Friday, 4 September 2020
Dr Martha is the principal of Lindeborg Counsellors at Law, a London-based public international law boutique firm, and Fellow Partner of the Lauterpacht Centre for International Law. From 2004 to 2008 he was the General Counsel and Director of Legal Affairs of INTERPOL.
His publications on international law include: The Legal Foundations of INTERPOL (Hart Publishing, Oxford, 2010.), “Challenging Acts of INTERPOL in Domestic Courts” In: Challenging Acts of International Organizations Before National Courts, Edited by August Reinisch, OUP, September 2010., and “Remedies Against INTERPOL: role and practice of defense lawyers” Conference European Criminal Bar Association Lyon, 6 October 2007 (online).
Last June, news broke that Iran had issued an arrest warrant and asked INTERPOL for help in detaining US President Donald Trump and dozens of others it believed had carried out the drone strike that killed a top Iranian general in Baghdad1. INTERPOL denied this request2, stating that it “would not consider requests of this nature” because “it is strictly forbidden for the Organisation to undertake any intervention or activities of a political, military, religious or racial character.”3
INTERPOL General Secretariat, which is the body of the Organisation which has the power to issue red notices4, thus spontaneously or at the request of the USA, determined that the publication of such red notices would contravene INTERPOL’s Constitution and/or the rules adopted thereunder. Given Iran’s own successful challenge, in 2007, of an Argentinian request for red notices against i.a. former President Rafsanjani and the former foreign minister5, INTERPOL’s rejection should not have come as a surprise. However, on the basis of the same experience6, if all the other red notice requests have also been rejected, Iran might want to question that decision. Such challenge can potentially lead to a showdown at the INTERPOL’s General Assembly7. The following highlights the substantive issues that would be involved.
Interventions against Heads of State are not per se political
The reason why Iran might be tempted to challenge the General Secretariat’s decision is because of the less assertive position adopted by the Commission for the Control of INTERPOL’s Files (“CCF”) in an advisory opinion of 2005. The CCF rejected the view that an intervention against a Head of State or a Head of Government should systematically be considered in contravention of Article 3 of INTERPOL’s Constitution. According to the CCF, the advisability of processing such information must be assessed in the light of a number of criteria, such as: (i) any immunities enjoyed by the person concerned or attached to the person’s office at the time when police co-operation is requested, (ii) the entity which had issued the arrest warrant, it being understood that, even in the case of a military tribunal, this fact alone does not mean the entity is systematically considered to be in contravention of Article 3 of INTERPOL’s Constitution, even if at first sight it tended to support the idea that the information should not be processed, (iii) the type and seriousness of the crime concerned; fraud, for example, was not considered to be an aggravated crime with regard to the risks of damage to property or persons.8
It is firmly established that, unless waived, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other States.9 This immunity entails “full immunity from criminal jurisdiction and inviolability”10 public, private, before or in office.11 Full immunity protects the individual concerned against any act of authority of another State which would hinder him in the performance of his duties.12 Accordingly, in 2006, the General Secretariat acted upon this advice and cancelled a diffusion concerning Kosovo’s Prime Minister Agim Ceku13. Against this background, it is unsurprising that the INTERPOL General Secretariat refused to assist Iran in detaining President Trump.
Targeted killings as ordinary law crimes
The identity of the 35 other individuals wanted by Iran in connection with the death of Soleimani is unclear. Thus, it is not possible to determine whether the INTERPOL General Secretariat was justified in refusing to assist Iran in respect of those 35 individuals on the basis of any immunity. In the absence of any immunity, the “nature of the offence” is particularly important. It has been reported that the 35 individuals are the subject of “murder and terrorism” charges in Iran. Prima facie, INTERPOL considers that murder and terrorism are ordinary law crimes.
