Keith Mack
International law is a complex area, and the process of arrest and detention can vary depending on the specific circumstances and the countries involved. Generally, a person can be arrested under international law if they are suspected of committing a crime that falls under the jurisdiction of an international tribunal or court, such as war crimes or crimes against humanity. In such cases, the arrest would typically be carried out by law enforcement authorities in the country where the person is located, in collaboration with international organisations like Interpol. Interpol, for example, issues Red Notices which are requests to member countries to locate and arrest individuals wanted for serious crimes, with a view to extradition. It's important to note that Interpol itself cannot issue arrest warrants or make arrests, but it facilitates cooperation among national law enforcement agencies. When it comes to arrests in international waters, certain universal international laws apply, and any nation can board a vessel suspected of illegal activities. Additionally, individuals arrested abroad are subject to the criminal justice system of the country where they are arrested and imprisoned, and their consular services officers can provide assistance and help them navigate the local legal system.
| Characteristics | Values |
|---|---|
| Authority | Arrests must be carried out by competent officials or persons authorized for that purpose |
| Notification of arrest | A detained person shall be entitled to notify members of their family or other appropriate persons of their arrest |
| Reason for arrest | A person shall be informed of the reason for their arrest and any charges against them |
| Legal counsel | A detained person has the right to defend themselves or be assisted by counsel as prescribed by law |
| Communication with legal counsel | A detained person shall be allowed adequate time and facilities for consultation with their legal counsel |
| International arrest | Interpol issues Red Notices, which are requests to member nations to find and arrest a missing person or someone awaiting extradition |
| International waters | A vessel in international waters is subject to certain universal international laws and could be boarded and arrested by any country suspecting illegal activity |
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What You'll Learn
Arrests in international waters
International waters, also known as the high seas, Terra nullius, 'nobody's land', or Mare liberum ('free seas'), are subject to a unique set of laws and regulations. While it is commonly believed that these areas are lawless and exempt from any form of governance, this is not entirely accurate. International waters are governed by a distinct set of international laws and principles.
According to the United Nations Convention on the Law of the Sea (UNCLOS), "ships shall sail under the flag of one state only and, save for exceptional cases expressly provided for in international treaties or in this convention, shall be subject to its exclusive jurisdiction on the high seas." This means that a ship sailing in international waters is subject to the laws and jurisdiction of the state whose flag it flies. For example, if a ship is sailing under the British flag, it is subject to British law, and any crimes committed on board would fall under British jurisdiction.
However, there are certain complexities and exceptions to this rule. In cases where a vessel does not fly the flag of any country, it is still subject to universal international laws. Any nation with probable cause to believe that the vessel is involved in illegal activities or operating outside internationally accepted laws may legally board and investigate the ship. This could potentially lead to arrests, depending on the evidence found and the laws of the arresting country.
The duty to arrest individuals in international waters typically falls upon the government of the flag state of the ship. However, in practice, many flag states may lack the resources or inclination to perform these arrests. As a result, diplomatic channels are often utilized to apply pressure on the flag state or shipping company, leading to cooperation with other countries.
Additionally, there are international mechanisms in place for pursuing and apprehending individuals across borders, such as the INTERPOL Red Notices. These notices are issued by the INTERPOL Secretariat General at the request of a member country and are distributed to all other member states. They describe wanted persons and request their arrest, with a view to extradition, depending on extradition treaties.
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Arrests in embassies
An embassy is not the sovereign territory of the sending country; it is the sovereign territory of the receiving country. However, it enjoys protections from interference from the receiving country. The sending country can do anything to a person who enters the embassy, including arresting them, as long as they keep them in the embassy. This may be illegal according to the receiving country's laws, but the receiving country would be violating its diplomatic and political agreements if it interfered with the embassy.
If a US citizen is arrested or detained abroad, they may feel confused and afraid due to being in an unfamiliar place and not knowing the local language, customs, or laws. The US Department of State is committed to ensuring fair and humane treatment for US citizens imprisoned overseas and is ready to assist incarcerated citizens and their families within the limits of their authority and in accordance with international, domestic, and foreign law. Officers of the Department of State and US embassies and consulates overseas are prohibited by federal regulation from acting as agents, attorneys, or in a fiduciary capacity on behalf of US citizens involved in legal disputes overseas. Department of State personnel, including its attorneys, do not provide legal advice to the public.
If a US citizen is arrested overseas, they should ask the prison authorities to notify the US embassy or consulate. They may also wish to reach out to the closest US embassy or consulate themselves. Family members in the US who are concerned about a US citizen family member arrested abroad can reach out to the Office of Overseas Citizens Services (OCS) at the Department of State in Washington, DC. Family members in the country where the citizen was arrested can reach out to the Consulate General via the ACS Navigator. The arrested citizen should hire an attorney as soon as possible, especially if the case involves a charge more serious than a minor traffic violation. If the citizen cannot afford an attorney, legal services will be at their own expense, as the US government does not provide funds for legal fees.
In certain major criminal cases, INTERPOL member countries can issue Red Notices, which provide for the provisional arrest of the subject and are posted to all other member countries and all US border points of entry. Subsequent extradition requests are processed through the diplomatic channels of the Department of State, in coordination with INTERPOL.
