10.02.2007
Security Services, Police, and Human Rights
№1 2007 January/March

The
international community has been increasingly active in discussing
principles and methods for establishing democratic control over
national security services, and the European Committee on Crime
Problems has conducted a special study on this issue. The Geneva
Center for the Democratic Control of Armed Forces and the Norwegian
Parliamentary Intelligence Oversight Committee have released a
guide entitled, Handbook on Making Intelligence Accountable:
Legal Standards and Best Practice for Oversight of Intelligence
Agencies
. On June 23, 2005, the Parliamentary Assembly of the
Council of Europe issued Recommendation 1713 entitled,
Democratic Oversight of the Security Sector in Member
States
. At the 969th meeting of the Ministers’ Deputies on
June 21, 2006, the Council of Europe’s Committee of Ministers
adopted a response to this recommendation.



 

It would
seem that these documents set out in detail the required approaches
to the problem of democratic oversight of the security sphere. Yet
this issue still has many aspects that require in-depth analysis
together with the development of corresponding
recommendations.

 

One is to
ensure the protection of human rights and basic freedoms while
security services and police fulfill their functions in countering
new challenges and threats.

 

Why should
this problem be formulated in such a way?

 

First, the need to increase the protection of
human rights and basic freedoms amidst the struggle against
terrorism has been repeatedly raised in conceptual documents of the
United Nations. It was formulated in a particularly acute and
comprehensive way in the Global Counterterrorism Strategy, adopted
by the UN General Assembly in September 2006, as well as in
documents of the July 2006 G8 summit in St. Petersburg.

 

Second, the international community should
not confine itself to counterterrorism measures alone. Terrorism is
closely intertwined with organized crime, corruption, drug and
human trafficking, illegal migration, and the illegal arms trade.
Every operation conducted by security services and police is
usually of a comprehensive nature, but occasionally it is difficult
to draw a clear line between different kinds of criminal activity,
as well as between cause and consequence. This is particularly
evident in Afghanistan today where drug trafficking feeds
terrorism, while drug trafficking itself cannot exist without all
other forms of crime.

 

Third, security services must everywhere be
ranked on the same level as the police. The legislation of some
countries, including Russia, does not even include the notion of
“security service.” Meanwhile, police quite often fulfill the
duties of a security service. As a rule, especially during
counterterrorist operations, police and security services operate
as a single unit and, naturally, bear joint responsibility for
violations of human rights and democratic freedoms.

 

Particular
problems that demand a solution are:

 

1.
Observance of the sovereignty of nation-states.
World
leaders repeatedly declare their intention to support those efforts
that ensure sovereign equality for all states, as well as respect
for their territorial integrity and political independence. Appeals
are often made to nations to abstain from using force or the threat
of force, which would not correspond to the objectives and
principles of the United Nations. In keeping with the principles of
justice and the right to self-determination of peoples that still
remain under colonial rule or foreign occupation, it is always
emphasized to seek the peaceful settlement of disputes. Global
leaders proclaim the principles of non-interference in the internal
affairs of states; respect for human rights and basic freedoms;
equality for all without distinction as to race, sex, language or
religion; and international cooperation in addressing economic,
social, cultural or humanitarian problems.

 

These
issues are directly linked with ensuring human rights in the course
of operations conducted by security services, police and armed
forces.

Inflexible
and stringent actions that undermine state sovereignty (such as
those taken by the armed forces and security services of the United
States and some European countries in Iraq) provoke fierce
resistance from citizens of the victim countries, and myriad
destructive elements take advantage of such developments. As a
result, the level of violence in these countries surpasses all
acceptable limits and introduces new waves of terrorism.

 

Not a
single decision involving military intervention is made without the
knowledge of security services and their concrete assistance.
Accordingly, special national forms of control over intelligence
agencies are necessary. At the same time, international legal
restrictions on the influence of these bodies are also
crucial.

 

National
sovereignty is often violated when security services of one country
perform a mission on the territory of another country. There are
also disturbing cases when a security service of one country
violates the human rights of a citizen of another country, while
using the territory and special institutions of a third country for
protection. I refer here to the scandal over the existence of CIA
secret prisons in some European states. Such a practice cannot be
recognized as acceptable under any circumstances.

 

2.
Torture.
Despite international legal bans, this medieval
practice continues today. European organizations often accuse
Russia of practicing torture in the course of its counterterrorism
operation in the Chechen Republic. Unfortunately, this criticism is
sometimes well grounded, and Russia’s prosecutor’s offices are
presently investigating several criminal cases involving torture
there.

 

However,
Russia is not the only country notorious for torture. Suffice it to
recall the unsavory actions by troops and security service officers
of the U.S. and some European countries in the course of the
counterterrorism operations in Iraq and Afghanistan.

 

In
November 2006, a huge scandal erupted in Great Britain after an
investigation revealed that 164 officers had for 10 years practiced
refined tortures in British prisons.

 

Amidst the
general practice of tortures, which is kept under a shroud of
secrecy, then UN Secretary General Kofi Annan pointed to an even
more alarming tendency: some countries, pleading national security
considerations, have proposed lifting bans in their national
legislations over the use of torture. Annan rightfully argued that
fear of terrorists cannot justify the use of their own
methods.

