A Red Notice allows for detention of an international fugitive. But the practice has been criticized for abuse. In response, a bipartisan group of Congresspersons have introduced the Transnational Repression Accountability and Prevention Act (“the TRAP Act”). This reform legislation, if enacted, will affect politically-motivated Red Notices and enforcement of them around the world.

INTERPOL Red Notices

Red Notices are requests by INTERPOL member sovereign governments, or International Criminal Courts and Tribunals, to member law enforcement agencies to locate and provisionally arrest a person, pending extradition, surrender, or similar legal action. These notices generally include information allowing for the identification of the wanted person and the crime for which they are wanted. Red Notices must comply with INTERPOL’s Constitution and Rules, which notably prohibits their use for political, racial, religious, or military purposes.

INTERPOL defines a Red Notice as notice that a person is wanted internationally rather than a formal arrest warrant. A Red Notice does not compel any INTERPOL member country to arrest an individual, and United States Department of Justice does not consider a Red Notice alone to be a sufficient basis for arrest under the 4^th Amendment. However, in practice, there has been a deference, by the Department of Homeland Security in particular, to adhere to Red Notices with little additional investigation.

Red Notices do not affect individuals only. A Red Notice against a company executive or high-ranking employee can have marked negative effects on their company, including greater legal and compliance costs, increased regulatory pressure and investigation, and limited cross-border opportunities.

Red Notice Abuse

The Commission on Security and Cooperation in Europe, better known as the U.S. Helsinki Commission, has determined that there is widespread abuse of INTERPOL Red Notices for political ends. Various countries have been accused of issuing Red Notices against perceived political enemies, such as political dissidents, human rights defenders, or problematic executives. Red Notices may also be based on crimes for activities that would otherwise be protected in the United States and other western democracies, or for crimes that have been invented or exaggerated by the issuing country. Additionally, some regimes issue criminal claims against political targets with the intention of harassing the subject of the Red Notice, with the understanding that actual enforcement is unlikely.

INTERPOL does have protections in place to guard against such activity by member nations. If a Red Notice is found to have an overly political element, INTERPOL will deny the Red Notice or remove it if already issued. However, since tens of thousands of Red Alerts are issued every year, INTERPOL, with its limited staff, cannot guarantee that all are scrubbed for political misuse. Further, INTERPOL does not limit the number of Red Notices filed by any country; and it is not overtly clear how INTERPOL investigates the fillings of Red Notices.

TRAP Act

The Helsinki Commission, following its own investigation into the reported Red Notice abuses, determined that legislation was needed. The TRAP Act will attempt to combat these perceived abuses by:

• (i)   Declaring that it is the policy of the United States to promote greater transparency at INTERPOL and ensure its procedures of operation are consistent with the INTERPOL Constitution, particularly the provisions including INTERPOL’s commitment to the Universal Declaration of Human Rights and the prohibition for the Organization to undertake intervention or activities of a political, military, religious, or racial nature.
• (ii)   Directing relevant United States departments and agencies to take appropriate action in response to credible information of likely attempts by member countries to abuse INTERPOL communications for politically motivated or other unlawful purposes.
• (iii)   Requiring a report to be presented to relevant Congressional committees of how INTERPOL member countries abused INTERPOL communications, including Red Notices, for political motives and other unlawful purposes over the last three years.
• (iv) Prohibiting the arrest of individuals subject to INTERPOL Red Notices issued by another INTERPOL member country without prior verification of the individual’s eligibility for extradition, receipt of diplomatic request for provisional arrest, and the issuance of proper arrest warrant.
• (v) Prohibiting the use of an INTERPOL Red Notice as the sole basis to detain or otherwise deprive an individual of freedom, to remove an individual from the United States, or to deny a visa, asylum, citizenship, other immigration status, or any trusted travel program without verification that the communication comports with the Constitution of INTERPOL.

Potential Effects of Enactment

As INTERPOL is an international organization beyond the reach of U.S. law, the enactment of the TRAP Act does not ensure any formal changes to the organization’s procedures or communications. However, the United States has tremendous influence in the governance of INTERPOL, and passage of the Act may signal the beginning of INTERPOL reform. Further, other western democracies may follow the U.S. lead and implement similar, less deferential, policies towards INTERPOL communications, or even move to completely disregard them.

In the United States, enactment can greatly reduce the pattern of reliance on Red Notices by the Department of Homeland Security. It would also likely signal that companies with employees or executives with politically-motivated Red Notices will be less likely to face government scrutiny than before. This will reduce the costs and the potential intended harassment that politically-motivated Red Notices can create.

Further, enactment will increase the protection of political dissidents and human rights defenders within the United States from retribution from their home countries through arrest in the United States. In particular, such individuals will be less susceptible to deportation back to countries where they may face torture or death.

Patrick Morris contributed to this article.