Reading materials   Different Approaches to developing National Security Policy Prof. Dr. Peter M.E. Volten University of Groningen The Netherlands The traditional and the new understanding of security The traditional - Cold War - definition of security concerned two fundamental functions of the state, namely the preservation of territorial integrity and political sovereignty as well as the notion of reasonable confidence in one's ability to safeguard these basic responsibilities of the state. The first concern is the objective element applying to every state; the second represents the subjective element of the concept of security. No matter how much military power a state can deploy, the psychological dimension is as important as physical power itself. For example, the credibility of the American 'extended deterrence' provided to the European allies vis-a-vis the Soviet Union was not dependent on the sheer size of the U.S. nuclear arsenal, but on the confidence in the American president to use the nuclear forces in the defence of Europe; in contrast, Canada has perfect confidence in its security, no matter how many weapons the U.S. can point at her. The traditional definition not only focuses on just military power, but also almost exclusively addresses the security of the state. In the early 1980s Richard Ullman, dissatisfied with this narrow approach to security as well as with the highly militarised relations between East and West, expanded the concept as follows: a threat to national security is an action or sequence of events that (1) threatens drastically and over a brief span of time to degrate the quality of life for the inhabitants of a state, or (2) threatens significantly to narrow the range of policy choices available to the government of a state or to private, nongovernmental entities (persons, groups, corporations) within a state. (Richard H. Ullman, "Redefining Security", International Security, Vol. 8, No 1 (Summer 1983) p. 133.) This broader definition of security maintains the crucial distinction between political conflict and the fact that security entails the act of violence, or threat to use violence as in the definition of war of Clausewitz, namely 'an act of force'. It retains the sense of urgency and tension, so characteristic for the possible outbreak of violence. However, the definition does not limit violence to the use of military power and includes other threats - political, economic or social - to 'the quality of life'. The actor is not just 'the' state. The concept is extended to include persons and groups. The definition also pays attention to the notion of sovereign in that it refers to the 'range of policy choices'. Security threats are perceived by the actors in this approach rather than prescribed by the analyst. The actors speak for themselves and must be identified by the analyst. The issues at stake may be pollution, ethnic strife, poverty, economic inequality, political instability, group identity or social tensions, but the actors indicate which unresolved problems are a threat to their existential values. The issue at stake is a real and manifest part of the interactions between the actors. Given the sense of urgency and possible or potential threat of violence, the actors consider 'politics by other means' as legitimate. The usual procedures and ways of communication to settle a dispute are no longer available or perceived as such. Buzan, Waever and De Wilde call this process of raising tensions and becoming concerned about one's existential values 'securitisation'. Securitisation is inter-subjectively constructed; something is communicated as a security problem. When tensions and concern decrease, the process is called desecuritisation. If actors understand that these concerns can only be solved together and by mutual action, they refer to a 'security complex': "a set of units whose major processes of securitization and desecuritization, or both are so interlinked that their security problems cannot reasonably analyzed or resolved apart from one another."(Barry Buzan, Ole Waever, Jaap de Wilde, Security: A New Framework for Analysis (Boulder 1998) p. 201.) The occurrence of interaction between the actors and the political environment must be stressed. Security is a socially constructed reality through interaction between the actors - to be identified by the analyst -- and the structure. A constructivist approach to security does not reject the presence and importance of material reality. It is important that this understanding of security maintains the essential, materiel elements: power, force violence or the 'intrinsic elements of war'. The definition has not been unduly widened making any issue a security problem and turning the distinct phenomenon of security into day-to-day politics. It is self-evident that politics involves disagreement; conflict is part and parcel of political discourse. Security must be understood as the realm of not-so-common, non-regular and unpredictable behaviour distinct from the established rules. 'Strategy Eternal' and the political dimension of strategy and security policy Strategy is the domain between the political and military realm. Traditionally, strategy is, according to Clausewitz, "the use of engagements for the object of war."(Clausewitz, On War, p. 128.). This shockingly simple definition embodies a superior line of reasoning from the use of armed forces in battle with the purpose of winning, the material aspect of war, to the decisive contest of human wills with the political purpose of winning, the mental, ideational aspect of war. But the two ways of "winning" are fundamentally different. Thus, total destruction cannot be the aim of a political purpose that respects Reason. So, the outcome of engagements at the tactical level must be used by the strategist as the means to achieve the political goal of rendering the opponent powerless as a reasoning human being, not as a threatening beast to be eliminated altogether. "The means-end relations, as used by Clausewitz, gives a rational structure to fragmented action and to the whole simultaneously, it subordinates the rationality of the former to the nature of the latter."(Raymond Aron, Clausewtiz, Philosopher of War (London 1983), p. 108.). The translation of the results of the bloody battles takes place in the political domain, at the "peaceful" table of negotiation with perhaps good food and excellent wines, but surely in a struggle between combative minds. Strategy in history is conceived as the business of antagonists. Today, however, security issue in Europe No one is the strengthening of a peaceful community of democratic states and prosperous societies in Europe. At least, this can be found in virtually all the political declarations of European governments and international organizations like NATO and WEU.(See Chapter 24, "The Role of Semantics," in Przemyslaw Grudzinski and Peter van Ham, A Critical Approach to European Security: Identity and Instituions (London 1999) pp.146-149.). There seems no risk of large-scale war. This begs the question: What then are the states and the armed forces preparing for? If we are in the midst of a purposeful process toward a stable and peaceful Europe, is there still a role for strategy in the organization of security? Colin Gray answers this question with a definite 'Yes'. Is he right when he claims "Strategy Eternal" and so forcefully argues that "there is an essential unity to all strategic experience in all periods of history because nothing vital to the nature and function of war and strategy changes?"(Colin S. Gray, Modern strategy (Oxford 1999), p. 1.). Obviously, here speaks a realist strategist pur sang and former Cold War hawk. Gray fulminates against critical theories stating that "peace is socially constructed" and can be arrived at "through learning." He refers to human history and the human condition of the scourge of war and adds: "Of course, people should learn the ways of peace through the practice of peaceful arts. The problem is not that people cannot so learn, rather it is that at least a significant minority of them seem unable or unwilling to do so." (Ibid., p. 197.) This approach only recognises strategy as policy of one actor, not the interaction between actors. Clausewitz' concept of Politik means both a policy and politics as a process. "Strategy is a process, a constant adaptation to shifting conditions and circumstances in a world where chance, uncertainty, and ambiguity dominate."(Williamson Murray and Mark Grimsley, "Introduction: On Strategy", in Williamson Murray, MacGregor Knox and Alvin Bernstein (eds.), The Making of Strategy: Rulers, States, and War Cambridge 1994), p. 1.). Political and military considerations are coming together in strategy. Conflicting goals and means in the war cabinet and on the battlefield are part of strategy. Rationality and irrationality exist next to each other. Strategy must be approached holistically and include the Clausewitzian notion of process. Deterring war by military capabilities or preventing war by diplomacy is the strategic effect of strategic performance upon the course of events in power-based and knowledge-based regimes. Paradoxically, the long peace was brought about under MAD conditions (Mutual Assured Destruction). The seeds of a security regime in Europe were sown by epistemic communities rejecting ideological and nuclear madness. Arms control negotiations and confidence-building measures have led to converging expectations of actors in East and West. Still, these negotiations and agreed measures were subject to strategic calculations, at least in part. Regime change was made possible by the existence of shared beliefs in large parts of Eastern-Europe. Strategy also underpinned the policy of containment. Strategy remains intact, but the circumstances under which strategic effects are achieved vary, both in place and time. Strategy has to take into account different dimensions. Michael Howard has identified four dimensions of strategy: the social, the logistical, the operational and the technological.