Red Notice – Red Menace?

Interpol Red Notices have been a regular feature in the press in recent months, for example the temporary arrest of Bill Browder, but what is a Red Notice, and should we be concerned about their increased use?

In simple terms, a Red Notice is an electronic ‘wanted’ poster, requested by one of Interpol’s 190-member national police forces. The Red Notice is circulated to all other members and asks national police forces to ‘seek the location of a wanted person and his/her detention, arrest or restriction of movement for the purpose of extradition, surrender or similar lawful action’. Interpol issued more than 13,000 Red Notice requests last year, a rate of approximately three every two hours, compared with just 3,000 a decade ago. Whilst this rise is predominantly due to the increase in cross-border crime, some of it may be linked to a worrying trend of some states using Red Notices as a political weapon.

Interpol’s constitution forbids ‘any intervention or activities of a political, military, religious or racial character’. This firm position can be traced back to World War II, when the Nazi regime transferred the previously Vienna-headquartered organisation to Berlin. Although there is limited evidence as to what the Nazis did with this early form of Interpol, critically, the events of World War II and the ability by a totalitarian regime to take complete control of the organisation had a profound impact on the subsequent development of Interpol, in particular its determination to demonstrate and maintain political neutrality.

Notwithstanding this stated commitment to remain apolitical, there have been a number of examples in recent years of attempts to misuse Red Notices.

In July, President Trump met with President Putin in Helsinki. At the post-summit press conference, President Putin named Bill Browder, the CEO and co-founder of Hermitage Capital Management, as a person of interest to the Russian authorities. Mr Browder has been a long-term, vocal critic of President Putin, since the death in custody of Mr Browder’s accountant, Sergei Magnitsky, following his alleged discovery of a massive tax fraud by Russian government officials. Mr Magnitsky’s death in custody prompted Mr Browder to campaign for a change in the law, resulting in the US Magnitsky Act, which allows the US government to sanction Russian human rights offenders, freeze their assets, and ban them from entering the US. Similar legislation has been passed in other countries, including the UK.

Since Mr Browder began his campaign, Russia has repeatedly requested that Interpol issue a Red Notice for him, having convicted him in absentia of an alleged tax fraud. A number of these Red Notices have resulted in Mr Browder’s arrest. So far, he has been able to persuade the authorities that the Russian requests were based on spurious grounds, of a political nature and that he should not, therefore, be extradited to Russia. Yet as Mr Browder has said, Russia’s “main objective is to get me back to Russia, and they only have to get lucky once. I have to be lucky every time”.

Some observers have been surprised that one of the current vice-presidents of Interpol is a Russian government-proposed candidate called Alexander Prokopchuk. Prior to becoming an Interpol vice-president, Mr Prokopchuk was head of the Russian interior ministry department dealing with Interpol affairs, and it is this role which has resulted in some NGO’s being concerned about potential conflicts of interest.

Equally surprising is that the current President of Interpol is Meng Hongwei, who is also China’s Vice-Minister for Public Security. This apparent conflict of interest has caused concerns to be raised by non-governmental organisations such as Human Rights Watch. One such case is that of Dolkun Isa, a Uyghur politician and activist. According to NGO observers, China has waged a long campaign against the Uyghurs and Mr Dolkun has repeatedly tried to raise international attention to their plight. In 1999, Mr Dolkun learnt that the Chinese had successfully requested that Interpol issue a Red Notice seeking his arrest. He claimed asylum in Germany and has stayed there ever since. In February this year, Interpol finally removed the Red Notice alert for Mr Dolkun.

The deletion of the Red Notice demonstrates that Interpol, and specifically the Commission for the Control of Interpol’s Files (CCF) - the body responsible for reviewing and monitoring Red Notices - has both the willingness and the autonomy to issue decisions contrary to the desire of the Chinese government, irrespective of Interpol’s leadership. That said, Interpol’s ponderous bureaucracy means that it can take years for a Red Notice to be removed and, in some cases, it stays on some states law enforcement databases, resulting in erroneous arrests.

That said, Russia and China are by no means the only countries suspected of using Interpol Red Notices for inappropriate purposes. For example, the United Arab Emirates has been criticised for using Red Notices to pursue individuals in relation to unpaid debts. There have even been suggestions that UAE-based banks openly refer to Interpol as ‘one of their collection tools’. Separately, Azerbaijan, Uzbekistan and Turkey have all been accused of using Interpol Red Notices to pursue political opponents outside of their jurisdiction.

Interpol does, however, refuse many Red Notice requests, especially those which are identified to them as politically motivated, but it has been estimated that only three per cent of Red Notice applications are assessed in any detail before being approved for action. Any subsequent arrests can have extremely traumatic effects on the named individuals, who often do not become aware of the Red Notice until they are arrested at passport control.

It is clear that Interpol needs to improve its scrutiny of Red Notice requests from certain countries. At present, the system is heavily weighted towards retrospective challenges - an unsatisfactory situation, given the risk that less high-profile targets may not have the time or resources to mount a successful challenge before being extradited. To do this, the CCF would require increased resources from Interpol’s member states and political will from senior leadership. Critics say that this is unlikely, however, not least when the balance of power has shifted in recent years, both in terms of budget contributions and leadership, to those countries alleged to be abusing the Red Notice process.

Christopher David, Counsel, WilmerHale            

Nicholas Hearn, Barrister, Furnival Chambers

A Practical Guide to INTERPOL and Red Notices by Christopher David and Nicholas Hearn (Bloomsbury Professional) was published on 26 July 2018.

Written by Ellie MacKenzie

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