 

The former
UN chief reminded that an absolute ban on the use of torture is
fixed in international law and is obligatory for all states on all
territories under their jurisdiction or control. Those who sanction
and employ torture must not remain unpunished. No state should
close its eyes to torture being practiced on the territory of a
third party. Finally, no person should ever be extradited to a
state where there is a threat of torture.

 

3.
Human rights and the employment of weapons and special methods in
anti-terrorism and anti-crime operations.
Serious concern
must be given to the employment of weapons against suspected
terrorists, as such operations result in numerous
casualties.

 

Everyone
remembers the tragic hostage seizure at a Moscow theater in October
2002, when more than 100 people died as a result of a gas used by
security forces to subdue the hostage-takers. Or one can mention
the security operation to free children taken hostage at a school
in Russia’s Beslan. On each of these tragic occasions, there arise
questions over the adequacy of the methods of the security services
and police to free hostages or seize terrorists.

 

Another
issue involves the physical liquidation of terrorists, and on this
point there arises a paradoxical situation: all European countries
have abolished the death penalty, while Russia has introduced a
moratorium on it. In other words, a terrorist cannot be executed on
the basis of a court sentence. On the other hand, any terrorist or
suspect can be easily shot dead during a counterterrorism
operation, even if he shows no resistance and simply tries to run
away, as happened last year in London. [On July 22, 2005, Brazilian
national Jean Charles Menezes was chased onto the London subway by
plainclothes British police officers and shot dead at point blank
range – Ed.] Such situations are rather common in everyday police
practices, as well.

 

4.
Human rights and the employment of biometric and visual means of
control by security services and police.
Any person
wishing to rent a car at London’s Stansted airport must have his or
her fingerprints scanned. For now, this is only an experiment that
is being conducted by the police in the county of Essex, where the
airport is located, together with rental firms. Yet this experiment
is obligatory for all. The fingerprints of clients are duly passed
on to the police if a rented car is stolen or involved in some
other crime.

 

In 2006,
Britain introduced biometric passports for its citizens, in which
information about the passport holder is stored on a tiny computer
chip. More than a million British citizens have already voluntarily
acquired such documents.

 

However,
the use of biometrics in official documents raises many questions:
Where and how will the information on passport holders be stored?
Who will have access to this information? Should any centralized
body be established for overseeing this new program? And why should
information on innocent people be collected at all?

 

There were
no public discussions prior to the introduction of biometric
passports, and now there are more questions than answers in this
sphere. Technologies are developing at a rapid rate, but is anybody
interested in hearing the public’s opinion on the
matter?

 

It would
be expedient if the police and security services have precise
instructions concerning reasonable limits and reasons before their
entire populations are subjected to biometric
technologies.

 

5.
Expansion of control over citizens by security services and police,
and limitation of human rights.
Following the tragic
events of September 11, 2001, some European countries have
broadened the practice of placing their citizens under the control
of security services and police. Oftentimes this practice entails
limiting individual rights as citizens can be checked and searched
without any grounds, and information about them can be transferred
to state bodies and law-enforcement organizations of other
countries (for example, via Interpol and Europol). This practice
can have grievous consequences for citizens of such countries: they
can be denied employment or extradited from the country without
citing any reasons. It must not be permitted that operational
information, which once served as grounds for placing a person on
record, should later ruin this person’s life.

 

This kind
of work with the population must be streamlined, and criteria for
placing citizens on record with security services and police must
be made legal and transparent. Also, rigid external control must be
established over such procedures.

 

6.
The most acute aspect of control over the operation of security
services and police is the protection of human rights in the course
of operational work, especially in what regards
intelligence.
There are numerous human rights violations
in this field, particularly when citizens are provoked to commit
crimes. Unfortunately, this is often done not to disclose a grave
crime or neutralize terrorists, but simply to improve the crime
detection figures of security services and police.

 

Therefore,
the European countries should introduce strict limitations on such
actions in their legislations.

 

7.
Freedom from discrimination and operation of security services
(police).
Measures to combat terrorism must not be at
variance with the ban on racial, ethnic, gender, religious or
political discrimination.

 

While
taking measures against members of specific terrorist and criminal
groups, security services and police must see to it that these
measures are not discriminatory and that they do not result in
racial, tribal or ethnic persecutions.

 

Concern
must be given over widespread cases of oppression and racial
discrimination against people of certain ethnic origin. Such things
happen both in Russia and other European countries.

 

States
must guarantee the full exercise of their citizens’ religious and
cultural rights, as well as the protection of the right of detained
persons not to be subject to arbitrary and continuous detention, as
well as such basic freedoms as equality before the law,
inviolability of the individual, and the right to a fair
trial.

 

8.
Operation of security services and police in a state of emergency
and in other legal regimes limiting human rights.

According to Clause 1 of Article 4 of the International Covenant on
Civil and Political Rights, “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, color, sex,
language, religion or social origin.” Clause 2 of the same article
specifies fundamental rights, without exception, even if there is a
state of emergency in a given state.

 

Unfortunately, security services and police violate human
rights en masse even in the legal regimes of counterterrorism
operations.

 

States
should take inventory of the laws that regulate the limitations on
human rights in the course of implementation of security measures.
Most importantly, they should ensure various controls over security
services and police by parliamentary and governmental
bodies.

 

Permitting any
compromise on the observance of human rights by security services
and police amidst new challenges and threats, we thus give
criminals and terrorists a chance to achieve a moral and
ideological victory that they themselves are unable to implement
without our assistance.