CASE SUMMARY: El Omari v International Criminal Police Organisation (“INTERPOL”)

Background

On May 24, 2022, the U.S. Court of Appeals, Second Circuit upheld a decision by the District Court for the Eastern District of New York (“District Court”) which found that for the purposes of the International Organization Immunities Act (“IOIA”), INTERPOL qualified as a public international organization (“PIO”) and was therefore entitled to immunity from suit.

The action was brought my Mr. El Omari (“El Omari”), a U.S. citizen, who worked in the United Arab Emirates for a member of one of the country’s ruling families, Sheikh Faisal bin Saqr Al Qassimi. El Omari contended that due to a fraternal dispute between Sheikh Faisal, and his brother Sheikh Saud, El Omari and his colleagues were terminated from their employment, and wrongfully prosecuted on a variety of charges.

Subsequently, on July 31, 2016, El Omari returned to the U.S. where he was temporarily subject to detention by customs officers, pursuant to an INTERPOL Red Notice, requested by the UAE following an in-absentia conviction against El Omari in February 2015 for embezzlement and abuse of position.  El Omari requested INTERPOL remove or modify the Red Notice on the basis that he had been wrongfully convicted for political reasons, but INTERPOL declined and stated that El Omari had not established that the political elements of his case outweighed the ordinary criminal law elements, and had the right to appeal the decision against him in the UAE.

District Court

In response to its refusal to remove or otherwise alter the Red Notice, El Omari brought an action against INTERPOL, in which he argued its conduct constituted a negligent infliction of emotional distress, and a violation of his right to due process of law under the New York State Constitution. In the District Court, INTERPOL successfully sought a motion to dismiss the action for lack of subject matter jurisdiction, per the IOIA, which provided that international organisations were entitled to immunity from suit.

 

Grounds of Appeal

El Omari sought to appeal the District Court’s decision, on three grounds:

• INTERPOL was not a PIO within the meaning of the IOIA, section 288, and therefore not immune;

 

• In any event, provisions under the bilateral agreement between France and INTERPOL (the “Headquarters Agreement”) waived INTERPOL’s immunity; and

 

• The District Court erred in refusing his request for jurisdictional discovery.

Ground 1

In the court’s assessment, the wording of section 288 of the IOIA, which provides that “[i]nternational organizations…enjoy immunity from suit”,[1] and the definition of a PIO as a “coordinated product of states and governments acting to serve their public interest”,[2] meant that INTERPOL constituted a PIO for the purposes of the IOIA. The court supported this position through a review of the legislative history of the IOIA, which it considered to confirm that a PIO included any organisation whose membership was composed of governments. The court added that the first executive order designating INTERPOL as entitled to IOIA protection was followed by a memorandum from the U.S. Department of Justice, Office of Legal Counsel, which also concluded that INTERPOL was a PIO because it was composed of government members.

On this point, the court was not persuaded by El Omari’s arguments that INTERPOL was not a PIO because it was not ‘public’, i.e. a government actor, or for the purposes of tax exemptions under U.S. charity law, and had not been established by international treaty, such as the United Nations (“UN”), as a body considered under U.S. law with immunity: see Jam v. International Finance Corp (“Jam”). However, in the court’s view there was no persuasive basis on which to limit a PIO to entities that were part of a single government, or as being only those which were exempt under the U.S. Tax Code. In addition, the court distinguished Jam on the basis that in that case, the U.S. Supreme Court did not address the proper interpretation of a PIO under the IOIA, nor did it explain what specific characteristics of the listed organisations qualified them for that designation. Therefore, the court held that it would be inappropriate for it to extrapolate a limiting principle for what qualified as ‘public’, based solely on the organisations mentioned in Jam, such as the UN. The court added that the IOIA itself refuted El Omari’s assertion that a public organisation had to be one created by treaty, and explicitly extended protection to otherwise eligible organisations in which the U.S. was a member under the authority of any Act of Congress.

El Omari also argued that membership of INTERPOL formally belonged to a delegated official police body of a participating country, per Article 4 of INTERPOL’s constitution, and could itself be considered a PIO. The court disagreed, and asserted that for the purposes of the IOIA, and the definition of a PIO, it was sufficient that INTERPOL membership was restricted to official government actors whose involvement was controlled by a particular participating nation. In the U.S, the court clarified that Congress explicitly authorised the Attorney General to accept and maintain membership of INTERPOL, and designate departments and agencies to participate in representation with that organisation.