According to Resolution AGN/20/RES/11 (1951) “… no request for information, notice of persons wanted and, above all, no request for provisional arrest for offences of a predominantly political, racial or religious character, is ever sent to the International Bureau or the NCBs, even if – in the requesting country – the facts amount to an offence against the ordinary law”. This requires a case by case assessment, taking into account its particular context. Thus, while the resolutions concerning the interpretation of Article 3 generally focused on the nature of the offence (e.g. pure political offences such as treason), the requirement of evaluating the overall context of the case introduces other relevant elements to be assessed14. The general trend of Article 3 interpretation clearly points to the narrowing of its application in relation to the nature of the offence.
Given that the individual concerned is denied the right to be heard—to establish his identity and demand that prosecutors prove his selection for sanctions was justified15, targeted killing cannot be considered an act of international criminal law enforcement16. Therefore, such targeted killing can hardly be distinguished from ordinary assassinations because arguably, outside the context of active hostilities, the use of drones for targeted killing is almost never likely to be legal17.
Interestingly, in 2010, INTERPOL issued a red notice against 11 individuals wanted for the assassination of a Hamas commander in Dubai18 and even joined the task force established to investigate the murder19. However, in the same year, the INTERPOL General Assembly, concerned about the exposure of the organisation becoming involved in political conflicts between its member countries, moved to curtail the use of the organisation’s channels and tools against targeted killings. Resolution AG-2010-RES-10 effectively precludes the publication of red notices against non-nationals of the requesting country in cases where the country of nationality opposes. It provides that:
“DECIDES, in light of the above that, in addition to the application of INTERPOL’s general rules and regulations with regard to processing of requests for international police co-operation, the processing via INTERPOL channels of new requests concerning genocide, crimes against humanity and war crimes shall continue with regard to: …
3. Requests submitted by member countries, except in cases where the request concerns a national of another member country, and that other member country, upon being informed by the General Secretariat of the request, protests against the request within thirty days;
This resolution only applies to cases where the request concerns persons suspected or guilty of genocide, crimes against humanity and war crimes. If Iran’s request for police cooperation was predicated on the commission of war crimes, the INTERPOL General Secretariat will have informed the US of Iran’s request and the US will, no doubt, have protested against Iran’s request. In that case, it is likely that, relying on AG-2010-RES-10, the USA successfully opposed the issuance the of the red notices requested by Iran against its nationals. If this is the case, it is unlikely that either the Executive Committee or the INTERPOL General Assembly would overrule the decision of the General Secretariat to deny the requested red notices.
A potential way forward for Iran
If Iran’s request for police cooperation was not predicated on the commission of war crimes, there is a potential way forward for Iran in respect of the wanted individuals who do not benefit from any immunity. Resolution AG-2010-RES-10 would not apply and the request would have to be examined in accordance with the predominance test set forth in Resolution AGN/20/RES/11 (1951). At first sight, it is not obvious what would make this case different than the targeted killing in Dubai in 2010, in which case INTERPOL did issue a red notice against the suspected Israeli officials20. Indeed, as mentioned before, Iran successfully invoked this dispute settlement mechanism in the 2000s in connection with red notices published by the INTERPOL General Secretariat at the request of Argentina against Iranian nationals for allegedly participating in the bombing of the AMIA building in Buenos Aires in 1994.
To conclude, if as the CCF advised in 2005, interventions against Heads of States are not per se prohibited by Article 3 of the INTERPOL Constitution, the rejection of the red notice against President Trump was probably justified only on account of his personal immunity under international law. This also means that the same justification would not necessarily apply to all the other persons wanted by Iran. It is thus possible that like in 2007, INTERPOL’s General Assembly could agree that, given the predominance test, the red notices against those not enjoying immunity under international law can be issued by INTERPOL. However, the USA would be able to invoke AG-2010-RES-10, to oppose the issuance the of the red notices requested by Iran against its nationals. Resolution AG-2010-RES-10 only applies to genocide, crimes against humanity and war crimes. Thus, if the Iranian request against the others than Trump, was not predicated on war crimes, Iran could challenge the General Secretariat’s decision in connection with the death of Soleimani, and could again invoke the INTERPOL dispute settlement mechanism and agitate for a showdown at the 89th session of the INTERPOL General Assembly in December 2020.
