Università della Svizzera Italiana, Lugano

Facoltà di Scienze economiche

The Role of the Ombudsman in implementing Transparency and Accountability in Security

Sector:
A comparative Approach between Australia, Canada and United States of America.

Master Thesis

Author: Emanuele Pizzatti Casaccia

Relator: Dr. Bertil Cottier
Co-supervisor: Dr. Jean-Patrick Villeneuve

Academic Year 2013. 24th April, 2013

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Abstarct:

The work is the final thesis of a Master in Public Management and Policy held by a cooperation
among three different Swiss Universities under the supervision of the Swiss Public Administration
Network - SPAN.
This study aims to examine the role of practices such as accountability and transparency in Security
Sectors. More precisely it aims to prove that such practices of Good Governance can underwrite a
very desirable added value for a rightful democratic process. Thus the first part of this thesis is
devoted to review the issue of transparency and accountability by taking a special regard to
constraints that these practices may have in a special public sector such as the Security. In order to
do so, it has been required a general introduction on the Security Sector which it is supposed to give
the reader a general knowledge about the different types of Security in an evolving and globalized
World that is starting a substantial process of reforms.
Given that, the topic of human security is very wide ranging, the thesis pays more attention to a
particular kind of Security, the one carried out by the Army which is usually intended to protect
National Security. Nevertheless, the first part of the thesis aims also to prove a definition of the kind
of security related to Armed Forces and for this purpose, it has been needed to briefly describe the
other most relevant type of Security.
The Second part of the thesis is devoted to describe the main actors and the practices that are used
to implement Good Governance in Security Sector. For this purpose it has been chosen the
Ombudsman which his action may give a revealing and consistent support to achieve transparency
and accountability in a public sector which, for instance, requires a particular need to protect
informations and it always been more conservative to keep up with the radical reforms that other
public sectors have known in the recent past decades.
The main analysis of the thesis regards the role of Military Ombudsman Institutions. On this
account, the analysis has been developed by comparing three different approaches with the object to
identify the core advantages and disadvantages that these three examples may bestow. The
comparison, which is the heart of the research, has considered the Commonwealth Ombudsman of
Australia, the Canadian Ombudsman of Defence Forces and the American Ombudsman of the
Department of Defense.

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Acknowledgments:

To all those who I had the pleasure to meet...

I would like to express my foremost gratitude to my esteemed supervisor, Dr. Bertil Cottier, who
has provided me infinite forewarning and support throughout the development of the this master
thesis. He has provided me constant advices and motivation to discover transparency and
accountability issues in the field of Security. In addition I am obligated for its effort of helping me
to build my career plans which lead me to have a wider sight of my future personal development.

I am extremely grateful to Dr. Jean-Patrick Villeneuve who was very kind to meet with me for one-
to-one in several occasions. His knowledge of accountability and transparency gave me the
possibility to develop a more precise approach to this master thesis.

I am also expressing my most sincere appreciation to every professor of my master that have helped
me to develop my keen interest in political and public administration issues by providing me the
tools to have a critical view.

A very special thank you from the deepest of my heart goes to Lukas Haring, Cristofero Piattini,
Valentin Zuber and all my class mates with which I had the possibility to share opinions and
cultivate interests in constructive debates.

I would like to express my regards to all member of my family which have sustained me during my
formation.
Finally, a special greeting to my father which I always wanted to appreciate the presence.

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 Università della Svizzera Italiana, Lugano
Facoltà di Scienze economiche

The Role of the Ombudsman in implementing Transparency and Accountability in Security

Sector:
A comparative Approach between Australia, Canada and United States of America.

Master Thesis

Author: Emanuele Pizzatti Casaccia

Relator: Dr. Bertil Cottier
Co-supervisor: Dr. Jean-Patrick Villeneuve

Academic Year 2012-2013. 24th April, 2013

7
 Table of Contents

1. Introduction 1

1.1 Thesis’ objective 3

1.2 Methodology 5
1.3 Thesis’ plan 8

2. The Transparency relevance 10

2.1 The Security Sector 16

2.2 Need of Secret in Military Sector 19
2.3 The Security Policy Cycle 24
2.4 Management of Security Sector 28

3. Transparency and Good Governance of Security Sector 33

3.1 Introduction to Controlling and Oversighting the Security Sector 38

3.2 Transparency’s role in the Security Sector Reform 44
3.3 Public Oversights 50

4. The Ombudsman 54

4.1 Military Ombudsman 60

4.2 Challenges for the Military Ombudsman 65
4.3 Ombudsman’s Comparison 67

4.3.1 Australia 69

4.3.1.1 Australian Military Ombudsman 74

4.3.2 Canada 79

4.3.2.1 Canadian Military Ombudsman 83

4.3.3 United States of America 87

4.3.3.1 U.S.A. Military Ombudsman 92

5. Conclusions 96

5.1 Thesis’ results 98

5.2 Revaluation of used methodology 106
5.3 Possible developments of this research 109

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Appendix 111
Appendix 1: Military Ombudsman Analyzed Approaches - SWOT analyisis 111

Bibliography 113
Annexes 122
Annex 1: Security Sector’s Actors 122

Annex 2: Tools for Parliamentary Oversight of Security Sector 123

Annex 3: Irish Ombudsman of Defense Forces model of complain-handling 125

Annex 4: Logic Model for the Office of the Ombudsman 126

Annex 5: Military Ombudsman Institutions: A comparative Prospective - Questionnaire. 127

Annex 6: Ombudsman of Armed Forces good practices 136

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 List of Tables and Figures

Table 1: Leadership - Management 29

Table 2: Parliamentary Oversight Powers 68

Table 3: Australian Army Summary Table 73

Table 4: Canadian Army Summary Table 82

Table 5: U.S. Army Summary Table 91

Table 6: Comparison Summary Table 99

Table 7: Australian Commonwealth Ombudsman approach - SWOT analysis 111

Table 8: Canadian Military Ombudsman approach - SWOT analysis 111

Table 9: U.S.A Military Ombudsman approach - SWOT analysis 112

Figure 1: Australian Army Symbol 73

Figure 2: Canadian Forces Symbol 82

Figure 3: U.S. Army Symbol 91

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 Abbreviations

AAF Afghan Air Force

ACOA Australian Commonwealth Ombudsman Act

ADB Australian Defense Budget

ADD Australian Department of Defense

ADWP Australian Defense White Paper

AFOIA Australian Freedom of Information Act

AIRCOM Canadian Air Command Command

ANA Afghan National Army

ANAO Australian National Audit Office

ANP Afghan National Police

ATIA Australian Telecommunication and Interception Act

CF Canadian Forces

CIA American Central Intelligence Agency

CMO Canadian Military Ombudsman

CMO md Canadian Military Ombudsman Ministerial Directive

CND Canadian National Defence

CO Canadian Ombudsman

CoA Commonwealth of Australia

COSO Committee of Sponsoring Organizations of the Treadway Commission

DCAF Geneve centre for Democratic Control of Armed Forces

DDR Disarmament, Demobilization and Reintegration

DFAIT Canadian Department of Foreign Affairs and International Trade

DISA American Defense Information Agency System

DND Canadian Department of National Defence

ENAP Canadian Ecole Nationale d’Administration Publique - National School of Public Administration

EU European Union

EU European Union

ICT Information and Communication Technologies

INTOSAI International Organization of Supreme Audit Institutions

IOI International Ombudsman Institute

LFC Canadian Land Forces Command

MARCOM Canadian Maritime Command

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MO Military Ombudsman

NATO North Atlantic Treaty Organization

NGO Non Governmental Organization

NTM-A NATO Training Mission–Afghanistan

ODEE Oxford Dictionary of English Etymology

OECD Organisation for Economic Co-operation and Development

OIG Ombudsman of the Inspector General (U.S.)

OSCE Organization for Security and Co-operation in Europe

PHSO British Parliamentary and Health Service Ombudsman

SIPRI Stockholm International Peace Research Institute

SSR Security Sector Reform

SWOT Strength Weakness Opportunities Threats Analysis

TI Transparency International

UN United Nations

UNGA United Nations General Assembly

UTET Unione Tipografico-Editore Torinese

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1
1. Introduction

Every clear efficient decision process needs transparency and then accessing to information will
provide a wide and clear data on which develop an opinion and than a rational and coherent
decision. This is the core of an effective democratic process where every person of the Country
should be in position to serve him-self of it. Secondly, transparency is important to implement the
decisions. Without transparency on the decision, its implementation is not likely to be implemented
because the informations related would not arrive to whom it may concern. This last point may
refers more with another practice. In fact, accountability, proves itself as an important and essential
element for the legitimation of a decision which primarily important of the actuation of any political
decision.
Being a sector of public interest, the Security Sector may need to be transparent and accountable in
its policy decision making process. If the main political decisions are most often accounted and
expressed in a legislative programs, operational policies does not always have the same degree of
transparency.
Transparency and accountability may find them selves in a particular situation, because they might
be in contrast with other policy objectives such as those needed for assuring security. Armed Forces
have always been viewed as a sword and a shield for its role of implementation. On one hand,
Armed Force have the capability to defend and on the other they have the capability to attack. Thus,
even if the term Security may refer to the defensive role, the capability of attacking and than
reducing Rights by the use of coercive force, ethically, should be controlled by the population of a
Nation. However, Security may allows not only defensive actions but also offensive actions, even in
a modern global panorama where major offensives are increasingly rare. Warfares, writes Von
Clausewitz, are, in abstracto, the extreme manner to achieve a political goal (2009, 33) and this
may lead to reconsider the role and the need of transparency and accountability for Security and
Defense Sectors. “A key aspect of accountability for security and intelligence agencies is that their
role and sphere of operation should be clearly defined” (Born & Leight 2005, 29). In fact, whenever
this role is not strictly defined, the Armed Forces’ agencies are potentially in charge to account what
they want to account which may be in conflict and contradict their Security mandate.
As we inset, the concept of Security has evolved and it did it throughout the last decades. Passing
from its traditional meaning of physical security it has been extended to almost every kind of
security that involves humanity. This new broad conception, now considers Security as many kind
of securities ranging from; security in the regard of Political threats like internal instability, State
1
failure, terrorism and abuse of Human Rights, Economic threats like the struggle against poverty,
filling the gap between rich and poor countries, the global recession of recent years, environmental
or man-made threats like nuclear disaster, or global ecological changes and lack of basic goods,
Social threats such as minority-majority conflicts, overpopulation, crime organizations, drug-
trafficking, black market trades, uncontrolled immigration and diseases (Fluri & Johnsson 2003,
16).
“Oversight and scrutiny of the security sector cannot remain the preserve of the government alone
without inviting potential abuse” (Born & Leight 2005, 77). In order to implement such social
controls, transparency and accountability of the actions of Military and Security Forces place
themselves as two essential ingredients because their absence may drastically compromise the
actuation of a civilian control and oversight of Governmental action which it is a pillar and a core
requisite for the Democracy process.
After the end of the World War II, western nations have seen a strong recalibration of Civil-Military
Relations (Buckland & McDermott 2012, 13) which have also led to the creation of Ombudsman
offices which are intended to contribute to implementation of accountability and transparency
practices. “Indeed, an increasing awareness of their importance to democratic governance is one
factor that explains the proliferation of ombuds institutions for the armed forces around the world in
the past half-century” (Buckland & McDermott 2012, 5). For this reason, the growing interest in
the creation of Ombudsman offices in Western Countries has brought to consider without hesitation
a comparative analysis of these Institution in order to discover their contribution to an effective
democratic process which, as it will be argued, it needs accountability and transparency from the
Government. In the end, “Ombuds institutions for the armed forces are an essential part of any
transparent and accountable security sector. As independent and impartial institutions, they play a
crucial role in preventing and responding to both maladministration and human rights abuses,
whether they affect civilians or members of the armed forces themselves” (Winkler 2012, v).
Consequently, their implementation and their effectiveness should be highly desirable for many
Countries, especially, for those who are in transition to Democracy.

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1.1 Thesis’ objective

The thesis has two primary objectives. A first objective aims principally to demonstrate the positive
and essential role of accountability and transparency in modern democracies, which are now
considerate as key factors for their actuation. The object of Democracy is the citizen which needs to
access to informations in order to control and to monitor the democratic process. Democracy is held
by citizens and, for this reason, who is called to govern should be transparent and accountable to
those who gave him this privilege.
Security Sector, which is the one among all public sectors endowed of coercive power and thus, it
has the ability, more than all others, to seriously threat Democracy should be controlled by citizens.
Moreover, the second part of the thesis in intended to investigate the types of controls and
oversights that civil society can implement in a Democracy which, not only they are able to enhance
transparency and accountability, but they require transparency and accountability for their effective
work. Thus, among all of these kind of Institutions that will be briefly introduced among the thesis,
the Ombudsman has been chosen as the object of study of this thesis because it is an Institution that
is knowing a substantial development during the last decades and, like we will discover during this
reading, it may play a decisive role concerning transparency, accountability and thus, Democracy.
In fact, the Ombudsman is in charge to train investigations which by definition are intended to
discover the true and than. Such as every over-sighting and controlling institutions, the Ombudsman
should be “independent, accessible and effective” (Hammarberg 2009, 1).
In order to have a preliminary definition of the role of the Ombudsman of Defense Sector as a
promoter and an ensurer of Democracy concerning the verification of the use of soft-laws. The
Ombudsman, as the International Bar Association (2009, 2-3) has defined in 1974, is “an office
provided for by the constitution or by action of the legislature or parliament and headed by an
independent high-level public official who is responsible to the legislature or parliament, who
receives complaints from aggrieved persons against government agencies, officials and employees
or who acts on his own motion, and who has the power to investigate, recommend corrective action,
and issue reports”. These objectives are accomplished via the development of a comparison
between three different approaches of Ombudsman of Security and Defense Sector and their
evaluation. The comparison is an abstraction which aims to investigate the advantages and
disadvantages of these approaches without developing a critical comment on their performance
which implies a different analysis’ approach.

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Lastly, which may be the most important point of this research is an attempt to demonstrate that
promoting transparency and accountability in a public sector such as the Defense and Security
which may have rightful reasons to be among the most hesitant to implement such reforms, can
forsooth a considerable added value to Democracy and to the effectiveness of security which,
paradoxically, is the main argument to sustain the unwillingness of these sectors to implement
transparency and accountability.

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1.2 Methodology

The first essential step to develop the analysis on these topics has imposed a ramarkable effort to
collect literature on the argument which have provided the tools to give the essential definitions for
contextualizing and addressing the analysis issued. The literature collected has given the
informations required to track the benefits and the social costs that practices such accountability and
transparency may add to Democracy process. This has led to consider these practices of Good
Governance as a strategical choice which implies a trade off between these two factors.
Secondly it has been shortly reviewed the main instruments that can be used in modern democracies
to enhance transparency and accountability and improve democracy’s process for the Armed Forces
Sector in general. Thus, this first part described before aims to give the essential and general
elements needed to narrow the topic. Than, it has been required to shift from the general issue of
transparency in Security Sector to the particular Institution that is supposed to enhance transparency
and accountability. Consequently, this has led to consider several types of this kind of Institutions
that are dealing with transparency and accountability issues in Security Sector where develop the
analysis. However, among all these Institutions, to the Ombudsman of Military Forces has been
accredited a very important role to assure plurality and social review and it has been chosen as the
object of the analysis.
After a first definitional part which aims to introduce the Ombudsman of Armed Forces and
particularly the Ombudsman of the Army general role and implications by giving the main features
of their activities. The second part of this second part considered instead three different approaches
to Ombudsman institutions of Armed Forces. This part is not intended to investigate in performance
issues Military Ombudsman Institutions but it is intended to discover the key advantages, best
practices and disadvantages that these approaches may offer. The results obtained are presented in
the final chapter of the thesis with a SWOT analysis of the approaches analyzed, a critical comment
about them and about the methodology used and some ideas for possible development of this
research. The “Ombudsman Institutions around the world are very diverse” (Gottehrer 2009, 4) and
this has led to considered that an evaluative performance oriented benchmarking approach may be
weak and may give imperfect results and reflections of the Institutions considered because all of
them works in a very different social and juridical environment. Thus, as the principle of equality
may argue, they should not be treated in the same exempt. Additionally, hardly ever only a single

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indicator1 linked with security sector can provide an adequate basis to develop a model of
measurement. Consequently, computing data that it is also taken in different manners - it varies by
nation in quality and quantity - into a shared model, may require a particular great effort (Schroeder
2010, 12).
Initially, it must be underlined that it might be very hard to develop a critical benchmark for giving
a judgement about the effectiveness of the Ombudsman Institution. Although it is possible to
develop some explanatory indicators which may prove the effectiveness of these Institutions such as
the ratio between the solved cases and the personnel or ratio between the solved cases and the
resources allocated or even more the ratio between the treated in-judiciary cases and the solved
cases may be weak indicators because not only the mandates of these Institutions may be
significantly different, but also the treated cases may have a different level of complexity. This is
the reason why it has been chosen a more academic and abstractive from the concrete cases
approach that has allowed a critical judgement on the qualities, the advantages and the
disadvantages that these three different approach considered may add to the Institution. The
approach that have been considered are the Australian Commonwealth Ombudsman which is an
independent institution and a broad approach because it is mandated to deal with several branches
of complaints, Canadian Military Ombudsman which is an independent institution with an
exclusive jurisdiction that is mandated to deal exclusively with the Armed Forces, and the American
Military Ombudsman that is integrated in the Inspector General of the Department of the Defense
which in its turn is an integrated audit Institution of the Department. The comparison of these three
different may be particularly relevant considering a very similar cultural and politico-administrative
background shared by these three federal Countries. However, the three approaches differ in several
exempt as it will investigated further in the research. A first remarkable difference turns on the type
of personnel employee within these Institution. The personnel of the Australian example is entirely
composed by civilians. The personnel of the Canadian example is almost entirely composed by
civilians whereas the employees of the American Inspector General are mixed among military
personnel and civilians.
So, in order to provide an exhaustive list of advantages and disadvantages of these approach it has
needed to give a preliminary explanation of the particular environment of these Institutions. Than, it
has been considered variables such as the conceptual estimation of the degree of independence, the
degree of impartiality and fairness, the degree of credibility of the review process and the degree of

1 Another major problem that can arise while trying to create some indicators for Secutiry Sector’s Agencies lies in the
relationship between empirical indicators and the concept - concept validity (Herrera & Kapur 2010, 13).
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confidentiality, the investigations’ powers and the privileges, immunities, protection and penalties
(Gottehrer 2009, 6-15) have been considered as the main term on which develop the comparison
presented in the conclusive chapter of the thesis. These variables have been chosen because they
grant a very exhaustive explanatory role in describing the effectiveness of the approach and than,
they have helped significantly to track the advantages and the disadvantages of each approach. In
order to do the comparison, some example cases treated by the Ombudsmen and published often
with their reports have helped to better understand these main comparative variables.

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1.3 Thesis’ plan

The thesis is divided into three main chapters, an introductory chapter and conclusive chapter. The
first one of the body of this thesis - chapter two - is where it is wanted to describe the importance of
transparency in public sectors and especially in the field of security. To this end, it has adopted an
approach that took into account the peculiarities and the interests at stake in the field of security and
defense.
The second subchapter of this first part is dedicated to the disadvantages that the practice of
transparency could bring to security sector in general and to the Army Institutions. In addition, it
describes the delicate needs of the defense sector and armed forces require which may be in conflict
with transparency.
Later, in order to investigate what might be the interest to follow these practices of Good
Governance, it has been described the political cycle of democracy in security sector. Instead, the to
fourth chapter of the first part is given a managerial approach with the aim to determine which
sectors may have reasons to be exempted from these practices. Consequently, it has been
investigated more deeply the need for transparency and the possibility of establishing a real
democratic control these areas that typically are more recidivist in the implementation of a
democratic somewhat more direct.
To this end, it has been required to speak in plenty of advantages that these practices that fall into a
category today called for Good Governance. This takes form in the chapter three. Even in the field
of Security they might have positive implications that promotes the effectiveness of democracy.
Consequently, it has been introduced two practices that have been established as a cause and
consequence of the existence of transparency and that are taking place in recent decades: public
oversight and evaluation. In the context of the Security Sector these practices can provide
significant benefits to the democratic process. For this reason, the first part is concluded with a
chapter that introduces a topic that in recent decades is at the center of a heated public debate: the
Security Sector Reform that includes a fully taking into account improvement of transparency.
The second part of the thesis starts with the chapter four and it has been devoted to public
oversights where is has been investigated their ability to enhance democracy. Among the many
practices that have now been developed mainly in Western nations, the Ombudsman has have a
particular and attractive interest because its use and its institutionalization is quickly gaining
momentum in many public sectors. Consequently, it has been needed to describe the general
activities of the ombudesmen. After giving these definitional elements needed to understand the

8
peculiarities of this Institution, to the case of the Military Ombudsman which is the expression of
the Security Sector, it has been dedicated the next two subchapters. In this part it has been briefly
listed the main challenges and opportunities that this Institution can make to a democratic system
and to the Good Governance of the Security Sector.
Thus, the second part of this second chapter is devoted to the three approaches that have been
described in the previous chapter of Methodology. After having introduced the peculiarities of the
Defense Sector of the three Countries considered, it has been investigated the main features of the
relevant Ombuds Military Institutions. Therefore, starting with a legal basis and an attempt to
describe their institutional environment, it has been sought to describe the role that these mediators
hold in their society.
The last part of the thesis - conclusive chapter - has two main objectives. First, to stress the
democratic function of civil control of government activities, in particular the activities of Security
Sector in an evolving and increasingly globalized World. The second objective developed in the
conclusive chapter of the thesis aims to present the results obtained from the comparison of the
three Military Ombudsman approaches with an attempt to evaluate the benefits and the
disadvantages of each approach. For this reason this chapter has been provided with a summary
comparison table. Therefore, with the precious documentation provided by the Geneve centre for
Democratic Control of Armed Forces (DCAF), it has been devoted much space to the formulation
of good practices. Lastly, it has been tried to make a critical judgment on the evaluation of the
methodology used that has led to consider many areas on which develop this research.

9
2. The Transparency relevance

“Transparency is the quality of being clear, honest and open. As a principle, transparency implies
that civil servants, managers and trustees have a duty to act visibly, predictably and
understandably. Sufficient information must be available so that other agencies and the general
public can assess whether the relevant procedures are followed, consonant with the given
mandate. Transparency is therefore considered an essential element of accountable governance,
leading to improved resource allocation, enhanced efficiency, and better prospects for economic
growth in general” (UN Glossary, s.v. transparency).

The term transparency - transparence in French, trasparenza in Italian, transparenz in German and
transparencia in Spanish - appears in the fifteenth century and it has its origins in the Latin trans -
trans and parere - appear (ODEE 1966, s.v. transparent). It is a concept that, in the complexity of its
meaning, has undergone a unique evolution to become today a topic of heated discussion and of
considerable importance for the academic speculation.
Practically, transparency has to do with the light, physical phenomenon for which the view
perceives reality. This feature some objects possess has therefore two main qualities. Firstly, the
property for which bodies allow themselves to be pierced by the light and so making the hidden
visible. Secondly, but not less important, there is enclosed in the concept of filter, for which the
bodies provided of transparency are placed between the view and other objects.
In the context of public administration the concept of transparency is defined as the quality of
clarity, honesty and open (UN Glossary, s.v. transparency) by government structures toward civil
society. Jean Jacques Rousseau (2003, 8) identified the absence of transparency as the evil of men’s
relationships that governmental apparatus are called to manage: “suspicions, offenses, fears,
coldness, reserve, hatred, betrayal will constantly hide beneath this even and deceitful veil of
politeness, beneath this so much vaunted urbanity which we owe to the enlightenment of our
century”.
In order to achieve this moral conduct, in many Western democratic legislations new social
reporting practices that reveal information relating to them have been imposted on the governing
bodies of the State2.
However, in order to understand the concept of transparency it is useful to make an investigation on

2 Already in ancient Greece, with Socrates and Plato, it started the debate of the camouflage and the ability to get to the
essence of things as they are mediated by language. A Government finds itself in the position of having to filter the
reality as it is called to return it. Consequently, the interpretation of the Government on the facts, can affect the
interpretation of the citizens who depend on it. In pursuit of this academic analysis will highlight aspects which prove
the obvious inequality between governments and citizens.
10
the definitional communication concept which has to be understood as the construction of a sense
with the purpose of interacting elements of a constitutive set. This is of particular relevance in the
political field, where communication is intended to let various components of civil society interact
among themselves and to let the civil society interact with the state with the aim of building the
sense of "living together". So, this is a process through which the actors that make up the political
system confront themselves by giving opinions which consist of information, in other words, to put
a data into a form of meaning. As a result, the political information is one of the elements involved
in the construction of "living together", which gives form and content to the public dialogue that
allows the confrontation process inherent to political communication. “Although only a few man
may originate a policy, we are all able to judge it” (Pericles of Athens 1998, 32). Therefore, civic
information is an essential resource to enable the affiliation between civil society and the State and
to enable the State to exercise its coercive power that legitimize its actions 3 in a democratic system.
This awareness has led to a process of democratization of information which are now accessible to
the public in the laws that require transparency. This process of transformation began in Sweden,
which already in 1766 issued the first of such legislation where for the first time it possible to find
what Immanuel Kant had argued as one necessary principle of Government of the res publica as
public use for peace maintenance4. Despite this remarkable evolution, the majority of the
populations of Western nations had to wait until the second half of the past century or even a few
years ago to get this right. However, France yielded this reform only a few tens of years after
Sweden, but it concerned mainly the documents’ accessibility while in the United States of America
have reached transparency only 1967 with the Freedom of Information Act (Caramazza 2009, 1).
Perhaps, no reform like transparency of public actions has changed so deeply the functioning of the
public system. Transparency has shifted the principle of the absolute confidentiality and
discretionary use of information in a system where the secret is an exception and it must be legally
justified (Pasquier & Villeneuve 2011, 107).
This is a profound change has been reconfigured the way Governments relate to those who were
once commonly called the administered which now can potentially administer the Public
Administration for their proximity and directivity. In order to identify the reasons of this profound

3 This assumption that will be reconsidered in the next chapter is contained in “Politics as a vocation” by Max Weber.
4The Immanuel Kant’s project of perpetual peace is based principally on three defined articles: every State must have a
Republican Civil Constitution, the international ordainment must be based on a federation of free States and lastly, a
cosmopolitan right that should be granted to universal conditions of hospitality (Quilliot 2002, 24).
The article that interest more this consideration is clearly the first one because assumes that all citizens are equal, free to
auto-determine themselves, and subject to a constitution that requires the separation of powers into legislative, executive
and judiciary.
11
change that has led to a new understanding of the relationship between State and citizen in Western
nations, it is useful to start an investigation with an historical perspective that will be detailed in
Chapter 2.4. The characteristic, which is certainly one of the most significant of this change in
public sector, is the way to relate with the citizens that are now considered as customers. The citizen
becomes the primary referent of public action which is now oriented toward him. In some way, his
feature makes the citizen participates because it is the guide of public action that responds
according to his needs. To this new position of citizen follows a system that empowers the
customers to make choices, enhances the accountability of service providers, allows the de-
politicization of the choices of provider decision, stimulates the innovation, capable to give the
choice between different kind of services, wastes less (because it tends to match the supply to the
demand) and finally, a system that creates a greater range of opportunity for equity (Osborne &
Gaebler 1994, 181-185).
The consequence of this new logic of value production have impacted on the models, the tools and
the technologies used by the public service (Urio & Bolgiani 2007, 88-97) that is translated into a
new and more advanced concept of Government, the Governance5 . This change is also described by
the expression Open Government6 that firstly foreknows the opening to the citizen. This concept
refers particularly to the mode of approach and the relationship between citizens and governments’
apparatus which are bidirectional because now the citizen is seen as a guide for the public action.
Implicitly, the citizen is able to participate and share the administration decision’s processes and
consequently the political ones. The second characteristic is of the Open Government it is the
consecutive transparency which is necessary for the application of this new vision. To this end,
public institutions are required to permit and facilitate the access to the citizen to their production
information. It is not simply about the free access to the documentations and informations, which is
a fundamental and inalienable Human Right 7, but also to facilitate the access to the knowledge of
the institutional environment.

5 Governance, not only embodies the notion of Government, more precisely all elements of traditional Weberian
conception of government - static, bureaucratic, centralized, work division, and hierarchical (Chevalier 2002, 309-313),
but also the process of “ruling” which refers to a new design of all activities and practices in order to apply the public
will where are required new ways to relate to a plurality and a network of new actors often decentralized and
autonomous that have provided an horizontal expansion of the public system (Bobbio, 2002).
6 “Open Government initiatives (such as governement websites) that improve information flows between government
and citizens also improve discourse - hence contributing to democracy - since they allow more access to information,
which is the key for a full-fledged public discourse” (Levi-Faur 2012, 573).
7 The free access to information and documentation is stated in the Art. 19 of the United Nations Charter of Human
Right: “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media and regardless of
frontiers”. Thus there should not be any type of interferences when accessing to data.
12
Transparency is now considered an essential practice for an accountable governance and for the
general functioning of democracy that, in Western countries, see the citizen more and more present
in political activity. The Latin root of the term accountability, which in turn comes from to account -
ad, to + computare, count - indicates to consider someone as a judge able to account an explanatory
statement 8 (Scribner-Bentam 1977, s.v. account).
In governance, the concept of accountability has evolved from its simplest definition and “core
sense of being called to account for one's actions” (Mulgan 2000, 555) but without changing in its
substance which provides a relationship between two individuals where one has to account
something. Consequently, performing accountability implies a social interaction. Moreover, the
procedure to account implies the right of authority which it is socially accepted among who are
being held accountable (Mulgan 2000, 555). It follows that the existence of such a practice is
proven only in the moment of its pragmatic concretization. In the public sector, institutions are
generally called to account for the “legal expenditure of public funds” (Salamon 2002, 524). The
concept of accountability has become particularly relevant since the beginning of the process of
streamlining the State - Lean Management - which included the outsourcing and the externalization
of many common activities of the State to private or public independent companies called now to
account 9 for their action as they provide a public service typically fulfilled by the State. Therefore,
transparency configured itself as one of the most powerful means of which public institutions have
to fulfill this civic duty that citizens have the right to expect.
In order to give the reader some concrete element to came up to a proper definition of transparency,
we can list the following qualities10 that are going to be characterized as the necessary conditions
for its rightful existence:

8 On this subject, Richard Mulgan (2000) has made​ a distinction for the different shades of meaning that the word has
become in common use. He first pointed out the relationship that exists with the term responsibility. Secondly, he
explored the concept of internal accountability by arguing the need for professional response by the entity that is called
to account. Third, he has compared the term social control of public institutions. Lastly, he has argued the role of
promoter of public dialogue that involves open discussion or an essential feature of democracy. These last two qualities
will be more fully developed in later chapters.
9 This emerging feature for public services have changed significantly the relationship between Governments and the
public are now more business-like. Terms like client, partnership, competition, cost-efficiency which typically from
private sector are became largely used (Haque 1999, 319).
10
These features have been developed on the consideration of the department of Economic and Social Affairs of United
Nations (2004) and on The Transparent Society, by David Brin.
13
 • Access or freedom to information;
• High-quality and integral records and ensure the good management of informations11;
• Investigation possibility such as journalism which is usually an effective control;
• Code of conducts for public information producers;
• Disciplinary procedures and legal restrictions to criminality conducts;
• Systemically account society about public sector decision and activities;
• Create an infrastructure where information can be easily found.

