Compliance officers and money-laundering reporting officers (MLROs) often have to screen their financial institutions' customers and prospective customers for people on various blacklists. They also have to ensure that they are not the subject of Interpol's famous 'red notices.'

“His eye, red as 'twould burn Rome; and his injury, the gaoler to his pity.” Shakespeare mentions the colour red throughout his works. As is the case in Coriolanus, red is often used to signify danger or destruction – in general, it constitutes a warning that something ominous is on the horizon. It is perhaps apt, then, that Interpol’s biggest international weapon - the Interpol Red Notice - is painted with the same brush.

Interpol - not a law enforcement agency?

Interpol is an international organisation that facilitates co-operation between, and provides investigative support, expertise and training to, national law-enforcement agencies in each of its 194 member-states. One of its key functions is to issue various coloured ‘notices’ at the request of its member-states. These serve various purposes – a yellow notice, for instance, helps locate missing persons, and a black notice seeks information on unidentified bodies – but by far the most well-known, and the one that has the greatest effect on compliance officers, is the famous red notice.

In recent times, these tools have attracted a barrage of media coverage, with details of the latest target of the notice’s powers being splashed across the headlines. Now it appears that we will soon be treated to a new Netflix original film – a high-speed international caper starring Ryan Reynolds, Gal Gadot and (of course, like any good action thriller) Dwayne ‘The Rock’ Johnson – fittingly entitled Red Notice. Hollywood has obviously not heard that these powers do not usually lead to the high-octane hunt for ‘bad guys’ that the press often portrays. Contrary to popular belief, Interpol is not a law enforcement agency itself and it does not have ‘agents’ (The Rock or otherwise) who travel the world chasing down terrorists and investigating organised crime.

However, it must be said that there can be dramatic consequences for anyone who finds himself on the receiving end of an Interpol red notice. These consequences are worse still if the notice in question has been used incorrectly and should not have been attached to its target in the first place. What then? The process of removal is far from simple. Not only can it be seriously bad for personal liberty; it can also result in plenty of economic fallout.

Red flags

A red notice calls for the location and arrest of someone whom a government wants to prosecute (to stand trial having been accused of a criminal offence) or to serve a sentence (having already been convicted of an offence, often in his absence). It is not in itself an ‘arrest warrant,’ though it is sometimes treated as such by Interpol’s member-states, and its issuance usually indicates the existence of a domestic arrest warrant in the requesting state. If a person who is suspected or has been convicted of a criminal offence in one of Interpol’s member-states is not in that state and his whereabouts is unknown, the state can ask Interpol to issue a red notice that alerts every other member-state to the fact that he is wanted for extradition. Each member-state will usually add that person to its own database of wanted persons. If someone finds the individual, the locating state will inform the requesting state and the requesting state can then make a direct request for his extradition.

Red notices can either be public (many are posted on a searchable database on Interpol’s website) or private (accessible only to law-enforcement agencies). Their practical effect is that if a targeted person travels internationally, officials are very likely to discover that he is the subject of the red notice and therefore 'wanted.' They will then generally detain him and await a request for extradition. If anyone knows that he is the subject of a red notice, he would be ill-advised to travel internationally and he is likely to feel compelled to avoid crossing borders in the absence of any specific grant of safe passage.

Red herrings

Theoretically, there are several safeguards against the misuse of the red notice system. At a basic level, Interpol’s constitution requires it to comply with the Universal Declaration of Human Rights and provides that it is “strictly forbidden” for it “to undertake any intervention or activities of a political, military, religious or racial character.” People have interpreted this to mean that Interpol is banned from issuing red notices in respect of political crimes or in cases where prosecutors are pursuing somebody for political reasons (for example, when a new regime wants to prosecute members of the old regime).

On a specific level, Interpol’s own rules stipulate that a red notice may only be issued in respect of a “serious ordinary-law crime” (there are penalty thresholds designed to exclude minor offences) and prohibit the issuance of red notices for a range of offences including administrative violations and offences that derive from private disputes. Its rules also note that a request for a red notice may only be granted if it “is of interest for the purposes of international police co-operation,” i.e. if it has been issued for the genuine purpose of seeking extradition and not, for instance, in an effort to ‘punish’ a requested person by making it difficult for him to travel internationally.

