1-2 / 2015 Content

90 (2015) 1-2: Intelligence! Conflicts and Conflict Avoidance through Informaton Gathering

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Andreas von Arnauld / Tobias Debiel / Christian Tomuschat

Debate: Secret Services and Secrets of State: How Democratic?

Reevaluation of a Tense Relationship

Monstantin von Notz

Transparency – The Nightmare and the Noble Dream

Steffen Augsberg

Focus Articles

Intelligence Services Before the Courts – the Judicial Reconditioning of Mass Surveillance in the United Kingdom and the European Convention on Human Rights

Felix Bieker

The Investigatory Powers Tribunal is the first European court to rule on mass surveillance by an intelligence service since the Snowden revelations. In exercising its jurisdiction, however, the Tribunal exercised restraint and found the measures of GCHQ and its exchange of information with the NSA to be lawful. Yet its assessment of fundamental rights in most parts does not meet the requirements set up by the ECtHR. In Germany the situation is also characterised by limited judicial oversight. This highlights the value of the external supervision by the ECtHR, where actions against the GCHQ are currently pending.


Vassal by Washington’s Grace? Information Retrieval, Conflict, and Conflict Prevention by the BND

Witold Mucha

Regardless of the public focus on the role of the German Federal Intelligence Service (BND) within the National Security Agency (NSA) espionage affair, this article analyses the BND share in escalation and de-escalation of conflicts. In light of the difficult access to empirical data, Wikileaks and secondary literature are made use of in assessing BND activities and their impact. In accordance with government priorities, issues of proliferation and international terrorism are looked into in particular. The article draws an ambivalent picture of the BND as an operationally successful yet often inscrutable intelligence service.

Hybrid Warfare: Between Cyber Attacks and Information Manipulation

Pierre Thielbörger / Robin Ramsahye

The article deals with a specific aspect of hybrid warfare, namely the conscious use of information for the purpose of concealment, disinformation and propaganda. The authors propose a more precise way of determining the threshold between legal use of information and illegal usage that amounts to intervention or the use of force contrary to international law. The suggested approach goes beyond the currently prevailing opinion by emphasising, on the one hand, that the threshold of coercion is often not reached in cases of concealment and disinformation, whereas, on the other hand, certain extreme forms of propaganda, namely those to prepare or enable a military strike against another state, might not only amount to an illegal intervention, but even violate the prohibition of the use of force.

The Role of Confidentiality in Human Rights Monitoring – A Practical View

Renate Kicker

This article discusses the principle of confidentiality in human rights monitoring based on the example of international and national on-site inspections established to combat and prevent torture. Confidentiality should, on the one hand, protect the persons who provide information and, on the other hand, secure cooperation between monitoring bodies and States. However, confidentiality also limits the possibilities to improve critical human rights situations as no pressure can be put on States through naming and shaming. In practise, the possibility of lifting confidentiality while respecting the protection of personal data is used only as the last resort by international bodies. This underlines that the concept of confidentiality is considered to be useful for human rights monitoring. National inspection bodies, however, are mostly not bound to confidentiality and may strive for the implementation of human rights standards in an open dialogue with State actors engaging civil society.

General Articles

The EU3 Initiative Towards the Iranian Nuclear Programme – a Demonstration of European Coherence and Salient Conflict Consolidation?

Eva Mareike Schmitt / Timo Gertler

The following contribution raises the question whether the European powerhouses Germany, France and Britain (the EU3) can – according to their own approach – maintain a coherent policy formulation as a precondition for agenda-setting and common policy formulation concerning the Iranian Nuclear Programme. Special focus is put on the dimensions value (goal) cohesion, procedural cohesion and output cohesion. The analysis displays the high procedural cohesion of the EU3; however, goal cohesion varies and the EU3 turns out to be heavily reliant on the US concerning the production of output cohesion (i.e. sanctions), a fact that successively contributed to a leading function of the US in the negotiations. The results shed a critical light on the ability of the EU3 to represent a distinct European position in a relevant international conflict.


Non-Alignment and Socialism: Yugoslavia’s Contributions to International Legal Innovation After 1945

Arno Trültzsch

After its dismissal from the Socialist camp, Yugoslavia became one of the instigators, main drivers and pioneers of the so-called “non-aligned movement”. In this context, Yugoslavia sought to strengthen the only recently established system of the United Nations (UN) for solving international conflicts, particularly through binding norms of international law. The external pressure, triggered by repositioning the country between “East” and “West” amidst the Cold War, contributed to a new understanding of “active peaceful coexistence” and peace-keeping. In this vein, Yugoslav protagonists initiated an increasing number of draft resolutions within the organs of the UN, together with their non-aligned partners (esp. India and Egypt). Still, these initiatives had only little impact on Cold War realpolitik. Many of these draft resolutions were connected with the complexities of Yugoslav foreign policy. Thus, these initiatives contributed to an increasing legal certainty in international affairs, although that was not the reason for, but a side-effect of them.