A/HRC/10/3
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intelligence services are nonetheless accorded powers of arrest, detention and
interrogation, the Special Rapporteur urges that they be under the strict and effective
control of ordinary civilian authorities and operate with full respect for international
human rights law.
70. Intelligence cooperation must be clearly governed by the law (including human rights
safeguards) and by transparent regulations, authorized according to strict routines (with
proper “paper trails”) and controlled or supervised by parliamentary or expert bodies.
For the executive power
71. The executive should have effective powers of control, provided for in law, over the
intelligence agencies and have adequate information about their actions in order to be able
to effectively exercise control over them. The minister responsible for the intelligence and
security services should therefore have the right to approve matters of political sensitivity
(such as cooperation with agencies from other countries) or undertakings that affect
fundamental rights (such as the approval of special investigative powers, whether or not
additional external approval is required from a judge).
72. The Special Rapporteur urges all relevant authorities of countries that have allegedly
participated in extraordinary renditions, torture, disappearances, secret detentions or any
other serious human rights violation to investigate fully any wrongful acts of intelligence
agencies committed on their territory. States must ensure that the victims of such unlawful
acts are rehabilitated and compensated. States must also stop transferring anyone to the
custody of the agents of another State, or facilitating such transfers, unless the transfer is
carried out under judicial supervision and in line with international standards.
73. The Special Rapporteur recommends that States insert a clause in their
intelligence-sharing agreements which makes the application of an agreement by a party
subject to scrutiny by its review bodies and which declares that the review bodies of each
party are competent to cooperate with one another in assessing the performance of either
or both parties.81
For intelligence agencies
74. The Special Rapporteur recommends that classified information may be shared with
other intelligence agencies only when it contains a written caveat, which limits the further
distribution of such information among other governmental agencies in the receiving State,
such as law enforcement and immigration agencies, which have the power to arrest and
detain a person. In this regard, the Special Rapporteur advises that sanctions against a
person should not be based on foreign intelligence, unless the affected party can effectively
challenge the credibility, accuracy and reliability of the information and there are credible
grounds to believe that the information is accurate and reliable.
81
See C. Forcese, The Collateral Casualties of Collaboration - the Consequence for Civil and
Human Rights of Transnational Intelligence Sharing, conference paper for the DCAF workshop
on accountability of international intelligence cooperation, Oslo, 17 October 2008.
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