The Commission for the Control of Interpol’s Files (CCF), which is responsible for insuring that Interpol complies with its own rules, has published its annual report on its activities in 2017. Though any report is better than none, the report disappointingly fails to provide full transparency on the CCF’s activities by not identifying the nations that are actually responsible for requesting Red Notices that are later deleted for not complying with Interpol’s rules. That said, the report does make it clear that Interpol’s system has a fundamental flaw that allows nations to repeatedly abuse the rules .

As veteran Interpol attorney Yuriy Nemets points out, the problem is that, even after Interpol rejects an attempt to publish an abusive Red Notice on an individual, the nation that requested that Red Notice is apparently free to transmit a diffusion (which is basically just a structured kind of email) on the same person, or to harass them by putting their passport on the database of stolen and lost travel documents, or by requesting a different kind of notice (such as a Blue Notice) naming that individual. I agree with all of this. So, apparently, does the CCF, which states that it “processed requests which highlighted the use of the SLTD [(Stolen and Lost Travel Documents)] database where a diffusion or a notice to arrest a person was considered not to comply with INTERPOL’s rules.”

It is natural to speculate which nation — or nations — might be responsible for these illegitimate uses of the SLTD database. While there is no hard evidence, Turkey’s abusive Red Notice requests and diffusions are well-known, and experts on Turkey’s “global purge” have identified passport cancellations as one of the Erdogan regime’s key weapons. It is also suggestive that the CCF report identifies Turkey as one of the nations that produce the most cases — though not necessarily, as it is careful to note, the most abuses. So, while we cannot prove anything, it seems likely that Turkey was responsible for at least a portion of this ‘multi-factor’ abuse.

The question is what to do about it. Here I part company slightly from Mr. Nemets, who argues that “the loophole should be easy to fix by simply implementing a reliable computer software” that would not allow a country to transmit a diffusion on an individual or to put that individual’s passport in the SLTD database if Interpol had already rejected or a Red Notice on that individual as abusive. Undoubtedly, improved software would be helpful in cases such as the SLTD database, where Interpol is responsible for maintaining the database and therefore can prevent abusive information from being put into it.

Unfortunately, this is not true of diffusions. Diffusions are just emails sent from one nation to one or more other nations: Interpol’s headquarters receives the diffusion at the same time as the other recipients. Stopping abusive diffusions would require changing the nature of the diffusion system so that the diffusion is sent first to Interpol for computerized screening, and only then allowed to proceed to its destination. That would require both changing the diffusion system at a technical level and making appropriate changes in Interpol’s Rules on the Processing of Data. And that, in turn would require a good deal of time and a vote in favor of the changes in Interpol’s one-nation, one-vote General Assembly — where it is far from clear that the nations wanting reform would be in the majority.

I therefore fear that the problem of multi-factor abuse through Interpol is fundamentally extremely difficult to solve, as it cannot be solved without a major reworking of the diffusion system. I have called for this for years, and have recently been joined in my calls for reform by Fair Trials International, but progress has been slow at best, and non-existent at worst. My own belief is that, as Mr. Nemets suggests, the only remedy is for Interpol to establish some deterrent power by suspending a few persistently abusive nations from access to its systems, and thereby setting an example that might scare of other abusers. This is a big ask, but to my mind it is not as big as trying to round up the votes in the General Assembly for reforms that would fundamentally limit the ability of the autocratic near-majority of nations in Interpol to abuse the system.

The CCF’s report contains a number of other interesting points to which Mr. Nemets rightly draws attention. But one important statement has not been subject to comment. Paragraph 50 of the CCF report reads as follows:

Article 2: The number of files involving an assessment of compliance with Article 2 of INTERPOL’s Constitution continued to increase in 2017. Indeed, the functioning of the police and judicial systems of Member States involves complex questions making it challenging to distinguish between specific issues concerning the respect of the applicant’s rights and the systemic malfunctions and violations of individual rights in a country, especially when an NCB as the data source refuses to disclose information to the applicant.

Article 2 of Interpol’s Constitution requires it to operate “in the spirit of the Universal Declaration of Human Rights.” If you ask what that means, the answer, fundamentally, that no one knows. While Interpol’s Article 3, requiring it to avoid political, racial, religious, and military matters has been the subject of a good deal of comment and definition over the years, Article 2 is almost a blank slate. Fair Trials International has called for Interpol to publish a guide to how it interprets and applies Article 2, and Interpol has been committed to producing one since 2014, but in the absence of such a guide, we can say very little about what Article 2 means in practice.

The CCF’s comment raises a fundamental point. Stripping away the niceties, what the CCF is saying is that while some cases are about individual abuses, other cases raise concerns about “systemic malfunctions and violations” in a nation. In other words, while errors happen in lots of nations, some nations are rotten to the core. This is, to the best of my recollection, the first time that any Interpol body has formally acknowledged Interpol’s fundamental flaw, which is that too many of its member nations are autocracies or dictatorships. Expecting them to comply with Interpol’s rules — which, at the most basic level, require acknowledging and respecting the difference between political crime and ordinary crime — is foolish. But that is indeed what Interpol expects.

The CCF just barely hints at an answer: stop trying to figure out if an individual’s rights have been abused if the nation in question is systematically abusive. By definition, systemic abuse is pervasive. The Interpol mantra has long been that — as in any genuine courtroom — all cases must be considered on their individual merits. But Interpol is not a courtroom. Nor is it is judicial or an investigative body. Its most fundamental responsibility is to follow its own rules. If the only way to do this is to simply declare that some nations are so abusive that it is impossible both to work with them and assure compliance with its rules, then that is what is must do.

A good starting point for making this blanket decision might be, as the CCF implies, to simply rule in favor of any applicant if the nation in question refuses to disclose enough information to allow a proper appeal. The impact of recent changes to how to the CCF operates has been widely debated, with Mr. Nemets arguing that these changes have rolled back individual access to information and Fair Trials International arguing that these changes are in fact helpful reforms. On the evidence of the CCF’s report, which includes the nine months of 2017 during which the changes were effective, it appears that NCBs are at least as bad about disclosing information as they were before the changes. It therefore seems that Mr. Nemets has the better argument: whatever they were intended to do, the supposed reforms have not helped, and they may well have hurt.

But, again, that just raises the same old problem: changing how the CCF deals with nations that refuse to provide evidence to applicants would require changing the rules under which the CCF operates, and that would require a vote in the General Assembly. No matter how you turn, you come back to the same fundamental problem. The problem with Interpol is not its rules. It is Interpol’s membership.