Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. Recent work demonstrates that decisions made in one jurisdiction are tied to decisions taken in others, and that actual jurisdictional boundaries are no longer confined to the nation state. Not surprisingly from this perspective, much of the development of the European Common market, and indeed of European social and economic integration, has been guided by the Commission and the Court of Justice rather than by the Parliament or the national governments.
The Court of Justice of the European Union is the first and last resort for the majority of decisions taken by the Commission and other EU organs in all areas where the European Union holds competences. And indeed the European Court of Justice has stated that the ECB must be allowed “broad discretion” when it “prepares and implements an open market operations programme”.
Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been—even in its most activist periods.
This shift, which has been called “judicialization,” has become more or less global in its reach. Newly energized French
judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders.
Supreme Court cannot do its job without a careful understanding of foreign law and practice, Justice Stephen G. Breyer argues in a new book, examining the work of the Supreme Court of the United StatesIn in an increasingly interconnected world, a world in which all sorts of activity, both public and private—from the conduct of national security policy to the conduct of international trade—obliges the Court to understand and consider circumstances beyond America’s borders. As transnational issues pervade the U.S. Supreme Court docket, international law plays an increasingly important role, even in cases once considered purely domestic.
The rule of law has been gradually developed and promoted at the national level over centuries, however at the international level it has only recently received (more in rhetoric than in implementation) support from a macro perspective – developments of international rules and institutions, and from a micro perspective – ethical codes, independence and un-bias of professionals, working in international organizations and tribunals. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions about the justification of punishment, civil disobedience, the enforcement of morality, and problems about justice, rights, welfare, and freedom.
As there is no international parliament to pass law or the rules to make laws, we have to consider a variety of sources of law making. International law provides fundamental tools and mechanisms to address emerging global issues. The role of international law in conflict mitigation remains key – whether by building commercial links between states, fighting corruption, dictators and improving democratic governance, or providing methods for resolving international and ethnic disputes.
Infact, it is this development that leads us to Interpol’s constitution order and work (one of 2000 institutions all over the world that make international rules) As stated in it’s website “The role of interpol is to enable police around the world to work together to make the world a safer place”. It also has seven regional offices across the world and a representative office at the United Nations in New York and at the European Union in Brussels.
Interpol publishes notices either on its own initiative, or based on requests from its member states’ National Central Bureaus (NCBs) or authorised international entities such as the United Nations and the International Criminal Court. It is generally accepted that Article 38 of the Statute of the International Court of Justice is a complete statement of the sources of international law. All notices published on Interpol’s secure website and extracts of notices may also be published on Interpol’s public website if the requesting entity agrees.
However, Interpol can only publish a notice that adheres to all the proper legal conditions. For example, a notice will not be published if it violates Interpol’s constitution, which forbids the organisation from undertaking activities of a political, military, religious or racial character. Interpol can refuse to publish a notice that it considers inadvisable or a potential risk. In many countries, Red Notices have the weight of an international arrest warrant, but they lack sufficient procedural safeguards to prevent regimes from using them to oppress, harass, and silence political and economic opponents. Even more troubling is the rise in the number of Interpol-sponsored Diffusions, which are informal electronic wanted alerts that countries are using to bypass the Red Notice system in order to achieve essentially the same goals.
The wanted alert disseminated by Interpol for Rasoul Mazrae’s (a citizen of Iran) capture was a Red Notice, which under Interpol’s constitution should not have been issued because Mazrae’s crime was of a “political character.” His case is just one example of numerous instances where Interpol’s Red Notice system has been exploited by its members to locate, detain, and extradite persons for political, racial, or religious reasons. Mr Mazrae was an outspoken critic of his government. Although his political speech would have been protected in the United States as a constitutional right, (if he was a person who is “subject to the jurisdiction” of the United States, who is “not subject to any foreign power”—that is the original meaning of the jurisdiction language in the Fourteenth Amendment) in Iran his conduct was considered a crime against the state.
This article, Interpol’s Transnational Policing By “Red Notice” and “Diffusions”: Procedural Standards, Systemic Abuses, and Reforms Necessary to Assure Fairness and Integrity” By Peter M. Thomson: FedSoc.org Engage Volume 16, Issue 2 September 04, 2015, provides an overview of the procedures governing the publication of Red Notices, and describes problems with the system and urges reforms. Thomson’s article also briefs the growing threat to human rights posed by Interpol’s Diffusion alert and the reforms necessary to assure that fundamental due process rights of those targeted are not violated.
