National security sector legislation encompasses national legal provisions that apply to all public institutions. This includes those that mention and affect the security sector in a direct, or indirect, way as well as legislation, specifically, drafted for the security sector. Constitutional provisions and other general national legislation applicable to the security sector will depend on the specific national context of a given country. There is no universal model of security sector legislation, but a series of precedents in case law can be found in all jurisdictions.
Security sector legislation is always a complex body of laws, rules, and regulations specific to a particular state. However, there are standards, principles, and best practices that all national security sector legislation can follow. In order to ensure the effectiveness and efficiency of the security sector, these are the fundamental principles of democratic security sector governance that ought to be pursued:
- Democratic civilian control
- Rule of law
- Oversight
- Transparency
- Accountability
- Strategic planning
- Effectiveness
- Efficiency
- Responsiveness
- Equity
- Participation
- Pluralism
- Anti-corruption and Building Integrity
- Respect for human rights and fundamental freedoms
- Sustainability
It is important to note that having laws that comply perfectly with the democratic governance principles on paper is not enough. Implementing those laws and ensuring there are effective tools for their realisation, as well as monitoring and evaluating their effect, is as important as the laws themselves. Another crucial component of this equation is a set of sanctioning mechanisms that judge, correct, and prevent deviations, as well as to ensure the rule of law.
The institutional architecture composing the security sector, laws, policies and practices should respect good governance principles. These should be supported by necessary tools for their fulfilment and implementation. Performance should be overseen, monitored, and evaluated. It goes without saying that all security-sector-related legislation should be public knowledge.
National legislation, which is security-sector-specific, can take many different forms. It can concern a specific branch of the security sector or an activity.
Defence Legislation
National defence legislation includes all legislation relative to roles, duties and responsibilities of national defence institutions, as well as rules regulating national defence procedures. This includes legislation defining the rights and duties of the armed forces; the functions and responsibilities of the ministries; the conditions under which national defence is carried out; the conditions under which all other defence operations are carried out, in and outside the national territory; financial management and administration regulations; state emergency considerations; etc. Defence legislation should comply with all relevant international standards and best practices related to good governance. This includes democratic control; anti-corruption and building integrity measures; codes of conduct; respect for human rights and fundamental freedoms; oversight, monitoring and evaluation procedures; accountability and transparency; responsiveness and efficiency.
Military Justice
Military justice is a distinct legal system that applies to members of armed forces and, in some cases, civilians. The main purpose of military justice is to preserve discipline and good order in the armed forces. Structures, rules and procedures in military justice can be substantially different from their civilian counterparts. Usually, military justice operates in a separate court system with stricter rules and procedures in order to enforce internal discipline and to ensure the operational effectiveness of the armed forces. This may lead to questions on the principle of civilian supremacy or issues of compliance with international standards, such as human rights and fair trial guarantees.
Source: DCAF (2011) Legislating for the Security Sector Toolkit: Understanding Military Justice.
Military justice should be governed by the same standards and principles of democratic security sector governance as any other part of the security sector. There is a special need to insist on the independence and integrity of the judges in any judicial system. It is also important to ensure transparency, accountability, and oversight. In general, a military judicial system should respect the following principles:[1]
- Military tribunals should be established by law, or constitution, and must be an integral part of the general judicial system.
- Military tribunals must respect and apply international standards and procedures that guarantee a fair trial as well as international humanitarian law at all times.
- In a state of emergency or crisis human rights and fundamental freedoms must be respected.
- In times of armed conflict, humanitarian law, as well as the Geneva Convention provisions relative to the Treatment of Prisoners of War, fully apply to military courts.
- Civilians should not be tried by military courts.
- Conscientious objection to military service cases should be tried in civil courts.
- In no case should minors be placed under the jurisdiction of military courts.
- The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel.
- Human rights violation cases should be tried in civil courts.
- Instances that call for military secrecy should be strictly defined.
- Military prisons must comply with international standards and be accessible to domestic and international inspection bodies.
- Guarantee of habeas corpus.
- Right to a competent, independent, and impartial tribunal.
- Public hearings must be the rule.
- Guarantee of rights of defence and the right to a just and fair trial.
- The judicial proceedings of military courts should ensure that the rights of the victims of crimes, or their successors, are effectively respected.
- Recourse procedures, particularly appeals, should be brought before the civil courts.
- The fact that the person, allegedly, responsible for a violation acted on the order of a superior should not relieve him or her of criminal responsibility. Violations committed by a subordinate do not relieve his or her hierarchical superiors of their criminal responsibility either.
- Under no circumstances shall the death penalty be imposed or carried out.
- Codes of military justice should be subject to periodic systematic review, conducted in an independent and transparent manner. This is to ensure that the authority of military tribunals corresponds to strict, functional necessity without encroaching on the jurisdiction that can and should belong to ordinary civil courts.