Additionally, there is an institutional safeguard against breaches of Interpol’s regulations in the form of the Commission for the Control of Interpol’s Files (CCF), which is a nominally independent body whose job is to examine disputed cases (normally on a request being received from a requested person that information about them be deleted from Interpol’s databases) and to recommend the deletion of any red notice or other information which is in violation of the constitution or rules.

‘Red’emption

In practice, however, people who deal with Interpol regularly have discovered that these theoretical safeguards are often far from sufficient to guard against abuses, which are in fact frequent. For example, despite the clarity in Interpol’s constitution, red notices are often sought (and issued) in respect of persons who are wanted for political reasons and who can have no hope of a fair trial in the requesting state. They are also frequently sought in respect of alleged criminal offences which would be considered private civil disputes in the vast majority of countries (arising, for example, from unpaid debts and disputes over the ownership of assets).

Red notices issued by the Russian Federation are notoriously delinquent. The Russian authorities have sought numerous red notices in respect of the victims of ‘corporate raiding.’ In Russian, this is known as reiderstvo – the illicit attempt to acquire ownership of or a stake in a company through threats and intimidation, often involving corrupt law-enforcement officials and the deployment of fabricated criminal allegations against the current owners and/or corporate leadership and people associated with them. Compliance officers should be aware that Interpol can unfortunately be manipulated as part of these intimidation tactics, for example when a country makes a request in respect of a person whose location is known and yet whose extradition has never been sought, with the sole aim of making his life more difficult.

There are various factors at play that allow such abuses to flourish. Interpol is an organisation of members and it often takes decisions at the highest levels for political reasons. Its largest contributors in terms of money tend to be its most powerful members and many have spheres of influence which allow them to act with impunity. Interpol is also there to help law enforcers and it appears to operate on the assumption that national law-enforcement agencies always act in good faith, even when it is presented with copious evidence to the contrary.

Unfortunately, the CCF, though certainly improved over recent years, is still not the strong force for good that it needs to be if it is to redress the balance in favour of fairness and compliance with the rules. It is underfunded and understaffed, only meeting infrequently and for short periods.

Compliance officers must also be alive to the fact that it generally takes overwhelming evidence to persuade the CCF that a state has issued a red notice improperly. Interpol often takes the requesting state's assertion that everything is above board at face value. It can often take many months, and sometimes over a year, to uphold complaints against improper red notices. In the worst instances, even a determination that a red notice is improper can merely result in a renewed request.

Reasons to be cheerful

However, it is not all doom and gloom. There are ways of working one's way through the minefield when one asks to be deleted from the list and a combination of compelling factual submissions, convincing supporting evidence (including expert reports if possible) and precisely targeted reliance on Interpol’s rules can often result in favourable rulings, despite all these difficulties.

It should therefore be noted that Interpol and the CCF do not always get it wrong. The renowned financier and human rights activist Bill Browder, who has campaigned successfully for the institution of sanctions against people who abuse human rights ever since some Russians murdered his lawyer and friend Sergei Magnitsky in 2009, has been the repeated target of Russian attempts to deploy Interpol’s tools against him improperly. Interpol, however, has persistently and publicly condemned these attempts and published its findings in Browder’s favour. Yet Interpol must become better at dealing with the less well-publicised cases in which governments abuse its facilities. When the spotlight is not shining on them, things can slip into the shadows.

Until things improve, every compliance officer ought to be cautious when confronted by a red notice, especially one issued by a state with a history of not respecting human rights or the rule of law. He must not assume that the existence of a red notice bespeaks a valid suspicion of criminality. Abuses and manipulation can be rife if politics and money get in the way. As Kent warns in King Lear, “duty shall have dread to speak when power to flattery bows.”

We eagerly await some root-and-branch reform and the advent of a more trustworthy system. While we wait, we could do worse than to watch Netflix’s latest theatrical endeavour during lockdown number two. It might be inaccurate, but it is bound to be entertaining.

* Peter Fitzgerald can be reached on +44 (0)20 7822 7785