The vote that catapulted Kim Jong Yang of South Korea over Russia’s Alexander Prokopchuk to be the next president of Interpol, at 101-61, was closer than it should have been. As the head of Russia’s National Central Bureau (NCB) since June 2011, and thus in charge of all Russian liaison with Interpol, Prokopchuk is personally responsible for Russia’s abuse of Interpol to harass dissidents, exiles, and politically inconvenient businessmen. The contest between Kim and Prokopchuk should have been no contest at all.
But the media attention devoted to Interpol when it seemed likely that Prokopchuk would win last week did have the positive effect of raising awareness of Interpol’s problems. While electing Prokopchuk would have made those problems worse, Kim’s victory only restores the status quo, and the status quo is not good enough. If Interpol is to be fixed — and by fixed I mean that Interpol should operate according to its own rules — we have to know the difference between the truth about how Interpol actually works, and the myths about it that are widely believed.
Myth One: Interpol agents make arrests
No matter how convenient this is as a dramatic device, there are no Interpol agents out there carrying guns, breaking down doors, and arresting suspects. Interpol itself shares a bit of the blame for this one, as its press releases often imply — without ever quite stating — that Interpol itself is responsible for arresting the latest batch of cigarette smugglers or illicit loggers.
But the main guilty party here is Hollywood, which is seemingly addicted to putting so-called Interpol agents in harm’s way. When Red Notice, starring Gal “Wonder Woman” Godot as a mysterious jewel thief and Dwayne “The Rock” Johnson as a wise-cracking Interpol agent hits theaters in 2020, we might, if we are lucky, reach peak nonsense on this myth.
The reason why this is a myth is obvious: if Interpol was actually an international police agency, it would have the power to override the police and judicial systems of its member nations. Not a single one of those nations would be willing to accept that. Interpol is based on the sovereignty of its member nations, and that does not fit well with the Hollywood version of Interpol. There is no drama in the reality that Interpol is a coordinating mechanism for separate and independent police agencies around the world.
Myth Two: Red Notices are international arrest warrants
Interpol doesn’t work by breaking down doors. Instead, it works mostly by sending emails, putting up notices on bulletin boards, and maintaining databases of nationally-provided information. The best way to understand Interpol, in fact, is to think of it as managing a communications network over which different kinds of messages — some more formal, some less formal — pass between the member nations, sometimes with Interpol’s headquarters in Lyon, France, as an intermediary. The most famous of these messages is Interpol’s Red Notice.
There is no easy and accurate generalization about the legal effect of a Red Notice. Precisely because every nation in Interpol is fully sovereign, nations are free to decide how they want to treat Red Notices. Broadly speaking, civil law nations treat a Red Notice as a sufficient basis for making an arrest, while common law nations like the U.S. do not. The U.S. NCB states that:
The United States does not consider a Red Notice alone to be a sufficient basis for the arrest of a subject because it does not meet the requirements for arrest under the 4th Amendment to the Constitution. Instead, the United States treats a foreign-issued Red Notice only as a formalized request by the issuing law enforcement authority to “be on the look-out” for the fugitive in question, and to advise if they are located.
Formally, Red Notices are requests to locate, identify, and detain a suspect, and a promise to seek the extradition of that suspect, as Interpol rules require. They have no inherent legal power. Once again, the myth stems from the error of thinking of Interpol as an international police agency, instead of as a coordinating mechanism.
Myth Three: Red Notices are the result of a judicial process
By stating that the Red Notice does not meet the standards of the Fourth Amendment, the U.S. NCB has given the game away. But it bears spelling out: Red Notices are the result of an administrative procedure, not a judicial process. They are based on no evidence. They do not result from any Interpol investigative process. They offer no proof of guilt. And they are based on nothing more than the word of the government that made the charge in the first place.
The process for obtaining a Red Notice is surprisingly — even shockingly – simple. First, be a member nation of Interpol. Second, have your NCB fill out an online form asserting that a crime has been committed. The NCB will have to provide some basic information identifying the suspect and specifying the crime, and state that it has a valid court order requesting the arrest of the suspect — it doesn’t need to actually provide the court order. And, third, press the return key on the keyboard, thereby sending the request to Lyon. In 97 percent of all cases, Interpol then publishes the Red Notice without delay.
Interpol’s responsibility isn’t to investigate the purported crime. Once again, that would imply that it’s an international police agency. Its only responsibility is to make sure that the nation requesting the Red Notice has complied with the necessary administrative procedures — basically, that it has filled out out the form properly — and that the Red Notice does not fall foul of Interpol’s Constitution, which requires it to avoid involvement in political, racial, religious, or military affairs. Interpol is strictly limited to ordinary, common crime. Using Interpol for political or other forbidden purposes is, by definition, abusive.
