Legal framework governing action by Interpol in cases of a political, military, religious or racial character

Background
Framework for interpreting Article 3

Background (background to article 3)

As early as 1946, Interpol defined its action as being limited to preventing and combating ordinary-law crimes. This reflected the Organization's wish to guarantee its neutrality while respecting the sovereignty of States. This legal framework is referred to in Article 2(b) of the Constitution.

Article 3 of the Constitution, which echoes a provision dating from 1948, adds a certain number of restrictions:

"It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character".

However, Interpol was soon prompted to determine a framework for interpreting Article 3 as a result of the development of international law (particularly extradition proceedings, in which politically motivated individuals may now be extradited in certain circumstances) and the increase in terrorist offences:

• Resolution AGN/20/RES/11 (Lisbon, 1951) introduced what is known as the theory of predominance, according to which the Organization does not consider itself bound by whether the requesting country categorizes an offence as an ordinary-law crime, but examines requests on a case-by-case basis to assess whether the political or the ordinary-law element is predominant.
  
  
• Resolution AGN/53/RES/7 (Luxembourg, 1984) made it possible for the Organization to process requests concerning terrorist cases under certain conditions.
  
  
• Resolution AGN/63/RES/9 (Rome, 1994) enabled Interpol to process requests concerning violations of international humanitarian law under certain conditions, hence the Organization's active co-operation with the International Criminal Tribunals for Former Yugoslavia and Rwanda.

Framework for interpreting Article 3

The restriction laid down by Article 3 applies both to the General Secretariat and to Member States. The former must refrain from providing assistance when Article 3 forbids it, while member countries undertake to comply with the Constitution when they join Interpol.

The Organization therefore checks that requests from NCBs (National Central Bureaus), which circulate on Interpol's network and are stored in its databases, comply with the Constitution. This monitoring means that Interpol may refuse to process a request on the basis of Article 3, but States alone have the sovereign right to determine whether an offence is political (in the context of extradition proceedings for instance).

For example, if the Organization agrees to record a request from a Member State in its database, another Member State is nonetheless completely free to consider that the charges are for political offences. If Interpol refuses to record a request which it considers contrary to Article 3, the requesting Member State may forward its request through any channel other than Interpol's.

In addition to the usual, day-to-day monitoring carried out by Interpol, the Organization may also receive requests submitted by individuals or NCBs concerning cases which could potentially violate Article 3. The General Secretariat then carries out the necessary checks and initiates an exchange of views with the NCB which supplied the information in question.

In order to determine whether a request contravenes Article 3 of the Constitution, Interpol makes a distinction between:

• Cases based on offences which are, by nature, political, military, religious or racial, and which are therefore automatically covered by Article 3. This would be the case of a person wanted for violation of the press laws, desertion or practising a religion, and,
  
  
• Requests studied casuistically to determine the predominant nature of the offence(s). The Organization takes into account whether there are links between the aims of the accused and their victims, and bases its analysis on the following three criteria determined by the General Assembly: the place where the action was carried out (area of conflict), the status of the victims, and the seriousness of the offence.

The same criteria are applied to requests sent in by Member States or international criminal tribunals with a view to extraditing those accused of violations of international humanitarian law (subject of the 1994 Resolution). In practice, Article 3 does therefore not prevent those accused of torture from being traced with a view to their arrest and extradition, regardless of whether the offences were committed in a political context or whether the perpetrator is a public official or a person holding public office. However, it would appear that forced enlistment of prisoners or civilians in enemy armed forces could be considered as a military offence.

As far as requests concerning international terrorism are concerned, Interpol makes a distinction between requests for the purposes of prevention and those for the purposes of prosecution:

• Requests aimed at prosecuting terrorists are processed in strict conformity with the above rules, particularly in terms of applying the predominance theory. In practice, Article 3 does therefore not prevent those accused of serious, violent terrorist offences (such as serious attacks against human life or physical safety, hostage-taking and kidnapping, serious attacks against property (bomb attacks, etc.), unlawful acts against civil aviation (hijacking of aircraft)) from being located with a view to their arrest and extradition.
  
  
• As far as preventing terrorism is concerned, Interpol does not apply the theory of predominance. However, the decision to circulate the information must be based on intelligence indicating that the individual might be involved in the perpetration of a terrorist offence, rather than simply on his membership of a political movement for instance.