As mentioned heretofore, even in the western panorama, not all Nations have started this process
and only a few have reached a satisfactory and remarkable quality on transparency yet. Although, in
this thesis, we will try to give some ideas on purely theoretical reasons that could stop this process,
we will not deeply dwell with concrete examples. A substantial contribution to this international
process of transformation to transparency, was procured by the President of the United States of
America Barack Obama on December 8, 2009 with the Open Government Directive, which plans to
publish Government information online, improve the quality of Government information, create and
institutionalize a culture of Open Government and, lastly, to create an enabling policy framework
for Open Government (White House 2009, 2-6).
In a contribution on ethics, issues and challenges of administrative transparency, Martial Pasquier
and Jean-Patrick Villeneuve (2011, 108-109) have listed some of the common characteristics shared
by laws on transparency:

• Information can be demanded by everyone;

• Exceptions from the obligation of transparency;
• Exemptions from the obligation transparency;
• Period of time required for the information deliverance;
• Aid provided by the State to search information;
• The information can be sold above a certain threshold (often to cover the high cost of research);
• Procedures for appeal in case an authority refuses to provide information.

However, not every kind of information needs to be publicized in-time to the public. In fact, in most
of legislations that provide this practice there are exceptions that exempt certain services and certain
situations from fulfilling this duty. For the sensitive nature of the information relating to the
production process and the product offered by these services, the information related to it can be

11 The information technologies, in particular after the advent of the Internet and the massive development that digital
technologies, have transformed our society in a cibersociety which enabled business systems to implement new
administrative procedures that provide for the actor’s interoperability, in other words, to make the Government
accessible to the citizens. This feature takes the name of e-Governance which, due to its networked nature, aims to
reinvigorate Democracy in making it more direct and participative by providing the material infrastructure required
(Levi-Faur 2012, 570).
14
protected in order to guarantee of national security. This particular need seems to be the most
common reason why this sensitive information is monopolized by State (Cottier & Masson 2013,
240).

15
2.1 The Security Sector

The concept of human security has evolved rapidly during the last three decades. By the ending of
Cold War, security had already other connotations that security from the traditional definition which
lies more with the national security. The Geneva Center for the Democratic Control of Armed
Forces (Born, Fluri and Johnsoon 2003, 15) has noted three main Governmental actions devoted to
protect national security:

• Preventive action: initiatives to prevent conflicts, such as people-centred conflict resolution and peace-building
actions;
• Intervention: in extreme cases, when other efforts fail – to intervene in internal conflicts in order to protect
populations at great risk;
• Reactive action: relief action, which is necessary during or after a civil war in order to provide support to
civilians who suffer through war. This includes building camps for displaced people, granting asylum to
refugees or providing relief.

The concept of Human Security is entered in external military contexts and it has focused in other
public policies such as social policies. Although it has changed its field of action, the core concept
that stands behind security is that “security thinking should be for those who are rendered insecure
by the prevailing order” (Bilgin et al. 1998, 28) Consequently, pursuing security became essential
for the well-being of any community (Booth 1991, 7). Within the last twelve years, many
academicians have finally agreed that military security is not the only possible one. The new
concept of security is now considered as how to deal with the Human Rights protection and basic
human needs (Schroeder 2010, 8). Insecurity, writes Loubet del Bayle (2007, 58), is a feeling of
threat on people or goods which grows in unpredictable situations. Loubet del Bayle continue his
reflection by citing the conception of liberty of Montesquieu (L’Esprit des lois, Livre XII, chapitre
II) that consists in security or in the opinion about security. The objective of the Armed Forces is to
protect the physical security and not the other kind of security such as social security that are tasks
of other public sectors. Thus, the objective of Security Sector includes the risk reduction of attempts
to physical safety which on a large-scale refers to National Security.
Human security has to be understood in a broader context that exceeds from the absence of violent
conflict:

“It encompasses human rights, good governance, access to education and health care and ensuring that each
individual has opportunities and choices to fulfill his or her potential. Every step in this direction is ... towards
reducing poverty, achieving economic growth and preventing conflict. Freedom from want, freedom from fear,

16
 and the freedom of future generations to inherit a healthy natural environment -- these are the interrelated
building blocks of human – and therefore national – security” (Kofy Annan 2000).

Therefore the security sector has been reformulated12 on the basis of its new re-contextualization
that has broadly moved away from its traditional area of intervention. Consequently, it is necessary,
to provide a definition and a more detailed description of the actors involved - that will be given
afterwards - for the type of security that will be analyzed in this thesis and, namely the physical
security that is directly linked with the concept of defense. Giving a definition of defense is
however effortful and not easier as giving one for security which can be summed up in maintaing
the public order by protecting physical security. In fact, it seems easier to enumerate the field of
actions of these policies rather than give a proper definition. First of all, the field of action of armed
forces is enormous and it diverge from County by Country, so a common definition could be not
effortless. Although the utilization and the general notions of defense, national defense, or national
security in U.S., as we have already mentioned, are ambiguous. Studying the policy of defense
means anyway studying the conception and the action of Public Authorities and the internal and
international consequences in matters of management and formation of defense personnel,
management of equipments, defense organization and employment of Armed Forces (Vennesson
2000, 18).
Initially, it should be noted that although we can investigate the concept of defense, the methods,
the procedures and the actors with which it is pursued varies on the basis of States' legal system.
Thereupon, it can be considered among the principal actors, all those institutions that guarantee the
defense in physical terms of the population of a nation. Typically are responsible for this function
the Armed Forces13: Police, Fire-fighters brigades, Secret Services and the Army, institution that
will be the object of analysis of this academic inquiry. However, not all of these services have the
same rights of intervention. Only a few, in fact, have the legal monopoly the use force which,
indeed, are the ones that will affect more research of this thesis. Although in appropriate
occurrences different tasks from those typically provided to ensure the physical security can often
be assigned to these public services.
Although, “no single model of a security sector exists” (UN 2008, 6) because its particularities
varies from State to State it is possible to distinguish some common features that are shared among

12 The Security Sector changes from Country to Country and it evolves in response to changing needs and
conditions” (U.N. 2008, 6).
13A more detailed description of the actors involved in Security Sector is provided in the Annex number 1: Security
Sector’s Actors on the basis of OECD considerations.
17
countries in order to institutionalize this sector: a legal and/or Constitutional framework which
legitimate and account the use of force, an institutionalized system of governance and management,
capacities (such as structures, personnel, equipment and resources), mechanisms for interaction
among Security Actors and a culture of service (UN 2008, 6).
Like other Public Sectors, the Security Sector is composed of a public action directed by a political
will. Thus the Security Sector performance is the result of a cooperative action of politicians and
public administration (O’Toole 2007, 151) which has to be considered as the Armed Forces.
However, as we will explain with more precision in chapter 2.4, the Security Sector could differ
from other public sectors for its evident functioning logics such as leadership, discipline or
authority. In addition, the Security Sector has been recently the object of several reforms that have
allowed civilians to work together with the armed forces which have established new exigences of
cooperation within the Sector, especially for those used to run with hierarchical logics.
Consequently troubles and issues due to this fact can occur while managing different visions that
very often need to conciliated in a common will (Bucur-Marcu 2009, 8-10).
To sum up, applying the new governmental panorama to the Security Sector implies that the:

“Security Sector is not only under the direct control of an accountable to democratically - elected and legitimate
civilian governments and within which each segment is as - signed legislatively-specified roles, but also in which
the instruments of the entire security sector are people-centered, equitable, accountable, transparent, subject to
the rule of law, open to legal recourse, and capable of engendering both expert and public participation and
consultation in planning and decision-making via efficient public sector management, the assimilation of
relevant international norms, and the involvement of civil society and media in security issues” (Kinzelbach &
Cole 2007, 84).

In conclusion, the implementation of transparency for these sectors is not only influencing the way
the sectorial policy goal is achieved, but also the goal in its nature. In fact, without transparency
there is the possibility to cheat on informations given whereas with this obligation there is actually
the obligation of information’s integrity. More often this kind of cheating - giving false information
- refers to commit something at international level that is condemned by the international
community but with few repercussions. It is the case of the information given in warfares.

18
2.2 Need of Secret in Military Sector

The human being has always tried to structure and organize data from reality into knowledge.
Hence, the access to these data is a necessary condition to create a realistic representation of reality.
Secondly, it will be the consistency and quantity of data available to determine the quality of the
model created. Besides, the need to access to knowledge, it seems to be present in every human
activity.
Consequently, in all human activities that involve any kind of competition is of prime importance to
have a model of reality more precise than the opponent. Thus, the objective is twofold: to collect
data and prevent your opponent picking them up. On the one hand there is then the task of
intelligence14 which in the military sector is called typically recognition intended to reduce the fog
of war and on the other the use deceptive practices to prevent the opponent to access the
informations. In this context, the information can be seen both as a weapon and as a target,
depending on its utilization15 (Kasper 2001, 16). The war, Von Clausewitz (2009, 46) writes, is the
kingdom of the case and in any other human activity you should leave to this foreign element a free
game, because in no other activity is in continuous contact. It increases the uncertainty and disturbs
the course of events. It is therefore the task of the military genius - understood here as intellectual
ability - to reduce this uncertainty. Beginning with Sun-Tzu16 (1993, 169-171), father of military
doctrine, both in terms of conduct of operations, both in literary and philosophical speculation, to
information and not information has been recognized unquestionable importance. Sun-Tzu17 has
defined as most of planning war activities are deception and deceit. Consequently, the public
interest in transparency can be in stark contrast to the military doctrine and, therefore, it is
legitimate to wonder if in order to win a battle or a challenge the implementation of illusionary
stratagems are necessary and suitable. In fact, it has been recognized as a positive quality among

14 Intelligence is defined as “information relevant to a government’s formulating and implementing policy to further its
national security and to deal with threats to those interests from actual or potential adversaries” (Shulsky 2002, 1). From
this task, it comes the intelligence services.
15 Thus for the possession and use of information in war it can be done an analogy with the conceptual distinction that
led Carl Von Clausewitz (2009, 21-22) in his treat On War in order to illustrate the war. According to Von Clausewitz,
war is divided in two main shares: attack actions and defense actions. These two activities can be compared from one
side to the recognition and to the other the protection and defense of informations in order to distract the enemy from a
precise understanding of the situation. Notwithstanding to reduce these situational uncertainties, the defense
information systems have typically incorporated these activities within the Secret Services that have the purpose of
maintaining the information safety and catching informations related to the enemy.
16 The role of information in warfare is explained particularly in the chapter 13 which is dedicated to the Use of Spies.
17“When able, seem to be unable; when ready, seems unready; when near by, seem far away; and when far away, seem
near” (1993, 104).
19
these of a good commander which obtrude the dolus to the roman virtus, in other words, the direct
confrontation which does not imply to hide something or someone as the the deception. However,
even if we are are highlighting the disadvantages of transparency, some of the following chapters
will be devoted to analyze what would be the advantages of pursuing transparency in the fields of
defense and security. The practice of deception contains within itself the use of secrecy that is to be
considered as a binding condition to the information access.
The secrecy which is the quality of being secret is defined as something “kept from public
knowledge, or from the knowledge of persons specified [consequently, secrecy implies that
informations are] not openly avowed or expressed” (Oxford Dictionary 1973, s.v. secrecy). This
information is known by a few and for some reason it does not have to be disclosed18. Thus, secret
is amenable to no information and in order to preserve it one may resort the use of deceptive
activities which bring within its practices the concept of simulation and dissimulation
(concealment) of a truth that in state of emergency of the services of the security domain could be
wised to pursue19 . If the practice of simulation consists of inducing the enemy to believe an untruth,
the dissimulation20 consists in occulting, disguising and concealing informations and it is often not
done better than to induce the enemy to believe in the simulation (Accetto 1997, 27). Thus these
two concepts are slightly different, but very often they go together.
The impediment of such practices would deny the possibility of one of those that have been defined
among the most effective military strategies so that the U.S. Army has postulated among its nine

18 The most impressive historical example is attributable to the national secret of defense or secrecy of State which aims
to protect informations, objects or documents that should be treated as secret in the interest of national defense. The
illegal possess of these documents is a crime and it is punishable in many jurisdictions because it is an attempt to the
national defense.
19 In fact, in many legislation there is a special clause which exempt the security services safety from providing
information that may be sensitive within the duration of the emergency. Moreover, some other legislations allows the
security forces, particularly the Army, to take over the control of the Country. For the European Court of Justice (1999,
20) a public emergency has to meet these following conditions: “it must be actual or imminent; Its effects must involve
the entire nation; the continuance of the organized life of the community must be threatened; the crisis or danger must
be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public
safety, health and order, are plainly inadequate”. In order to declare the state of emergency DCAF (2003 96-97) have
listed certain international key principles: the principle of legality; the principle of proclamation of the emergency; the
principe of communication which is the obligation to inform other states; the principle of temporality which refers to
the necessary limited duration of time; the principe of exceptional treat which implies that the crisis is real and it puts
the community in an imminent danger; the principle of intangibility which aims to protect some fundamental human
rights.
20I would like to note that dissimulation is a different concept from dissuasion. In fact dissuasion is the action to bring
someone’s attention to something else which is the opposite of persuasion that means bring someone’s attention to
something. The dissuasion does not implies a dissimulation, in other words, a persuasion to something that is not true,
but it aims to convince someone to do or not to do something that it would have done. The dissimulation is not just the
action to bring the attention to something else but implies the action to dissuade someone to something not true by
occulting the truth.
20
principles of war21 , in other words, the surprise attack in operations where its privacy is implicit in
the term. On this level of analysis, transparency in this area is thusly in a difficult position. Of
course, not all the areas of the activity of this particular public service have the same need of
secrecy because the efficient delivery of the output is not affected by the obligation of social
reporting. But it is the endowment of the means of coercion that comes with the security sector that
feeds the societal need to be aware of the details of their work (Cottier & Masson 2013, 234). The
need of secrecy of Armed Forces must be considered as a structural problem to reach a accountable
government.
The war, as Von Clausewitz (2009, 10) defines, is an act of force, and assumes that there is no limit
in the use of this. Charles Darwin (1902, 44) has described in its theory of struggle for existence
that since life forms and human are destined to die, tend to survive. Where there is a conflict that
involves the manifestation of the survival instinct is therefore rewarded to every race the possibility
to carry out the essential goal to use force. Although this seems to be a manifestation of the nature
of every living being, not all wars are certainly characterized by the survival instinct 22. However,
the last decades have seen a number of regulations at both national and international level, that have
limited the fields of action of war preventing, in the most severe cases, the possibility of a war of
aggression that is not a mission peace. The practice of transparency is going to fit into this new
world context as one of those regulations that somehow de-naturalize military conflicts where the
simulation and dissimulation are essential components and favorable to the success of war. While
Western societies have a growing need for transparency, the growing dependence of the military
sector from the information for battle dominance made ​ the informations that needed protection
easier to be tamed (Kasper 2001, 26). Technological advances have allowed models that make
assumptions about the enemy to be defined more accurately and by starting with a smaller amount
of data. Consequently, the intelligence is forced to take into account an increasingly large number of
possible indicators that the enemy can interpret.

21 “Strike the enemy at a time, at a place, or in a manner for which he is unprepared” (U.S. Marine Corps 2007,
Appendix B-4) which consist to strike the enemy when he is unaware and unprepared. Within the argumentation of this
principle of surprise that is defined as a decisive factor, the effective and timely intelligence and the use of deception are
key elements that contribute to a surprise attack which the Commander should implement.
22 However, we cannot say the same for those on a battle field and fight a make war. This aspect was sadly discovered
already by Sun-Tzu where on his terrain description suggested to fight on a “ground on which you will survive only if
you fight with all your might, but will perish if you fail to do so, is terrain with no way out” (1993, 155).
21
On several occasions, military history has taught us23, and Sun-Tzu’s followers have clearly
suggested24 that all warfares are based on deceptive activities. Sun-Tzu has even devoted an entire
chapter of his work on this vision. The design and the use of the strategy then include the choice of
using these techniques. In turn, the decision to follow the practice of transparency is to be
considered as a strategic choice25 (Cottier & Masson 2013, 237). The strategy, term that comes from
the military field26, can be defined as the art of converging forces to achieve the goal of the policy
in its broadest sense (Beaufre 1985, 15-16). It is “a disciplined effort to produce fundamental
decisions and actions that shape and guide what an organization is, what it does, and why it does
it” (Bryson 1988, 5). Strategies are oriented to future and concerning the security sector, the
decision to not follow this practice is directly linked with the objective of maintaining security.
Then, the obligation of transparency brought the strategic thinking to find new methods to achieve
the advantage of surprise.
Another central focus of these recent years is evidence that nations are no longer in a position to
effectively control the flow of information directly to the public. This is easily explained by the new
conditions that are characterizing and have characterized the world in the last decades.
From the huge technological evolution that the information sector has recently known, globalization
has leveled standards and practices of shared communication and it has allowed the access to
information anywhere, anytime, and with any device (Davis 1988).
Consequently, unfettered access to information can seriously reduce technological military
advantage that some nations have over others. In order to even out the military imbalances, many
Western nations including the U.S. have typically attempted to increase their competitiveness by

23 Following the teachings of the epical opera of Aeneid, some brilliant intentional example brilliant deceptions in
military field strategy can be observed in Erwin Rommel at Tobruk where he let the British exchange his army of
mechanized vehicles for an army of tanks that he did not have, in Napoleon Bonaparte at Austerlitz where he let believe
to the two opponent Emperors who had a much smaller army of whose he had hided in the fog, in the Allies on D-Day
where they have successfully tried to hide the exact position of the landing.
24 If Von Clausewitz has described the surprise as a decisive element in the chapter 9 of his book On War, Thaddeus
Holt (2004, xi) in his book on Allied deceptions during World War II, gives it an accolade: “it won’t matter to the
enemy whether you beat him by guile or by valor”. The U.S. Army defines this military action as: “methods, resources,
and techniques that can be used to convey information to the deception target. There are three categories of deception
means: a. physical means. Activities and resources used to convey or deny selected information to a foreign power. b.
technical means. Military material resources and their associated operating techniques used to convey or deny selected
information to a foreign power. c. administrative means. Resources, methods, and techniques to convey or deny oral,
pictorial, documentary, or other physical evidence to a foreign power” (U.S. Army 2010, s.v. deception means).
25 This choice clearly admits the institutions the possibility to go even against the constraints of the law. However, as
Pasquier and Villeneuve (2011, 110) have noted, the degree of independence of an institution legally binds the
discretionary use of transparency. This is the case of the armed forces who have, normally, a high level of independence
of this judgment.
26In ancient Athens, the strategòs was one of the ten military commanders institutionalized during the magistrature of
Cleisthenes in VI Century b.C. (UTET 2000, s.v. strategist).
22
increasing their technological advantage “arguing that technology is a force multiplier against
numerically superior forces” (Kasper 2001, 30). Informations and information technology can work
as a force multiplier by leveling and equalizing differences among armies because they give access
to sensible data at a cheap cost.
Furthermore, the information is now a market product buyable at a given price. The media industry
is undoubtedly today one of the most productive sectors of Western economies and by virtue to
modern technology is capable of providing an accurate coverage quite comparable to traditional
military intelligence with the result that the military secrecy is increasingly rare (Kasper 2001, 16).
However, the medias common sense has traditionally protected the information that may endanger
the security of the nation, but often the moral duty to report the news and the competitiveness of an
industry that is in the market has made this tradition less and less followed.
In conclusion, both politically, both operational, the effectiveness in the conduct of security has
therefore many new constraints to deal with that induce this sector to find new methods to achieve
the security goal by exploiting transparency. The security industry should be subjected to the
weighted studies on how the practice of transparency could influence the strategy (Kasper 2001,
46-47) both military and political.

23
2.3 The Security Policy Cycle

Public policy is the hendyasys of public : “the people in general of all of the citizen of a political
jurisdiction such as a city or state” and policy “a standing decision by an authoritative source ... To
war or not to war is arguably the most significant public policy a government can make” (Shafritz
& Borick 2008, 7).
A public policy is essentially what governments choose deliberately to do - action - or not to do -
inaction27 (Smith 1976, 13). It is constituted of concrete measures which form the its substance. The
product of these measures is expressed in a specific program of actions to one or more public
authorities (Mény & Thoenig 1989, 12) in one sector of society and in a defined space. It includes
the decisions of a more or less authoritarian nature and it inserts itself in a general framework for
action behalf an audience that is always the population of the State and the people outside the State
concerning the policies that affect in any way the Foreign Affairs. In a policy are well-defined the
aims and the objectives that must be achieved which are oriented to the solution of a public problem
in a context of structured relations between political actors that evolve over time (Lemieux 1995, 7).
Transparency, as well as for defense policy and all other policies, falls within this conceptual
framework. Its formulation and implementation can be analyzed using a causal model of the policy
cycle formulated by Peter Knoepfel, Corinne Larrue and Frederic Varone (2007, 317) which we are
now going to summarize.
In the academic field it is possible to divide the political cycle of the Western democracies in a
causal model which consists of the analytical reconstruction of the process of public policy that can
be divided into three phases.
A pre-parliamentary phase where the Government - or other subjects, like the citizens - identifies a
problem and the population’s needs. In the first place, there is the perception of an event that causes
the political problem where is identified the injured party - input to the political system -, and
secondly there is a more accurately problem’s definition and lastly the aggregation the interests by
organizing them in different instances.
In this stage there are the commissional notes of the project committees that are designed to provide
the elements required for an open debate in the consultation process that will aim to analyze in more
detail the question referred to the political system and to provide the first ideas of the possible

27 Certainly this introductory statement that we have wrote can be a bit simplistic and overtaken within the current
panorama which states that there are public and private institutions that provide a public service of any kind. A public
policy is a sequence of decisions or activities, intentionally consistent, taken from different public and sometimes
private actors whose resources, institutional hooks and interests variate, with the aim of solving a problem defined at
political level as a collective (Knoepfel, Larrue and Varone 2006, 29).
24
solutions or actions that will be harmonized with the existing criteria. This phase ends with the
elaboration of a concrete message and a proposal for action to the Parliament - put on the agenda.
We are now at the parliamentary phase which provides further discussion and ends with the
position taken by a coalition expressed through a vote that legitimate the policy choice.
The decision will consequently be implemented if it would have passed a referendum - which is not
a scheduled practice of law in every Country. This last step is called post-parliamentary phase or
implementation and sees the Public Administration as the key player in of the public will. This last
step can be combined with another called evaluation of the results28 or evaluation of the
performance, which concerns the evaluation of the impacts of the implemented public policy.
This phase has experienced a major boom with recent decades starting from the need to have a
better effectiveness and efficiency of the outputs of a public policy. In this context, transparency is
placed in a relationship of cause and consequence of this last phase of the policy cycle. While the
evaluation of public policies implicitly requires transparency, on the other hand it has the capacity
to monitor the effectiveness of public policies and consequently making the failures of a given
policy obvious for the society and thus sparking the disapproval of the public.
Within the military context, a managerial approach may invite us to consider the formulation and
implementation of a policy in a multi-leveled view. In fact, according to Hari Bucur-Marco (2009,
7) it possibles to identify three levels of Government: strategic, operational and current to whom
correspond, for each of these three domains of intervention: policy, planning and management.
With regard to the policy, at the strategic level is placed the general national security policy and the
strategic concept of defense in that State. The formulation of these policies will produce the defense
planning directives and the strategic capabilities plan. Therefore, it is a matter of the general policy
guidelines which in most democracies are entrusted to the legislative power.
The operational level has, for its nature, more administrative than ideal character like the one of the
formulation of the policy directive and it can be named as middle management. Normally, this task
is performed by the High Command similarly to the Senior Management of any other Public
Institutions that apply to other public services. Hence, it is closer to the intervention and therefore it
must produce procedures to apply in order to achieve the policy objective. This consists in the
formulation of a military strategy, some executive policies (i.e. personnel, procurements) and a joint
service (Army, Air, Navy) doctrines.
The result of policies at operational level will be the operational plans, the development capability

28 The logic that stands behind the concept of evaluation of public policies “is concerned with (i) how, if at all,
professional evaluation is possible; (ii) its nature and its location in the organization of knowledge, and (iii) the logical
structure of its inferences” (Scriven 2007, 1).
25
programmes, the procurements programmes and the training programmes. Lastly, the current level
- which has already in itself the notion of in-time and in-the-field - is definitely closest to the
pragmatic action to achieve the operational objectives decided by the Military Command, so it has a
more tangible organizational nature. In policy terms, it deals with the following of the organization's
mission statements to which is related a job description. The result of these planning decisions that
are entrusted to the intermediate rank of defense, produces the work plans, the exercise plans and
the field operation plans.
In this phase, more than in the other, occur the concept of tactics. This concept (gr. taktikê) has an
obvious warlike derivation because it is the art of adapting military maneuver to unexpected
changes in the battlefield. The action of the different means of combat is rescheduled by basing on
the situational changes in order to achieve the determined by the strategy result. Therefore it is a
question of the executive part of the strategy that combines itself with the logistics (La Rousse
1964, s.v. Tactique). Wherefore, the tactic is aimed to identify and solve problems and unexpected
events during an operation at any level. Traditionally, both the Security and the Defense sectors
have the exigences of a rapid adaptation to environmental changes. For these sectors the ability to
fit with environment presents itself as vital manner for success. For this reason, very advanced
intelligence and logistic systems have been always implemented to support their activities. These
special equipments allow these sectors to have the necessary flexibility for a relatively rapid change
of action at every levels of strategic thinking. However, we can argue that operational changes
requires less time to implemented rather than political changes.
Every kind of support used to achieve the determined goal are physical or boundless equipments
with the aim to improve better performance and minimize the failure risk. However, their utilization
implies changes which involve risks which, in turn, involve changes. “Everyone love novelty, but
no one likes change. Change, however, is inevitable. You can initiate it, try to predict it, be swept
along by it, or get crushed as it steamrolls over you. No matter how you respond, change is going to
happen anyway, so if you don’t master change, it will master you” (Murray-Bethel 1995, 136).
Defense and Security fields have more among all the other the need to master the risk. Most of the
time assuring safety - which is their main political duty - has to deal with an high degree of risk due
to the general complexity of the operations (size, technology used, geographical dispersion, the
number of product or services involved, variables to be considered while implementing strategies,
environmental instability, rapid growth, etc). In this extent, defense and security institutions need
considerable skills of management and leadership which is today required in most today business
and other today’s organizations. A consistent part of the next chapter will be devoted to analyze

26
leadership which is “acts or actions that provide challenge and direction to team members so as to
achieve new, established or changing goals” (Eitington 1997, 647).

27
2.4 Management of Security Sector

For obvious structural differences, the Army cannot be considered on the same level of analysis of
other Public Sectors. In fact, the Defense Institution can certainly be among the most representative
cases of governmental sectors that has functioning logic of leadership. To this end, it may be
essential to make a theoretical distinction between management and leadership by putting emphasis
on a preliminary difference regarding the context and the social system in which they are inserted.
In the field of Security and particularly in Military Sector, the hierarchy and the mode of interaction
of its components are quite different from those that can be found in another common public
service.
Even though, a manager can be considered as a leader because his subordinates are obliged to
follow his directions, he does not benefice of all the characteristics that are peculiar to the military
command. With the evolution of contexts, situations and environmental changes, the leader has the
skills and attitudes to lead the group towards the achievement of common goals - goal oriented -
and not to achieve results29 which is typical of managers - result oriented. In short, leadership is the
ability to create a true emotional relationship with the members of a group in order to influence
them and lead them to overcome the individual needs in favor of common objectives (ENAP, s.v.
leadership).
Therefore, the difference that stands behind these two concepts can be considered as a consequence
of the skills that are required to fulfill its function. Following the Confucian indoctrination, different
qualities have been typified to reflect those of the capable leader. For this purpose, in the following
page it has been listed listed some of the most relevant key differences between leadership and
management 30.

29 In the recent year, also most of Public Sectors have known the exigence to implement some goal-oriented strategies
of management (Poister & Streib 1999, 308-316).
30The key difference’s table has been made according to Valeri Ratchez (2007, 34), Scheila Murray-Bethel (1995, 137)
and Jhon P. Kotter (1990, 6).
28
Table 1: Leadership - Management

LEADERSHIP MANAGEMENT
Supporting Directing and controlling

Empowering Making decisions

Inspiring creativity Thinking creatively

Ensuring understanding Listening

Anticipating problems Solving problems

Humanizing technology Implementing technology

Inspiring risk taking* Avoiding risks*

Planning Establish direction

Problem solving Inspiring people to overcome problems

Organizing and staffing Align people

Leadership is an integrating relationship Managers lead only by compelling people to follow

their directions

Leaders use passion and stir emotions in organizing The manager uses a formal, rational method of
people organizing people

Leaders think innovatively Managers think incrementally

Leaders follow their own intuition, which may be of Managers do things ‘by the book’ and follow the
more benefit to the defense institution institution’s formal procedures

Institutions are often more loyal to a leader than to a When a new leader is dedicated to changes, a conflict
manager with traditional managers may arise

The leader is followed The manager oversees

The leader believes that the organization could work A manager knows how each layer of the system
better works

* The risks question in Security Sector has become even more relevant. Of course the danger of having its security
compromised is actually what the Security Sector is intended to avoid, but particularly since the experience of Vietnam
where medias have been able to publicize the atrocities and loses a conflict, even the human resources management of
the Security Sector has known the exigence to avoid any kind of strong risk. Exactly like the purpose of the Lean
Management it is essential to avoid wastes and this can be achieved by a right risk planning which is also what military
doctrine aims to do.

29
The notion of management is typical of the private sector but it is not by few years that we use the
expression management of Public Services at the time, arguing that the organizational structure and
production modalities, such the implementation of strategic thinking tend to be more similar to
those typical fulfilled by the non-public sector (Nutt & Backoff 1992, 9-17). In recent decades the
public sector has undergone significant structural changes caused by a reform process that is called
New Public Management. The broad theoretical lines of this process of change of the Governmental
apparatus of Western systems is described in one of the greatest classics of the literature in question:
“Reinventing Government” by David Osborne and Ted Gaebler which has been used as a reference
to describe this process of change in the course of this thesis.
The input that lead the change that Public Sector has known between the beginning of Eighties and
the end of Nineties can be explained by the strong financial crisis which has invested the public
system of many occidental nations which produced the result to an attempt to modernize and to
increase its general efficiency. This crisis was derived by a bad financial management of public
resources and the petrol crisis of ’78 which has lead to a legitimacy crisis of the Public Sector. As
result, the Public Sector had needed to be drastically reformed (Knoepfel et al. 2007, 7-8 and
198-200) in the fields of: financial management and budgeting policies, ethical and professional
codes, simplification - less bureaucracy which has been considered as a source of inefficiency - and
regulation, management by Information and Communication Technologies (ICT), sustainable
development, human resource management - influenced by the leadership considerations - and,
finally, as we noted already, the Government’s accountability and the Government - Citizen
relationship 31 (Meneguzzo et. al. 2011, Gruening 2001, 7-9).
In order to meet the growing expectations of the present and future of society, the Public System
has consequently experienced a structural reformulation of the methods and procedures for the
management without wasting in the entire value chain. Some of these new logics can be found in
the most common definitions of Lean Management32 that involves a particular emphasis on the
quality of construction, elimination of waste, just in time production and pursue perfection through
continuous improvements and mutual growth.

31 This important feature, which has been characterized by the advent of accountability in public sectors has led to a
significant transformation of the of the administrative ethics affecting citizens, a drastic redefinition of citizenship in the
public service and transition bureaucratic motives and attitudes towards citizens that are reconstructing the citizens’
entitlement to government services (Haque 1999).
32With the expression Lean management it is identified an industrial philosophy inspired by the Toyota Production
System that influenced remarkably many public and private organizations for their value production (Womack, et. al.
1991 and Womack & Jones 2009).
30
Hence, Government organizations have had to face with a new kind public demand started
primarily by a lack of financial resources which has led afterwards to the end of fiscal monopolies
for some Public Sectors. The consequence of this process was an opening in the market which has
stimulated the Public Sectors involved to accept new logic of competitiveness33 where it is
necessary to take into account the performance and the costs (Massey 1993; OECD 2007, 4-5). To a
lesser extent, even the Security Sector, as other Public Sectors, has experienced this process of
bureaucratic reform whose consequence was a partial reduction of the role of the State. However,
the Security Sector is one of those public areas where the role of the State is typically central
because it is a quality and a function with which a State determine itself.
In fact, the State has typically the “monopoly of the legitimate of physical violence within a certain
territory” (Weber 1994, 310-311). This monopoly is exercised by the rule of law. Then, think to
remove the direct coercive force needs a strong regulation and a strong control since the very
existence of the State may be compromised.
Nevertheless, like other Public Sector, the Security Sector (including the Defense) has also known
its externalizations and its outsourcing which concerns mainly support activities while the core
business tends to be directly subordinate to the State34 because it seems easier to administer and
monitor their work. Nevertheless this strategical and economical decision could have some negative
repercussions on a sector where in many have repetitively doubted the democratic efficiency of
externalizations by arguing that the monopoly of force should completely held by the State because
it may erode established practices of accountability (Avant 2004, 155). Rightfully, “a rule of thumb
should be that the defense organization remains accountable” but the privatization on Security
Sector could lead to corruptive behaviors such as the awarding of contract and preferential
treatment (van Eekelen 2009, 190). Regulation of these private companies in this sensitive field can
be interpreted as a mechanism of control and it is essential to avoid corruption, the application of
rule of law and promote accountability (Born, Caparini and Cole 2006, 4). Examples of these
externalized support activities can be found in the intelligence and coordination tasks that are
starting to be outsourced to private companies. The product of these support activities is typically

33The competitiveness in which the Public Sector have been involved regards also a challenge among the same kind of
public service. This internal competitiveness where these firms are subjected is stroked up by benchmarking activities
which have known a fertile ground for being implemented. These practices mainly focus their attention to local services
such as scholarship, hospital (OECD 2007, 21) or transport. However, there are few analysis regarding the Security
Sector performance yet, especially for a Country comparison. Again, sharing these particular knowledges can influence
the general performance of Security Sector.
34However, as Willem Frederik van Eekelen (2009, 190) pointed out even some core business activities and functions
such as catering have been privatized as consequence of the downsizing of the armed forces that “has led to a
concentration on combat capability and the conclusion, sometimes mistaken, that certain functions would not require
permanent availability under operational conditions and could more cheaply be delegated to private companies”.
31
information that is processed with cutting-edge technologies. Such support activities can be
envisaged like the results of a growing dependence from information of nowadays society that
despite the massive investments that Security Sector usually requires, it might be economically
suitable to exploit private sector knowledge.
This kind of activity is the result of a strategic consciousness that “armed forces cannot conduct
high-tempo, effective operations without reliable information and communications networks and
assured access to cyberspace and space” (DISA 2013, 2).
The structural change of the State has implicitly led to the new logic for its functioning thereby in
the management modalities. Traditionally, the Security Sector and especially the Defense have a
socio-technical system vertically hierarchized where processes are typically defined by their
functionality features towards to the strategic goal. According to Richard L. Daft (2004, 80), in the
presence of a vertical hierarchy, tasks and organizational mansions in their turn are defined in
strictly delimited in clearly roles according to highly rational criteria. Ultimately, the order and
obedience are among the most obvious and distinctive features 35 of the Security Sector and in
particular for Army and Defense Sector.

35 Carl Von Clausewitz (1976, 541) in the book seven The Attack of his opera has noted the distinctive aspects that
characterize the functioning of an Army such as superior application, precision, order, discipline and fear will because
the success depends largely on these qualities.
32
3. Transparency and Good Governance of Security Sector

In the previous chapters we defined the act of pursuing transparency as a strategic choice, but in
order to be more precise, it is necessary to make a further analytical distinction. Although in many
Western legislation the transparency of public activities is a legal obligation, it is also recognized in
most definitions of Good Governance as one of its products.

Good governance entails sound public sector management (efficiency, effectiveness and economy),
accountability, exchange and free flow of information (transparency), and a legal framework for development
(justice, respect for human rights and liberties) (World Bank). In seeming agreement with the World Bank, the
Overseas Development Administration of the United Kingdom of Great Britain and Northern Ireland (now the
Department for International Development), defines good governance by focusing on four major components
namely legitimacy (government should have the consent of the governed); accountability (ensuring transparency,
being answerable for actions and media freedom); competence (effective policymaking, implementation and
service delivery); and respect for law and protection of human rights (UNPAN, s.v. Good Governance).

Therefore, good governance has brought with itself new concepts that have been applied to the
recent public sector reform among which there is the accountability which seems to be a necessary
condition to ensure good governance36 . Thereupon this concept has three basic conceptual pillars
that can be identified between transparency, answerability and controllability. As we have
mentioned, transparency aims to build a free flow of information between public administration and
the general public. The answerability means the obligation by their mandate of a part of public
decision-makers to justify the decisions as rational and reasonable (UN Glossary, s.v.
Accountability). Lastly, the concept of controllability refers to the ability to oversight public action.
As we said, the reform of transparency plays a crucial role in the modernization and
democratization37 of the State. We can reasonably draw the conclusion that its implementation
allows the participation of citizens in an arena of fair debate (Brin 1998, 172-173); the collective
and democratic control; the equality of treatment; the performance assessment and the
accountability of public managers; the fight against the arbitrary and the prevention and combating
of corruption.

36 “The following principles are the centre of Good Governance: equity, participation, pluralism, partnership,
subsidiarity, transparency, accountability, rule of law, human rights, effectiveness, efficiency, responsiveness,
sustainability” (Martinez Soliman 2005, 21-22).
37 Hereupon, Michael Byron (1998, 311) has suggested that “the dispersed availability of information and
communication technologies can be far more relevant than level of income for predicting a nation’s degree of
democratization”.
33
Thus, transparency is configured as a necessary element for a better management of the
administrative apparatus which now manages to involve citizens more effectively, making them
more participant in decision-making processes and implementation of decisions. Because of its
characteristics to fit into a process, transparency gives considerable advantages for the recalibration
of the focus of public policies. So it is not just an ex-ante or ex-post control, but also a control in the
process that allows the mid-term verification of the evolution of a project which becomes more
easily rehashed.
Frederick Shauer (2011, 1347-1351) has distinguished four main four values ​ that transparency
practices are thought to serve the community. The first added valued views transparency as
regulation because transparency can be a “form of control, and therefore a form of
regulation” (2011, 1348). In fact transparency allows society to seek information about public
activities and consequently it can cause critique which may lead to purpose of regulation. As we
introduced in the previous chapters, a second value of transparency has been labeled transparency
as democracy. Transparency over governmental processes promotes public control of the
Government which is should be public38. Thus, the possibility to control the governmental actions
has to be understood as a democratic principle. Moreover, transparency allows public debate by
facilitating better decisions. “Democracy, after all, is not about the people necessarily being right,
but about the right of the people to be wrong” (2011, 1349). Consequently, we can state that citizens
need to be informed in order to have an effective democratic process, Third, Shauer has noted the
role of transparency as epistemology arguing that the open availability of information facilitates the
identification of truth and thus it will contribute to the progress. Ultimately, he considered
transparency as efficiency. More precisely, this regards those who argue that the availability of
information allows markets to operate effectively there, where it is essential to run public
administration efficiently in the new context of the private sector participation and the openness to
the markets.
Again, it appears as a key element for a coherent reform of the Security Sector which the United
Nations are willing to pursue:

The goal of the United Nations in security sector reform is to support States and societies in developing
effective, inclusive and accountable security institutions so as to contribute to international peace and security,
sustainable development and the enjoyment of human rights by all (United Nations 2008, 13).

Despite the obvious benefits this practice allows to apply, transparency is configured, in principle,

38 Res publica
34
as a guarantor tool of democracy and efficiency in which the rule of law should not be given up
because it protects some of the fundamental principles on which most Western Constitutions have
established their own national ordainment; such as legal equality 39 or freedom of opinion and
expression40 that could be compromised without transparency.
In fact, the relationship that develops between two individuals when there is no transparency on the
information, is asymmetric. The concept of information asymmetry is a condition where the
information is not shared equally and where the possessor of a more untouched information can
easily take advantage from it. In economics, this concept is designed to explain the different
behavior of economic agents41 . Therefore, asymmetry information raises the possessor of
information and the non-possessor of information on two different levels. For this reason, the
presence of asymmetry implies a power which can be used by one of these two subjects.
It follows that the lack of transparency is the evidence of the existence of a power which can
therefore be questionable in a State of Democracy. In abstracto, no transparency could avoid the
actual implementation of democracy as the holder of this, which we have defined as an informative
power. There would be a potential condition of disparity compared to other components of the State
that should all receive an equal treatment 42. Therefore, this informative power can be viewed as the
negation of the negative freedom of Isaiah Berlin (2000, 12-13). This concept means that a person
can act without being hindered by others. To the extent that he is prevented from doing something
that he could do, he is not free, if this is reduced beyond a certain limit, he is compelled by force or
perhaps enslaved. The possibility to act of which Isaiah Berlin talks brings us to the concept of
legislative constraints that limit individuals’ actions, whereas in Democracy they are written in
laws. Whenever transparency has and exercised been pursued on a legal basis, it is an abuse of
power because the power held by someone and exercised versus someone else is able to restrict
Fundamental Rights such as freedom of choice43 . In fact, the use of power prevents access to

39 Art. 17 of the United Nations Charter of Human Right “All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation
of this Declaration and against any incitement to such discrimination”.
40Art. 19 of the United Nations Charter of Human Right “Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers”.
41 Particularly in financial field, where the forecasted risk would determine the discount rate of an investment. Some
among the most commons are risks are the equity risk, the interest rate risk, the currency risk, the commodity risk, legal
risk, repetitional risk.
42 However, we can remember the role of the legislative power which might be the strongest power in democracy
because it is the only one able to change laws and thus the rules of the game for the other two powers.
43To be honest, it should be noted that the fundamental Human Rights are very often in a bound of interdependence. In
fact, usually when one of these is violated, many other likely be violated too.
35
information which means access to a fullness of meaning and thus the freedom to develop an own
opinion will be compromised. In addition, when the balance of the asymmetry will weigh more on
one side there is no equal treatment which should be demanded in a Democracy.
As we will see continuing reading this short academic analysis, some legislations grant exemptions
from the obligation of transparency in public activities. These exemptions relate primarily to the
area of ​Security. At academic level, we can make the hypothesis that a trade-off between the need to
ensure the safety and the moral obligation to maintain transparency to run an efficient democracy
where it is required by law exists - De duobus malis, minus est eligendum. Therefore it is a question
of weighting the collateral effect of not following one of two - or more - contingent rights44 that
have led to the predominance of one over the other. Furthermore, it is in the national interest to
preserve the safety of citizens at the cost of sacrificing other rights - Ratio publiqae necessitatis.
Hence, the causae necessitatis to adopt a behavior in contrast with other rights is to preserve public
security which has been weighted more important than transparency. To be completely honest, the
foundations of this theory can also be found in the Ragion di Stato, which in the domain of
transparency, is expressed in the majority of current cases with the Secret of State and which
justifies the existence of the secret service45.
At this point it may be interesting to investigate more deeply into the work of the Secret Services. If
their existence is justified by the necessity to protect the interests of the State, such as security, their
actions may be a dubious justification. If, in fact, the activity of secret security - which is usually
preventative - it is a secret action and so it could be hard to control. However, at least at its
beginning the secrecy is normally maintained up to a certain point. So, it would be avoided an ex-
ante and within the process control we discussed earlier. As a result, it is possible that transparent
ex-post information may be challenged in its integrity because in the time delay with which
transparency would be achieved, there is de facto the possibility to tamper with the information.
Previously we talked about the concept of Ragion di Stato in a legislative contextualization because
the law is the manner in which the common will expresses itself. However, we can apply this
concept to the strategical thinking and thus to the operating part of management which does not
require law to express itself but orders and directives. Ragione - reason in English - can show the

44Particularly, within International panorama with the Art. 3 of the United Nations Charter of Human Right: “Everyone
has the right to life, liberty and security of person”.
45The reason of State (Botero 1997, 7) - Ragion di Stato - is the knowledge of means by which such a dominion may be
founded, preserved or extended. Consequently, the decision to implement or to not implement transparency is linked
with the will to preserve the State because, as we are highlighting in this research, the implementation of transparency
can undertake the preservation of the State by attempting to its security.
However, if we take a closer look to the Botero’s definition, we sink into the word knowledge which, in our case, could
mean to avoid the knowledge of some means used to reach a political objective.
36
capacity of rational thinking which is a distinctive human characteristic. It is the functional element
of human intellect which allows the logic to operate with which humans are able to plan and relate
themselves to the future (Robert 1993). Consequently, this human feature is implied while using
strategical thinking. Public services empowered of a discretionary power whether using
transparency could pass through this rational evaluation of possible consequences in the future. In
order to be more precise, it is useful to note that institutions that are not legally equipped with this
discriminatory power can decide to not follow the requirement of transparency. No matter what
were the reasons for the strategic choice to abuse of this discretionary power - admitted that they
are in charge to use it -, these institutions would pass through a rational evaluation of possible
consequences if it is not an administrative error.

37
3.1 Introduction to Controlling and Oversighting the Security Sector

Generally, public representatives rarely accept the verdicts of good grace and the results of
controlling and evaluations (Braibant, Wiener and Questiaux 1974, 250) because their purpose is in
fact to investigate system failures that could, as we mentioned earlier, lead to a crisis of legitimacy
of the public action which can lead to a political debate in order to solve the problem occurred.
Consequently, this is an inevitably unstable situation that no government wishes to have46.
In democracy, the surveillance on public action has its field of action in the work of the three
powers: legislative, judicial and executive. The control over the legislative power is the
Parliamentary control - Governmental Audit Office (GAO) or a similar Institution charged to audit-.
Although some legislations provide a parliamentary scrutiny for the laws and decrees of the
legislature, the successful control of these emanations is still quite rare because each act produced
by the legislative process is constrained by the Constitution. Therefore, it is about the legal control
of law because it has not yet been implemented to the limit of the feasibility of the proposition.
Therefore, it is rare that a legislative act could be unconstitutional, but nevertheless, this function of
high vigilance, in Countries that require it, however, is carried by a support body to the Parliament
or to the Chambers.
The feasibility of decisions implies control over finances and resources that have to be considered
as the inputs to activate the process of implementing a Public Policy. The scrutiny over it has to be
understood then as the second step of the cycle of Parliamentary control. According to Fred Frorath
(2009, 116-117), in defense management, the practice of auditing indicates the control of the
financial components by using a mathematical calculation which should prevent bookkeeping
errors, avoid waste, following finance procedures and avoid illecit money business and corruption.
In order to carry out a proper financial controlling, Frorath noted six prerequisites:

• “Time period (fiscal years) ;

• Transparency, correct accounting ;
• Specialization and exclusiveness, identification of budgeted amount per title/ number and specific description
of the purpose or the programmes ;
• Comprehensiveness of all expected expenditures and revenues ;
• Special identification of mid- and long-term planning items and the expected cost, expenses, revenues ;
• Seriousness, accuracy and reliability of financial data”.

46 However, this consideration is questionable because as it could lead to the assumption that in a society with deep
collaborative ethical roots, these control procedures may justify public action. Nevertheless, in both cases, the new
decision would be met with greater consensus.
38
Subsequently, the Parliament will discuss the audit findings of the audit committee “in the presence
of an undersecretary of the Ministry of Defense or Ministry of Finance, the Budget Director and the
Chief of Armed Forces” (Frorath 2009, 117). A close and transparent cooperation with the Audit
committee and the Parliament is, therefore, necessary because the auditing process can be
influenced by other general policies and personal intentions such as other military, security, private
or lobbyist interests. Consequently, this particular committee can only perform its constitutional
duties on the basis of a transparent internal documentation.
The second type of supervision regards the judiciary power. However, it is rare that this power is in
fault because the activity involves in itself a control and a verification of the situation based on
laws. Therefore it is a process that feeds automatically on itself on instances by hierarchy of
judgment.
The third and last case is the control of the executive power which has the object of controlling the
operations and the management of activities for the implementation of a Public Policy. The
International Organization of Supreme Audit Institutions (INTOSAI) has defined control - audit -
and surveillance as a review of operations and activities of a public entity in order to ensure that
their functions are executed in accordance with the Policy Objectives, budgets, rules (laws and
deliverance) and standards. The purpose of this review is to identify, at regular intervals, the
differences that may require the application of corrective measures.
This kind of control can be divided into two forms: internal and external. Internal control is an
integrated process implemented by managers and staff of an organization. It is designed to address
the risks and provide reasonable assurance regarding the goal achievements in the context of the
organization's mission and goals such as executing orderly, ethically, economically, efficiently and
effectively; compliance with reporting requirements - compliance with laws and regulations;
safeguarding resources against loss, damage and poor use (INTOSAI 2007, 7). The internal control
is the result of self-regulation based on a sense of moral obligation where its deviance would bring
to a guilty feeling (Loubet del Bayle 2007, 60). However, the appellation internal may therefore be
misunderstood because it does not necessarily mean that the control cannot be institutionalized even
if there is this moral obligation.
Inversely, the external control is the result of some social pressures to push individuals and
organizations to deal with established norms and rules (Loubet del Bayle 2007, 60). It is
implemented by an external and independent entity that firstly is intended to give an opinion on the
accounts and financial statements, regularity and legality of operations and / or financial

39
management. Secondly, to compose the corresponding reports (INTOSAI 2007, 67) which is made
generally a posteriori. Usually it has a judiciary, technical and political character (Braibant, Wiener
and Questiaux 1974, 261). The external control, in most Western democracies, can be defined in
two areas. First, at the institutional level where the control is implemented by an appropriate
committees of experts formed to judge the performance of the work of public administration. These
courts are often to support the legislation in the political process. The second is a consequence to
the obligation of transparency that, understood as total accessibility of the work of the public
administration, becomes the instrument “par excellence” for the social control by the Citizens
(Cottier & Masson 2013, 236) and therefore it has to be considered as an external control.
The guide of ​ by INTOSAI is made for the control of the executive power which represent the most
popular activity.
So we can conclude this first part by noting the difference that exists between the evaluation of
Public Policies and audit practices. Although it can be very confusing to make decisions in reality,
in the first case the activity of control is necessarily made​ ​ ex-post, while in the second control is
integrated in the process. Therefore transparency has an additional feature of these two devices
because, although it is a condition so that they can be properly activated, it allows, as we pointed
out earlier, the civil control of public activities.
If monitoring performed by the high vigilance commissions is done in the majority of cases to
check the constitutionality of the acts, the audit to the executive has a much broader scope and yet it
cannot ensure the achievement of the general objectives set out from above. However, it can reduce
the probability of not reaching them. It should be noted that most kinds of controls are a human
activity and therefore are subject to errors of judgment, interpretation, distraction and/or
transgression. Moreover, it is bound to the financial budget. As a result, the benefits of the control
should be related to their cost (INTOSAI 2007, 14-15). Consequently, we can that the reason to
implement a control system is linked to the necessity to minimize the risk of not achieving the
objectives of the policy. Therefore, the setting of clear policy objectives is a prerequisite to
designing an effective control process that is subject to organizational changes and it is therefore
dynamic. Recently, many public sectors have started to deal with the problematic of risk
management. The ways to deal with it vary between States and domains of risk within a single State
(Hood et. al. 2001, 5).

40
Although the control may be preventive and / or of detection47, it is situated in the process. A good
control system must have timely access to information concerning the internal and external
environment because they are an essential component for its effectiveness. It follows that
transparency is a prerequisite that cannotcannot be waived. Together, these activities are often
interdependent in their application and they range their focus of analysis throughout all the policy
cycle. However, a semantic distinction may suggest that the control activity can refer mainly to the
inputs and therefore the means for the implementation of a Public Policy while supervision may
refer to all the process taking particular account of the results (outputs) and the impacts - while
evaluation activities on the other hand take into account the outcomes48 and their analysis can
consider the whole policy cycle.
On this subject, the Committee of Sponsoring Organizations of the Treadway Commission (COSO
2008, Appendix 1-3) has developed a framework in order to apply an effective internal control
which can be applied to both the Private Sector and the Public Sector and therefore also to the
Security and Defense Sector. This conceptual model can be applied at any level of strategic process
and it implies firstly to identify the objective setting to achieve and the event to analyze. It consists
of five interrelated components: control the internal environment (integrity and ethical values, board
of directors, management’s philosophy and operating style, organizational structure, financial
reporting competencies, authority and responsibilities and human resources), risk assessment
(financial reporting objectives, financial reporting risk, fraud risk), control activities (integration
with risk assessment, selection and development of control activities, policies and procedures,
information technology), information and communication (financial reporting information, internal
control information, internal communication, external communication) and monitoring (ongoing
monitoring and separate evaluation, reporting deficiencies).
To what it may concern, the managerial peculiarities such as discipline and the methodology of
implementation of decisions in the Defense and the Security Sector can somehow reduce the need
of internal control. Except structural constraints, the failure of the implementation of a decision due
to internal factors may have obvious pragmatic evidence that could be traced to insubordination.
The armed forces are assumed to follow orders. The discipline required for this method of control is

47On this subject, Guy Braibant, Céline Wiener and Nicole Questiaux (1974, 223 and 261) suggest us a distinction: the
preventive control - contrôle préventif - aims to avoid that the administration and the public entity act arbitrary in
violation of the law or to detrain the citizens’ rights. However, most of the times, this kind of control leave the
possibility to abuse and to commit errors that they cannot be censured after a decision or an action of a control of
detection - contrôle correctif.
48 Very often the consequence of an evaluation is the will increase of outputs and this may follow two main logics:
reaching a given level of output whit less amount of resources or increase output with a given amount of inputs
(Munnell 1992, 191).
41
a vital feature for the functioning of the system. This assumption is meant to underline the fact the
higher the discipline required in a sector, the greater the safety of implementation of decisions, and
therefore, less is the need to control the internal conduct. It is perhaps for this reason that objectives
and results in these areas have a greater value.
As we noted already in the previous chapters, security and defense issues are publicly
acknowledged among the most critical issues for a country and its population. In addition, for goal
relevance, the size and complexity of these sectors requires a tremendous investment effort to
ensure safety. Consequently, the auditing and controlling of these areas are part of a sensitive
context, but nevertheless, they can still contribute effectively to improve performance. In the
following page, it a list is presented based on the assumptions of Fred Frorath (2007, 119) on the
benefits that auditing and controlling can have on the field of security and defense:

• To achieve the goals of political security and the defense concept ;

• To keep the balance between security and other missions of a country, e.g., social life, education, economy ;
• To control the state budget following not only input, but also—and even more importantly—its output and
outcome orientation ;
• To freeze, unfreeze, cut or increase parts of the budget ;
• To provide the ‘public good security’ or the product ‘security’ while following the principles of economy and
good governance ;
• To fix clear regulations, including auditing, in a ‘Budget Code’ and other state laws and regulations ;
• To define responsibilities in the budgeting and the overall defense resource management process ;
• To provide a transparent, serious, reliable budget to the public, the parliament, the national ministries, the
security forces/agencies and international partners ;
• To build a level of confidence and improve cooperation with partners ;
• To educate, train and motivate financial management personnel to fulfill the described obligations and
missions.

Finally, the control and necessary transparency for its execution can be consciously defined as a
necessary practice to ensure a democratic control of the armed forces since they possess the
possibility to use the most tangible form of power form which in democracy should be subjected to
the people. This aim has become of interest to many international organizations thanks to the
conscience of the significant benefits that a wise reform could bring to the sector. In this regard, the
European Union has argued: “Security sector reform will contribute to an accountable, effective and
efficient security system, operating under civilian control consistent with democratic norms and
principles of good governance, transparency and the rule of law, and acting according to
international standards and respecting human rights, which can be a force for peace and stability,

42
fostering democracy and promoting local and regional stability” (Council of the European Union,
2005, 4).

43
3.2 Transparency’s role in the Security Sector Reform49

After the Cold War, a new kind of scope of military intervention has been known passing from
coercive wars to consent peace enforcement and peace keeping operations (Fitz-Gerald 2003, 6-7)
which has helped to develop Disarmament, Demobilization and Reintegration programmes (DDR)
according to the new needs of the operations. Therefore the agenda of politico-military intervention
has changed by adding new phases to the conflicts such as “post-conflict development” or post-
conflict reconstruction” (Fitz-Gerald 2003, 3) which lead operational corps to manage these phases.
The mode in which force is utilized has drastically changed from combat (i.e. Gulf War, Vietnam,
Korean War) to a use in self-defense only (i.e. Afghanistan). Since the end of the Cold War, a
growing interest for Security Sector Reforms (SSR) has found a particular space of debate by
politicians of Democratic countries (Van Eekelen 2009, 189). This kind of reform brings benefits
not only in fragile states where the aim would be to prevent the conflicts, but also in countries with
a more stable environment. Security Sector Reforms are multi-disciplined and, for their complexity,
very often involve the collaboration of several public sectors (Fitz-Gerald 2003, 3). Ultimately, the
United Nations are pushing states to implement this reform in order to pursue their collective
commitment “to protect civilians and those most vulnerable to violence on the basis of the rule of
law” by emphasizing a new comprehensive approach of the Security Sector for a sustainable peace
based on international collaboration (U.N. 2008, 4). Many international organizations, NGO’s and
politicians at a national level assume that security configure itself as a necessary precondition for
sustainable peace.
Finally, the Security Sector Reform “describes a process of assessment, review and implementation
as well as monitoring and evaluation led by national authorities that has as its goal the enhancement
of effective and accountable security for the State and its peoples without discrimination and with
full respect for human rights and the rule of law” (U.N. 2008, 6).
The aim of these reforms is to increase the ability of a state to deal with internal and external needs
concerning Democracy and Good Governance, Human Rights, transparency and the Rule of law.
These kinds of reform projects now widespread and supported by numerous interventions of non-
governmental international organizations not only aim to establish a system of security and stability,
but also to ensure the well-being of the population. Reforms at the national level should have a
benefit in terms of regional security because they should improve collaboration and trust between

49 This chapter has been developed ob the assumption of the United Nation’s directives Securing peace and
development: the role of the United Nations in supporting security sector reform of 2008 and the Council of European
Union’s draft on communitarian concepts to support to Security Sector Reform of 2005.
44
Countries50 (Council of the European Union, 2005, 9-10). However, this kind of reform is not an
immediate change, but it is a slow process that needs time to make radical social changes.
Consequently, it requires a substantial period of support.
The relevant areas of this kind of reform range from civil and military support of countries in crisis
to internal institutional reforms. Therefore, it is important to define a general defense policy where
Armed Forces, Police and other institutions of public order kind have clear defined roles51. All of
these Institutions should be organized in a way that includes the political (parliamentary) and
civilian control (oversight on budgeting and administration transparency). Secondly, there is other
main issues that are more operational where it is necessary to clearly define the planning procedures
concerning the training and the equipments 52 of Armed Forces which should be consistent with
Human Rights, International law, gender issues, etc. The Security Sector Reform also has the
objective to assure a fair Good Governance structures. Reforms such as military and security
activities of monitoring, mentoring and advising that should ensure compliance with the objectives
of justice and Rule of Law.
As we have discussed, “transparency in conjunction with accountability is the essence of
Democracy” (Van Eekelen 2009, 185). For this reason, the system that these reforms are intended to
implement has blatant positive feedbacks regarding the effectiveness of transparency that should
include oversight and budget control, administration transparency and accountability, as well as
political control. In fact, it is commonly thought that the use of democratic control over the armed
forces can legitimize the action of these institutions. The public awareness should make people
more involved in decision-making consequently allowing the populatio to legitimize their will. The
population would be more involved - political-institutional system permitting - by voting and by
indirect means such as the resistance of public opinion53 . Once again, “the more transparency and

50If we take a quick look on the Cold War or every pre-conflictual phase of greater wars, we can easily find that nations
that would be possibly found in conflict attempted to level up the armaments difference by rushing to arm their nation.
This is the heart of the security dilemma. As we have defined the objective of the armed forces is to provide a general
sense of security, military capabilities that would ensure the safety of one, could unintentionally affect the safety of the
other (Vennenson 2000, 16). Therefore, an international cooperation on this field should be required.
51This issue has a particular growing importance. Specially for the Army that has known within the recent years several
new activities concerning the whole spectrum of war. More precisely in peace keeping missions where soldiers are
becoming “guard soldiers” and they have to deal with many new situations typical of terrorism warfare such as guerrilla
(van Eekelen 2009, 189).
52The outcome of military requirements of a political decision-making process “in which past experience, new strategic
and tactical insights, new technological possibilities and the capacities of potential adversaries are taken into
consideration” (van Eekelen 2009, 192).
53Transparency and accountability practices allows the inefficiencies of a sector to be more easily under the scrutiny
and the judgement of public opinion.
45
accountability, the better chance of maintaining public support for the military” (Van Eekelen 2009,
187).
In order to implement a rightful Security Sector Reform, Joris Voorhoeve (2009, 188) has
distinguished eight different Rule of Law requirements which should be considered:

• All laws are applied equally to all citizens, without discrimination based on legally irrelevant personal or group
differences among the citizens ;
• The right to fair trial is guaranteed to all ;
• There is no arbitrary detention, no torture and cruel, inhumane treatment of detainees/prisoners ;
• All laws are openly promulgated and can be scrutinized by the citizens and their legal aids ;
• There is no retrospective application of penal laws ;
• The judiciary is professional, intellectually independent and impartial ;
• Authorities derive their powers from laws; their policies, decisions and implementation are also under the law ;
• All law enforcement agencies are given adequate means to perform their tasks.

Another main issue that Security Sector Reforms aim to solve concerns the financial and budgetary
activities of the Security Sector which may need a massive reformulation of the process in Western
Democracies. In this domain transparency, accountability and democratic control by Parliament are
not usually satisfied. Especially in the Military Sector, Governments usually achieve transparency
and accountability by giving an adequate level of budget details but very often it is possible to find
some guidelines about informations of their work which are kept confidential. The extreme case is
the Secret Service Sector where being aware of these details seems to be very challenging (Van
Eekelen 2009, 187). Even if the Military Sector is accepting to be more accountable in the way
goals are achieved, the process seems to take more time to have transparency and accountability
fully implemented (Van Eekelen 2009, 185).
A peculiarity of the Security Sector if compared to other public services is that no one has the same
running cost as Defense. This characteristic enhances the civilians’ desire to know the type of
investments. Normally, the field that create more social problems is not the budgeting - which is
political issue -, but the allocation of resources - which has more to do with operational activities -,
as we have said, it is often inappropriate for the execution of the tasks of defense (Van Eekelen
2009, 186). In financial allocation of resources, a most common problematic that affects the
political system in these kinds of decisions is knowledge asymmetry between politicians and
operational commanders about an Army’s need for a particular weapon. It is obvious that internal
as external transparency is important in order to weigh the exact need. Normally, informations
concerning the military budget and resources planning can be found in military White Papers. This

46
lack of precise knowledge from politicians concerning the military needs has effects in
parliamentary effectiveness of over-sighting and controlling military requirements which allows
lobbies related to the Security Sector to dictate the “rules of the game”. The strong presence of
lobbyists in the Defense Sector which depends on military industries allows the existence of
corruption54 in order to obtain contracts and mandates. Although there are no indicators that state
that people working in the Defense Sector are more likely to be found in such punishable behaviors
(Van Eekelen 2009, 198), the enormous money flow could tempt many to easily turn to black
financial transaction.
The problem that stands behind the budgetary and resources allocation in the Defense Sector is that
there is a strong national interest to hide some sensible information which jeopardizes the
implementation of these transparency and accountability practices. As we mentioned in chapter 2.1,
in the power game there is no transparency but information asymmetries that countries hardly ever
like to forsake. In fact, it is tough that it is possible to increase internal security by increasing the
external security especially in a new war frontier such as terrorism. On one hand, as we noted, this
may lead other protectionism of national interests which may evolve in the worse case into
nationalism, and on the other hand, could enhance collaboration with partner countries in order to
improve external security. Rousseau’s fear and suspicion might be overtaken in a trustful
international community based on cooperation and activity coordination such as those being
developed by the peace and joint operations in recent military campaigns especially against
terrorism.
One of the first efforts to make states aware of these democratic needs was made by the Code of
Conduct on Politico-Military Aspect of Security publicized by the Organization for Security and
Co-operation in Europe (OSCE) in 1994 that attempted to redefine a shared security conception
among European States and speed up the cultural change process required for a common Security
Sector Reform. Every practice suggested by this code of conduct should be considered as pillars to
build a Good Governance system. In order to be more precise, the section VI animate the

54 A way out to define Good Governance, is the absence of corruption (Levi-Faur 2012, 147). For Robert Klitgaard
(1997, 500) corruption is possible only where there is no accountability. On this topic he introduced the formula: C = M
+ D - A. Corruption equals to monopoly plus discretion minus accountability. Nevertheless, corruption grows where
public ethic values have degenerated (van Eekelen, 2009, 196), one of them can be the moral duty of accountability.
47
willingness for a regional cooperation55 in order to prevent conflicts and other kind of aggressions.
Section VII underline the need for the democratic control of armed forces both for budgeting and
resources allocation by protecting fundamental rights. Section VIII aims to strengthen and
legitimize the peace keeping missions. Shortly after in 1996, the United Nations had expressed their
position concerning the National Security, Freedom of Expression and Access to Information, in the
well-known Johannesburg Principles. These principles aim to conciliate the fundamental rights of
freedom of opinion, expression and access to information to the particular needs of the Security
Sector. These principles grant and legitimize the possibility to limit the free information flow in
order to preserve Security by stating in the principle number 25 that none of these restrictions
should be considered as a limitation of any Human Right or freedom recognized in any level of law.
The Johannesburg Principles can be considered as a first world wide attempt to conciliate the two
contingent rights: the freedom of information and the need for secrecy in the Security Sector
(Coliver 1999, 1).
The need to maintain secrecy for some security issues has been welcomed by 136 Countries
(Coliver 1999, 6) which have allowed their governments to grant the restriction of information to
the Security Sector in order to protect a legitimate national security interest. The restriction must
have a genuine purpose and a demonstrable effect (U.N. 1996, principle 1.2) and it can be
established only if the following conditions have been fulfilled:

(a) the expression or information at issue poses a serious threat to a legitimate national security interest;
(b) the restriction imposed is the least restrictive means possible for protecting that interest; and
(c) the restriction is compatible with democratic principles (U.N. 1996, principle 1.3).

Although, it is very ambitious to implement these kinds of reforms at a local and national level
without a common international effort, the premises for these radical changes may correspond to the
update of the strategic concept of defense which resulted in a new common attitude of joint crisis
management at international level which, hopefully, will lead to a joint world structure for common
defense.

55 The international security cooperation is actually a concept of broad interest in international affairs. Like allies
involved in a warfare, a cooperation between countries in Security Sector requires a good sharing of informations in
order to be effective. Transparency about cooperative actors is so an essential feature. Moreover, it is assumed that
military cooperation which can be considered actually like international alliance for maintaining human security should
be able to prevent conflict. For this reason, it is developing an international cooperation that is gradually putting the
military under the command of international structures that would ensure regional protection. Examples of permanent
international units are the 1st German-Netherlands Corps, Baltic Battalion (Lithuania, Estonia, Latvia), Polish-Danish-
German Corps, Multinational Engineer Battalion between Slovakia, Hungary, Romania and Ukraine TISA Battalion
(Born, Fluri and Johnsoon 2003, 52).
48
The international efforts to accomplish valid concepts and theories advises the development of
many Security Sector Reform approaches, however, these concepts have been implemented in
practice is still not clear (Fitz-Gerald 2003, 2) and in case of failure those international donors tend
to attribute the cause of failure to a lack of political will in these States where contrarily there may
be other reasons impelling. Hereof, Laurie Nathan (2004, 2-6) has classified the main obstacles to
the Security Sector Reform for these democracies while trying to implement these reforms. Firstly,
a problem of complexity may occur due to the large number of complementary and simultaneous
policies that need to be reformed as well. The burden of these reforms would require a great effort
of reorientation in other areas of political intervention. This issue has an impact on the
organizational, managerial, financial and planning field. Secondly, there could be a problem of
expertise. In most cases it is the lack of technical expertise that reflects a very high risk for not
achieving the objectives of the reform. Thirdly, she has noted a problem of capacity. This issue is
linked to the lack of efficiency and effectiveness in institutional structures. No matter how good are
the intentions for a reform of the security, the inability to transform the values​ of democratic
principles into an operational plan may not lead to significant changes. The inability to apply the
guidelines of reform would leave the society in the previous situation of insecurity. Another
problem that has been listed is the resistance to change56 that is expressed elapse by some
politicians and for security services. It is particular of conservatives in States that often live in
conflict where the role of the military has a huge social burden. Leading to widespread social
insecurity that often occurs in forms of violence that decrease the general security of the population.

56 This characteristic is also enhanced by the international environment and in-country and internal power relations.
49
3.3 Public Oversights

As already mentioned, transparency is one of several mechanisms that legitimizes public action
(Pasquier & Villeneuve 2011, 107) and even if it is a practice that is experiencing rapid
development, it is still a challenging goal in many emerging democracies. Although it is true that
Democratic Governance depends on the ability of citizens access to information, therefore being
transparent if does not guarantee that the public has a voice on the operations of formal
Government. In order that the citizens’ voice could have an active part in the participation of
democracy, it must be legitimized and formalized in a supervisory role able to interact with the
government. Thus, to create an equitable and transparent system of oversight, it is important to
institute an empowered, aggressive and independent citizens' body which implies the freedom of
association. Especially in emerging democracies, constraints to implement an effective citizens
participatory body can be observed in non effective Government’s transparency and in an
inadequate possibility of freedom of association (Steiner 71-72).
A principal constraint to implement an oversight on Armed Forces is the sensible nature of
information resulted after a control practice which may be in contrast with the secrecy needed to
protect national security. In addition, the Security Sector has in general few alternative sources of
information that bind Oversight Institutions to depend on the information which is usually given by
the Security Sector (Caparini 2007, 18-19).
The term Public Oversights can be identified with all those practices and mechanisms that are
implemented by citizens or by independent agencies to ensure the oversight on the Government's
actions. Thus, they can be called Civil Oversights which are normally “civil society groups, media,
think-tanks and research institutes” (Born and Leigh 2005, 15). The difference lies between the
control that we have mentioned earlier is mainly its purpose. Even if a control can be 360 degrees,
generally regards the overall performance, while public oversights have a more legal purpose such
as the prevention of corruption, the creation of trust in government and the fostering of better
transparency and accountability. Like other accountability practices that we have described in this
research, Public Oversights configure themselves as an important tool to run effective democracy.
The aim of oversights which have a watch dog function are essentially what we have described as
controlling in the previous chapter that straddle themselves in the process whereas the aim of the
evaluation is a review which is made ex-post. (Caparini 2007, 8).
Participatory Governance (1-2), which is a global initiative to improve citizens’ participation, has
classified some of the most common tools used for public assessments:

50
 • Local Governance Barometer which involves citizen’s participation in governing authorities by offering means
to determine which institutional need should be strengthen in order to achieve good governance by focusing
on six attributes of good governance viz. effectiveness and efficiency, rule of law, accountability,
participation, and equity.
• Citizen Advisors which provide citizens with informations concerning their rights with free and independent
advice about how to defend their rights.
• Citizen Oversight Committees for any level of government which guides and oversees government activities or
to act as a watchdog over public services.
• Social Contracts for Political Accountability which are covenant-type agreements between citizens and elected
officials with the aim to promote an accountable governance.
• Integrity Pacts which are a special tool developed by Transparency International (TI) mainly focused on
transparency, equity and accountability for preventing corruption in public contracts.
• Public Litigation involves groups of citizens to take legal action against government or institutions illegal
actions.
• Ombudsman which is a mediator between civil society and governmental institutions.

In conclusion all of these practices play an important key role in increasing transparency and
accountability of Governments’ actions, involving civil society participation in governance
processes by enhancing cooperation and synergies with the Governments’ actions and improving
public sector efficiency and democratic effectiveness. The accountability practice, in its narrow
sense, does not have the capacity to impose sanctions. Nevertheless, some of these accountability
mechanism has the possibility to impose sanctions (punishment) when an improper behavior have
been found and they can be considered among the most effective and strongest form of
accountability (Caparini 2007, 9).
Andreas Schedler’s (2007, 10) tri-partite model of accountability of Public Institutions presents
advances three different hypothesis on accountability dynamics. Horizontal accountability, which
implies a relationship among equal, vertical accountability which refers to the relationship among
unequals parts in their power relations and involves the concept of hierarchy and, lastly, the third
dimension which refers to the role of international and non-governmental actors. All of these types
of dimensions can be flanked to what we have defined as external or internal transparency which
can occur for every Schedler dimension. However, the possibility to sanction improper behaviors
can overcome not at any dimension but both for internal and external accountability. In fact, the
third dimension type has not the power to sanction improper behavior whereas international
sanctions such as the United Nations has to be considered as a vertical dimension due to its
sanctioning power. Lastly, the horizontal dimension is not likely to have sanctioning power but it
can be used to start a juridical action against a superior authority which is defined by a vertical kind
51
of relationship. Public Oversights are usually complaint to the third dimension but depending on
their legal status they might also occur within the other two dimensions.
Although these public actors are helping Governments reach a high degree of transparency, which
has undoubtedly expanded the scope of investigative journalism and consequently it has strongly
enforced the role of media as actor of criticism, the effectiveness of these practices is seriously
undermined by the typical phenomenon that present society information where everything is
known, but fews pays few attention to what the Government and the media is doing.
In addition to internal control which is integrated in the institutions at Governmental level, many
Parliaments are endowed with a formal congressional committee which is presumed to monitor
Government operations (William Safire 2008, s.v. oversight). This can be described as a vertical
type of relationship. Although there is not yet any kind of oversight on the Security Sector at
international level, Governments are still under the juridical action of superior instances such as the
European Court of Human Rights (Born and Leigh 2005, 15) which is the only one endowed with
the power of sanction for these European Countries that have taken part into it. Not every country
has the same level of control on military and security bodies. In many countries it is possible to
observe a different degree of independence from political matters of the executive of Security
Sector. Wolfgang Wagner (2006, 4) has considered three level of Parliamentary control of security
operations especially for the military field: “‘high’, if the government must seek prior parliamentary
approval before it may send troops abroad; ‘medium’ if parliament’s power of prior approval is
undermined by significant exceptions, if the government must only consult a parliamentary
committee (instead of the full parliament) or if the government does not need prior approval but
must consult parliament; ‘low’ if there is no obligatory parliamentary involvement in decision-
making on participation in military missions”. Among the Western Nations, Wagner (2006, 6) has
considered high Parliamentary control Nations: Denmark; Finland; Germany; Ireland; Slovakia;
Spain; Sweden; Switzerland, within the medium Austria; Czech Republic; Italy; Japan;
Luxembourg; Netherlands; Norway and within the low Australia; Belgium; Canada; France;
Greece; Hungary; New Zealand; Poland; Portugal; United Kingdom; USA.
Parliamentary oversight is a cornerstone to prevent autocratic rule. The Security Sector is one of the
State’s core tasks and, due to its power, it is generally closely linked with the possibility to create
autocratic rules. Thus, Parliamentary Oversights play are key role in limiting power-sharing and a
effective limit on the power of the executive. Although we can analytically doubt the effectiveness
of the general public oversight because it can be in contrast with the objective to protect the safety

52
of security policies and operations57, the Parliamentary Oversights are a bit more confidential
because they can be viewed as a representative body and not direct oversight DCAF (2003, 19).
However, after the possibility to politicize the Parliamentary Oversight process which should be
independent from any political ideas 58 (Born and Leigh 2005, 77), challenges for Parliamentary
Oversights of Security Sector59 , as the Geneva Centre for DCAF (2003, 20) may be summed up in
three main aspects:

• Secrecy laws may hinder efforts to enhance transparency in the security sector. Especially in emerging
democracies or conflict-torn countries, laws on secrecy may limit or jeopardize parliamentary oversight of
the security sector; this is also due to the absence of legislation on freedom of information.

• The security sector is a highly complex field, in which parliaments have to oversee issues such as weapons
procurement, arms control and the readiness/preparedness of military units. Not all parliamentarians have
sufficient knowledge and expertise to deal with these issues in an effective manner. Nor may they have the
time and opportunity to develop them, since their terms as parliamentarians are time-bound and access to
expert resources within the country and abroad may be lacking;

• The emphasis on international security cooperation may affect the transparency and democratic legitimacy of
a country's security policy if it leads to parliament being left out of the process. It is therefore crucial that
parliament be able to provide input to, participate in and follow up on debates and decisions in the
international arena.

Lastly, Marina Capriani (2007, 19-23) writes, the constraints present in overseeing the Security
Sector such as the need for secrecy, can be avoided by forming an Oversight Committee of experts
that works quietly and not intrusively. However, this kind of not published oversight which does not
fit with public accountability should be followed by a control system over the oversight in order to
justify and legitimize the actions of the oversight. Not every parameter of rightful control can be
followed due to the treatment of sensible information, but an examination of the overseeing ways
should be consiedered.

57As we have stated in the previous chapter, even if the Armed Forces can need secrecy and less control in order to act
effectively, they have “the greatest potential to affect political life of the nation” (Caparini 2007, 3).
58
Being not independent from political views may lead have serious controversy with the integrity of the process which
means corruption.
59The Geneva Centre for DCAF (2003, 72-73) has listed a wide range of tools which Parliaments can use in order to
ensure a proper oversight on Security Sector. This list of instruments is in the annex number 2.
53
4. The Ombudsman

The word Ombudsman is the crasis of Ombuds - a word that comes from the old swedish umboth
which literarily means commission - and man. The Ombudsman is “an official intermediary
between citizen and government or other large organization to counteract accusations of delay, error
injustice, and impersonality of bureaucracy” (William Safire 2008, s.v. Ombudsman).
Although, we can observe similar public functions in ancient China under the Han dynasty, 206 b.C
- 220 a.C. with the control Yuan or in the Ancient Roman Republic with the tribune of the people -
tribunus plebis -, or the censor in seventeenth-century American Colonies, the first ombudsman’s
role has been implemented by from one of those legislations where transparency seems to be highly
esteemed, the Swedish. In 1713, under the kingdom of King Charles XII it was created as the Office
of Supreme Ombudsman, with the aims to make the government administrator more accountable.
Sweden’s kingdom was at war against the Russian Empire in a exhausting endless campaign which
had raised dissent among the people. The Office of Supreme Ombudsman was charged of quieting
the people and legitimizing the war which, however, ended up with the Sweden’s defeat.
Nevertheless, the Russians implemented the same function a few years later because they were
facing almost the same problems, particularly to conduct the action of tax gatherers, judges and few
other administrators (Gellhorn 1967, 194).
The free access to information has raised the general citizens’ informative expectations.
Transparency, as we noted, empowers individuals by spoiling the State. A conventional perspective
may consider the need of new mechanism that “ensure a better balancing of the power relationship
between a citizen and that citizen’s government” (Elwood 2000, 2).
Normally, the Ombudsman’s Institution is established by the legislative branch of government and
it is charged to supervise executive activities. Particularly it has to deal with the maladministration
which “occurs when a public body fails to act in accordance with a rule or principle which is
binding upon it” (Söderman 2004, 3). “Firstly, an essential ingredient is broad cross-party support
for both the establishment of the institution and the selection of officeholders ... Secondly, an
inclusive process that involves a broad range of stakeholders is useful both in raising awareness of
new institutions as well as in building strong support for their establishment” (Buckland &
McDermott 2012, 17-18). Its activity usually begins after a public complaint which makes him start

54
investigations60 concerning the conduct of the public administration. “The general objective of the
Ombudsman are the improvements of performance of public administration and the enhancement of
Government accountability to the public” (Rief 2004, 2) because, even if it should be impartial, it
provides another efficient method to account actions to the Government whether they are right or
wrong. The Ombudsman’s role configure itself as a mediator and solver of public disputes. It is
characterized by the easy accessibility by the public, speed with which it solves disputes and the
informality which facilitate the citizens to communicate with him. “A key characteristic of the
Ombudsman is his accessibility to the public. Anyone may file a complaint simply by writing a
letter. This is especially important to those deprived of their freedom in jails, hospital, sanatoria,
etc.” (Anderson, 2008, s.v. Ombudsman). The result of its action of public utility for the public
debate is enhancing transparency which helps to build Good Governance61 (Reif 2004, 2) because
“its raison d’être is to help protect ordinary people from the government” (Oosting 1998, 1) which
may abuse more or less consciously of its power.
The Ombudsman’s Institution can play an excellent role “in the promotion and protection of human
rights and freedoms, and in support of domestic complaint resolution ... the delivery of public
services, the rule of law, and principles of justice and equality” (Clark 2012, 3).
The Ombudsman’s Institution started to spread outside Scandinavia only in the 1960s and typically
in democratic systems. The State of Hawaii, which was the first american legislation to have
implemented the Ombudsman in 1967, has declared that if is within his role to “establish
procedures for receiving and processing complaints, conducting investigations, and reporting his
findings” without regard to “the finality of any administrative act”. The crucial point of his power is
the right to look into “unreasonable, unfair, oppressive, or unnecessarily discriminatory” acts by
government officials “even though in accordance with law” (William Safire 2008, s.v.
Ombudsman).
Bertil Cottier (2009) has listed some of the main characteristics for the Ombudsman Institution
which is called to reconcile parties of a quarrel and it can be institutionalized ad hoc for a specific
dispute:

60Nevertheless “not all ombuds institutions conduct investigations in the same manner, several common elements are
evident, including: fact-finding and establishing that the complaint has merit; alternative dispute resolution or
mediation; interviews and other investigative methods, such as inspections and site visits; and drawing
conclusions” (Buckland & McDermott 2012, 25).
61 Marten Oosting (1998, 1) has considered as the main responsibility of Ombudsmen “to foster good governance in the
interests of the general public. Good governance means a government that unconditionally respects the rules of the
national and international legal order, especially in the realm of human rights, and that strives to fulfil its
responsibilities properly in the service of the general public, free from corruption”.
55
 • The Ombudsman is an experienced and trusted person. His integrity62 assures to be heard;
• The Ombudsman should be independent, the mediator is not related to the professional and economic parts;
• He acts with flexibility and speed. Its procedures are less formal and promotes dialogue;
• Even if it may also coercive measures, it should facilitate the resolution through dialogue.

About the issue of the Ombudsman’s independence, Roberta Jamieson (1997, 7) has drawn the
attention to that fact the his independence is an essential factor for building his credibility allowing
him to be accountable. In addition, Buckland & McDermott (2012, 5) have noted that
“independence and impartiality make them a crucial element in an overall framework aimed at
ensuring the accountability of public authorities, outside of the adversarial environment of the
courts. Indeed, ombuds institutions can be preferable to the courts in many situations. In particular,
their low barriers to entry (i.e., they are accessible, available without cost to individuals, and
informal) make them an attractive alternative in a large number of cases”. An independent and
impartial Ombudsman Institution, continue Buckland & McDermott (2012, 5) can provide an added
value in responsiveness of the Institution, responsibility and accountability due to its power to
address recommendations and transparency which is achieved by publishing reports on their
activities. Institutional independence consists in the relationship between the Institution of the
Ombudsman and the other State bodies or Institutions including those that the Ombudsman
Institution is mandated to oversee and those from which they receive financial resources. “The
Institutional independence is generally understood to mean that an ombuds institution is
independent from the government and, more specifically, that it is not part of any of the bodies that
it is mandated to oversee” (Buckland & McDermott 2012, 40). For all these reasons, independence
is crucial in assuring influence which can be both real and perceived of the action,
recommendations, findings and verdicts of the Ombudsman Institution on its stakeholders
(Buckland & McDermott 2012, 41).
The independence issue is a multifaceted dimension for Ombudsman Institutions but “in any case,
the ombudsman’s independence should also mean that he is at liberty to address the general public
and to make his presence felt in society without his actions being subject to approval of any
kind” (Oosting 1998, 2). A first type of independence may be seen in the provision of resources
especially the budgeting of the Institution. Generally, the budgetary dependence is to the
Department which hold the Ombudsman office. This reliance may have negative consequences for

62 To what it concerns the Ombudsman’s integrity, Thailand has developed a Code of Ethics for Ombudsman and
Ombudsman’s personnel (Piya-Anant 2004) where the integrity is viewed as the main factor to pursue the effectiveness
of the Institution. In fact, there are 25 articles out of 29 based on Ombudsman’s integrity. Though, we can observe that
the Ombudsman’s activity is not enough regulated yet. Many countries have developed some kind of codes of conduct,
but few legislation have administrative laws for its regulation.
56
their independence and the general performance of the Ombudsman functions (Buckland &
McDermott 2012, 43). The Ombudsman should be granted the financial and personnel resources in
order to perform his task properly, as well as the necessary assistance for its investigations (Oosting
1998, 2) because the Ombudsman is very often called to work in different political climates where
different kind of powers are generally involved - Government, agencies, medias, etc. - which
sometimes are hostile to the work of the Ombudsman (Barbour 2012, 2). “[I]t not desirable that an
ombudsman has to seek resources from the department or institution which is under its jurisdiction,
[and] it is not correct for the budget of an ombudsman’s office to be connected to a government
department which may be subject to budgetary cuts, thereby having a direct impact on the operation
of the ombudsman’s work” (Born, Wills and Buckland 2011, 9). Many Ombudsman Institutions
have stated several times that insufficient funds and resources are the main obstacle in performing
their mandate effectively 63.
Another particular field of the independence may be argued within the scope of the security of
position and tenure staff. For this purpose it is essential to have clear provisions to safeguard
discretionary power to remove Ombudsman from the office (Buckland & McDermott 2012, 44)
which may threat and menace the Ombudsman in reaching an effective result. A third kind of
independence that Buckland & McDermott (2012, 44-45) have noted concern the operational
independence which includes the ability of the Ombudsman to perform the following actions
without the interference of other actors:

• Decide which matters and priorities to pursue and investigate them to their conclusion;
• Access all information necessary for the fulfillment of its mandate, including classified or otherwise
confidential information;
• Determine the manner within which it undertakes its work;
• Hire outside experts;
• Make statements directly to the press and public; and
• Release reports and make recommendations, free from censorship.

The Ombudsman Institutions are usually prevented to examine issues under the jurisdiction of a
Court - this includes also the military justice and the military police. However, as Buckland &
McDermott (2012, 47) pointed out, an important factor which may enhance the Ombudsman’s
operational independence is the possibility to start the so called own-motion investigations.
Additionally, another element that is supposed to enhance the operational independence is the

63Particularly, this is a constraint for starting investigations and retrain a high skilled staff (Buckland & McDermott
2012, 43).
57
ability to pursue investigations to their ending results free from any interference of other actors and
thus, by determining on its own which manner of work should be undertaken. Moreover, the ability
to account to public society the results of investigations and complaints, which is however a
common democratic duty, would give an added value to the entity of the recommendations that, as
we noted in the first part of this thesis, are now shared and enforced by public opinion. This may
also require the media accessibility. Finally, the operational independence is assured by the
possibility to hire external experts which may add an important and even more independent point of
view and by the capability to access information. If the Ombudsman Institution is negated the
access to data required in order to develop its investigations, it will not be in the position to carry
out it duty effectively (Buckland & McDermott (2012, 47-49).
Lastly, Buckland & McDermott (2012, 50) have noted that the personnel of the Ombudsman’s
office has to be independent and abstain from personal interests as well as the Ombudsman.
Previously we noted the relevance of reporting64 and recommendations. “The issuing of reports to
the concerned parties (including the complainant and the subject of the complaint), to the
legislature, and to the public at large is a key function of ombuds institutions; and nearly all such
institutions are mandated to produce a regular report on their work and activities” (Buckland &
McDermott 2012, 25). The Ombudsman social and political consideration represent a key factor for
its influence on the political system of its Country. Although the Ombudsman Institution may use
several media to inform the public of its activities, the accountability practice of the Ombudsman
Institution is mainly performed by its annual report or by occasional reports about its role involved
in particular complaint and investigation cases (Buckland & McDermott 2012, 25). In spite the
policymaking role of reports, they may play an important role in persuading the non-cooperative
behavior of these institutions that are more likely to not collaborate with the Ombudsman Institution
(Buckland & McDermott 2012, 130). Usually, the cooperation with the Ombudsman, as we will
discover further on, is legally imposed to other Public Institutions and the transparency on this
misconduct 65 may lead these institutions to reconsider their behavior.

64 Again, Buckland & McDermott (2012, 135) have provided some key points of the a reporting process for
Ombudsman Institutions. “A preliminary stage is the taking of informal steps aimed at remedying the situation without
the need for a formal report ... A second stage is notifying and consulting with concerned parties in order to request their
reactions and input to a proposed report ... A third stage in the reporting process relates to decisions about what to
include in both public and (if necessary) confidential versions of the report ... A fourth stage relates to the release of the
report itself”. The second stage is particularly relevant to develop a performance evaluation of the office which as
Buckland & McDermott (2012, 135) pointed out should answer to questions like “Has the ombuds institution handled
similar cases before? What was the resolution? How effective was the resolution? And are there any international
precedents that could be followed?”.
65However, as we will discover during the reading, this is, in majority of cases, unwanted errors of administration
which normally are fixed by the Ombudsman action in a collaborative manner.
58
To whom it may concern recommendations, which “serve a number of different functions, including
to encourage relevant parties to rectify, mitigate, or reverse the adverse decision, policy, or law that
led to a complaint”, may be divided into two main categories. First that is related to the
recommendation of a specific case resolution and second is related to more systematic issues
(Buckland & McDermott 2012, 26). Although for some Ombudsman Institutions, making
recommendations is a key task of their mandate, it is important to make a distinction between
ombudsmen and juridical bodies. The output of juridical bodies are legally binding judgement
whereas the Ombudsman’s recommendations are not usually empowered of legal impositions 66.
Thus, the limitations and the strength of the Ombudsman should be considered by those willing to
address their issue. The absence of any binding power for the Ombudsman is not a constraint for
these Institutions unwilling to implement such recommendations. For this reason, the outcome of
the ombudsmen may be undermined. It is with accountability practices that one may justify the
decision to not implement such recommendations (Buckland & McDermott 2012, 144-48). In this
exempt, the Ombudsman configures itself as a promoter of accountability. Appropriateness and
compliance are the compromise for assuring that a recommendation is effective. In addition, many
Ombudsman are also in charge of monitoring the implementation of their recommendations
(Buckland & McDermott 2012, 151).
Consequently, in order to work effectively, the Ombudsman’s Institution should follow some ethical
guidelines which can be summarized in the Principles of the Ombudsman developed by the British
Parliamentary and Health Service Ombudsman (PHSO) accordingly with the good administration
principles. Getting it right which implies also to solve mistakes quickly and providing clear
information; being customer focused; being open and accountable; acting fairly and
proportionately; seeking continuous improvement which implies to review procedures 67 regularly
and learning lessons from passed complaints (Abraham 2012, 5-7).

66“The essential distinction in these different system is between non-juridical processes (ombudsmen or parliamentary
committee), [and] juridical-type procedures (courts and tribunals)” (Born & Leight, 2005, 105).
67An example of the procedures that should be constantly review by the Ombudsman Institutions are provided in the
annex number 4 where there are summarized the most common operational stages with the relative ethical principles
which may help to develop a model of evaluation.
59
4.1 Military Ombudsman

The institutionalization of Military Ombudsman’s offices have been determinate by several and
different reasons. Buckland & McDermott (2012, 13-17) have categorized these Institutions in
relation to the reason for their creation. This analysis has shown a historical point of view has
shown a first wave which focusing on “the desire to strengthen civilian and democratic control over
the armed forces” which was the case of Belgium, Ireland and the United Kingdom. The second
case refers to these Countries that were in transition to democracy such as Germany, Austria and
several ex-soviet Countries. The second wave aimed to enhance the respect of the rule of law but as
well the protection of Human Rights and the Governmental integrity by establishing “more
effective mechanisms for complaint-handling and redress”. This second approach was widely used
also in Latin American Countries such as Guatemala, Colombia or Mexico to prevent the
widespread abuses by the Armed Forces. The third approach was determined by the exigence “to
create an independent quality-control mechanism to oversee the procedures, practices, and policies
within the armed forces”. Very often this case has been the result of the need for a response to
specific problems. For example, Canada has implemented the Canadian Ombudsman for the Armed
Forces for the Department of National Defense and the Canadian Forces in order to follow
“allegations of serious misconduct by Canadian soldiers deployed to the United Nations
peacekeeping operation in Somalia (1992-1993)” (Buckland & McDermott 2012, 17).
For some years now, the Military Sector is one that requires an efficient reporting system, since, in
fact, the complaints have not dismissed. In Military Sector, there is the Military Ombudsman which
is “a mechanism independent from military command structure that exercises oversight of the
defense sector and helps to ensure that it observes the principles and practice of good
governance” (DCAF 2006, 1). This institution is particularly important for exercising democratic
control over defense sector activities, ensuring respect for the rule of law in armed forces,
promoting transparency and accountability in defense organization and structures, focusing
attention on problems in military practice that requires corrective actions, enhancing efficiency and
effectiveness of defense sector, strengthening the confidence of both public and the defense sector
personnel in the military (DCAF 2006, 1). However, critics have carried several arguments against
this Institution: they take over functions that properly should be handled by mayors, district
attorneys, and other elected officials; if these officials are not responsive to legitimize citizen
complaints, they should be replaced, not second-guessed or circumvented (William Safire 2008, s.v.
Ombudsman 495). “Ombuds institutions play a valuable role in ensuring that the armed forces are
60
governed by and act in accordance with the rule of law and with respect for the human rights of
both armed forces personnel and the civilians with which they engage” (Buckland & McDermott
2012, 5-6)
As we already mentioned previously, the Ombudsman is not meant to substitute juridical bodies
including those relating to a military juridical system68 which are intended to enforce compliance
with hard-laws and not only to deal with soft-laws which are generally the mission of ombudsmen.
For this reason, almost always the Ombudsman does not deal with criminal matters by sanctioning
parts. These duties are usually handled by juridical Institutions which, however, have higher
barriers to access (Buckland & McDermott 2012, 23). Nevertheless, the Ombudsman may still
report the facts to a competent juridical Institution.
Some Military Ombudsman Institutions enable to access to their services through the phone, fax,
email and in many other manners. However this might be lead to increase the number of frivolous,
unfounded or vexatious complaint. The problem comes up whenever the Ombudsman Institution is
obliged to treat the complaint which may lead to a waste of resources for those complaints which
are not in-jurisdiction. Consequently some Ombudsman Institution have the discretionary power to
decide whether the complaint can be treated (Buckland & McDermott 2012, 63). “The complaint
process entails a number of steps, including: determining the admissibility of a complaint, offering
advice, promptly handling the complaint, keeping all parties informed, and protecting legitimate
expectations. The process should be timely, effective, credible, confidential, and impartial in
handling complaints” (Buckland & McDermott 2012, 24). Among the general types of complaint
treated by Military Ombudsman Institutions relate to categories such as maladministration,
protection of human rights, mistreatment and discrimination issues, health issues, working
conditions and freedom of association and expression (Buckland & McDermott 2012, 73-82).
At this stage, the Ombudsman is called to start the investigation process. However, as we noted
previously, Ombudsman Inisitutions may also start an own-motion investigation which may be
helpful to investigate in systematic problems 69 which generally pertain two main categories:

68 “While some ombuds institutions may investigate matters that involve criminal wrongdoing, the conclusions of
investigations conducted by ombuds institutions are generally aimed at producing recommendations; they aim to
resolve issues independently and impartially, and to prevent their recurrence, rather than to punish an offender or an
individual act of wrongdoing” (Buckland & McDermott 2012, 24).
69This ability is particularly important where when “the person affected is unaware that his or her individual problem is
not unique, where he or she is unable to make a complaint, in cases where he or she might be in danger for doing so, or
with regard to matters that, while important, may not be raised by an individual (Buckland & McDermott 2012,
24).
61
widespread problems such as the forces’ equipment and laws or regulation that may be
counterproductive (Buckland & McDermott 2012, 89-90).
The investigative process 70 begins with a fact-findings that establish if the complaint has merit for
treatment and if it is relevant for the mandate of the Ombudsman Institution or may have an
alternative dispute resolution. Fact-findings are generally an informal kind of investigation. After
this, the Ombudsman should refer to the complainer part to its decision by offers him a reasonable
answer and, when the case could not be treated, the Ombudsman should address the complainer to
the right Institution. At this stage, the Ombudsman can try to implement an early dispute resolution
by informally mediating between the two parties. If the mediating fails the Ombudsman is now
called to begin his real investigation which ought to be aimed at gathering information that may
lead to access to documents, interviews and inspections (Buckland & McDermott 2012, 100-10).
The mandate and the functions of Military Ombudsman Institutions across the World differ
substantially due to the cultural environment in which they have been developed. Their “military
traditions, legal systems, and the calibration of civil-military relations, as well as by the question of
for whom an institution was initially established” are the main factors that have been able to shape
the peculiarity of the Institution (Buckland & McDermott 2012, 29). For instance, every Military
Ombudsman Institution will be certainly different from the one of another country due to its legal
basis. Consequently, the inevitable rich variety of Ombudsmen throughout the world may be an
explanatory factor for the adaptability of their institutions (Buckland & McDermott 2012, 29).
Nevertheless, in order to categorize the occurrence of the Military Ombudsman Institution, the
Geneva Center for DCAF (2007, 40) presented a guide for “Monitoring and Investigating in the
Security Sector” which described three different approaches within which this Institution usually
occurs. These models are illustrated within the handbook for the Ombudsman of Armed Forces of
Buckland & McDermott (2012, 29-35). The first conception is the integrated military oversight
mechanism which it is normally supported by military leadership. The reason that stands behind the
favor of the executive power for this approach is that the integrated approach is usually more
receptive to command and control issues which should assure and promote the effectiveness of its
operations. Another advantage to this approach concern the rapidness which personnel of the Armed
Forces may access to the Ombudsman which should be able to investigate the complaint more
quickly and with facilitation in accessing data related to the surrounding complaint due to its
proximity and knowledge of the Armed Forces system. In worse cases this institution takes the

70 For this purpose in the annex number 5 is contained the Irish Ombudsman of Defense Forces complaint-handling
process which may illustrate the most common practice of the Ombudsman activities.
62
name of Inspector-General such as the American model. However, the problematic concerning this
type of Ombudsman is that its over-sighting activity is performed on the Military Sector of which it
is part. It mainly concerns the possibility of a lack of independence which is required to perform its
activity. In fact, their position in the military chain of command may lead to a reduction in the
“ability to address controversial issues or pursue investigations that run counter to the interests of
the military hierarchy” which may turn in a reduction of its legitimacy and confidence (Buckland &
McDermott 2012, 30 and 41). This approach is used in Denmark, France, Netherlands and the
United States of America.
The second approach is called independent military oversight mechanism which may be considered
as a powerful example of independent oversight. It presents the advantage that it is able to work
cooperatively with who has commissioned the mandate by its military proximity. It has an exclusive
jurisdiction over the Armed Forces. In addition, it is in a favorable position to strengthen
Parliaments’ oversight capacity which ensure greater transparency and accountability. However, this
approach might have some constraints within its real independency. In fact, it might be the object of
military reservations due to military hierarchy and civilian defense structure. Moreover it might
have significant costs for Countries with a small or inactive Defense Sector. Austria Canada,
Germany and Norway are the most significant examples of this type of Ombudsman Institution.
The third type of approach is the civilian oversight mechanism which has usually a general and
broader civilian oversight approach such as the protection of Human Rights. Among the positive
effects that might be listed, it is remarkable that it can have the social utility to ensure that soldiers’
rights are not so different from those held by common citizens. In fact, member of Armed Forces
are likely to be treated equally to civilians because this approach tends to balance the interests in
any recommendation. Consequently, it could contribute to the freedom and the protection of rights
of all members of the society. Usually, their recommendations are difficult to ignore by the political
system because the institution holds a prominent status. This feature may play an additional strength
of approach because both civil society and the Armed Forces personnel are more likely to know the
function of the Institution. Nevertheless, the main drawback is possibly of a lack of expertise in
dealing with a Public Sector with inexorable differences such as the Defense. In addition to this
broad approach, may lack of sufficient resources devoted to Armed Forces specific cases. This
model is used in Lithuania, Portugal, Sweden, Ukraine and Australia.
In conclusion, the Military Ombudsman Institution may be a bit different from the typical
mechanism described at the beginning of this chapter and even if its main competences should

63
remain unchanged, some competences such as assisting clients in resolving problems have not been
developed that much. These competences are not typical in the Defense Sector.

64
4.2 Challenges for the Military Ombudsman 71

Although the Ombudsman Institution for some countries might be relatively new impling that the
Institution might not be fully utilized by who could need its help, the main issues concerning the
challenges it may face are mostly related with its legislative status which in some case is not clearly
and narrowly defined.
In order to ensure the full potential of this institution, the feature that seems to be the most relevant
in this regards may be the degree of independence that the Ombudsman needs in order to operate.
On this subject the DCAF (2007, 40) has listed some key characteristics which may refer to the
independence of the Ombudsman:

• be legally defined in the Constitution or an act of the legislature ;

• have its own investigative capacity, and be authorized to freely initiate investigations on questions affecting
individuals or, as appropriate, of a systemic nature ;
• have access to the information necessary to conduct any investigation ;
• be able to operate in the utmost confidentiality ;
• be able to publish reports for the attention of parliament and the general public ;
• be empowered to formulate recommendations for consideration by the civil and military leadership, which
require official and public responses ;
• be housed in its own premises, independently of the General Staff ;

Furthermore, Ilona Mikoczy (2007, 13) has listed the most common challenges that the
Ombudsman faces when dealing with the Security Sector:

• Lack of knowledge by security sector officials and civilians on human rights.

• The security sector consists of very closed institutions; secrecy dominates and information exchange with
ombudsman institutions is scarce and irregular.
• Ombudsman institutions in the region lack resources to hire specialized staff and independent experts.
• Not all the ombudsman institutions have legislative initiative.
• Insufficient legal basis for the protection of human rights of officials of security sector agencies.
• Lack of cooperation between ombudsman institutions and police and military academies on human rights
education.
• Limitations placed on ombudsman institutions when trying to access all relevant institutions.

These challenges may be grouped into two different groups. In the first one it is possible to find
challenges that may be more easily controlled by the Ombudsman such as the lack of knowledge

71This is a broad introduction to challenges that the Ombudsman Institution may face. A more depth consideration will
be argued in the final chapter of this thesis by the results of each Military Ombudsman’s approach.
65
and the lack of cooperation between ombudsman institutions. The other cases are usually controlled
by the legislative power and so may not be so easily handled by the internal management of the
Ombudsman Institution. The lack of knowledge and every kind of constraint in accessing
information such as secrecy, lack of resources, limitations of access to institutions and lack of
cooperation between Ombudsman Institutions - which is intended to share know-how and
information, and thus, enhancing efficiency - may represent grave preconditions in fulfilling
Ombudsman’s mandate effectively. Lastly, although the legal basis for human rights protection and
the power to have legislative initiative may give an added value to the performance of the
Ombudsman, they may not be seen as central features for the Ombudsman’s performance because
these two features may not be expected very often not part of their mandate, especially in the legal
basis for human rights protection.

66
4.3 Ombudsman’s Comparison

As it has been discussed with the term Ombudsman Institution contains different kinds of
organizations are generally included. They differs from themselves by their mandate, scope and
functioning within the same public sector (Buckland & McDermott 2012, 3). Additionally, even the
conception of the Ombudsman’s role varies throughout countries depending on how his functions
are defined.
The comparison hereafter, will consider three different approaches of Armed Forces Ombudsman
that have been explained in Chapter 4.1. The Australian civilian oversight mechanism, the
independent military oversight mechanism of Canada and lastly, an integrated military oversight
mechanism example which is the case of the United States of America.
In order to identify the environment in which these institution are allowed to act, it has been
required to analyze their stakeholders that as the reader has had the possibility to understand so far
are mainly related with the Security Sector. As a result, a basic presentation of the Defence Sector
of these three Countries will be reviewed. The first step of this review has been devoted to
identifying the legal basis that affect these three examples of Military Ombudsmen. Consequently,
varying in legal status the collection of laws, regulations and directives concerning the Military
Ombudsman for these Countries was necessary. In this first part, the data collection has been
influence by the assumption that where there is no explicit constraint or penalty on the
Ombudsman’s actions, it is allowed to act - no poena sine lege.
Secondly, a depth review of the last annual report and white paper has helped to track more
specifically the Ombudsmen current contexts. In order to collect data for critical judgement on these
three different approaches, the publication of Hans Born, Aidan Wills and Benjamin S. Buckland: A
Comparative Perspective of Ombudsman Institutions for the Armed Forces has played a crucial role
because it has granted a very important questionnaire that has revealed itself the main tool of
analysis used within this paper contained in annex number 4. However, the real comparison of these
three different approaches is shown in the last chapter of this thesis where a SWOT analysis has
been used to develop the prospect of evaluation that identifies in abstraction the advantages and the
disadvantages that these three approaches might have in the regards of the others. Even though a
benchmarking of their performance could probably help to sustain the final thesis, it has not been
implemented because of the huge differences that might be among them and thus becoming,
weakening the final results. A first difference that may be noted among these three Countries is that
both of them posses a selected inspector of Security and Intelligence which is intended to help the

67
Parliament in oversight. The definition of this organism may have substantial explanatory factors on
how the social role, the mission and the tasks of the Military Ombudsman have been defined in
these three Countries. Concerning the oversight function of the Ombudsman, it is possible to
assume that the tasks of which another Institution might already be in charge or might not be
intended for the Ombudsman as well. This may lead to a correlation between the Ombudsman’s role
and the role of other Institution of Parliamentary Oversight.

Table 2: Parliamentary Oversight Powers72

U.S.A. Canada Australia

Ensures compliance with current legislation YES YES YES

Ensures compliance with standards of propriety YES YES YES

Carries out audits, investigations and inspections YES YES YES

Prevents and detects waste, fraud and abuse YES NO NO

Promotes economy, effectiveness and efficiency YES NO NO

Reviews compliance with executive directives and operational policies YES YES YES

Ensures compliance with warrant authorizations NO N/A YES

Reviews operational activities YES YES YES

Reviews pending legislation and regulation YES NO YES

Reports regularly to the agency head(s) YES NO NO

Reports regularly to executive, legislature or oversight commission YES YES YES

Reports in response to requests by legislature or oversight commission YES YES YES

Investigates complaints about the agency YES NO YES

Ensures proper regard to human rights YES NO YES

Ensures compliance with regulations on release of records and information YES NO YES

Has access to all records and information of the agency YES YES YES

Initiates investigations on own initiative YES NO YES

Administraters oaths for taking testimony YES NO YES

72 This table as been taken from the contribution of Ian Leigh (2008, 41) in Public Oversight of the Security Sector
68
4.3.1 Australia

The Government of Australia refers to the concept of national security primarily as protection of
Australia's sovereignty in an evolving asian context with the aim to shape a favorable international
environment. Generally the policy on the Defense Sector is driven by three pillars: act
independently, lead military coalitions and make tailored contributions to military coalition
(ADWP 2009, 48). The National Defense lies with the capabilities of the Australian Defense Forces
that are trained to deter and defeat attacks on Australia and to give a consistent contribution to the
stability of ocean surrounding nations. In addition, Australia cooperates with several regional
partners formalized by bilateral such as the Indonesia-Australia Defence Alumni Association or
multilateral treaties such as the Five Power Defence Arrangements, including training, joint
exercises and shared professional perspectives on defense doctrine. Secondly, there since Australia
is an ally of the United States of America, Australia has recently started to play an important role in
international obligations. Another main activity of the Australian Armed Forces is in the assistance
of humanitarian and disaster relief. The asian panorama is changing rapidly. Because of this,
Australia needs to modernize73 its Armed Forces as the pitch of its neighboring nations.
Additionally, this provides the opportunity to pursue security and strategic partnerships especially
with Japan, South Korea, China and India (ADWP 2012, 230-231).
The concept of the use of military defense is explained within the Australian Defence White Paper
(2009, 21) which states that “the Government recognizes the need to maintain and, on occasion, use
military power as a means to back up and give effect to Australia's policy aims. Maintaining a
credible defense capability is a crucial contributor to our security, as it can serve to deter potential
adversaries from using force against us or our allies, partners and neighbours”.
The action of the Australian Department of the Defence is mainly regulated with the Defence Act of
1903 but there are many subsequent regulations and several federal laws related to this act 74.
The Australian Army is currently involved in several operations and international expeditions such
as Operation Slipper (Afghanistan) which is the most relevant among the operation’s expenditures
with 1,189.8 millions of Australian Dollars, Enhanced Force Protection in Afghanistan, Operation

73 The modernization of the Australian Army requires a strong cooperation with the Australian Industry sector which
must provide contracted support services, maintain, repair and replace equipment, generate supplies, provide specialist
skills, and contribute to reconstitution once the mission is complete (ADWP 2009, 88).
74
A complete list of the laws involved in the Australian defense management can be found in the following link: http://
www.defence.gov.au/legal/dl_links.html.
69
Astute (East Timor), Operation Anode (Solomon Islands), Operation Resolute (Coastal
Surveillance) Operation Kruger (Embassy Security in Bagdad) (ADB 2012-13, 2).
Since September 11, like many other Countries, Australia has also sensitized to the fight against
terrorism and has now taken an active part in the fight. This particular sensitivity is also supported
by the fact that since 2001, more than 100 Australians have been killed in terrorist attacks overseas
(Australian Government 2010, 7-8). The fight against terrorism that is configured for Australia in
the long term has led to new security measures which mainly focus on analysis (an intelligence-led
response), protection (taking all necessary action to protect the population), response (providing an
immediate response) and resilience (building a strong Australian community to resist the
proliferation of violent extremism) (Australian Government 2010, 19).
The information relating to the defense sector is considered of primary importance in order to build
trust, avoiding misunderstandings with civil society and to promote rational decisions in the field of
population and the armed forces. Consequently, the Australian Government supports the
transparency of communication about the intentions, the budget, the strategies and capabilities of
the defense sector. (ADWP 2012, 230-231). To this end, Australia prints out Defense White Paper 75
and other defense public publications such as official periodicals like journals, newspapers and
magazine on the Army and the army’s life. Many of these publications are the results of an
ambitious reform process named Force 2030 started in 2009 that will be completed by 2030. The
key elements of this reform, like many other implemented in other Nations has the appropriate
intentions of the Security Sector Reforms described at the end of Chapter 1. For example, are:
improving accountability 76 in the Defense Sector, improving Defense Planning which is intended to
strengthen the military capabilities and enhancing productivity in Defense by implementing cost
effective practices in the business processes which implies transparency on cost performance. The
reform would give an additional saving of approximately twenty Australian billion Dollars in the
next ten years (CoA 2009, 4-5).
The information’s conception plays a very important role also for Army modernization priorities.
The knowledge dominance is a key factor for an effective defense (ADD 2007, 15) which may be in

75 A verydetailed example is provide by the Defence Capbility Plan 2006-2016 where it can be found many information
about the activities and the budget allocated for the phases of the plan. However, the version publicized on the
Australian Defence web-site is a public one which might lead to think the existence of a private version which would
not accessible to everyone.
76 More particularly, the reform on accountability will “clarify and sharpen internal accountabilities [...], introduce an
authoritative and transparent Defence business model [...], better measured and managed organisation performance [...],
improve committee and decision-making systems [...], improve the quality of advice to Government and Ministers [...],
further strengthen the internal audit function” (CoA 2009, 8-9).
70
contrast with the relevant and exhaustive level of transparency 77 achieved by the Australian Defense
Sector. Despite the Australian Defense Sector being the largest providers in the Country of
telecommunications already (ADD 2009, 1), the Sector needs a continuous development of the
Information and Communication Technologies concerning the planning of defense and the logistic
of conducted operations. For Australian authorities the massive development of ICT would be an
important factor of success for its several key outcomes. Consequently, in order to guarantee this
result, the Australian Government has listed five imperatives:

• Optimise the value of Defence’s ICT investment through cost transparency, improved stakeholder
communication, prioritisation of spend and efficiency in ICT activities.
• Drive closer alignment with stakeholders through a stakeholder-centric organisation model, improving
engagement and driving towards a collaborative approach to developing ICT capabilities.
• Provide agreed, priority solutions through the establishment of a Defence-wide ICT Operating Model and
Enterprise Architecture promoting standardisation and consolidation.
• Strengthen ICT capabilities through improvements to culture, leadership, processes, skills, sourcing and
resource planning (ADD 2009, 5).

The Financial Management and Accountability Act of 1997 declares that the Australian Department
of Defence has estimated to appropriate 24,188.0 millions of Australian Dollars for the year
2012-13 whereas the 42,9% will be used for employees’ retributions (ADB 2012-13, 2).
The political role of the Australian Army can be summarized in the quote: “defend Australian
territory against credible threat without relying on the combat forces of other countries, in keeping
with long- standing Government policy, provide joint forces to contribute to, or lead, coalition
operations in Australia’s neighborhood, contribute to coalition operations further away, support
United Nations activities and honour other longstanding multinational commitments, contribute to
crisis response as part of a coalition effort in humanitarian assistance and disaster relief routinely
work with other government departments to provide options to Government to protect and promote
Australian interests, provide regional situational awareness to a global commitment of military
force” (ADD 2007, 5). This evolving international panorama has led, like in many other Western
nations, to a reconsideration of the role of the armed forces, particularly concerning the Military
Sector:

77The Australian Army has provided to the public also to its test and evaluation method for developing capabilities and
managing strategies which “can be defined as a process that obtains information to assist in the evaluation or support
the objective assessment of a capability system with known confidence, and to confirm whether or not a risk is
contained within acceptable boundaries across all phases of a system’s life cycle” (Australian Department of Defence
2008, 9).
71
 • Understand the geopolitical and operational context and maintain appropriate situational awareness;
• Shape (and deter) the choice so potential adversaries seeking to directly attack Australia or its interests;
• Defeat any potential adversary seeking to launch attacks on Australia;
• Deny operational freedom to any potential adversary or security;
threat within the immediate neighborhood;
• Quickly and decisively assist the civil authorities of Australia by providing military assistance (ADD 2007, 9).

The Australian Department of Defence (2006, iii) has publicized in its 2006-2016 capability plan
four main objectives that should allow armed forces to enhance their performance in a context
where high skills are required:

• Improving Defence and industry consultative arrangements;

• Greater consideration of industry capability issues during the capability definition process;
• Changing Defence-industry contracting practices with a stronger focus on outcomes, skills investment and
supply chain management; and
• Developing strategies focussing on critical industry capabilities and Defence’s ability to manage supply and
demand in support of these capabilities.

As mentioned above, the Australian Government has recently begun a process of openness with
new partners which brings the Army new needs such as the excellence in joint, interagency and
coalition operations78 which follows a need to build a culture of adaptivity, a need to balance the
uncertain strategic circumstances and the need to improve networking and interoperability with
partners (ADD 2007, 2).

78 The concept of joint operation has a strong relevance for Australian Army and a changing World where political,
economic, military and social dimensions are becoming even more interrelated. In order to face these new issues the
Australian Government has adopted an effect-based approach where immediate impacts are the key role for success.
However, the use of Armed Forces is considered the last resort after the failure of diplomatic relations that must be
timely effective (ADD 2007, 11).
72
Table 3: Australian Army Summary79

Australian Army Summary Table

Branches Australian Defense Force (ADF): Australian Army, Royal
Australian Navy, Royal Australian Air Force, Special Operations
Command

Alliance NATO Partner across the Globe;

Air Forces Armed Forces Army Navy

Personnel 17'700 51'000 25'400 14'300

Total Military $16,650,000,000.00 % of Government 7,3%

Expenditures* expenditures***
Conventional Arms $52,000,000.00 Expenditure > % GDP 2,4%
exports**
Conventional Arms $334,000,000.00 Armed Forces Growth -28
imports**
Manpower Males 5'037'540 Females 4'870'043
Availability
Weapon holding 1'186'000

* This figure is taken by the Australian Military data page on nationmaster.com where the data has been taken
by the World Bank data indicators. “It has been is calculated by multiplying the estimated defense spending
in percentage terms by the gross domestic product (GDP) calculated on an exchange rate basis not
purchasing power parity (PPP) terms. Dollar figures for military expenditures should be treated with caution
because of different price patterns and accounting methods among nations, as well as wide variations in the
strength of their currencies” (Nationmaster, 2013).

** In current American Dollars.

*** This figure has been take by the World Bank data indicator (2013, 308).

79 The data has been collected from the World Factbook 2008 of the American Central Intelligence Agency (CIA 2008).
73
4.3.1.1 Australian Military Ombudsman
The Commonwealth Ombudsman is an independent institution which is mandated to deal with
several branches of complaints. The complaints arising from and within the present or past work of
the Army are handled by Defence Force Ombudsman which is one of the eight divisions organized
by type of complaint (CO 2012, 106). The Australian Ombudsman Institution has been created in
1976 with a statute that regulates its activities: the Ombudsman Act reviewed in 1989 with the act
number 45. The trigger of the creation of the Ombudsman Institution was due to public interest in
an independent civil oversight. Thus the Commonwealth Ombudsman is a broad example of
approaching the ombuds’ activities which allows it to perform its investigations in every branch of
the Australian Public Administration. The office of Defence Force Ombudsman is subordinate to the
Commonwealth Ombudsman Institution and it is held by the person who holds the office of
Commonwealth Ombudsman (AOA 1989, art. 3A). Although this approach may requires a strong
capability in coordinating activities, it might allow the ombuds divisions to cooperate and to access
to wider data. The Defence Ombudsman refers to every defence branch of the Australian
Department of Defence which includes the Australian Army, the Royal Australian Navy, the Royal
Australian Air Force, Special Operations Command, but not the secret services etc.
The Australian Ombudsman is appointed by the federal Australian Parliament (CO 2012, 5). The
action and the financial performance of the Commonwealth Ombudsman are under the supervision
of the Australian National Audit Office which has the task to oversee the quality and the integrity of
the financial statements produced by the Commonwealth Ombudsman. According to the
Management and Financial Accountability Act of 1997 and the Australian accountability standards
the auditing office has performed its last review in September, 13th 2012 in which the audit
principal commissioner has expressed sufficient and appropriate information by maintaining the
independence requirements needed to perform the auditing work from the Commonwealth
Ombudsman receiving a positive feedback (ANAO 2012 155-155).
The approximate budget for the fiscal year 2011-12 has been 24’404’000 Australian Dollars (CO
2012, 154) which 19’998’000 have been granted by the Government. The Commonwealth
Ombudsman has also received 2’052’436 Australian Dollars from sales of goods and rendering
services (CO 2012, 175).
The Defence Ombudsman is mandated to perform investigations after having received a complaint
or by its own motions (AOA 1976, Art. 19c2) and it is mandated to perform investigation in:

74
 • Action taken by a Minister;
• Action taken by a Justice or Judge of a court created by the Parliament;
• Action taken by:
(i) A magistrate or coroner for the Australian Capital territory, the Territory of Christmas Island or the
Territory of Cocos (Keeling) Islands; or
(ii) A person who holds office as a magistrate in a State or the Northern Territory in the performance of the
functions of a magistrate conferred on him or her by or under an Act;
• Action taken in connection with proceedings against a member of the Defence Force for an offence arising
under any law, including a law of the United Kingdom as applying by virtue of a law of the Commonwealth,
relating to the discipline of the Defence Force or of an arm or part of the Defence Force; or
• Action taken in relation to the grant or refusal of an honour or award to a particular member of the Defence
Force (AOA Art. 19C5).

The Ombudsman Act does not limit the right to complain to anyone, everyone, even non
australians, have the possibility to start a complaint (CO 2013). In fact, a guide brochure for people
willing to complain has been made in up to thirty languages. This openness leads inevitably to a
scrutiny phase in order to collect the right and investigable cases 80. There is also the possibility to
make an anonymous complaint, but this may limit the ability to investigate (CO 2013).
Among the method used to conduct investigations there are no significant constraints to perform its
investigative activity. For instance, there is no law that implies any constraint in the methodology
used by the Ombudsman. Although it can perform its activity with a very wide range of methods,
constraints that can affect the conduct of investigations might limit its accessibility to informations.
The main limitations are set out in the Freedom of Information Act of 1982 - AFOIA. The
documents related to the security of the Commonwealth, the Territory or any State, the defence of
the Commonwealth, the Territory or any State or the international relations of the Commonwealth
that are able to reasonably damage the security of Australia and its people are exempted from public
publications (Australia 1989, art. 37a1). This may be seen as a first sever limitation to the
Australian Ombudsman. In fact, “a document is an exempt document if there is in force an
enactment applying specifically to information of a kind contained in the document and prohibiting
persons referred to in the enactment from disclosing information of that kind, whether the
prohibition is absolute or is subject to exceptions or qualifications” (Australia 1989, art. 38) which
states that even the Ombudsman, as other citizens, is not in charge to access it. However, the

80Even though this may be an excellent example of democracy, it might be though that not everyone knows Australian’s
laws and its current situation. This might explain the high number of cases that have not been considered because they
were out of the jurisdiction (CO, 2012. 40). This evidence might be an explanatory fact of the policy to increase the
awareness of the public to the role of the Commonwealth Ombudsman. For this purpose, the Commonwealth
Ombudsman has also provided better tools for its accessibility which may serve to complainers to understand how the
Ombudsman may help them (CO 2012, 47).
75
possibility to incur documents exempted from public knowledge may be higher than in other
Countries. Australians have several limitations to documents’ accessibility also in those not related
to defence’s secrecy. The exemption cases are contained in the articles 39 to 51 of the Freedom of
Information Act and might range a dependance of the risk to damage in any way the provision 81
from documents related with Commonwealth and States, executive documents, internal working
documents, documents affecting enforcement of the law and protection of public safety, documents
to which secrecy provisions of enactments apply, documents affecting financial or property interests
of the Territory documents concerning certain operations of agencies, documents affecting personal
privacy, documents subject to legal professional privilege, documents relating to business affairs
etc., documents affecting economy, documents containing material obtained in confidence,
documents disclosure of which would be contempt of Legislative Assembly or a court, Certain
documents arising out of companies and securities legislation, electoral rolls and related documents.
Among the other laws it is possible to note several remarkable empowerment of the Australian
Ombudsman Institution. The Telecommunication (interception) Act of 1979 - ATIA (Australia, art.
83.1) provides the Commonwealth Ombudsman the right to access to the Australian Federal Police,
Australian Crime Commission and Australian Commission stored records, investigations,
interception, surveillance devices, controlled and cover operations 82 because, under chapter 2 it has
the obligation to investigate their integrity. Aarticle 88 particularly and the following four of this act
clarify the troubles that may occur whenever a public servant holding a classified record required by
the Ombudsman refuses to give the Ombudsman access to it. In fact, in these cases, given the scope
of classified information in Australia, the Ombudsman may tend to incriminate the public servant in
order to limit its accessibility.
In addition, today, the action of the Ombudsman is today affected by the Public Interest Disclosure
Act of 2012 which allows everyone to make a public interest disclosure (art. 14) and thus also the
Ombudsman which may also receive disclosures (art. 34).
However, the Commonwealth Ombudsman is not in charge of formulating any binding orders but it
can address its recommendations to the relevant stakeholders which are mainly the Federal
Parliament, State’s Parliaments and the responsible of Public Agencies. A refuse to cooperate

81 In fact, “the principal officer of the agency, or the Minister, has reasonable grounds to believe that the document
would, if it were in the possession of a Commonwealth agency, be an exempt document under the Freedom of
Information Act 1982 (Cwlth), section 33, 33A, 34, 35, 39, 44 or 47” (art. 33.1b). This is very a broad definition. It
might allows Government Institutions and Agencies to classify several informations and it may give to the executive a
very strong discretionary power not only in Defense Sector.
82 However, the Commonwealth Ombudsman’s role ensure that “ongoing and long-term controlled operations
conducted by Commonwealth agencies are externally reviewed” and “law enforcement agencies obtain information and
keep sufficient records to demonstrate that they are only dealing with lawfully obtained information” (CO 2012, 18).
76
accordingly to law with the Commonwealth Ombudsman by a public servant should be considerate
at the same plan of analysis of improper use and application of power such as what is generally
considered by the public but this time in regards of the Ombudsman. Consequently, the
Ombudsman would act in the same way as it is reporting the infraction to the relevant stakeholder.
The access to stored information is a systematic issue for the Ombudsman’s investigations. In
addition, the Commonwealth Ombudsman can monitor the implementation of its recommendations
such as the recommendation on the limitation that often occurs to stored data (CO 2012, 116-118).
This is the reason why the Australian Ombudsman Institution has provided an extensive feedback
about communication failures and opportunities for improvement. This is a consuetudinary practice
(CO 2012, 141).
The Commonwealth Ombudsman works in a favorable condition. In fact, it can count on “a high
level of acceptance of its recommendation and suggestion of improvements” (CO 2012, 18). In
addition, the Commonwealth Ombudsman benefits of a regional shared knowledge and resources
provided by the Pacific Ombudsman Alliance which has helped to develop culturally appropriate
tools 83 (CO 2012, 128-129).
Within its general mission the Defence Ombudsman as the Commonwealth Ombudsman has the
responsibility to:

• Investigate complaints about Australian Government agencies and make recommendations for resolving
complaints;
• Implement a Postal Industry Ombudsman function applying to public and private sector postal operators
• Foster good complaint handling in Australian Government agencies;
• Highlight problems in public administration through complaint handling, own motion investigations and
reporting;
• Contribute to public discussion on administrative law and public administration;
• Focus attention on the adverse impact government administration can have on individuals;
• Promote open government;
• Inspect the accuracy and comprehensiveness of records on selected law enforcement activities;
• Assess the appropriateness of immigration detention arrangements in individual cases;
• Conduct inquiries as requested by government;
• Collaborate with State, Territory and Industry Ombudsmen;
• Collaborate with Ombudsman offices in the Asia - Pacific region (CoA 2013)

By the article 19.1 of the Ombudsman Act, the Commonwealth Ombudsman is obliged by law to
publicize annually its activity report. Additionally, the Institution publicize periodically several

83 Especially for the issues relate to Australian natives and indigenous community (CO 2012, 137).
77
releases using different media focused on issue papers, presentations, speeches, fact sheets, good
practice guides and editorial. During the year 2011–12 the Commonwealth Ombudsman has
received 40’092 complaints resulting in the highest number of complaints ever submitted. However
only 22’991 have been considered because they were in-jurisdiction. The Defence Ombudsman has
received 662 complaints (CO 2012, 150) which is only 3% of the cases handled by the
Commonwealth Ombudsman (CO 2012, 43). However, 470 cases have not been investigated. A
total of 706 cases have been finalized between 2011 and 2012 (CO 2012, 150). Although not every
cases finalized investigation only nine cases have been finalized within a month from the date of the
complaint and 47 within three months. Many cases are finalized on the same day and others within
seven days from the complaining date (CO 2012, 11).
The Defence Ombudsman has made remarkable contribution with reports and submissions within
2012 such as a Review of the Management of Incidents and Complaints in Defence, and a Review
into the Treatment of Women in the Australian Defence Force (CO 2012, 108).
In the end, Commonwealth Ombudsman has interacted with society in deliverances that are
intended to implement such as improving costumer satisfaction in service quality for greater
parliamentary and public assurance of covert powers are lawfully used (CO 2012, 9).

78
4.3.2 Canada

The canadian concept of national security is explained in the relative security policy. It “deals with
threats that have the potential to undermine the security of the state or society. These threats
generally require a national response, as they are beyond the capacity of individuals, communities
or provinces to address alone” (Canada 2004, 3).
The Canadian Forces (CF) are the major actor of the Department of National Defence. The laws
that regulate the rights and the obligations of the Department of the National Defence are, first, the
Constitution - The Constitution Act of 1987 - that with Section 15 is attributed to the ruling of the
United Kingdom with the role of command-in-chief of the Forces. Section 117 allows the provinces
the right to withdraw their public property except when the federal government requires them to
defend the nation. Second, the Canadian Charter of Rights and Freedoms, which guarantees basic
rights even to the military. Thirdly, there is Access to Information Act requires that the right of
access to informations and records under the control of the governmental Institutions including the
Department of National Defence. The information must:

• Provide timely, correct information to the public (and Within government);

• Determine public views and Concerns;
• Enable answerability, visibility and accessibility.

Among the laws defining responsibilities and authorities of the National Defence the National
Defence Act of 1985 gives the Minister of Defence and the Department of National Defence the
authority to manage all matters relating to the defense and the Canadian Forces (sss The
Emergencies Act gives to the Government additional capabilities to make orders and regulations
when a state of national emergency has been declared. Thirdly, the Aeronautics Act which gives to
the relevant responsibilities to the Minister and the Department of National Defence for the
protection of the Canadian airspace. Lastly, the Fisheries Act that imposes Canadian Forces the
protection of fish stocks (forces.gc.ca 2012).
Canada is an active member of the North Atlantic Treaty Organization and it is part of the United
Nations. In 1986, the Canadian Army had been the object of a long-term political plan for twenty
years that should enable to Canada to strengthen its whole Defense Sector. The defense strategy of
Canadians corresponds to a major milestone of the legislation’s plan of the actual Government. The
overall aim is to enhance “security for Canadians and gives the military the long-term support it so
critically needs and deserves now and in the future” (CND 2008, 2).

79
The reform plan counts on the synergy of the military industry which is expected to be able to meet
the technological and equipment requirements for this period. The policy goals for of the Canadian
National Defense Forces are to:

• Protect Canadians from a variety of threats;

• Be a strong and reliable partner in defending North America in cooperation with the U.S. 84;
• Contribute to international peace and security by making meaningful contributions to operations overseas
which should enhance Canadian’s military leadership.

This reform plan brought the Canadian Army strong investments over the last two years in order to
ensure its modernization and increase its capabilities which are based on personnel, equipment,
readiness and infrastructure. Secondly, it is expected to increase the size of the forces and replacing
their core capabilities. Starting from the year 1986 where the Canadian’s Government has granted to
its defense program almost 10’000 millions of Canadian Dollars, a major effort of investment in a
constant investment growth by 2025, reaching about 31’000 millions of Canadian Dollars is
expressed is expected.
The Canadian Army consists of about 90’000 personnel (almost 70’000 regular forces and 20’000
reserve personnel) which includes almost 25’000 civilian workforce. It is expected to reach about
100’000 personnel in 2025 (CND 2008, 12-14).
Security issues are not new for this Nation. The canadian national security is one of the most
important priorities in its international policies. In addition, Canada has a considerable attention to
issues regarding international security and more precisely it shows an active part in building peace,
international order, struggle against terrorism85, good government and helping to develop failed and
failing states (Canada, 2004, ix-2). Canada cares particularly to its allies in which it wants to prove
itself by being a valuable support (Canada 2004, 5)
The Canadian Army is currently involved in 22 operations. Among the most relevant, is the
Operation Attention occupying 925 active personnel in Afghanistan. “Canada’s participation in the

84 Especially for the daily continental operations of the North American Aerospace Defence Command - NORAD.
Conduct daily continental operations (including through NORAD). The U.S. are the main defense partner of Canadian
Forces. The Canadian Army takes part in bilateral training and in crisis’ joint response in cooperation with U.S. which
implies to be interoperable with the US military. Since 2005 Canada aims to enhance the North American defense
cooperation both inside and outside the North American’s airspace and to increase the role of Permanent Joint Board on
Defence with U.S. (Canada DND 2005, 22-23).
85 The issue of terrorism is particularly heard by Canadians that are contributing actively in an international panorama.
The key initiatives of the passed years have been: “Increase Canada’s diplomatic contributions to the resolution of
regional disputes that are exploited by terrorists to mobilize their support; Push for full implementation of international
conventions to combat terrorism and terrorist financing; Provide technical assistance to countries willing to combat
terrorism through a new Counterterrorism Capacity Building Program, anchored in Foreign Affairs; Increase the
Canadian Forces’ capacity to participate with allies in counterterror operations” (Canadian DFAIT 2005, 12).
80
NATO Training Mission–Afghanistan (NTM-A), which delivers training and professional
development support to the national security forces of Afghanistan: the Afghan National Army
(ANA), the Afghan Air Force (AAF), and the Afghan National Police (ANP)”. Secondly the
Operation Artemis which occupies 250 soldiers in the “participation in maritime security and
counter-terrorism operations in the Arabian Sea region with the multinational coalition task force
CTF 150” (forces.gc.ca a, 2012).
Among Canada’s current security threats, terrorism is considered a major threat. It includes
religious extremism, violent secessionist movements, State-sponsored terrorism and Domestic
extremism. Other relevant security threats are the proliferation of weapons of mass destruction,
failed and failing states which are considered a factor of security development, foreign espionage
against Canada, natural disasters that have recently affected many Regions, critical infrastructure
vulnerability, organized crime, and pandemics which may be a major threat in a globalized world.
The Canadian Army, as other Western States, is multipurpose regarding the security objective to be
pursued in a complex and evolving international environment (Canada, 2004, 12).
Canada has a high view regarding evaluation and oversight mechanism of the Army. It is customary
to make performance assessments that are made on international standards and bench-markings.
The oversight function is implemented by the Auditor General86 and the Parliamentary Committees
and are subject to continuous improvements in order to guarantee the effectiveness of the system.
For this purpose, the Minister of Public Safety and Emergency Preparedness has had the
responsibility to strengthen the auditing capabilities which has included a review of the plans to
assure the auditing during emergencies. Consequently, a National Security Advisory Council has
been created which is expected to help six security activities Intelligence, Emergency, Planning and
Management, Public Health Emergencies, Transportation Security, Border Security, International
Security (Canada 2004, 13).

86 With the Auditor General Act, Canada has established an agent of Parliament “with the responsibility to scrutinize
departmental programs and expenditures. The Auditor General is required to advise Parliament of wrong-doing,
inefficiencies and non-compliance with regulations and procedures, and to assess program effectiveness. The Act
recently established the position of Commissioner of the Environment and Sustainable Development and tasked
departments to develop and report their ‘sustainable development strategy’ through the Commissioner” (forces.gc.ca
2012).
81
Table 4: Canadian Army Summary Table 87

Canadian Army Summary Table

Branches Canadian Forces: Land Forces Command (LFC), Maritime
Command (MARCOM), Air Command (AIRCOM), Canada
Command (homeland security).

Alliance NATO Founder; April 4th 1949

Air Forces Armed Forces Army Navy

Personnel 14'000 59'000 20'900 9'000

Total Military $9,801,700,000.00 % of Government 7,5%

Expenditures* expenditures***
Conventional Army $543,000,000.00 Expenditure > % GDP 1,14%
exports**
Conventional Army $340,000,000.00 Armed Forces Growth -29
imports**
Manpower Availability Males 8'391'120 Females 7'813'462

Weapon holding 1'774'000

* This figure is taken by the Canadian Military data page on nationmaster.com where the data has been taken
by the World Bank data indicators. “It has been is calculated by multiplying the estimated defense spending
in percentage terms by the gross domestic product (GDP) calculated on an exchange rate basis not
purchasing power parity (PPP) terms. Dollar figures for military expenditures should be treated with caution
because of different price patterns and accounting methods among nations, as well as wide variations in the
strength of their currencies” (Nationmaster, 2013).

** In current American Dollars.

*** This figure has been take by the World Bank data indicator (2013, 308).

87 The data has been collected from the World Factbook 2008 of the American Central Intelligence Agency (CIA 2008).
82
4.3.2.1 Canadian Military Ombudsman
The Canadian Military Ombudsman is an independent institution with an exclusive jurisdiction 88
that is mandated to deal exclusively with the Armed Forces.
It was established in 1998 with its relative Ministerial Directive which reveals a non common
approach to the Military Ombudsman Institution because it was established by the executive with a
decree (Buckland & McDermott 2012, 18). Its establishment has been triggered from a need to “lay
a sound foundation and develop an effective operational framework. The fundamental building
blocks of transparency, openness and accountability were emphasized during this process. With
these responsibilities have come several challenges, including staffing, finding a location for the
office, funding, reporting, developing a mandate and complaint process, as well as tackling privacy
and access issues” (CMO 1999, 1).
By law, the Canadian Military Ombudsman has to report its results publicly and yearly its results to
the Department of National Defence89 and to the Canadian Forces. Counting more than fifty
members of staff in its office, the Canadian Military Ombudsman is appointed by the Department of
National Defense which has granted in 2012 a total of 4,336,887 Canadian Dollars which 3,666,110
have been related to employee salaries (CMO 2012, app II). The Institution has a very wide range
of duties. It is charged with several tasks ranging from receiving and investigating complaints,
monitoring the armed forces’ compliance with national military law and monitoring the armed
forces’ compliance with national and international human rights law, monitoring the armed forces’
compliance with international humanitarian law, commenting on existing laws or proposed laws,
making recommendations to the armed forces on reforming practices/procedures, making
recommendations to government or parliament on new legislation to educate the armed forces about
the national or international legal standards (CMO md, art. 3, 4, 5 and 6). The Canadian Forces that
the Military Ombudsman oversees are basically the entiere Army except for the military police, a
military judge or court and some other particular cases listed in the articles 14, 15 and 16 of the

88 The term exclusive jurisdiction is the term that Benjamin Buckland and William McDermott (2012, 34) in their
handbook for Ombudsman Institution for Armed Forces have used to classify the Canadian example.
89Although the annual report is submitted firstly to the Minister the report will be accessible to the public after 60 days
and no one “other than the Ombudsman shall alter a report [...] except when necessary to conform with the requirements
of the Privacy Act” (Art. 38).
83
Ministerial Directive on the Ombudsman’s limitations 90. It is in charge of overseeing the Air Force,
the Navy, the Paramilitary Forces, the civilians working in the Armed Forces as well as all the
private contractors working for the Armed Forces.
Even if the Canadian Military Ombudsman is able to initiate an investigation without a complaint or
a specific request, the investigation process can be triggered by a complaint raised by a member of
the armed forces, a complaint raised by a family member of a current or former member of the
armed forces and/or a complaint raised by a member of the public and the executive (CMO md, art.
12). Generally, the Canadian Military Ombudsman has few constraints on methods applied to
conduct an investigation. It can conduct interviews with the individuals involved in a complaint,
schedule and unschedule visits to Armed Forces’ installations, hear attended by members of the
executive and/or the Armed Forces, review of documents or written correspondence as well as
attend, visits to the Armed Forces deployed overseas (CMO md, art. 3, 6 and 22). In addition, the
Ombudsman Institution has however the power to subpoena people and power to subpoena
documents in a Court.
Nevertheless, the Canadian Ombudsman Institution has constraints in accessing classified
information in certain cases of emergency or contrasting with contingent rights91 such as the
protection of sensitive operational information, the protection of national security/state secrets and
the functional or personal immunities, privacy and other limitations. The Armed Forces or the
executive can decline an Ombudsman’s request for information (CMO md, art. 24). In Addition to
this, it could occur to impose requirements that the Canadian Forces personnel to first direct their
complaints to an authority within the military chain of command. The Military Ombudsman should
not intervene if the complaint has not been received within the time limits where the complaint is
treated in one of the following cases: the Canadian Forces redress of grievance process, the public

90 “The exercise of discretion in laying charges by the chain of command or the CF National Investigation Service or in
preferring charges by the Director of Military Prosecutions; matters which are the exclusive jurisdiction of the Treasury
Board as the employer and bargaining agent, under the Public Service Staff Relations Act; the review of the foreign
signals intelligence and information technology security activities of the Communications Security Establishment;
occurrences prior to June 15, 1998, unless the Minister considers that it is in the public interest, including the interest of
employees or members of the DND or the CF as a whole, for the Ombudsman to deal with the matter; any legal advice
to DND or the CF, employees of DND, members of the CF or the Crown, by a person acting as legal counsel in relation
to any matters or any proceeding; professional conduct and professional standards under the jurisdiction of a Bar of a
province” (CMO md, art. 14).
91 “The Ombudsman may be denied access to information for reasons of security in accordance with government
security policy. The Ombudsman may be denied access to facilities, employees, members or information for only as
long as it is justified for operational requirements. If any person objects to providing access to facilities, employees,
members or information to the Ombudsman on the basis of compelling operational or security requirements, the
Ombudsman may request a review of the objection by the competent authority up to the CDS when the objection is
based on operational requirements; or up to the CDS or Deputy Minister when the objection is based on security
requirements (CMO md, art. 24, i, ii, iii).
84
service grievance and complaints process, the Security Intelligence Review Committee; the
complaint process under Part IV of the National Defence Act (CMO md, art. 13).
Whenever a public institution refuses to cooperate with the investigations, if the Military
Ombudsman “is not satisfied with the explanations provided by the competent authority for not
providing access to the Ombudsman to facilities, employees, members or information, the
Ombudsman may, after reasonable notice to the Minister, submit a report under section 38 relating
to the Ombudsman’s concerns on the denial of access” (CMO md, art. 24, iv).
Among the laws and directives that can limit its power of investigation there are Privacy Act
Government Security Policy, Police Informant Identity Privilege, Spousal Privilege (As defined in
sections 74 and 75 of the Military Rules of Evidence, Consolidated Regulations of Canada, 1978,
chapter 1049, amended by SOR/90-306), Solicitor Client Privilege, Penitential Communications
(As defined in section 78 of the Military Rules of Evidence, Consolidated Regulations of Canada,
1978, chapter 1049, as amended by SOR/90-306) (CMO md, subsection 25).
The Canadian Military Ombudsman Institution handles approximately more than 1’500 cases each
year. In 2012, it has handled 1’913 cases of which 1’412 were new complaints (CMO 2012, 32).
The main categories of complaints include benefits, release, medical, recruiting, redress of
Grievance, posting and harassment (CMO 2013). It focuses its action more on questions linked to
maladministration (Buckland & McDermott 2012, 3).
The model of Military Ombudsman implemented by the Canadian Army is a broader example for it
might concern the extension of the right to complain (Buckland & McDermott 2012, 60). In fact,
the individuals charged with the right to introduce a complaint are current or former members of the
Cadets, current or former employees of the Department of National Defence, current or former non
public fund employees, people applying to become a member, members of the immediate family of
any of the previously mentioned and/or individuals on an exchange or secondment with the
Canadian Forces (CMO md, art. 12).
The Canadian Military Ombudsman is empowered to issue recommendations to the lowest level of
authority (CMO md, art. 17) and it is not in charge of imposing penalties but it can appeal to the
judiciary to enforce its findings. The Institution has by law the obligation to make members of the
Armed Forces aware of its functions and how to submit complaints. However the obligation has not
given satisfactory results and it is expected to be reformulated by imposing to take part in forces
training programmes with a minimum of three outreach visits a year (CMO 2012, 19).
The independence of the Canadian Military Ombudsman from any political party is an objective of
the Institution which “intend to pursue a fully independent mandate under the National Defence Act

85
by conducting a thorough review of the Ministerial Directives with a view to producing a critical
analysis of the operational challenges inherent in these directives, including looking at options to
remove the practical hindrances to serving our constituents that currently exist” (CMO 2012, 3).
However, the Canadian Military Ombudsman does not seems to have an high degree of
independence because “the Minister could issue general policy directives affecting the activities of
the Ombudsman that could, in theory, suspend an investigation” (Buckland & McDermott 2012,
60).

86
4.3.3 United States of America

In several occasion within the last decades, the United States of America have demonstrated their
willingness to renew the “leadership by building and cultivating the sources of our strength and
influence” (White House 2010, 7). The leadership of the United States in the Defence Sector is
linked with the common though that they posses the most efficient defense organization in the
world. In order to maintain this leadership, in 2010 the U.S. (White House, 7) have planned a new
defence strategy approach which consist of four main objectives that will influence the next
decades:

• The security of the United States, its citizens, and U.S. allies and partners;
• A strong, innovative, and growing U.S. economy in an open international economic system that promotes
opportunity and prosperity;
• Respect for universal values at home and around the world; and
• An international order advanced by U.S. leadership that promotes peace, security, and opportunity through
stronger cooperation to meet global challenges.

The U.S. accrue from a drastic change in the defence doctrine and conception. In fact, the cheerless
facts of September 11th, 2001 have played a crucial role in transforming the role of implementation
in the american armed forces. For this reason the U.S. are intended to continue their fight against
terrorism92 and their campaign for global security where the main threat are the weapon of mass
destruction, particularly nuclear weapons. Despite 11/09/2001, the american defence doctrine has to
deal with a changing world that now involves more influent actors such as the European Union, the
remerging Russian Federation, India, China and all those Countries with a relative economic
influence able to affect the U.S. foreign policies, the U.S. resources allocation and the U.S. defence
planning (White House 2010, 9).
Additionally, the globalized changing world has led the U.S. to consider a new kind of approach of
security which has shifted to make the distinction between homeland and national security.
“National security draws on the strength and resilience of our citizens, communities, and economy.
This includes a determination to prevent terrorist attacks against the American people by fully
coordinating the actions that we take abroad with the actions and precautions that we take at
home” (White House 2010, 10). The United States (2008) have a special ministry for assuring

92Moreover, in order to counter the U.S. terrorism vulnerability, it has been made in 2004 an Intelligence Reform and
Terrorism Prevection Act which regulates the new tasks and duties of the Department involved in the evolving struggle
against terrorism.
87
homeland security named Department of Homeland Security which has been created in 2002 with
the relative Homeland Security Act. Among the main tasks of this department is the prevention of
terrorist attacks that, as we noted already, is one of the most experienced threats of United States. In
addition, the Department also has the mission to minimize the U.S. risk to be targeted by terrorist
attacks and to reduce the damage of the attacks (U.S. 2002, art.1). In addition, other global
objectives of the Department is to globally enhance security, to secure and manage american
borders, to enforce and administer american immigration law, to safeguard and secure cyberspace
and finally to ensure resilience to disasters (U.S. 2013). Consequently, the activities implemented
by this department are mainly of intelligence and protection of information93 . The existence of a
new department such as this one might need a strong effort to coordinate the national security
which is the main task of the Department of Defence, a department that is already very often
criticized for its structure and its piloting.
The Department of Defense of the United States of America which is based in the Pentagon is
responsible for the provision of the armed force within the military branch “needed to deter war and
protect the security of the United States”. The Department consists of four major sub-departments -
the Army, Navy, Air Force94, and Marine Corps - and 17 related agencies such as the Coast Guard
and the National Guard and 9 other commands (DoDa 2013). The main feature of the american
defence governmental system is that the “President is the Commander-in-Chief, while the Secretary
of Defense exercises authority, direction, and control over the Department” (DoDa 2013).
The American Defence plan is set out in the last available white paper of 2012 where the general
American Defence strategies and goals for the next years are listed of. This kind of publications has
been imposed by the Freedom of Information Act of 1966 (U.S. art. 1) while the Openness
Promotes Effectiveness in our National Government Act of 2007 (U.S.) sets out the general
requirements 95 and standards that U.S. public agencies must follow during their external
communication in the section number eight.

93 The section 202 of this article has been developed around the need to protect secrecy and sensible informations.
Moreover, on this subject is particularly relevant the Patriot Act of 2001 which “allows surveillance and searches if the
government declares that ‘a significant purpose’ of that activity is gathering foreign intelligence. In the past, such
searches and surveillance had been allowed if ‘the purpose’ was to obtain foreign intelligence”. Recently, this Act has
been found unconstitutional by a Federal Judge in Oregon because this new reformulation of the Federal Intelligence
Surveillance Act may lead to many interpretations and misinterpretations which, in some cases, may allows the
Government to avoid to demonstrate a probable cause to its searches and surveillance (Jo Keller 2007).
94 The American Air Force - USAFF - is the first in the world for number of soldiers (Nationmaster, 2013).
95 The most relevant it is probably linked to the practice promised by the President Barack Obama at the beginning of
its first mandate of improving by direct democracy by using ICT which it is supposed to enhance public debate before
that decision have been implemented (Obama 2008).
88
The size and the complexity of the structure of the American Department of the Defence, that as we
noted is not the only one involved in the national security, is very extensive if compared to
departments of other nations. Consequently this has lead to have a greater amount of publications
and activity reports for every sub-department or agency involved in the Department of the Defence.
However, this extraordinary number of publications - countable in thousands - may lead civil
society to encounter difficulties 96 during document research. For instance, the main strategy of the
Department of Defence is appointed by the President in charge of the United States which has the
final word on the general policy adopted by the Department. The current mission of the Department
of the Defence (DoDa 2012, 4-6) is pointed out in the current white paper Sustain U.S. Global
Leadership: Priorities for 21st century defence:

• Counter weapons of mass destruction;

• Operate effectively in cyberspace and space;
• Maintain a safe, secure, and effective nuclear deterrent;
• Defend the homeland and provide support to Civil Authorities;
• Provide a stabilizing presence;
• Conduct stability and counterinsurgency operations;
• Conduct humanitarian, disaster relief, and other operations.

Another main goal of American defence policy is the cooperation between American Allies to
organize and implement the Joint Force 2020. The joint force must be able to quickly combine
capabilities and share knowledge among each partners for facing the new global threats (Garamone
2012).
In order to pursue all of these objectives, the United States has allocated to the Department of the
Defense with 655.9 billions of American Dollars in 2012 and they have planned to allocate further
530.6 billions of American dollars for 2013 (DoDb 2013, 22).
The Department of Defense has also been the object of an internal strategy plan which aims to
enhance its general performance. Four main pillars of the internal structure reform (DoDb 2013, 23)
are as follows:

• Create a force that is smaller and leaner, but also agile, ready, flexible, and technologically advanced;
• Rebalance our global posture toward Asia- Pacific/Middle East;
• Build innovative partnerships and strengthen alliances;
• Protect and prioritize investments in new capabilities ;

96 In another extent the difficulty to reach the needed information is provided by the largeness of details of the
documents. For example the fiscal budget - publicized in the named Green Books - calculation of a single year 2013 is
published in several volumes that all together consistes of more than 1200 pages.
89
The first internal objective will bring the Department of the Defense to disband 97 many soldiers.
From 153,112 active personnel, the Department will have about 135,112 active personnel in 2013
(DoDd 2013, 1).
The United States of America are probably the main influent member of the North Atlantic Treaty
Organization and it has been seen as the drawing member and the leader of the alliance both during
the Cold War and the present days. The United States of America are involved in different types of
conflict98, ranging from peacekeeping operations, joint peacekeeping operations and other kind of
combat operations. Among the most important and remarkable started in 2001 in Afghanistan to
counter the Taliban insurgents, the Philippines started in 2002 that has been a training mission for
Philippine military fighters, Colombia started in 2003 to protect oil pipelines from Colombian
rebels, Iraq started in 2003 to counter the Saddam Hussein regime accused to hide nuclear weapon,
Pakistan in 2005 that has seen air strikes and special forces raids on Al Quaeda and Taliban refuge
villages, Somalia started in 2006 against Ethiopian pirates, Yemen started in 2009 against Al Qaeda
and lastly in Libya started in 2011 where NATO coordinated air strikes and missile attacks against
the regime of Muammar Gaddafi in order to help the rebel army.

97This is also a consequence of the end of a period of sectorial wars which have seen the U.S. as protagonist. Namely
Afghanistan and Iraq.
98 The records has been collected on GlobalSecurity.com
90
Table 5: U.S. Army Summary Table 99

U.S. Army Summary Table

Branches US Army, US Navy (includes Marine Corps), US Air Force, US
Coast Guard; note - Coast Guard administered in peacetime by
the Department of Homeland Security, but in wartime reports to
the Department of the Navy

Alliance NATO Founder; April 4th 1949

Air Forces Armed Forces Army Navy

Personnel 370'300 1'366'000 479'400 380'600

Total Military $3,189,000,000,000.0 % of Government 17,9%

Expenditures* 0 expenditures***
Conventional Arms $5,453,000,000.00 Expenditure > % GDP 4,08 %
exports**
Conventional Arms $533,000,000.00 Armed Forces Growth -37
imports**
Manpower Availability Males 72'715'332 Females 71'638'785

Weapon holding 38'538'000

* This figure is taken by the U.S. Military data page of the World Bank online indicators. It has been
calculated by dividing the estimated World Bank percentage military expenditures of Governmental on
estimated GDP in current (2012) american dollars. The data reflects the situation in 2012 (World Bank
2013).

** In current American Dollars.

*** This figure has been take by the World Bank data indicator and it refers to the federal level expenditure
(2013, 310).

99 The data has been collected from the World Factbook 2008 of the American Central Intelligence Agency (CIA 2008).
91
4.3.3.1 U.S.A. Military Ombudsman
The Ombudsman is integrated in the Inspector General of the Department of Defense. The
Inspector General is a general auditing institution and it is in turn integrated in the Department of
Defense. Consequently, although there are exemptions due to the need for secrecy, every agency
integrated in the Department of Defense is subordinated to the Inspector General and Ombudsman
action within the armed forces. This auditing institution has jurisdiction over all sections of the
armed forces. The institution has been established in 1978 with the relative Inspector General Act.
The reason why it was established is provided by the article 2 of its act (U.S. 1978):

• To conduct and supervise audits and investigations relating to the programs and operations of the
establishments;
• To provide leadership and coordination and recommend policies for activities designed to promote economy,
efficiency, and effectiveness in the administration of, and to prevent and detect fraud and abuse in, such
programs and operations; and
• To provide a means for keeping the head of the establishment and the Congress fully and currently informed
about problems and deficiencies relating to the administration of such programs and operations and the
necessity for and progress of corrective action.

Like the Inspector General of other Department and top level management of public institutions, the
Inspector General of the defense has to be appointed by the President in charge of the Unites States
with the advice and consent of the Senate. Nevertheless, the President has the power to remove an
Inspector General (U.S. 1978, art. 3). In addition, it has to “report to and be under the general
supervision of the head of the establishment involved” (U.S. 1978, art. 3a).
The general duties of the Inspector General are fully described in the article 4 of the act. First, of
all, it has “to provide policy direction for and to conduct, supervise, and coordinate audits and
investigations relating to the programs and operations of such establishment”. The Ombudsman of
the Inspector General - OIG - of the Department of the Defense has been established with an
executive decree. Its establishment is relatively new; only in 2009. The Ombudsman of the
Department of the Defense is appointed by the Inspector General of the defense (OIG DoD 2009, b
and d).
It is mandated to serves “as an independent, impartial and confidential resource for OIG personnel
seeking early resolution of workplace related concerns. Ombuds services authorized under this
instruction are voluntary procedures which supplement rather than limit other grievance or
complaint processes” (OIG DoD 2009, d). The working core values of the American Ombudsman
example are listed in a code of ethics which contain four objectives. Independence: “the

92
Ombudsman reports directly to the IG100. He works outside the typical protocol and dynamics of the
DoD OIG. The ombuds is not officially part of management and is fully authorized by the IG to
engage all members of the DoD community at all levels. [Secondly, confidentiality]. The
Ombudsman does not disclose, and is not required to disclose, any information provided in
confidence, except to address imminent risk of serious harm. Identities of visitors are not revealed
without consent. Information may be disclosed provided the source not revealed [Third, neutrality].
The Ombudsman conducts inquiries and facilitates resolution in an impartial manner that is free
from bias, conflicts of interest and conflicts of position [and fourth the informality which implies
that the Ombudsman] does not serve as part of any formal grievance, complaint or investigative
process” (OIG DoD 2013).
The Ombudsman of the Department of the Defense has to:

• Provide a professional working environment that fosters commitment, excellence, and teamwork;
• Encourage recommendations and suggestions that may improve the general administration and operation of
the OIG;
• Promote the amicable and conciliatory resolution of internal conflicts, disputes and workplace concerns
through the Office of the Ombuds;
• Provide the Ombuds as the principal advisor and designated neutral for alternative dispute resolution and
conflict management within OIG in accordance with references (a) through (f); and
• Not tolerate any form of retaliation against an employee for contacting the Office of the Ombuds for
assistance.

The Ombudsman shall receive complaints and start a complaining process by its own initiative. It
has to address the complaint to the most appropriate supervisory level which gives him a
discretionary power. However, findings of misconduct should be addressed to the Office of the
Professional Responsibility (OIG DoD 2009, f.2).
Among the methodology used to perform its investigations he/she should conduct informal
inquiries, develop, evaluate and discuss the possibility to solve the problematics occurred by
facilitating the interaction among parties. It is considered as a key role for informal mediations and
negotiations which implies a great skill in diplomacy. After the negotiation process is concluded he/
she should make “recommendations for the resolution of individual or systemic problems” and than
he/she should identify patterns and trends related to similar cases. Moreover the Ombudsman of the
Inspector General of the Department of the Defense is responsible for the education and training of

100This helps to state its general independency is bidden for its duty to account to the Inspector General which, even
though is an audit commission that should somehow independent, is under the control Department of the Defense.
93
the employees of its office for an amicably conflict resolution (OIG DoD 2009, f). The last
available of the report of the American Ombudsman Institution (OIG DoD 2010, 4) has remarked
several favorite processes which he/she is able to perform:

• Conciliation: building a positive relationship between the parties to a dispute;

• Negotiation: the fundamental process of dialogue between interdependent parties who seek to satisfy needs,
interests, and/or find acceptable solutions to shared problems;
• Mediation: a facilitated negotiation to allow parties reach an acceptable resolution of issues in dispute;
• Shuttle Diplomacy: serving as an intermediary between involved parties in dispute without those individuals
being in direct contact with one another (e.g. a mediator “shuttling” back and forth);
• Group Facilitation: a variety of techniques to help parties clarify goals, improve the flow of communication,
and achieve specific group objectives;
• Partnering: used to improve working relationships by seeking to prevent disputes before they occur. Training
• Education: teaching the conditions that cause conflict and using experiential opportunities to learn practical
skills for handling resolution in a respectful and positive way;
• ConflictCoaching: assisting individuals determine behaviors/actions that will help them reach their objectives
as it relates to how they approach and resolve specific problems or overarching conflict;
• Ombuds Climate Assessment: a process applied within larger groups that identifies shared interests, differences,
problems and opportunities for resolution and/or positive organizational change.

Thus, the american Ombudsman system of the Department of Defense enhance the cooperation and
the information sharing with the ombudsmen in accordance with law and the requirements of
security (OIG DoD 2009, 3b).
In 2010 which is the last data available, the office of the Ombudsman of the Department of the
Defense has handled 963 cases. The major categories of complaints handled by the Ombudsman of
the Department of Defense concerning the mission, strategic and organizational issues and
supervisory relationships usually cover a special place of importance for the defense sector’s
employees. In 2009 and in 2010 these two figures have covered more than half of the complaints
handled. Following these two main categories of complaints, the office has handled career
progression and development issues, administrative and customer service issues, colleague
relationships issues, safety, health and physical environment issues, values, ethics and standards
issues, pay and benefits issues and lastly, policy, legal, regulatory and financial compliance issues
(OIG DoD 2010, 5).
The Ombudsman office of the Department of the Defense counts 325 collaborators and affiliates of
the Inspector General (OIG DoD 2010, 5). This closeness to the an audit institution may increase
the performance of the Ombudsman.

94
The benefits which the Ombudsman Institution is supposed to give to the Department of the
Defense are:
• Create a secure venue to raise concerns anonymously with no fear101 ;
• Serve as an “early warning system” for managers and leaders;
• Identify imbedded, systemic problems;
• Receive and provide real-time feedback;
• Propose valuable, Agency-wide enhancements;
• Promote efficiency by supporting effective change management;
• Provide leadership with a unique enterprise-wide perspective;
• Generate practicable, targeted solutions;
• Save resources by eliminating unfair processes and improve inefficient business/administrative processes;
• Provide a means of internal control - vulnerable areas can be identified anonymously and corrected before
material weakness arise;
• Enhance transparency and accountability (OIG DoDa 2013, 12).

The Ombudsman of the Inspector General of Department of Defense has been criticized for its
internal conduct. Employees have been unsatisfied for several different issues ranging from career
development to technical management to the priority setting as other fields (OIG DoD 2010, 9-14).
Finally, the cases handled by the American Ombudsman example are mostly related to mission,
strategic and organizational matters and supervisory relationships among soldiers. These first two
categories represent almost 60% of the total cases handled in 2010. Other minor types of cases are
career progression and development, administrative and customer service issues, colleague
relationships, safety, health, and physical environment, values, ethics and standards, Pay & Benefits
and Policy, legal, regulatory and financial compliance (OIG DoD 2010, 5 and 8).

101 The No FEAR Act is intended “to require that Federal agencies be accountable for violations of
antidiscrimination and whistleblower protection laws” (U.S.a 2002, 1).
95
5. Conclusions

Transparency and accountability are not only the cause102 and necessity of the process of public
review of public policies, but are considered today even as explanatory indicators of overall
performance of a free democracy (Roller 2005, 24).
Transparency in decision-making is essential to ensure that outcomes of decisions are consistent
with public intentions and policy objectives (Born, Fluri and Johnsoon 2003, 130). For this reason,
transparency must be considered not only as a right or an imposition, but also in an ethical matter
(Pasquier & Villeneuve 2011, 107).
A result of the “expansions of administrative agencies since the New Deal has been an
enlargement ... of oversight function, a traditional legislative function that philosopher Stuart Mill
considered as the most important responsibility of a legislature” (Oleszek 2008, 510-11). This has
been the consequence of a growing independence from the Government of many public sectors.
Even though the Security Sector still tends to be held almost completely by the Government, it may
more bound than other public sectors to implement such Good Governance reforms.
So far, it has been devoted lot of words to define transparency as a quality and a requirement for
Democracy. Since the Armed Forces can be considered the executive, it should not give them a
chance to politicize them selves. As each executive branch, they are supposed to be policy-neutral
and “execute” the public will. Consequently, they should provide informations in order to give to
the citizen the possibility to analyze their actions. This is a reason why several kinds of controls
and oversights are being developed even in the Security and Defense sector.
Moreover, it is possible to find a relationship of dependency among the several types of Security
that has been treated between the first part of this thesis. For instance, as it has been briefly
introduced, safety and security of individuals of a society will depend mainly from the
Governmental action. Thus, this Personal Security will depend on the Nation Security which in turn
will depend on the behavior of Nation in the international community. Consequently it is possible to
state that Personal and National Security could be achieved also by international cooperation.
Achieving an international Security will affect National Security and than the safety of its
population. For this reason, many NGOs are pushing forward to enhance collective security by
fostering international cooperation103. Consequently, International Security can be achieved by

102 “As publicness increases, so does the prospective of scrutiny” (Nutt & Backoff 1992, 41).
103A cooperative process requires already on its own transparency. If there is no transparency a cooperative action will
not be happily accomplished.
96
enhancing transparency among Nations which is supposed to hassle fear that is the main attempt to
security.
Thomas Friedman (2000, 248) in his book The Lexus and the Olive Tree has observed that “no two
countries that both had McDonald's had fought a war against each other since each got its
McDonald's”. Globalization and interconnection of nowadays World facilitate cooperation and than
it strengthens international security which should lead to evolve international and democratic
control. These positive implications of globalization and transparency over security are thus the
pillar for a peaceful future. “Tradition over the use of force can shape collective consciousness over
a long period of time but it can also be quickly disrupted by significant world developments, such
as the end of the Cold War and the unilateral British-American decision to declare war on
Iraq” (Bono 2005, 55). Consequently, we can assert that even if there might be some barriers in
implementing Ombudsman office today may became accepted in the collective consciousness in
future.

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5.1 Thesis’ results

This chapter is intended to present finings and results emerged by the comparison of the three
Ombudsman approaches considered in the last section.
First of all, a reason why the Ombudsman Institution is becoming widely accepted104 and its
implementation is taking a positive feedback in most of Security Sector Reforms is due to its aim to
reconcile parts in errors without consist costs by avoiding to choke tribunals. As it has been stated,
the action of Ombudsman consists generally in solving problem of maladministration, but it can be
also expand to Human Rights and more delicate issues.
Along these lines, Ombudsman Institutions have started to cooperate both at domestic level and at
international level (Buckland & McDermott 2012, 34). “Ombuds institutions strive for both
independence and impartiality: their effectiveness depends on the maintenance of trust and respect
vis-à-vis both the state and the people, including members of the armed forces. Indeed, one thing
that makes such institutions unique is that they seek to improve the quality of the relationship
between the people and the administration by avoiding unnecessary conflicts” (Buckland &
McDermott 2012, 4-5).
The conception that has been assumed as an element of judgement a priori and which has been
confirmed by some findings of this analysis is that hardly ever an approach can be declared as the
best one, but it may present some advantages in regard to the others. In fact, trying to implement the
same model in another State may reveal itself not only a substantial change but a counterproductive
strategy. For these reasons we can consciously state that there is not a better approach because each
one of them should be understood in its particular environment. However, there are some common
good practices that should follow by every kind of these Institutions which are summarized in the
annex number 6. Secondly, the most interesting finding relating to the topic treated in this research
is the role of the Military Ombudsman as contributor of enhancing and fostering accountability and
transparency. In fact, in order to reconcile parties, the investigations unfurled by the Ombudsman
are intended to seek the truth which, once publicized, it should be known by the public.
Metaphorically, if the secret services are supposed to serve Government will, Ombudsmen can be
considered as a secret agents for society. For this reason, it is important that the Ombudsman is not
involved in policy making process.
Below it is presented a table which aims to summarize the main features and peculiarities of the

104 This is even more sustained by the United Nation General Assembly (UNGA 2011) which has encouraged the
international cooperation of Ombudsman Institutions by exchanging lesson learned.
98
three approaches discussed in this research and considers the Australian Ombudsman as the most
wide and not integrated example, the American Ombudsman as the most close and integrated
example and the Canadian Ombudsman in the middle.

Table 6: Comparison Summary Table 105

AUSTRALIA CANADA U.S.A.

Legal status Legal statute with the Negotiated mandate but no Executive decree of the
of the office Ombudsman Act. legal statute. Inspector-General.

Any maladministration by To protect human rights of To keep the head of the

member of the Australian employees of the Department establishment and the
Functions Defence Forces. of National Defence and Congress about problems and
members of Canadian Forces. deficiencies relating to the
administration.

By whom is By the Australian Federal By the Defence Minister for a By the President in charge of
the MO is parliament. 5-year term (renewable). United States.
appointed?

Everyone. Even non Current and former members All members of the DoD
Who can Australians. of the CF and DND, and community.
initiate a family members
complaint or the Defence Minister, the
trigger an military chain of command, a
investigation member of parliament the
? MO, with notice to the
Defence Minister.

What kind of Any case which is not Any individual complaint Any case which is not
cases can the investigate by juridical within the purview of the CF investigate by juridical
MO address? institutions. and DND systemic issues. institutions.

The complain may be refused The complainant must have The investigation may start
when it is not in-jurisdiction. attempted to resolve the only if there is no other
complaint by referring it to juridical Institution that are
What
the chain of command or the interested in the case.
preconditions
military grievance system.
must be
The MO can refuse a
fulfilled
complaint if it is un- timely
before the
or frivolous or if it would
MO can
require an injudicious use of
accept a
resources.
case?
The MO can accept a
complaint directly in
compelling circumstances.

105The table has been made not only with the information that have been cited in the description of country ombudsman
but also with Parliamentary overisght of the security sector: Principles, mechanism and practices (Born, Fluri and
Johnsoon 2003Born, Fluri and Johnsoon 2003, 90-91), Military Ombudsmen (DCAF 2006, 3) and by the text of
Buckland & McDermott (2012) that has been largely used in this thesis.
99
 AUSTRALIA CANADA U.S.A.

The Commonwealth makes The MO makes The DoD Ombudsman makes

recommendations and can recommendations and can recommendations and can
follow-up his follow-up his follow-up his
What is the recommendations which are recommendations with the recommendations.
nature of the usually largely followed. relevant bodies with a view However, its findings have to
MO rulings? to monitoring be addressed to the most
implementation. competent Institution that is
supposed to solve the
problematic.

Submits annual reports to the
minister for presentation to
the Parliament. Very high
standards of accountability.
Reporting
Reports to the Department of Annual report to the
National Defence and to the Inspector General and several
Canadian Forces. publication by the Inspector
Annual report to the minister General to civil and military
on its activities. society.
Independent from the
management of the Minister
Defence, neutral and
objective board

The Commonwealth The MO publishes an Annual Specific reports and IG

Ombudsman may publish Report which is tabled in publications which due to
recommendations and report Parliament by the Defence their consideration, are the
What other on specific issues to the Minister and debated by the most powerful among the
sources of Parliament and the civil relevant parliamentary sources of influences.
influence society. committees.
does the Its recommendations are The MO also publishes
Office have? usually largely followed. Special Reports on specific
investigations, when he
judges this to be in the public
interest.

What about Access may be not granted. Access may be not granted. Access not granted.
classified
information?

As we mentioned previously, this thesis is has not been intended to identify the best approach of
those considered. A research object of this kind would inevitably bring to a performance106 analysis
which may require a particular effort to compare three different institutions that may share just few
characteristics among them. Thus common indicators of their effectiveness may be hard to find.
Measuring effectiveness will be inevitably linked to their performance, here intended as the

106 The concept of performance is one of the most abstract and fuzzy notions one can find in the academic and
organizational literature. As a result, some authors even question the possibility to defining it (Bourguignon 1995,
61-66). In economics, the concept of performance refers to the idea of performing an action. The performance is then
precisely the fact of obtaining a result which implies, of course, that this result will be satisfactory (Caby, Clerc-Girard
& Koehl 1996, 49-56). The notion of performance of a productive sector refers therefore to two key dimensions. Firstly,
the effectiveness which is the relationship between the expected results and those found (Knoepfel et. al. 2007, 230). If
and only if these two effects will be aligned, then the policy will be fully effective. It is a question of making a
comparison between the objectives and the results and than evaluating if the result has been achieved. Accordingly, to
this notion are subordinated the notions of coherence and legality of the measures taken. Secondly, the efficiency, which
can be defined as the relationship between the results and their cost (outcomes/resources), and then evaluating if the
result has been achieved in the right way (Knoepfel et. al. 2007, 233). This analysis mainly resends to the analysis of
costs, the advantages, the cost-efficiency (Perret 2008, 19) and the relationship between costs and benefits.
100
performance in achieving results107 and not the performance linked with the notion of efficiency.
For this reason, it has been judged more appropriate to analyze these approaches in they cultural
context by attempting to investigate their advantages and disadvantages. In fact, it could be argued
that changing one of these three approaches in one of these countries may not lead to a better
performance of the Ombudsman. Thus, as we stated previously, the aim of the last part of the thesis
attempts to investigate the positive and negative implications that these approaches may offer.
As it has been discussed during this research the independence of every juridical institution that has
to make a judgement and formulate a statement is a must have requirement in order to perform their
activity without any kind external influences. “Only a truly independent Ombusdman, who has no
formal ties to the broader organization and no potential conflicts of interest will be trusted and
respected by the members of the Defence community and by those whose actions or decisions are
being investigated” (CMO 2008, 41). While analyzing these approaches it is possible to find a
correlation between presumed independence and expertise. More independent offices such as the
Australian Commonwealth Ombudsman may lack in expertise due to its general approach.
Although the Australian example has a Military Ombudsman division may not have the same
expertise108 as an integrated approach such as the American Ombudsman of Defense. The American
military Ombudsman is in a particular position because even though it has not financial
independence, it has a very high expertise. However, it may be argued that its dependence from the
Department of the Defence may threat the legitimacy and the consistency of its decision. Contrary
the Canadian Military Ombudsman lies in the middle and it should benefice of a considerable
independence and a discrete expertise. Another problem that may occurs to the American Military
Ombudsman shared competencies between the Ombudsman office Inspector General on which the
Ombudsman depend. This may translate logistic problems and waste of resources for cases treated
two times by more than one office. This is even more enhanced by the fact that there are few
statuary legal basis that narrow the Ombudsman and the Inspector General action.

107In addition to the ratios presented in the summary comparative a very explicative indicator may be found in the rate
of recommendations issued by the Ombudsman that have been implemented. “The implementation rate of
recommendations issued by the ombuds institutions varies from total compliance in Serbia, Sweden, Norway, Slovenia,
Finland, and Estonia to 71 percent in Canada; 70 percent in the Netherlands and Germany; and 60 percent in
Poland” (Buckland & McDermott 2012, 153). Certainly, investigating for example their level of confidentiality which
may reveal itself a detailed indication of their way to work, may lies more with a general performance evaluation
approach which needs to develop an evaluation by taking care of cases handled.
108 The high level of expertise is given from two main factors. Firstly, it is supposed the fact that the American
Ombudsman is integrated within the Department of the Defence and part of the personnel is in service in the Army
would enhance the general know-how for treating cases. This will also lead to a rapidity in complain handling.
However, the institutionalization of the American Ombudsman is relatively new and this may lead to a lack expertise as
well.
101
Even though, the instrument of analysis provided by DCAF are more than useful, however, it
should be noted that including these occurrences in a particular scheme of analysis may be
challenging. In fact, Institutions such as the Canadian example may be difficult to be classified in
one of these approaches. The Canadian Military Ombudsman, which has been classified as an
oversight provided by civilians, is physically located in the Department of National Defence.
Maybe, as Buckland and McDermott (2012, 32) pointed out, this proximity may threat its real
independence. In fact, the Canadian Military Ombudsman as the American example, is very often
the object of reservation made by the military hierarchy. As we noted in the previous chapters,
independence consists also in not to be dependent on budgeting. For instance, the Canadian
Institution does receive its financial resources from the the Department of Defense (Buckland &
McDermott 2012, 43). In addition, the Minister can issue general policies and directives that may
affect the activities of the Ombudsman that, could, in theory, suspend an investigation (Buckland &
McDermott 2012, 48). However, the oversight provided by a civilian staff should strengthen
accountability and reputation of the Defense Sector, particularly for the Department of National
Defense.
General approaches such as Australia may suffer of competence’s issues which may lead to create
interferences among the Ombudsman’s divisions. In fact, “there are a number of Defence-related
portfolio agencies that we receive complaints about and which we can investigate as either the
Commonwealth Ombudsman or the Defence Force Ombudsman, depending on the
circumstances” (CO 2012, 107). The exclusive jurisdiction such as the one of the Australian
Commonwealth Ombudsman and the Canadian Military Ombudsman Institution may stand as a
prove of this independence because no other rules of other Department should be followed as it is
the case for the American Military Ombudsman. On one hand, the American Ombudsman may have
more independence due to its few laws, but since it is an integrated institution, on the other, this few
laws may enhance its dependence from the Department of the Defence because it should follow the
rules and procedures - especially for leadership oriented management - of the Department.
Another substantial difference that has emerged while analyzing these approaches is within the right
to complain will enhance accessibility. Institutions such as the Australian example allow everyone,
even no Australians, to start a complaint. “On the other hand, however, it can be argued that this
ease of access has also increased the number of frivolous complaints, something that has caused
increased strain on the finite resources of some ombuds institutions. This may be particularly
problematic in cases where the institution is obliged to investigate all complaints received by the
office, as is the case in Finland. It is less of a problem in places such as Canada where the mandate

102
provides a specific exception to the obligation to investigate where an allegation is frivolous or
vexatious” (Buckland & McDermott 2012, 63). Perhaps, if the right to complain is broadly
extended it may play a favorable role to Democracy, but contrary it may cost in efficiency to the
Ombudsman Institution which can be overcharged in its capacity of handling complaints. The
Canadian and the American examples have some limit to this public accessibility.
Additionally, not every Ombudsman Institution has the discretionary power to decide which case
should be handled. Whenever the Ombudsman has the duty to start an investigation after every
complaint submission, the office may be overcharged and than this may have a negative effect on its
general efficiency. Moreover, “a number of threats to the effectiveness ... have been identified,
including: an insufficient legal basis or even conflicting regulations pertaining to the ombuds
institution; legal limitations placed on the office to conduct field and base visits; and the lack of
access to classified information” (Buckland & McDermott 2012, 17). Again, due to their culturally
specified context109, it may be difficult to generalize the advantages and disadvantages of legal basis
that regulates the actions of ombudsmen. An “advantage of systems that constitutionally establish
such a body is that a constitutional foundation underlines the importance of the institution, placing
it on a par with other essential state bodies. A second advantage is that, by enshrining its existence
in a constitution, its permanence is highlighted” (Buckland & McDermott 2012, 18). Consequently,
declaring its legal status in the Constitution, such as the Australian Commonwealth Ombudsman
attest importance and prominence to the Institution. In fact, the Australian example has generally
and traditionally a strong influence on political decision 110 making and its recommendations almost
never have been ignored. However, this prominent role in Australian political life may be a double-
edged sword because it may generate public pressures while emitting a decision or a
recommendation. Then, these public pressures 111 may have a negative response on the final
judgment. “Nevertheless, even in states where the constitution mandates the existence of an ombuds
institution, a legislative process is generally required to establish the functions and powers of the
body (as is the case in states where the body is established by legislation or executive

109The environment in which these institutions works is generally very different. For Instance Canada and Australia do
not have the same amount of non in-country operations. This, as numerous ombuds institutions have noted may have
repercussions in carrying out effectively their mandate because it may ascertain financial and logistic challenges
Buckland & McDermott 2012, 66). This is the case of the American Military Ombudsman that has many no in-country
complaints which may be hard to handle concerning the need to seek informations and the possibility to solve cases
rapidly.
110 Additionally, the Commonwealth Ombudsman Institution has the power to propose legislation which certificate its
strong power and influence upon Australian society.
111 The worst case of public pressure would bring to politicize the ombuds office which will seriously treat its
independence and thus its ability to pursue its mandate without interferences.
103
decree)” (Buckland & McDermott 2012, 20) such as Canada and United States. The strong
influence that the Australian Institution has on Australian political life is also due to the fact that this
ombuds general approach it is not specialized only on a field of ombuds issues, but it expands its
activities of complaints handling and investigations on every sector of public life and public
administration. Consequently, the Commonwealth Ombudsman is a point of reference112 for several
- and not only - Australian citizens. This is even demonstrated by the huge number of complaints 113
handled yearly by the entire Institution. Even if the sheer size of the Commonwealth Ombudsman
may lead to formulate scope and scale economies, the running costs should weight considerably on
the final budget of the Institution.
Another very important finding is related to the access of classified informations which is therefore
a very important feature in order to assure the coherence of the final recommendation. Of course, it
may be legally ensured that the Ombudsman that has the privilege to access to classified
informations should not reveal these knowledges. So what would happen if in order to solve a case,
a classified information is a compelling evidence? If the Ombudsman is not in charge to investigate
classified informations and admitting that only one of the two parts to reconcile has the power to
access to essential classified informations, which one should have reason? What would be the
dynamics now? The Commonwealth Ombudsman, which it seemed to be the example that works in
the most favorable conditions, may not have access to classified informations if these are contrary
with the public interest (ACOA 1989, art. 11).
Finally, the Canada and especially Australia, can be deemed as models of accountability and
transparency. The reports analyzed and the informations publicized of the Ombudsman web-sites
are very satisfactory. However, even if, the United States have generally a strong tradition of
accountability and clear impositions about the contents of Ombudsman’s reports within its decree
(Buckland & McDermott 2012, 133), at the end of a thorough analysis, the information found of the
Ombudsman Institution are few and unsatisfactory. Of course, counting the fact that the American
Ombudsman is integrated within the Inspector General, many informations are contained among the
Inspector General reports. However, the American Ombudsman has provided the public a very open
and extensive Narrative which the other two examples do not have. All of these elements may be
explained by the fact that the the American Ombudsman is relatively new if compared to the other

112This feature of the Australian example plays a particular role in equalizing the rights and power among civilians and
military because they should be treated in the same way by a general approach such as this Institution.
113 In order to avoid a waste of resources due to the huge number of complaints the Canadian and American
Ombudsman have implemented measures to educate the population and the military staff about its functions. This
strategy should help to reduce the number of complaints out of jurisdiction and avoid useless wastes of time and
resources.
104
example. The “Ombudsman may wish to provide the opportunity for clients to express comments
which may not otherwise have been solicited in the survey” (Fowlie 2007, II).

105
5.2 Revaluation of used methodology

As it has been mentioned already that during the redaction of this thesis, there was no attempt to
make a comparative assessment about the performance of the three Military Ombudsman Institution
but rather to highlight what are the positive and negative characteristics that these different
approaches can offer. Certainly, the Ombudsman is not the only promoter of transparency within an
Institutional system, but it would be interesting to investigate by using criteria of transparency to
evaluate its contribution. It has been stated that the ability to start investigations and given an
account to the public of Ombudsman’s findings are factors that enhances transparency and persuade
public institutions to be accountable for their actions in order to avoid to be found at fault. A more
practical approach with concrete examples to prove this statement may been also well fitted.
However, “there is a general lack of practical information on the functioning of ombuds institutions
for the armed forces” (Buckland & McDermott 2012, 6) which may be play as a constraint for a
practical approach. Even though, it is possible to find lots of cases handled by Military Ombudsman
Institutions in their special reports but it may be harder to discover how the job has been done and
this may weigh positively or negatively on a judgement on their general performance.
As we noticed already during the thesis, some of the performance indicators that it has been used to
track the advantages and disadvantages of the three approach considered are not that strong enough
to give a critical judgement and to determine a best practice of approach. Although the three
different approaches come from an anglo-saxon cultural approach which may be a shared common
points for a comparative analysis, their social, juridical and institutional environment and their size
is however too different to track common roots because they are, in fact, examples of three different
approaches. Even if they might are linked by their similar cultural roots, the nature of the cases
treated might be very different as well. This would, in fact, depend more on the role of the Army of
which these three nations have decided to give. For example, the cases that might be treated by the
American Military Ombudsman might be significantly different from those usually treated by the
Australian Commonwealth Ombudsman because the American Army is involved in many military
operations and warfares whereas the Australian Armed Forces are not.
Nevertheless, the performance criteria that has been collected within the summary Ombudsman
comparison table they might be an explanatory fact for the juridical constraints that these
Ombudsman Institutions might have in order to fulfill their duties.
As we will discuss in the next chapter, laws provide an excellent tools of analysis in order to
understand what were the origins of the institution which may be for example a compliance in a

106
Court or a democratic initiative, etc. This has been particularly interesting to track the reasons of the
mandate that the Military Ombudsman Institution has received. Consequently the mandate should
determine the governance structure of the office which should be the best one to perform the
mandate required. During the development of this last part of the thesis the assumption that the
governance structure will have an effect on the final outcomes and the planned results.
Consequently, the SWOT analysis which has been used within the comparison of the previous
chapter has been chosen for it capacity of being able to provide the necessary data develop
strategies to exploit strengths at best, to improve each weakness and to take advantage of and
benefit from opportunities and reduce each threats.
In addition, even if it has not been implemented a proper logic model for each institution analyzed,
the logic model proposed by Frank Fowlie in the section The Evaluation Strategy of its
practitioner's guide for evaluating Ombudsman offices (2007, III) which is attached in the annex
number 3, has strongly influenced the development of the methodology used to collect and analyze
the data collected of the Military Ombudsman Offices described in the previous chapters.
Moreover, the questionnaire provided by DCAF which has proposed a list of questions of
evaluation and performance indicators that has given a very significant support for developing the
comments emerged in the SWOT analysis of the last chapter.
Although, some of these questions are more related to the performance of the office, they can be
easily applied to a generic approach of evaluation of the Military Ombudsman adopted by these
Countries. Of course, an analysis champion that takes into account more than a single Ombudsman
example for each approach considered would certainly be more relevant. Nevertheless, it was
possible to assume with relative certainty the implications that these different approaches can have
on the overall effectiveness which has been the scope of this research. Certainly, taking more
example of these three approaches would give more informations to develop a discussion than
focusing on a single entity which, however, has gave the possibility to develop a more depth and
specific knowledge in this institutional field. In addition, these three Nations have been chosen also
by the accessibility of information provided. In fact, it is possible to conclude that these three
examples are among those Nations that accountability and transparency considered core values of
Democracy.
This method has showed important indications with which it has been permitted to underline the
contribution of a practice that is supposed to improve democracy effectiveness.
Yet this work does not have the proposal to analyze the performance of these offices but to develop
an academic abstraction on the benefits and disadvantages of these different approaches might

107
entail. However, this did not lead to give a final judgement on a presumed best approach. In fact,
the cultural and environmental differences that may subsist among these three nations could make
such weak such assertion because it may be difficult or even counterproductive to introduce another
approach in a different social and legal system. Consequently, for this reason the conclusions were
intended to highlight the advantages and disadvantages of these approaches can boast in their
national context.

108
5.3 Possible developments of this research

In order to develop a more depth analysis, it would be useful to reconstruct in historical key what
were the causes of the adoption of such approaches. This would ensure to discover and highlight the
cultural context that led to the evolution of such a model. For this purpose, law places itself in a
particularly favorable situation as much as in any other matter is able to determine the shared will of
a population from which it is possible to identify the characteristics of the social environment in
which it has developed because the different approaches would take form at the institutional level
by law.
In order to ensure an adequate knowledge of the possible institutional, legal and social constraints
present in a Country, a qualitative investigation arises in principle among the best instruments that
would be able to identify these characteristics. To do this, it would be interesting to provide
questionnaires to members of the ombuds institutions, to people who have had the opportunity to
interact with the services offered by the ombuds institution and also to all stakeholders related with
the Military Ombudsman Institution considered.
Therefore, it would be interesting to investigate the design and the ombuds institutions have on staff
bundle. In order to have a more critical judgment on their work, the qualitative approach would also
ensure to discover with ease and clarity the way of working of these institutions. The perception of
stakeholders could be an important tool in order to find the performance and effectiveness of these
institutions. We might sustain that in these cases of qualitative analysis the literature may be used as
an auxiliary and serves as a justification to strengthen and guide suppositions such as those
formulated in this research - theory guided - (Chenail 1995). Thus the concepts considered in this
research may at least orient the formulation of the interviewee (Corbetta 2003, 63).
Furthermore, in a comparative perspective, an empirical investigation of cases solved and unsolved
by these Military Ombudsman Institution occurred in practice can make a considerable data on
which develop an analysis on both a working methodology while implementing some of the classic
indicators of assessments such as legality, effectiveness, efficiency, coherence. Surely, this will lead
to have also a statistical basis on which enforce findings.
“Historically the evaluation ombudsman offices has consisted of value for money audits, or by
using case studies to demonstrate individual or systemic improvements to administration with the
ombudsman as a catalyst for change” (Fowlie 2007, I). For example, in a comparative prospective it
would be interesting to find the difference between the budget granted and the budget demanded.
Ombudsman’s “services are offered free of charge and are far more informal than a typical court

109
proceeding. Furthermore, ombuds institutions should endeavor to make their services as easily
accessible as possible by providing a variety of means by which individuals can file
complaints” (Buckland & McDermott 2012, 23-24). For these reasons, it should be interesting to
discover the costumers’ perception about their cost and accessibility and this, can be achieved with
a qualitative analysis.
“The evaluation tells us if there are issues, processes, connections, values or orientations which
could or should be improved ... The need to change can be demonstrated by evaluations. The
evaluation is particularly important to demonstrate the integrity of an institution which, in the
Ombudsman case, its one of its core values. In fact, by an open and transparent evaluation and
reporting process, the integrity of both the office, and the assessment process, is
demonstrated” (Fowlie 2007, II). Frank Fowlie (2007, I) has analyzed the most relevant and used
methodology to evaluate the performance of Ombudsman Institution. It as argued that a good
Ombudsman evaluation should consider a multi-facetted approach in order to ensure a good
comprehension of the complexity of Ombudsman activities. For this purpose it has cited a Result
Based Management Accountability Approach - RMAF - which provides a long-term evaluation
support. Research questions and determine criteria on which performance objectivity and credibility
would be demonstrated are the essential first step for an effective evaluation. These questions might
be very similar to those used previously granted by DCAF. Fowlie (2007, VI) has provided also a
methodology to use some international standard such as ISO 10002 and ISO 10003 in order to
evaluate Ombudsman Institution in a becnhmarking comparison. To this aim it has argued three
different mechanisms such as, self evaluation which has the advantage to be “low cost, may be done
over time or at single window of time; practitioner is knowledgable about the operation-evaluation
may be done [and its] protects confidentiality”. However disadvantages “may been see as insular or
lacking independent credibility; may not be able to use comparators; [and it may suffer of]
practitioners’ lack of evaluation expertise”. Another method is a peer evaluation which present the
advantage of the possibility to be “cost effective; outsider review promotes independent results;
promotes collegial relationships; reciprocal evaluations by participants [and it] encourages
development of best practices”. Nevertheless, also to the peer review may cost some disadvantages
such as, as we already noted, “findings a colleague with a similar ombudsman operation; peers may
lack or have disparate evaluation skills; may be seen as a quid pro quo arrangements”. The last
method provided in this paper are the ISO approved evaluator which are “likely completed quickly,
and with professional reporting; credibility of third party review; ‘bragging rights’ over meeting
ISO standards” but however, they might have costs their utilization.

