Research

The presentation by Vadim Enicov for the Eurasia Learning Lab, organised by DCAF – Geneva Centre for Security Sector Governance in Kiev, November 2019

Key words:

Security sector, democratic oversight

The modalities of civil and democratic oversight:

• Parliamentary oversight / free and democratic elections / quality of political parties;
• Specialized parliamentary commission / on security / participation of opposition;
• Independent bodies with legal mandate / Ombudsmen / Court of Accounts;
• Civil society / enough resources;
• Judicial Courts / Citizens trough judiciary system;[1]

Defining goals:

Why we do need civil and democratic oversight? The United Nations has repeatedly determined the goals of development:

1. Maintaining international peace and security;

2. Achieving a Sustainable development[2] (17 Goals in 2030 Agenda, including no poverty; zero hunger; good health; quality education; gender equality and others, including: peace, justice and strong institution);

3. Enjoyment of human rights by all. To achieve that goals, we need an accountable security sector.

Accountability should include:

1. Execution of the tasks conferred by Parliament;
2. Sharing of tasks with the national authorities;
3. Cooperation with other national relevant authorities;
4. Evolution of the structure and staffing, including invited experts;
5. Adoption and implementation of the Code of Ethics or Conduct;
6. Amounts of administrative raised in accordance with Regulation on area;
7. The Authority shall publish the Annual Report on its website.

Actual approaches on security sector

The United Nations defines the security sector as all institutions, groups, organizations and individuals, both state and non-state, who participate and are responsible for administering, promoting and monitoring security in the state[3]. So, we can define it as follow:

Basic components of the security sector, including law enforcement bodies: the armed forces, the police, the carabinieri, the penitentiaries, the paramilitary forces, the intelligence services, the border services, the customs authorities and the exceptional situations services;

Administration and oversight components: relevant legislative bodies and commissions, the government, including defense ministries, home affairs and foreign affairs, national advisory bodies, financial management bodies and civil society representatives, including the media, academic circles and non-governmental organizations;

The components of justice: the ministries of justice, the prosecution bodies and the prosecutor’s office, the courts, the enforcement bodies, the commissions for human rights and the parliamentary lawyers;

Non-state components of security forces: unconstitutional military structures, private paramilitary units, private security companies.

State Security vs. National Security

From the above we can observe the significant extension of the notion of security, the importance that is assigned to it and the diversity of the instruments through which it is provided. In trying to define security, in its current sense, we can say that security is a state of safe and protection for the person, society and state, created through a system of measures designed to ensure national interests, rule of law, respect for fundamental human rights, access to justice, democratic governance and sustainable development.

Human Rights and Public Interest;

Related Human Rights,

According to United Nations Universal Declaration on Human Rights (Paris, 1948)

European Convention on Human Rights (Rome, 1950): 1. Right to life (Article 2 of Convention; article 3 of Declaration) 2. Right to liberty and security (Article 5 of Convention; article 3 from Declaration) 3. Freedom of opinion and expression – access to information (article 10 of Convention; article 19 from Declaration)

Why human rights approaches are important?

Public Interest:

Article 21 of the UN Declaration on Human rights (1948): “The will of the people shall be the basis of the authority of government”. // Or, the public interest is defined as the “ex ante welfare of the representative individual.” // Anything affecting the rights, health, or finances of the public at large. // Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility is regulated in the public interest because private individuals rely on such a company for vital services.

A good example of balance between Public Interest and Security Sector needs are Tshwane Principle: The Global Principles on National Security and the Right to Information[4] .

As its stated by Tshwane Principle, National security and the Public’s Right to Know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep information secret on national security grounds and the public’s right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is well informed about the state’s activities, including those undertaken to protect national security.

Conclusions

Gaps and Deficiencies

Decisive dependence on the political will

Speaking on gaps concerning research and capacity building, it is most often the reluctance and unwillingness of public officials and executives to disclose important for public interest information. In vary manner, officials deny presentation of required information. They can use legal norms or simple refuse without explanations.

That’s why it is important to study and consider the ways for civil and democratic oversight.

Political will is commonly defined as the “demonstrated credible intent of political actors”. // A more detailed and operationally oriented definition of this concept is “the commitment of political leaders and bureaucrats to undertake actions to achieve a set of objectives and to sustain the costs of those actions over time”. While this definition seems straightforward, many authors stress the complexity of the concept of political will, which entails many dimensions and reflects a large and multifaceted set of underlying factors. They conclude that thinking about political will as a single, simple factor underestimates the sheer complexity of what is involved.

Assessing political will, we will appreciate:

• Government initiative // Home-grown initiatives shows that government sees the issues as important and is willing to do something about it;
• Degree of analytical rigor // Policies decided utilizing evidence – based analyses of the options and their costs and benefits are likely of willingness;
• Mobilization efforts // Effort to mobilize support from other stakeholders;
• Long-term commitment and allocation of resources // No many – Agencies;
• Application of credible sanctions // No result without well-crafted sanctions;
• Learning and adaptation // Tracking and monitoring the progress;[5]

Imperfection of democratic system

In Moldova we gave up again. An alliance that had a pro-European and democratic component fell. If it is to analyze the causes, we must recognize some unpleasant truths – most of the population is inert and slightly manipulated.