(Michael Howard, "The Forgotten Dimensions of Strategy," Foreign Affairs , 57 (1979), pp. 976-986. Clausewitz speak about the elements of strategy. Moral, physical, mathematical, geographical, and statistical. On War, p. 183.). All four dimensions are at work at all times, but their relative importance varies. Thus, the social dimension was of decisive importance during the Vietnam War when public support in the US waned and the morale under the Vietnamese never abated. Or, the technological breakthrough with the advent of nuclear weapons fundamentally changed strategic thought just as the operational concept of the Blitzkrieg proved to be of strategic significance in May 1940. Grey distinguishes seventeen dimensions clustered into three categories. "People and Politics" and "Preparation for War".(Grey, Modern Strategy, p. 24.) The dimensions of the these two categories by and large represent the political and the military domain respectively. They serve as a way to operationalise the kind of relations between actors as well as the trends and tendencies within various security regimes. The political and military actors in security policy The two categories of strategic dimensions correspond with the two imperatives that, according to Huntington, define civil-military relations: The military institutions of any society are shaped by two forces: a functional imperative stemming from the threats to the society's security and a societal imperative arising from the social forces, ideologies and institutions dominant within the society… The interaction of these two forces is the nub of the problem of civil-military relations. The degree to which they conflict depends upon the intensity of the security needs and the nature and strength of the value pattern of society. (Huntington, The Soldier and the State, p. 2) The functional imperative is clearly a Realist requirement. The societal imperative, however, tends to highlight security as a particular view on human interaction and the world, Weltanschaung. In the present interdependent world and in present-day Europe of successful integration, there is no reason why one should omit international political-societal imperatives. Huntington only describes civil-military relations in their domestic context and focuses on the degree to which the basically "realistic and conservative" military ethic (Ibid., p. 79.) conflicts with dominant liberal or conservative (and other, for us less relevant) ideologies. These civil-military relations can be seen in a state-centered domestic context. Expanding civil-military relations into the international context puts the military in the environment of international organizations like NATO and a security community. Alliance politics is thus likely to have an effect on civil-military relations in the member states. Of even greater significance is the question to what extent traditional views on civil-military relations conflict with the requirements of a Deutchian security community or peace-keeping and peace-enforcing activities in the name of a Kantian 'Eternal Peace'. Is that kind of a security regime compatible with the prevailing values, beliefs and military preparations for security in the individual countries? How are the dimensions of "people and politics" related to the objectives of declaratory policy in Europe? Implications for national security policy in Europe The name of the game in international relations in Europe has fundamentally changed; so has the organization of security between East and West. Cold War has been taken out our vocabulary; so has the strategy of a MAD bipolarity. The by now infamous promise of President Bush made in the euphoric days after the fall of the Berlin Wall, about a "new world order" is, however, still an enigma. Europe is in a process of change, but where will this lead us? The security arrangements have fundamentally changed and the prospect of all-European co-operation and even integration is present, at least perceived as such. Indeed, we may even succeed in shaping, what Karl Deutch has called, and an "international security community". (Karl W. Deutch et al., Political Community and the North Atlantic area, (Princeton 1957), p. 5.). He defined it as "a group of people which has become integrated." The European Union and NATO are examples of organizations in which none of the member states have any doubt about the absence of the use or threat of military force in the relations between them. The post-Cold War situation is characterised by opportunities to construct inclusive arrangements in the whole of Europe and in terms of a vast range of security issues, the military only being one. A security strategy aiming at the enlargement of the 'zone of peace and prosperity' includes the other security issues mentioned as well, perhaps even more so than the military one. The political agenda has dramatically changed and the political-strategic aims have become manifold and multi-dimensional. The formulation of security policy is far more complex than the traditional defence policy and force planning. These developments have far-reaching consequences for the political and military roles and responsibilities, hence for civil-military relations. Perhaps most important and insufficiently recognised, is the internationalisation of civil-military relations and the end of (almost) exclusively unilateral activities taking place between the two domains vis-a-vis the outside world. The traditional, domestic and nationally confined orientation has not disappeared - and will probably never disappear --, but has been notoriously overvalued in our thinking. As a matter of fact, the materially constructed reality of 'strategy eternal' and classical civil-military relations continues to influence, if not dominate, the approaches to our object of study. A 'strategy revisited' recognising emerging, new and different realities is necessary to supplement the familiar, albeit narrow approach. Such a strategy will not only take into account the interaction between the domestic civilian and military players, but also the interaction at the international level. (Civilian) governments interact as do the military in the transatlantic and European context. So we must deal with sets of interaction patterns: domestic and international as well as at each level between the civilian and military participants. The EU or NATO face new strategic challenges and, as a consequence, have to recognise changes in the relationship between the political and military domains of strategy in an internationally context. Currently, the EU is revisiting its strategy, combining its impressive politico-economic weight with some military interventionist power. The European military clout envisaged does not mean a Europe returning to power politics and Realists' views of international relations. Rather, European military power is meant to serve collective security arrangements in the first place and collective defence whenever necessary. In that sense, it can be argued: "Since there is no military power to balance in Europe, why bother about the prescriptions of 'strategy eternal'?" Both political and military leaders have been slow in recognising the need to adjust the military institution to the new circumstances. The international duties of the military are bound to determine the professional status and judgement upon the military performance. Professionalism, according to Huntington consisting of expertise, social responsibilities and international esprit-de-corps or corporateness, must follow suit. Expertise today includes new skills like peace keeping, policing, playing the role of a diplomat and international legal authority, even nation-building. Social responsibilities today include providing security in so-called out-of-area regions where neither affinity nor sharing values and identity with the locals are self-evident, to put it mildly. An international esprit-de-corps today requires a fundamentally reviewed system of education, training, career planning, promotion and internalisation of group culture. Professionalism cannot be simply left to the military. Political purpose guides military professionalism. The military has to take into account the societal and international changes arriving from social forces, ideologies and institutions. The latter ultimately define the outcome of civil-military relations and these have to be addressed actively, not passively in our rapidly changing political environment. State Export Control: Vision of Ukraine Viktor Hvozd, Deputy Head of Main Department of Presidential Administration UKR (Arms Trade Control) 1. State Export Control State export control is a complex of actions of control over international transfers of goods designated for military purposes and of dual-use, which are being undertaken by State Export Control Service of Ukraine and other state authorities with the purpose of protection of national security interests and according to international obligations. The legislative basis of state export control of Ukraine is the Law of Ukraine "On State Control of International Transfers of Goods Designated for Military Purposes and Dual-Use Goods", other laws of Ukraine, acts of the President of Ukraine and the Cabinet of Ministers of