The Transnational Repression Accountability and Prevention (TRAP) Act of 2019 is a bipartisan response to concern about the abuse of Interpol by authoritarian governments for political purposes. If passed, the Act would require the U.S. to ensure that INTERPOL operates according to the guidelines laid out by its constitution to focus exclusively on ordinary crime and to avoid involvement in politics.
All INTERPOL activity, including all communications over its network, must respect its Constitution and subsidiary rules adopted by the general assembly, including its Rules on the Processing of Data (RPD). All of INTERPOL’s foundational documents and other relevant legal documents can be reviewed on INTERPOL’s website.
The purpose of the Constitution and subsidiary rules is to ensure that INTERPOL is used only against “ordinary-law crime,” and is not involved in politics, or for purposes of a political, and therefore illegitimate, persecution.
In this way, INTERPOL is supposed to be beholden to a general principle also contained in U.S. asylum law, which establishes that while any country has the right to prosecute its own citizens, it must do so for legitimate purposes.
The Constitution’s most-cited portions are its Article 2, which requires that international police cooperation be conducted within the “spirit of the Universal Declaration of Human Rights,” and, in particular, its Article 3, sometimes referred to as the neutrality clause, which states that it is “strictly forbidden for the Organization [INTERPOL] to undertake any intervention or activities of a political, military, religious, or racial character.”
INTERPOL cannot stop its sovereign member nations 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.
INTERPOL’s communications system facilitates three kinds of messages.
Yellow, blue and green notices are all relatively common, but by far the most-used notice is the Red Notice, of which 13,048 were published in 2017.
All member nations are required to establish a National Central Bureau (NCB) through which it will liaise with INTERPOL. In the United States, the NCB is co-managed by The Department of Homeland Security (DHS) and the Department of Justice (DOJ). Many U.S. state and local law enforcement agencies have “read access” to databases maintained by INTERPOL, but only the U.S. NCB can request a Red Notice or other INTERPOL publication or transmit messages on behalf of the United States.
The requesting nation can choose to make public a redacted version of the Red Notice on the INTERPOL website, but by default, Red Notices are published and visible only to law enforcement agencies, such as DHS. This means that often an individual who is the subject of a Red Notice may not be aware of it until he or she is confronted by U.S. law enforcement – for example, when crossing an international border into the United States or when appearing for an interview before U.S. Citizenship and Immigration Services (USCIS), such as for an asylum hearing.
Unfortunately, experience shows that DHS itself does not fully comprehend the meaning and limits of a Red Notice. Immigration and Customs Enforcement (ICE), has been known to use Red Notices to immediately categorize an individual as a danger to the community and a flight risk. The fact that ICE has stated that it uses Red Notices to guide its targeting implies that individuals who are seeking asylum—and who are therefore not U.S. citizens or green card holders—are particularly likely to be selected for arrest should they be named in a Red Notice.
An attorney handling a case with INTERPOL elements should be aware of the issues surrounding INTERPOL abuse and the reputation of the nation that requested the publication of the Red Notice. Attorneys should also be prepared to explain to an immigration judge the legal position of the National Central Bureau (NCB), which states, “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…”
A Red Notice can also be challenged directly through the Commission for the Control of INTEPROL’s Files (CCF). The process is similar to presenting an asylum case, but it is rooted in international human rights law and INTERPOL’s foundational documents. While recent reforms have improved the CCF’s speed of operation, it will normally take close to a year for the CCF to reach a decision and for the INTERPOL General Secretariat to implement it.
Because INTERPOL respects the sovereignty of its member nations, it cannot and does not conduct its own on-the-ground investigation of a purported crime. A Red Notice is NOT an arrest warrant and is NOT based on any INTERPOL investigation. A Red Notice adds no additional force to an otherwise valid arrest warrant. The only facts a Red Notice proves, are that the requesting nation is a member of INTERPOL, that it has completed the online form requesting the Notice, and that the case did not initially raise political or other improper motives within the internal INTERPOL vetting process.
The fact that the process for obtaining a Red Notice is straightforward, and the reality that a Red Notice often has substantial direct and indirect effects on the individual named in it has encouraged authoritarian regimes to use Red Notices—and, less frequently, other colored Notices or diffusions—to harass dissidents, exiles, or other politically or financially inconvenient opponents abroad.
“INTERPOL abuse” occurs when INTERPOL’s channels or publications are used by an INTERPOL member nation for predominantly political, military, racial, or religious reasons. This type of abuse is a violation of INTERPOL’s own Constitution and specifically Article 3. Governments, international organizations, nongovernmental organizations (NGO), and experts have attested to the reality of INTERPOL abuse. Immigration attorneys also witness firsthand the damage that a Red Notice can do to an innocent client who is processing a visa, a green card, a naturalization case, or an asylum case, among other applications for immigration benefits. Click here to see our very own Sandra Grossman’s testimony before the U.S. Helsinki Commission on the issue of curbing INTERPOL abuse by autocratic nations.
As of May 2020, INTERPOL has 194 member nations. You can find a list of all INTERPOL’s member nations here.
Contrary to popular belief, INTERPOL is not a law enforcement agency. No one who works for INTERPOL has the power to make an arrest solely because they work for INTERPOL. In fact, INTERPOL is an international organization with the mission of advancing police cooperation on an international level. It is based on the sovereignty of its member nations and respects the independence of each country’s unique judicial and law enforcement systems.
Simply, INTERPOL is responsible for holding databases of nation-provided information, maintaining a structured communication system for messages between law enforcement agencies in different countries and for publishing notices, including the infamous Red Notice.
The purpose of a Red Notice, according to INTERPOL, is to “seek the location and arrest of wanted persons with a view to extradition or similar lawful action.”
A Red Notice is often described as an “international arrest warrant.” This is incorrect. As INTERPOL itself states, a Red Notice “is not an international arrest warrant.” Rather, a Red Notice is “simply to inform all member countries that the person is wanted based on an arrest warrant or equivalent judicial decision issued by a country or an international tribunal.” Red Notices must comply with specific conditions set forth in INTERPOL’s constitution. They must concern serious ordinary-law crimes not related to behavioral or cultural norms, family or private matters, or private disputes that are not serious or are not connected with organized crime, and must meet a penalty threshold. To read more about what a Red Notice is and isn’t, you may visit INTERPOL’s website at https://www.interpol.int/en/How-we-work/Notices/Red-Notices. You may also review our publication’s on Red Notices HERE.