As we await the publication of the CCF’s annual report from last year, it is worth reviewing the speech given by the Commission’s Chairman,  Vitalie Pirlog, at INTERPOL’s 2017 annual meeting as a means of providing continuity in the analysis of the upcoming report.

Mr. Pirlog focused at that time on the changes brought about by the passage of the Statute of the Commission for the Control of INTERPOL’s Files, including new time limits for the CCF’s decisions, the change from a single chamber to a dual chamber,  and the challenges faced by the Commission in relation to its dealings with National Central Bureaus (“NCBs”).

While the Commission is now tasked with meeting deadlines for its decisions, it also relies on NCBs to respond quickly and succinctly to inquiries related to requests for removal. The speech indicates that while most NCBs respond in an appropriate fashion, some have not.

For example, Mr. Pirlog found it necessary to remind member countries that the organization’s asylum policy was meant to be utilized in accordance with  international law and the protections afforded to people with protected status.  This reminder came at a time when INTERPOL had already implemented its asylum policy, and was developing the policy under President Meng Hongwei, who sought to exclude Red Notice subjects from the policy’s protections if their countries considered them to be terrorists. The danger with this nuance, of course, was that protected persons could still be subject to persecution with INTERPOL’s assistance if the requesting countries improperly categorized them as terrorists.

In that situation, as with others faced by the Commission, the Commission is obliged to weigh individual rights and the need for legal protection against member countries’ expressed need for law enforcement.

It is reasonable to expect that the next CCF Annual report (which I understand will be released this month) would include an update on the NCBs’ collective response to Mr. Pirlog’s request for heightened recognition of legitimate protective status claims.

As always, questions and comments are welcomed.

 

Today’s post is by attorney Yuriy Nemets, who has given considerable thought to the issue of INTERPOL’s refugee policy, how it is being implemented, and how it might be further developed.

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INTERPOL’s New Policy on Refugees: Is Everything Settled?

Yuriy L. Nemets, Esq.

Managing Member at Law Office of Yuriy L. Nemets PLLC

LL.B., J.D., LL.M., Ph.D.

 In February 2015, INTERPOL disseminated among its national central bureaus (NCBs) a new policy regarding red notices and diffusions seeking detention of individuals with refugee status.  According to the new policy,

[i]n general, the processing of red notices and diffusions against refugees will not be allowed if the following conditions are met:

  • the status of refugee or asylum-seeker has been confirmed;
  • the notice/diffusion has been requested by the country where the individual fears persecution;
  • the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.

By adopting this new approach, the organization officially recognized that when it comes to international police cooperation, the advancement of which is the organization’s primary aim, refugees deserve INTERPOL’s special protection.  This special protection is necessary to shield refugees from member states that abuse INTERPOL’s channels to persecute political opponents and other victims of corrupt criminal prosecutions.  Protection of individuals from persecution is one of INTERPOL’s primary objectives.  It is beyond dispute that the new policy furthers that objective.

Several provisions of the new policy deserve closer examination, however.  The policy stipulates that it is to be applied “in general.”  By making this reservation, INTERPOL retains the right to deviate from the provisions of the policy when the organization deems it necessary.  INTERPOL has indicated that the objective of the new policy is to “support member countries in preventing criminals from abusing refugee status, while providing adequate and effective safeguard to protect the rights of refugees.”  If INTERPOL finds it necessary to be able to take a closer look at some red notices or diffusions issued against refugees, it is crucial that the organization include an exhaustive list of such exceptions in the new policy.  This will help avoid ambiguities and better protect the rights of refugees.  Such a list should be limited to serious international crimes (genocide, crimes against humanity, war crimes), terrorism, maritime piracy, and trafficking in illicit drugs, illegal arms, and dual-use goods and technologies.  If the charges underlying the red notice or diffusion do not fall under any of the exceptions, INTERPOL should prohibit any use of the organization’s channels with regard to the refugee.

Another provision of the new policy that merits attention lies in the three-prong test, which is essentially the backbone of the policy.  It appears that the third prong of the test is more likely to raise questions and doubts: “the granting of the refugee status is not based on political grounds vis-à-vis the requesting country.”  The provision appears to stipulate that instead of reflecting the demarche by the country of asylum to spite the country that issued the red notice or diffusion, the decision to grant refugee status must be based on proper application of the 1951 Convention Relating to the Status of Refugees and, in particular, on the asylum seeker’s “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”  INTERPOL does not specify what evidence it takes into consideration as proof of the existence of a political conflict between the countries involved or the effect the conflict has on the decision to grant refugee status.  In addition, publication of a red notice or diffusion in INTERPOL’s databases, when the organization is aware of a political dispute surrounding the red notice or diffusion, is contrary to the principle of INTERPOL’s neutrality, which is a cornerstone of all the organization’s activities.  The principle of neutrality is enshrined in Article 3 of INTERPOL’s Constitution according to which, “[i]t is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.”  Over the years, INTERPOL has developed “case law” under Article 3 that reflects the organization’s commitment to avoiding involvement in any political disputes among the member countries.  The better approach for INTERPOL would be to delete the red notice (or diffusion) and allow the countries to resolve their political differences without the organization being involved in any way.

