Text: UN Report on Counter-Terrorism, Human Rights, and Torture

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The full report is available via The Guardian website.

Summary

Following the introduction, chapter I of the present report highlights the key activities of the Special Rapporteur, from 17 December 2007 to 31 December 2008. The main report, contained in chapter II, highlights several concerns of the Special Rapporteur regarding the role of intelligence agencies in the fight against terrorism. Section A stresses the need for a specific and comprehensive legislative framework to regulate the broader powers that have been given to intelligence agencies in the aftermath of the terrorist attacks of 11 September 2001. The collection and sharing of “signal” intelligence has led to several violations of the right to privacy and the principle of non-discrimination, while “human intelligence” - the gathering of intelligence by means of interpersonal contact - has even led to violations of jus cogens norms such as the prohibition against torture and other inhuman treatment.

Evidence suggests that the lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies. This issue is addressed throughout the report, but in section B of chapter II the Special Rapporteur examines in particular the challenges that the increased cooperation between intelligence agencies pose in this context. He clarifies the human rights obligations of States when their intelligence agencies perform joint operations, participate in interrogations and send or receive intelligence for operational use. When unlawful conduct by intelligence agencies occurs, it may have been condoned or even secretly directed by government officials. In this context the Special Rapporteur looks into best practices of different oversight bodies. In section C he emphasizes that domestic State secrecy or public interest immunity clauses cannot discard their positive obligations under human rights law to conduct independent investigations into severe human rights violations and provide the victims of these violations with an effective remedy.

The concluding section makes recommendations to different key actors (intelligence agencies, domestic legislative assemblies, domestic executive powers and the United Nations) in order to improve the accountability of intelligence agencies in the fight against terrorism.

III. CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions

64. The increased powers of intelligence services to conduct measures that seriously interfere with individuals’ rights, as well as the increasing relevance of intelligence for legal and administrative actions, make it essential that adequate accountability mechanisms are put in place to prevent human rights abuses. Under international human rights law, States are under a positive obligation to conduct independent investigations into alleged violations of the right to
life, freedom from torture or other inhuman treatment, enforced disappearances or arbitrary detention, to bring to justice those responsible for such acts, and to provide reparations where they have participated in such violations. States retain this positive obligation to protect human rights where they grant privileges within their national territory to another State, including to intelligence services.

B. Recommendations

For legislative assemblies

65. The Special Rapporteur recommends that any interference with the right to privacy, family, home or correspondence by an intelligence agency should be authorized by provisions of law that are particularly precise, proportionate to the security threat, and offer effective guarantees against abuse. States should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such

methods enable a terrorist offence to be detected, prevented or prosecuted with adequate effectiveness. Decision-making authority should be layered so that the greater the invasion of privacy, the higher the level of necessary authorization. Furthermore, in order to safeguard against the arbitrary use of special investigative techniques and violations of human rights, the use of special investigative techniques by the intelligence agencies must be subject to appropriate supervision and review.

66. There should be a domestic legal basis for the storage and use of data by intelligence and security services, which is foreseeable as to its effects and subject to scrutiny in the public interest. The law should also provide for effective controls on how long information may be retained, the use to which it may be put, and who may have access to it, and ensure compliance with international data protection principles in the handling of information. There should be audit processes, which include external independent personnel, to ensure that such rules are adhered to.

67. The Special Rapporteur also recommends the adoption of legislation that clarifies the rights, responsibilities, and liability of private companies in submitting data to government agencies.

68. Parliamentary oversight committees, ad hoc parliamentary inquiry committees, royal commissions, etc. should have far-reaching investigative powers, access to the archives and registers, premises, and installations of the executive and the agency, in order to fulfil their domestic oversight function. These bodies should also be able to proactively investigate the relationship of a domestic agency with a particular State or service, or all exchanges of
information with foreign cooperating services pertaining to a particular case. After their inquiry these bodies should produce simultaneously a confidential report for the executive and a separate report for public disclosure.

69. The Special Rapporteur supports the recommendation of the Eminent Jurist Panel on Counter-Terrorism, Terrorism and Human Rights that intelligence agencies should not perform the functions of law enforcement personnel.80 If, despite the potential for abuse, 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.

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.