Second Ground

On the second ground, El Omari argued that INTERPOL had waived its immunity by entering into the Headquarters Agreement with the Government of France in 2008, to define INTERPOL’s territory, status, privileges, and immunities in French territory, under which, per Article 24, disputes between France and INTERPOL were to be settled via arbitration. The court emphatically disagreed with this submission, and held that the Headquarters Agreement had no application to the rights, under New York law, of American citizens affected by INTERPOL’s dissemination of information in the U.S. about criminal cases pending in the UAE. Moreover, even if that were the case, which the court considered to be an extraordinary assumption, the provisions in the Headquarters Agreement did not waive any immunity INTERPOL might have from suit in the courts of France, let alone of those in the U.S. The court went on to conclude that where, at most, the Headquarters Agreement only provided a right to arbitration, the rest of the agreement suggested that under the French legal system, INTERPOL was immune to most civil suits. Therefore, the Headquarters Agreement could not be understood as an explicit waiver of immunity.

The court also maintained that the Headquarters Agreement could not be understood as an implicit waiver of immunity. El Omari’s contention that similar standards applied under the U.S. Foreign Sovereign Immunities Act (“FSIA”), and the IOIA was flawed. The court maintained that even if the FSIA and IOIA had similar standards, the HA provided for a forum, and rules of governance, which in the courts view was akin to arbitration agreements in a foreign jurisdictions, which without more, do not generally act as immunity waivers to permit suit in Federal District Courts.

Finally, under this ground, the court noted that in regard to the Headquarters Agreement, the French government promulgated Decree No. 2016-326, expressly accepting INTERPOL’s understanding that the arbitration provision in Article 24 did not apply to disputes regarding the processing of data in INTERPOL’s Information System, such as INTERPOL notices, diffusions or messages. On that basis, the court concluded that the provisions on which El Omari relied for his contention under this second ground, did not permit private parties to force INTERPOL into arbitration, still less into any court, over its handling of Red Notices.

Third Ground

On the final ground, El Omari argued that the District Court erred by denying him leave to conduct jurisdictional discovery prior to dismissal. However, in rejecting this third submission, the court concluded that the information sought by El Omari simply had no bearing on a determination regarding immunity.  INTERPOL’s non-profit status under the laws of France shed no light on whether INTERPOL qualified as a PIO per the IOIA. Rather, the relevant inquiry was whether first, the organisation was effectively composed of government members? second, whether Congress has authorized the United States to participate in the organization? and third, whether the President has chosen to extend protections to the organization through an executive order?

The court ultimately affirmed the finding of the District Court, and there is no indication as of yet that El Omari intends to appeal.

Comment

The court’s judgment, finding INTERPOL to have immunity as an international organisation, was in effect a refusal to accept jurisdiction to hear a case on INTERPOL’s conduct, and the U.S. approach falls in line with other INTERPOL Member States, who maintain the position that targeted persons cannot successfully challenge Red Notices before any national or international courts.[3]

However, despite the apparent international legal consensus, INTERPOL’s immunity is not uncontentious, and El Omari’s case highlights what some NGOs consider to be a lack of effective redress for individuals targeted by INTERPOL,[4] particularly where jurisdictional immunities are justified on the basis  that internal appeals mechanisms are capable of providing effective remedies within applicable human rights standards.  Whilst INTERPOL’s processes for challenging it’s circulation of data, including Red Notices, have improved in recent years, they remain opaque and subject to long delays (a decision on a  deletion request can take up to 12 months) and hardly inspire confidence that its immunity from external review is justified.

In El Omari’s case, there was a striking lack of effective remedies available, which is what led El Omari to bring the matter before a U.S. court. Subsequent to the failed request to modify or remove the Red Notice, El Omari was left with little recourse to appeal INTERPOL’s decision directly, or question the reasoning, that the political elements of his case outweighed the ordinary criminal law elements, set out by INTERPOL. Secondly, given the widespread criticisms of the lack of independence in the UAE judiciary,[5] and that the Red Notice appeared prompted by a dispute with one of the UAE’s ruling families, the prospects of El Omari receiving a fair hearing if extradited seemed unlikely. In light of the El Omari case, and those with similar features – where a State  with questionable adherence to the rule of law and a track record of using its criminal justice system for political ends abuses the privileges of INTERPOL membership – INTERPOL’s immunity appears less like an operational necessity, and more like a convenient escape from accountability.

 

[1] 22 U.S.C. § 288a(b)

[2] At page 9

[3]Abusive use of the Interpol system: the need for more stringent legal safeguards, Committee on Legal Affairs and Human Rights, Rapporteur : Mr Bernd FABRITIUS, Germany, EPP/CD, Origin – Reference to committee: Doc. 13566, Reference 4074 of 3 October 2014. 2017 – Second part-session:  https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23524&lang=en

[4]Is Interpol Vulnerable to Political Abuse?

JANUARY 20, 2015 https://www.opensocietyfoundations.org/voices/interpol-vulnerable-political-abuse; Strengthening respect for human rights, strengthening INTERPOL, Fair Trials International, https://www.fairtrials.org/app/uploads/2022/01/Strengthening-respect-for-human-rights-strengthening-INTERPOL4.pdf

[5]U.N. Issues Damning Reports on Judiciary in U.A.E., Qatar,  https://www.wsj.com/articles/BL-250B-1196