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Hakeem al-Araibi Case Shows How Vulnerable Refugees Remain to INTERPOL Abuse

By Yuriy Nemets | February 11, 2019 | Comments 0 Comment

In February 2015, the INTERPOL Executive Committee disseminated among the organization’s member countries a new policy according to which INTERPOL would generally refuse to cooperate with governments seeking detention of refugees and asyum-seekers. Although the policy should help INTERPOL protect individuals from persecution, which the organization considers one of the primary objectives of all its activities, it has significant loopholes. One of such loopholes is that the policy does not consider refugees and asylum-seekers an exception to the INTERPOL general rule that an individual cannot learn whether there is a request for her or his arrest (known as a “red notice” or a “diffusion”) in the INTERPOL databases without the government’s consent. As a result, like other individuals, refugees and asylum-seekers often learn that there is a red notice or a diffusion against them only after they are detained due to an INTERPOL alert. An arrest may lead to a prolonged detention and potentially extradition. For refugees and asylum-seekers who find themselves in this situation, the rights provided for in the INTERPOL policy come too late.

Hakeem al-Araibi is far from the first refugee to be detained due to an INTERPOL alert since the organization introduced the policy. For example, in the summer of 2016, Italian authorities acting on an Iranian red notice detained Mehdi Khosravi, an Iranian national and human rights activist with refugee status granted by the United Kingdom. Similarly, Paramjeet Singh, a supporter of Sikhs’ right to self-determination who fled India and in 2000 was granted refugee status in Great Britain, was arrested in December 2015 due to an Indian red notice and spent two months in detention before Portugal agreed to release him.

Should we expect INTERPOL to improve the policy and stop the continuing abuse of its resources against refugees and asylum-seekers? In September 2017, the General Assembly, the body of supreme authority at INTERPOL, adopted a Resolution endorsing the Executive Committee’s policy. The Resolution, however, seems to indicate that the General Assembly is much more concerned about criminals abusing refugee status than governments abusing INTERPOL to persecute refugees and asylum seekers. While the Resolution calls upon governments and INTERPOL to do everything in their power to ensure that refugee status is not abused and to that end enhance the exchange of information in the process of examining asylum applications, it makes no reference to Article 3 of the INTERPOL Constitution, which strictly forbids the organization from participating in any activity of a political, military, religious or racial character, or to the need to protect individuals from persecution. Despite the continuing abuse of INTERPOL’s resources against refugees and asylum seekers, nothing in the Resolution calls upon INTERPOL to address the problem.

INTERPOL must make an exception and provide refugees and asylum seekers the right to know if there is information about them in the organization’s databases without obtaining prior consent from the respective governments. Otherwise, Hakeem al-Araibi will not be the last refugee-victim of INTERPOL abuse.

American Bar Association Panel ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’

By Yuriy Nemets | February 7, 2019 | Comments 0 Comment

On January 29, 2019, Theodore Bromund (The Heritage Foundation), Michelle Estlund (Estlund Law), Yuriy Nemets (Nemets Law Firm), Rebecca Schaeffer (Fair Trials) and Bruce Zagaris (Berliner Corcoran & Rowe) spoke at the event ‘Red Notices and the INTERPOL Wanted List: Balancing Law Enforcement with Due Process’ organized by the American Bar Association (ABA) and Association of Certified Financial Crime Specialists (ACFCS). The panel discussed the problem of INTERPOL abuse by governments that use the organization’s resources to persecute political opponents and other victims of unlawful criminal prosecutions:

INTERPOL Sees Increase in Complaints from Refugees, Highlights Politically Motivated Prosecutions of Businessmen Among Main Issues

By Yuriy Nemets | March 12, 2018 | Comments 0 Comment

In its 2016, most recent, annual report, the Commission for the Control of INTERPOL’s Files cites an increase in the number of complaints from refugees and for the first time in its annual public disclosures recognizes politically motivated prosecutions of businessmen among the main issues before it. Although notable, the increase in complaints from refugees was expected. In June 2014, the INTERPOL Executive Committee introduced a policy, which provided refugees with a somewhat simplified path to red-notice-free status. It isn’t surprising, therefore, that more refugees have been petitioning INTERPOL to delete their information from its files. However, that INTERPOL has finally publicly named politically motivated red notices issued against businessmen among its main issues is a very important development.

