Petition for Writ of Certiorari — Oussama El Omari, Petitioner v. The International Criminal Police Organization, aka INTERPOL

No. _____

In the

Supreme Court of the United States

__________________

OUSSAMA EL OMARI,

Petitioner,

v.

INTERNATIONAL CRIMINAL POLICE ORGANIZATION,

ALSO KNOWN AS INTERPOL,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

SCOTT MICHAEL MOORE

Counsel of Record

MOORE INTERNATIONAL LAW PLLC

45 Rockefeller Plaza, 20th Floor

New York, NY 10111

(212) 332-3474

smm@milopc.com

August 3, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

I. Whether INTERPOL is entitled to immunity as a

“public” international organization under 22 U.S.C.

§ 288 of the IOIA as interpreted by Jam v. Int’l Fin.

Corp., 139 S.Ct. 759 (2019), when INTERPOL’s

treaty ratification failed and its existence is merely

due to its own “1956 Constitution” which has no

roots in state action?

II. Even assuming, arguendo, INTERPOL is an

immune public international organization under the

IOIA, whether INTERPOL waived immunity under

§ 288a(b) by INTERPOL’s 2008 Agreement with

France, when INTERPOL initially agreed to

arbitration and then later in 2016 abrogated that

arbitration right?

ii

PARTIES TO THE PROCEEDINGS

Petitioner is Oussama El Omari, the appellant in

the court below. The International Criminal Police

Organization, also known as INTERPOL, was the

appellee in the court below.

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is related to the following

proceedings in the United States Court of Appeals for

the Second Circuit and the United States District

Court for the Eastern District of New York:

• Oussama El Omari v. The International

Criminal Police Organization - Interpol, No.

19-cv-1457 (E.D.N.Y.), judgment issued May 14,

2021.

• Oussama El Omari v. The International

Criminal Police Organization – also known as

INTERPOL, No. 21-1458 (2nd Cir.), judgment

entered May 24, 2022.

There are no other proceedings in state or federal

trial or appellate courts directly related to this case

within the meaning of this Court's Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS. . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

A. This Court interpreted 22 U.S.C. § 288 of the

International Organizations Immunity Act in

Jam v. Int’l Fin. Corp., 139 S.Ct. 759 (2019)

without defining or using the word “public”

in its discussion of public international

organizations, however all examples in Jam

were treaty based and the rationale in Jam

relied upon those treaty based charters

which could expand or contract immunity,

and INTERPOL is not treaty based and does

not even have a state issued charter . . . . . . . 3

iv

B. Even assuming, arguendo, INTERPOL falls

within the meaning of a “public”

international organization under Jam,

immunity can be waived under § 288a(b),

and INTERPOL did so by INTERPOL’s 2008

Agreement with France, because INTERPOL

initially agreed to arbitration of disputes and

then later in 2016 abrogated that arbitration

right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE WRIT. . . . . . . . . 7

I. Concern about INTERPOL is more than

mainstream, both the Executive and Legislative

Branches have spoken on transnational

repression and INTERPOL. This case presents

an opportunity to clarify immunity under Jam

as to the definition of a “public” international

organization, since the Second Circuit did not

want to limit the meaning of “public

international organizations” to require them to

be treaty based even in light of the rationale and

sweeping dicta in Jam . . . . . . . . . . . . . . . . . . . . . 7

II. This case also presents an opportunity to clarify

what constitutes a waiver of immunity by a

public international organization as also

discussed in Jam. . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Second Circuit

