An extraordinary international legal tussle is unfolding in the unlikely setting of Africa’s smallest state, the Republic of Cape Verde. Last year, following pressure from the US, it arrested a Venezuelan businessmen and is now set to extradite him to the US. The Ecowas Community Court of Justice, however, has ruled that the man be freed. At stake is Africa’s concept of national and regional sovereignty and resistance to big power pressure.
In a tussle reminiscent of the worst old days of the Cold War, an unedifying tug-of-war is unfolding between the micro-state of Cape Verde and the US on one hand and the Court of Justice of the Economic Community of West African States (ECOWAS) and the Bolivarian Republic of Venezuela on the other.
Caught in between the two is the 49-year-old Alex Saab, a citizen Venezuelan of Colombian origin. Saab was arrested by Cape Verde authorities when the flight he was travelling on from Caracas, Venezuela, to Tehran, Iran, stopped for refuelling in Cape Verde. This was on 12 June last year.
The arrest and detention of Saab has opened a Pandora’s Box of complex international legal issues as well as questions of national sovereignty, United Nations and African Union human rights charters and the rule of customary international law. It has also set Cape Verde on a collision course with ECOWAS, of which it is a member.
Upon arrest, Saab was told he was being detained in response to a Red Notice issued by the International Criminal Police Organisation (Interpol). A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition or similar legal action. Red Notices are issued by Interpol at the request of a member country. In this case, the request had come from the US government.
Alex Saab’s letters of accreditation to Iran from the Venezuelan authorities (in Spanish). Left: letter to Iran’s Minister of Agriculture; centre and right, letter to Ayatollah Ali Khamenei.
The charge against Saab related to a district court decision for the Southern District of Florida to indict him “for money laundering offences” allegedly committed between November 2011 and September 2015.
Clearly, this was no ordinary case of money laundering offences. Given the fraught relationship between Venezuela and the US, which escalated under former President Trump. In 2017, Trump was reported to have said he would not rule out a “military option” in Venezuela and in 2018, the Trump administration is reported to have held secret meetings with rebellious military officers from Venezuela to discuss their plans to overthrow Maduro.
In August, the Trump administration seized four tankers containing more that 1m barrels of oil from Iran and destined for Venezuela.
Who is Alex Saab?
Saab is a businessman, who according to the US is the chief deal maker for President Nicolás Maduro of Venezuela.
Maduro, like his predecessor, the socialist Hugo Chávez, has been in the US foreign policy gun-sights for a long time. The US and several of its allies, do not recognise Maduro as the president of Venezuela.
A raft of heavy sanctions imposed by the US and other Western governments since 2014 has devastated the Venezuelan economy, exacerbating the impact of the fall in the price of oil, a commodity that the country relies on as its chief source of revenue.
According to inside sources, Saab first came to prominence circa 2011 when his company was awarded a contract by the Chavez administration to procure parts needed to build prefabricated housing for economically disadvantaged Venezuelans.
Having successfully done so, his company was awarded several more contracts as supplier for various projects, many in the social welfare segment. With the grip of sanctions tightening around the country, insiders say Saab’s extensive business contacts around the world stood him in good stead and he was able to deliver essential supplies at time when many traditional suppliers were either unable or unwilling to continue given the threat of sanctions in the background.
Following on from his earlier success, in 2018, Saab was appointed as Special Envoy for the Government of Venezuela; his brief was to “acquire humanitarian resources in great need in Venezuela”.
According to United Nations Special Rapporteur Alena Douhan who visited Venezuela in February 2021 to review the negative impact of sanctions on the people, the country’s needs were grave indeed.
Part of her report, which detailed the full impact of sanctions on day to day life in the country, said: “Impediments to food imports, constituting more than 50 per cent of food consumption, have resulted in the steady growth of malnourishment in the past 6 years with more than 2.5 million people being severely food insecure.”
