Oussama El Omari v. The International Criminal Police Organization, 35 F.4th 83 (2nd Cir. 2022)– Interpol Immunity from Civil Suits in the United States

The 2nd Circuit Court of Appeals has held that Interpol is not responsible for civil
damages arising from the alleged wrongful issuance of a “Red Notice.” This is an
important (and interesting!) case for people who have found themselves on the
receiving end of a Red Notice and who have not had success in having Interpol remove
the Notice. This plaintiff attempted to sue Interpol in the Eastern District of New York
but the district court granted Interpol’s motion to dismiss for lack of subject matter
jurisdiction. El Omari then appealed to the 2nd Circuit Court of Appeals.

The Plaintiff, El Omari is a US citizen living in North Carolina. He used to work for a
powerful family in the United Arab Emirates (UAE). The head of the family had a falling
out with El Omari’s brother and because of that, he and his brother were terminated and
wrongfully prosecuted on trumped-up charges in the UAE before “secretive tribunals.”
When he returned to the US, he was temporarily detained by U.S. Customs officers and
informed that he was wanted in the UAE. He later learned that Interpol had issued a
“red notice” for him at the request of the UAE following his February 8, 2015 conviction
in absentia for embezzlement and abuse of position by the Criminal Court of Ras Al
Khaimah. El Omari asked Interpol to remove or modify the red notice, arguing that he
had been wrongfully convicted for political reasons. Interpol declined to modify the red
notice, concluding that he had not established that the political elements of his case
outweighed the ordinary criminal law elements, and that he had the right to appeal the
decision against him in the UAE with the assistance of counsel.

El Omari responded by filing a lawsuit against Interpol, and alleged that its refusal to
remove or otherwise alter the red notice constituted negligent infliction of emotional
distress and violated his due process rights under the New York State Constitution. The
district court dismissed the case for lack of subject matter jurisdiction concluding that
Interpol was immune from suit under the International Organization Immunities Act
(IOIA), and had not waived that immunity.

The issues on appeal the Court addressed are:

1. Whether Interpol qualifies as a “public international organization” within the
meaning of the statute, making it immune from lawsuit.
2. Whether Interpol waived its immunity by way of “the Headquarters Agreement”
with France?
3. Whether the district court abused its discretion by denying El Omari’s request for
jurisdictional discovery?

The Court held:

1. The term “public international organizations” as used in 22 U.S.C. § 288 includes any
international organization that is composed of governments as its members, regardless
of whether it has been formed by international treaty.
2. Interpol qualifies as a “public international organization” for the purposes of 22 U.S.C.
§ 288 because its members are official government actors whose involvement is subject
to control by participating nations.
3. The Headquarters Agreement between Interpol and the Government of France does
not constitute an immunity waiver that would permit the present suit in a United States
district court.
4. The district court did not abuse its discretion by denying El Omari’s request for
jurisdictional discovery prior to dismissal.

In reaching its decision, the Court looked at the dictionary definition of “public” and
“international” and found those definitions suggest that a “public international
organization” must be “a coordinated product of states and governments acting to serve
their public interest.” The Court reasoned that Interpol meets the straightforward
dictionary definition of a public international organization, and the legislative history of
the IOIA supports that definition as well.

El Omari argued Interpol is not “public” because it is not a government actor. Second,
he argued that “public” is a term of art within United States tax law, and Interpol cannot
be “public” because it would not qualify as tax exempt public charity under 26 U.S.C. §
501(c)(3), because it accepts donations though its affiliate, the Interpol Foundation,
rather than receiving donations directly. Finally, he argued to the Court that from those
examples the IOIA protections may be extended only to organizations formed by
international treaty. The Court rejected these arguments.

The Court concluded Interpol was immune from civil liability. This immunity can be
waived however, and El Omari argued the agreement between France and Interpol
waived its immunity. The Court held the Headquarters Agreement—which sets out the
“status, privileges and immunities afforded” to Interpol on the territory of the French
Republic– did not function as an implicit immunity waiver because the Headquarters
Agreement specifies a particular forum for the arbitration, and a specialized set of rules
to govern the arbitration that differ from general American law. The Headquarters
Agreement is more akin to the sorts of agreements to arbitrate in foreign countries that,
without more, do not generally act as immunity waivers to permit suit in federal district
court. Therefore, the Court held, Interpol did not waive immunity from civil suits.

Finally, El Omari argued the district court erred by denying him leave to conduct
jurisdictional discovery prior to dismissal. The Court held the information sought by El
Omari had no bearing on the immunity issue so it was not an abuse of discretion for the
district court to deny the request for jurisdictional discovery.

I think an important takeaway here is that a person who is subject to a Red Notice
needs to take special care in handling requests to have the Notice removed because, at
least in the United States, there is not going to be any additional legal recourse for that
person.