When Interpol Red Notices Aid and Abet
Since Red Notices are issued electronically worldwide, they have the potential to be very damaging and are issued at the behest of national police forces, some with very questionable levels of integrity. It is essential that robust safeguards exist to ensure that Red Notices are not wrongfully issued and that, where they are, they can be rapidly challenged. By Frank Richardson
“We believe in a free and just society. To be truly just, society must embrace high standards of integrity and openly resist corruption.” - part of the mission statement of the Interpol Group of Experts on Corruption. Yet Interpol Red Notices appear to be far too open to abuse by, et al, corrupt police hounding victims of their extortion."
Barry Grossman, a successful businessman who operated out of Bali, Indonesia, has had his life turned upside down by police extortion, such that he is now reduced to living in a garden shed in Australia. With his business ruined, stress-related illnesses afflicting him and having been torn from his wife and daughter, he is often suicidal.
His problems began when a commercial, civil dispute was preyed upon by Bali police and he failed to be sufficiently compliant. Grossman found himself being intimidated by thugs and police over a period of almost three years, which included being thrown into jail for a while on trumped-up charges of embezzlement and fraud. For deeming that there was no case to answer, the public prosecutor who oversaw Grossman's case was summarily relocated, while other officials frankly confided in Grossman's lawyer that the charges had been fabricated.
However, police creativity did not stop there. When Grossman left Indonesia to seek medical attention, the police banned him from re-entry and came up with forgery and counterfeiting as the basis of their request in June, 2011, for an Interpol Red Notice to fetter him overseas and, through not requesting his extradition, leave him in legal limbo. This is a pattern that has been repeated in other cases by the police in Bali a number of times.
It is not unusual in developing countries for government officials to use their power over the lives of others to extort money. It could be as simple as refusing a driving licence or a land certificate, or delaying their issue, without justification; but, unfortunately, it could just as easily involve the use of depredation, detention and even violence and rape. Such officials abuse state power for their own private ends, which may include financial gain, career advancement or the settling of personal scores.
Their corrupt 'services' are, of course, also purchased by the corrupt in civil society, including criminal gangs. Such state-power piracy is often endemic in the developing world and, according to Transparency International, “The police are the institution most often reported as the recipient of bribes ........... From accepting kickbacks to providing cover to organised crime, police corruption comes in many forms."
When one visits countries like Nigeria, Russia, Bangladesh, Thailand, Indonesia and Brazil, one expects official vulturism and, thus, that the police may well be corrupt. However, in the international arena at least, one is entitled to expect that procedures should not abet police extortion.
Interpol (International Criminal Police Organization) was created in 1923 to facilitate cross-border police cooperation with the view to combating international crime and, today, has its headquarters in France. It has to be acknowledged that it has a chequered history, which includes a period of domination by the Nazis who exploited the vulnerability of Interpol's data during the Second World War, gaining access to secret dossiers in furtherance of the Gestapo's nefarious activities.
The sharing of knowledge and data, skills and best practices in policing between police forces of different countries and establishing global codes of conduct and ethics, is clearly vital in this age of globalisation. However, what may be viewed as a crime in one country may not be seen as such in another. Interpol's constitution provides that the organisation exists to “contribute effectively to the prevention and suppression of ordinary law crimes” and specifically excludes “any intervention or activities of a political, military, religious or racial character”. Article 2, no less, of its constitution also emphasises that the mutual assistance between criminal police authorities must be undertaken within the spirit of the 'Universal Declaration of Human Rights'. So far, all well and good.
However, good intentions are one thing and implementation is quite another. Problems arise when, for reasons of cooperation and reciprocity, the police forces of the 190 member countries must be treated as equals abiding by the same standards. Transparency International is clearly saying they do not abide by the same standards. Other international organisations such as the U.N., Amnesty International and the regional development banks confirm in their reports that in many developing countries not only are the police corrupt, but that bribes are regularly demanded by judges and prosecutors too. Despite this reality, Interpol, while helping to effectively combat crime in certain areas, appears to have inadequate mechanisms in place to deal realistically with such corrupt police forces and to safeguard individuals from abuse.
