Introduction
Transnational criminal justice (TCJ) requires essential cooperation of police at an international level to put criminals in chain or likely brought them to justice, involving International Police Cooperation (‘IPC)’. It is believed that transnational cooperation in respect of INTERPOL, Europol, Ameripol, United Nations Office on Drugs and Crime, and ASEEANPOL. This connection between the agencies have also been recognised and supported by countries. It can be witnessed in respect of various crimes such as extradition, cybercrime, money laundering, human trafficking, terrorism, drugs, and smuggling.
Developments over past two decades
Improvements and developments in IPC have lagged behind transnational organized crime, the same way law tends to follow technological developments (for instance, there is no comprehensive, practical and evolved AI regulation system present in the UK and US, indicating lag approach of law to catch up on economic and technological developments). States have for long been cognizant of the threats posed by transnational organized crime networks. It can involve a variety of factors, such as high migrant rates, drugs, money laundering havens, terrorism, poverty, socio-economic inequality, and so on. Past two centuries have seen immense transnationalisation and globalization in every aspect of society, economy, politics, and law. IPC has been no exception. It has been development of institutions of international character, whether operating globally or regionally, and have extended to intelligence networks and sharing, drug enforcement, maritime patrols, prevention of IP rights (under TRIPS), and so on.
IPC began with international policy making through global institutions such as United Nations, regional institutions, bilateral and multilateral efforts, and so on. The UN Security Council, G7, and INTERPOL have played critical part in evolving transnational policing framework to counter the global organized crime to which 80% of world’s population is exposed to directly or indirectly. There are substantive, procedural, and institutional mechanisms that have been evolved to counter threat of various forms of crime, such as financing of terrorism, under the International Convention for the Suppression of the Financing of Terrorism (UN CFT Convention 1999), the Palermo Convention (UN Convention against Transnational Organized Crime (UNTOC 2000), and so on. The Palermo Convention developed the international law on broad range of mutual legal assistance (MLA) framework that is critical to the efficacy of IPC.
Role of international agencies in transnational crimes
INTERPOL has been found out to be the top most international agency in facilitating international police cooperation. It has around 194 members and has an outstanding global reach with also a power to ban a state from using her information system. According to Giulio Calcara, Articles 17(5) and Article 131 of the INTERPOL Rules on the Processing of Data (RPD) allow her to ban a state. However, in practice it has not out any ban and it is because of protection of fundamental human rights.
Historically, IPC was started from formal bilateral agreements in respect of the Treaty of Paris of 1801. This treaty allowed Napoleon I of France and Alexander I of Russia to tackle political dissidents in their countries. further traces of the IPC could be illustrated from Clemens von Mettenernich wherein the cooperation was formed among police forces. Further intensity created in 1848 with a view to track down political dissidents in Europe. After several crucial years of police cooperation, a new arose in respect of the International Police Congress (ICPC). Yet, the main force per IPC was created after the end of World War II in the wake of INTERPOL.
Further, it issues red notices of wanted persons which help authorities in tacking such criminals. Moreover, criminal records, data of stolen assets, and missing persons cross borders can also be tracked down by INTERPOL. In respect of cooperation, INTERPOL help domestic police and agencies in carrying out operations for example Operation Pangea which led to identification and dismantling criminal networks in respect of online sale of counterfeit pharmaceuticals. This operation has brought forth together around 90 countries to help intelligence sharing, support for operation such as analysis of data and issuing of alerts. Similarly, domestic police with cooperation in respect of leads have to track down nexus with regard to online sales of drug. A success of the operation has been noted in a significant manner such as in 2023 around 58 million worth of counterfeit medicines as well as devices. This also facilitated in respect of fake covid-19 vaccines and antibiotics.
On the other hand, European Union Agency for Law Enforcement Cooperation (Europol) is created which has a mandate from EU countries to tackle serious crimes such as terrorism. The function of it is to secure information and share through different platforms such as Secure Information Exchange Network Application (SIENA).
IPC and tackling criminals by transnational agencies
It has been noticed on various fronts the important role of INTERPOL such as operation infra red of 2010 which with the help of agencies helped in locating as well as arresting of around 178 fugitives at a global level. As argued before operation pangea is a case in point which allow regular tracking of online pharmaceutical crimes. In this regard, notable cases include Carlos the Jcakal who was a notorious terrorist and was arrested through essential coordination. Further facilitation can be witnessed through a case of Rja Ignatova of 2022 who faced red notice from INTERPOL which led to global awareness about wanted person. This also later helped in apprehending the fugitive.
The cooperation of INTERPOL is noted in more than fifteen types of crimes. The INTERPOL’s Constitution (the Constitution) also provides for the IPC. Article 2 and Article 3 of the Constitution can be read in this regard. They provide:
“a) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the “Universal Declaration of Human Rights”;
It provides that INTERPOL is all encompassing in enhancing the standards of IPC in all over the world with regard to various crimes. Further support is given by Article 3 as:
“It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character”.
