White Collar Litigation Update - February 2025

The Misuse of INTERPOL in Commercial Disputes and Risk-Mitigating Measures

            For nearly a century, INTERPOL (called the International Criminal Police Commission before being renamed the International Criminal Police Organization-INTERPOL in 1956) has served a critical role in facilitating cooperation among police organizations in member countries.  As set forth in Article 2 of its Constitution, one of the core aims of INTERPOL—–which today has 196 member countries—is to “ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights.’”  Constitution of the ICPO-INTERPOL, U.N. Doc. I/CONS/GA/1956 (2023).

            In practice, INTERPOL fosters international cooperation among law enforcement authorities by, among other things, publishing “notices” for the identification, detention and/or arrest of fugitives sought by a member country.  Contrary to a common misconception, INTERPOL itself has neither the authority to detain or arrest individuals nor any prosecutorial powers.  Rather, its function is primarily to serve as a centralized data source for information about fugitives, as well as persons who may pose risks to the public, provided by all its member countries.  In particular, the most well-known type is a “Red Notice,” which is “a request [by one member country] to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” INTERPOL, “Red Notices,” available at https://www.interpol.int/en/How-we-work/Notices/Red-Notices.  By publishing Red Notices—information about which is available in an internal database accessible by member countries—INTERPOL can simultaneously alert police authorities globally about fugitives sought by their fellow member countries.  INTERPOL also publishes notices for different purposes—each designated by a different color—such as, among others, (1) requests from a member country for information on missing persons (“Yellow Notice”) and the identity of a person relevant to a criminal investigation (“Blue Notice”); and (2) warnings by a member country regarding a person who may pose a “serious and imminent threat to public safety” (“Orange Notice”). INTERPOL, “About Notices,” available at https://www.interpol.int/en/How-we-work/Notices/About-Notices.

            Inherent in any request by a member country that INTERPOL publish a notice is that the member country operates in good faith for the purpose of achieving legitimate law enforcement purposes, both in accordance with that country’s national laws and principles of fundamental human rights.  This is reflected in Article 2 of the INTERPOL Constitution as set forth above, as well as Article 2 of INTERPOL’s Rules on the Processing of Data (“RPD”), which states:  “The aim of the present Rules is to ensure the efficiency and quality of international cooperation between criminal police authorities through INTERPOL channels, with due respect for the basic rights of the persons who are the subject of this cooperation, in conformity with Article 2 of the Organization’s Constitution and the Universal Declaration of Human Rights to which the said Article refers.”  INTERPOL’s Rules on the Processing of Data, U.N. Doc. III/IRPD/GA/2011 (2023).

            It has been well documented, however, that member countries—particularly those with authoritarian regimes—have abused their privileges with INTERPOL by requesting notices for illegitimate purposes inconsistent with the aims of facilitating international police cooperation.  This includes, among other things, requesting that INTERPOL publish Red Notices seeking the detention and arrest of political opponents and religious dissidents.  See, e.g., Bill Whitaker and Aliza Chasan, “INTERPOL—The International Police Organization—Accused of Doing the ‘Dirty Work’ of Authoritarian Members,” 60 Minutes (CBS News) (Jan. 28, 2024), available at https://www.cbsnews.com/news/interpol-policing-success-failures-60-minutes/; Sam Meacham, “Weaponizing the Police: INTERPOL as a Tool of Authoritarianism,” HARVARD INT’L REV. (Apr. 11, 2022), available at https://hir.harvard.edu/weaponizing-the-police-authoritarian-abuse-of-interpol/; Josh Jacobs, “Has INTERPOL Become the Long Arm of Oppressive Regimes?” The Guardian (Oct. 17, 2021), available at https://www.theguardian.com/global-development/2021/oct/17/has-interpol-become-the-long-arm-of-oppressive-regimes.

            Notably, abuse of INTERPOL is not limited to authoritarian regimes seeking to persecute political and religious leaders or other members of civil society simply for voicing their opinions. Indeed, the Firm has handled a number of cross-border cases in recent years where adversaries in civil litigation and arbitration matters have threatened to seek Red Notices or convinced INTERPOL to publish Red Notices against individuals as a means to gain leverage in commercial disputes.  This may include, for instance, threatening the pursuit of Red Notices as a means to extort a settlement on more favorable terms.  In cases where the adversary is a national government or organ of a national government (e.g., a state-owned oil company), an example of how the process may play out is as follows:  (1) the government directs its criminal authorities to initiate an investigation against private actors with whom there is a commercial dispute and issue arrest warrants against them, even if there is no factual or legal basis for them; and, in turn, (2) the government agency designated to act as the central bureau, or authority, for that country makes a request to INTERPOL that it publish a Red Notice pertaining to the private actors.  In those cases where the adversary is a private party, the process is similar but would generally commence with a referral to criminal authorities and request that the authorities initiate an investigation against counterparties in a commercial dispute.  These typically are based on factually weak, if not altogether false, allegations of misconduct.