For a long time, long before the Commission’s 2016 report, entrepreneurs have been among the main targets of INTERPOL red notice abuse. Nevertheless, INTERPOL would not admit the problem to the general public. Instead, human rights advocates and the media reported multiple individual cases. Entrepreneurs who take on an active role in politics or find themselves in a dispute with a government or with someone closely connected to the government often become victims of corrupt prosecutions based on trumped-up charges. Such prosecutions are regularly used to retaliate against entrepreneurs who refuse to cease their political activities, give up their business interests, or abandon legitimate civil lawsuits or administrative or criminal complaints. Entrepreneurs who manage to leave their countries before the government restricts their freedom of movement are often arrested abroad, placed in extradition proceedings, find themselves unable to travel, do business, or simply open a personal bank account due to the red notice or diffusion recorded in INTERPOL’s files.

Article 2 of the INTERPOL Constitution requires international police cooperation to be conducted in accordance with the member countries’ national laws and in the spirit of the Universal Declaration of Human Rights, and Article 3 strictly forbids INTERPOL to undertake any “intervention or activities of a political, military, religious or racial character.” An individual on the INTERPOL wanted list who believes that in the course of the criminal case the government violated the country’s laws, the Universal Declaration of Human Rights, or prosecuted the individual for her or his political beliefs should consider invoking Article 2 or Article 3 or both. In addition, entrepreneurs should consider the “private disputes” provision of the INTERPOL Rules on the Processing of Data. The provision prohibits the publication of a red notice if the offense behind it derives from a private dispute, “unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.” Some of the Commission’s decisions regarding red notices and diffusions issued against entrepreneurs suggest that entrepreneurs may indeed benefit from the “private disputes” provision, for example, when a red notice or diffusion arises from a dispute of a civil, rather than criminal, nature and, therefore, must be resolved in the course of a civil, rather than criminal, trial.

The INTERPOL Repository of Practice contains very useful information about INTERPOL’s application of Article 3 to red notices and diffusions issued in a political context, including charges against current and former politicians, offences concerning freedom of expression, assembly, and association, security of the state, unconstitutional seizure of power, embargo and sanctions, and elections. Since 2014, the Commission for the Control of INTERPOL’s Files has seen an increase in the number of complaints alleging violations of the Universal Declaration of Human Rights. In this regard, INTERPOL has yet to compile a repository of practice on Article 2 of the Constitution, although the Commission has already started developing its own “case law” in this area. Now, that the Commission has recognized unlawful prosecutions of businessmen among the main issues before it, it is time for the Commission and INTERPOL to admit that the “private disputes” provision needs its own repository of practice. Indeed, when engaging in corrupt prosecutions, governments often charge entrepreneurs with crimes of a business nature that may look like they are related to the entrepreneur’s professional activities and thereby lend the criminal case some appearance of legitimacy but in fact are used to illegally transform what really is a civil private dispute into a criminal case. It is, therefore, crucial for INTERPOL and the Commission to be transparent about how they interpret and apply the “private disputes” provision and for that purpose compile, publish, and constantly update a detailed repository of practice.

On INTERPOL’s former General Counsel’s statement regarding EU calls to reform INTERPOL

By Yuriy Nemets | December 28, 2017 | Comments 0 Comment

On October 5, 2017, EUObserver reported that the European Union was seeking a dialogue with INTERPOL to find a way to stop the abuse of its resources by countries that use INTERPOL to persecute political opponents and other victims of unlawful criminal prosecutions. The call for negotiations followed the recent detention of Dogan Akhanli, a German-Turkish writer, and Hamza Yalcin, a Swedish-Turkish journalist. Spanish authorities detained them at Turkey’s request disseminated via INTERPOL’s channels. Akhanli and Yalcin fled Turkey many years ago and were granted refugee status in Europe.