Ukraine. State policy in export control area is formed according to such basic principles: - priority of national interests of Ukraine - political, economical and military, the protection of which is necessary for ensuring the national security; - obligation of executing the international obligations of Ukraine in non-proliferation of weapons of mass destruction, means of their delivery and setting up state control of international transfers of goods designated for military purposes and dual-use of the mentioned above goods for terrorist and other illegal purposes; - legality; - realization of export control only within the limits necessary for reaching its goals; - agreement of procedures and rules of state export control with international law standards and practice; - ensuring of interaction with international organizations and foreign states in the area of state export control with the purpose of strengthening international security and stability, including the purpose of preventing distribution of weapons of mass destruction and means of their delivery. The state export control system is being applied only within the limits necessary for reaching its goals. Procedures and rules of state export control which are being applied by Ukraine take into consideration international law standards and practice because of permanent interaction with international organizations and foreign states in the area of export control with the purpose of strengthening international security and stability, including the purpose of preventing distribution of weapons of mass destruction and means of their delivery. Starting from national security interests and according to undertaken international obligations, Ukraine exercises intensive control over international transfers and subsequent use of goods which can be used to create weapons of mass destruction (nuclear, chemical, biological, bacteriological, toxic) and missile means of delivery of such weapons. Setting up such control is one of the most important elements of national non-proliferation policy. 2. History of Creation of State Export Control The process of formation and development of Ukraine as an independent state needed creation of a structure which would be able to create conditions for protection of national security interests, observance of Ukraine's international obligations bound with non-proliferation of weapons of mass destruction, means of their delivery and preventing distribution of regular weapons, excessive accumulation of which can lead to violation of regional and world stability. After finding the state independence the Government of Ukraine had to solve a complicated task: to provide in short terms and on an appropriate level effective state control over international transfers (export, import, transit) of regular kinds of weapons, and also goods which are "sensible" due to the problem of distribution of weapons of mass destruction and means of their delivery. One of the main elements of such system is setting up effective state control over realization of international transfers of weapons and defense technology (further in the text - goods designated for military purposes) and also goods that can be used for creation of regular weapons, weapons of mass destruction and means of their delivery (further in the text - dual-use goods). By analogy with the majority of countries of the world which already had such state control at that time, such system was called "the export control system". The practical activity in the area of export control had begun after ratification of the appropriate Decree of the President of Ukraine of January 20, 1992 No. 45 and the resolution of the Cabinet of Ministers of Ukraine of March 25, 1992 No. 153, according to which the Governmental expert and technical committee was founded. This Committee had appropriate functions and authorities for making decisions on opportunities of realization of international transfers of goods designated for military purposes and dual-use goods. One of the main tasks of the Committee was creation of export control system in our state, and also assistance for development of international cooperation with other states in this area. According to the Decree of the President of Ukraine of January 3, 1993 No. 3 "On improvement of state export control" the Governmental export and technical committee was turned into the Governmental committee of export control. The main task of this Committee was "providing appropriate control over export and import of weapons, defense technologies, particular kinds of raw materials, goods, equipment and technologies which can be used for creation of weapons, defense and special equipment, keeping to international obligations of Ukraine on non-proliferation of weapons of mass destruction and means of their delivery". Ratification of the Agreement on non-proliferation of nuclear weapons, signing of the Memorandum on mutual understanding between Ukraine and the USA in transfers of missile equipment and technologies, signing of documents on cooperation with IAEA, signing of the Convention on ban against development, production and accumulation of chemical weapons and their destruction, and also the appropriate Convention on ban against development, production and accumulation of bacteriological and toxic weapons and their destruction, and also Ukraine's joining international conditions of export control (Nuclear Suppliers Group, Zangger Committee, Wassennaar Arrangement) became an impulse for next improvement of state export control system. According to the Decree of the President of Ukraine of December 28, 1996 No. 1279/96 "On further improvement of state export control" with the purpose of ensuring national security interests, keeping to international obligations of Ukraine on non-proliferation of weapons of mass destruction and means of their delivery, setting up an appropriate state control over realization of international transfers of weapons, defense and special equipment, particular kinds of raw materials, goods and technologies which can be used for creation of weapons, defense and special equipment, and also increase of responsibility of authorities of export control was turned into the Governmental Committee on Export Control Policy, and the Expert and Technical Committee at the Cabinet of Ministers of Ukraine - into the State Export Control Service of Ukraine. Within the bounds of administrative reform conducted at the end of 1999 according to the Decree of the President of Ukraine of December 15, 1999 No. 1573 State Export Control Service was liquidated, and its functions passed over to the recreated Ministry of Economy of Ukraine. In order to increase the effectiveness of military and technical cooperation of Ukraine with foreign states, with the Decree of the President of Ukraine of July 8, 2000 No. 868 the Committee of military and technical cooperation policy at the President of Ukraine was created, and was entrusted with functions of development of propositions and recommendations on concept tasks, priority directions of state policy, on other questions of military and technical cooperation with foreign states and export control, ensuring political, economical and military interests of Ukraine in these areas. 3. Structure of State Export Control in Ukraine The legislative fundamentals of state policy in the area of export control are determined by the Parliament of Ukraine - Verkhovna Rada. General management of state policy in the area of export control according to the Constitution is laid onto the President of Ukraine. The Council of National Security and Defense of Ukraine and the Committee on military and technical cooperation policy and export control at the President of Ukraine coordinate activity and exercise control over actions of executive power in the area of export control. The Cabinet of Ministers of Ukraine ensures realization of state policy in the area of export control. Realization of state policy in the area of state control is provided by State export control service, as well as by ministries, other central authorities of executive power empowered according to legislation to take measures in the area of export control. The mentioned above executive power authorities may also enlist to take part in realization of export control measures any other central executive power authorities, foreign representatives of Ukraine and juridical persons whose activity is not bound with export control, by agreement with their managers. State export control service of Ukraine directly or by instructions of other central executive power authorities limits or prohibits realization of activity connected with international transfers of goods in case when its realization conflicts with national security interests of Ukraine, its international obligations, purpose of fighting terrorism, and also in case when there are reasons to consider that the mentioned goods belong to weapons of mass destruction or are designated for creation such weapons or means of delivery, or when required guarantees (obligations) on final use of the goods are absent. The main branch of export control system of enterprises is intrafirm export control systems and appropriate export control subdivisions, or officials determined by management of enterprises. The mentioned above subdivisions or officials ensure the enterprise to execute legislation needs in the area of export control on all stages of realization of international goods transfers. 