Interview: Inside ICC
10 years of International Criminal Court (ICC)
Interpol has no effective mechanism for preventing countries from abusing its systems yet.
Over the past 20 years Fair Trials International (FTI) has worked to improve respect for fair trial rights in countries across the globe. During this time, we have seen considerable growth in the number of cross-border criminal cases. This can be attributed to a range of factors including new technology and increasing ease of movement across borders. Examples include crimes allegedly committed on the internet which can therefore be prosecuted in a number of countries; international organised crime and terrorism; and suspects who have left the country where a prosecution is taking place.
Criminal justice has historically been treated as a sovereign matter but traditional, domestic criminal justice systems cannot, in isolation, tackle cross-border crime. The power to arrest a suspect in Belgium, for instance, is of little use if s/he has taken advantage of free movement within the European Union to travel to France or, indeed, if the Belgian authorities don’t know which country the suspect is in. In response, governments have had to find new ways of working together to fight crime, including fast-track extradition proceedings (such as the European Arrest Warrant) which rely on stronger trust between different countries. They have also supported the growth of supra-national bodies such as INTERPOL (the world’s largest international policing organisation) to facilitate cooperation.
These systems have been developed to redress what states see as the inequality of arms between organised criminals, who move freely across borders, and national law enforcement authorities. Whilst the need for such action is clear, FTI’s experience shows that without proper safeguards, it may leave individual citizens at the mercy of a powerful international system that offers no effective way to ensure respect for their human rights.
Indeed, while many countries in the world have developed effective domestic legal mechanisms to prevent the abuse of policing powers and to protect the basic rights of suspects, many others continue to violate basic human rights. When countries with radically different standards cooperate, it can create enormous challenges for domestic governments and international bodies.
Should Germany arrest and extradite a pro-democracy activist wanted for “hooliganism” in Russia? Is it right for the courts in Canada to rely on evidence or intelligence obtained from a country like Saudi Arabia which is known to torture prisoners?
These kinds of questions have given rise to considerable legal, political and diplomatic controversy. The challenge is to find practical ways of allowing countries to work together to tackle cross-border crime without sacrificing internationally recognised standards of justice. FTI’s work on INTERPOL illustrates some of the problems and some of the opportunities for reform.
The challenge is to find practical ways of allowing countries to work together to tackle cross-border crime without sacrificing internationally recognised standards of justice.
In 2011 FTI was contacted by Benny Wenda who had discovered that an INTERPOL Red Notice had been issued against him by Indonesia. He wanted us to help him have it removed. A Red Notice is an alert which lets law enforcement agencies all around the world know that a particular person is wanted in a particular country. 7,687 Red Notices were issued in 2011 and disseminated to police forces in over 190 countries.
Benny is a West Papuan tribal leader who leads an international campaign for the independence of West Papua from Indonesia. Due to his activities he was persecuted by the Indonesian government, and subjected to torture and politically motivated prosecution. He escaped to the UK and was given asylum in 2002. He now lives with his wife and six children in Oxford.
The Red Notice against Benny related to the same politically motivated charges that caused him to flee West Papua. Despite this, INTERPOL had circulated the notice to police forces across the globe and labelled Benny a fugitive on its website. If Benny had left the UK he could have been arrested and extradited to Indonesia. He was unable to travel to meet with international campaign supporters or with other West Papuan exiles. Additionally, the Indonesian authorities had used a photo taken from Benny’s website in which he is standing in front of the West Papuan ‘Morning Star’ flag, thus tarnishing the image of his campaign. Indonesia had succeeded in using INTERPOL to continue its persecution from afar.
Thankfully, after a high profile campaign, INTERPOL woke up to its mistake and agreed to remove the Red Notice. Yet a great deal of damage had already been caused to Benny’s life and reputation and, sadly, his case is not an isolated example.
Some of INTERPOL’s 190 member countries are known human rights abusers and notoriously corrupt.
Some of INTERPOL’s 190 member countries are known human rights abusers and notoriously corrupt, but INTERPOL has no effective mechanism for preventing countries, or even individual prosecutors, from abusing its systems. As a result, even though most Red Notices may be perfectly valid, abuses of INTERPOL are affecting human rights campaigners, journalists and businesspeople.
Napoleon Gómez was a trade union leader from Mexico against whom national prosecutors issued over ten arrest warrants, all based on the same allegations. All of these warrants were dismissed by national courts. Despite this, the Mexican authorities kept a Red Notice in place for six years, which was updated several times as new warrants were issued, damaging his reputation and restricting his ability to travel. Despite this suspicious pattern, the Red Notice remained in place until March 2013 when it was deleted following a challenge by Gómez’s lawyers.
More recently, Fair Trials was contacted by Petr Silaev, a Russian activist from Moscow. In 2010 he took part in a demonstration against controversial plans for a new motorway through the Khimki forest. Following the widespread and severe response from the authorities which ensued after the demonstration, Petr fled Russia and was recognised as a political refugee in Finland. Finland knew he was wanted in Russia but saw him not as a fugitive fleeing justice, but as someone at risk of persecution. He thought he was safe. However, in August 2012 while on holiday in Spain, he was arrested by armed anti-terror police who raided his room on the basis of a request circulated by Moscow prosecutors using INTERPOL’s channels. Petr had been charged with hooliganism, the same problematic offence used to imprison the feminist activists Pussy Riot.
As distressing as this was, Petr would have been entitled to assume that this error would be resolved quickly: he was a refugee, and the request came directly from his persecutors. In fact though, it was not until six months after his initial arrest that a Spanish court finally refused Petr’s extradition on the basis that he was being prosecuted on account of his political opinions.
INTERPOL alerts can undoubtedly play an important role in catching criminals, but we cannot afford to ignore the consequences for those that suffer under their abuse and misuse. Red Notices can affect your ability to obtain credit, keep professional licenses, and open bank accounts. People lose their jobs. People who need to travel find visas cannot be issued, or that they are revoked. Petr ended up in prison. In the worst case scenarios, people who have fled persecution may be extradited back to the very authorities they've tried to escape.
But it is not just the human impact on people like Benny and Petr, who had the courage to protest the misuse of power and were forced to flee their countries as a result. The failure to weed out these cases of abuse also undermines the effectiveness of INTERPOL itself and means that its member countries cannot rely on the accuracy of the information that is disseminated through its channels.
FTI is calling for improvements to INTERPOL’s internal review mechanisms so that it is able to identify malicious requests made by countries that would be abusive. In recent years INTERPOL has, sadly, made it easier for countries to avoid its limited internal controls: a country can now use the system to broadcast the ‘wanted person’ information itself, and INTERPOL checks the information afterwards, by which time the damage may already have been done.
In addition, the individual suffering the human impact is entitled to a fair chance to challenge the use of INTERPOL’s systems against them. At present, however, the only option for people like Benny and Petr is to request a review by a commission of data protection experts inside INTERPOL. They have no right to a hearing, are not told what the country says in response to a request, and are given no reasons for the decision reached. Even if the commission concludes that a Red Notice is inaccurate or abusive, it cannot require its removal or amendment. It can only make non-binding recommendations.
Cross-border crime has undoubtedly created significant challenges for law enforcement and countries need to work together to address this. However, the case of INTERPOL demonstrates the need to ensure that this goes hand in hand with adequate safeguards against abuse, for confidence in the system will otherwise be eroded.