75. The Special Rapporteur urges Member States to reduce to a minimum the restrictions of transparency founded on concepts of State secrecy and national security. Information and evidence concerning the civil, criminal or political liability of State representatives, including intelligence agents, for violations of human rights must not be

considered worthy of protection as State secrets. If it is not possible to separate such cases from true, legitimate State secrets, appropriate procedures must be put into place ensuring that the culprits are held accountable for their actions while preserving State secrecy.

76. The Special Rapporteur recommends that intelligence agencies develop internal and international training programmes in how to comply with human rights in their operations. Such training should be based on the idea that compliance with human rights is a part of professional qualifications, and a source for professional pride, for any
intelligence officer.

77. A codified regulation should be in place which guarantees appropriate support and security for whistle-blowers within the intelligence agencies.

For the Human Rights Council

78. The Special Rapporteur recommends the elaboration and adoption of an instrument such as guidelines for human rights compliance and best practice by intelligence agencies.

That Pesky United Nations: Questions about Iraq

In another story which slipped by almost all news outlets, the President of the UN General Assembly, Miguel d'Escoto Brockmann, has called for an independent enquiry into human rights violations in the 2003 invasion of Iraq and its aftermath. He told the UN Human Rights Council a week ago:

Independent experts estimate that over one million Iraqis have lost their lives as a direct result of the illegal invasion of their country. The various UN human rights monitors have prepared report after report documenting the unending litany of violations from crimes of war, rights of children and women, social rights, collective punishment and treatment of prisoners of war and illegal detention of civilians. This must be addressed to bring an end to the scandalous present impunity.

The Latest on Israel-Palestine (4 March): US Keeps Hamas on Outside

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Evening Update (7 p.m.): US Secretary of State Hillary Clinton (pictured), at a news conference after her meeting with Palestinian Authority leader Mahmoud Abbas, has described Israeli plans to demolish dozens of Palestinian homes in East Jerusalem as "unhelpful".

Clinton sent out another unsubtle signal regarding the West Bank and Gaza: "The US supports the Palestinian Authority as the only legitimate government of the Palestinian people."

Afternoon Update (11:30 a.m.): US Secretary of State Hillary Clinton has met the Palestinian Authority's Salam Fayyad, who pressed for a halt to extension of Israeli settlements and an opening of Gazan border crossings.

Morning Update (6:20 a.m. GMT): Speaking after her meetings with high-ranking Israeli officials on Tuesday, US Secretary of State Hillary Clinton  restated the long-standing preconditions on any engagement with Hamas in the Israel-Palestine process: recognition of Israel, renunciation of violence, and adherence to agreements from 2005 on issues such as border crossings. Clinton said, referring to the points set out by the Quartet of the US-European Union-United Nations-Russia, "In the absence of Hamas agreeing to the principles that have been adopted by such a broad range of international actors, I don't see that we or they -- or anyone -- could deal with Hamas."

Clinton went further, however, in his denunciation of Hamas, indicating a link of US policy on Israel-Palestine to a shift in Washington's approach to Tehran. Asked if Hamas had to make a public statement, rather than a private commitment, she answered, "Well, the PLO did that, and I think no less can be expected of Hamas which is, obviously, not only a terrorist group but is increasingly a client of Iran."

Mr Obama's Doctrine: Josh Mull on US Grand Strategy in Pakistan and Beyond

Related Post: Mr Obama's War - Pakistan Insurgency "Unites" (You Heard It Here First)

"The 'Obama Doctrine' looks something like this: the United States will continue to use its military power as its premier tool in international affairs and may even act preemptively. However, it will not  do so on issues it deems outside of reasonable American national security concerns, and it will act only with support and cooperation from the international community. To put it frankly, this is something like a cross between 'walk softly and carry a big stick' and the Buddy System. While still violent, imperial, and aggressive, it is a marked departure from the so-called Bush Doctrine and even the Global War on Terror."

Yesterday Scott Lucas, in “Mr. Obama's War: The Fantasy of the Pakistan Sanctuaries”, analysed US Secretary of Defense Robert Gates' appearance on Meet the Press, pointing out the cognitive dissonance in Gates' assertion that the US understands safe havens in Pakistan because it has previously used those same Pakistani safe havens so effectively. Lucas also raises some very interesting questions, particularly over Gates' apparent non-answer to the question of the consequences for Pakistan of the US campaign. This is my attempt to answer those questions, as well as a proposal to parse out a broader US “grand strategy” from Gates' appearance.

