Assessing Damage, Urging Action
of the examples in this chapter of institutional secrecy and impunity pre-date 9/11;
others have roots in the response to 9/11 and the increased importance placed on
intelligence and intelligence cooperation. These trends have shown the lacunae in
the domestic and international regulation of intelligence efforts.
The Panel believes that this has to change. Ending impunity and ensuring accountability are crucial to establishing confidence in the intelligence services. The Panel
believes that genuinely accountable intelligence agencies are essential if UN Member
States are to comply with their duties under international law (and relevant Security
Council Resolutions) to fight terrorism and uphold human rights.
The Panel believes that there is an urgent need to take stock of existing mechanisms
of democratic control of the intelligence services and to ensure that all aspects,
including international cooperation, are governed by law and regulations in full
compliance with international human rights standards.
The Panel recommends in particular that at the domestic level:
• States should recognise the clear distinction between the roles of intelligence
and law enforcement; intelligence agencies should not perform the function
of law enforcement personnel and, in particular, should have no powers to
detain or arrest people. To the extent that intelligence agencies are given any
coercive powers, intelligence agents must comply with the same standards
as exist under ordinary law and in conformity with human rights standards,
most particularly by ensuring detainees prompt access to a lawyer and the
courts.
• States should ensure that data gathering and storage is handled with due
respect for their human rights obligations, and that particular care is taken
to ensure the non-discriminatory use of any such material (the text refers to
good practice guidance available on the issue of profiling). Judicial authorisation and oversight should be integral to intrusive surveillance powers, with
legal clarity as to when such powers can be used and on what criteria.
• States should recognise that they are responsible under international law
for the acts of their intelligence agents. To comply with this responsibility,
States must make intelligence agencies (including military intelligence units)
subject to a combination of effective internal and external controls and
oversight mechanisms, including effective parliamentary oversight. Judicial
control of intrusive measures, and access to lawyers, and eventually courts,
for appropriate remedies, is of great importance. Where States have already
instituted controls, they should undertake a review to ascertain that the
controls are effective in practice, with adequate powers and resources to
fulfil their mandate.
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