The Interpol Group of Experts on Corruption (IGEC), which develops and implements law enforcement measures to combat corruption, does go some way towards acknowledging this problem insofar as it has produced a set of global standards specifically to combat corruption in the police. The goal being to improve standards of honesty, integrity and ethical behaviour in policing around the world, as well as to advance measures to bring corrupt officers to justice. Given that Interpol chiefs in Panama, Peru, Mexico, Ecuador and Bolivia over the years have been implicated in drug trafficking, while at the same time being privy to Interpol's international communications system, highly sensitive police information, dossiers on individuals and details of operations against international drug traffickers, there is clearly an urgent need for more progress in this area. Possibly the most farcical case of all was that of General Manuel Antonio Noriega of Panama, who was awarded Interpol's highest honour in 1987 for fighting drug trafficking and actually once chaired Interpol's Drug Committee, before eventually being indicted by the US for drug trafficking.
To aid the pursuit of criminals across borders, Interpol has an international notice system that provides “critical crime-related information”. The Notices come in a panoply of colours; but the Red Notice is the one that is issued to apprehend persons against whom an arrest warrant or a court judgment has been issued. Red Notices, of which thousands are issued every year, are, therefore, a request circulated worldwide for national police forces to arrest a wanted person with a view to extradition. What the Red Notice is not, Interpol emphasises, is an international arrest warrant. Yet, where granting red notices the status of a request for provisional arrest is concerned – which, it seems, most member states of Interpol do - the distinction appears to be a semantic one.
Legal status is often conferred on Red Notices by international conventions or bilateral treaties between the requested and the requesting state and, on this basis, individuals that are the subject of such Notices will be 'provisionally arrested'. Thus, the Red Notice becomes, to all intents and purposes, an arrest warrant. One can see how speeding up arrest leading to extradition in this way may be necessary to apprehend slippery, border-crossing criminals; but, in the wrong hands, this power can easily be abused and is. Interpol has, however, been known to intervene where it felt its notice system was being used wrongly. It is with some considerable irony that, in the extraditions of Klaus Barbie from Bolivia and Josef Mengele from Paraguay, until the 1980s Interpol refused to assist.
Red Notices are generally issued for the arrest of those suspected of having committed serious offences, such as armed criminals, drug dealers, serial killers, gangsters, people traffickers, paedophiles, rapists, pirates and terrorists. As a consequence, in addition to the threat it poses of imminent arrest, a Red Notice also seriously impugns a person's reputation, thereby limiting prospects of gaining employment, credit, housing and even, in some cases, access to one's bank account. As such, despite Interpol's insistence that a Red Notice is not a conviction, it could be seen as a sentence in everything but name and, as a consequence, vulnerable to abuse by police forces that persecute people for political reasons or to extort.
Indeed, a quarter of Red Notices are requested by countries with poor records on civil liberties and political rights. Some regimes, such as those in Russia, Belarus, Iran, China, and Bahrain, have used Red Notices to hound and persecute individuals that are seen by them as thorns in their side. In 2006, in response to an Interpol alert, for example, Syria deported political activist, Rasoul Mazrae, back to Iran where he was jailed, tortured and sentenced to death. Iran has used Interpol to also pursue political dissidents who have long been European Union residents. Similarly, Russia used Interpol to pursue business associates of the oligarch Mikhail Khodorkovsky, whose jailing is seen as politically motivated.
William Blackstone, the eighteenth century English jurist expressed his ratio for safeguarding the innocent as follows: "Better that ten guilty persons escape than that one innocent suffer." This formulation is closely tied to the presumption of innocence that is enshrined in Article 11 of the Universal Declaration of Human Rights, to which Interpol claims to adhere. Additionally, Article 9 provides that: “No one shall be subjected to arbitrary arrest, detention or exile” and Article 10 that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Since Red Notices are issued instantaneously electronically worldwide, have the potential to be very damaging and are issued at the behest of national police forces, some with very questionable levels of integrity, it is absolutely essential that robust safeguards exist to ensure both that Red Notices are not wrongfully issued and that, where they are, they can be rapidly challenged.
When asked what procedures Interpol has in place to prevent misuse of Red Notices, Interpol Senior Counsel, Yaron Gottlieb, replied that they are “issued [by the General Secretariat] based on a presumption that the information provided by the police is accurate and relevant,” and that “Interpol’s role is not to question allegations against an individual, nor to gather evidence”. What is even more worrying than this presumption is that Interpol's National Central Bureaus (NCB) enter requests for Red Notices into Interpol's systems themselves. These can then be seen by police forces around the world before any review of the request by Interpol takes place.
While Interpol has a NCB in each member country, it is not responsible for it, has no influence over who is appointed to represent it and has no authority to bring a NCB to account. The NCB is generally a division of the national police agency or investigation service. In some countries these may be under the influence of drug traffickers or other criminal elements.