Host David Gregory asked Gates on Sunday, “The trouble and consequences of jihadists making significant gains in either Afghanistan or Pakistan is perhaps more acute in Pakistan given its nuclear potential. True?” In reply, Gates' offered this:

Well, as long as we’re in Afghanistan and as long as the Afghan government has the support of dozens and dozens of countries who are providing military support, civilian support in addition to us, we are providing a level of stability in Afghanistan that at least prevents it from being a safe haven from which plots against the United States and the Europeans and others can be, can be put together.

The key is this: Gates isn't answering the question about Pakistan to David Gregory. He's answering the question about Pakistan directly to the Pakistanis.

I decoded Gates' reply as: "Well, as long as I can go on a Sunday morning Prime Time talk show and say 9/11, Taliban, and Osama bin Laden and as long as my Commander-in-Chief can draw crowds of 200,000 screaming Europeans, Pakistan can suck it up and deal with whatever we want to do, including destabilizing or overthrowing their corrupt government and/or stealing or destroying their illegal nuclear weapons, which by the way, I already have the authority to do from a little thing called the Lugar-Obama bill to secure weapons of mass destruction."

In short, it's not the responsibility of the Secretary of Defense to keep Pakistan stable, it is his responsibility to attack extremist safe havens in Pakistan in order to prevent a catastrophic terrorist attack against the US, Canada, or the European Union. President Obama, and by extension the plans of his Secretary of Defense, enjoys bipartisan political support as well as stable international credibility. Accordingly the US will act, as Lucas said in his article, as if “there are no consequences whatsoever for the internal Pakistani situation" or, more appropriately, without regard to these consequences.

But there is more we can glean from Secretary Gates' interview than it appears. Beyond the purposes Lucas pointed out --- pitching Obama's Iraq withdrawal plan and articulating US Afghanistan policy --- it's possible Gates was offering us, and the international audience, insight into the broader strategic calculations of the United States, particularly the role of the Department of Defense and US military power abroad.

President Obama has shown himself to be somewhat of a Centrist, if only in regard to his desire to hear from all sides of an argument or debate. One thing all foreign policy and national security analysts, from the Conservative "Fall of Rome" crowd to the Realist "Second World" types all the way to the Neoconservative "Team America" folks, can agree on is this: the United States of America is now and will continue to be Earth's preeminent military force, at least for the foreseeable future.

There is a saying amongst foreign policy elites:  "Who has the world's largest air force after the US Air Force? The US Army."

With Pakistan, Gates is essentially saying that, as long as the US, Canada, and Europe are threatened by extremist attacks from Afghanistan and Pakistan, the US will continue to act aggressively with its military force. It will do so in any manner and on any territory of its choosing, provided it has the support and cooperation of Europe and NATO (whose members will suffer from terrorism long before the US).

What's absent is any mention of India, which implies the support of India in Afghanistan and protection from Pakistan-launched, "Mumbai-style" attacks are not part of the US calculation. ("Your problem, not ours.")

It may seem like Gates casually forgot to mention India and Mumbai in his response on Pakistan. After all, "AfPak" is an extremely complicated subject, and it's easy to leave things out or get things mixed up. At least, that will be the talking point if this becomes an issue. However, we know two things: first, India and Pakistan are inextricably linked together in any strategic calculus, and second, that this wasn't just a casual visit to Meet the Press by Bob Gates. It was the public coming-out ceremony for George W. Bush's former and now President Obama's current Secretary of Defense, civilian leader of the United States Military.

The importance of this public appearance can't be understated. It was not necessarily designed for the domestic audience of NBC viewers, but rather was aimed at a more global audience and, directly, to the Pakistanis. This is what makes the apparently deliberate absence of India from the “AfPak” equation so significant. The absence, the answer, and the entire interview together could lead us to presume that Gates is articulating the prototype for what will later be called “the Obama Doctrine”.

The “Obama Doctrine” looks something like this: the United States will continue to use its military power as its premier tool in international affairs and may even act preemptively. However, it will not  do so on issues it deems outside of reasonable American national security concerns, and it will act only with support and cooperation from the international community. To put it frankly, this is something like a cross between “walk softly and carry a big stick” and the Buddy System. While still violent, imperial, and aggressive, it is a marked departure from the so-called Bush Doctrine and even the Global War on Terror.

