be shared with other intelligence agencies only when it contains a written caveat, which limits the further distribution of such information among other governmental agencies in the receiving State, such as law enforcement and immigration agencies, which have the power to arrest and detain a person. In this regard, the Special Rapporteur advises that sanctions against a
person should not be based on foreign intelligence, unless the affected party can effectively challenge the credibility, accuracy and reliability of the information and there are credible grounds to believe that the information is accurate and reliable.
75. The Special Rapporteur urges Member States to reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security. Information and evidence concerning the civil, criminal or political liability of State representatives, including intelligence agents, for violations of human rights must not be
considered worthy of protection as State secrets. If it is not possible to separate such cases from true, legitimate State secrets, appropriate procedures must be put into place ensuring that the culprits are held accountable for their actions while preserving State secrecy.
76. The Special Rapporteur recommends that intelligence agencies develop internal and international training programmes in how to comply with human rights in their operations. Such training should be based on the idea that compliance with human rights is a part of professional qualifications, and a source for professional pride, for any
intelligence officer.
77. A codified regulation should be in place which guarantees appropriate support and security for whistle-blowers within the intelligence agencies.
For the Human Rights Council
78. The Special Rapporteur recommends the elaboration and adoption of an instrument such as guidelines for human rights compliance and best practice by intelligence agencies.