4. Overview of Ukraine's Export Control Legislation Ukraine's export control legislation is based on internationally accepted norms and principles and fully incorporates export control provisions of international control regimes, namely the Nuclear Suppliers Group, Zangger Committee, Missile Technologies Control Regime and Wassennaar Arrangement, which Ukraine is a member of. The provisions of Australian Group are also incorporated in Ukraine's legislation, although now Ukraine is being an aspirant for its membership. In Ukraine state control over transfers of respective goods is exercised according to the control lists approved within the framework of the above-mentioned export control regimes and also in accordance with the CWC and BWC provisions. The national export control system undergoes permanent development, which meets the emerging new challenges brought by world-wide trends in the field of non-proliferation and international terrorism counteraction. The adoption of the Law of Ukraine "On State Control of International Transfers of Military and Dual-Use Goods" of February 20, 2003, has become a major event in the area of export control in Ukraine in 2003. This document is now at the core of Ukraine's export control legislation. Although Ukraine's national system of export control had been already functioning on the basis of relevant legislative acts including decrees of the Cabinet of Ministers of Ukraine and the President of Ukraine, the Law considerably increased the transparency of the system, making it more comprehensible to business and clearly outlining the state's relevant functions. The Law determines: - principles of the state export control policy; - order according to which entities obtain licenses for international transfers of goods subject to export control; - mechanism of counteracting violations in the area of export control. It is important from the standpoint of both transparency and efficiency that the Law defines the duly authorized state export control body, which is the State Export Control Service of Ukraine. It is granted an independent status and broad functions and authorities in the area of export control. The Law puts the State Service of Export Control in the center of the scheme of inter-agency exchange of information on issues related to export control. The Law has provisions regulating the issues of brokerage with regard to trade in military and dual-use goods. According to the Law intermediary (brokerage) activity is defined as "any actions by a business entity of Ukraine that assist implementation of international transfers of goods designated for military purpose, including actions related to financing, transporting or expediting shipments, irrespective of the origin of such goods and territory on which such activity is conducted." The Law stipulates that licenses for transfers of military and dual-use goods may be granted only to those entities which are registered by the State Service of Export Control. The Law provides legal basis for the system of intrafirm export control, which implies measures taken by business entities for providing compliance with export control legislation. The Law has increased responsibility of business entities for violations of export control regulations. Companies are not allowed to conclude contracts for international transfers of goods if they have information that such goods may be used by a foreign state or foreign business for creation of weapons of mass destruction or means of their delivery. According to this legislation a company must refuse to fulfil a contract for international transfer of goods if it gets information that the goods will be used (a) for other purposes than those declared in the contract or related documents or (b) by another end-user than the one stated in the contract or related documents. The Law has provisions that promote effective counteraction of violations in the area of export control. To prevent violations of export control legislation the State Service of Export Control as well as other state bodies within the limits of their authority are enabled to perform investigations, including control of delivery of goods to end-users and check-ups of the actual use of goods with regard to the declared purposes. In case of detecting violations of export control regulations the state bodies are to inform the State Service of Export Control. If there is a sufficient information about any person's or company's intention to commit or about an actual fact of committing a crime related to illegal actions with goods subject to export control the State Service of Export Control has to inform the relevant enforcement authorities of Ukraine. According to the Law the violations of export control legislation are, inter alia, as follows: - exercising international transfers of goods subject to export control without obtaining appropriate licenses; - performing international transfers of controlled goods by licenses obtained as the result of submitting counterfeit documents or documents containing false information; - concluding contracts for international transfers of any goods whatsoever if there is information that such goods may be used by a foreign country or foreign business for creation of weapons of mass destruction or means of their delivery; - performing international transfers of controlled goods irrespective of having obtained information that the goods shipped will be used for purposes other than those declared in the contract or related documents; - deliberate concealment of information that could influence the decision as to granting a license; The State Service of Export Control is empowered to impose fines on entities for violations of export control legislation. The amount of the fines is established in the way which makes it unprofitable to the entities to break the Law. Apart from fines the State Service of Export Control may cancel or revoke a license or cancel registration of a business that has violated the Law depending on the type and scale of the committed violation. This measure is even more effective than fines. After the adoption of the Law, the relevant changes were made in the Criminal Code and Code on Administrative Violations of Ukraine. These changes provide a higher level of responsibility for violating export control regulations.   Legal Aspects of Security Sector Governance: Standards for Intelligence Oversight Dr. Hans Born, Senior Fellow DCAF, Geneva, Prof. Ian Leigh, Professor of Law, Director of the Human Rights Centre, University of Durham Introduction* Security and intelligence services (sometimes also called 'security services') are a key component of any state, providing independent analysis of information relevant to the security of state and society and to the protection of its vital interests. The new threats and risks to internal security resulting from international terrorism, drug trafficking, smuggling, organised crime and illegal migration, elicit calls to strengthen intelligence capabilities. In particular, following the events of September 11, 2001, good intelligence is seen as essential. The very nature of intelligence services is to gather and analyse information. Such actions require a high degree of secrecy. The danger exists that this information can be abused in the domestic political context. Intelligence services can become threats to the society and the political system they are meant to protect. Therefore, there is a great need for clear democratic and parliamentary oversight of the intelligence services in addition to executive control. Only a system of checks and balances can prevent the executive or the parliament from misusing intelligence services for their own political purposes. In a democratic society, intelligence services should strive to be effective, politically neutral (non-partisan), adhere to a professional ethic, operate within their legal mandates and in accordance with the constitutional-legal norms and democratic practices of the state. Democratic oversight of intelligence structures should begin with a clear and explicit legal framework, establishing intelligence organisations in state statutes, approved by parliament. Statutes should further specify the limits of the service's powers, its methods of operation, and the means by which it will be held accountable. As a point of departure, it should be stressed that democratic oversight of security and intelligence agencies is one of the many building blocks of security sector governance. Security sector governance consists of two concepts, 'governance' and 'security sector' which both need further elaboration: 'Governance' describes the management of political tasks on the national, sub-national and the international level. This distinguishes 'governance' from 'government', which focuses on the national level only. With governance individual citizens' and civil society's influences (below) as well as the impact from the international level (above) are accounted for. The governance of security and intelligence services oversight in Europe, for instance, embraces the work by ombudsmen and the evaluation of certain complaint procedures as well as the contributions of the European Court of Human Right in devising common principles of accountability. For further illustration please consider the World Bank's definition of 'good governance': "Good governance is epitomised by predictable, open and enlightened policy-making, a bureaucracy imbued with a professional ethos acting in furtherance of the public good, the rule of law, transparent processes, and a strong civil society participating in public affairs. Poor governance (on the other hand) is characterised by arbitrary policy-making, unaccountable bureaucracies, unenforced or unjust legal systems, the abuse of executive power, a civil society unengaged in public life, and widespread