Interpol’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System

COMMENTARY Global Politics

Interpol’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System

Jun 28th, 2019 7 min read
COMMENTARY BY
Theodore R. Bromund, Ph.D.

Senior Research Fellow in Anglo-American Relations

Ted Bromund studies Anglo-American relations, U.S. relations with Europe and the EU, and the U.S.’s leadership role in the world.

In Volume 35, Issue 5 of the International Enforcement Law Reporter (May 2019), Mr. Yuriy Nemets argued that “INTERPOL’s rules not only give the organization the power to screen all incoming diffusions, notices and requests from governments and block them before they enter the organization’s channels, the rules actually require INTERPOL to do so to prevent abuse.”1 While I accept this assessment as an accurate depiction of the legal position, I cannot accept it as an accurate assessment of the technical reality. 

Our disagreement stems fundamentally from our different understandings of INTERPOL’s nature, with Mr. Nemets seeing it as a legal entity, whereas I see it as a fundamentally political organization, albeit it one that acts in the realm of international law enforcement. Exploring these different understandings sheds light on the fundamental challenges that Mr. Nemets and I agree Interpol must confront. 

Before I explain the grounds of my disagreement, I will set out the subjects on which I believe Mr. Nemets and I agree. We are opposed to the abuse of the INTERPOL system for political and other illegitimate purposes, a subject on which I have written widely.2 We are also self-evidently concerned by abuse of INTERPOL diffusions, which has received less attention than INTERPOL’s red notices. Finally, we believe that INTERPOL should do more to combat these abuses, and that INTERPOL must abide by the rules in its Constitution and its Rules on the Processing of Data (RPD) if it is to limit these abuses. 

But Mr. Nemets and I disagree about if, and how, INTERPOL can achieve this end in the context of its diffusion system. He summarizes an article I published in Forbes as asserting that “INTERPOL does not have the power to screen incoming diffusions and block non-compliant ones before they are disseminated through the organization’s channels.”3 Mr. Nemets disagrees with my purported assessment, and cites INTERPOL’s Constitution and its RPD to show that INTERPOL has an “obligation to prevent any unlawful data processing, whether it is a diffusion, notice, or message.” 

Mr. Nemets has unfortunately misunderstood the nature of my claim. I did not argue that INTERPOL lacks the legal power (or the responsibility) to prevent abuse. I argued that it lacks the technical ability to do so. In my own words, I stated that “Stopping abusive diffusions would require changing the nature of the diffusion system so that the diffusion is sent first to Interpol for computerized screening, and only then allowed to proceed to its destination.”4 In other words, there is a clash between the legal position, which Mr. Nemets admirably sets out, and the technical fact that it is not currently possible to make this legal position into a reality. Moreover, this technical fact exists because it is the will of INTERPOL’s General Assembly that the diffusion system work as it does. This means that, as Mr. Nemets argues, the barriers to preventing abuse of the diffusion system are not legal. They are technical and political. 

There appears to be no dispute about how the diffusion system functions. The RPD state that diffusions are “sent directly to one or several [NCBs] or to one or several international entities, and simultaneously recorded in a police database of the Organization.”5 In other words, INTERPOL only receives a diffusion after it has been transmitted and it receives the diffusion simultaneously with the NCBs (or international entities) to which it was sent. Mr. Nemets calls on INTERPOL to “monitor and block all incoming requests, including diffusions, to prevent governments from violating INTERPOL’s rules.” But he does not explain how this can be done, given the fact that INTERPOL cannot review diffusions – including all abusive diffusions – until after they have been sent and received. In the context of notices, INTERPOL can (and must) prevent abuse before it publishes a notice, precisely because it is the one doing the publishing. But in the context of diffusions, INTERPOL is responsible for preventing abuse, but it lacks the technical power to prevent governments from sending or receiving abusive diffusions. 

As a result, Nr. Nemets’ preferred solution of “a reliable technology that would block incoming notices and diffusions” on individuals who have already been victims of INTERPOL abuse cannot work in both of these contexts.6 It might be possible to apply technology to the problem of abusive notices, but without fundamental changes in the nature of diffusion system, such technology cannot stop nations from transmitting an abusive diffusion. It could at best only detect the diffusion once it arrives at INTERPOL, and after it has already arrived at its other intended destinations. If technology is to be a plausible remedy to this problem, the diffusion system would have to work not as it currently does, as a point to point system of communication, but akin to the notice system’s hub and spoke model, with diffusions being screened in the hub prior to transmission to the spokes. That would require a fundamental rewiring of the diffusion system and that, in turn, would require a vote in the General Assembly, which by adopting the RPD in 2012 has endorsed the diffusion system as it exists and works today. 