Myth Four: Interpol has a handle on the problem of Red Notice abuse
Strictly speaking, the problem of abuse isn’t limited to Red Notices. Other kinds of traffic, including the less formal requests known as “diffusions,” flow across Interpol’s network. Indeed, Red Notices constitute less than 5 percent of the total volume of communications. All of these communications are required to respect Interpol’s rules, but Interpol sees much of the traffic on its network after the fact, or not at all. Therefore, even if there was no Red Notice abuse, Interpol could still have a major problem with abuse in other types of communications. Furthermore, efforts to clamp down on Red Notice misuse risk driving abusive behavior to other parts of Interpol’s network.
But Red Notices, and Red Notice abuse, are in the public eye. We have no clear sense of the scale of the problem — but we do know that it is growing. My own research, based on the inadequate information published by the Commission for the Control of Interpol Files (CCF), an Interpol appellate body, suggests that in 2016, at least 170 Red Notices were deleted as abusive, nearly twice as many as were deleted in 2015. Since those figures only reflect notices that became the subject of complaints, they understate the scale of the problem.
There are undoubtedly many reasons why abuse is increasing. But the main one is that Interpol’s modern communications system — launched in 2002 — led to an explosive growth in Red Notices and unintentionally made abuse both easier to commit and easier to hide. The second one, unfortunately, is that the dictators are learning from each other.
Interpol is clearly aware of the problem. Over the past several years, under the operational leadership of Jürgen Stock of Germany, it has instituted a number of useful reforms, from changes in the structure of the CCF to a ban in most cases on Red Notices on individuals with recognized status as refugees. But the fact remains that Interpol operates on the basis that all of its member nations are sovereign and equal in their sovereignty. Interpol’s operating assumption is, therefore, that all requests for Red Notices are worthy of equal respect. Couple that with the fact that — yet again — Interpol is not an international police agency with the power to launch its own investigations, and the problem of abuse is close to insuperable.
Interpol does now have a dedicated “Notices and Diffusions Task Force” charged with ensuring its rules are respected. Yet the problem of volume remains: in 2017, Interpol published or transmitted approximately 37,000 Red Notices and diffusions, while the Task Force — according to an important report on Red Notice abuse by the Parliamentary Assembly of the Council of Europe — has only 30-40 staff. But the bottom line is that, when he was asked in November what Interpol had done about locating its former president Meng Hongwei — who was disappeared by China in October — Stock replied, “We are not an investigative body.” That’s correct — but just as Interpol can’t investigate the disappearance of its own president, it can’t effectively investigate the circumstances surrounding Red Notice requests.
Myth Five: Red Notices have no effect in the United States
If only. It’s true that you are very unlikely to be arrested solely on the basis of a Red Notice in the United States. But Red Notices (and to a slightly lesser extent, diffusions) have many effects, most of which definitely reach into the U.S.
A public Red Notice — and the requesting nation decides whether a Red Notice is public or not — will be picked up by Western banks fulfilling their know-your-customer requirements, which will then likely eject the named individual from the financial system. Like any sort of Interpol alert, a Red Notice also makes it extremely difficult to travel: on entering the U.S., the named individual is likely to be subject to secondary interrogation, and any effort to leave by legal means, or to enter another nation, will be detected. If you are not a U.S. citizen, a Red Notice will likely (and automatically) cancel your visa or visa-waiver status. So even if you are in the United States and are completely innocent, you can lose your bank account and your ability to travel. This is persecution, not prosecution.
Perhaps the worst part of all of this is that, since at least 2015, the U.S. — and specifically, ICE — has publicly relied on Red Notices as a way to locate purportedly dangerous foreign fugitives in the United States. If an individual arrives in the U.S. on a valid tourist or student visa that is then cancelled as the result of an abusive Red Notice, that individual can then be arrested for being in the U.S. without a valid visa — and the Red Notice may then be illegitimately offered by the Department of Homeland Security as proof that the individual is a flight risk or is in fact a criminal. Cases like this are far more common than one would like to believe.
Follow the Rules — And Suspend the Abusers
Most of the myths around Interpol stem from the misconception that it is an international police agency. If you keep in mind that Interpol is closer to being a bulletin board on which notices are posted, and an email system by which messages are sent, you can’t go wrong. And it’s precisely because Interpol is not an international police agency that the problem of abuse is so intractable: Interpol fundamentally relies on its member nations to respect the rules.
The answer here is not to make Interpol into a police agency, which none of its members want. The answer is to ensure Interpol follows its rules. An international organization can either have a universal membership, or it can have standards for membership; it can’t meaningfully have both. If Interpol is going to live by its rules on Red Notices, it is going to have to start paying attention to another part of its rules — the part that allows it to suspend abusive member nations. Abuse cannot be stopped unless it is deterred, and only a creditable threat of suspension stands a chance of establishing deterrence.
This piece originally appeared in Just Security