            Apart from the reputational damage that may result from the issuance of a Red Notice—even where based on factually and legally baseless claims—there are significant practical consequences for the targets of Red Notices.  For instance, because the targets of a Red Notice are at risk of detention and arrest by police authorities worldwide, one common mitigation measure is to not travel at all internationally.  This is particularly the case where the target of the Red Notice is the citizen and resident of a country that, either by express law or general precedent, does not extradite its own citizens to other countries.  This measure can have a detrimental impact on the target both personally and professionally, notably in instances where the Red Notice remains pending for years.  Other potentially crippling adverse consequences include the target of a Red Notice (1) being deported from the United States, even if that individual has legal status (e.g., a work visa); (2) not being able to open bank accounts or execute financial transactions; or (3) having his or her accounts closed, as banks and other financial institutions may flag him or her as a risk through KYC and due diligence processes.

            Companies and their executives, employees or representatives may, in particular, face threats of the above in the context of disputes where the commercial adversary is located in a country with weaker democratic and institutional norms and where governmental authorities (such as those with investigatory and prosecutorial authority) are prone to bribery and corruption.  Such political conditions are ripe for instances where, for example, a private company or individual improperly influences its national law enforcement authorities to (1) initiate meritless criminal investigations and issue arrest warrants against counterparties in a commercial dispute and, in turn; (2) request that INTERPOL publish Red Notices against those counterparties.  As a hypothetical example, in an arbitral proceeding over a contract dispute filed by a U.S. counterparty (the claimant) against a state-owned Brazilian company (the respondent), the latter may influence the Brazilian criminal authorities to investigate and issue arrest warrants against executives of the U.S. company (for instance, on sham charges of corruption), which, in turn, results in the Brazilian central authority requesting that INTERPOL issue Red Notices pertaining to those executives.

            As an institution, INTERPOL has become increasingly cognizant that certain member countries instrumentalize it for illegitimate law enforcement purposes and is taking steps to impose heightened controls on the issuance of notices, including Red Notices.  See, e.g., Jane Bradley, INTERPOL Tightens Oversight on Databases Misused by Autocrats,” N.Y. Times (Nov. 7, 2024), available at https://www.nytimes.com/2024/11/07/world/europe/interpol-oversight-red-notices-blue-notices-databases-abuse-dissidents.html.  In addition, and importantly, for those companies and individuals who, in the context of a commercial dispute, confront circumstances where adversaries threaten the use of Red Notices—or have successfully lobbied their national governments to have INTERPOL issue Red Notices—there is a process to seek recourse.

            Specifically, INTERPOL permits the targets of a Red Notice to submit requests seeking the “deletion of data” (e.g., cancelation and removal of a Red Notice from INTERPOL’s databases).  See, e.g., Article 18(1), INTERPOL Rules on the Processing of Data (“Rights of access, correction and deletion of data”: “Any person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL’s Files a request for access to, or correction and/or deletion of data processed in the INTERPOL Information System concerning that person or entity.”); Commission for the Control of INTERPOL’s Files, “Procedural Guidelines for Applicants to the Commission” (Feb. 29, 2024), available at https://www.interpol.int/en/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/How-to-submit-a-request.  In addition, INTERPOL accepts for consideration requests from parties asking preemptively that INTERPOL not issue any notices against them. See INTERPOL, “Who We Are: Commission for the Control of INTERPOL’s Files (CCF),” available at https://www.interpol.int/en/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/How-to-submita-request (“Remark[:] The Statute of the Commission for the Control of INTERPOL’s Files does not use the term ‘pre-emptive requests’, but the term has generally been understood to refer to those requests addressed to the Commission in which the requester asks INTERPOL not to process any future data in its files even when there are no data currently in INTERPOL’s files, arguing that doing so would violate the Organization’s rules.  The requester may provide information that the requester believes supports the contention that processing such data would violate INTERPOL’s rules.”

            In prior cases, the Firm has succeeded in efforts to have INTERPOL cancel Red Notices, or not issue any in the first instance, pursuant to the above procedures.  The bases for such requests typically include that the notice (e.g., Red Notice, Blue Notice, Orange Notice) does not comply with the INTERPOL Constitution and/or RPD.  Critically, Article 83 of the RPD explicitly prohibits the issuance of Red Notices in cases involving purely private commercial disputes where there is no connection whatsoever to criminal conduct, as it states:  “Red notices may not be published for the following categories of offences: . . . offences originating from a violation of laws or regulations of an administrative nature or deriving from private disputes, unless the criminal activity is aimed at facilitating a serious crime or is suspected of being connected to organized crime.”  Other bases to support the cancelation or invalidation of a Red Notice include, inter alia, the following:  (1) the Notice is premised upon an arrest warrant that was not issued in compliance with national laws (e.g., the target was not afforded due process); (2) the Notice does not, in any way, promote international police cooperation, as it was requested and issued for purposes of leverage in a commercial dispute and/or based on false claims; and (3) the Notice violates the fundamental human rights of its target (e.g., the country that sought the Notice did so as a means of punishing a political opponent of the ruling government).