Interpol is not an international police agency. It’s a bulletin board on which notices are posted, and a communications system by which messages are sent. The board and the system have rules, the most important of which is that — as required by Interpol’s Constitution — they cannot be used for political, racial, religious, or military purposes. Interpol cannot stop its member nations, which are fully sovereign, from creating and prosecuting political offenses. All it can and is required to do by its Constitution is ensure that it is used only in connection with genuinely criminal offenses. Unfortunately, Interpol is falling short on that count. But there are ways to improve its record.
Interpol abuse occurs when Interpol is used in connection with political, racial, religious, or military offenses. We do not know how often this happens, but we do know the problem is real and growing. My research shows that approximately 170 Red Notices — Interpol’s most famous kind of notice — were cancelled in 2016, about twice as many as were cancelled by the Commission for the Control of Files (CCF), an Interpol appellate body, in the previous year. Cancellations, which occur most often because the notice is abusive, reflect only those notices that were the subject of complaints filed, so those figures underestimate the scale of the problem. The recent disappearance of former Interpol President Meng Hongwei of China, and the fact that Alexander Prokopchuk of Russia — which is notorious for abusing Interpol — came close to being elected to replace Meng have heightened these concerns.
If a majority of nations in Interpol’s General Assembly — its supreme body — had voted for Prokopchuk, Russia’s Interpol abuser-in-chief, this would have been clear proof that they regard Interpol abuse as acceptable. As Interpol is a one-nation, one-vote club, the U.S. would then have been in the minority in opposing abuse in the future. Fortunately, Prokopchuk lost. The vote of 101 for South Korea’s Kim Jong Yang to 61 for Prokopchuk was disappointingly close, but Kim’s victory means Interpol reform remains a possibility.
There are many potential pathways for reform. It is, of course, possible to argue that the best way to reform Interpol is to cooperate with Interpol’s Secretariat and its German secretary general, Jürgen Stock. But in my view, internal reform efforts likely will be disappointing, because Interpol prefers having a universal membership, based on an applicant’s approval by the General Assembly, to having standards for membership, and believes that the sovereign equality of its member nations requires treating all of their requests with equal respect. I disagree with that view, but I doubt Interpol will change its mind.
Here, therefore, are 10 steps the U.S. can take — in some cases on its own, more often in cooperation with other democracies — to limit Interpol abuse and shield the victims should abuse occur.
1. Give the State Department a Formal Role in the National Central Bureau.
All Interpol member nations are required to establish a National Central Bureau (NCB), a nationally-controlled agency that acts as liaison between Interpol and the member nation. In the U.S., the NCB is co-managed by the Department of Justice and the Department of Homeland Security, reflecting the correct U.S. view that Interpol is supposed to play a part in law enforcement, not politics. But when nations like Russia, China, Iran, and Venezuela are politicizing Interpol, continuing to treat it as though it is an apolitical organization means turning a blind eye to the politicized abuse.
The NCB appears to believe that Interpol works well for the U.S., and that efforts to challenge its politicization might cause other nations to drop out of it or disregard it, thereby making it work less well for the U.S. The bureau sees its job as catching the accused, not as protecting the unjustly accused. It is unlikely to challenge politicization on its own. The NCB should therefore, by action of Congress, be given a Deputy Director seconded from the State Department. The deputy director would be responsible for heightening the NCB’s awareness of Interpol abuse and advancing ways to combat it.
2. Use the U.S. NCB to Block and Oppose the Authoritarians
Interpol maintains a number of databases, but all data in them remains the property of the nations that contributed the information. Any Interpol member nation has the right to restrict access to its data by selected other Interpol member nations. The U.S. reportedly prevents Cuba, the International Criminal Court, Iran, Sudan, and Syria from accessing its fingerprint data. These restrictions should be broadened to include all U.S. data and expanded to include the Palestinian Authority, Russia, and Venezuela, and other nations identified by the new deputy director of the NCB as Interpol abusers. The U.S. should then announce that it will take no action on Interpol communications from any Interpol member nation that is not allowed to access U.S.-provided data. The U.S. also should take a proactive role in protesting, through the NCB, notices and other uses of the Interpol system that it deems abusive. Interpol itself states that “NCBs have a supervision role with regard to other NCBs.” The U.S. NCB does not merely have the right to oppose Interpol abuse: under Interpol’s rules, it has the responsibility to oppose it.
