Introduction
The decentralized international legal order arguably creates structural incentives for states to utilize INTERPOL—an entity of virtually universal membership—to reduce gaps in transnational police cooperation. One of INTERPOL’s iconic actions is the release of a Red Notice. It is the publication of decentralized requests by a member country or approved international entities such as the International Criminal Court (ICC),Footnote 1 asking police worldwide to locate and, if applicable domestic law and treaties permit, provisionally arrest wanted persons or restrict their movement, pending extradition or surrender.Footnote 2 Although INTERPOL does not have legal authority to oblige members to arrest persons in question, a Red Notice regularly leads to border stops or arrest pending extradition, travel or visa denials, and knock-on effects such as banking and employment difficulties. The fragmented international legal order may have paradoxically generated structural incentives to support a level of centrality represented by INTERPOL.
Red Notices have been subject to serious criticisms, however. Concerns have been leveled particularly against the issuance of Red Notices against political dissidents, as Kristina Daugirdas explores in the present symposium. In its resolution, in 2017, the Parliamentary Assembly of the Council of Europe expressed its concern that INTERPOL and its Red Notices were “abused by some member States in the pursuit of political objectives,” in order to silence and persecute “members of the political opposition beyond their borders.”Footnote 3 These critical observations were also raised in relation to what has been termed as “transnational repression.” It is an act conducted or directed by a state, to silence or punish dissent or human rights advocacy expressed from outside the state’s territory.Footnote 4 The UN referred to the abuse of Red Notices as one of the mediums for the phenomena of transnational repression.Footnote 5
To prevent the misuse of Red Notices while preserving their unique value in law enforcement collaboration, this essay examines what legal safeguards are available from human rights standpoints for individuals vis-à-vis actions of INTERPOL. The essay will briefly examine the theory and practice of national due processes when facing the implementation of INTERPOL’s “Red Notices.” This will be followed by the analysis of the Organization’s internal mechanisms to review and challenge these Notices.
Domestic Authorities’ Human Rights Obligations
Given the virtual universality of its membership and a set of procedural steps that members must take, INTERPOL’s Red Notices create significant consequences for individuals subject to the Notices. Arrest and detention are not the only consequences. Red Notices can raise red flags for banks, or make it difficult for those accused to open a bank account, and find employment even if they are released.Footnote 6 As the Parliamentary Assembly of the Council of Europe declared, Red Notices have a “serious negative impact on the human rights of targeted persons.”Footnote 7 The Notices restrict their right to privacy, reputation, and family rights,Footnote 8 right to liberty and security,Footnote 9 freedom of movement,Footnote 10 and right to property.Footnote 11 Individuals are also entitled to the right to a fair hearingFootnote 12 and the right to an effective remedy.Footnote 13 How can the rights of individuals who are subject to a Red Notice be protected?
As a starting point, given that INTERPOL is a facilitator of transnational police cooperation, a set of regular domestic legal safeguards that restrict law enforcement should in principle be applicable, even if arrest is triggered by INTERPOL’s notices and alerts. In this connection, it must be noted that the facilitator role of INTERPOL does not justify the deferential scrutiny of states’ compliance with international human rights law. More specifically, the equivalent protection test, put forward by the European Court of Human Rights (ECtHR) in Bosphorus (2005),Footnote 14 would not be applicable to the review of states’ conduct taken based on INTERPOL’s Red Notices. The equivalent protection test adjusts a standard for assessing whether states comply with their human rights obligations when implementing the decisions of international organizations. By introducing such a test, the ECtHR, in Bosphorus, created a route to indirectly examine the level of human rights protection offered by international organizations. According to Bosphorus, when states are obliged to abide by obligations based upon their membership of an international organization, they are presumed to be in compliance with the European Convention on Human Rights (ECHR) “as long as the relevant organisation is considered to protect human rights” in a manner “equivalent” to the protection under the ECHR.Footnote 15 However, the Bosphorus test does not apply to INTERPOL, because the organization does not oblige countries to arrest a person in question and member countries are supposed to have broad discretion. Furthermore, as will be discussed below, INTERPOL does not offer an equivalent protection at any rate, which means that domestic measures themselves must offer human rights protection.