She wrote that “Venezuelan assets, frozen in United States, United Kingdom and Portuguese banks amount to US $6 bn. The purchase of goods and payments by public companies are reportedly blocked or frozen.”
As a result, she says: “Today, Venezuela faces a lack of necessary machinery, spare parts, electricity, water, fuel, gas, food and medicine.”
According to Saab’s defence team, this was the background to his flight to Tehran. He was on a humanitarian mission to secure food and medicine from Iran. He was armed with a letter from President Maduro and addressed to Ayatollah Khamenei, Iran’s supreme leader identifying him as Venezuela’s envoy and the clear purpose of his special mission.
However, US officials have accused Saab of exporting gold from illegally-owned mines in Venezuela and laundering the proceeds through a web of shell companies. [Incidentally, as we wrote this piece, on 25 March of this year, the Geneva Public Prosecutor dropped a three-year long money-laundering probe of Saab because of insufficient evidence.]
The State Department, it appears, believes that if it can get Saab to America, it will “persuade” him to disgorge vital information about Maduro’s network and thus tighten the sanctions noose even tighter.
Questions about Red Notice
But before that can happen, Saab would have to be extradited to the US – and there are significnat problems with that. For starters, at the time of his arrest, Saab was shown neither the Interpol Red Notice nor any other warrant of arrest.
This was because, as it has emerged and court document show that ECOWAS acknowledged, the Red Notice was issued the day after his arrest, and not before as required by law. This, his defence argues, highlights the “political” motivations behind Saab’s arrest rather than it being the criminal matter which both Cape Verde and the US are claiming. This makes the arrest illegal under Interpol’s own constitution as it is forbidden from interfering in politically motivated cases. This contention was supported by the ECOWAS Community Court of Justice (ECCJ) on 15 March 2021.
The government of Venezuela also protested vigorously against the arrest saying that Saab was a Special Envoy and as such had diplomatic immunity. His arrest, the government said in a series of letters to Cape Verdean authorities, was illegal under the UN Charter, which prohibits the interference in the domestic affairs of other states, as well as long-established international law which governs the movement of diplomats and political agents.
The international defence team that has been assembled for Saab reiterated that his status as an envoy provided him with “inviolability and immunity”, that the Interpol Red Notice was illegal because it had been issued after his arrest, not before, and therefore invalid and that his health problems were being aggravated by his arrest. The Cape Verdean courts turned a deaf ear and decided to maintain Saab’s detention
On 29 and 30 June, the US filed an extradition request. Although there is no extradition treaty between US and Cape Verde, the request was based on the United Nations Convention against Transnational Organised Crime (UNCTOC) to which both Cape Verde and the US are signatories. Saab’s legal team argue that there are misgivings about the applicability of UNCTOC under both Cape Verdean and US law.
Despite a barrage of appeals and habeas corpus writs issued by Saab’s defence team, on 4 January 2021 the Barlavento Court of Appeal in Cape Verde decided to grant the request for the extradition of Saab to the US. His team appealed against the decision and took the case to the country’s Supreme Court.
Enter the ECOWAS court
Meanwhile his defence lawyers had filed submissions to the ECCJ claiming that Saab had been illegally detained and demanding that he be released immediately and be provided with adequate medical care. A legal representative from Cape Verde was present during the hearing.
In December 2020, the ECCJ ordered Cape Verde to place Saab under house arrest instead of detention, permit him access to the specialist medical attention he required, unfettered access to his domestic and international legal teams, full access to his family and, importantly, immediately “halt extradition proceedings pending an outcome on the Main Submission”.
On 15 March, in a judgement that sent shock waves across the Atlantic, the ECCJ said the arrest of Saab had been illegal, having been carried out without an appropriate Interpol Red Notice or arrest warrant. It ordered Cape Verde to immediately release Saab, terminate extradition processes and pay him $200,000 by way of compensation.