(May 24, 2022) . . . . . . . . . . . . . . . App. 1

v

Appendix B Memorandum and Order in the

United States District Court Eastern

District of New York

(May 13, 2021) . . . . . . . . . . . . . . App. 25

Appendix C Judgment in the United States

District Court Eastern District of New

York

(May 14, 2021) . . . . . . . . . . . . . . App. 43

vi

TABLE OF AUTHORITIES

CASES

Birch Shipping Corp. v. Embassy of United

Republic, 507 F. Supp. 311 (D.D.C. 1980) . . . 6, 14

Cargill Int’l S.A. v. M/T Pavel Dybenko,

991 F.2d 1012 (2d Cir. 1993) . . . . . . . . . . . . . . . . 6

Frolova v. Union of Soviet Socialist Republics,

761 F.2d 370 (7th Cir. 1985). . . . . . . . . . . . . . . . 13

Jam v. Int’l Fin. Corp.,

139 S.Ct. 759 (2019) . . . . . . . . . . . . . . . . . . passim

Libyan American Oil Co. v. Socialist People’s

Libyan Arab Jamahirya,

482 F. Supp. 1175 (D.D.C. 1980) . . . . . . . . . . . . 14

Resource Dynamics Int’l, Ltd. v. General People’s

Committee, 593 F. Supp. 572 (N.D. Ga. 1984) . . . 14

Steinberg v. International Criminal Police

Organization, 672 F.2d 927 (D.C. Cir. 1981) . . . 11

STATUTES

22 U.S.C. § 288 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4

22 U.S.C. § 288a(b). . . . . . . . . . . . . . . . . . . . . . 2, 6, 14

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1602(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1602(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vii

CONSTITUTIONAL PROVISIONS

Article VI, Section 2 of the Constitution of the

United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

LEGISLATIVE MATERIALS

Congressional Record. H.Rep.No. 94-1487, 94th

Cong., 2d Sess., reprinted in [1976] U.S.Code

Cong. & Ad.News 6604 . . . . . . . . . . . . . . . . . . . . 14

Transnational Repression Accountability and

Prevention (“TRAP”) Act. TRAP, 22 U.S. Code

§ 263b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PUBLICATIONS

Assistant Attorney General Matthew Olsen Delivers

Remarks at Press Conference Announcing

Transnational Repression Charges, Justice

News, Department of Justice (2022),

https://www.justice.gov/opa/speech/assistant-at

torney-general-matthew-olsen-delivers-remarkspress-conference-announcing . . . . . . . . . . . . . . . 10

Briton gets high-court go-ahead to sue Interpol chief

over torture claim, UK news, theguardian.com,

Feb. 8, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Diplomatic Note from Department of State to

Foreign Diplomats and Missions, (July 1, 2022)

url: https://www.state.gov/wp-content/uploads/

2022/07/2022-07-01-Circular-Note-Counter-Tran

snational-Repression.pdf . . . . . . . . . . . . . . . . . . 10

Editorial Board, Opinion, Hong Kong Exiles Fear an

Interpol Notice, Wall St. J., Feb 11, 2022 . . . . . . 7

viii

Joint Departments of State and Homeland Security

Roundtable Affirms U.S. Commitment to

Accountability for Transnational Repression,

U.S. Department of State Media Note (2022),

https://www.state.gov/joint-departments-of-sta

te-and-homeland-security-roundtable-affirms-us-commitment-to-accountability-for-transnation

al-repression/. . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Matt Apuzzo, How Repressive World Leaders

Turned Interpol Into Their Personal Weapon,

N.Y. Times, Mar. 23, 2019 . . . . . . . . . . . . . . . . . . 8

Out of Sight, Not out of Reach, The Global Scale

and Scope of Transnational Repression, Freedom

House, February 2021, freedomhouse.org . . . . . . 8

The UAE and Interpol – an analysis, March 2021,

Sir David Calvert-Smith (former UK Director of

Public Prosecutions and former High Court

Judge) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tools of Transnational Repression: How Autocrats

Punish Dissent Overseas, Hearing Before the

Comm. on Sec. and Coop. in Eur., 116th Cong.,

CSCE 116-1-7 (2019) . . . . . . . . . . . . . . . . 9, 10, 11

Wife of former head of Interpol sues the police

agency, https://www.euronews.com/2019/07/08/

wife-of-former-head-of-interpol-sues-the-intern

ational-police-agency . . . . . . . . . . . . . . . . . . . . . . 8

Who will police Interpol?, The Economist, December

4, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Oussama El Omari respectfully petitions

this Court for a Writ of Certiorari to review the

judgment in this case by the United States Court of

Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the Second Circuit is reproduced in

the appendix hereto (“App.”) at App. 1. The opinion of

the District Court for the Eastern District of New York

is reproduced at App. 25.