The India-Pakistan and Kashmir and Bangladesh) conflict is the perfect illustration. Under the old rules of the Bush Doctrine, the response to something like the Mumbai attacks might be airstrikes, special forces, or some other combination of clandestine military force. Under the “Obama Doctrine”, the Defense Department under Gates, and thus the US military, are not responsible for the India-Pakistan conflict. Rather this would fall under the portfolios of US Attorney General Eric Holder and his FBI as well US Secretary of State Hillary Clinton and her cadres of ambassadors and envoys,with support and cooperation from that throbbing heart of diplomacy in Brussels (the European Union), law enforcement agents with Interpol and NATO, and the mediation and oversight of the United Nations.

Obviously it's an extreme departure from George W Bush's radical Napoleonic-cum-Bolshevik strategy of the Global War on Terror, but that doesn't necessarily mean the “Obama Doctrine” will turn out any more successfully than the Bush Doctrine. In fact, the strategy is brimming with vulnerabilities.

The US may be the most powerful military, it is not the only military on the planet. In the fall of 2007 as civil unrest was broiling in Pakistan under General Pervez Musharraf, then-Senator now Vice President Joe Biden campaigned in the Democratic Party primaries on a promise to pull strategic military aid from Pakistan, that is weapons used against India, to pressure Pakistan to focus on the insurgency rather than more ethereal, strategic conflicts. In response, however, the Chinese offered to sell Pakistan a new fleet of MiG fighter jets, similar to the American planes Biden was threatening to withdraw. Now, as then, there is a constant danger that any diplomatic “sticks” threatened by the US can simply be neutralized by other international actors willing to take its place.

Furthermore there is the problem caused by the global financial meltdown and the massive economic depressions it is causing. While Secretary Gates may have it in his authority to bomb Pakistani safe havens as well as police the Straits of Malacca, the United States may not ultimately be able to afford the high price of imperialism. And if the US is forced to cut back on its imperalist designs, it will create some extremely uncomfortable strategic questions for policy makers. For example, what is the higher priority between preventing a bus bombing in London or preventing a missile exchange between Korea and Japan when you can't afford both?

So we don't end on such a morbid tone, let me point out that this prototypical “Obama Doctrine” has some very powerful advantages over the Bush Doctrine, the Global War on Terror, and the so-called Long War/Great Game theories. The most important advantage is that it is absolutely conscious of and constructed on the idea of a “Multi-Polar” world. Even though the US seeks to dominate international affairs, it acknowledges and plans for the participation of other actors, states, or non-states. By allowing for participation, it allows for competition, and as President Obama displays with his choice of Hillary Clinton for Secretary of State, competition has both winners and losers who can still join together for a common purpose. There is no absolute victory or defeat of good and evil, but rather a competition among partners.

UPDATED Afghanistan: Karzai's Pre-Emptive Political Strike

Update (3 March): Senior UN official Alain says it will be nearly impossible to hold credible elections in Afghanistan in April for logistical and technical reasons as well as the prevailing security situation.

In many "Western" systems, the "snap" election is a time-honoured prerogative of the President/Prime Minister. If a leader is in a strong but possibly short-lived political position, or conversely if he/she is in trouble but faces worse times ahead, then Parliament is dissolved and everyone heads to the polls. However, when an Afghan President, particularly one who has lost the support of the foreign governments who brought him to power, calls such an election, it's a much different matter.

On Sunday, Hamid Karzai wrong-footed diplomats, covert operators, and observers, as well as his domestic opponents by declaring he would go to the polls, four months earlier than expected. Legally, Karzai was not only within the letter of the Constitution but upholding it, as his term in office expires on 21 May. US and NATO representatives complained immediately, however, that they could not ensure security.

This, of course, is an excuse to cover political objections to Karzai's move --- the military campaign against the Taliban and other insurgents will be far from won by August. Ashraf Ghani Ahmadzai, an opponent of Karzai's, was more honest in his criticsm: he declared that he would not stand in a "Zimbabwe-type" election designed to keep the current Government in power.

Karzai has calculated that, if only a portion of the stories of a political challenge backed and funded by the US and other foreign countries are true, he is better off not allowing the opposition five months to organise. Conversely, Washington now faces the prospect of several more years of an Afghan leader who has been far from unquestioning in his co-operation with American power.

So now we have the delicious --- if you go in for political intrigue --- prospect of the US working with Afghan representatives in their review of Afghanistan/Pakistan policy whilst having that policy reframed by Karzai's surprise initiative.

More than seven years ago, when Karzai emerged as the US choice to lead "liberated" Afghanistan, America praised his political acumen. One wonders if the word "irony" will creep into their reports today.