In seeking the dialogue, the European Union leaders expressed their desire for a proper review of INTERPOL red notices. They have also indicated that the need exists for an effective redress mechanism for the victims of INTERPOL abuse.

On October 16, 2017, EUObserver published an op-ed titled ‘INTERPOL and the EU: don’t play politics.’ Its authors, Rutsel Sylvestre J. Martha, an INTERPOL’s former General Counsel, and Stephen Bailey, argue that the INTERPOL General Secretariat already conducts a proper review of red notices before their publication and an effective redress mechanism is already in place.

Indeed, INTERPOL must ensure that red notices comply with its rules. Every year INTERPOL processes numerous requests to locate and detain individuals. It would seem possible for the organization to review every red notice for its compliance with such minimum requirements as the nature of the charge behind the notice and make sure the identity particulars, the description of the facts of the case, and a reference to the country’s criminal statute and a valid arrest warrant accompany the red notice. However, taking into consideration the high volume of information INTERPOL processes on a regular basis, it cannot possibly look into all the circumstances behind each and every red notice to make sure none is politically motivated or doesn’t otherwise violate the organization’s rules prior to its publication. This is also true with regard to the compliance review of randomly selected already published red notices. In addition, the authors of the op-ed don’t mention the so-called “diffusions,” which, like red notices, may be used as requests to locate and detain individuals for the purpose of their extradition and may be disseminated among a large number of INTERPOL member countries. However, unlike red notices, governments can send diffusions via INTERPOL’s channels without any prior review by the General Secretariat. Because of the lack of oversight prior to their publication, diffusions represent a more attractive means for governments that abuse INTERPOL’s resources, and as such, they pose an even higher risk than red notices.

In claiming there is an effective redress mechanism for the victims of INTERPOL abuse, the authors of the op-ed mention the right of an individual to access, correct, and/or delete information in INTERPOL’s files. It is important to remember that the right to access the information in the organization’s databases is subject to the government’s consent to disclose such information to the individual. This is also the case with any evidence and other information the government submits to the Commission for the Control of INTERPOL’s Files, an independent body with the exclusive power to adjudicate requests from individuals seeking access to, correction, and/or deletion of information in INTERPOL’s databases. The Commission discloses the evidence or other information the government submits in response to the individual’s request if the government agrees to such disclosure.

The authors of the op-ed rightfully point to the reforms INTERPOL has recently carried out to expand the rights of individuals. However, despite the reforms, the existing redress mechanism still lacks some crucial safeguards inherent to the modern democratic due process, such as the right to a hearing and the right to appeal. In June 2014, the INTERPOL Executive Committee endorsed a new policy on refugees. According to the policy, “in general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met: the status of refugee or asylum-seeker has been confirmed, the notice/diffusion has been requested by the country where the individual fears persecution, the granting of refugee status is not based on political grounds vis-a-vis the requesting country.” Although the policy is a significant step towards protection of refugees from INTERPOL abuse, it needs improvements. For example, the policy doesn’t grant refugees an exception to the rule that INTERPOL doesn’t disclose whether there is information about the individual in its databases without the government’s consent. As a result, refugees, like other individuals, often learn about a red notice or diffusion against them after they are detained due to the INTERPOL alert. In such cases, the rights provided in the policy come too late. This is one of the reasons why the detention of refugees like Dogan Akhanli and Hamza Yalcin continues despite the fact that the policy has been in place for several years.

INTERPOL’s Policy on Refugees Needs Improvement

By Yuriy Nemets | December 22, 2017 | Comments 0 Comment

In June 2014, the INTERPOL Executive Commitee introduced a new policy on refugees. Under the policy,

[i]n general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met:

the status of refugee or asylum-seeker has been confirmed;
the notice / diffusion has been requested by the country where the individual fears persecution;
the granting of refugee status is not based on political grounds.

Since the policy came into force, INTERPOL has approved a number of requests from refugees asking to delete information about them from INTERPOL’s databases. The policy has been a significant step towards protection of refugees from member countries that abuse INTERPOL’s resources to persecute political opponents and other victims of unlawful criminal prosecutions. Nevertheless, the policy needs improvement.