JURISDICTION

The judgment of the Second Circuit Court of

Appeals was entered on May 24, 2022. Petitioner

invokes this Court’s jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

For purposes of the International Organizations

Immunity Act, (“the IOIA”) an “international

organization” is defined as having three elements

under 22 U.S.C. § 288 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 authorization such participation or

making an appropriation for such participation,

and [3] which shall have been designated by the

President through appropriate Executive order

as being entitled to enjoy the privileges,

2

exemptions, and immunities provided in this

subchapter. [emphasis added]

Immunity may be waived under 22 U.S.C § 288a(b),

which provides in pertinent part:

…except to the extent that such organizations

may expressly waive their immunity for the

purpose of any proceedings or by the terms of

any contract.”

INTRODUCTION

Petitioner Oussama El Omari, a U.S. citizen,

brought this action in the United States District Court

for the Eastern District of New York against the

International Criminal Police Organization (commonly

known as “INTERPOL”) alleging negligent infliction of

emotional distress and violation of his right to due

process of law under the State of New York’s

Constitution, after INTERPOL refused to delete a “Red

Notice” secretly requested by the UAE and secretly

issued against him by INTERPOL based on an in

absentia criminal conviction in one of the Emirates’

Rulers Courts.

El Omari alleged below the conviction was done

without basic tenets of due process and was an act of

politically based retaliation related to an Emirati ruler

succession rivalry, and INTERPOL’s own internal rules

required deletion of the Red Notice, but it refused. El

Omari was detained briefly at JFK airport in New York

based on the secret Red Notice, and to this day cannot

travel internationally to work in his profession of

running international free trade zones or to even visit

his dying father in his native country of Morocco for

3

fear of his arrest and being forced to the UAE where he

would be jailed, likely tortured and possibly die.

STATEMENT OF THE CASE

A. This Court interpreted 22 U.S.C. § 288 of

the International Organizations Immunity

Act in Jam v. Int’l Fin. Corp., 139 S.Ct. 759

(2019) without defining or using the word

“public” in its discussion of public

international organizations, however all

examples in Jam were treaty based and the

rationale in Jam relied upon those treaty

based charters which could expand or

contract immunity, and INTERPOL is not

treaty based and does not even have a state

issued charter.

INTERPOL remains shrouded in secrecy. It was a

mystery what exactly INTERPOL is until oral

argument in the Second Circuit. In INTERPOL’s

Corporate Disclosure Statement filed in its response

brief it described itself as an “unincorporated entity

that has no parent entities and is not otherwise owned

by any publicly-held company.” Then during oral

argument, INTERPOL’s counsel represented that it

was an “unratified treaty international organization”

with “no state issued founding charter” or words to that

effect. INTERPOL’s counsel further represented that it

was “established by its 1956 Constitution” but “not

incorporated in any state” or words to that effect. As

such, INTERPOL is a failed treaty based organization

and has no state issued charter.

4

The Second Circuit erred in deciding this case

without resolving what exactly INTERPOL is, noting

the competing academic theories of a de facto

international organization or an NGO. “We thus have

no need to arbitrate between the competing academic

theories.” Instead, the Second Circuit based its

conclusion on INTERPOL’s membership. “… we

conclude that a ‘public international organization’ as

used in § 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.” This squarely conflicts with the

rationale and examples in Jam v. Int’l Fin. Corp., 139

S.Ct. 759 (2019).

The Second Circuit’s decision runs counter to

sweeping dicta in Jam of examples of public

international organizations. A close reading of Jam

instructs that “public” unequivocally means an

international organization created by treaty. This

treaty requirement jives with the District Court’s

dictionary definition “of or provided by the state,”

although the District Court misapplied that definition.

