Think Immigration: INTERPOL’s Principle of Guilty Until Proven Innocent
As part of our efforts to amplify the AILA Law Journal, we asked author Ted R. Bromund to share insights into the article he co-authored with Sandra Grossman in which they offer the latest information about INTERPOL Red Notices in the Fall 2024 edition of the AILA Law Journal. AILA members, access your free digital copy of the Law Journal to read more!
In the October 2024 edition of the AILA Law Journal, Sandra Grossman and I published an update of our 2019 article on INTERPOL. A lot has changed in five years, which was the main reason we wrote the article.
I like to think that some of that change is the result of our advocacy, and the advocacy of others working to oppose INTERPOL abuse – which is basically what happens when nations use INTERPOL to pursue people who are not genuine ordinary law criminals.
Most of the change since 2019 has been positive, though only moderately so. It’s now fairly well established in U.S. courts – including immigration courts – that INTERPOL Red Notices don’t meet the probable cause standard. INTERPOL still has a well-merited reputation for lacking transparency, but it’s better than it used to be.
Immigration and Customs Enforcement (ICE) now has guidelines that are supposed to govern how it uses Red Notices – and while I’ve always been a skeptic that ICE will follow these guidelines in practice, I’d rather have the guidelines, imperfect though they are, than have nothing.
Finally, there’s now legislation addressing INTERPOL abuse – and while the Biden Administration has punted on the reporting that law requires, it’s a starting point that we can build on, as Sandra and I emphasized in our recent testimony before the U.S. Helsinki Commission.
But one thing hasn’t changed, and it’s not going to change: INTERPOL is still founded on the principle that states get the benefit of the doubt. Of course, that’s not how criminal justice is supposed to work. The accused, not the state, is supposed be presumed innocent.
INTERPOL works the other way. When a state requests that INTERPOL publish anything, INTERPOL presumes that request is legitimate unless it’s got a reason to believe otherwise.
Since most people pursued through INTERPOL aren’t public figures, INTERPOL often knows nothing about them. So, in most cases, the presumption that what the state is doing is legitimate holds up, and INTERPOL does as the state has asked.
And INTERPOL doesn’t – at least not officially – build up a track record on a state. It doesn’t look at the state’s domestic political and legal systems. To INTERPOL, the People’s Republic of China is the same as Sweden: they’re both members of INTERPOL. That’s all there is to it.
Now, in reality, it’s not quite as simple as that. Behind the scenes, INTERPOL is aware that some nations abuse its systems a lot more than others. Sweden doesn’t get the same level of scrutiny as Russia. But the overriding principle of the presumption of state legitimacy – the presumption that the accused has been reasonably accused – still holds.
INTERPOL’s not doing this because it’s got bad intentions. It’s doing this because it’s following its own rules. INTERPOL is an organization of states. The states make the rules – and they wrote the presumption of state legitimacy into INTERPOL’s rules. If that presumption wasn’t there, most of them wouldn’t want to be members of INTERPOL in the first place.
Our article is fundamentally about what happens when INTERPOL’s presumption of state legitimacy runs into a criminal justice system based on the presumption of innocence. The two are basically not compatible – but they have to be made to work together anyhow.
This is where attorneys (and expert witnesses, like myself) come in. The point of advocacy in cases with an INTERPOL angle is often to educate judges about INTERPOL’s presumption, and to demonstrate that this presumption has resulted in an injustice – usually because the state that made the accusation has done so for political or other illegitimate reasons.
The more attorneys, judges, civil servants, journalists, and politicians realize that INTERPOL – which does serve a necessary purpose – is a message board for states, not an investigative agency, an international police force, or a judicial body, the better they’ll understand it.
And if they understand it better, I hope they’ll use it better – and understand the reforms it needs. That will take a while – but the last few years show we’re making progress.
About the Author: Ted R. Bromund Ph.D.
Firm: Bromund Expert Witness Services
Location: Washington, D.C.