There is, nevertheless, a very heavy reliance on the professionalism and integrity of the requesting police authority – a reliance, which as we have already seen, is often not at all justified, particularly since half of all requests for Red Notices come from countries widely seen as corrupt. However, Yaron Gottlieb does go on to point out that: “if a doubt is cast on the original information, either by the individual or from another source, such as another member country or a report from a NGO, the requesting country is asked to provide clarifications and address the particular doubts raised in this case.” This appears to assume, quite unrealistically, that an individual will be aware of a Red Notice against him before it is issued and, thus, in most cases, amounts to no protection at all.
We must, therefore, look at what provisions exist for challenging Red Notices after they are issued and its practicality. According to Interpol, an individual may challenge a Red Notice and/or the national arrest warrant on which it was based, by: taking up the case with the requesting country, asking the authorities in one's own country to protest the Red Notice, or contacting the Commission for the Control of Interpol’s Files (CCF). Taking up the case in absentia with the requesting country could be fraught with problems, costly and lengthy. One could conceivably ask the authorities in one's own country to question the Red Notice; but if no extradition request has been received they may have little interest in doing so. Which leaves the final option to the CCF.
“The role of the CCF,” informs Interpol's website, “is to ensure that all information processed via Interpol's channels - including Red Notices - complies with Interpol's rules.” The CCF is - while being staffed and funded by Interpol - independent, staffed by volunteer experts (most of whom are not police officers), issues recommendations to be implemented by the General Secretariat and, in the case of projects to create new files or new methods of circulating personal information, tasked with ensuring that they do not infringe the basic rights of the people concerned.
The CCF, says Billington, may question the validity of an arrest warrant, which can lead to its cancellation. She illustrates this with the November, 2003 request by Argentina to issue Red Notices against 12 Iranians implicated in the anti-Israel bombings in Buenos Aires in 1994. Interpol's Office of Legal Affairs (OLA) is prepared to review Red Notices and Interpol will cancel them where the OLA “receives concrete information on possible corruption in a given case”. Accordingly, after an Argentine court concluded that the investigating magistrate who had signed the arrest warrants was corrupt and should be removed, Interpol suspended the 12 Red Notices in October, 2004. Then, upon hearing representations by Iran and Argentina, Interpol's Executive Committee unanimously ordered the cancellation of the Red Notices.
However, whereas Red Notices are sent digitally around the world at the press of a button, only a postal address in France is provided for the CCF. No telephone or fax number is given, nor any email address. The reason, according to Billington, “is to ensure that individuals can directly contact the commission and send any supporting documents securely.” Furthermore, in its annual reports little information is provided about the number of Red Notices challenged, the success rate, average timespan of a challenge, the countries involved and so on.
Despite Billington's assertion that Interpol aims to be transparent, the organisation appears both lacking in clarity and rather ponderous. Moreover, Interpol seems not to be accountable to civil society in any way whatsoever. In fact, it could be argued that it is a law unto itself, particularly since it has complete legal immunity under its 1984 agreement with the French government. The agreement, which was deemed necessary to ward off the growing number of civil lawsuits, means Interpol cannot be held liable for, inter alia, defamation, violation of France's 6th January 1978 law concerning information technology, files and freedoms, or for crimes and abuses committed by Interpol staff in connection with their official duties.
Additionally, and rather excessively, the agreement provides that Interpol's “property and assets wherever located and by whomsoever held, shall be immune from seizure, confiscation, requisition, [and] expropriation”, that its archives and documents are “inviolable” and that it is exempt from direct taxation. In November, 2009, President Obama conferred similar privileges and immunities in respect of Interpol's operations within the United States. This is rather ironical given its partnership with the U.N. in upholding the rule of law (where no one is deemed to be above the law) for peace in fragile states.
As long ago as 1989, 13 members of the Council of Europe issued a motion calling for Interpol to be called to account and that an inventory of its transgressions be drawn up. One such transgression that it referred to at the time was that, "Individuals and organisations have been unable to rectify the files on them at Interpol, while having conclusively proven they were false.” This and the extremely limited current provisions for redress, do not bode well for Barry Grossman languishing bereft, distraught and perplexed in his garden shed.
About the Author
Frank Richardson trained as a lawyer, founded OpenTrial and writes for the International Bar Association's 'Global Insight' as well as other publications.