by Yuriy L. Nemets
For many years, repressive political regimes have used INTERPOL as a powerful tool in politically motivated and otherwise corrupt prosecutions. INTERPOL has established a redress mechanism for victims of such abuse. The mechanism, however, lacks due process and is full of loopholes that allow the abuse to continue. Despite numerous calls over the years from advocacy organizations, human rights activists and politicians to carry out all the necessary reforms, INTERPOL has given no indication that it is willing to do so. After all, as a recent decision by a U.S. federal court shows, what incentive does INTERPOL have to fight non-democratic countries if democratic countries are willing to protect it from their own courts?
The El Omari Decision
On May 13 of this year, the District Court for the Eastern District of New York dismissed a lawsuit filed by Oussama El Omari against INTERPOL due to the immunity that the latter enjoys under the International Organizations Immunities Act (IOIA). The plaintiff, a U.S. citizen, argued that INTERPOL’s issuance and refusal to delete from its databases a Red Notice, a request to locate and provisionally arrest him for the purposes of his extradition, constituted negligent infliction of emotional distress and violated his due process rights under the New York State Constitution. INTERPOL issued the Red Notice at the request of the United Arab Emirates where the plaintiff had been convicted for embezzlement and abuse of power. Prior to filing the lawsuit, El Omari submitted a complaint to INTERPOL requesting that the Red Notice be deleted and a hearing at which he intended to appear with his counsel and an expert witness be scheduled. INTERPOL denied both of El Omari’s requests as well as his subsequent request to reconsider.
IOIA guarantees international organizations “immunity from suit and every form of judicial process as is enjoyed by foreign governments.” It defines an “international organization” as a “public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.” The District Court concluded that INTERPOL falls under this definition.
In 1983, President Reagan, by executive order, granted INTERPOL the privileges, exemptions and immunities recognized under IOIA with the exception of inviolability of archives and immunity from search and confiscation of property and assets, customs duties, certain federal taxes and social security payments. In 1995, President Clinton partially reversed that order and granted INTERPOL immunity from customs duties and federal importation taxes. In 2009, President Obama removed the remaining limitations imposed by President Reagan.
The District Court in El Omari v. INTERPOL explained that it “lacks subject matter jurisdiction and must dismiss a claim where defendant organization is immune from suit.” IOIA guarantees international organizations immunity from lawsuits and courts unless expressly waived “for the purpose of any proceedings or by the terms of any contract.” No such waiver existed in this case, the District Court concluded.
Implications of the Decision and Inability of Applicants to Obtain Hearing at INTERPOL
It is no surprise that INTERPOL denied El Omari’s complaint without holding a hearing. Under INTERPOL’s rules, it adjudicates complaints based on the parties’ written submissions; a hearing is held only if INTERPOL considers it necessary. To this day, more than a decade since the rule was adopted, there seems to be no known case in which INTERPOL held a hearing. Individuals who challenge government abuse of INTERPOL’s channels through its redress mechanism also lack both the right to examine evidence produced against them and the right to appeal INTERPOL’s decisions denying them relief. Moreover, by INTERPOL’s own admission, there have been cases in which governments already found to be in violation of its Red Notice rules were able to use its resources against the same individuals, either by disseminating new requests to seek their arrest or by issuing false alerts that these individuals’ travel documents were lost or stolen. Thus, not only does INTERPOL fail to guarantee individuals due process when it considers their complaints, it also lacks comprehensive enforcement of its own decisions against governments that abuse its channels.
INTERPOL does not seem to be willing to punish governments that violate its rules either. The best known case is Turkey. In 2017, the government of President Erdoğan reportedly tried to put 60,000 individuals it accused of affiliation with the Fethullah Gülen opposition movement on the INTERPOL wanted list, an unprecedented and brazen attempt to abuse the organization’s channels for political purposes. INTERPOL denied reports that it sanctioned Turkey for its conduct. Moreover, this November, Turkey will host INTERPOL’s 89th General Assembly, the “supreme governing body” for the organization. This General Assembly will elect new members of the Commission for the Control of INTERPOL’s Files, which has exclusive jurisdiction to adjudicate complaints against government abuse of the organization’s channels. Members of the Commission are elected for a term of five years and can be reelected for an additional three years.
In the meantime, the number of Red Notices and other government requests disseminated via INTERPOL continues to grow while victims of INTERPOL abuse are trapped in a vicious circle – autocracies grow ever more confident that they can abuse the organization with impunity, the latter refuses to reform itself, and democratic governments not only fail to exert any real pressure on INTERPOL but instead shield it from liability, thereby denying victims any recourse.
 Managing Member at NEMETS, Washington, D.C. Founder of Red Notice Abuse Report – RedNoticeAbuse.com @rednoticeabuse.