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2016 | Review Committee on the Intelligence and Security Services Review Report on Contributions of the MIVD to Targeting, CTIVD no. 50

Following the debate that has taken place in the Dutch parliament in recent years about the possible use of Dutch intelligence for unlawful use of violence by other states, the Dutch Review Committee for the Intelligence and Security Services (in Dutch ‘Commissie van Toezicht op Inlichtingen- en Veiligheidsdiensten’ (CTIVD)) investigated the legality of the contributions to targeting processes by the Dutch Defence Intelligence and Security Service (DISS) from January 1, 2013 to December 31, 2015, and data provision by DISS in the context of ongoing and recently completed military missions. The findings are presented in this report, which is also available in Dutch.

The committee uses as a definition for targeting: a process used by the military that (through selection of targets) can inter alia lead to the use of violence to achieve a particular tactical or strategic objective in the context of a military operation. A targeting process can–but does not have to- involve the use of (lethal) force.

The Dutch Intelligence and Security Services Act (in Dutch ‘Wet op de inlichtingen- en veiligheidsdiensten’ 2002) enables the DISS to provide intelligence to foreign intelligence and security services, the Dutch armed forces or a military coalition in the context of cooperation. In this context, the DISS can contribute to targeting processes. However prior to the decision to cooperate, DISS first must assess whether a specific intelligence and security service qualifies for cooperation and, if so, which conditions govern the intended cooperation. One of the assessment criteria used is whether the home state of a specific intelligence and security service respects human rights. Furthermore, DISS must assess if the (home state of the) intelligence and security service is using violence in the context of an armed conflict and if so, whether providing information could lead to a breach of international law.

The Dutch Intelligence and Security Services Act sets out standards for the provision of intelligence. It determines that intelligence sharing must be done with due caution and that information can only be provided for a specific purpose. However, DISS is not always informed of the purpose and consequently, DISS may contribute unintentionally to targeting processes. This contribution will be unlawful in the case that DISS takes an unacceptable risk that providing intelligence contributes to a targeting process involving the unlawful use of violence.  The (un)lawfulness of the use of violence in the context of a targeting process, however, is generally difficult to determine since it requires circumstantial and factual information. The party actually conducting the targeting often has exclusive access to this information. Moreover, there is still debate as to the interpretation of the international legal norms applicable to the use of violence in targeting processes.

The committee concludes that DISS has provided intelligence to security services of states that have used violence in the context of conflicts, and that this information is related to the violence used. The intelligence provided includes information about members of armed groups against whom the violence was used, as well as communication data stemming from a conflict area. However, the committee finds that DISS did not intent to contribute to a targeting process and concludes that there is no concrete evidence that DISS took an unacceptable risk to contribute to targeting processes involving the unlawful use of violence. Nevertheless, the committee cannot exclude that the intelligence provided to foreign intelligence and security services, has been used by or through these services, for the purpose of the unlawful use of violence in targeting processes. The committee inter alia recommends that DISS more explicitly takes into account the possibility that providing information can unintentionally contribute to targeting processes involving the unlawful use of violence.

Furthermore, the Committee recommends requiring the Minister's of Defence explicit authorisation for the provision of unevaluated data (that has not yet been assessed for relevance to the performance of tasks, e.g. large quantities of metadata) carrying a risk to contributing to the use of force.