corruption." Analysing 'governance' more closely, one can highlight five key principles: "transparency, responsibility, accountability, participation and responsiveness (to the needs of the people)". As per 'security sector', the Organisation for Economic Co-operation and Development (OECD) found that it is built on two pillars: "(a) the security forces and (b) the relevant civilian bodies and processes needed to manage them, which encompass "state institutions which have a formal mandate to ensure the safety of the state and its citizens against acts of violence and coercion (e.g. the armed forces, the police and paramilitary forces, the intelligence services and similar bodies; judicial and penal institutions) and elected and duly appointed civil authorities responsible for control and oversight (e.g. Parliament, the Executive, the Defence Ministry, etc." One can witness on the international level an emerging consensus on the issue of democratic oversight of intelligence services. International organisations such as the OECD, United Nations (UN), Organisation for Security and Cooperation in Europe (OSCE), the Council of Europe (CoE) as well as the Inter-Parliamentary Union, all explicitly recognise that the intelligence services should be subject to democratic accountability. Box 1. International organisations and the democratic control of security and intelligence services: the example of the OSCE Code of Conduct.' (…)20.The participating States consider the democratic political control of military, paramilitary and internal security forces as well as of intelligence services and the police to be an indispensable element of stability and security. (…)21.Each participating State will at all times provide for and maintain effective guidance to and control of its military, paramilitary and security forces by constitutionally established authorities vested with democratic legitimacy. Each participating State will provide controls to ensure that such authorities fulfil their constitutional and legal responsibilities. They will clearly define the roles and missions of such forces and their obligation to act solely within the constitutional framework. (…)'Source: OSCE Code of Conduct of politico-military aspects of security, Budapest, 1994. Drafting a proper law which encompasses the principles of democratic oversight of intelligence services, however, is not an easy task because of the technicality of the matter, the contribution of national and international (case) law as well as maintaining the delicate balance between national security and human rights. The challenges are further aggravated by the strict confidentiality regulations which surround the intelligence services. Therefore, parliamentarians, government officials as well as lawyers, scholars and other representatives of civil society have a complex task ahead in drafting new laws or revising existing laws concerning the oversight of intelligence services. In this regard, it is important to acknowledge that a commitment to the rule of law and to the protection of human rights is widespread. Virtually all states recognise the value for their citizens of constitutional rights of fair trial, privacy, freedom of expression and non-discrimination. The right to privacy is of particular relevance to intelligence services. Protection of these rights are acknowledged in domestic constitutions, regional human rights treaties and international treaties, including, among others, the Universal Declaration of Human Rights, the European Convention on Human Rights and Fundamental Freedoms 1950, and the UN International Covenant on Civil and Political Rights (see Box Two). Box 2 The Protection of Privacy under International AgreementsMany agreements under international law specify respect for privacy as a fundamental right. However, it is recognised that a problem exists in that protection of privacy is made at the national level, therefore only citizens of that nation enjoy the protection provided.9 UN Universal Declaration of Human Rights 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks' (Article 12) UN International Covenant on Civil and Political Rights 1976 '1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks' (Article 17). European Convention on Human Rights 1950 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice' (Article 6). '1. Everyone has the right to respect for his private and family life, his home and his correspondence' 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others' Article 8(2). 'Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party' (Article 60). Democratic Oversight of Security and Intelligence Services The question remains, however, what democratic accountability of intelligence services entails. Following the reports and recommendations of a number of international organisations (OECD, UN, OSCE, IPU, CoE),10 democratic accountability of intelligence services requires executive control and parliamentary oversight as well as inputs by civil society. Intelligence services must be responsive to the needs of the people through their elected representatives, i.e. elected civilians in the cabinet and parliament who embody the civilian primacy of controlling the security and intelligence services. In short, democratic oversight of the security services includes the following actors: 11 · The executive exercises direct control, determines the budget, and sets general guidelines and priorities for the activities of the security and intelligence services; · The legislature exercises parliamentary oversight by passing laws that define and regulate the security and intelligence services as well as their special powers and by adopting the corresponding budgetary appropriations; · The judiciary both monitors the special powers of the security and intelligence services and prosecutes wrong-doings of their employees; · Civil society groups, think tanks and research institutes monitor the set-up and functioning of the security and intelligence services, primarily on the basis of public sources. Individual citizens may restrain the use of special powers by security and intelligence services via special complaint channels, independent ombudsman or commissioner/inspector-general as well as national and international courts. · On the international level, no oversight of security and intelligence services exist, except for the European Court of Human Rights (ECHR) - see section on the Need for Legislation. The above listing underlines that each actor has a different function. The executive controls the services by giving direction to the them, including tasking, prioritising and making resources available. Additionally, the parliament focuses on oversight, which is limited more to general issues and authorisation of the budget. The parliament is more reactive when setting up inquiry committees to investigate scandals. The judiciary is tasked with monitoring the use of special powers (next to prosecuting wrong-doings). Civil society, think tanks and citizens may restrain the functioning of the services by giving an alternative view (think tanks), disclosing scandals and crises (media), or by issuing complaints in case of wrong-doings (citizens). Additionally, because democratic oversight of the intelligence services involves the behaviour of various actors involved, it is also about political culture. Key-stones of democratic accountability such as transparency, responsibility, accountability, participation and responsiveness (to the people) imply a culture and certain behaviour which goes beyond laws and other legal rules. Nevertheless, laws should lay down a framework which fosters a culture of openness and respect for human rights. Security and intelligence Services The security and intelligence services are the object of control. The public control of these services is important for at least four reasons. Firstly, contrary to the concept of openness and transparency which is at the heart of democratic oversight, security and intelligence services often operate in secret. As secrecy may shield their operations from scrutiny by the public, it is important that the parliament and especially the executive have a close eye on the services' operations. Secondly, the security and intelligence services possess special powers, such as interference with private property or communications, which clearly can limit human rights and require monitoring by the designated oversight institutions. Thirdly, during the post Cold War era and especially after 11 September 2001, intelligence communities of nearly all states are in a process of readjustment to the new security threats. The greatest perceived threat to the functioning of democratic societies is no longer that of a foreign military invasion, but rather organised crime, terrorism, spillovers of regional conflicts or failed states, and the illegal trafficking of people and goods. This readjustment process has to take place under the supervision of the elected civilian authorities who can assure that the restructuring of the services are aligned to the people's need. Furthermore, because intelligence services are large government bureaucracies with an inherent resistance to change and with a certain degree of bureaucratic inertia, outside institutions such as the executive and the parliament have to oversee that the desired changes are implemented in an efficient manner (as taxpayer's money is involved). Fourthly, security and intelligence services are tasked to collect and analyse information about possible threats and to make threat assessments. As the threat assessments form the point of departure for the other security forces of the