UN Special Rapporteur Releases Report on the Role of Intelligence Agencies in the Fight Against Terrorism

In a new thematic report that will be discussed with states at the UN Human Rights Council in Geneva on the 10th of March, Martin Scheinin, the UN Special Rapporteur on the protection of Human Rights while countering terrorism, focuses on the role of intelligence agencies in the fight against terrorism and the accountability problems that arise from the cooperation between these agencies. 

Intelligence cooperation and international crimes
“Key concepts that underlie most intelligence-sharing agreements increase the possibility that many countries, including liberal democracies opposed to torture, become complicit in international crimes,” according to Martin Scheinin, who is also a professor of international law at the European University Institute in Florence, Italy.

Complicity in torture
Scheinin says that the “active participation by a state through the sending of interrogators or questions, or even the mere presence of intelligence personnel at an interview with a person who is being held in places where he is tortured or subject to other inhuman treatment, can be reasonably understood as implicitly condoning torture. This would be a violation of the UN Convention Against Torture.”

The report insists that “states must not aid or assist in the commission of acts of torture, or recognize such practices as lawful, including by relying on intelligence information obtained through torture. States must introduce safeguards preventing intelligence agencies from making use of such intelligence.”

Raw intelligence
Intelligence is usually not shared as ‘raw’ intelligence, but as a refined product. While the Special Rapporteur recognizes that this is done as a matter of convenience, he is concerned that this practice also is maintained “in order to give intelligence services the possibility of denying responsibility for the use of information that has been obtained in breach of international law.”  

Abuse of state secrecy provisions
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.”

Martin Scheinin said he was worried by the “increasing use of State secrecy provisions and public interest immunities for instance by Germany, Italy, Poland, Romania, the former Yugoslav Republic of Macedonia, the United Kingdom or the United States to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and – most importantly – liability.”

 “The human rights obligations of States, in particular the obligation to ensure an effective remedy, require that such legal provisions must not lead to a priori dismissal of investigations, or prevent disclosure of wrongdoing, in particular when there are reports of international crimes or gross human rights violations.”

 “To counter the lack of accountability in intelligence cooperation, cooperation between national oversight bodies should be enhanced,” according to Martin Scheinin, who says that a system of “joint oversight” should be devised.

The report also discusses problems of data mining and data sharing, covert surveillance, the outsourcing of intelligence tasks to private actors and the dangerous blurring of law-enforcement and intelligence powers. 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.

Download the document here (Microsoft Word version) and here (pdf version)

Background

Professor Martin Scheinin accepted the appointment of Special Rapporteur by the United Nations Commission on Human Rights on 7 August 2005. The mandate, established by Resolution 2005/80, was renewed by Resolution 6/28 by the Human Rights Council. The Special Rapporteur is mandated to develop a regular dialogue and to cooperate with all relevant actors, including Governments, to exchange information, make recommendations and to identify and promote best practices on measures to counter terrorism that respect human rights and fundamental freedoms. As Special Rapporteur, he is independent from any Government and serves in his individual capacity.

2 Responses

  1. […] and announces secret detention study Posted on 12 March, 2009 by Mathias Vermeulen The intelligence report was welcomed by most states in the Human Rights Council and received a second heavy round of […]

  2. what appears to be problematic with the issue of intelligence sharing is not the sharing of intelligence between nations of potential threats of any kind including terrorist threats against the other nation, which has been something which has occurred in the past but something else.
    What is being seen is not only a “sharing of intelligence” between nations of that which constitutes a threat” but a “worldwide “integration of intelligence gathering” that matches a disturbing “integration of military forces” through operations such as NATO and UN peacekeeping and other regional and international coalitions. What is being set up is a system that is based less on sovereign national defense and based more on internationally centralized multinational offensive operations in other countries.
    Much of this is being done in secrecy with a concurrent destruction of sovereign national military and intelligence control. This is also occurring in the U.S. where NATO has moved into operations in Norfolk Virginia and has a foreign military and intelligence force that is not controlled by the U.S. government but is now on U.S. soil, with increasing number of foreign miltary commanders in the U.S.
    This at a time when after the Berlin agreement of 2003, the U.S. no longer has any say in NATO decisionmaking, which is now being made in the EU.

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