Jam would also seem to instruct to look to the law

of the FSIA for a definition or meaning of “public” so

the two statutes develop in tandem. There appears to

be no definition of “public,” but there is a definition of

a “foreign state” which would seem to lend itself as the

next best thing for consistency. “A ‘foreign state’, except

as used in section 1608 of this title, includes a political

subdivision of a foreign state or an agency or

instrumentality of a foreign state as defined in

subsection (b).” 28 U.S.C. § 1602(a). Section 1602(b)

goes on to define “an agency or instrumentality of a

5

foreign state.” INTERPOL admittedly is not a

governmental entity and does not meet either

definition.

Therefore, reading the IOIA and the FSIA in

tandem, as Jam requires, there must be consistency

between a “public international organization,” a

“foreign state,” and an “agency or instrumentality of a

foreign state.” That consistency is found in the treaty

based examples of the UN, IMF, WHO, and World

Bank. INTERPOL, a mystery entity, is way out of this

orbit. Interpol is an apple to the oranges in Jam.

The Second Circuit minimized the guidance of Jam,

stating only “[i]t would not be appropriate for us to

divine some limiting principle for what qualifies as

‘public’ based soley on the organizations mentioned in

the Jam opinion as examples of that category. And

while Jam states that an organization’s charter may in

some cases override the IOIA’s default rules regarding

immunity, id., it did not suggest that all ‘public

international organizations’ must be formed pursuant

to such a charter.”

For these reasons, this Court should make clear

that public international organizations must be treaty

based to qualify for immunity under the IOIA.

6

B. Even assuming, arguendo, INTERPOL falls

within the meaning of a “public”

international organization under Jam,

immunity can be waived under § 288a(b),

and INTERPOL did so by INTERPOL’s 2008

Agreement with France, because

INTERPOL initially agreed to arbitration

of disputes and then later in 2016

abrogated that arbitration right.

Just as important as immunity, is its waiver. An

otherwise immune public international organization

may waive immunity under § 288a(b) of the IOIA. El

Omari pointed out below that INTERPOL did so by

Article 24(1) of Interpol’s agreement with France of

April 14, 2008, which provided an express right of

independent arbitration for disputes between Interpol

and private parties. (“Unless the Parties in the dispute

decide otherwise, any dispute between the

Organization and a private party shall be settled in

accordance with the Optional Rules for Arbitration

between International Organizations and Private

Parties of the Permanent Court of Arbitration…. ”).

The Second Circuit construed this language in

INTERPOL’s 2008 Agreement with France as “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,” citing Cargill Int’l S.A. v. M/T Pavel Dybenko,

991 F.2d 1012, 1017 (2d Cir. 1993). But see, Birch

Shipping Corp. v. Embassy of United Republic of

Tanzania, 507 F. Supp. 311, 312 (D.D.C. 1980) (“… an

agreement to arbitrate, standing alone, is sufficient to

7

implicitly waive immunity, as was recognized by

Congress. That waiver cannot now be unilaterally

withdrawn.” [internal citations omitted]).

For these reasons, the Court should speak on

immunity waiver and that INTERPOL’s 2008

Agreement was a waiver of immunity under the IOIA.

REASONS FOR GRANTING THE WRIT

I. Concern about INTERPOL is more than

mainstream, both the Executive and

Legislative Branches have spoken on

transnational repression and INTERPOL. This

case presents an opportunity to clarify

immunity under Jam as to the definition of a

“public” international organization, since the

Second Circuit did not want to limit the

meaning of “public international

organizations” to require them to be treaty

based even in light of the rationale and

sweeping dicta in Jam.