3. Create A Democratic Funders’ Caucus Within Interpol
Of Interpol’s top 15 statutory funders, 14 are democracies — China is the lone non-democracy, ranking as the 14th largest contributor. The democratic share of Interpol’s funding is even larger if other democratic sources — such as contracts with law enforcement agencies — are included. The U.S., the United Kingdom, and France — which have historically dominated Interpol — should take the lead in creating a democratic funders’ caucus within Interpol. This caucus would pick and lobby for a slate of democratic candidates for Interpol’s presidency, its Executive Committee, and the CCF, and would press for transparency in Interpol’s funding and its publications. It also would support the admission of law-abiding democracies like Taiwan to Interpol, while opposing the admission of states that are not ready for, or are uninterested in upholding, the responsibilities of Interpol membership.
4. End the Pursuit of Ethically-Challenged Funding Sources to Fuel Interpol’s Growth
Interpol views itself as chronically short of funds, in part because it grows to justify its own existence, and in part because its member nations have pressed it to do more. If those nations want it to do more, they should increase their statutory contributions commensurately. Statutory contributions are Interpol’s largest single source of funding, but Interpol received 54.4 million euros in statutory contributions in 2017, and 69.9 million euros from other sources. Among these other sources is the Interpol Foundation for a Safer World, which Interpol describes as “the rallying point for like-minded organizations and persons to unite with Interpol.”
In reality, the Foundation is a conduit for gifts from the United Arab Emirates, totaling 50 million euros from 2016 to 2020. It is likely no coincidence that the General Assembly met in Dubai in 2018. Funding sources like this reduce the ability of Interpol’s member nations to control it, pose a risk that Interpol will become enmeshed in corrupt activity, and create the possibility of improper external influence on Interpol’s activities. More broadly, Interpol has a remarkable ability to partner with bad or ethically-challenged actors, including FIFA and the IOC (purportedly to fight corruption in sports), and Russia’s Kaspersky Lab (purportedly to fight cybercrime). The democratic funders’ caucus should press for:
● Full and public transparency on all sources of past and present Interpol income.
● Interpol’s exclusive future reliance on statutory contributions.
● A reduction in peripheral activities to allow Interpol to live within those means.
● An increase in statutory contributions, should this prove necessary.
5. Shed Light on the Commission for the Control of Files
The CCF is responsible for ensuring that Interpol’s activities comply with its rules. Under the leadership of Secretary General Stock, Interpol has made significant and constructive reforms to the CCF’s rules and structure. But data from the CCF concerning its operations and decisions, while improving, are still insufficient.
The democratic funders’ caucus should propose a General Assembly resolution commending the CCF for the improvements it has made, while requiring it to publish decision excerpts—in a timely, reliable, and regular manner—so as to create case law on which attorneys and other experts can rely. It also should require publication of annual reports containing full and standardized information on the requests received, the actions taken, and the nations involved.
6. Support the Suspension of Persistently-Abusive Interpol Member Nations
Interpol’s member nations are responsible for not making politicized requests. Interpol cannot prevent autocratic nations from making requests for politicized Red Notices—it can only refuse to publish these notices. Interpol’s rules make it clear that, if a nation persistently makes requests that seek to break those rules, its access to Interpol’s systems can be suspended. Unless nations face consequences for abusing the privileges of belonging to Interpol, it will ultimately be impossible to establish any deterrent power that will protect Interpol from abuse.
The definition of abuse should be expanded to include mass requests. In 2016, in an abusive effort of unprecedented scale, Turkey sought Interpol action against 60,000 people on the grounds that they were supporters of exiled cleric Fethullah Gulen and members of what the Turkish government dubbed the “Fethullahist Terrorist Organization,” which the regime alleges was behind the failed July 2016 coup attempt against President Recep Tayyip Erdogan. The democratic funders’ caucus should propose a General Assembly resolution directing the Interpol General Secretariat to develop criteria for defining mass requests and for rejecting them as inherently politicized. These criteria should be published for scrutiny prior to next year’s General Assembly meeting and voted on at that session.
