We know that European national security services have taken part in the US-lead “war on terror”. They have cooperated in actions which have violated human rights in the most flagrant manner. The leading and coordinating role has been played by the American CIA, but European agencies must assume their share of the responsibility for the abductions, renditions, secret detentions and unlawful interrogations.
Some of them have handed over suspects to the CIA or looked the other way when people were being secretly abducted. They have facilitated the flights with prisoners on board and provided information to the CIA.
Senator Dick Marty has reported to the Council of Europe Parliamentary Assembly that two of the member states even provided prison facilities for the secret detentions over a period of a couple of years.
There is still a crying need to review thoroughly what happened after Nine Eleven and learn from the mistakes. The eroded human rights standards must be re-established. This is also necessary in order to protect the credibility of the future combat against terrorism.
The fact that this crucial evaluation emerged may partly be due to the political bullying and fear-mongering by the Bush administration. However, there is also a widespread understanding in Europe that national security matters cannot be discussed in the open. Governments have been afraid that transparency would block the cooperation with other security agencies and hinder an exchange of information.
Human rights violations committed by executive bodies should however not be shielded from accountability as “state secrets”. A constructive and thorough discussion is urgent in order to create safeguards in this area. If there is political will, this is possible without the exposure of facts which must be kept confidential. The Canadian government gave an excellent example when setting up its commission in the Arar case.
The starting point must be that terrorism is a serious threat. After September 2001 there have also been horrendous attacks in Beslan, Istanbul, Madrid, London and other places. Actions must be taken to prevent, preempt and prosecute such acts. This does require surveillance work and the collection of data.
However, there have to be clear limits imposed on the activities of the security services, including the military agencies. Torture or other cruel, inhuman and degrading treatment can never be accepted, persons deprived of their liberty must be able to challenge their detention through correct procedures and there must be safeguards against illegitimate use of information collected about individuals. Human rights standards have always to be respected - even in periods of crisis, this is not a zero-sum-game.
When so many of the security activities go on in secrecy, it is particularly important that there be a system of democratic control. One revelation during recent years has been that even government leaders have appeared not to always be in the picture. Parliamentary and judicial control has been minimal. The intelligence services have pursued their cooperation with other agencies with little oversight.
Last year the Council of Europe Secretary General, Terry Davis, raised this issue in relation to the question of secret detention and transport of detainees suspected of terrorist acts. He suggested enhanced control over the activities of both foreign and domestic secret services on the territory of Member States.
The Venice Commission recently published an interesting Report on how democratic control could be organized in order to ensure State accountability. Though it does not cover military and foreign intelligence services, the analysis of the Commission is particularly useful. It deals with four different forms of accountability: parliamentary, judicial, expert and complaints mechanisms.
• The formal authority of the security agency should be based on parliamentary supervision. The Parliament could itself set up an oversight body whose members would have to respect the necessary confidentiality. Such a mechanism might convince the broader population that there indeed is a continuous review even if the facts about activities are withheld from the public.
• Decisions to authorize special investigative measures could rest with the judiciary. Also, it can play a role in reviewing such methods afterwards. However, the Venice Commission notes that data-mining and other information gathering methods tend to escape judicial control.
• Expert bodies could be set up to assist in the oversight of the security activities. This may be preferable when there is a need to ensure that the members are independent experts and also have more time than parliamentarians and judges to fulfill a control function. There are also models of combined oversight bodies – both experts and parliamentarians.
• Special mechanisms are necessary to give individuals who claim to have been adversely affected by the security services a possibility of redress before an independent body. This might strengthen accountability and encourage improvements of the system as such.
This Report of the Venice Commission should be seen as a helpful guide for governments when reviewing the shortcomings which have been so devastatingly exposed.
Thomas Hammarberg