THE AUTHOR
Frank Richardson
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. Email: frank.richardson@opentrial.net
Photo credit: Interpol building photo by Massimiliano Mariani.