In essence, the role of the INTERPOL is emphatic in respect of investigations, tracking down criminals from all levels, and providing effective cooperation which is equally promulgated by its constitution. However, challenges
The role of Europol is also considered satisfactory with regard to IPC. It has allowed joint investigation of fugitives as well as high profiled criminals. Similarly, it has facilitated in creation of joint investigation teams such as JITs in the wake of EncroChat of 2020 that allowed interception of communications among leading criminals which later led to arrests of around 746 people with regard to terrorist activities. Similarly, the role of Europol is considered effective in respect of counter terrorism operations. The example of Paris Attacks of 2015 can be quoted and referred wherein the Europol based European Counter terrorism Centre provided aid in tracking down perpetrators.
Problems with regard to international cooperation
It has been noticed that INTERPOL is misused in a variety of cases especially in tracking of political dissidents. It is also criticised for its role in exploiting media i.e. non-aligned members beyond border. In a seminal case of Khadzhiev v Bulgaria in which the European Court of Human Rights (ECtHR) noticed that INTERPOL had misused its power with regard to the government of Bulgaria. It is argued that INTERPOL is under influence from non-democratic countries which make them less transnational and more of an agency expanding its reach to domestic jurisdictions.
EUROPOL tends to cooperate with domestic police of EU countries. This has been seen very much in respect of European Counter terrorism centre. Similarly, there is cooperation in respect of cybercrime in the wake of European Cybercrime Centre. In this regard, the example of operation Troika 2020 is a case in point which helped in arresting of several perpetrators who were involved in human trafficking. Similarly, this operation by the EUROPOL with cooperation of local police had helped in rescuing victims. Similarly, there is European Arrest Warrant (EAW) which help in tracing accused throughout Europe as it is notified by the EUROPOL.
The challenges in respect of effective cooperation of police at an international level is also because of political interference, limited funds with developing nations, lack of power of enforcement and problems of essential cooperation. Similarly, red notices are misused by member states especially in relation to targeting of political opponents as also noticed by Giulio CALCARA. This misuse was also seen in respect of Bill Browder i.e. Hermitage Capital which was meant to track down political opponents.
The support to international policing is also given by UNODC especially in countering drug trafficking, and organised crime like money laundering. The UNODC gives technical help and support with equally forcing countries to harmonise laws in light of the United Nations Convention Against Transnational Organised Crime (UNTOC). Similarly, it enables cooperation in respect joint investigations, and legal assistance. There are prominent cases such as the arrest of Carlos Ghosen in 2018 who was arrested for financial misconduct and fraudulent activities. In his arrest, the INTERPOL issued a red notice when he escaped to Lebanon. This helped in tracing him although there was no extradition treaty to deport to the desired country, yet international policing helped in apprehending criminal.
Another important case of police collaboration is of Trojan shield 2021. The said operation was mainly led by the Federal Bureau of investigation (FBI) however, Europol also collaborated with FBI including other agencies with regard to arrest of around 800 criminals for organised crimes per drug trafficking and money laundering. This cooperation had helped in use of encrypted messaging app that led dismantling of crimes of organised nature at an international level. Another impact can also be seen with regard to capturing of Jaoquin El Chapo Guzman 2016 who was Mexican drug lord. Similarly, the Mexican authorities in collaboration with US policing office such as DEA and also INTERPOL to combat drug trafficking.
Instrument of Tracking and arrest
The effective channel of policing is important preventing crimes. This can also be understood in respect of the arrest of Felicien Kabuga 2020 who was accused Genocide and crimes against humanity against people of Rwanda. In the arrest of Felicien Kabuga , there was collboration seen with regard to INTERPOL, French Police, and the international residual mechanism for criminal tribunals (IRMCT). After tremenduous collaboration of the international agencies, he was got arrested in Paris. His arrest was after 26 years of his run. In this regard, INTERPOL gave critical intelligence to French police and other agencies.
The operation rescue of 2011 in relation to child pornography and child exploitation is important to note. In this operation there was a cooperation of INTERPOL, EUROPOL, and local police of the USA, UK, and Australia. In operation, the EUROPOL actually revealed and captured the hidden online operation of pedophile through their encrypted networks. Similarly, the investigation was led by all the agences which later resulted in the arrests of 184 criminals. Similarly, it also led to the rescue of 230 children at a global level. If there was no cooperation between them, then the said investigation was not successful. With effective transnational cooperation, the arrest of renowned terrorist Abu Bakr Al Baghdadi was arrested and charged for serious crimes. He was convicted for war crimes and terrorism. This was the result of cooperation of INTERPOL which provided location of his. Essentially, international cooperation among police have allowed effective investigations leading to arrests of high profile criminals. Equally, such investigations are also backed up by the UNSC which adopt resolutions such as UNSC resolution of 2178 against terrorism. However, there are myriad challenges in respect of transnational policing cooperation. This ranges from jurisdictional issues to cybercrime and data challenges.