state (military, police, border guards), it is important that these threat assessments are taking place under democratic guidance. This is especially relevant because these assessments imply a prioritisation of threats, causing major political implications. One can discern three types of intelligence services, i.e. domestic intelligence, foreign intelligence and military intelligence. Domestic intelligence deals with information that is relevant to internal security. It focuses on threats to the state, society and territory from foreign-influenced activities such as subversion, espionage or politically motivated violence/terrorism. Foreign intelligence services deal with threats to external security coming from other governments, foreign organisations, and non-state groups. The three basic functions of any intelligence services are: collection and analysis of information as well as counterintelligence.12 Covert action is a function which is mostly related to foreign intelligence services but is increasingly disputed as an appropriate function of intelligence services in a democratic state.13 The key-essence why intelligence services have to be under strict democratic oversight can be found in the fact that intelligence services use special or exceptional powers in order to execute those functions (see Box Three). Box 3 Intelligence Collection and Special PowersIn order to collect and analyse information, intelligence services make use of various intelligence disciplines (INT's). The most important INT's are:o Signals Intelligence (SIGINT): comprising data and information collected through intercepts of radio, radar, or other electronic emissions, including laser, visible light, and electro-optics. Increasing sophistication and rapidly changing encryption systems requires a far different SIGINT effort than in previous decades. SIGINT can be subdivided into Communication Intelligence (COMINT), Electronic Intelligence (ELINT) and Telemetry Intelligence (TELINT).o Imagery Intelligence (IMINT): Data and information collected via photography, electronic, infrared, ultra-violet or other image-capturing technologies, from land, sky or space. Imagery is collected in essentially three ways, satellites, manned aircraft, and unmanned aerial vehicles (UAVs).o Human Intelligence (HUMINT): information collected by humans - by spies, agents and insiders, or gleaned from defectors, 'walk-ins', informers, diplomats, businessmen, travellers, and the media etc. It is the oldest intelligence discipline and the one that is most written about in the media. Today, the challenge is getting into contact with influential figures in heretofore obscure third world states, infiltrating and penetrating clandestine groups of terrorists and organised crime, or narcotic traffickers who speak a variety of foreign languages. HUMINT regarding such sources can be especially important as there may be little evidence of clandestine activities or intentions that can be gathered from imagery and their communications may be carefully limited or concealed.o Measurement And Signatures Analysis (MASINT): involves the application of more complicated analytical refinements to information collected by SIGINT and IMINT sensors. It also includes spectral and temperature imaging by which the identities and characteristics of objects can be identified on the basis of their reflection and absorption of light and heat.o Open source information (OSINT): including newspapers, periodicals, pamphlets, books, radio, television, and internet websites. At the same time, requirements for translation, dissemination, and systematic analysis have increased given the multitude of different areas and exponentially increasing volumes of materials.The collection of information through these disciplines, may require that the intelligence services posses exceptional or special powers, which allows for the limitation of human rights, especially the right to privacy. The following special powers can be distinguished: (1) conduct surveillance and record information as well as trace information; (2) to conduct a search of enclosed spaces or to search closed objects; (3) to open letters and other consignments without consent of the sender or addressee; (4) to use stolen or false identities, keys, special software or signals for clandestinely entering, copying or corrupting databases; (5) to tap, receive, record and monitor conversations, telecommunication, other data transfer or movement - within the country or from abroad; (6) to turn to providers of public telecommunication networks and public telecommunication services with the request to furnish information relating to identity of users as well as all the traffic that has taken place or will take place; (7) to have access to all places for installing observation and registration instruments.From a democratic governance point of view, these special powers are arranged by law and the permission to use these special powers can only be granted by the relevant minister or court.Source: Richard Best, Intelligence Issues for Congress, Congressional Research Service, 12 September 2001, Washington DC; DCAF Intelligence Working Group, Intelligence Practice and Democratic Oversight - A Practitioner's View, DCAF, Geneva, 2003; The Netherlands' Intelligence and Security Act, 2002 Need for Legislating Intelligence Oversight The prior discussion focuses on why democratic oversight of intelligence services is important. This section argues in detail why the democratic oversight of intelligence services must be based on law. The rule of law is fundamental and indispensable element of democracy. Only if security and intelligence agencies are established by law and derive their powers from the legal regime can they be said to enjoy legitimacy. Without such a framework there is no basis for distinguishing between actions taken on behalf of the state and those of law-breakers, including terrorists. 'National security' is not a pretext to abandon the commitment to the rule of law which characterises democratic states, even in extreme situations. On the contrary, the exceptional powers of security services must be grounded in a legal framework and in a system of legal controls. Legislation is the legal embodiment of the democratic will. In most states approving legislation (along with scrutinising government actions) is among the key roles of the parliament. It is therefore appropriate that in democracies where the rule of law prevails, intelligence and security agencies derive their existence and powers from legislation rather than exceptional powers such as the prerogative. This gives the agencies legitimacy and enables democratic representatives to address the principles that should govern this important area of state activity and to lay down limits to the work of such agencies. Moreover, in order to claim the benefit of legal exceptions for national security to human rights standards it is necessary that the security sector derive its authority from legislation. Parliamentary approval of the creation, mandate and powers of security agencies ensures that the rule of law is followed in the fullest sense. A legal foundation gives legitimacy both for the existence of these agencies and the (often exceptional) powers that they possess. As in other areas, one key task of the legislature is to delegate authority to the administration but also to structure and confine discretionary powers in law. Restricting Constitutional and Human Rights Legislation is also necessary where it is intended to qualify or restrict the constitutional rights of individuals in the security interests if the state. At the international level, the European Convention on Human Rights, for example, also follows this approach by allowing restrictions to the rights of public trial, respect for private life, freedom of religion, freedom of expression and of association 'in accordance with law' (see Box Six, Quality of Law Test), and where 'necessary in a democratic society' in the interests of national security.14 Nevertheless, some basic human rights are under no circumstance permitted to be limited or derogated (see Box Four). Box 4 Non-Derogable Human RightsIn most mature democracies, it is accepted that state bodies, that includes intelligence services, must respect individuals' privacy. This is generally enshrined in national constitutions, ensuring special protection of privacy. Potential violations of privacy are authorised only after analysis of the legal considerations and in accordance with the principle of proportionality.Article 4 of the UN International Covenant on Civil and Political Rights (entered into force in 1976) stipulates: '1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision' (Article 4 ).According to Article 4 para. 2, no derogation is permitted from the following rights: To life (Article 6); Not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7); Not to be held in slavery or servitude (Article 8); Not to be imprisoned for failure to perform a contractual obligation (Article 11); Not to be subject to retroactive penal measures (Article 15); To recognition as a person before the law (Article 16); To freedom of thought, conscience and religion (Article 18).Source: International Covenant on Civil and Political Rights (entered into force in 1976) Using the necessity for legislation of restricting political and human rights as a point of departure, two implications are distinguishable. Firstly, intelligence services have to be established by legislation and secondly, the special powers that intelligence services exercise must be grounded in law. Security Agencies Should be Established by Legislation Many