Lawyers for Venezuelan diplomat Alex Saab have warned that the total disregard by the Cape Verdean government in respecting the diplomatic immunity of their client could threaten diplomacy everywhere in the world.
Mr. Saab is being held under restricted house arrest in Cape Verde without access to his lawyers. The case which is also before the ECOWAS Court has been adjourned several times with the last explanation for the delay been the non-availability of translators.
The U.S government is also seeking to extradite Mr. Saab to America to face money laundering charges even though it is against the diplomatic rules since Mr. Saab was on a diplomatic mission on June 12 2020 before he was arrested.
The situation has resulted in several protests in Venezuela with demonstrators demanding the release of Mr. Saab, but to no avail.
Human rights activists across the world have also condemned the act warning that the continues detention of Mr. Saab could create challenges in the diplomatic stage since this is the first time such disregard for human rights is happening.
“Since he was arrested on 12 June, Saab was initially kept in a high security prison and, since 25 January, under restricted house arrest. He has been waiting to be extradited to the United States even though he has diplomatic immunity”.
“If something like this happened, it would be unprecedented. No one with diplomatic immunity has ever been extradited, also very rarely arrested, except for serious acts where guilt is evident. Even then, the sending country is required to waive immunity officially, so that he can be tried where the crime was committed,” a statement from his legal team said.
Below is the full statement
DIPLOMATIC WORLD ORDER UNDER THREAT DUE TO EXTRATERRITORIAL PUSH BY UNITED STATES
The Venezuelan Diplomat Alex Saab case and his possible extradition to United States will set a precedent in the diplomatic world. He would be the first diplomat ever extradited.
Since he was arrested on 12 June, Saab was initially kept in a high security prison and, since 25 January, under restricted house arrest. He has been waiting to be extradited to the United States even though he has diplomatic immunity.
If something like this happened, it would be unprecedented. No one with diplomatic immunity has ever been extradited, also very rarely arrested, except for serious acts where guilt is evident. Even then, the sending country is required to waive immunity officially, so that he can be tried where the crime was committed.
There was never a word about the extradition of diplomatic representatives. If such a precedent happens, it will have great consequences for the diplomatic world. Diplomatic relations experts agree on one thing, it is illegal, they will say that it is a unique case, but a precedent would be set. What would be the consequences, no one can say exactly. But surely others would use it when it suits them. Some of the possible reactions to extraditions are the introduction of reciprocity, ie. lifting of immunity of Cape Verdean diplomatic representatives, lawsuits in the International Court of Justice for violations of the Vienna Convention, etc.
What is Diplomatic Immunity?
Long before modern diplomatic conventions began to evolve in 17th-century Europe, great civilisations understood the importance of ensuring that diplomatic envoys were inviolate. The ill-treatment of Raja Chola’s envoys sparked the Kandalur War in 994 CE. Genghis Khan’s armies insisted on the inviolability of the lives of their ambassadors — and razed entire cities to defend the principle. The Mongolian conquest of the Khwarezmid empire in 1219 began after one of Genghis Khan’s ambassadors was beheaded. Diplomatic Immunity is a concept that has evolved from the ancient times when the Romans awarded a “special status” to their envoys. In the period post World War II this customary law was codified into a multilateral agreement by means of the Vienna Conventions on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations, which regulate diplomatic privileges and immunities . “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
Alex Saab was on a Special Mission
On June 12, authorities in Cape Verde arrested Saab while he was making a stopover to refuel his private jet on his way to Iran. He was going there as an envoy of Venezuela in a special humanitarian mission. “Special missions” are understood, in accordance with Article 1 (a) of the 1969 Convention on Special Missions and customary international law, as referring to a temporary mission, having a representative character of the State, sent by a State to another State with the consent of the latter to deal with specific issues with him or to accomplish a specific task with him ”. The Convention provides that members of special missions enjoy the same privileges and immunities as staff of permanent diplomatic missions. The mission was temporary – fixed from June 13 to 16 – organized by the State of Venezuela to Iran, which consented to it, with a view to accomplishing a specific task, in this case of a humanitarian nature. Moreover, the mission was carried out on behalf of the sending State. All of the conditions required by international law to conclude as to the qualification of an “international mission” is fully and unquestionably met Furthermore, it cannot be disputed that Mr. Saab acted as “representative of the sending State in the special mission”. Saab, as a member of the special mission, enjoys absolute protection of its inviolability and immunity. He cannot be arrested, detained, prosecuted, tried or extradited. Otherwise, Cape Verde would violate the rules of customary international law governing the inviolability and immunity of members of special missions.