As reported by Fair Trials International (FTI), a number of countries, including Russia, Sri Lanka, Turkey, Belarus, Indonesia, Iran, and Venezuela, have exploited Interpol’s system to pursue political dissidents, refugees and journalists. In those cases, Interpol’s entire international community was used to further the corrupt regime’s goals. Reliable procedural safeguards should exist to prevent the Red Notice system from being exploited to oppress and silence, or to arrest and extradite someone for less than a serious crime or for conduct that is arguably not even criminal at all. But Interpol’s system of checks and balances has not sufficiently prevented these and other kinds of abuses.
The CCF itself has come under scrutiny as well. FTI has argued that the CCF’s expertise is centered on data processing and that it therefore institutionally lacks the competence and requisite procedural safeguards to review challenges to either Red Notices or Diffusions. Diffusions present even more of a threat to human and due process rights than the flawed Red Notice system. For example, in 2012, a Diffusion was disseminated by Egypt for the arrest of 15 Non-Governmental Organization (NGO) democracy workers even though Interpol had refused to publish Red Notices. Because Interpol policy permits a Diffusion to be requested simultaneously with a Red Notice, Egypt effectively bypassed Interpol’s review process by the General Secretariat – a process that subsequently rejected the same Red Notice requests because the charges against the NGO workers were politically motivated.
Diffusions routinely are reviewed only after they have been internationally disseminated. By endorsing this policy, Interpol effectively is aiding member nations in circumventing the Notice system and its procedural safeguards. Together with provisional Red Notices, Interpol should end this practice. Except for urgent cases, there is no reason Diffusions should not be reviewed by Interpol’s General Secretariat prior to transmission,
Interpol’s Red Notice: Procedures and Requirements for Publication:
Red Notices are processed through each Interpol member country’s National Central Bureau (NCB). An Interpol Red Notice seeks the provisional arrest (i.e., temporary detention) of a wanted person with a view towards extradition based on an arrest warrant or court decision issued by the requesting country. The U.S. NCB within the U.S. Department of Justice provides the following guidance concerning Red Notices:
Red Notices are issued in order to seek the location and arrest of fugitives for the purpose of extradition. A Red Notice serves as an international wanted notice and provides information on the identification of fugitives charged with, or convicted of serious crimes.
The country initiating the notice commits to seeking the provisional arrest and extradition of the fugitive in question should he or she be located.
A request for a Red Notice must concern a person who is the subject of an arrest warrant and is wanted for prosecution or to serve a sentence.
Once the originating NCB assures the foregoing requirements have been met by the official applicant and approves the Red Notice, it forwards the application and supporting documents to Interpol’s General Secretariat in Lyon, France. It is the General Secretariat’s responsibility to ensure that all Red Notices meet international legal requirements prior to disbursement to member nations.
Approximately one-third of Interpol member countries consider a Red Notice to be a valid request for provisional arrest and will detain the subject of a Red Notice. For That reason most Interpol member countries commit themselves to honoring Red Notices because, generally, they are believed to be issued in compliance with both domestic and international law.
The ultimate goal of a Red Notice is to secure the wanted individual’s extradition back to the requesting country. The most common method of extradition is by treaty between two countries. However, absent proof that the foreign offense also constitutes a violation under the laws of the country in which the fugitive is located, in such case, there is no obligation to honor an Interpol Red Notice. Extradition treaties usually set forth a list of qualifying offenses. Many require “dual criminality,” which means the extraditable offense’s underlying conduct must also constitute a criminal offense in the country being asked to extradite.
In such case we look at three fundamental legal requirements: The rule of law, Neutrality and Legality.
To work correctly by the law, Interpol relies on its member countries to request Red Notices in compliance with Interpol’s Constitution and international law. According to Interpol’s stated legal basis, a Red Notice will be issued only where it fulfills “all conditions for processing the information.”For example, Interpol states that “a Notice will not be published if it violates Article 3 of its constitution, which forbids the organization from undertaking any intervention or activities of a political, military, religious or racial character. Occasionally, when legal issues involving Article 3 of Interpol’s Constitution are implicated, Interpol’s Office of Legal Affairs can also become involved in the review process. Including CCF, for compliance with interpol’s specific legal requirements and rule of Law.
