Informe relator especial sobre inteligencia

ADVANCE EDITED VERSION

Distr. GENERAL A/HRC/10/3 4 February 2009 Original: ENGLISH

HUMAN RIGHTS COUNCIL Tenth session Agenda item 3

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms whilecountering terrorism, Martin Scheinin*

* Late submission.

A/HRC/10/3 page 2 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 fightagainst 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 “humanintelligence” - 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 insection 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 intelligenceagencies 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 humanrights 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.

A/HRC/10/3 page 3 CONTENTS ParagraphsIntroduction ................................................................................................... I. ACTIVITIES OF THE SPECIAL RAPPORTEUR .......................... 1-2 3 - 24 25 - 63 26 - 46 47 - 57 58 - 63 64 - 78 64 65 - 78 Page 4 4 7 7 16 21 23 23 24

II. THE ROLE OF INTELLIGENCE AGENCIES AND THEIR OVERSIGHT IN THE FIGHT AGAINST TERRORISM ............... A. B. C. Broadeningpowers granted to intelligence agencies and the need for ex ante accountability mechanisms ....................... Intelligence cooperation ............................................................ Ex post facto accountability and the right to an effective remedy ........................................................................

III. CONCLUSIONS AND RECOMMENDATIONS............................ A. B. Conclusions ............................................................................... Recommendations .....................................................................

A/HRC/10/3 page 4 Introduction 1. This report is submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering...