INTERPOL Abuse: the 89th General Assembly meeting in Istanbul this month should finally open doors to reform

In the first of a two-part series, legal expert Yuriy Nemets looks at why Interpol needs reform. The second part can be found here.

The International Criminal Police Organization (INTERPOL), is one of the largest intergovernmental organizations, with 194 member countries, more than the United Nations itself. The INTERPOL Constitution stipulates that the organization’s aims are to “ensure and promote the widest possible mutual assistance between all criminal police authorities” and “establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.” INTERPOL’s contribution to fighting crime is hard to overstate. In its more than one hundred years of existence, it has played a major role in bringing numerous dangerous criminals to justice, rescuing victims, recovering stolen property, and preventing crime. Unfortunately, INTERPOL has also become a powerful tool for oppressive regimes who have learned to utilize its channels to persecute their opponents. This abuse is widespread and in direct violation of the INTERPOL Constitution, which strictly prohibits the organization from engaging in any activity of a political, military, religious or racial nature, and which requires it to act in the spirit of the Universal Declaration of Human Rights.

INTERPOL does have a redress mechanism for victims of the abuse of its resources, which is represented, first and foremost, by the Commission for the Control of INTERPOL’s Files.  The Commission is an independent body with exclusive jurisdiction to adjudicate complaints from individuals challenging a government’s use of its resources.  From the very beginning, this mechanism has had major flaws, and it has failed to stop the rise of INTERPOL abuse among non-democratic countries.  Within the past several years, under pressure from human rights activists and advocacy organizations, INTERPOL has carried out reforms, which, however, still have not addressed a number of issues with the redress mechanism.  As a result, oppressive regimes continue to abuse INTERPOL with considerable success, and numerous activists, reporters, entrepreneurs and other individuals continue to be detained and suffer significant economic and emotional hardships.

In just three weeks, the INTERPOL General Assembly will meet in Istanbul.  As INTERPOL’s highest governing body, the General Assembly can close the remaining loopholes and thereby better protect individuals from abusive government requests and INTERPOL from being dragged into corrupt prosecutions.  All that is required is the will of the INTERPOL member countries.

Why is it so easy for governments to place individuals on the INTERPOL wanted list?

To communicate via INTERPOL’s channels, member countries use notices, diffusions and messages, collectively referred to as “requests.”  The INTERPOL notice system consists of a set of color-coded notices, each of which has a specific purpose.  Among these is the Red Notice, a request to “seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action.”  Under its rules, INTERPOL, specifically its General Secretariat, must conduct a legal review of all Red Notices to ensure their compliance prior to their publication.  That review has a very limited scope, however, and, as a result, INTERPOL is rarely able to recognize unlawful Red Notices before approving their publication in its databases.

The prohibition on prosecutions of a political, military, religious or racial character and the condition that any processing of information via INTERPOL’s channels must be in the spirit of the Universal Declaration of Human Rights are not the only requirements that Red Notices and other government requests must meet, however.  For example, a Red Notice must also contain the individual’s identity particulars (e.g., name, sex, date of birth, physical description), a charge of a serious ordinary-law crime that also satisfies the penalty threshold and does not derive from a private matter or dispute, a reference to a valid arrest warrant, and a summary of the facts of the case.  It should be easy for INTERPOL to quickly evaluate prior to publishing a Red Notice whether the government has provided the identity particulars, and whether it has specified the provision in the country’s criminal law or met the penalty threshold.  However, the summary of the facts of the case that governments must include in their requests for the publication of a Red Notice is usually very brief, only several sentences long, and not enough to assess the circumstances surrounding the criminal prosecution, the real reasons that led to it or the violations that the government might have committed in the course of the prosecution.  Consequently, from this very limited information, it is exceedingly difficult for INTERPOL to detect prosecutions that are politically motivated, lack due process, derive from private disputes, are based on invalid arrest warrants or otherwise defy the organization’s rules.

Non-democratic governments use INTERPOL’s lax requirements to trick the organization into believing that the prosecutions behind their requests for international police cooperation are lawful.  They do so by charging their victims with ordinary law crimes rather than political, military, religious or racial crimes (for example, by charging a political opponent with fraud rather than insulting the head of the state) and making sure that the summary of the facts of the case in their requests for international police cooperation does not include anything that could raise suspicions about the real reasons for the prosecution.  Likewise, based on a copy of an arrest warrant alone, which INTERPOL requires governments to produce, it is virtually impossible for the organization to confirm its validity – not only would INTERPOL need access to the materials of every criminal case to conduct such an evaluation, it would also need to engage experts in the laws of each and every one of its 194 member countries, which, of course, is not feasible.  As a result, abusive Red Notices usually  pass INTERPOL’s pre-publication screening easily and remain unnoticed until they are challenged by individuals (in many cases, after they have already been detained due to INTERPOL’s involvement).

INTERPOL recognizes that the information that governments must produce in order for their Red Notices to be approved for publication are not sufficient to conduct a comprehensive analysis.  The organization admits that in order to ensure that a Red Notice is not of a politically, military, religious, or racial character, the organization must examine each government request “on a case-by-case basis,” “separately, with due consideration for the specific context.”  To conduct such an examination, INTERPOL’s rules require it to consider all relevant elements, including, among others, the nature of the offense, underlying facts, the general context of the case, status of the persons concerned, and third parties’ positions regarding the case, such as advocacy organizations and governments, which might have already refused to extradite the individual in question.  INTERPOL has emphasized that such analysis requires “the examination and consideration of pertinent facts beyond those explicitly supplied in the request for police cooperation.”  However, this more comprehensive analysis is usually conducted by the Commission for the Control of INTERPOL’s Files, but only after it receives a complaint from an individual challenging a Red Notice that has already been published in INTERPOL’s databases, and frequently after the individual has already been detained due to a Red Notice.

And then there are diffusions, government requests that can be disseminated via INTERPOL for the same aim as Red Notices, that is, to detain for the purpose of extradition and criminal prosecution.  Unlike Red Notices, however, diffusions can be disseminated by governments without pre-publication screening by INTERPOL.  The organization’s rules do not provide for any meaningful differences between Red Notices and diffusions that would force governments to resort to diffusions in exceptional cases only and thereby limit their number.  In such a circumstance, why would a government that seeks to abuse INTERPOL risk having its Red Notice blocked before it is published (as unlikely as it is taking into consideration the ineffectiveness of the pre-publication screening) if it can put an individual on the INTERPOL wanted list without any scrutiny whatsoever by using a diffusion?  It comes as no surprise, then, that the number of diffusions has been growing rapidly and may soon exceed the number of notices.  For example, at the end of 2019, there were 116,597 notices and 100,811 diffusions in circulation, and for 2019 alone, there were more diffusions recorded than notices, 35,689 and 21,085 respectively.

Yuriy Nemets is the managing member at NEMETS, a law firm based in Washington, DC.  Yuriy has practiced law for over nineteen years.  He has been advising and representing individuals challenging INTERPOL Red Notices and diffusions since 2013.  He has also testified as an expert witness on the subject. His articles about INTERPOL abuse and the rights of individuals on the international wanted list are published in authoritative law reviews.  Yuriy received his Juris Doctor (JD) and Master of Laws (LLM) degrees from Northwestern University School of Law and LLB and PhD in law degrees from Moscow State Law Academy (Russia).  Prior to starting his own practice, he worked at one of the most prominent litigation law firms in the United States (ranked top 30 by Vault Law 100) and one of the most distinguished law firms in Russia.  He is licensed to practice law in the District of Columbia and New York.

The opinions expressed in this column are those of the author and do not necessarily reflect those of Ahval.
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