Geneva Centre for the Democratic Control of Armed Forces (DCAF)

Dr. Hans BornSenior Fellow, h.born@dcaf.ch

1 November 2005, Geneva

1. SSG: Civilian Control and Parliamentary Oversight

2. Security Sector Reform and Human Rights

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Legal framework

SecuritySector

Executive

Parliament

Social values

Civil Society

The Security SectorThe Security Sector

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Conditions for Effective Conditions for Effective Oversight: AAAOversight: AAA

• Authority– Legal powers

• Ability– Committee, resources, expertise, staff

• Attitude – Willingness to hold government to account

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Strong versus Weak Strong versus Weak ParliamentsParliaments

• Strong parliaments: 1. The power to transform government policy

• Weak parliaments: 2. The Arena Parliament

3. The Rubberstamp Parliament

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Parliamentary Tools of OversightParliamentary Tools of Oversight

• Legislation• Getting the right information• Oversight of budget • Oversight of personnel• Oversight of policy and operations• (Oversight of procurement of equipment,

weapons etc.)

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Parliamentary Tools of Oversight:Parliamentary Tools of Oversight: Legislation Legislation

• Initiate or change legislation on any security issue or institution;

• Law on state secrets, law on freedom of information;

• Law on independent bodies.

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Parliamentary Tools of OversightParliamentary Tools of Oversight: : Getting the Right InformationGetting the Right Information

• To question relevant minister(s) and officials• Involving civil society by organising public

hearings• Parliamentary inquiry in scandals• Access to classified information• Parliamentary visits • Parliamentary staff

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Parliamentary Tools of OversightParliamentary Tools of Oversight: : The Power of the PurseThe Power of the Purse

• Right to approve or reject budget proposals• Right to amend budget proposals• Access to classified budget documents • Comprehensive control (no “black” budgets)• Right to approve or reject the account of

expenditures of the security services (investigated by independent budget audit office)

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Parliamentary Tools of OversightParliamentary Tools of Oversight: : PersonnelPersonnel

• Adoption of laws on the status, duties and rights of security services personnel

• Giving consent (or withholding) to directors of security services

• Approving maximum number of personnel employed by each security service

• Legislating for an ombudsman to monitoring the human rights within services and in relation to citizens

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Parliamentary Tools of Oversight:Parliamentary Tools of Oversight: Policy and OperationsPolicy and Operations

• Setting general rules by law: – mandate of intelligence service, police etc.;– rules for the use of force;– rules for respect of human rights– states of emergency

• Authorising national security plan, civil emergency plan; overseeing its implementation;

• Operational independence of the security services: no parliamentary involvement in individual cases or operations;

• Setting up parliamentary inquiry in case of failed or inappropriate operations.

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Emergency/Crisis ManagementEmergency/Crisis Management::The Role of ParliamentThe Role of Parliament

• Ensure passage of laws upholding democratic values including those allowing for states of emergency declaration (see Backgrounder);

• Prior or ex-post approval of state of emergency;

• Hold government accountable for its actions;

• Post-hoc accountability: to conduct investigations on the execution of special emergency powers.

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Restricting Constitutional and Restricting Constitutional and Human RightsHuman Rights

Non-Derogable Human RightsAccording to Article 4 para. 2 of the ICCPR, no derogation is permitted from the

following rights:

• To life (Article 6); • Not to be subjected to torture or to cruel, inhuman or degrading treatment or

punishment (Article 7); • Not to be held in slavery or servitude (Article 8); • Not to be imprisoned for failure to perform a contractual obligation (Article 11); • Not to be subject to retroactive penal measures (Article 15); • To recognition as a person before the law (Article 16); • To freedom of thought, conscience and religion (Article 18).

Source: International Covenant on Civil and Political Rights (entered into force in 1976).

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Emergency ManagementEmergency Management

• Principles to be respected during emergency rule (see backgrounder):– Temporality, proportionality, legality, declaration, etc.

• Emergency powers: – Restriction of free press and prohibition of public meetings, confiscation of

private property etc.

• Which human rights can be limited: – NOT the so-called non-derogable human rights.

• Limitations of human rights are justified if:– Limitations are regulated by law;– Necessary in a democratic society;– Effective remedy (complaints mechanism) available.

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Case study on:Case study on:The role of parliament in The role of parliament in protecting human rightsprotecting human rights

• THE CASE: – Law enforcement officials and the excessive use

of force against demonstrators in the city of Suzuki in the land of Sinon;

• YOU: – Are a member of parliament and have to address

the disastrous performance of police and internal security forces;

• TASK: – What is your position and your recommendations?