Among the issues is that the policy does not guarantee any refugee the right to have the red notice or diffusion deleted. According to the policy, it is to be applied “in general.” By making this reservation, INTERPOL appears to retain the right to make exceptions and deny a refugee the relief whenever the organization deems proper.

Another significant flaw is that refugees are not exempt from the rule that INTERPOL doesn’t disclose whether there is information about an individual in its databases without the government’s consent. As a result, refugees, like other individuals, often learn that there is a red notice or diffusion against them only after they are detained due to the INTERPOL alert. In cases like these, the rights provided in the policy come too late.

In September 2017, the 86th INTERPOL General Assembly voted in favor of the policy and thereby assured its stability. Apart from that approval, the General Assembly seems to be more concerned about criminals unlawfully obtaining refugee status to shield themselves from legitimate prosecutions than about the victims of INTERPOL red notice abuse. In its Resolution GA-2017-86-RES-09, the General Assembly calls upon members countries to ensure that terrorists and other criminals don’t abuse refugee status. At the same time, the resolution fails to mention the need to protect individuals from persecution, to which INTERPOL refers as one of the three primary objectives of Article 3 of its Constitution, which “strictly forbid[s] . . . the Organization to understate any intervention or activities of a political, military, religious or racial character.” Nothing in the resolution calls upon member countries to address the continuing abuse of INTERPOL’s resources against refugees.

China and Russia INTERPOL Appointments: Assessing the Human Rights Impact

By Yuriy Nemets | December 18, 2017 | Comments 0 Comment

In November 2016, the 85th INTERPOL General Assembly elected INTERPOL’s new president and vice-president. Mr. Meng Hongwei, a Vice Minister of Public Security and the head of the INTERPOL National Central Bureau in China, became INTERPOL’s President, and Mr. Alexander Prokopchuk, the head of the INTERPOL National Central Bureau in Russia, a vice-president. The appointments raised concerns over INTERPOL’s ability to maintain its adherence to the organization’s core principles of neutrality, non-involvement in activities of a political character, and protection of individuals from member countries that use INTERPOL’s resources to persecute political opponents and other victims of unlawful criminal prosecutions. For a long time, China and Russia have been widely criticized for human rights violations. Could these appointments affect INTERPOL’s neutrality and commitment to human rights?

INTERPOL’s President heads the organization’s Executive Committee. However, it is the General Assembly, not the Executive Committee, that has the supreme authority in the organization. The General Assembly sets the standards and principles for all INTERPOL’s activities. It is composed of delegates that represent each of the 192 member countries. Each member country has one vote in the General Assembly, and a simple majority makes decisions, except when the INTERPOL Constitution requires a two-thirds majority. The General Assembly adopted INTERPOL’s Constitution, the Rules on the Processing of Data, and other fundamental texts INTERPOL must comply with. These sources require that INTERPOL act in accordance with the Universal Declaration of Human Rights, strictly prohibit the organization from engaging in any activity of a political, military, religious, or racial character, and forbid member countries to use INTERPOL’s resources to persecute individuals. Under the Constitution, the Executive Committee supervises the execution of General Assembly’s decisions. It is not within the Executive Committee’s purview to repeal or change them.

The Commission for the Control of INTERPOL’s Files guards INTERPOL’s independence and adherence to human rights too. The Commission is an independent body that ensures INTERPOL’s compliance with the Constitution and other regulations. The Commission adjudicates individual requests for access to information in INTERPOL’s files and requests to delete information from the organization’s databases. Its Statute is adopted by the General Assembly and its decisions are final and binding on INTERPOL. The Executive Committee is prohibited from interfering with any of the Commission’s activities or influencing its decisions. Tasked with overseeing the implementation of the General Assembly’s decisions, it is the Executive Committee’s obligation to ensure the Commission’s independence as guaranteed by the INTERPOL Constitution.

As described in INTERPOL’s regulations, the mechanism intended to ensure INTERPOL’s neutrality, including its independence from high-ranking appointments within the organization, looks robust. Let’s hope it works.

Category: Refugees