states have now taken the step of codifying in law the constitutions of their security forces. Some recent examples include legislation in Slovenia, Lithuania, Estonia and South Africa.15 However, there are considerable variations. Not surprisingly, concern about agencies operating in the domestic sphere gives rise to fears of abuse or scandal even in long-established democracies. In transitional states often the domestic security agency has been tainted by a repressive past. Accordingly, many states have now legislated for these agencies, mostly in the last two decades. There are fewer reasons to place a country's own espionage agency on a legal basis - the UK was unusual in doing so in the case of the Secret Intelligence Service (MI6) in the Intelligence Services Act 1994.16 Again, only a few states have legislated for military intelligence17 or intelligence co-ordination.18 Box 5 Necessity for Legislating Intelligence Services due to Rulings of the ECHR: the Case of the UKIn a case from the UK brought under the ECHR, the lack of a specific statutory basis for MI5 was held to be fatal to the claim that its actions were 'in accordance with the law' for the purpose of complaints of surveillance and file-keeping contrary to Article 8 of the Convention.19 An administrative charter - the Maxwell-Fyfe Directive of 1952 - was insufficient authority for the surveillance and file-keeping since it did not have the force of law and its contents were not legally binding or enforceable. In addition, it was couched in language which failed to indicate 'with the requisite degree of certainty, the scope and the manner of the exercise of discretion by the authorities in the carrying out of secret surveillance activities'.20 As a consequence of the ruling in the case, the UK passed a statutory charter for MI5 (the Security Service Act 1989), and later took a similar step for the Secret Intelligence Service and GCHQ also (see the Intelligence Services Act 1994). Specific Powers that Security and Intelligence Agencies Exercise Should be Grounded in Law Legality requires that security forces act only within their powers in domestic law. Consequently, only lawful action can be justified by way of interference with human rights under the European Convention. For example, when the Greek National Intelligence Service was found to have been conducting surveillance on Jehovah's Witnesses outside its mandate, it was held to have violated Article 8, which guarantees respect for one's private life.21 The rule of law requires more than a simple veneer of legality, however. The European Court of Human Rights refers additionally to the 'quality of law' test - this requires the legal regime to be clear, foreseeable and accessible. For example, where a Royal Decree in the Netherlands set out the functions of military intelligence but omitted any reference to its powers of surveillance over civilians, this was held to be inadequate.22 Similarly, in Rotaru v Rumania,23 the Strasbourg Court held that the law on security files was insufficiently clear as regards grounds and procedures since it did not lay down procedures with regard to the age of files, the uses to which they could be put, or establish any mechanism for monitoring them. The 'quality of law' test puts a particular responsibility on legislatures. One possible response is to write into the law general statements that the powers of agencies can only be used where 'necessary', that alternatives less restrictive of human rights are always to be preferred, and that the principle of proportionality should be observed (This is the approach taken in Estonia [Security Authorities Act, paragraph 3]). Perhaps preferable is the alternative, followed in the new legislation from the Netherlands, of giving detailed provisions governing each investigative technique that the agency may utilise (Intelligence and Security Services Act 2002, Articles 17-34). Box 6 Quality of Law TestThe European Convention of Human Rights Limitations stipulates that in a democratic society the right of privacy (Art 8), the freedom of thought, conscience and religion (Art 9) as well as the freedom of expression (Art 10) and the freedom of assembly and association (Art 11) can be limited, among others, in the interest of national security and public order. However, the Convention also prescribes that these limitations have to be made 'in accordance with the law'. Case law of the European Court of Human Rights alluded, inter alia, that security and intelligence services can only exercise their special powers (see Box Three) if they are regulated by law. In this respect, according to the European Court:o Laws includes common law rules as well as statutes and subordinate legislation. In this case, the Court stated that to qualify as 'law' a norm must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct (Sunday Times v UK, para 47);o Laws which 'allows the exercise of unrestrained discretion in individual cases will not posses the essential characteristics of foreseeability and thus will not be a law for present purposes. The scope of the discretion must be indicated with reasonable certainty.' (Silver and Others v UK, para. 85);o Checks and other guarantees to prevent the misuse of powers by the intelligence services must be established if there is to be consistency with fundamental human rights. Safeguards must exist against abuse of the discretion established by law (Silver and Others v. UK, para. 88-89);o As far as these safeguards are not written in the law itself, the law must at least set up the conditions and procedures for interference (Klass v FRG, No. 5029/71, Report of 9 March 1977 para. 63. Kruslin v France, 24 April 1990. A/176-A, para. 35, Huvig v. France, 24 April 1990, A/176-B, para. 34).Source: European Court of Human Rights' website http://www.echr.coe.int/ ; Ian Cameron, National Security and the European Convention on Human Rights, 2000, Kluwer Law International. Main elements and challenges of democratic oversight of security and intelligence services So far this paper discussed major aspects of security sector governance as applicable to the democratic oversight of security and intelligence services. Yet it is also important to illustrate what the scope and width of legal standards of intelligence oversight should look like. In so doing, reference is made to the aforementioned research project (see footnote 1), where intelligence legislation from both presidential and parliamentary, new and old democracies were examined. It postulates that any legislation on intelligence oversight should embrace four main elements: executive control, parliamentary oversight, independent review and exceptional powers of intelligence services. Text Box seven illustrates this in more detail. Box 7 Main Elements and Challenges of Democratic Oversight of Security and Intelligence Services 1. Executive Control a. Ministerial Knowledge and Control of Intelligence b. Prevention of Ministerial Abuses, Political Bias and Illegal Action 2. Parliamentary Oversight a. Oversight Body b. Vetting and Clearance of Oversight Body c. Parliamentary Powers to Obtain Information and Documents d. Reporting to Parliament e. Budget Control 3. Independent Review a. Handling of Complaints b. Organisation and Powers of Independent Review Body (Inspectors-General or Ombudsman) 4. Exceptional Powers of Intelligence Services a. Internal Administrative Rules b. Surveillance, c. Human sources d. International Cooperation e. Covert Action f. Guarantees Against Illegal Action Conclusion Two claims capture well the essence of this paper. First, democratic intelligence oversight entails far more than presidential/ministerial control as it involves many more actors such as international courts, national courts, citizens, parliament, non-governmental organisations and the security and intelligence services themselves via internal control. Second, intelligence laws are important but not sufficient to guarantee effective intelligence oversight as such - the five principles of good governance need also to be adhered to. Annex 1: List of Consulted Laws on Oversight of Security and Intelligence Services in Selected Countries Argentina Internal Security Law (Law No. 24.059 of 1992) Australia Intelligence Services Act 2001 (No. 152, 2001) Bosnia and Herzegovina Draft Law on the Intelligence and Security Agency International Expert's recommendations on Draft Law on (1). Canada Security Intelligence Service Act Security of Information Act Estonia Security Authorities Act (entered into force March 2003) Germany Gesetz uber die parlamentarische Kontrolle nachrichtendienstlicher Tatigkeit des Bundes Norway Act relating to the Monitoring of Intelligence, Surveillance and Security Services of February 1995 South Africa Intelligence Services Act 2002 (No. 65/2002) Committee of Members of Parliament on and Inspectors-General of Intelligence Act, 1994 (No. 40/1994) National Strategic Intelligence Act, 1994 (No. 39/1994) South Korea Jonathan Moran's informal translation of the National Security Law The Netherlands Intelligence and Security Services Act 2002 United Kingdom Excerpts from Intelligence Services Act 1994 Table of Content for the Regulation of Investigatory Powers Act 2000 Security Service Act 1996 United States Executive Order 12333 - United States Intelligence Activities (1981, still in force) Intelligence Authorization Act for the Fiscal Year 1993 Intelligence Authorization Act for the Fiscal Year 2004 Annex 2: Recommendation 1402 (1999)1 Control of internal security services in Council of Europe member states (Extract from the Official Gazette of the Council of Europe - April 1999) 1. The Assembly recognises that internal security services perform a valuable service to democratic societies in protecting national security and the free order of the democratic state. 