The Second Circuit acknowledged that INTERPOL

“Red Notices” have become a tool of transnational

repression by authoritarian governments. “More

generally, the complaint alleges that the red notice

system has been repeatedly abused by the UAE to

attack political opponents and gain leverage in civil

disputes. Similar concerns about nations abusing

Interpol’s notice system appear in the news with some

regularity. See, e.g., Editorial Board, Opinion, Hong

Kong Exiles Fear an Interpol Notice, Wall St. J., Feb 11,

2022, at A16 (“Authoritarian governments have abused

the [red notice] system in the past to hound opponents

8

and limit their freedom of movement.”; Matt Apuzzo,

How Repressive World Leaders Turned Interpol Into

Their Personal Weapon, N.Y. Times, Mar. 23, 2019, at

A10.”

See also, Out of Sight, Not out of Reach, The Global

Scale and Scope of Transnational Repression, Freedom

House, February 2021, freedomhouse.org, at 6, 51.

(“Such Interpol abuse is, in fact, disturbingly common.

In the last two decades, numerous governments have

learned that ‘red notices’ and other notifications

provide cheap and easy means of reaching exiles….

Despite years of civil society advocacy on the topic, and

some improvements in the vetting process, Interpol

abuse remains a widespread problem.” “Authorities in

… the UAE … have all abused Interpol to detain

opponents.” Who will police Interpol?, The Economist,

December 4, 2021. Wife of former head of Interpol sues

the police agency, https://www.euronews.com/2019/

07/08/wife-of-former-head-of-interpol-sues-theinternational-police-agency. The UAE and Interpol – an

analysis, March 2021, Sir David Calvert-Smith (former

UK Director of Public Prosecutions and former High

Court Judge).

In a joint statement, the Department of State and

Department of Homeland Security detailed a policy to

hold governments and their agents accountable for

transnational repression. Joint Departments of State

and Homeland Security Roundtable Affirms U.S.

Commitment to Accountability for Transnational

Repression, U.S. Department of State Media Note

(2022), https://www.state.gov/joint-departments-ofstate-and-homeland-security-roundtable-affirms-u-s-

9

commitment-to-accountability-for-transnational-repr

ession/.

Transnational repression defines actions taken by

authoritarian regimes to oppress individuals both

abroad and within the United States. Tools of

Transnational Repression: How Autocrats Punish

Dissent Overseas, Hearing Before the Comm. on Sec.

and Coop. in Eur., 116th Cong., CSCE 116-1-7, 1 (2019)

(statement of Hon. Roger F. Wicker, Co-Chairman,

Comm. on Sec. and Coop. in Europe.).

Authoritarian governments target perceived

dissidents through cyber-hacking, surveillance, and

intimidation. Id. A common tool of transnational

repression is the abuse of INTERPOL. Id.

Authoritarian regimes will frequently use INTERPOL

as a resource to intimidate, harass, and extradite

dissidents. Id. Politically motivated INTERPOL Red

Notices are common tools used by authoritarians

seeking to stabilize their rule against perceived

opponents. Id at 14 (Alexander Cooley, Dir. at Colum.

Univ.'s Harriman Institute for the Study of Russ.,

Eurasia and Eastern Eur. and Claire Tow Professor of

Pol. Sci., Barnard College answering Hon. Marc

Veasey, Comm’r, Comm. on Sec. and Coop. in Eur.).

“[The] practice of transnational repression

constitutes a wholesale assault on the rule of law

internationally.” Tools of Transnational Repression:

How Autocrats Punish Dissent Overseas, Hearing

Before the Comm. on Sec. and Coop. in Eur., 116th

Cong., CSCE 116-1-7, 1 (2019) (statement of Hon.

Roger F. Wicker, Co-Chairman, Comm. on Sec. and

Coop. in Europe.). The Department of State stated as

10

much that the political use of INTERPOL is a violation

of human rights. Diplomatic Note from Department of

State to Foreign Diplomats and Missions, (July 1, 2022)

url: https://www.state.gov/wp-content/uploads/2022/

07/2022-07-01-Circular-Note-Counter-TransnationalRepression.pdf.

In a press release, the Department of Justice

unsealed several prosecutions against foreign

government officials for transnational repression.