That’s a problem. Since Classical antiquity and through the modern era, democracy has been associated with “rule of the people,” “rule of the majority,” and free selection or election either through direct participation or elected representation respectively but has not been linked to a particular outcome.

Democracy is not the most effective way of governance but the best one for the moment is not. Democracy is facing serious problems in countries with longstanding traditions of governance, with structured democratic systems, such as Brexit in Britain or Mr. Trump’s government in the US. What about poor and weak countries like Moldova? I do not want to upset colleagues from other countries, but we see the same periodic failures everywhere in the region: Ukraine, Romania, Armenia. The list can be extended. I am not talking about countries where no attempts to democratize are made.

Critical political process[6] [7]:

• Political instability // incompatibility with former politics;
• Short-termism // periodical democratic election affects long term strategies;
• Corruption // those who had to fights against are in charge;
• Susceptibility to propaganda // manipulation or control of public opinion;
• Lack of political education // inert young electorate;
• Limited responsiveness and representation // weak social elevator[8];

Let’s invent new ways to address those gaps to make the world better.

Weak civil society

Definition: Civil society refers to the space for collective action around shared interests, purposes and values, generally distinct from government and commercial for-profit actors. Civil society can be understood as the “third sector” of society, independent of the government.

According to European Union Agency for Fundamental Rights, Civil society organizations identified the following challenges regarding the regulatory environment:

• Recognition or registration of CSOs can be problematic. Examples State failing to recognize unregistered CSOs or requiring double registration of CSOs. Registration documents had to be amended after a new law was introduced – a time- and resource- intensive process.
• Transparency laws that require entities involved in political campaigns to register as third-party campaigners, either in general or during election periods. Restricting CSOs’ ability to inform the public on matters of general interest or carry out advocacy, if drafted or applied in a disproportionate manner.
• National rules sometimes go beyond the restrictions of the freedom of peaceful assembly that can legitimately be imposed under international instruments. Measures taken to address terrorism have had a particularly negative impact on the freedom of peaceful assembly.
• Regarding the freedom of expression, several States have maintained criminal laws banning defamation or insult of state officials, the state itself, and (foreign) heads of state. Although such provisions may serve the legitimate interest of protecting the right to reputation, they should not disproportionately restrict the freedom of expression.[9]
• Insufficient resources. Characteristic to the poor countries which leads to the lack / insufficiency of the internal financing funds

Proposals

Needs and Solutions for the future

Informing and educating the population

We, as individuals and societies need to learn to live together sustainably. Some international programs empower people to change the way they think and work towards a sustainable future. But these programs usually refer to health, economic growth or gender equity. There are few that provide a political education, not speaking regarding security sector oversight. This is too sensitive domain for international direct implication and too dangerous for political power.

However, the means for these activities must be found. Even in the context that security sector oversight includes anticorruption measures, correct use of funds, approval of strategic programs and others.

The international community has increasingly demonstrated consensus regarding the fundamental contribution of human rights education to the realization of human rights. Human rights education is aimed at developing an understanding of our common responsibility to make human rights a reality in every community and in society at large. In that sense, it contributes to the long-term prevention of human rights abuses and violent conflicts, the promotion of equality and sustainable development and the enhancement of participation in decision-making processes within a democratic system.[10]

Education can be defined as any learning, education, training or information efforts aimed at building a universal culture. Education encompasses:

(a) Knowledge and skills — learning about human rights and human rights mechanisms and acquiring skills to apply them in a practical way in daily life;

(b) Values, attitudes and behavior — developing values and reinforcing attitudes and behavior which uphold human rights;

(c) Action — taking action to defend and promote human rights.

Methods: Seminars, courses, media, free and accessible internet.

 Supporting independent civil society and media

Access to information is crucial for effective democratic governance and surveillance.[11]

Many CSOs are active in the broad arenas of justice and human rights (economic, social, cultural and political rights); decentralization, local governance and rural/urban development; e-governance and Access to Information; and public administration reform and anti-corruption. Currently, fewer organizations work in the very specialized and institutional areas of parliamentary development and electoral systems and processes. CSOs that focus in these latter areas tend to be specialized institutes and interest groups involved in related work with close links to government.