The democratic funders’ caucus also should propose a General Assembly resolution affirming that Interpol has the power, as specified by Article 131 of its Rules on the Processing of Data, and the responsibility to suspend abusive nations. The resolution should further direct Interpol’s General Secretariat to carry out a study on which nations have submitted the most requests—and the highest proportion of requests—rejected as abusive or later determined to be abusive. That study should be made available to the press at the 2019 General Assembly meeting.
7. End the Use of Red Notices from Abusive Interpol Nations to Justify Detentions
The U.S. should immediately end the scandalous practice whereby the Department of Homeland Security uses Red Notices from authoritarian nations such as Russia to justify the imprisonment of exiles in the U.S. This practice, which began as early as June 2015, is based on the false notion that the Notices are proof that these individuals pose a danger to the public. Removing foreign fugitives is a proper and necessary function of law enforcement, but the U.S. should not rely on autocratic leaders to identify criminals. This practice is unjust, and it makes the U.S. directly complicit in the authoritarian abuse of Interpol.
In my own work as an expert witness on Interpol, I have been shocked by the extent to which DHS is willing to argue, and judges are willing to believe, that a Red Notice increases international flight risk. In fact, it reduces that risk. They are also known to assert that a Red Notice confirms the validity of a foreign arrest warrant. In reality, Notices are published by administrative procedure, not judicial process. There is a serious need for improved legal education on this score. But no amount of legal education can guard against the risks of using Red Notices from abusers such as Russia as evidence. The only safe course is not to use them.
Senator Lindsey Graham (R-S.C.) has introduced a bipartisan measure, the “Defending American Security From Kremlin Aggression Act of 2018.” In Sec. 707, it refers to the risk posed by Russian Red Notices and seeks to ensure that individuals subject to them would still have “access” to U.S. federal programs and services. Though well-intentioned, this misses the mark: the problem is not a lack of “access,” but the use by DHS of Russian Red Notices in its legal proceedings. The right course of action is for Congress to ban the use of Russian Red Notices in all federal legal, immigration, and asylum proceedings and to create a mechanism to ban the use of Red Notices from other abusive nations as designated by Congress or the new deputy director of the U.S. NCB.
8. Create a “White List” of Victims of Interpol Abuse
It will never be possible to prevent all cases of political abuse of Interpol, but as things stand now, victims of this abuse have few alternatives. Their only option is to turn to the CCF, which can stop the abuse but cannot impose damages on the nation that abused the system or restore the victim’s reputation, ability to travel, or ability to access the international financial system, should those entities not update their information. Again, there are limits to the power of the United States to achieve these ends, but the U.S. can do more than it is doing now. In light of the Palestinian Authority’s admission to Interpol in 2017 and the ongoing efforts of Russia, Iran, China, and others to abuse Interpol, the need to do so is urgent.
The U.S. should work with a carefully selected group of democracies to create a “white list” of victims of Interpol abuse. This group should start with the United Kingdom and Germany, as — with the United States — these three nations have had the highest-profile victims of Interpol abuse. The group would not be based on a treaty or comprise a new international organization. It would be united only by a shared goal and a few basic procedures. Admission to the group would be by unanimous agreement of the existing members, with only the most trustworthy nations allowed to join. The group would have four purposes:
- Creation and Maintenance of a “White List.” The list should be composed of victims of Interpol abuse. Inclusion in the list should be by unanimous agreement of all members of the group after a 14-day waiting period. In the U.S, the new deputy director of the NCB would be responsible, with the advice and cooperation of the NCB’s legal counsel, for updating, maintaining, and proposing additions to the white list and for ensuring that abusive Interpol notices or other communications are not used as evidence in federal legal proceedings in the United States.
- Mutual Diplomatic Support. If any group member’s NCB made a protest to the Interpol General Secretariat, the CCF, or the General Assembly concerning action taken against a person on the “white list,” the other members of the group would agree automatically to join and support this protest. They would also agree to work jointly to seek support from NCBs that are not group members.
- Protection of Freedom of Movement. All group members would agree to prevent any members of the list from having their passports, visas, or other travel documents affected by any future Interpol action. This would be done by requiring national automated systems to check the “white list” before passing any Interpol notice on to national travel documentation systems.