What is also being put into question is if the arrest was illegal, who authorised law enforcement to proceed with the arrest of Saab. Is it Prosecutor General Ladim; Prime Minister Ulisses Correia?
On the next day, 16 March, the Cape Verde Supreme Court, in a slap to the face of the ECCJ, approved Saab’s extradition to the US. It said that it was not bound by the regional court’s ruling as Cape Verde has not signed the Additional Protocol of 2005, which widened the remit of the ECCJ.
However, legal experts say that as part of the regional body, as well as a member of the AU, Cape Verde is legally bound to accept the ruling of the regional court.
Femi Falana (SAN), a leading human rights lawyer, and a member of the legal team representing Alex Saab tells New African magazine that “Article 11 (2) of the Protocol is unambiguous and clear. The Protocol becomes binding on all of the Member States of ECOWAS, once 9 Member States sign it. In the present case, 14 out of 15 Member States signed the Protocol with the only one not signing being the Republic of Cape Verde, and that only because its Prime Minister at the time had to return home to deal with an emergency… Even though the Prime Minister of Cape Verde did not sign the Protocol, the Republic of Cape Verde is bound by the provisions of the instrument on grounds of estoppel under international law.”
Is Cape Verde between a rock and a hard place? In reply, Felana is adamant that the law is on Saab’s side: “The legal position is unambiguous and crystal clear. From a political standpoint your question may have some merit; however, the position in which Cape Verde finds itself is completely of its own making. If Cape Verde had fulfilled its ECOWAS obligations, its obligations under the UN Charter and centuries of international law governing the movement of diplomats, rather than cave into pressure from the United States, then the last ten months of the de facto kidnapping of Alex Saab would have been avoided.”
A day after the ECOWAS ruling, on 16 March, the Supreme Court of Cape Verde authorised the extradition. Saab’s defence team have appealed against the decision and are taking the matter to the Cape Verde Constitutional Court.
The case has drawn far greater attention and scrutiny worldwide than what the bare-bones might suggest. It is seen as a litmus test of whether or not “superpower impunity” or “extraterritorial judicial overreach” can override international law, regional sovereignty and human rights guarantees. Cape Verde, one of the smallest countries in Africa, has got itself caught up in superpower muscle flexing.
It is stuck between the devil and the deep blue sea and whatever the outcome, it stands to gain very little. But can it really resist being leaned on so heavily by the US?
The ECCJ on the other hand, has acted with courage, honesty, dignity and justice. It has also probably provided Cape Verde with the ideal get-out clause. If lawyers can prove that the small island nation must accept the verdict of the regional court, then Cape Verde can say its hands are tied and release Saab.
Cape Verde’s own Supreme Court, in its 16 March ruling, provided Prime Minister Ulisses Correia a domestic way out; the court ruled that if the Executive branch decided to recognise Saab’s appointment as Venezuela’s Alternate Permanent Representative to the African Union, which took effect on 24 December 2020, then his immunity and inviolability would have to be respected and he would have to be freed.
More recently, the Geneva Public Prosecutors Office, which had been investigating Saab for three years over the same money laundering allegations that form the basis of the Florida District Court indictment of July 2019, announced that it was closing the investigation as there was no evidence to merit continuing.
However this case is not yet resolved, it will reflect, for better or worse on the new US foreign policy under President Joe Biden. He has indicated that “America is back!” and that he wants a clean sweep from the Trump era hubris, arrogance and “America first” isolationism.
More importantly, it will avoid a potential major rift between African countries, reminiscent of the Cold War era, which arguably caused more damage to Africa than colonialism.
President Biden, unlike his predecessor, is instinctively a unifier rather than a divider and it is likely that he will reengage with Iran on the nuclear issues and lift the sanctions that are squeezing the economic life out of Iran and Venezuela. By honouring the ECCJ’s decision to free Saab, he will also give Africa a massive signal that unlike Trump’s crude dismissal of the continent, he holds it in due respect.