In short, there is a fundamental conflict between INTERPOL’s legal obligation to prevent abuse, admirably described by Mr. Nemets, and the technical reality that this cannot be done in the context of the existing diffusion system. Moreover, this is not simply a technical issue, for INTERPOL’s technical realities are an expression of the political preferences of its member states. It is true that INTERPOL’s Constitution is its supreme document, but its existence does not make Interpol a legal organization, for it is not INTERPOL’s supreme authority. That honor belongs to INTERPOL’s General Assembly. As former INTERPOL Secretary General Ron Noble put it in 2002, “INTERPOL is a democratic organization, and when our members have expressed their will through the democratic process, the general secretariat moves promptly . . . to implement the member states’ decision.”7 INTERPOL is fundamentally a political organization, even if it operates in the realm of international law enforcement. 

If there is a dispute over the interpretation of INTERPOL’s Constitution, or over the operation of the diffusion system, INTERPOL’s General Assembly is the place where that dispute will be resolved. This is because, as Noble emphasized, INTERPOL is fundamentally governed by majority rule: it is a one-state, one-member, one-vote organization. There is no evidence that the majority of INTERPOL’s member states are currently dissatisfied with the diffusion system. This may be because INTERPOL’s members believe the system is not being abused, or it may be because they believe it affords them the ability to circumvent INTERPOL’s obligation to prevent abuse. But whatever the reason, the fact is that there does not appear to be support for the fundamental reworking at a technical level of the diffusion system which would be necessary to allow INTERPOL to screen diffusions before transmission. 

It would be surprising if this support existed, for as a one-nation, one- member, one-vote organization, INTERPOL operates on the assumptions that all of its members are sovereign, equal, and equally respectable. These assumptions are prized by all nations, and the first two assumptions are correct. Unfortunately, the third assumption is incorrect. But Interpol makes it anyhow. As Interpol counsel Yaron Gottlieb put it in 2005, “We assume that what we receive here is accurate and relevant.”8 Interpol is thus facing the fundamental problem of all universal membership organizations that operate – or purport to operate – on the basis of a set of rules: any club that is open to all comers inherently has no meaningful standards for membership and, thus, assumes that one member is as good as the next. But as one member is not in reality as good as the next – Russia is not as law-abiding as Japan, for example – any universal membership organization can be expected both to have members that abuse its rules and to find itself pulled by the assumption of equality into minimizing the misdeeds of its abusive members. 

Technically, it is certainly possible to change the diffusion system to allow INTERPOL to fulfill its obligation to prevent abuse. Such a change is desirable, but because it would require a political decision, and would carry the political implication that some INTERPOL member nations are not trustworthy, it is unlikely to find support in INTERPOL’s General Assembly. The clash between INTERPOL’s rules and its technical and political realities will therefore remain unresolved. The only viable responses to this are to persist with after-the-fact challenges to abuse, or to break away from the assumption that INTERPOL must be a universal membership organization, seek to sanction or even to expel a persistent violator of INTERPOL’s rules, and thereby to establish deterrence against abuses by the remainder of INTERPOL’s member states, which are both the source of its power and the cause of the abuses that plague it. 

References:

  1. Yuriy Nemets, “INTERPOL”s Power to Act Preemptively in Fighting Government Abuse,” International Enforcement Law Reporter, Volume 35, Issue 5.
  2. See Ted R. Bromund, “INTERPOL Abuse By Palestinian Authority And Others Shows Strengths and Weaknesses Of The System,” Forbes, May 31, 2019, and Ted R. Bromund and Sandra A. Grossman, “Challenging a Red Notice: What Immigration Attorneys Need to Know About INTERPOL,” AILA Law Journal, April 2019, Vol. 1, No. 1, pp. 19-29. 
  3. Ted R. Bromund, INTERPOL CCF’s Latest Annual Report Highlights Fundamental Flaw in the System (Mar. 31, 2019).
  4. Ibid. 
  5. “Requests for cooperation and international alerts through INTERPOL channels shall be sent by means of INTERPOL notices or diffusions,” INTERPOL’s Rules on the Processing of Data, Art. 8(1), 2016, https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents
  6. Nemets, ibid. 
  7. Libby Lewis, “Interpol’s Red Notices Used By Some To Pursue Political Dissidents, Opponents,” International Consortium of Investigative Journalists, March 16, 2012.
  8. Ibid. 

View the original post on IELR here

This piece originally appeared in INTERNATIONAL ENFORCEMENT LAW REPORTER – Volume 35, Issue 6