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Chalk and cheese: differing UK and US Responses to INTERPOL Red Notice abuse

Posted on 17 December 2019

The US has a reputation for disengaging from or disrupting international organisations responsible for promoting cooperation in international criminal justice. Conversely, the UK has a relatively good record of support and engagement with such bodies.

The introduction to Congress of the TRAP Act last month is a welcome change of approach. It is represents a constructive and principled engagement with the international police organisation, INTERPOL.   Its aim is to counter efforts made by corrupt and autocratic regimes to harass and persecute individuals for political and other unlawful motives by making "trumped up requests for detention and extradition" via INTERPOL and "ensure that the US remains at the forefront of defending the vulnerable from the long arm of state repression".

By contrast, as previously discussed the UK Government's Extradition (Provisional Arrest) Bill trailed in the Autumn Queen's Speech is likely to result in INTERPOL Red Notices standing as domestic arrest warrants without the intervention of a UK court, removing a crucial level of protection from abusive requests for detention and extradition.  

The UK proposals do not currently engage with the growing body of criticism of INTERPOL's  methods, lack of transparency and accountability, and its propensity to lend itself to abuse. Conversely, the TRAP Act has a number of key proposals, all of which respond to INTERPOL's critics and address widely expressed concerns about how that organisation operates.

TRAP recommends that the US should use its influence at INTERPOL to enhance the screening of requests for notices to prevent abuse and to encourage the penalisation or suspension of countries from INTERPOL that persist in making improper or politically tainted requests for detention and extradition.

It also promotes a policy of encouraging INTERPOL to publish annual statistics of the number of notices rejected by INTERPOL and the reason for their rejection, and directs that foreign immigration and security services are alerted to abusive INTERPOL notices and facilitate the safe passage of individuals who are the subject of such notices.

The Act obliges the US Government to verify any INTERPOL notice with the relevant US Government agency before acting upon it, and ensure that no person is arrested on a Red Notice without a US court issued warrant of arrest and a valid extradition request in place.  

Meanwhile, the UK Government is moving in the opposite direction. The UK has never permitted persons within its jurisdiction to be arrested on Red Notices, unlike many other EU states. In an effort to fill the void that will be left by the UKs exit from the EAW scheme, under which fugitives could be arrested without the need to go to court to obtain a warrant, the UK is proposing that INTERPOL Red Notices emanating from 'trusted countries' where the request is to detain for a 'serious crime' should serve as domestic arrest warrants.

Trusted countries are not defined in the Bill but the published impact indicates that these are likely to be the 'five eyes' states (US, Australia, NZ, Canada); the EFTA states (Iceland, Norway, Switzerland and Liechtenstein); and presumably after Brexit, the EU 27.

How confident can we be that the list of trusted states will remain limited to the EU and our common law partners? The UK has extant extradition treaties with many of the countries which the TRAP Act identifies as the worst abusers of the INTERPOL system, responsible for "intimidating, harassing, and persecuting political opponents, journalists, members of civil society and no-pliant members of the business community", including Russia. Russia is therefore by definition one of the UKs "trusted extradition partners" and is designated by the Secretary of State as a country that is not required to produce evidence  of the underlying criminal conduct to a UK court. If Russia is trusted by the UK to make extradition requests to the UK, why would the UK refuse to execute Red Notices that emanate from Russia in the future?

INTERPOL is essential in combatting transnational crime and terrorism. But its lack of transparency and vulnerability to abuse should be addressed before allowing its reach to be extended further into the UK criminal justice space. The UK Government should consider the wisdom of its approach when one of its most trusted partners has taken the opposite view and is actively taking measures to reform the organisation and deter what it has described as the "serial abuse of INTERPOL by repressive governments".

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