1 Iran Issues Arrest Warrants for Trump and 35 Others in Suleimani Killing, The New York Times 29 June 2020. Available at: https://www.nytimes.com/2020/06/29/world/middleeast/iran-trump-arrest-warrant-interpol.html
2 Iran issues arrest warrant for Trump; Interpol denies help, Al Jazeera 20 June 2020. Available at: https://www.aljazeera.com/news/2020/06/iran-issues-arrest-warrant-trump-asks-interpol-200629104710662.html
3 Interpol shuts down Iran’s request for Trump arrest, CNBC 30 June 2020. Available at: https://www.cnbc.com/2020/06/30/interpol-shuts-down-irans-request-for-trump-arrest.html
4 Article 74 INTERPOL Rules on Data Processing (“IRPD”).
5 Iran rejects Interpol wanted notices – official, Reuters 8 November 2007. Available at: https://www.reuters.com/article/idUSHAF837597
6 INTERPOL General Assembly upholds Executive Committee decision on AMIA Red Notice dispute, INTERPOL Press Release 7 November 2007. Available at: https://www.interpol.int/ar/1/1/2007/INTERPOL-General-Assembly-upholds-Executive-Committee-decision-on-AMIA-Red-Notice-dispute
7 For a detailed analysis of these procedures and a discussion of the previous instances inter-State dispute settlement within INTERPOL, see: RSJ Martha, C. Grafton & S. Bailey, Chapter 10, The Legal Foundations of INTERPOL, Hart Publishing, 2nd edition (forthcoming October 2020).
8 Annual Activity Report of the Commission for the Control of INTERPOL’s Files 2005, Section 7.2.
9 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, para. 51.
10 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, para. 54.
11 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, para. 55.
12 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, para. 54.
13 INTERPOL statement concerning arrest warrant for Agim Ceku, INTERPOL Press Release 28 March 2006. Available at: https://www.interpol.int/en/News-and-Events/News/2006/INTERPOL-statement-concerning-arrest-warrant-for-Agim-Ceku
14 See: Yaron Gottlieb, Article 3 of Interpol’s Constitution: Balancing International Police Cooperation with the Prohibition on Engaging in Political, Military, Religious, or Racial Activities (January 1, 2011). Florida Journal of International Law, Vol. 23, p. 135, 2011, Available at SSRN: https://ssrn.com/abstract=2325891
15 Anyone targeted for sanctions is entitled to the basic rights. Joined Cases C-402 & C-415/05, Kadi & Al Barakaat Int’l Found. v. Council & Commission, 2008 E.C.R. I-6351, 336-337.
16 Barry Kellman, Targeted Killings—Never Not an Act of International Criminal Law Enforcement, 40 B.C. Int’l & Comp. L. Rev. 27 (2017), http://lawdigitalcommons.bc.edu/iclr/vol40/iss1/3
17 Cf Patryk I. Labuda, The Killing of Soleimani, the Use of Force against Iraq and Overlooked Ius Ad Bellum Questions, EJIL Talk 13 January 2020. Available at: https://www.ejiltalk.org/the-killing-of-soleimani-the-use-of-force-against-iraq-and-overlooked-ius-ad-bellum-questions/ ; The Killing of Qassim Suleimani Was Unlawful, Says U.N. Expert, The New York Times, 9 July 2020. Available at: https://www.nytimes.com/2020/07/09/world/middleeast/qassim-suleimani-killing-unlawful.html
18 Interpol Posts Wanted Notice in Hamas Assassination, VOA News 17 February 2010. Available at: https://www.voanews.com/world-news/middle-east-dont-use/interpol-posts-wanted-notice-hamas-assassination
19 Interpol joins international task force investigating Dubai assassination, The Christian Science Monitor 9 March 2010. Available at: https://www.csmonitor.com/World/Middle-East/2010/0309/Interpol-joins-international-task-force-investigating-Dubai-assassination
20 Interpol red notices on 11 Hamas murder suspects, Euronews 18 February 2010, Available at: https://www.euronews.com/2010/02/18/interpol-red-notices-on-11-hamas-murder-suspects