Courtesy of Fuser News
Since its inception in 1797, the US Constitution has been amended 27 times. Although it is a complex process that often takes several years to reach an agreement, the fact that Alex Saab remains in prison is a paradox. At least reviewing the practice of the courts hearing the case and the judicial methodology of the United States which is based on jurisprudence.
In other words, the strength of an accusation must be supported by past cases. The US, whose foreign policy depends on robust diplomacy, however questionable its methods, must have more special envoys around the world than the sum of the same officials in all countries.
At the time of writing, Alex Saab has been illegitimately deprived of his liberty for almost 600 days. This is with regard to Article 29 of the Vienna Convention, to which Cape Verde, the United States, Iran and Venezuela are signatories, and Articles 254 and 254d of the Diplomatic Relations Act.
In the legal history of the United States, there is not a single case in which a diplomat has been treated the way Alex Saab has been treated. What does exist in favour of the Venezuelan diplomat and his defence team is quite a bit of case law.
Bergman Vs. De Sieyes, New York, 1946
Jacques De Sieyes, French diplomatic minister to Bolivia, was served with a civil suit in New York while in transit to La Paz. The United States acted as a third state in this case and in the first instance the plaintiff argued that he did not enjoy immunity because he was not a diplomat accredited to the United States, but to Bolivia, and that the lawsuit did not prevent him from carrying out his duties as a diplomat.
However, a thorough review of the case showed that a diplomatic official represents in himself or herself the state that accredits him or her, so that any civil or criminal action would be against the states that issue and accept the designation and not against the individual. Furthermore, they concluded that a diplomat is entitled to immunity in third countries whether in transit or in residence in order to ensure the natural development of relations between nations.
Alex Saab, accredited as a special envoy by Venezuela and accepted by Iran, is a diplomat protected by the Vienna Convention and the Diplomatic Relations Act, detained in transit in Cape Verde, which served as a third state. The fact that the State Department does not recognise his diplomatic status due to the absence of relations with Iran and Venezuela does not exempt him from compliance with both international law and the United States' own jurisprudence.
Abdulaziz v. Miami-Dade County, 1982
Turki Bin Abdulaziz, a member of the Saudi Arabian royal family, is confronted by Miami-Dade County police with his bodyguards as they attempted to execute a search warrant at his Cricket Club flat. An investigation by the Florida State Attorney's Office revealed that the Saudi prince and his family lacked diplomatic immunity.
During the Florida court litigation Abdulaziz was designated as Saudi Arabia's special envoy and immediately filed suit against the county and the police officers who raided his flat. Although his designation was after the fact, the 11th Circuit Court of Appeals held that once the State Department certifies a diplomatic agent, the courts must accept the designation and the derivative immunity serves as a defence to lawsuits already filed.
Moreover, it determined that it is the foreign country and not the State Department that classifies its officials as diplomats. This jurisprudence holds that diplomatic immunity "destroys" the power of US courts to act. Therefore, Alex Saab enjoys full diplomatic immunity within the territory of the United States, Cape Verde or any country signatory to the Vienna Convention.
The question of recognition of Nicolás Maduro
It is often argued that by not recognising Nicolás Maduro as president of Venezuela, the US government has no reason to recognise Alex Saab as a diplomat. This is a misunderstanding of meanings.
The US government's actions against Nicolás Maduro are not binding on Alex Saab's diplomatic status because he is a Foreign Service officer of the Bolivarian Republic of Venezuela, not Nicolás Maduro as an individual. This is a legal consideration of great impact that must be borne in mind at all times.
Even if the US government recognises the fictitious presidency of Juan Guaidó, this is a stateless presidency, symbolic, to be elegant. The officials at the UN are those appointed by the foreign minister who answers to Nicolás Maduro. This is probably the origin of the torture suffered by Alex Saab in Cape Verde.
Dialogue with black bags over your face?
Alex Saab's case in Cape Verde remains open because the irregularity of his transfer from Sal Island to Florida has more characteristics of extraction than extradition.
Why were the Cape Verdean authorities asking Alex Saab to cooperate while he was being tortured if he had committed no crime? Because the request for collaboration with bags over the face limiting the breathing of a diabetic, hypertensive man with a history of cancer was made by the US using Cape Verde to keep its "hands clean" in the process.
An eventual betrayal by Alex Saab would weaken the government of Nicolás Maduro and its already battered image in the eyes of the world thanks to the media. This would give the Venezuelan opposition time and air to adjust after the disaster of Juan Guaidó's interim presidency, of which the United States is the main promoter. But the tactic is not working out as they had hoped because Alex Saab has not ratted anyone out and is unlikely to do so. This is where Colombia and Ecuador come into play.
Continental lawfare and media show
Since Alex Saab's arrival in Florida, and in view of the appeals lodged for the recognition of his diplomatic immunity, the US Department of Justice has been trying to buy time because the case is not destroyed, it does not exist due to lack of evidence.
They then activate political actors from complicit countries, Colombia and Ecuador to be precise, and in this way dust off facts already investigated and judged for which Alex Saab has been acquitted in order to try to create a case with whatever it takes.
Impact on international relations
The plenipotentiary image of the United States is media-friendly, that much is clear. But behind closed doors, among themselves, they know they are legally cornered. If Alex Saab's diplomatic immunity is not recognised and the "case" continues, what is at stake is nothing less than the future of international relations, political stability between nations and US Foreign Service officers themselves. At the end of the day, Iran does not recognise Israel as a state, would they accept that in collusion with allied countries Israeli diplomats would be detained and transferred to Tehran to stand trial for anything? Surely not.