On Military Justice:
DCAF (2011) Legislating for the Security Sector Toolkit: Understanding Military Justice.
DCAF (2011) Legislating for the Security Sector Toolkit: The Colombian Military Criminal Code.
Law Enforcement Legislation
The police are a civil force responsible for the prevention and detection of crime and the maintenance of public order.[2] National legislation concerning the police should be based on the principles of democratic policing:
- Sensitivity to the needs of the citizens
- Democratic control
- International law enforcement standards
- Transparency and accountability
- Professionalism and Integrity
- Respect for Human Rights as well as civil and political rights
- Oversight
National policing legislation should include codes of conduct and codes of ethics. Legislation should specify mandates and delimitate the use of force, especially lethal force. It should also identify punishable behaviour and sanctions mechanisms and define roles and responsibilities, as well as institutionalise oversight and monitoring.
On democratic policing legislation and good practices:
DCAF (2015), Training Manual on Police Integrity.
DCAF (2012), Toolkit on Police Integrity.
DCAF (2011), Legislating for the Security Sector Toolkit: The European Code of Police Ethics.
DCAF (2011), Legislating for the Security Sector Toolkit: 10 Basic Human Rights Standards for Law Enforcement Officials
DCAF (2011), Legislating for the Security Sector Toolkit: Police Legislation Model: The Swedish Police Act.
DCAF (2009), Legislating for the Security Sector Toolkit: International Police Standards Guidebook on Democratic Policing.
OHCHR (1997), International Human Rights Standards for Law Enforcement: A Pocket Book on Human Rights for the Police.
Intelligence Legislation
There is a special need for legislation when it comes to the intelligence services given their special nature and the culture of secrecy surrounding them. In order to respect the rule of law and to have legitimacy, intelligence agencies must be established by law and their functions and powers must derive from a legal regime. There must be a system of legal control in place in order to ensure that exceptional powers do not overstep legally-established parameters. Oversight of the intelligence services should take place internally (within the agency itself), as well as by the executive, parliament and external and independent oversight bodies. Civil society and the media also participate in this process.
On Intelligence Services Oversight and Standards:
DCAF (2015), Legislating for the Security Sector Toolkit: International Standards for Financial Oversight in the Security Sector.
Hans Born, Adrian Wills (2012) Overseeing the Intelligence Services. A Toolkit.
DCAF (2011), Legislating for the Security Sector Toolkit: Understanding Intelligence Oversight.
DCAF (2011), Legislating for the Security Sector Toolkit: The Canadian Security Intelligence Service Act
DCAF (2011), Legislating for the Security Sector Toolkit: The Netherlands Intelligence and Security Services Act
DCAF (2011), Legislating for the Security Sector Toolkit: The Argentinian National Intelligence Law
Hans Born, Ian Leigh, (2005) Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies.
Oversight
The central agency for democratic civilian oversight of the security sector is the parliament and its committees. However, civil society organisations, audit institutions, inspectors, military and civilian personnel, ombudsmen, other special committees, media, interest groups, and civil society, all have the right and responsibility to contribute to this process.
Civil society and CSOs have a vital role to play here. They evaluate and scrutinise the performance of the security sector, provide advice and expertise, analysis, recommendations, and raise awareness. They can also suggest amendments to legislation and participate in the development and review of draft legislation model.
Media are another important component of security sector oversight. They raise awareness about security sector issues and provide a channel of communication between the society and the government.
Security sector oversight can touch upon many different aspects, such as efficiency of the security sector, legislation implementation, compliance with international standards, financial oversight, and respect for human rights of the armed forces and civilians. Oversight is a broad concept and one of vital importance for good governance. Therefore, it is crucial that its role is acknowledged in national security sector legislation and that its practice be institutionalised.
On Oversight:
DCAF, NATO (2015), Oversight and Guidance: Parliaments and Security Sector Governance.
Hans Born (2015), Parliamentary Oversight of the Security Sector.
DCAF (2015), Financial Oversight of the Security Sector a Toolkit for Trainers.
Council of Europe Commissioner for Human Rights (2015), Issue Paper on Democratic and Effective Oversight of National Security Services.
Hans Born, Adrian Wills (2012) Overseeing the Intelligence Services. A Toolkit.
DCAF, UNDP (2008), Public Oversight of the Security Sector. A Handbook for Civil Society Organisations.
Hans Born, Ian Leigh, (2005) Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies.
Key source:
Legislating for the Security Sector: Toolkit.
[1] Source: DCAF (2011) Legislating for the Security Sector Toolkit: Principles Governing the Administration of Justice through Military Tribunals.
[2] DCAF (2012), Toolkit on Police Integrity. Available here.