It is also important to emphasize that the new policy does not provide for an exception to the general presumption that before an individual requests deletion of the red notice or diffusion from INTERPOL’s databases, the individual must, according to the Operating Rules of the Commission for the Control of INTERPOL’s Files, provide “sufficient evidence” that he or she knows that there is information about him or her in the organization’s databases.  Because INTERPOL does not make information in its databases accessible to the public without obtaining consent from the country on whose behalf the information is recorded, refugees often learn that there is a red notice or diffusion against them only after they are detained due to the INTERPOL alert.  Detention may lead to prolonged extradition proceedings and potentially extradition; in either case, the rights provided for in INTERPOL’s policy on refugees come too late.

Indeed, in a number of instances refugees were detained because of a red notice or diffusion recorded in INTERPOL’s databases.  One of the most recent cases, which also occurred after INTERPOL began to implement the policy on refugees, is the arrest of Mehdi Khosravi, an Iranian national with refugee status granted by the United Kingdom.  Italian law enforcement detained Mr. Khosravi, acting on the red notice issued by Iranian authorities.  Although Italy released Mr. Khosravi within days of the arrest, this case of swift justice is the exception rather than the rule.  Consider, for example, the case of Paramjeet Signh.  In 2000, the United Kingdom granted Mr. Signh refugee status.  In December 2015, Portuguese authorities detained Mr. Signh, acting on the red notice India issued against him.  Mr. Signh spent two months in detention before Portugal released him.  Petr Silaev, a recognized refugee from Russia, spent even longer, six months, in detention after Spanish authorities arrested him due to the request Russia disseminated through INTERPOL’s channels.  These and other similar cases show that effective measures are needed to prevent the abuse of INTERPOL’s channels with regard to refugees before, not after, such abuse takes place.

INTERPOL must make an exception for refugees to the requirement that an individual prove that he or she knows that there is a red notice or diffusion against him or her in the organization’s databases.  Any individual with refugee status must have the right to demand that INTERPOL delete the information about him or her issued by the country where he or she fears persecution from the organization’s databases without providing any evidence of such knowledge.  INTERPOL must create and maintain a secure and confidential database containing the names and other relevant information about individuals with refugee status.  Any refugee must have the right to have his or her name and other relevant information added to the database.  INTERPOL must monitor all requests disseminated through its channels and compare each request with the database.  If a request is issued by the country whose nationality the individual enjoyed before he or she was granted refugee status, INTERPOL must refuse to publish the request in its databases.  These measures may contribute to the prevention of abuse of INTERPOL’s channels with regard to refugees.

INTERPOL’s efforts to protect individuals from persecution and abuse of the organization’s channels are undoubtedly welcome.  The new policy, however, needs improvement to help INTERPOL achieve that objective and better protect the rights of refugees.

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Many thanks to Mr. Nemets for his thoughtful and well-reasoned approach to this subject.

As always, thoughts and comments are welcomed.

The case of Edward Snowden has not been discussed in this blog until now because INTERPOL is reportedly not involved in Mr. Snowden’s case, and no Red Notice exists in his name.  The case does, however, provide an interesting opportunity to address how the relationships between multiple countries can affect a wanted person’s ability to travel.

The United States has received extraordinary levels of cooperation from its allies in an effort to make Mr. Snowden’s travel via air almost impossible, with Austria going so far as to force Bolivian president Evo Morales’ jet to land in Austria while flying over its airspace.

Mr. Snowden reportedly plans to seek political asylum in one of the countries that has offered that relief to him- Venezuela, Bolivia and Nicaragua-but he has not been able to leave the Moscow airport because most travel routes to any of those countries requires flight over either the United States or its allies.

Mr. Snowden has now turned to at least two internationally renowned human rights organizations for possible assistance.  He has reportedly asked for meetings with Transparency International and Amnesty International.  Both organizations are reported to have accepted his invitation to meet.  Last week, the organization strongly condemned the United States’ actions against Mr. Snowden, characterizing U.S. efforts as “deplorable.”

The request for assistance from human rights organizations is based, according to a written statement by Mr. Snowden, on the United States’ frustration of Mr. Snowden’s asylum seeking efforts:

“In recent weeks we have witnessed an unlawful campaign by officials in the U.S. overnment to deny my right to seek and enjoy this asylum under Article 14 of the Universal Declaration of Human Rights,” Snowden wrote.

While Mr. Snowden’s case is extreme in terms of publicity, it is not unusual for countries to work together in diplomatic efforts to return a wanted person to the requesting country.  All of the countries that have worked in support of the United States are also member countries of INTERPOL, but their efforts have arisen from their diplomatic relations, not from their INTERPOL membership.  Although INTERPOL’s assistance is often very useful and often triggers extradition proceedings, Mr. Snowden’s case makes it clear that it is not critical to extradition, particularly when a wanted person’s whereabouts are thought to be known.

As always, thoughts and comments are welcomed.