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Arrests via Interpol
INTERPOL, or the International Criminal Police Organization, was created in 1923 to fight currency counterfeiting and improve the capacities of its member countries and nations via training and offering a platform for information exchange regarding cyber hazards and hostile organizations.
INTERPOL helps countries arrest fugitives who cross international boundaries and supports member countries in locating and arresting fugitives with investigative support, training, and border management tools. However, it is essential to note that INTERPOL does not have the authority to compel law enforcement authorities in any country to arrest someone who is the subject of a Red Notice. Each member country decides on the legal value it gives to a Red Notice and whether to arrest a person.
A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or court order issued by the judicial authorities in the requesting country. Red Notices are published by INTERPOL at the request of a member country and are distributed to all other member countries. They contain information to identify the wanted person, such as their name, date of birth, nationality, physical description, and fingerprints if available, as well as information related to the crime they are wanted for, typically serious ordinary law crimes such as murder, rape, child abuse, fraud, or armed robbery.
Diffusion notices are similar to Red Notices but are less formal and are transmitted directly by the member state of nations via channels. They are often employed in urgent circumstances to rapidly distribute international alerts and important crime-related information.
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Arrests in other countries
International law is a complex area, and arrests in other countries are often a result of international cooperation and agreements. One notable mechanism for international arrests is through INTERPOL, which facilitates cross-border law enforcement activities. INTERPOL issues various types of notices, such as Red Notices, Blue Notices, and Green Notices, to coordinate with member countries.
Red Notices are "International Wanted Notices" issued by the INTERPOL Secretariat General in Lyon, France, at the request of a member country. These notices are distributed worldwide and seek the arrest and extradition of wanted individuals. The United States, for example, requires a valid extradition treaty with the requesting country before making an arrest based on a Red Notice.
Blue Notices are used to obtain information about a person's identity, criminal record, or location. They are often issued when a person is missing or wanted for ordinary criminal law violations, and their extradition may be requested. Green Notices provide information about individuals who have committed or are likely to commit crimes across multiple countries.
International extradition is the formal process of surrendering an individual from one country to another for trial or punishment. This process is regulated by treaties and involves coordination between governments. Some countries may grant extradition without a treaty, often expecting reciprocity. However, countries like the United States typically require a treaty for extradition, except in cases of violent crimes committed against their nationals in foreign countries.
Another aspect of arrests in other countries involves the concept of "lures." Law enforcement authorities may use lures to entice a fugitive to leave a foreign country and enter a jurisdiction where they can be arrested and extradited. However, some countries may view lures as an infringement on their sovereignty, and there are legal considerations to address when using this tactic.
Additionally, arrests in international waters present unique scenarios. While there is no clear concept of a "citizen's arrest" in international waters, universal international laws apply to vessels without a country's flag. Any nation with probable cause to believe a crime is being committed may legally board and investigate such vessels. Historical terms like "constable at common law" refer to those authorized to make arrests based on warrants or in cases of piracy.
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Rights of arrested persons
International law does not apply to individuals but rather to nation states. However, international law does apply to individuals acting on behalf of nation states. For example, a person can be arrested in another country based on an international arrest warrant issued by Interpol.
- Arrest, detention, or imprisonment should be carried out strictly according to the law and only by competent officials or authorized persons.
- No person may be kept under detention pending investigation or trial except upon the written order of a judicial or other competent authority.
- A person detained on a criminal charge should be brought before a judicial or other authority without delay, and such authority shall decide without delay upon the lawfulness and necessity of detention.
- A detained person has the right to make a statement on the treatment received while in custody.
- A person detained on a criminal charge shall be entitled to a trial within a reasonable time or to release pending trial.
- A detained person shall be entitled to communicate and consult with their legal counsel without delay or censorship and in full confidentiality.
- A detained person who does not have a legal counsel of their own choice shall be entitled to have legal counsel assigned to them by a judicial or other authority without payment if they do not have sufficient means to pay.
- A detained person shall be allowed adequate time and facilities for consultation with their legal counsel.
- A detained person shall be entitled to notify or require the competent authority to notify members of their family or other appropriate persons of their choice of their arrest, detention, or imprisonment, as well as the place where they are being held in custody.
- If a detained person is a foreigner, they shall be promptly informed of their right to communicate with a consular post or the diplomatic mission of the state of which they are a national or which is otherwise entitled to receive such communication under international law.
- A detained person's human rights should be respected, and there should be no restriction or derogation from these rights, regardless of any distinctions such as race, colour, sex, language, religion, or political opinion.
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Frequently asked questions
Interpol issues a Red Notice, which is a request to member nations to find and arrest a missing person or someone awaiting extradition. The Red Notice is based on a legitimate national arrest warrant and is distributed to all member countries. The Criminal Division will determine if an extradition treaty exists between the United States and the requesting country. If the subject can be extradited, a diplomatic request for a provisional arrest is made.
If a vessel is not flying the flag of any country, it is subject to universal international laws. Any nation may board the vessel if they suspect illegal activity or operations outside internationally accepted laws. They need probable cause to believe a crime is being committed, which is the standard requirement for making a lawful arrest.
According to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, an arrested person shall be informed of the reason for their arrest and any charges against them. They have the right to defend themselves or be assisted by counsel, receive prompt and full communication of any detention order, and have their detention reviewed by a judicial or other competent authority.