Diffusions, like Red Notices, are originated by a member’s NCB at the request of local authorities. Although Diffusions may be circulated worldwide over Interpol’s “I-Link” network and recorded in Interpol’s primary database, the requesting NCB has the same discretion as with Red Notices to limit Diffusions to select countries or police organizations of its choice. This option has advantages because it permits an NCB to request foreign assistance in apprehending a wanted person without risking disclosure of its existence to a complicit member nation that might be providing aid and support to the same person. As with Red Notices, Diffusions must comply with Articles 2 and 3 of Interpol’s constitution and are subject to CCF review. However, that is where the similarities end.
In its gatekeeping role, the General Secretariat has the responsibility of ensuring not only that Red Notices meet international legal requirements, but that they comply with Interpol’s Constitution and its fundamental rules. In ensuring compliance, the General Secretariat may request that the prosecuting country address any concerns it may have of either a procedural or substantive nature and may reject the application where its publication would conflict with Interpol’s rules or Constitutional principles. As a threshold matter, there are three fundamental legal precepts that cannot be violated:
1. Rule of Law: A Red Notice must respect “the basic rights of individuals in conformity with . . . the Universal Declaration of Human Rights.”
2. Neutrality: There can be no intervention of a “political, military, religious or racial character.”
3. Legality: The General Secretariat must verify that domestic authorities process information through Interpol’s communication channels in compliance with the international conventions to which they are a party, as well as “in the context of the laws existing” in their countries.
Red Notice Challenges: Preventing or defeating ex post the issuance of a Red Notice based on a legitimate or arguably legitimate criminal offense is an exceedingly difficult and complex process in most cases. Nevertheless, there are a number of legal and procedural options available through which one might successfully defeat a Red Notice.
First, the initial application can be challenged directly through the originating NCB in an attempt to prevent it from forwarding the Notice to Interpol’s General Secretariat in Lyon, France, as long as Interpol has not yet reviewed or acted upon the Red Notice application. In such a case, the aggrieved party may file a “preemptory objection” with the NCB. Second, through local counsel, a court challenge in the originating jurisdiction can be mounted on procedural and/or substantive grounds against the application.
Third, a Red Notice can be contested directly with the General Secretariat. Objections can be based on a number of procedural and substantive grounds, including violations of Interpol’s constitution. Fourth, relief can be sought from Interpol’s Office of Legal Affairs, also located at Interpol headquarters in France. Fifth, a “preventive request” can be filed with the Commission for the Control of Interpol’s Files (CCF), Interpol’s “watchdog” arm, based on violations of Interpol’s constitution, rules, and/or the general law of extradition.
Sixth, in the event that any or all of the above strategies fail to prevent publication of the Red Notice, an ex post challenge can be made pursuant to a formalized procedure available for its removal. This review procedure includes the filing of a complaint with Interpol’s Office of Legal Counsel and the CCF, which can intercede post-publication as well on a peremptory basis.
Legal Arguments in Support of Red Notice Challenges.
More particularly, to successfully defeat a Red Notice, evidence must be provided indicating that the request is in violation of Interpol’s constitution, legal rules, and/or the general law of extradition. The following legal arguments present the strongest likelihood of success when challenging a Red Notice application:
1. The Prosecution is of a “Political Character”
Under Article 3, Interpol is strictly forbidden from intervening in matters of a “political character.” The term “political character,” however, is not defined by Interpol’s Constitution. Where an individual is not charged with a “political” crime per se (for example, treason or sedition), a valid argument can nevertheless be presented that the prosecution itself is politically motivated.
2. The Criminal Charges Are Misrepresented
Misrepresentation or mischaracterization of a criminal charge against a defendant violates Interpol’s rules. Accordingly, although the General Secretariat and its legal office cannot intervene to verify the guilt or innocence of a defendant, a challenge can nevertheless be made arguing that the charges have been concocted based on political and other reasons. Further, regardless of whether a mischaracterization argument can stand substantively on its own, it should be considered as an argument in support of a political challenge under Article 3.
3. A Violation of Due Process has Occurred
A challenge to a Red Notice may also be made by a claim of a due process violation. This kind of claim can also be supported with the evidence used to challenge the Red Notices based on the mischaracterization argument referenced above.
In the event a Red Notice has actually been published and circulated worldwide, a formalized review procedure can still be initiated by the CCF. The CCF, an independent monitoring body within Interpol, is empowered to scrutinize Red Notices for compliance with the rule of law, including Interpol’s specific legal requirements. If a Red Notice has not yet been filed, its intended target can file a “preventive request” so that, in the event a Red Notice is sought, “it should not be published for the alleged reasons. In such a case, the information provided by the individual [target] could be taken into account upon reviewing the request (if submitted) and may lead to the application of the procedure in article 10.1(c) of the Processing Rules.
