Red Notices and extraditions: The next steps in the Gupta saga
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.
ID: Arrest warrants issued for the Guptas; Interpol requested to execute. Meanwhile, businessman Iqbal Sharma & former Free State senior government officials appeared before court, charged for corruption related to Vrede dairy farm.#DealingWithStateCapture pic.twitter.com/gDKlfCWP7p
— NPASouthAfrica (@NPA_Prosecutes) June 3, 2021
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