The presence of domestic safeguards does not, however, provide adequate protection to affected individuals who are subject to the consequences of Red Notices. This is because, in practice, Red Notice in itself—as opposed to the merit of the arrest warrant issued by a country or entity—carries extra significance in practice and automatically triggers procedures leading to the arrest and detention of an individual. As recalled by the factual background explained in Khadzhiev (2014) before the ECtHR, the mere fact that “the applicant was wanted by Interpol” can readily be regarded as “sufficient to justify” a person’s detention.Footnote 16
At the domestic level, attempts have thus been made to seek redress, not only in connection to governmental authorities, but also against INTERPOL. Yet such attempts before domestic courts have been rejected on a variety of grounds.Footnote 17 One of the justifications is the grant of jurisdictional immunities to INTERPOL before domestic courts. This was the reasoning of the U.S. Second Circuit Court of Appeals in El Omari (2022).Footnote 18 El Omari was on Red Notice at the request of the United Arab Emirates (UAE), after having worked for a member of one of the UAE’s ruling families and being convicted of embezzlement in absentia. El Omari sued INTERPOL in the United States, claiming a violation of his right to due process of law. The Court of Appeals dismissed his claims, on the ground that INTERPOL enjoyed immunity from suit as a “public international organization” under the International Organizations Immunities Act (IOIA).Footnote 19 From human rights perspectives, the grant of immunity results in the restriction of the individual’s right to remedy. According to the ECtHR, such a restriction is justified by “reasonable alternative means” made available for the affected individuals.Footnote 20 The test is applicable to the grant of immunities to INTERPOL, as August Reinisch recalls in his essay in this symposium. Importantly, the ECtHR’s Waite & Kennedy (1999) approach was further endorsed in 2024 by the UN Human Rights Committee for the observance of the International Covenant on Civil and Political Rights (ICCPR).Footnote 21 Can the grant of immunities be justified from this yardstick? INTERPOL’s internal mechanisms—which I will further address below—may “pass” the Waite & Kennedy test. Yet this is rather because the interpretation of “reasonable alternative means” themselves has been so stretched by regional and national courts that the test is effectively losing its substantive rigor.Footnote 22
INTERPOL’s Human Rights Mechanisms
Given that domestic procedural safeguards are insufficient at best, it is crucial to discuss (1) whether and to what extent INTERPOL itself is bound, at the international level, to ensure respect for human rights, and (2) what procedural mechanisms are available for affected individuals to challenge the publication of Red Notices.
With regard to the scope of INTERPOL’s obligations, there is growing recognition that it is an international organization under international law, as Michael Wood recalled in his essay in this symposium. At the same time, such recognition does not necessarily mean that the organization is bound by human rights obligations established under customary international law. There is longstanding debate over the extent to which customary international law is applicable to international organizations,Footnote 23 particularly to the UN and its organs.Footnote 24 International personality is one of the grounds that are often used as a basis for applying human rights obligations to international organizations. The idea that international personality comes with the observance of customary international law has relatively strong support.Footnote 25 Yet it is difficult to claim that international organizations, solely by possessing international personality, are automatically bound by all the rights and obligations under customary international law developed for states, as opposed to international organizations. The applicability of customary international law to international organizations has to be assessed on a case-by-case basis, considering of the functions of a particular organization. In short, the general applicability of customary law to international organizations does not answer the question of whether INTERPOL should ensure respect for the individuals’ right to a fair hearing and the right to effective remedy.