2. However, the Assembly is concerned that member countries' internal security services often put the interests of what they perceive as those of national security and their country above respect for the rights of the individual. Since, in addition, internal security services are often inadequately controlled, there is a high risk of abuse of power and violations of human rights, unless legislative and constitutional safeguards are provided. 3. The Assembly finds this situation potentially dangerous. While internal security services should be empowered to fulfil their legitimate objective of protecting national security and the free order of a democratic state against clear and present dangers, they should not be given a free hand to violate fundamental rights and freedoms. 4. Instead, a careful balance should be struck between the right of a democratic society to national security and individual human rights. Some human rights (such as the right to be protected from torture or inhuman treatment) are absolute, and should never be interfered with by state authorities, including internal security services. In other cases, however, which right should have priority - the individual human right or the right of a democratic society to national security - will have to be established using the principles of proportionality and legality, as laid down in the European Convention on Human Rights. 5. The risk of abuse of powers by internal security services, and thus the risk of serious human rights violations, rises when internal security services are organised in a specific fashion, when they wield certain powers such as preventive and enforcement methods which involve forcible means (for example the power to search private property, run criminal investigations, arrest and detain), when they are inadequately controlled (by the executive, legislative and the judiciary), and also when there are too many of them. 6. The Assembly thus proposes that internal security services should not be allowed to run criminal investigations, arrest or detain people, nor should they be involved in the fight against organised crime, except in very specific cases, when organised crime poses a clear danger to the free order of a democratic state. Any interference of operational activities of internal security services with the exercise of human rights and fundamental freedoms as protected in the European Convention on Human Rights should be authorised by law, and preferably by a judge, before the activity is carried out. Effective democratic control of the internal security services, both a priori and ex post facto, by all three branches of power, is especially vital in this regard. 7. The Assembly considers it necessary that each individual country provide efficiently for its own internal security requirements while ensuring proper avenues of control in conformity with a uniform democratic standard. This common standard should ensure that internal security services act only in the national interest, fully respecting fundamental freedoms, and cannot be used as a means of oppression or undue pressure. 8. Thus, the Assembly recommends that the Committee of Ministers draw up a framework convention on internal security services incorporating the guidelines below which form an integral part of this recommendation. Guidelines A. As regards the organisation of internal security services i. All internal security services must be organised and must operate on a statutory basis, that is on the basis of national laws which have gone through the normal law-making process in parliament, and which are completely public. ii. The sole task of the internal security services must be to protect national security. Protecting national security is defined as combating clear and present dangers to the democratic order of the state and its society. Economic objectives, or the fight against organised crime per se, should not be extended to the internal security services. They should only deal with economic objectives or organised crime when they present a clear and present danger to national security. iii. The executive must not be allowed to extend objectives to the internal security services. These objectives should instead be laid down by law, to be interpreted by the judiciary in case of conflicting interpretations (and not by successive governments). Internal security services should not be used as a political tool to oppress political parties, national minorities, religious groups or other particular groups of the population. iv. Internal security services should preferably not be organised within a military structure. Nor should civilian security services be organised in a military or semi-military way. v. Member states should not resort to non-governmental financing sources to support their internal security services, but finance them exclusively from the state budget. The budgets submitted to parliament for approval should be detailed and explicit. B. As regards the operational activities of internal security services i. Internal security services must respect the European Convention on Human Rights. ii. Any interference by operational activities of internal security services with the European Convention on Human Rights must be authorised by law. Telephone tapping, mechanical or technical, aural and visual surveillance, and other operational measures carrying a high risk of interference with the rights of the individual should be subject to special a priori authorisations by the judiciary. Legislation should normally establish parameters which are to be taken into consideration by judges or magistrates, who should be available for prior authorisations twenty-four hours a day so that the demand for authorisation can be processed within a few hours (maximum), before they authorise operational activities such as house searches. These parameters should include as minimum requirements for authorisation that: a. there is probable cause for belief that an individual is committing, has committed, or is about to commit an offence; b. there is probable cause for belief that particular communications or specific proof concerning that offence will be obtained through the proposed interception or house searches, or that (in the case of arrest) a crime can thus be prevented; c. normal investigative procedures have been attempted but have failed or appear unlikely to succeed or be too dangerous. The authorisation to undertake this kind of operative activity should be time-limited (to a maximum of three months). Once observation or wire-tapping has ended, the person concerned should be informed of the measure taken. iii. Internal security services should not be authorised to carry out law-enforcement tasks such as criminal investigations, arrests, or detention. Due to the high risk of abuse of these powers, and to avoid duplication of traditional police activities, such powers should be exclusive to other law-enforcement agencies. C. As regards effective democratic control of the internal security services i. The executive should exercise ex post facto control of the activities of the internal security services, for example by obliging the internal security services to draw up and submit annual detailed reports on their activities. One minister should be assigned the political responsibility for controlling and supervising internal security services, and his office should have full access in order to make possible effective day-to-day control. The minister should address an annual report to parliament on the activities of internal security services. ii. The legislature should pass clear and adequate laws putting the internal security services on a statutory basis, regulating which kind of operational activities carrying a high risk of violation of individual rights may be used in which circumstances, and providing for adequate safeguards against abuse. It should also strictly control the services' budget, inter alia by obliging these services to submit to it annual detailed reports on how their budget is used, and should set up special select control committees. iii. The judiciary should be authorised to exercise extensive a priori and ex post facto control, including prior authorisation to carry out certain activities with a high potential to infringe upon human rights. The overriding principle for ex post facto control should be that persons who feel that their rights have been violated by acts (or omissions) of security organs should in general be able to seek redress before courts of law or other judicial bodies. These courts should have jurisdiction to determine whether the actions complained of were within the powers and functions of the internal security services as established by law. Thus, the court should have the right to determine whether there was undue harassment of the individual or abuse of discretionary administrative powers in his or her regard. iv. Other bodies (for example ombudsmen and data protection commissioners) should be allowed to exercise ex post facto control of the security services on a case-by-case basis. v. Individuals should be given a general right of access to information gathered and stored by the internal security service(s), with exceptions to this right in the interest of national security clearly defined by law. It would also be desirable that all disputes concerning an internal security service's power to bar disclosure of information be subject to judicial review. 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