Does INTERPOL have a role to play in the conflict in Ukraine?

On 28 February, Denys Monastyrskyi (the Minister of Internal Affairs of Ukraine) demanded that Russia be “expelled” from the International Criminal Police Organization-INTERPOL (“INTERPOL”):

That same day, Priti Patel (the UK Secretary of State for the Home Department) informed the House of Commons that the Ukrainian Government had requested that Russia be “suspended from their membership of Interpol”, and she promised that the UK would be “leading all international efforts to that effect”. In the days since, other States have echoed the UK’s call for the suspension of Russia from INTERPOL.

However, on 3 March, a spokesperson for the INTERPOL General Secretariat told The Guardian:

[o]nly the general assembly, Interpol’s supreme governing body comprising representatives from each of its 195 member countries, can vote on issues relating to membership. The Interpol general secretariat continues to monitor the situation concerning Ukraine closely.

In our view, this is a red herring. It is of course correct that the General Assembly is the organ empowered to “vote on issues relating to membership”. But INTERPOL has other options available to it to respond to the conflict in Ukraine (if it wished to do so).

The starting point is that expulsion of Russia from INTERPOL, as urged by Minister Monastyrskyi, is unlikely. The difficulty is that there is no express provision in INTERPOL’s rules for expulsion of a member (as opposed to admission of a member), and international organisations generally do not have a right to expel members without such an expulsion clause. And even if one accepts the controversial proposition that an international organisation has the implied power to expel a member where necessary to defend itself against a situation that would prevent it from functioning (R Khan, Implied Powers of the United Nations (1970) 124), it cannot be said that this is applicable in the circumstances. In short, whilst Russia has clearly breached various rules of international law, its conduct cannot be said to prevent INTERPOL from functioning. Article 60(2) of the 1969 Vienna Convention on the Law of Treaties (“VCLT”) also does not assist: it is unlikely that Russia is in material breach of the INTERPOL Constitution within the meaning of Article 60(3) of the VCLT. It might be argued that INTERPOL could (by way of a countermeasure) expel Russia to induce it to cease its breaches of international law and make appropriate reparation. This argument perhaps deserves further consideration, but it would likely be hampered by the sparse practice in support of it.      

It is of course open to a member of INTERPOL to propose an amendment to the INTERPOL Constitution to introduce an expulsion clause, and there are a number of precedents for this course of action: e.g., in 1947, the International Civil Aviation Organization Assembly decided to amend the Convention on International Civil Aviation by introducing Article 93 bis with a view to expelling Spain; in 1965, the World Health Assembly adopted an amendment to Article 7 of the Constitution of the World Health Organization with a view to expelling South Africa; and the list goes on. Any amendment to the INTERPOL Constitution would need to be approved by a two-thirds majority of the members in a session of the General Assembly (INTERPOL Constitution, Article 42). An extraordinary session could be convened “at the request of the Executive Committee or of the majority of Members” for this purpose (INTERPOL Constitution, Article 10).

However, the better approach may not be to seek the expulsion of Russia from INTERPOL, but a more limited suspension of Russia from the Organization. Here, INTERPOL’s rules can assist, and no action by the General Assembly is required.

Article 131(1) of INTERPOL’s Rules on the Processing of Data (the “IRPD”) provides:

[i]f a National Central Bureau does not fulfil its obligations under the present Rules, the General Secretariat shall be entitled to take the following corrective action: … (c) suspension of the access rights granted to users of the National Central Bureau.

In other words, if the National Central Bureau of Russia (“NCB Russia”) – the focal body for Russia’s INTERPOL activities – does not fulfil its obligations under the IRPD, the General Secretariat is entitled to suspend its use of the INTERPOL Information System. In practice, this means that the General Secretariat can suspend (inter alia) NCB Russia’s access to the 19 INTERPOL databases used by INTERPOL members to process data in the context of international police cooperation.

Pursuant to Article 131(3) of the IRPD, any “long-term suspension” from the INTERPOL databases would require a decision of the Executive Committee:

[t]he General Secretariat shall submit to the Executive Committee for decision all proposals to take corrective measures which may result in the long-term suspension of the following processing rights of a National Central Bureau … :

1. 1. the right to record data in one or several police databases of the Organization;
   2. the right to consult one or several databases;
   3. interconnection or downloading authorizations.

The Executive Committee is comprised of delegates from 13 different members of INTERPOL, and any decision to impose a long-term suspension would be made by “a simple majority of [those] present and voting for or against” (Executive Committee Rules of Procedure, Article 7(2)).

The suspension of NCB Russia from the INTERPOL Criminal Information System (one of the 19 INTERPOL databases) would be the most consequential. The INTERPOL Criminal Information System contains INTERPOL’s system of notices. Of the nine types of INTERPOL notice, the red notice stands out. It serves to seek the location of a wanted person and his or her detention, arrest or restriction of movement for the purposes of extradition, surrender or similar lawful action.

As of 3 March 2022, approximately 44% of all active public red notices were published at the request of NCB Russia. This is a startling percentage, particularly when one considers that INTERPOL is comprised of 195 members. If NCB Russia is suspended from the INTERPOL Criminal Information System, it could not seek to weaponise the database to (inter alia) locate individuals connected to the Ukrainian Government or military, or the Russian opposition, with a view to securing their extradition to Russia.

The key question when considering Article 131 of the IRPD is whether NCB Russia has in fact failed to fulfil its obligations under the IRPD. On one view, evidence may not be very hard to find: NCB Russia has repeatedly breached the IRPD by requesting notices that are (1) of a political character (in breach of Articles 5(2) and 34(2)) and/or (2) incompatible with the spirit of the Universal Declaration of Human Rights (in breach of Articles 5(2) and 34(1)). For example, in February 2016, INTERPOL refused to publish a notice against Mikhail Khodorkovsky (a vocal opponent of President Putin) on the basis that NCB Russia’s request was politically motivated, and, in December 2017, INTERPOL refused to publish a notice against Vlad Plahotniuc (the then chairman of the Democratic Party of Moldova) on the basis that NCB Russia’s request was politically motivated. And publicly reported requests and notices are the tip of the iceberg: NCBs should have access to far more evidence to build a respectable case, particularly if NCB Russia is already misusing the INTERPOL Information System to target individuals connected to the Ukrainian Government/military or the Russian opposition.

If INTERPOL did take corrective measures, it would not be the first time. In December 2012, the General Secretariat took corrective measures against NCB Syria. INTERPOL continued to apply corrective measures until 2021, when the Executive Committee decided to lift them. However, INTERPOL waited almost two years from the commencement of the Syrian war before it took corrective measures. It does not have the same time to dally today.