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2015 | EOS Committee Report Making International Intelligence Cooperation Accountable

Today, intelligence services have a central role in protecting national security, including safeguarding fundamental freedoms and human rights. Threats to these freedoms and rights by terrorist networks such as Al Qaeda and the Islamic State (IS), heighten the need for international intelligence cooperation. At the same time, sharing information may lead to violations of international human rights-law, which in turn underlines the need for oversight and accountability.

This report of the of the Norwegian Parliamentary Oversight Committee on Intelligence and Security Services (EOS Committee) points out that intelligence services cannot control – or have only limited influence over – the use that is made of the information they provide by their foreign partners. Furthermore, an intelligence-service may contribute to activities of a foreign partner that may be deemed unlawful under its own domestic law and/or international law. The report addresses the risk that sharing information with foreign services could potentially lead to the infringement of human rights, particularly the right to life. For example, information-sharing could lead to extrajudicial killings of terrorist suspects (or non-suspects), outside of armed conflicts. Although it may be difficult for a service sharing information (and particularly metadata) to be sure that such information will not assist in international law violations, it does not absolve them of responsibility or liability for the possible consequences of passing on the information.

In this context, the report touches upon the role of the judiciary -vital to upholding the rule of law and the protection of human rights. In civil cases against intelligence officials where the shared intelligence is claimed to have led to targeted killing, intelligence material is often protected from disclosure since that would be damaging to national security or foreign relations. The report indicates that judges tend to be deferential to the executive in questions of national security where intelligence and foreign affairs mix. The authors advance that adopting this position will not always suffice to shield intelligence cooperation from scrutiny: the UK’s Court of Appeal ruled, for example, that potential embarrassment to the UK government in its international relations is not a sufficient reason to decline jurisdiction, and that in any event, the Foreign Act of State doctrine does not apply to the alleged acts of a foreign state outside its territory. Nevertheless, they conclude that this deferential attitude may not only prevent individuals from obtaining redress, but also result in injustice and a lack of accountability. Finally, the report advocates for the establishment of an external oversight body that is empowered, among other things, to scrutinise international exchanges of personal data, and study their possible human rights implications.