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Red Notices and extraditions: The next steps in the Gupta saga

Red Notices and extraditions: The next steps in the Gupta saga
Rajesh Gupta and Atul Gupta. (Photo: Supplied)

On 3 June 2021, the head of the Investigating Directorate, advocate Hermione Cronje, stated that the National Prosecuting Authority will be approaching Interpol to issue a Red Notice for Gupta brothers Atul and Rajesh, their wives, Chetali and Arti, and business associates.

Extradition is the surrender by one state (the requested or host country) of an individual sought to stand trial or serve a sentence in the requesting state. The surrender takes place after a state request and the finalisation of the internal domestic proceedings in the requested state. But who or what is Interpol? What is a Red Notice? And how do they relate to extradition? 

Over three years ago, we wrote about how South Africa could extradite Ajay Gupta from the United Arab Emirates (UAE), despite South Africa and the UAE not being parties to a bilateral extradition treaty. In September 2018, South Africa and the UAE entered into an extradition treaty (though it is yet to be ratified in the UAE). Even though not strictly necessary for extradition, a bilateral treaty may be an important step in the extradition process.

Among other things, it signals a willingness on the part of both states to cooperate in returning fugitives to stand trial or serve a duly imposed sentence. For a state to enter into a treaty demonstrates that it undertakes legal international obligations to the other state, or states if it is a multilateral treaty. So, for example, when South Africa entered into and ratified the SADC Protocol on Extradition in October 2002 it undertook legal obligations to the 13 other state signatories to the multilateral extradition treaty.

Despite this new bilateral treaty, it appears that no formal moves have been made to extradite the Guptas from Dubai — at least not until the NPA’s announcement that it has approached Interpol. The issuing of an Interpol Red Notice could be an important step in extraditing a fugitive. But it is not necessarily so.

Interpol, the International Criminal Police Organisation, is an intergovernmental organisation. It has 194 member countries, including South Africa and the UAE. Interpol enables member countries to share and access data on crimes and criminals. Interpol also offers a range of technical and operational support.

The international notice system was created in 1946 as Interpol re-established itself after World War 2 in the Parisian suburb of Saint-Cloud. It consists of six colour-coded notices:

Red — to seek the location/arrest of a person wanted by a jurisdiction or an international tribunal with a view to his/her extradition;

Blue — to locate, identify or obtain information on a person of interest in a criminal investigation;

Green — to warn about a person’s criminal activities if that person is considered to be a possible threat to public safety;

Yellow — to locate a missing person or to identify a person unable to identify themselves;

Black — to seek information on unidentified bodies;

Orange — to warn of an event, a person, an object or a process representing an imminent threat and danger to persons or property;

Purple — to provide information on modi operandi, procedures, objects, devices, or hiding places used by criminals.

Also available is an Interpol-United Nations Security Council special notice — to inform Interpol’s members that an individual or an entity is subject to UN sanctions.

A Red Notice is to assist states in locating fugitives for purposes of arrest and extradition. Since fugitives are on the run, often crossing borders, Interpol plays an important role in coordinating the tracking and monitoring of fugitives between numerous states. Interpol does not assist in the arrest of fugitives other than by locating fugitives accused of serious crimes, including corruption.

A Red Notice is an alert to all countries. A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. Interpol assists in this process through border monitoring tools to detect fugitives attempting to cross borders.

If a Red Notice is issued, the country in which the fugitive is located has various duties. The country must notify Interpol of the presence in the state of the fugitive. The country must also take all other measures permitted under its domestic national law and applicable international treaties, such as provisionally arresting the wanted person or monitoring or restricting his or her movement.

A Red Notice, then, is not an extradition request. It is also not an international arrest warrant. Interpol does not cause the actual arrest and/or extradition of fugitives. What Interpol does is assist states in locating wanted persons so that host countries can implement an extradition process.

There are two important implications the Red Notices have for the Guptas and their associates. First, it makes their ability to travel to other countries very difficult, if not impossible. Once they attempt to cross a border, their movements will be flagged by the Interpol Red Notice. All those who have been red-listed face a high risk of arrest were they to travel internationally.

Second, the issuing of a Red Notice is symbolic. The Interpol website lists some 7,659 wanted persons currently subject to red notices worldwide. It is so that a Red Notice only has any practical effect when it is followed up by an arrest and extradition process in the state in which the fugitive is present.