Article 2(1) of INTERPOL’s Constitution refers to human rights as aspirational, not obligatory. According to this provision, mutual assistance on police matters should be promoted within domestic legal limits and “in the spirit” of the Universal Declaration of Human Rights (UDHR).Footnote 26 While this sounds abstract, Article 2(1)’s reference to the UDHR is significant because it serves as a basis for a “legal review” that the INTERPOL’s General Secretariat is obliged to conduct. This is stated in Article 86 of the Rules on the Processing of Data (RPD). The RPD is a framework for governing INTERPOL’s handling of personal and police data. Under Article 86, such legal review should be conducted with regard to all red notices prior to their publication, particularly with regard to “Articles 2 and 3 of INTERPOL’s Constitution.”Footnote 27 Under Article 3, it is “strictly” forbidden for INTERPOL to “undertake any intervention or activities of a political, military, religious or racial character.”Footnote 28 In 2016, INTERPOL established the dedicated Notices and Diffusions Task Force (NDTF) which conducts legal compliance review of requests for Red Notices.Footnote 29
While the Constitution does not provide guidance on the interpretation of Articles 2–3, Articles 2(1) and 3 should serve as a mechanism to prevent the political misuse of Red Notices. According to the data published by INTERPOL, the organization rejects (or subsequently cancels) requests for Red Notices based on Articles 2–3. For example, in 2024, there were 111 instances of “refusal or cancellation” (for Red Notices and Diffusions) on the basis of Article 2 (UDHR spirit) and 194 on the basis of Article 3 (political etc.), on top of 2,157 for other reasons for refusal or cancellation.Footnote 30 At the same time, the interpretation of Articles 2–3 of the Constitution has undergone significant changes.Footnote 31 Apart from the abstractness of UDHR “spirit,” Article 3 can be interpreted almost in opposite directions. Illustrative is the treatment of terrorism within INTERPOL. Until the mid-1980s, terrorism, precisely due to its political nature, was considered as a forbidden area under Article 3 of the Constitution.Footnote 32 In 1984, the General Assembly declared the importance of combatting terrorismFootnote 33 and excluded certain terrorist acts (e.g., aircraft hijackings) from the forbidden scope.Footnote 34 INTERPOL made a broad commitment to counterterrorism in 1998 when the General Assembly strongly condemned all terrorist actsFootnote 35 and the 9/11 attacks amplified INTERPOL’s terrorism-related resolutions and notices.Footnote 36 The dynamics surrounding the treatment of terrorism under Article 3 reminds us of the fact that there is, perhaps inevitably, a great deal of choice involved when INTERPOL assesses and decides which acts should be excluded from INTERPOL’s transnational reach.
In response to criticisms that legal review prior to the publication of Red Notices is insufficient, a series of incremental steps have been taken by INTERPOL to strengthen complaint and review mechanisms. More specifically, the Commission for the Control of INTERPOL’s Files (CCF) has been established as an “independent body.”Footnote 37 The aim of the CCF is to ensure that INTERPOL’s processing of personal information conforms to the rules of the organization.Footnote 38 A request can be submitted directly to the CCF for access to, correction or deletion of data. The creation of the CCF may be seen as part of broader efforts on the part of international organizations to provide a form of effective remedies for those who are affected by the organizations’ decisions.Footnote 39
The establishment and development of the CCF was welcomed, yet it highlighted some of the fundamental shortcomings of safeguards available to affected individuals. For example, while the CCF is required to notify the requesting individual of the completion of review, the release of additional information is subject to the consent of the data source. This means that the individual may not even be informed of a type of violation, reasoning, or steps taken to remedy any violation.Footnote 40 For this reason, the Parliamentary Assembly of the Council of Europe voiced its criticisms against the CCF in 2017, suggesting that INTERPOL should ensure that the CCF “fulfils minimum procedural standards” regarding the information available for the targeted persons, and that the CCP publishes its decisions, with the consent of the applicants, for the sake of decisions’ consistency and predictability.Footnote 41
Overall, INTERPOL has responded to the internal and external demands to provide safeguards to prevent, or respond to, cases of the misuse of Red Notices. Yet, the mechanisms available for affected individuals to seek, review and challenge information, and to seek remedial measures are far from meeting the minimum procedural safeguards required under international human rights law for the kinds of restrictions that Red Notices could impose on individuals. These safeguards are necessary especially in light of the significance of the restrictions that Red Notices can impose on individuals, precisely given the overall context of reducing gaps in transnational police cooperation.
Conclusion
As the secretary-general of INTERPOL stated, the organization “occupies a unique space in law enforcement.”Footnote 42 This essay however reveals that individuals subject to Red Notices are likewise placed in a “unique space,” where neither domestic courts nor existing international mechanisms provide a robust mechanism for adversely affected individuals and the political misuse of the international effect of Red Notices. In order for INTERPOL to remain an effective tool for transnational police cooperation, both member countries and the organization must take steps that integrate the spirit and norms of the UDHR, and best practices regarding its implementation.
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