Surveillance by intelligence services – Volume II: field perspectives and legal update
relevant ministers is mandatory before collaborating
with ‘high-risk services’. 415 Cooperation criteria are
not spelled out in the 2002 Act. Over the years, the
Dutch oversight body carried out several investigations
into this matter and issued recommendations to the
relevant minister. These were partially incorporated
into Articles 88 to 90 of the 2017 Law replacing the
2002 Act. 416 The law provides for a compulsory risk
assessment before entering into a cooperation
agreement. The assessment will serve not only to
identify potential risks inherent in the cooperation, but
also what type(s) of cooperation may be established by
the intelligence services. Furthermore, the law requires
ministerial approval, which can be delegated to the head
of the service.417 The CTIVD expressed some criticisms
when the law was being debated in parliament and
maintained that additional privacy- and data protectionrelated safeguards should be included.
In Sweden, the Ministry of Justice must only be briefed
before the cooperation takes place. 418 Four Member
States – Denmark, Germany, Hungary and Lithuania –
require an additional form of approval before the actual
exchange of data may take place. Such approval can
be given either by the executive, the judiciary or
by the head of the services. In Germany, strategic
surveillance data exchange requires the agreement of
the Federal Chancellery.419 Foreign-foreign surveillance
data can only be transferred to foreign intelligence
services of EU, European Economic Area (EEA) and
NATO Member States if such a transfer was approved by
the Federal Chancellery. For any other country, additional
approval by the Head of the Chancellery is needed.420
UN good practice on intelligence sharing
Practice 33: Before entering into an intelligence-sharing
agreement or sharing intelligence on an ad hoc basis, intelligence services undertake an assessment of the counterpart’s record on human rights and data protection, as
well as the legal safeguards and institutional controls
that govern the counterpart. Before handing over information, intelligence services make sure that any shared
intelligence is relevant to the recipient’s mandate, will be
used in accordance with the conditions attached and will
not be used for purposes that violate human rights.
UN, Human Rights Council, Report of the Special Rapporteur Martin Scheinin
415 The Netherlands, CTIVD (2016b), p. 5.
416 The Netherlands, Intelligence and Security Services Act 2017
(Wet op de inlichtingen- en veiligheidsdiensten 2017), Arts.
88-90.
417 The Netherlands, CTIVD (2016b), p. 8 and following.
418 Sweden, Regulation on Defence intelligence
service (Förordning [2000:131] om
försvarsunderrättelseverksamhet), 30 March 2000,
pp. 3 and 4.
419 Germany, G10 Act, S. 7a.
420 Germany, BNDG, S. 13 (5).
102
Fundamental rights risk assessments in
international cooperation
“Intelligence service managers should put in place risk
assessment processes for international intelligence cooperation that set out the factors which must be considered before undertaking particular types of cooperation.
[…] The executive should ensure that there is cross-government sharing of appropriate information on countries’
human rights records as this assists services in undertaking risk assessments.”
Born, H., Leigh, I. and Wills, A. (2015), pp. 109 and 112
In 2016, while encouraging nations to establish
intelligence-sharing platforms to better combat
terrorism, the UN General Assembly stressed that any
counter-terrorism effort should not neglect the rule
of law, human rights and fundamental freedoms. 421
As a general rule, democratic states are keen to
share information with partner states where similar
democratic structures are guaranteed. To ensure
this, some Member States – such as Croatia, Germany
and the Netherlands – conduct risk assessments, i.e.,
a global evaluation of several factors, such as the
legal principles regulating the potential partners’
activities, the international political context in which
foreign states operate, existing bilateral or international
agreements, and/or an assessment of respect
for fundamental rights.422
Risk assessments are conducted based on guidelines
that are not accessible to the public. However, the
2016 CTIVD review report on the implementation of
cooperation criteria spells out the various cooperation
criteria taken into account before entering into
a cooperation agreement:
•• respect for human rights and democratic anchorage,
•• professionalism and reliability of the foreign
intelligence service,
•• advisability in the context of international
commitments,
•• whether cooperation would enhance the
performance of tasks and
•• reciprocity rule.423
The assessment of potential partners’ ‘human rights
footprint’ is crucial. Indeed, as highlighted by Born,
Leigh and Wills, “concerns about the human rights
“foot print” of incoming information go beyond the
implications for reliability; they also include possible
legal implications of using such information”.424
421
422
423
424
UN, GA (2016b), pp. 6 and 8.
Born, H., Leigh, I. and Wills, A. (2015), pp. 108-110.
The Netherlands, CTIVD (2016b), p. 5 and following.
Born, H., Leigh, I. and Wills, A. (2015), pp. 112-113.