INTERPOL must stop protecting abusive states at the cost of individual rights

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

Not only do the INTERPOL’s rules give it broad powers to block all abusive Red Notices, diffusions and other government requests before they enter internal channels, but the rules actually require the organisation to do so and provide broad discretion over mechanisms and tools to prevent government abuse before it occurs.

The INTERPOL Notice and Diffusions Task Force

In November 2017, during a meeting with representatives of the European Union, INTERPOL officials reportedly claimed that the Notice and Diffusions Task Force, a team of 30 to 40 members, was reviewing up to 40,000 Red Notices recorded in the organisation’s databases to determine if they were politically motivated.  The meeting reportedly took place after Spanish authorities, acting on Turkey’s requests disseminated via INTERPOL, detained two European Union citizens. 

It is unclear how exactly the INTERPOL was planning to conduct such a massive review in an effective and objective manner.  To thoroughly examine tens of thousands of government requests to ensure they were not politically motivated would be a colossal undertaking, even if INTERPOL’s staff and funding were significantly increased.  As mentioned above, the Task Force would have to go far beyond what is already recorded in the organisation’s databases, and it would need objective information about all of the circumstances of the case.  However, because INTERPOL’s rules prohibit disclosure to individuals without consent from governments that issued the notice, while conducting such a review, INTERPOL would often have to take at face value what governments provide as information about the criminal case to support whatever information the Task Force could find in open sources, if any. 

It is hard to imagine an objective review of a government’s conduct if the government in question heads an oppressive regime, using the INTERPOL to persecute rather than prosecute.  On the contrary, such a government would be very selective in what it would produce in response to a request from INTERPOL.  Add to that the fact that very few criminal prosecutions behind abusive Red Notices or diffusions receive any media coverage at all, even at the local level, and the lack of public information regarding the qualifications of the individuals comprising the Task Force, including the languages in which they are proficient, and it is hard not to doubt its reliance on media reports and other open sources regarding the various cases before it.

How governments-abusers use INTERPOL to keep their targets in suspense.

INTERPOL accepts requests from individuals to delete Red Notices, diffusions or other government requests already recorded in its databases (complaints) as well as requests to prevent such requests from entering the organisation’s channels if it receives them in the future (pre-emptive requests).  However, only complaints are subject to a formal review.  The Commission for the Control of INTERPOL’s Files has repeatedly ruled that its powers are limited to government requests already recorded in INTERPOL’s databases.  If an individual warns the Commission of an abusive government request that might arrive in the future, the Commission does not render a decision on such a warning, but instead informs the INTERPOL General Secretariat.  The General Secretariat, however, might not inform the individual whether it would block such a government request if it is received.  INTERPOL’s approach to such warnings thereby allows governments to keep their targets in suspense for a very long time.  A government may open a criminal case based on a trumped-up charge but decide not to resort to INTERPOL for some time to avoid losing before the Commission.  There have also been instances in which governments withdrew already published Red Notices or diffusions after the Commission received complaints from individuals but before it was able to render a decision.  In this regard, the Commission again justifies its lack of further action by its lack of power to consider data that has not been recorded or is no longer recorded in INTERPOL’s databases.  Likewise, the General Secretariat might not inform the individual whether it would block the same or another request from the same government if it were to receive one in the future.  It is difficult to imagine a more excruciating process for individuals whose rights are supposed to be protected from government misconduct by this system.

How those already declared victims of INTERPOL abuse end up in its databases again

In its activity report for 2017, the Commission for the Control of INTERPOL’s Files writes that it “dealt with cases where [governments] have sent a diffusion to INTERPOL members to request the arrest of an individual, whereas a request for a red notice has previously been refused.”  According to the same report, the Commission also had to deal with cases that “highlighted the use of the [INTERPOL Stolen and Lost Travel Documents] database where a diffusion or a notice to arrest a person was considered not to comply with INTERPOL’s rules.”  That is, some governments, whose Red Notices were rejected due to non-compliance with rules, were able to put the same individuals back on the INTERPOL wanted list by disseminating diffusions.  If diffusions were deleted as non-compliant, they utilised the INTERPOL Stolen and Lost Travel Documents database to target the same individuals.  This means that INTERPOL did not possess a comprehensive mechanism for the enforcement of its own decisions that would preclude governments from repeatedly abusing the organisation’s channels.  Such a mechanism, it seems, would require nothing more than few lines of computer code to check incoming government requests against the list of individuals whose data INTERPOL has already deleted as non-compliant.  To this day, it is unclear whether INTERPOL has fixed this loophole or not. 

The redress mechanism intended to protect victims of INTERPOL abuse lacks due process: no right to a hearing, examination of evidence or appeal

INTERPOL reforms closed only some loopholes in the redress mechanism for individuals challenging government use of organisational channels.  Prior to the reforms, decisions of the Commission for the Control of INTERPOL’s Files were simply non-binding recommendations.  It is now mandatory for the INTERPOL to abide by the Commission’s decisions. The Commission was also placed under obligation to provide reasoning for its decicions, whereas before the reforms, individuals usually received a short letter informing them that their complaints were approved or denied without further explanation.  The reforms also introduced deadines for the Commission, amending the sometimes years-long wait times for individuals.

 Another change brought by the reforms is that the Commission is finally staffed with lawyers qualified in various key areas.  However, to this day, individuals who challenge a government’s use of INTERPOL’s channels do not have the right to a hearing, to examine evidence that governments produce against them, or to appeal the Commission’s decisions, rights without which it is impossible to imagine any modern democratic system.

Unwillingness to publicly recognise countries-as-abusers

Widespread abuse of the INTERPOL has continued for years, yet there has not been an official public report naming countries-as-abusers and the extent of their misconduct.  No one has more information on this than the INTERPOL itself.  Although the Commission for the Control of INTERPOL’s Files is empowered to publish this information, including the number of complaints it has approved against each member country, as well as the nature of its violations, the Commission chooses not to exercise this power. 

The INTERPOL’s stated goals does not include protecting the reputations of countries-as-abusers, whereas it clearly does include protecting the rights of individuals from countries-as-abusers.  INTERPOL should agree to get its priorities in order.

There is no doubt that all the factors contributing to INTERPOL abuse described here can be eliminated.  With some, INTERPOL needs to start exercising the powers that it already has (for example, monitoring incoming government requests to ensure that repeating notices are deleted and informing the public about the extent of abuse by each of the member countries).  In other cases, like the individual right to access INTERPOL’s files or the right to a hearing and appeal, the General Assembly must step in and amend the organization’s rules.  Until this happens, non-democratic governments will continue to drag INTERPOL into politically motivated and corrupt prosecutions.

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