Assistant Attorney General Matthew Olsen Delivers

Remarks at Press Conference Announcing

Transnational Repression Charges, Justice News,

Department of Justice (2022), https://www.justice.gov/

opa/speech/assistant-attorney-general-matthew-olsendelivers-remarks-press-conference-announcing. In

Assistant Attorney General Olson remarks, he asserted

that transnational repression is “antithetical to

fundamental American values” and that such

repression “undermine[s] our democracy, our economy,

and our institutions.” Id. He went on to state that the

U.S. will not tolerate such repression on its own soil.

Id. Even more, the assistant attorney general declared

that foreign governments cannot deny individuals the

protection of U.S. law. Id. The FBI also makes clear

that these abuses are violations of international and

U.S. law. Transnational Repression, Fed. Bureau of

Investigation, url: https://www.fbi.gov/investigate/

counterintelligence/transnational-repression (last

visited June 2022).

Further, Congress has spoken as to the misuse of

INTERPOL. Tools of Transnational Repression: How

Autocrats Punish Dissent Overseas, Hearing Before the

11

Comm. on Sec. and Coop. in Eur., 116th Cong., CSCE

116-1-7, 1(2019) (statement of Hon. Roger F. Wicker,

Co-Chairman, Comm. on Sec. and Coop. in Europe.).

Congress has also spoken on the issue of transnational

repression vis á vis the Transnational Repression

Accountability and Prevention (“TRAP”) Act. TRAP, 22

U.S. Code § 263b. § 263b(a) regards acts of

transnational repression, specifically the abuse of

INTERPOL for political means, a violation of

international human rights norms. TRAP § 263b(a).

The passage of TRAP as a law and the ongoing

hearings and investigations of the Helsinki

Commission give credence to the argument that the

misuse of INTERPOL is a violation of common

international legal norms.

Victims of INTERPOL abuse do not always run into

a successful immunity defense. Steinberg v.

International Criminal Police Organization, 672 F.2d

927 (D.C. Cir. 1981) (Ginsburg, J.) (“Taking into

account the nature and quality of the alleged act and

tortious injury, “the convenient administration of

justice in all its aspects, including alternative forums,”

and Steinberg’s interest, as a United States citizen and

domiciliary, in vindicating his reputation as an

individual without a criminal record, we hold that,

whatever defenses Interpol and its Secretary General

may have to the claim in suit, the litigation is not

barred at the threshold for lack of in personam

jurisdiction.”). “Interpol appears to occupy a rather

ambiguous and shadowy existence in this country. It

claims not to exist in the United States, yet it

disseminates information here, maintains close liason

with United States law enforcement authorities, is in

12

effect represented in court by the U.S. Department of

Justice and, if the complaint is to be believed - as it

must be for present purposes - defames American

citizens in the United States as well as elsewhere.” Id.,

at 927.

In the United Kingdom, Ali Issa Ahmad has been

given leave to sue the new INTERPOL chief, Maj. Gen.

Ahmed Nasser al-Raisi of the UAE. Briton gets highcourt go-ahead to sue Interpol chief over torture claim,

UK news, theguardian.com, Feb. 8, 2022.

The Jam opinion does not use the phrase “public

international organization” anywhere in discussing the

IOIA. Chief Justice Roberts’ first sentence in Jam

omitted the word “public” and referred instead to

“international organizations such as the World Bank

and the World Health Organization.” [emphasis added]

Jam., at 764. Justice Roberts stated “[t]hose privileges

and immunities can also be expanded or restricted by

a particular organization’s founding charter.” Jam, at

765. Justice Roberts suggested that “[i]f the work of a

given international organization would be impaired by

restrictive immunity, the organization’s charter can

always specify a different level of immunity.” Jam, at

771. This could be a full or partial waiver, but the

majority also considered it could be a higher level of

immunity. “The charters of many international

organizations do just that,” and Justice Roberts

observed that “the IFC’s own charter does not state

that the IFC is absolutely immune from suit.” Id. In

contrast, it goes without saying that INTERPOL’s nonstate issued 1956 Constitution has no legal effect on

defining its level of immunity.