Article 13 of the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (UN Declaration on Human Rights Defenders) enshrines the right to “solicit, receive and utilize resources” to promote and protect human rights. The concept of “resources” is broadly defined to include financial assistance, material resources, access to international funds, solidarity, the ability to travel and communicate without undue interference and the right to benefit from the protection of the state.[12]

Direct ways of supporting civil society to engage actively in policy and oversight processes. A precondition for a strategic engagement with civil society is a structured dialogue with local CSOs. To be meaningful, dialogue must be timely, predictable and transparent. It is important that the dialogue covers a broad selection of CSOs from the local to the national levels, comprising urban and rural organizations. In terms of operational support, the key entry points involve long-term capacity development for evidence-based advocacy, short-term funds to enable specific actions and support for alliance-building and networking.

 Supporting independent and impartial justice

General recognized principle is that: All courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority, and shall be free and independent from political, executive, and any other form of direction and control. While judicial independence does not exist for the sole benefit of judges, it is nonetheless a powerful tool in their hands. It is important to appreciate, therefore, that judicial independence must be accompanied by judicial accountability.

As valuable as they are, constitutional guarantees, formal legal rules and institutional safeguards are not in themselves enough if the values of independence and the separation of powers, which form the basis of such rules, are lacking. All parties concerned must act according to a culture of independence and mutual respect to create and sustain this basis. The introduction of formal legal guarantees forms the starting point, not the completion of this culture of independence and mutual respect. In addition, it is quite clear that politicians have not lost their interest in influencing judicial decision-making. This temptation will always exist.[13]

Key challenges within the judiciary: 1) It goes without saying that courts must be independent from other state powers and established by law; 2) One important aspect in judicial system has to do with the appointment of judiciary; stable term of office and irrevocability of judges; 3) Related to the above is another important aspect in judicial system, namely independence and impartiality of judges; 4) This leads me to stress the importance of judicial ethics, Code of Ethics of judges, but also deontology of prosecutors, lawyers and other actors and institutions involved in judicial process. 5) A further element in this chain is a fair trial with all its procedural guarantees provided by Art 6 of the Convention (this involves also already outside actors such as lawyers, prosecutors, etc.) 6) Following the procedure, it is the high quality of the work of judiciary: well-reasoned judgments that contribute greatly to the public trust in judiciary. 7) Finally: a vital element for securing public trust is the accountability, possibility of disciplinary and other sanctions, liability and responsibility of judges.[14]

Increasing the role of international institutions

International organizations have recently come under pressure. Brexit, the election of Donald Trump, and the rise of China appear to all indicate the same thing: established international organizations are losing authority. In reality, however, the formal authority of international organizations has grown significantly in recent decades.

Until this stage, the most effective method of democratic oversight and protection of human rights was that of external pressure. One of these methods is the path of the judicial institutions, the exhaustion of the national courts for the defense of rights and the appeal to the international courts such as the European Court of Human Rights. National courts still do not have the independence and courage to oppose the policy. This means an almost total dependence on the governing force now, which is often not driven by democratic principles or the public interest, but by its own illicit conservation and enrichment.

The reasons for the rise in international authority are threefold: 1. the functional quest for effective cooperation; 2. increasing political demands for participation by non-governmental actors; 3. the diffusion of authoritative institutional templates amongst international organizations.

Working together, powerful and durable forces have pushed towards more international authority. First, technological advancements and shrinking physical distance mean the demand for international cooperation, including in international organizations, is likely to remain high. Second, transnational civil society and business are becoming more integrated, and different groups’ desires to be heard in the international realm are likely to increase accordingly. This will further enhance non-governmental actors’ political demands to influence international organizations[15].

From these statements, the obvious conclusion is also drawn for the improvement of public, civil and democratic oversight, it is necessary to continuous strengthen the external, European or International institutions to protect the democratic evolution.

27 November 2019

[1] UN Security Council, Resolution 2151 (2014) on Security sector reform;

[2] UN General Assembly, Resolution adopted on 25 September 2015: the 2030 Agenda for Sustainable Development

[3] Ibidem, UN Security Council, Resolution 2151 (2014) on Security sector reform

[4] Tshwane Principle, launched on June 12, 2013 drafted by 22 groups, involved more than 500 experts, South Africa

[5] Building Political will, Topic guide from 2014 by Transparency International;

[6] Disinformation and propaganda – impact on the functioning rule of law, 2019, European Parliament;

[7] Wikipedia, Criticism of democracy, accessed on 24/11/2019;

[8] A Broken social elevator, published in 2018 by the Organisation for Economic Cooperation and Development

[9] Challenges facing civil society organizations, 2017, by European Union Agency for Fundamental Rights;

[10] United Nations General Assembly Report, 2014 on Plan for Human Rights Education

[11] Propaganda and Freedom of the Media, 2015, Organisation for Security and Cooperation in Europa;

[12] Ibidem, Challenges facing civil society organizations, 2017, by European Union Agency for Fundamental Rights;

[13] Strengthening Judicial Independence and impartiality, 2016, Council of Europe;

[14] Ibidem, Strengthening Judicial Independence and impartiality, 2016, Council of Europe,

[15] GIGA, by Tobias Lenz, 2017, The Rising Authority of International Organizations;