One of the CCF’s primary functions is to ensure that the processing of information “conforms to all the relevant rules adopted by the Organization” and does “not infringe the basic rights of the people concerned.”Accordingly, the subject of an issued Red Notice may challenge its validity with the CCF, either on procedural or substantive grounds. If the CCF calls into question the processing of the Red Notice, it forwards its concerns to the General Secretariat, and the CCF may invite the General Secretariat to conduct a preliminary inquiry into the request.
In some cases, Interpol has taken years to retract an improperly issued Red Notice. Thomson’s article argues “The organization appears to lack the necessary resources, capacity, transparency, and expertise to address objections raised by targeted individuals, and there is no truly independent administrative, judicial, or parliamentary oversight”..The only body claiming “independence” from Interpol and having an oversight role is the CCF, but the CCF is funded by Interpol and is part and parcel of the organization’s internal legal structure. In typical bureaucratic fashion, the CCF has a reputation of being slow to resolve complaints. Moreover, an aggrieved party has no right to a hearing, and the CCF typically does not provide detailed explanations for its decisions, from which there is no right to appeal.
As with a General Secretariat review, the CCF can only verify the validity of charges, not their accuracy.The CCF cannot check or amend charges which could intrude into national sovereignty. Hence, the CCF has its limitations; it cannot assess the legal situation in a member country with a view to giving an opinion on the validity of an arrest warrant or legal decision. The CCF’s power is advisory, so when doubts are raised with respect to a Red Notice, the CCF may only recommend that the General Secretariat proceed with caution or cancel the Notice. Further, a member state may challenge the General Secretariat’s decision based on the CCF’s advice, subjecting it to the dispute settlement procedure with the Executive Committee and General Assembly.
Because due process is not administered equally by Interpol’s sovereign members in the filing of Red Notice applications, a leveling of the playing field is needed to require that all nations and NCBs operate pursuant to the same procedural and substantive standards. Interpol should adopt more comprehensive procedural and enforcement mechanisms to better guarantee that a targeted person is afforded due process by both the requesting and arresting member nations. Reforms in procedural and substantive due process, comprehensively applied, will help reduce instances where the arresting jurisdiction, knowingly or unknowingly, aids and abets an originating jurisdiction in a persecution, rather than in a legitimate prosecution warranting Interpol’s intervention.
Interpol should scrupulously abide by its own constitution, which requires that Red Notices respect the basic rights of individuals and that no intervention occur in matters of political, military, religious, or racial character. Questions have been raised regarding Interpol’s intention to uphold its own constitutional mandates in view of several controversial cases in which the organization has become involved over the last few years. In fact, in a recent report, FTI concluded that, because Interpol’s procedural safeguards have proved ineffective, the organization should absolutely refuse or delete Red Notices where there are “substantial grounds to believe the person is being prosecuted for political reasons.” Likewise, Interpol should modify its current policy requiring that Red Notice applications merely certify the existence of a properly issued arrest warrant. Instead, Interpol should require that the requesting jurisdiction provide an actual certified copy of the arrest warrant as an attachment to its application.
With an eye toward comprehensive reform, additional measures are also needed to increase transparency in the process of issuing Red Notices and Diffusions. One author has suggested that Interpol completely end the practice of removing controversial Red Notices from public view. One of Interpol’s practices, when faced with a controversial Red Notice, particularly ones questioned on Article 3 grounds, is to remove the summarized contents of the Red Notice from the Internet and therefore from public scrutiny.
In those cases, the Notices still remain active and visible to law enforcement agencies worldwide. However, if Interpol receives information post-publication that establishes grounds to believe that the Notice should not have been published, Interpol must be obligated to retract it completely, not merely from public view. Red Notices also should be subject to systematic review. For example, some Red Notices have remained published despite extradition decisions recognizing the political nature of the cases. Interpol, therefore, should routinely follow up with nations that have reported arrests based on Red Notices and inquire into the outcome of the post-arrest proceedings.
As Roosevelt once said, “Freedom means the supremacy of human rights everywhere.” Our support goes to those who struggle to gain those rights and keep them. Today, with the inclusion of many ex-Soviet nations in the European Convention on Human Rights, over 800 million people now rely on these protections.