13

The examples given, and indication of the force of

law of organizing papers, shows this Court in Jam

assumed that what makes an international

organization “public” is creation by treaty, and treaties

are the “supreme law of the land” under Article VI,

Section 2 of the Constitution of the United States.

Here, Interpol is not created by treaty and doesn’t come

remotely close to Justice Roberts’ examples of the

World Bank, the World Health Organization, the

International Monetary Fund, and the United Nations,

which are all treaty based. Jam, at 771. Interpol is

merely attempting to grossly inflate its image into

something that it is not.

II. This case also presents an opportunity to

clarify what constitutes a waiver of immunity

by a public international organization as also

discussed in Jam.

The Circuits are split on immunity waiver, and this

case give the Court an opportunity to resolve what

constitutes a waiver in light of Jam.

A close reading of Jam shows this Court required

the lower courts to import waiver law under the FSIA

so the two statutes are read consistently. Waiver law

under both statutes must develop in “tandem.” “The

IOIA should therefore be understood to link the law of

international organization immunity to the law of

foreign sovereign immunity, so that the one develops in

tandem with the other.” Jam, at 769.

See also, Frolova v. Union of Soviet Socialist

Republics, 761 F.2d 370, 377 (7th Cir. 1985),

supporting El Omari’s contention that Interpol

14

expressly waived immunity for disputes with third

parties under § 288a(b) by virtue of the specific

language of Article 24(1) of the 2008 Agreement.

“Courts have found an implicit waiver under

§ 1605(a)(1) in cases involving contracts in which a

foreign state has agreed to arbitrate disputes without

specifying jurisdiction in a particular country or

forum….” Id., at 377. See, the Congressional Record.

H.Rep.No. 94-1487, 94th Cong., 2d Sess., reprinted in

[1976] U.S.Code Cong. & Ad.News 6604 at 6617, 6627.

See, Birch Shipping Corp. v. Embassy of United

Republic of Tanzania, 507 F. Supp. 311, 312 (D.D.C.)

(“… an agreement to arbitrate, standing alone, is

sufficient to implicitly waive immunity, as was

recognized by Congress. That waiver cannot now be

unilaterally withdrawn.” [internal citations omitted]).

See also, Libyan American Oil Co. v. Socialist People’s

Libyan Arab Jamahirya, 482 F. Supp. 1175, 1178

(D.D.C. 1980); Resource Dynamics Int’l, Ltd. v. General

People’s Committee, 593 F. Supp. 572, 575 (N.D. Ga.

1984).

The “without more” is INTERPOL’s later abrogation

of this arbitration right which leaves persons like El

Omari with no legal forum whatsoever. This suggests

INTEPOL later regretted its 2008 Agreement. The

prohibition against a unilateral withdrawal of an

immunity waiver must be interpreted consistently with

the similar waiver provision under the FSIA, Section

1605(a)(1). See Congress’ intent expressed at H.R. Rep.

94-1487, at 6617. (“a foreign state [cannot] go back on

its promise and seek to revoke the waiver

unilaterally.”)

15

A later 2016 Agreement between INTERPOL and

France amended Article 24 by adding a new provision,

sub-paragraph 3, which reads: “3. The procedure

specified in paragraph 1 of the present Article shall not

be applicable to disputes whose origins lie in the

application or interpretation of the Organization’s

Constitution or its appendices, including those disputes

relating to the processing of data in INTERPOL’s

Information System [i.e.. Red Notices] and those

relating to the employment conditions of the

Organization’s officials.” This abrogation was not

discussed by the Second Circuit other than in passing.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

SCOTT MICHAEL MOORE

Counsel of Record

MOORE INTERNATIONAL LAW PLLC

45 Rockefeller Plaza, 20th Floor

New York, NY 10111

(212) 332-3474

smm@milopc.com

Counsel for Petitioner

August 3, 2022