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The Second Circuit rules that Interpol is immune from suit in the United States

Federal

,

United States

Background

In Omari v. The Int'l Criminal Police Org. (2nd Cir. 2022), the International Criminal Police Organization ("Interpol") refused to delete a so-called "red notice" identifying the plaintiff, Oussama El Omari, as a convicted criminal in the United Arab Emirates ("UAE"). The plaintiff brought an action against Interpol alleging negligent infliction of emotional distress and violation of his right to due process of law under the New York State Constitution (at 1). According to the plaintiff’s complaint, he had been wrongfully convicted of a variety of spurious charges before secretive tribunals in the UAE for political reasons (at 4).

The district court granted Interpol's motion to dismiss for lack of subject matter jurisdiction, holding that Interpol is a protected organization under the International Organizations Immunities Act ("IOIA"), 22 U.S.C. §§ 288-288l, and therefore enjoyed the same immunity from suit normally enjoyed by foreign sovereigns (at 1).

On appeal, the plaintiff took the position that Interpol is not a "public international organization" within the meaning of Section 288 and is thus not immune under the IOIA (at 1).

Interpol is Immune from Suit Under the IOIA

Legislation

The United States Court of Appeals for the Second Circuit explained that for the purposes of the IOIA, "international organization" is defined as: (1) a public international organization; (2) in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation; and, (3) which shall have been designated by the President through an appropriate executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in Section 288. The parties agreed that Interpol satisfies the second and third criteria (at 6). However, they disagreed about whether Interpol qualified as a "public international organization" within the meaning of Section 288 (at 7).

Plaintiff’s Position

El Omari argued that Interpol is not "public" because it is not a government actor. Second, he argues that "public" is a term of art within United States tax law, and thus Interpol cannot be "public" because it would not qualify as a tax-exempt public charity under 26 U.S.C. § 501(c)(3) (at 10).

Court’s Decision

The Court rejected these arguments and held that there is no persuasive basis for limiting a "public international organization" under Section 288 to entities that are part of a single government, nor is there a basis for construing the term "public" as incorporating portions of the United States Tax Code. The Tax Code’s definition of tax-exempt organizations has no conceivable relevance to questions of international organization immunity (at 11).

The Court held that the term "public international organization" as used in Section 288 includes, at minimum, any international organization that is composed of governments as its members, regardless of whether it has been formed by international treaty (at 13). Because Interpol’s membership is functionally restricted to governments, acting through their chosen delegates, the Court held that it qualifies as a "public international organization" within the meaning of Section 288 (at 16).

Disposition

The Court held that Interpol is a protected organization under the IOIA and enjoys immunity from suit.

June 15, 2022
Omari v. The Int'l Criminal Police Org. (2nd Cir. 2022)
Author: Carli Kadish