Why Diplomatic Immunity is Important
Supporters of the system say it is vital to prevent ambassadors and other embassy staff being harassed and hauled before courts on spurious grounds in an effort to prevent them doing their job. “It’s an essential tool. It protects our diplomats serving abroad,” says Craig Barker, professor of international law at London South Bank University. There are several theories underpinning the notion of diplomatic immunity — among them, the now-outmoded idea that an ambassador represents the body of a foreign king; the notion that an embassy is in fact foreign territory; the idea that such immunities are necessary for the smooth conduct of foreign relations. Behind these theories lies one simple truth: if one nation punishes diplomats for good reasons or bad, there is nothing to stop the other nation from doing the same. For all practical purposes, diplomats would be at risk of becoming hostages. In a thoughtful analysis published in 2000, legal scholar Dror Ben-Asher noted that “the occasional abuse of the diplomatic immunity rules is largely offset by the continuing need for it.” He added: “The actual number and percentage of abuses affecting fundamental human rights is relatively small, therefore a complete wholesale rewriting of the rules or even a too[1]radical reform, is undesirable.” These cases had one thing in common: a host country determined that immunity should not give the perpetrator impunity. This is morally true — but it is a price nations have agreed to pay for a larger gain. The alternative is to make envoys vulnerable to wrongful pressure and coercion, which in turn would make diplomacy impossible. Put simply, arresting a diplomat in violation of the Convention signals contempt for international norms — and with it, signals that one nation-state believes it can violate the rights it accords another.
US Has to be Careful in Making Orders
“This fact, in violation of international law and norms, clearly corresponds with the actions of aggression and siege against the Venezuelan people, undertaken by the government of the United States with the aim of abruptly affecting and interrupting efforts on behalf of the Bolivarian government, aimed at guaranteeing the right to food, health and other basic rights of the Venezuelan people,” according to a source in Saab’s legal defense.John B. Bellinger III an adjunct senior fellow at the Council on Foreign Relations in US wrote for “The New York Times”: “The U.S. government must not ignore abuse of domestic workers or other offenses committed by foreign diplomats in the U.S. but it would be a mistake to create exceptions to diplomatic immunity. This would greatly endanger U.S. diplomats who serve around the world. If American diplomats did not have immunity, they would be at constant risk of detention and prosecution on trumped-up charges, especially in countries where the United States is unpopular or where the government bows to popular pressure.”
Threat to the World Diplomacy Order
The case concerning the arrest and detention of Mr. Saab is not a simple matter of criminal law. The case raises fundamental questions relating to the application of the legal regime of inviolability and immunity in public international law, an expression of the principle of equality between States guaranteed by Article 2 (1) of the Charter of Nations. The question of immunity is clearly and persistently considered by all members of the international community as being directly linked to the fundamental principle of the sovereign equality of States. Respect for immunity rules is considered essential for the proper conduct of international relations. Such a precedent could seriously expose all diplomatic agents, their families, as well as special envoys, whose principles of immunity and inviolability could occasionally be called into question in an opportunistic manner by the receiving state based on allegations of non-compliance with formal notification requirements. Such precedents could seriously undermine international and diplomatic relations, as well as respect for the sovereign equality of states and the principle of non-interference.