- Protection of Freedom of Commerce. All group members would agree to publish the “white list” through their authorities responsible for financial sanctions. In the case of the U.S., that authority would be the Treasury Department. They also would agree to inform banks, know-your-customer firms, and other financial actors officially that they will not be investigated and will suffer no penalties as a result of doing business with any individual on the white list if that individual is the subject of Interpol action. Furthermore, these firms should be notified that if they do take adverse action on the basis of an Interpol communication concerning one of these individuals, the U.S. Department of Justice will support that individual in any lawsuit he or she chooses to bring.
9. Change Interpol’s International Organization Immunities
Interpol has received legal immunities as an international organization through a series of executive orders issued by Presidents Ronald Reagan, Bill Clinton, and Barack Obama. These immunities ultimately stem from the International Organizations Immunities Act, adopted in 1945. At this point, it is effectively impossible to hold Interpol to account in U.S. courts.
The Executive Branch could remove Interpol’s immunity from judicial processes stemming from its publication or transmission of libelous or defamatory notices or other communications from entities that the U.S. does not recognize as states, such as the Palestinian Authority, or even from all Interpol member nations. If the U.S. takes this step, Interpol would be financially liable for any abuse it helps to perpetrate.
If Interpol were to lose a case in U.S. courts, it might refuse to pay. Congress could preempt this by creating a provision regarding the statutory contributions it pays annually to Interpol such that if Interpol loses a defamation case in U.S. courts and refuses to pay damages, those damages would be withheld from U.S. contributions and paid directly to the successful litigant on Interpol’s behalf.
This would undoubtedly be a major step. But it would concentrate the minds of Interpol’s General Secretariat, encouraging them to reject potentially politicized Red Notices and to propose reforms for consideration by the General Assembly to Interpol’s other communications, which are even more easily abused than Red Notices.
Fundamentally, Interpol’s notices deserve legal immunity only if Interpol is operating as an international organization within its own rules. If it is not, the U.S. can and should subject it to legal sanctions.
10. Create an Interpol Watchdog NGO
Of course, this is not a step the U.S. government, or any government, can or should take. But I am convinced that it is a step that needs to be taken. Many people and organizations, starting with Fair Trials International and William Browder and including many attorneys and journalists, have done much to raise awareness of the problem of Interpol abuse, to make constructive suggestions for reform, and to assist abuse victims.
But Interpol abuse is not simply a problem of getting a fair trial — and most issues around the problem of fair trials have nothing to do with Interpol. Nor is Interpol abuse simply a synonym for Russian malevolence, though Russia is certainly a bad actor in Interpol. Nor can Interpol abuse be stopped simply by aiding victims, of whom there is an endless potential supply.
Nor is Interpol abuse merely a problem for lawyers: it is fundamentally a problem of public policy and international affairs with legal aspects, not the other way around. And while the quality of journalism on Interpol has improved substantially over the past year, it is unlikely that any journalist will be allowed to devote a career to Interpol, thereby building up the necessary historical, policy, and legal expertise.
An Interpol-watchdog NGO would operate with complete financial transparency. It would have four roles:
- Serving as a focal point to connect victims, proven and suspected, of Interpol abuse with legal advisors who have the experience to file complaints with the CCF and to oppose the domestic consequences of abuse, and with relevant expert witnesses who can testify persuasively in their areas of expertise.
- Offering unbiased and independent information to journalists, politicians, and political staff on Interpol’s history, structure, purposes, and communications, and on Interpol abuse.
- Supporting efforts at national and international levels to limit Interpol abuse and to protect its victims, while supporting Interpol — or another organization with similar purposes — as a necessary adjunct to law enforcement efforts that, like them, must operate within the rules.
- Conducting and publishing research on Interpol and issues directly related to it to enhance awareness of current and emerging challenges to Interpol’s operations within its rules.
The Point of Interpol Reforms
Interpol serves a good purpose, and it has good rules. Its problem is, simply stated, that not all of its members are as good as its rules. The point of these proposed reforms, at the national and the international level alike, is not to challenge Interpol’s purpose or its rules. It is to ensure that Interpol upholds those rules. If it does not, it is not just Interpol’s purpose or victims that will suffer. Ultimately, the last casualty of Interpol abuse will be Interpol itself.
This piece originally appeared in Just Security