But the Guptas and their associates can only be arrested under the laws of the UAE. And they can only be extradited to South Africa after the finalisation of extradition proceedings in the UAE. On that front, it must be remembered the law in extradition is not determinative of the extradition result.

After the legal extradition process in the UAE begins and is finalised, whether the Guptas will actually be extradited to South Africa is not only governed by the law. The ultimate decision to extradite the Guptas to South Africa to be made by politicians, rather than judges, may be heavily influenced by diplomatic niceties and political considerations between the countries. DM


Comments - Please in order to comment.

  • Ediodaat For Today says:

    Thank you for the clarity.

  • Coen Gous says:

    Reading this article, and the previous one (inclusive of comments by readers) on the Gupta’s arrest and possibly extradition to SA is rather depressing. As I understand it, we know the following:
    1. The Gupta’s/Essa are possibly in the UAE, but we are not sure. They could be anywhere, as even the India Media do not know where they are.
    2. There might now be an extradition agreement between the UAE and SA of some kind, but this is only a piece of paper.
    3. Interpol CAN’T arrest anybody, but because of the “red alert”, they can only SEEK it. But Interpol itself has not even yet reacted to SA’s request.
    4. Because of the investment and businesses the Gupta’s have in the UAE, they won’t easily let them go (even if they are there indeed).
    5. It is highly unlikely that those guilty of participating in State Capture, notably a heck of a lot of ANC members, including the top 6, would want the Gupta’s be extradited, as they can spill beans not yet known, about many who did not participate in the Zondo commission.
    6. The US and Interpol has now power over ALL the countries in the world. Also the Gupta’s might have stacks of money in vaults all over the world.
    7. The Gupta’s appear to hundred’s of siblings, with each potentially have a couple of million (or billion) in cash or at the Bank of Baroda
    8. South Africa can’t even get Bukhiri to be extradited to SA. How the heck then will we be able to do same with the Gupta’s/Essa
    To me and it sound more and more like the thousands of Gestapo, SS, nazi’s that escaped to other countries, notably Argentina, never to be found again.
    Rather depressing, I would venture to say.

  • Bruce Morrison says:

    The main reason the ANC don’t want the Guptas back or anyone else involved in state capture convicted is that all those donations to the ANC would be declared proceeds of crime and potentially have to be paid back. This could be hundreds of millions of Rand.

  • Andy Miles says:

    More political BS. SA should let the end justify the means and send one or two suitably qualified military personnel to assist the Guptas with boarding a flight specially sent to help them come back…. If you get my drift… We’ll never get them here using these political processes

  • Dennis de Necker says:

    Interesting…..but why do they always seem to give Duduzani a miss?
    The only way he acquired any wealth was by hanging out with them (and being an obvious front for Daddy)

  • Johan Buys says:

    if they travel anywhere they are open to (or must) be nabbed in the transit lounges or destination airport before passport control? Is that not how we were compelled to nab the Mozambique crooked minister at ORT?

    • Coen Gous says:

      Johan…Bukhiri simply walked out of our country, no problem. That kind of situation occurs everywhere in the world. And we have no idea how many false passports they’ve got. Even their South African passports/visas were acquired illegal. More inclined to support Andy Miles idea….get a vigilante of note and take care of it. Off course, that’s illegal, but what is legal in any case about the whole affair of stealing us blindly with the help of Zuma, Mathashe, and the whole bunch of previous bosses at state owned enterprises. The easiest way is to target the siblings first, and the real fish will soon enough come out of their hiding places. This pussy-footing by our government is just a bloody joke, maybe because so many of them has also line themselves with brown little bags stuffed with cash, like Gigaba

      • Martin Dreschler says:

        Trouble I see would not be to get some highly qualified military personnel from SA into Dubai in disguise to ‘assist’ the Guptas in getting through check in and security and then boarding a flight back to SA but much rather that UAE will make sure that on check in at Dubai airport security will nab and arrest the by now no longer disguised SA military personnel and even if, in the highly unlikely event that they actually succeed in getting the Guptas on board the Emirates flight into SA the UAE will not grant the Emirates flight to SA with the Guptas on board take off clearance. Once UAE have taken care of the Guptas UAE is quite likely to issue them pronto with some new passports and board them (obviously 1st class) onto an international flight into some other obscure destination which doesn’t look too sharply at Interpol red alerts since it is by now a fact in the public domain that the Guptas are in UAE. They can’t quite keep on hosting them.
        Nice try but unworkable.

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