Development of Interpol
The hallmark institution of IPC is Interpol that operates on day to day basis to enforce international criminal law, and aid enforcement of domestic criminal legal system in an efficient, cooperative, and robust manner. Critically, it is highly relevant transnational institution for bringing criminals to justice through tracking, interdicting, investigating, and arresting criminals across jurisdictions. Initially in 20th century, IPC involved bringing political dissidents to account. However, the past informs the present as well. Its genesis was not in international treaty system, or multilateral agreement by states. Rather it was created by police officers operating domestically. Its organizational design is a piecemeal and complex patchwork that creates problems of harmonization, independent, and efficacy even in modern times. Nonetheless, INTERPOL Constitution provides rich legal and procedural provisions that are interpreted on daily basis such as impediments of Article 3 wherein it is stated, called the theory of predominance, that “[N]o 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.”
Overall, the developments over the decades have led Calcara to conclude:
“While the legal framework of INTERPOL has guaranteed a certain degree of functionality for the organisation throughout the years, it is undoubtedly true that such legal provisions have also given rise to significant legal issues, including a significant erosion in the sovereignty of states in matters of policing. More than that, the construction of the legal framework of INTERPOL is a true testament of the struggle of the organisation in balancing between functionality and legality.”
Reforming the institutions, laws, enforcement, and coordination of IPC
The rise of global terrorism has brought to limelight need for international cooperation, generally, and for combating domestic criminal activities having international dimension that is used to finance terrorism. Beyond terrorism, international criminal activities have made IPC critical in bringing criminals to justice. These criminals, especially those operating cross-border, are becoming elusive to be held accountable within a single jurisdiction, due to globalization and further decentralization of technological networks, organized crime, and free flows of financial and commercial transactions, as well as modern international traffic and trade. The organized crime network, much like multinational enterprises that are not regulated efficiently by a single legal system (especially using corporate group structure), uses modern networks, professional white collar enablers and participants in crimes, technology, globalized financial networks for remittances, and other leverages to evade interdiction, investigation, tracing, policing, prosecution, and court system. IPC needs to take the leaf out of the transnational approach to anti-money laundering (AML) – which has seen IMF take charge of spearheading FATF measures, international Financial Intelligence Units (FIU) established in each jurisdiction, and other global cooperative measures and institutions.
Delinking with authoritarian regime
A criticism of Interpol is that it can be weaponized as tool of authoritarianism. This is in relation to the misuse of red notices by states. Authoritarian states that have used IPC in early 20th century to track and arrest political dissidents are continuing this trend. Meacham notes that “[w]ith the stated goal of speeding up information dissemination, Interpol’s governing authorities in 2009 implemented the I-Link program, which allowed countries to publish Red Notices instantaneously without human review of the basis for the warrant. I-Link’s enactment led to an explosion in the number of annual Red Notices” and as per “a study of the rate of Red Notice rejection, a proxy for non-compliant notices—a comparatively larger increase in the number of improper, politically-motivated Red Notices. The 5 percent of Red Notices rejected annually adds up to hundreds of dubious warrants issued each year.”
Multimethod research approach
Conducting legal research on IPC issues using multimethods, Calcara concludes that “[i]n this chaotic time, riddled with heinous forms of transnational and international crime, it is paramount for police forces and services to interact on a global level in a consistent way. The way of conducting cooperation is changing constantly, and it shapes and is at the same time shaped by the international community.” IPC remains ignored area for extensive research from multiple perspectives. There is lack of global harmonization of laws and procedures as in IPC “[e]merging evidence seems to suggest that cooperation with police is strongly context dependent. It is often difficult to tease apart the effects of trust, defined as belief in the legitimacy and reliability of police, from situational conditions that drive cooperation.”
Further, international crime has various dimensions linking geopolitics, economic interests, interstate disputes, rise of non-state actors engaged in armed and non-armed conflicts, illicit activities, and so as DeSombre has shown, in context of ‘blue crime’ or maritime criminal activies, “how illegal fishing activities interact with inter-state disputes and geopolitical competition in the South China Sea region. Similarly, and while we exclude maritime terrorism from our classification above, strong evidence suggests that some such groups may engage in blue crime in order to finance their activities.”
Reforming Red Notice system
For transnationalisation of policing, a key hurdle has been Interpol mimicking authorisatianist actions in democratic context violating individual rights and freedoms of politically important persons by non-democratic regimes. In this regards, San makes following comprehensive organizational reforms that can address the formative problems and deficiencies that Interpol inherited, addressing states to ensure: “an aspired depoliticization of international policing that facilitates cooperation among states with different national and ideological outlooks; 2) an occupational culture that encourages professional support and solidarity among policing agents that transcends national rivalries; and 3) state cooperation against threats posed by the planning and conduct of international crime.”
The problem with such proposals is that it requires active consent, cooperation, and willingness of states. Lack of resources, capacity-building, institutional development of a state can prevent a state, even if motivated, to ensure effective cooperation of policing institutions. A focus should be on direct capacity-building, network development, decentralization of Interpol that responds to technologically advanced approach of organized crime.
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