Oversight of international intelligence cooperation
amendment of the legislation to enhance parliamentary
control of international exchanges between services.461
parliamentarian committees) would foster exchange
of best practices among Member States.
In some Member States, such as Belgium, the
Netherlands and Sweden, the oversight body is not
seen as a third party. This specific understanding of
the nature of oversight bodies results from a parallel
mechanism: oversight bodies acknowledge that the
current form of the terrorist threat requires intelligence
services to regularly exchange information, while
overseers are granted full access to all information
to effectively perform their tasks. In Belgium, for
instance, following a request by the Defence Ministry,
the Standing Committee I delivered a positive opinion
on the international exchange of information relating
to foreign terrorist fighters, but also clarified that the
control over multilateral activities remains real.462
11.4. Powers and competences
of oversight bodies over
international cooperation
Promising practice
Enhancing international cooperation
among oversight bodies
Equal access to information obtained via
international cooperation could allow enhanced
international cooperation among oversight bodies.
In 2015, oversight bodies from Belgium, Denmark,
the Netherlands, Norway and Switzerland launched
joint project, whereby each body would conduct
national investigation in relation to foreign terrorist
fighters. A final report is due in 2017; intermediary
assessments show the added-value of such
coordinated efforts.
Belgium, Standing Committee I (2016), p. 80 and The Netherlands, CTIVD (2017), p. 33.
The third party rule has functional purposes: it ensures
protection of sources, reinforces trust among intelligence
partners and prevents intelligence data from being
shared multiply, becoming thus their own reliability
proof. The question of whether oversight bodies
should be considered as third parties under the third
party rule has crucial implications. As demonstrated
above, oversight bodies play a very important part in
achieving effective intelligence. Effective intelligence
is, for foreign partners, a guarantee of valuable and
trustworthy information and therefore ultimately
increases and strengthens international cooperation.
In that sense, the trend by some Member States to
increasingly stop considering oversight bodies as
third parties and grant them full access to information
originating from international cooperation will ensure
better cooperation among both overseers and
intelligence services. A harmonised approach over
oversight bodies’ statutes in this regard (including
461 Germany, Federal Parliament (Deutscher Bundestag) (2016a),
p. 14.
462 Belgium, Standing Committee I (2016), pp. 73-74.
“Oversight bodies should receive copies of all such
agreements at the time they are entered into or when
they are revised. The oversight body should be obliged to
review each agreement and, when possible, undertake
random audits to measure compliance with the terms of the
agreement. Such audits can help determine whether the
agreement needs to be revised in light of past practice.”
Born H. and Leigh I., 2012, p. 144
Very few Member States’ legal frameworks provide
for the possibility of an external review, either ex ante
or ex post, of international agreements establishing
international intelligence cooperation. Those that do
include Belgium, Luxembourg and the Netherlands.
In Belgium, Hungary and the Netherlands, oversight
bodies have access to internal guidelines governing
exchanges of information. In Belgium, the Standing
Committee I highlighted some weaknesses in the
directives established by the National Security Council.
Notably, the committee pointed out the absence of clear
criteria clarifying when international cooperation can be
established with foreign counterparts, and data transfers
are allowed; delimiting the uses foreign counterparts
may make of the data they receive; and reinforcing data
protection safeguards when information is transferred
to countries that do not offer the same level of data
protection.463 The Standing Committee I reiterated these
concerns in its latest report. 464 The National Security
Council eventually adopted a directive on this matter
in 2016. In the Netherlands, the Dutch oversight body,
CTIVD, has published detailed information, including
recommendations, on the internal guidelines adopted
by the General Intelligence and Security Service465 and
on the cooperation assessments (referred as “weighting
notes”) intelligence services must conduct before
entering into international agreements.466
11.5. Bridging the gaps:
peer constraints
The two restrictions mentioned above – the absence
of a clear legal basis for the oversight of international
463
464
465
466
Belgium, Standing Committee I (2015), p. 74.
Belgium, Standing Committee I (2016), p. 5.
The Netherlands, CTIVD (2009), pp. 6-12.
The Netherlands, CTIVD (2016c).
107