110
Appendix
Appendix 1: Military Ombudsman Analyzed Approaches - SWOT analyisis
Table 7: Australian Commonwealth Ombudsman approach - SWOT analysis
AUSTRALIA - Commonwealth Ombudsman
Strength
Known, traditional and reputed
Institution;
Independent oversight body;
Recommendations are difficult to ignore
Internal factors due to its strategical political role;
Exclusive jurisdiction (legitimation);
International cooperation on lessons
learned;
High accessibility (even non Australians)
Opportunities
External factors Equalize rights and powers among
civilians and military;
Contribution to freedom and rule of law
of members of society;
Possibility to propose legislations.
Table 8: Canadian Military Ombudsman approach - SWOT analysis
CANADA - Military Ombudsman
Strength
Independency from the Department of
National Defense;
Exclusive but negotiated mandate..
Internal factors
Opportunities
External factors Strengthen accountability and reputation
of Defense Sector while being over-
sighted by a civilian Institution;
Educate public to its functions.
Weakness
May lack of expertise for specific cases;
Conflict of competences in handling
cases;
Public pressure;
Politicization.
Threats
High running costs which may lead to
have insufficient resources.
Weakness
Its physical localization in the Department
of National Defence may threat its real
independence;
Civilian oversight mechanism may lack of
expertise;
Significant running costs.
Threats
It is the object of military reservations due
to the military hierarchy;
Its closeness from the Department of
National Defence may threat its
independence.
111
Table 9: U.S.A. Military Ombudsman approach - SWOT analysis

U.S.A. - Military Ombudsman*

Strength Weakness

High expertise; Poor accessibility;

Rapidity to handle and solve complaints;
Accessibility to IG know-how.
Internal factors
Shared competences with IG;
Few statuary legal basis (executive
decrees);
Learning new institutions;
Weak possibility of reviewing proposed
legislation.

Opportunities Threats

External factors Educate public to its functions; No financial independence;

Support from Military leadership. Many no in-country complaints;
Legitimacy and confidence for its
dependence from DoD.

* The American Military Ombudsman is integrated in the Inspector General which in turn is integrated in the
Department of the Defense. Thus, identify and distinguish the precise external and internal environment it has
been more challenging due to its integrated approach.

112
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Annexes

Annex 1: Security Sector’s Actors

Taking as a basis the OECD Guidelines (Council of European Union 2005, 7), the security sector
can be defined as a system which includes:

- The core security actors: armed forces; police; gendarmeries; paramilitary forces; presidential guards,
intelligence and security services (both military and civilian); coast guards; border guards; customs authorities;
reserve or local security units (civil defense forces, national guards, militias).

- Security management and oversight bodies: the Executive; national security advisory bodies; legislature and
legislative select committee; ministries of defense, internal affairs, foreign affairs; customary and traditional
authorities; financial management bodies (finance ministries, budget offices, financial audit and planning units)
and civil society organizations (civilian review boards and public complaints commissions).

- Justice and law enforcement institutions: judiciary; justice ministries; prisons; criminal investigation and
prosecution services; human rights commissions and ombudsmen; customary and traditional justice systems.

- Non-statutory security forces, with whom donors rarely engage: liberation armies; guerrilla armies; private
bodyguard units; private security companies; political party militias.

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Annex 2: Tools for Parliamentary Oversight of Security Sector

Instruments or tools that may be used by parliament for securing democratic oversight of the
security sector

1. General Powers
a. To initiate legislation
b. To amend or to rewrite laws
c. To question members of the executive
d. To summon members of the executive to testify at parliamentary meetings
e. To summon military staff and civil servants to testify at parliamentary meetings
f. To summon civilian experts to testify at parliamentary meetings g. To obtain documents from the executive
h. To carry out parliamentary inquiries
i. To hold hearings

2. Budget Control
a. Access to all budget documents
b. The right to review and amend defence and security budget funds c. Budget control is exercised on the level of
programmes, projects and line-items
d. The right to approve/reject any supplementary defence and security budget proposals

3. Peace missions/deployments abroad: the parliament’s right to approve/reject:

a. Participation in decision-making before the troops are sent abroad b. Mandate of the mission; ensuring a UN
mandate
c. Budget of the mission
d. Risks of military personnel involved
e. Rules of engagement
f. Chain of command/control
g. Duration of the mission
h. The right to visit troops on mission

4. Procurement
a. Obligation of the executive to fully inform parliament on procurement decisions
b. The right to approve/reject contracts
c. Review of the following phases of procurement:
i. Specifying the need for new equipment
ii. Comparing and selecting a manufacturer
iii. Assessing offers for compensation and off-set

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5. General Defence and Security Policy: the right to approve/reject
a. Security policy concept
b. Crisis management concept c. Force structure
d. Military strategy/doctrine

6. Defence/security personnel
a. The right to approve/reject the personnel plan
b. The right to fix ceilings for manpower
c. The right to approve/reject or the right to be consulted on the highest military appointments (such as chief of
staff)

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Annex 3: Irish Ombudsman of Defense Forces model of complain-handling

*A former member can lodge complaints in relation to alleged actions which occured while he or she was a serving
member. The person responsible for the alleged action and the complainant must have been serving members at the time
of the alleged action.

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Annex 4: Logic Model for the Office of the Ombudsman

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Annex 5: Military Ombudsman Institutions: A comparative Prospective - Questionnaire.
The following questionnaire has been taken by Hans Born, Aidan Willis and Benjamin S. Bucklans:
Military Ombudsman Institutions: A comparative Prospective, contained in pages 18-30 and
publicized by DCAF. Policy Paper 34.

SECTION A: STATUS & STRUCTURE

1. Which of the following models best describes your ombudsman institution?

☐ an independent ombudsman institution which is mandated to deal exclusively with the armed forces.
☐ an ombudsman institution which is integrated within the armed forces, and has jurisdiction over all sections of
the armed forces.
☐ an ombudsman institution which is integrated within the armed forces but only has jurisdiction over on
branch of the armed forces, e.g. the army.
☐ a general ombudsman institution that is mandated to address complaints arising from/within the work of the
armed forces.

2. When was your ombudsman institution established?

3. What is the legal basis of your ombudsman institution?

☐ Constitution
☐ Statute
☐ Executive decree
☐ Other (please specify):

4. What triggered the establishment of the ombudsman institution?

5. Which institution appoints the ombudsperson?

☐ Parliament
☐ The minister of defence
☐ The head of government/state
☐ An independent body
☐ Other institution (please specify):_______________________________________

6. How many members of staff does your office have?

☐ 0-5
☐ 6 - 20
☐ 21 - 50
☐ More than 50

7. (a) What is your approximate annual budget (in €)

(b) Who allocates the budget for the ombudsman institution?

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SECTION B: MANDATE & FUNCTIONS
8. Which of the following tasks is your ombudsman institution mandated to perform?

(Where applicable, please rank these functions in order of importance: 1 = most important, 9 = least important.)

☐( ) To receive and investigate complaints

☐( ) To monitor the armed forces’ compliance with national military law
☐( ) To monitor the armed forces’ compliance with national and international human rights law ) To monitor the
armed forces’ compliance with international humanitarian law
☐( ) The comment on existing laws or proposed laws
☐( ) To make recommendations to the armed forces on reforming practices/procedures
☐( ) To make recommendations to government or parliament on new legislation
☐( ) To educate the armed forces about the national or international legal standards
☐( ) Other (please specify):_________________________________________

9. Which of the following institutions is your ombudsman institution mandated to oversee?

☐ The army
☐ The air force
☐ The navy
☐ The military police
☐ Paramilitary forces (such as the gendarmerie)
☐ The coastguard
☐ Civilians working for the armed forces
☐ The military judicial system
☐ Private contractors working for the armed forces

SECTION C: INVESTIGATION PROCESSES

10. Which of the following can trigger an investigation by your ombudsman institution? ART. 12.

☐ A complaint raised by a member of the armed forces

☐ A complaint raised by a family member of a current or former member of the armed forces ☐ A complaint raised
by a
member of the public
☐ The executive (e.g. the minister responsible for defence or the head of government)
☐ Parliament
☐ The military police
☐ The civilian police
☐ The judiciary
☐ An independent oversight body (e.g. a human rights commissioner)

11. Can your ombudsman institution initiate an investigation without a complaint or a request from any of the
institutions mentioned in question 12?

☐ Yes. ☐ No.

12. Which of the following methods are used to conduct investigations?

(Where applicable, please rank the use of these methods in ascending order: 1 = most used, 6 = least used.)

☐( ) Interviews with the individuals involved in a complaint

☐( ) Scheduled visits to armed forces’ installations
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 ☐( ) Unscheduled visits to armed forces’ installations
☐( ) Hearings attended by members of the executive and/or the armed forces
☐( ) Review of documents or written correspondence
☐( ) Visits to the armed forces deployed overseas
☐( ) Other (please specify)

13. Which of the following investigatory powers does the ombudsman institution possess?

☐ The power to subpoena people

☐ The power to subpoena documents
☐ The power to access all premises relating to the work of the armed forces

14. Can the ombudsman institution access classified information as part of an investigation?

☐ Yes. ☐ No.

15. (a) Can the armed forces or members of the executive decline requests for information?

☐ Yes. ☐ No.

(b) If so, on what grounds can requests for information be denied?

☐ The protection of sensitive operational information

☐ The protection of national security/state secrets
☐ Functional or personal immunities: privacy and other limitations.
☐ No justification is required to decline a request for information from the ombudsman institution
☐ Other

(c) Have requests for information been denied?

☐ Yes. ☐ No.

16. What actions (if any) may the ombudsman institution take if officials decline to cooperate with its
investigations?

17. In practice, is your institution able to access the information required to perform its functions?

☐ Yes. ☐ No.

18. Please list the main obstacles (if any) to acquiring information necessary to investigate complaints:

19. (a) Does your institution have the right to conduct visits to members of the armed forces and/or bases
overseas?

☐ Yes. ☐ No. (b) If so, has this happened?

☐ Yes. ☐ No.

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20. (a) Is your ombudsman institution able to refer cases to the police or prosecutorial authorities?
(If yes, please tick whether this is the civilian or military police/prosecutors, or both.)

☐ Yes. ☐ No.
☐ Civilian police or prosecutorial authorities
☐ Military police or judicial system
☐ Both

(b) Is your ombudsman institution ever legally obliged to refer cases to the police or prosecutorial authorities?

☐ Yes. ☐ No. (c) If so, in what circumstances?

SECTION D: COMPLAINTS-HANDLING

21. Approximately how many complaints do you receive per year?

☐0 - 50
☐50 - 99
☐100 - 199
☐ 200 or more

22. Approximately what percentage of these complaints are found to merit further investigation?

23. Which of the following categories of individuals may address complaints to your office?
(Where applicable, please write in brackets approximately what percentage of the total number of complaints you
receive originate from each of the categories stated below.)

☐ ( ) Serving members of the armed forces

☐( ) Former members of the armed forces
☐( ) Family members of serving or former members of the armed forces
☐( ) Civilians who are citizens or residents of your state
☐( ) Civilians who are citizens or residents of another state
☐( ) Other (please specify):_ A current or former member of the Canadian Forces

24. Does your office handle complaints arising from/during extraterritorial operations of the armed forces?

☐ Yes. ☐ No.

25. Approximately what percentage of the total number of complaints addressed to the ombudsman
institution arise from the following (please write a percentage in the space provided):

a) Domestic functions (e.g. training, domestic deployments, or personnel on leave).

b) Deployments overseas

26. Which of the following categories of complaints can be dealt with by your office?
(Please rank these categories in terms of the number of complaints received: 1 = the most complaints, 5= the least.)

Categories samples cases

☐( ) Complaints arising from allegations of mistreatment or poor working conditions within the armed forces
☐( ) Complaints relating to contractual issues, leave, or pensions
☐( ) Complaints about health problems arising from service in the armed forces
☐( ) Complaints about the armed forces’ treatment of civilians in your state

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☐( ) Complaints about the armed forces’ treatment of civilians or members of other armed forces overseas

27. Is there a requirement that armed forces personnel first direct their complaints to an authority within the
military chain of command?

☐ Yes. ☐ No.

28. Is there a time limit on the actions/issues about which complaints can be addressed to your ombudsman
institution? I.e. Is there a period of time after which issues can no longer be investigated?
(If yes, please tick which of the two options applies.)
☐ No. ☐ Yes.
☐ Number of months/years______
☐ Complaints arising from any actions which took place before the inception of the ombudsman institution

SECTION E: REPORTING FUNCTIONS

29. (a) Does your office issue periodic reports (e.g. annual reports)?

☐ Yes. ☐ No.

(b) If so, is this periodic reporting:

☐ voluntary
☐ required by law

30. Are these periodic reports made public?

☐ Yes. ☐ No.

31. Who does your institution report to in the following cases?

(a) Investigations pertaining to specific cases:

(Please tick one or more boxes as is applicable.)

☐The complainant
☐The head of government
☐ The minister of defence
☐ Parliament
☐ The senior leadership of the armed forces
☐ The leadership of the section of the armed forces within which a complaint arises ☐ Other (please
specify):______________________________________________

(b) General/regular reporting functions:

☐ The head of government

☐ The minister of defence
☐ Parliament

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 ☐ The senior leadership of the armed forces
☐ Other (please specify):

32. Are the ombudsman institution’s reports censored or redacted?

☐ Yes. ☐ No.

33. If so, who has the final say on what can be published in these reports?

☐ The head of government

☐ The minister of defence
☐ Parliament
☐ The senior leadership of the armed forces

SECTION F: MONITORING AND ENFORCEMENT

34. Is your ombudsman institution empowered to issue:

☐ Binding orders
☐ Recommendations TO THE LOWEST LEVEL OF AUTHORITY Art. 17
☐ Compensation/Redress
☐ Other (please indicate)

35. (a) Does the ombudsman institution have the power to monitor the implementation of:
i) its orders.

☐ Yes. ☐ No.

ii) its recommendations

☐ Yes. ☐ No.

(b) If so, which methods are used?

☐ Field or site visits

☐ Follow-up meetings with members of the armed forces
☐ Follow-up meetings with the executive
☐ Other (please specify):

36. Approximately what percentage of your office’s recommendations are implemented by the relevant section of
the armed forces?

37. (a) Can the findings of your ombudsman institution be appealed?

☐ Yes. ☐ No.

(b) If so, which institution has the authority to adjudicate on these appeals?

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38. Does the ombudsman institution have any powers to enforce its findings/recommendations?

☐ Yes. ☐ No.

If so, please specify:

39. Can your ombudsman institution impose penalties?

☐ Yes. ☐ No.

40. Can the ombudsman institution appeal to the judiciary to enforce its findings?

☐ Yes. ☐ No.

SECTION G: PUBLIC AWARENESS OF THE OMBUDSMAN INSTITUTION

41. Does the ombudsman institution take steps to make members of the armed forces and/or the general public
aware its functions, and how to submit complaints?

☐ Yes. ☐ No.

42. If so, which of the following strategies are used?

☐ Awareness-raising as part of armed forces training programmes:

☐ Awareness-raising through other public complaints-handling bodies (e.g. other ombudsman institutions, or the
police)
☐ Awareness-raising on the internet or through the media
☐ Other (please specify):________________________________________________

SECTION H: INDEPENDENCE OF THE OMBUDSMAN INSTITUTION

REPORT 2012
43. How do you assess the independence of your ombudsman institution?

44. What measures are in place to ensure the independence of the ombudsman institution?

45. Which institution may remove the ombudsperson from office?

☐ Parliament
☐ The minister of defence
☐ The head of government/state
☐ An independent body
☐ The judiciary
☐ None
☐ Other institution (please specify):_______________________________________

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46. (a) Is the ombudsperson’s tenure of office fixed?

☐ Yes. ☐ No.
(b) If so, how long is this tenure of office?

______ years

(c) Is this tenure of office renewable?

☐ Yes. ☐ No.

47. (a) Can the ombudsman institution’s investigations be suspended or terminated by one or more of the
following institutions?

☐ the government
☐ the judiciary
☐ the armed forces
☐ Other (please specify):______________________________________________

(b) If so, how many times has this happened?

48. Are the ombudsperson and their staff immune from prosecution or civil litigation for actions undertaken
during the course of his/her duties?

☐ Yes. ☐ No.

49. Is the confidentiality of the records and correspondence of the ombudsman institution guaranteed?

☐ Yes. ☐ No.

50. Can any of the following institutions compel the disclosure (or subpoena) the ombudsman institution’s
records?

☐ The government
☐ The judiciary
☐ The armed forces
☐ Other (please specify):

51. What measures if any would strengthen the independence of your ombudsman institution?

SECTION J: CHALLENGES & STRENGTHENING THE WORK OF THE

OMBUDSMAN INSTIUTION
52. Do any of the following issues present obstacles to the work of the ombudsman institution?

(Where appropriate, please rank these obstacles in ascending order: 1 = most significant; 6 = the least significant.)

☐( ) Insufficient resources (financial or human)

☐( ) Inadequate cooperation from the armed forces and/or the government
☐( ) Insufficient powers to investigate complaints
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 ☐( ) Insufficient resources to monitor/follow-up the implementation of recommendations made by the ombudsman
institution
☐( ) Insufficient powers to ensure the implementation of orders made by the ombudsman institution
☐( ) Other (please specify):

53. Please briefly outline two or three changes to your ombudsman institution or its mandate which would
strengthen its capacity to perform its functions.

54. In your opinion, what are the three most significant factors in making an ombudsman institution effective?

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Annex 6: Ombudsman of Armed Forces good practices
The list of good practices has been taken by the DCAF pubblication of 2012 by Benjamin S.
Buckland and William McDermott Ombuds Inistitution of Armed Forces: a handbook.

Process

• Regardless of the specific motives or reasons that lead to the establishment of an ombuds
institution for the armed forces, the creation of such an institution should be an inclusive,
multistakeholder process that considers the interests and needs of all relevant parties. In particular,
such a process may include and consider the views of the armed forces command, service
associations, civil society, and other independent oversight institutions.

Legal Basis

• Ombuds institutions for the armed forces should be established on a firm legal foundation. Ideally,
the status of the institution should be enshrined in the constitution.

Complaint-Handling

• An essential function of ombuds institutions is to receive and investigate complaints and to

identify areas of public administration that are in need of improved performance or greater
accountability.

Investigations

• Investigations aim to resolve issues independently and impartially and to prevent their recurrence,
rather than to punish an offender or an individual act of wrongdoing.

Reporting and Recommendations

• The issuing of reports to the legislature and to the public at large is a key function of ombuds
institutions. Recommendations may seek to rectify, mitigate, or reverse the adverse decision,
policy, or law that led to a complaint

Models

• Regardless of the specific model chosen, it is important that ombuds institutions be given
appropriate powers and resources to carry out their functions.
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• Ombuds institutions for the armed forces must be able to act independently of undue influence
from the chain of command and the executive.

• Ombuds institutions must endeavour to acquire the specialised knowledge required to perform
their functions effectively with regard to armed forces. This may require general ombuds
institutions to set up dedicated, specialist bodies with a specific mandate to deal with complaints
relating to the armed forces.

Cooperation

• Legal boundaries and mandates should be clearly delineated in order to aid cooperation and
prevent jurisdictional conflict.

• In states where several institutions have overlapping mandates, the law may require that they
cooperate and stipulate how and when information must be shared.

Institutional Independence

• Ombuds institutions for the armed forces should be independent from the government and of the
bodies that they are mandated to oversee.

• The independence of ombuds institutions should be guaranteed by law and, where applicable, the
constitution.

• Ombuds institutions should obtain and manage their funds independently from any of the
institutions over which they have jurisdiction.

• Ombuds institutions should be allocated secure and sufficient funds for the fulfilment their
mandates.

• The officeholder should have a legally established tenure of office.

• Clear procedures should exist for the potential removal of an officeholder from office; and a
narrowly defined set of criteria may exist in law that stipulates the circumstances under which this
can happen.

• The officeholder should not be held legally liable for any opinions or acts performed complying
with the law, while exercising their duties provided for by law.

Operational Independence

• Ombuds institutions should have the freedom to decide which matters and priorities to pursue and
the freedom to investigate them to their conclusion.

• Ombuds institutions should possess the ability to launch so- called “own-motion investigations.”

137
• Ombuds institutions should be able to determine the manner in which they undertake their work.

• No other body should have the power to terminate or suspend ongoing investigations being
undertaken by the ombuds institution.

• The ombuds institution should have the power to release reports and to make recommendations on
specific cases or thematic areas, free from censorship and legal or other liability for doing so.

• Ombuds institutions should have the power to address the public and the media.

• Access to information is essential to the work of ombuds institutions and unrestricted access
should be guaranteed by law.

• Ombuds institutions should have the power to hire or otherwise engage external experts on an ad
hoc basis.

Personal Independence

• The officeholder should abstain from actions that are dictated by personal interests or motives.

• The officeholder may not hold any position that is incompatible with the proper performance of
his or her official duties, or with his or her impartiality and independence or with public
confidence therein.

Receipt of Complaints

• States should place no limits on the categories of person or organisation who can make a
complaint to an ombuds institution, so long as it relates to an area within the institution’s mandate.

• Ombuds institutions should offer their services free of charge and with as few barriers to access as
possible.

• Ombuds institutions should provide a wide range of modes through which individuals can file
complaints, including, for example, email, post, and a dedicated hotline.

Processing of Complaints

• The ombuds institution should deal promptly with complaints and provide regular feedback to
complainants and other concerned parties on the status of their investigations.

• When an ombuds institution decides not to pursue an investigation, the office should ensure
appropriate follow- up, such as offering help and advice on alternative means of recourse or by
referring complaints to another more appropriate authority.

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Challenges of Multilateral and Overseas Missions

• Ombuds institutions should endeavour to adapt to changing armed forces priorities by, for
example, developing the capabilities and expertise required to visit and accept complaints from
troops stationed abroad or as part of multilateral missions.

• In investigating complaints relating to operational activities, the ombuds institution should

endeavour to conduct its work in a manner that does not unduly impede such activities.

• Ombuds institutions should ensure that troops stationed abroad have access to as many means as
possible for the submission of a complaint.

• Ombuds institutions may be able to accept and handle complaints made by civilians and members
of the armed forces of a foreign country, where the subject of the complaint falls within their
jurisdiction.

• Ombuds institutions should be provided with sufficient resources to deal with complaints from
members of the armed forces and civilians abroad.

Maladministration

• Ombuds institutions should pay particular attention to complaints regarding contractual issues,
given that they are often raised by veterans, conscripts, and new recruits (i.e., those who may not
have access to comprehensive internal procedures for complaint or redress). These contractual
issues include, inter alia: pay and benefits; recruitment and release; and status and postings.

Human Rights

• Ombuds institutions should pay careful attention to abuses of power, harassment, and bullying
(whether by superiors, peers or subordinates), as these abuses are often well hidden and difficult to
prove or substantiate.

• Ombuds institutions should protect complainants from reprisals made against them for having
come forward.

• Given the physical and mental health risks associated with membership in the armed forces,
ombuds institutions may take particular care to ensure that current and former members of the
armed forces have access to appropriate healthcare in a timely manner.

• Ombuds institutions should seek to ensure that the workplace conditions of armed forces
personnel are appropriate. This includes ensuring that they have access to housing, food, and
equipment that is suitable to the tasks they have been assigned.

• Ombuds institutions should work within their mandates to ensure the protection of the rights to
freedom of expression and association of members of the armed forces.

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Compliance with Law

• Where they have been given competence to do so, ombuds institutions should monitor the armed
forces’ compliance with IHL. The ability of an ombuds institution to monitor compliance with
IHL is particularly relevant in cases where such institutions have competence to oversee military
operations and military deployments abroad.

Investigations

• Investigations should aim to produce recommendations; they should aim to resolve issues
independently and impartially and prevent their recurrence, rather than to punish an offender or an
individual act of wrongdoing.

• In some cases, an ombuds institution may begin an investigation only to discover that a criminal
offence has occurred. In such cases, ombuds institutions should generally refer the case to a
prosecutor or other law enforcement body.

• The non-criminal nature of the investigations conducted by most ombuds institutions is an

important element of their independence and impartiality.

Complaint-Based Investigations

• In the case of systemic investigations stemming from individual complaints, the ombuds
institution should also take care to provide redress to those who initially filed the complaint.

Own-Initiative Investigations

• Ombuds institutions should use own-motion powers to uncover and investigate systemic and
thematic problems and issues, particularly where such issues are unlikely to come to light through
the normal complaint process.

• Site visits and inspections may be used as an opportunity to discuss the concerns of service
personnel outside the framework of a formal complaint.

• Ombuds institutions may have the power to launch initiatives for the amendment of laws or other
regulations or general acts deemed to be responsible for violations of citizens’ rights.

Systemic Issues

• Ombuds institutions for the armed forces should aim to resolve issues independently and
impartially and to prevent their recurrence.

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• The investigation of systemic issues is a crucial way for ombuds institutions to identify and
resolve broader patterns of discrimination, abuse, or wrongdoing.

• Ombuds institutions should take advantage of their ability to survey issues from a wide
perspective in order to identify broader issues existing across the armed forces and to recommend
solutions that remedy such complaints systemwide.

Scope of Investigations

• No person or body should have the power to limit or curtail investigations being undertaken by an
ombuds institution. If such powers do exist, they should be narrowly drawn and strictly prescribed
by law.

• Ombuds institutions should be careful to respect judicial processes and avoid undue interference
in the workings of the judiciary, particularly with regard to ongoing cases.

• Ombuds institutions should ensure that any criminal law aspects of an investigation are referred to
the appropriate body. This should not, however, absolve the ombuds institution from responsibility
for other aspects of the case.

Fact-finding

• Institutions should make a preliminary assessment of the complaint aimed at determining whether
or not any investigation should proceed further.

• Any decision for determining if a complaint is justified and merits a full investigation should be
based on clear and published criteria.

Rejections and Referrals

• Ombuds institutions should notify all relevant parties when rejecting a complaint, including the
reasons behind any rejection.

• When rejecting a complaint, ombuds institutions should provide

help and advice regarding any alternative means of recourse.

Planning

• A comprehensive plan should be prepared to ensure a thorough and complete investigation,

including standard internal processes for starting an investigation and assigning tasks.

• An information management plan should be prepared that covers confidentiality as well as what
information is released and how that information is released.

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Early Dispute Resolution

• Where possible, ombuds institutions should pursue mediation as an alternative to formal

investigations.

Interviews, Inspections, and Site Visits

• Ombuds institutions should seek to speak with all relevant individuals and visit locations relevant
to the investigation, particularly vulnerable sites.

Concluding the Investigation

• Clear guidelines should govern who can conclude an investigation and make determinations.

• Clear guidelines should exist regarding how to identify who is at fault and what steps should be
taken to remedy the complaint.

• Upon making a determination, an ombuds institution should notify all concerned parties of the
decision and of any recommendations the institution has made.

Access

• Ombuds institutions should have the power to demand access to any information, supported by
appropriate enforcement powers and the necessary expertise and resources.

Powers

• Civil servants and members of the armed forces should be under a legal or contractual obligation
to cooperate with requests for information or interview by ombuds institutions; such obligations
may be supported by explicit penalties for refusal.

• Ombuds institutions should possess subpoena powers, which impose a legal requirement on
relevant persons to appear before them or to provide them with specific information when
requested to do so. This power should also confer the ability to require that testimony be given
under oath or affirmation.

• Ombuds institutions should have the ability to outline any lack of cooperation in their public
reports.

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Limitations

• No legal or practical limitations should exist on the ability of an ombuds institution to access any
and all information it deems to be necessary for the fulfilment of its mandate.

• If limitations on access to information are imposed:

• They should be clearly and narrowly defined in law.

• The invocation of limitations on access to information should be

adequately motivated and accompanied by a detailed written
justification.

• Ombuds institutions should to be able to apply for the judicial or

legislative review of any decision to invoke a particular limitation.

Role of Reporting

• Ombuds institutions should produce regular reports on their activities. These include both periodic
and ad hoc reports on specific cases or thematic and otherwise important issues.

• Ombuds institutions should issue reports containing detailed recommendations aimed at rectifying
the specific problems relevant to the complaint and to any broader, systemic issues that may have
been uncovered during an investigation or inquiry.

• The “soft power” of public reports can ensure that recommendations are complied with,
particularly where enforcement powers are lacking.

• Ombuds institutions should have the power to issue policy recommendations designed to
encourage reforms to practices that have given rise to misfeasance, and thus, to prevent the
reoccurrence of these wrongdoings.

Independence in Reporting

• Ombuds institutions should have the power to issue public reports, free of undue influence from
the executive or the military chain of command. In this regard, ombuds institutions should have
the final say on the content of their reports and should issue reports free from censorship or delay.

• Public reports should strike a balance between upholding a public right to freedom of information
and, on the other hand, protecting privacy, protecting the integrity of judicial processes, and
safeguarding national security.

Types of Reporting

• Ombuds institutions should release reports detailing specific complaints, summaries of their
investigative activity, and whatever conclusions they have reached.
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• Reports may also include more general recommendations for the armed forces or the executive
regarding the prevention of similar occurrences in future.

• Ombuds institutions may issue reports on their own initiative or, in some jurisdictions, upon
request by another government agency.

• Thematic reports should often concern a systemic or endemic problem and aim to provoke the
systemwide changes necessary to adequately address it.

• Periodic reports should inform the public and the legislature about the activities of the office and
highlight important themes and cases that have occurred during the preceding period, and may
also be an important platform for the ombuds institution to highlight future plans and suggestions
for institutional reform.

The Reporting Process

• Before issuing reports, ombuds institutions must consult with those concerned and hold
discussions aimed at identifying a range of solutions acceptable to both sides. Ombuds institutions
should proceed with the publication of a formal report only when such informal options have been
exhausted.

• Ombuds institutions should notify and consult with concerned parties in order to request their
reactions and input to a proposed report before final publication.

• Reports should include details of the allegations and investigation, relevant background
information, and details of relevant legal statutes and precedent. Reports should also include an
analysis of the case and findings, conclusions, recommendations and any follow-up or
clarifications from relevant parties received during the consultation process.

• Transparency is of overarching importance but reports should also take care to omit information
that may be classified, confidential, or private.

• Reports should be addressed to the complainant, the subject of the complaint, and any relevant
administrative authorities.

• Reports to the legislature are an important means of ensuring that recommendations are complied
with and should also provide the legislature with an opportunity to enact legislation addressing
any systematic problems that have been identified.

• Public reports are an important way of ensuring compliance with recommendations and of
drawing attention to issues that may not otherwise be open to much public or media scrutiny.

Making Recommendations

• The ability to make recommendations free from undue influence by other bodies is an essential
element of independence.

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• Recommendations may serve to rectify, mitigate, or reverse the adverse decision, policy, or law
that led to a complaint. Recommendations may also include provisions on reparations.

• The proper implementation of recommendations is central to the effectiveness of ombuds

institutions.

Complaint-Based Recommendations

• Individual complaint-based recommendations do not usually seek to resolve broader policy

questions or address systemic issues.

• Recommendations may include some means of redress, where wrongdoing was identified.

Policy Recommendations

• Ombuds institutions for the armed forces should have the power to review and make
recommendations relating to policy and law.

• Recommendations are designed to encourage reforms to practices that have given rise to
misfeasance and to prevent the
reoccurrence of these wrongdoings.

Legal Review and Recommendations

• Ombuds institutions should have the power to formulate recommendations on draft laws.

• Ombuds institutions may request the legal or judicial review of existing law, if a law is leading to
violations of human rights.

Implementation and Enforcement

• Laws that stipulate that public authorities should act expeditiously to implement
recommendations, ensure that they are addressed promptly, and contribute to the likelihood that
they will be implemented.

• Forging strong contacts with public authorities increases the likelihood that recommendations will
be highly valued and quickly implemented.

• Ombuds institutions should have the ability to go public in cases of non-compliance with their
recommendations.

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• Ombuds institutions may have the ability to seek to enforce compliance with their
recommendations by taking the case to another body, such as the legislature, the executive, or a
superior within the chain of command.

• Ombuds institutions may initiate proceedings in court in cases where the legality of an act or
regulation is in question.

Monitoring and Measuring Effectiveness

• Because effective monitoring is essential to ensuring that recommendations are properly and
promptly implemented, ombuds institutions should set up comprehensive monitoring and
information-gathering processes.

• Ombuds institutions should seek to identify problems and shortcomings with regard to the
appropriateness of, and compliance with, their recommendations.

• Ombuds institutions should monitor several indicators in measuring effectiveness, including the
rate of response to recommendations and the amount of time taken to implement them.

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