By José António dos Reis – Jun 29, 2021
I am writing this article with a bit of disgust, or rather, with pain in my heart, because its content may be an accusatory libel against the State of Cape Verde, a country where I was born, grew up, and learned to love. This article is not an accusation, in particular, either against the government, or the President of the Republic, or the Parliament. Rather, this is an accusation against the State of Cape Verde, and consequently against all the bodies that make up the State that have directly intervened or have failed to intervene in this process, whose conduct was not guided by the principles of justice, equality, reciprocity, independence and non-interference in the internal affairs of other states.
I am from a generation that has lived through and knows what colonial domination was; that knows, because it went through them, what fascist and one-party regimes are. I know who helped us in critical moments and who took a stand against foreign domination in our country.
Today, we are living in a complex conjuncture of accelerated dehumanization in which many remain silent, others are indifferent, while many others have a strategy, or are afraid of displeasing the “big uncle,” and all, in one way or another, are contributing to the prevailing injustice and the situation of the world being dominated by the powerful and the arrogant.
For this reason, I am not an indifferent citizen and I try not to be one; and I try to be, as much as possible, an attentive, just, and impartial citizen, but above all, a person in solidarity with the weakest and the most oppressed of the world.
I am and will always be against injustice and oppression, and in the exercise/duty of my citizenship I am obliged not to remain silent, even if this audacity, in these times of managing silences, may have a cost which, for my freedom and dignity as a citizen, I am willing to pay.
The Alex Saab case is—or has become—a complicated process, and whatever its outcome, the State of Cape Verde will come out with a bad image. The analysis of the case does not dispense with political, legal and diplomatic appreciation, taking into account the actors involved and their declared and unacknowledged objectives. Only those who are distracted, either deliberately or circumstantially, will approach this matter as a simple case of justice and nothing else; in reality, this matter has everything else, and very little justice.
One who does not respect international law and thinks themselves invested with the power to interfere in the internal affairs of other countries, who can impose unilateral sanctions, who thinks that they can compel and punish countries that dare to contradict this policy, who sanctions and persecutes the leaders of other countries, who does not respect the sovereignty of other nations, the one who does this certainly does not advocate for nor promote law and justice: they make their own justice, the justice that suits them on each occasion.
For about seven years, Venezuela has been the target of a set of laws and presidential decrees from the United States, aimed at its economic, political and diplomatic blockade. These actions of the US government aim to interfere and bring about a political change in that country, in clear violation of the principles of international law and the United Nations Charter itself.
Let us remember some facts. The blockade of Venezuela began, officially, in December 2014, when the US congress passed the Venezuela Defense of Human Rights and Civil Society Act No. 113-278, allowing for the application of sanctions against Venezuelans. In March 2015, Executive Order No. 13692 was passed by the US government, declaring Venezuela a “threat to the internal security of the United States,” thus artificially creating legal sustenance to attack Venezuela in various forms. The same procedure was used in 2019, invoking the threat to internal security, to enact a new executive order, through which the US government imposed total economic sanctions against Venezuela, freezing all its assets in the United States and prohibiting transactions with that country, with emphasis on the sale of oil.
The resulting impacts of the blockade were and still are enormous, and we should highlight the so-called bank withholdings in which operations such as payment orders issued by Venezuelans, that used to take around 48 hours to get completed, now take 10 to 20 days to go through; fines levied on third countries that carry out trade with Venezuela; or even the fall of earnings in foreign currency that, due to the blockade, had a drop in the order of 99% in the last 5 years (2015-2020).
In a country where about 80% of the internal consumption is met with imported products, with sharp drops in revenue and foreign exchange, national supply has become a difficult, if not a practically unsolvable problem. It should not be forgotten that Venezuela has been prevented from carrying out international transactions with the US dollar, which has increased expenses on foreign exchange, estimated at over $20 billion.
Moreover, the United States government has sanctioned more than 100 entities and individuals associated with the Venezuelan government, in addition to recognizing Juan Guaidó as president of Venezuela in 2019.
The consequences of this blockade policy on Venezuela have been so catastrophic that the UN rapporteur, Alena Douhan, an expert in international law and human rights and appointed Special Rapporteur on the negative impact of sanctions on human rights in March 2020, produced a report where she categorically stated that the US sanctions have devastating effects on food, health, and education in Venezuela. As a result, she recommended that “all legal mechanisms should be used to allow the Venezuelan government to restore its social and development projects.” Therefore, she emphasizes “the importance of dialogue, the rule of law, and respect for human rights among States.”
To anyone of good faith, it is beyond doubt that the unilateral sanctions imposed by the US government are demonstrably illegal. They are illegal under the Charter of the Organization of American States (OAS), grossly violating Articles 19 and 20 of Chapter IV of that multilateral body; they are also illegal under international human rights law, thus extending these violations to treaties signed by the United States itself. Moreover, the sanctions imposed on Venezuela violate US legislation itself, whose executive authority, in order to circumvent the control of other bodies, ingeniously evokes the “threat to the internal security of the United States” to be able to approve and execute them freely.
Interestingly, for all the fuss made by the US authorities over money laundering by Saab, a spokesperson for the Prosecutor’s Office of Geneva told Spanish news agency EFE in March that the case opened by Switzerland against Saab in 2018 was dismissed for lack of evidence.
Alex Saab was accused of alleged money laundering, through accounts in Switzerland, the same accusation that the United States of America makes against him, without, however, making a minimum effort to prove any illicit origin of the money.
The accusation by the US authorities that Alex Saab laundered $350 million through the American financial system, having as the source of the money possible contracts for the construction of low cost social housing in Venezuela, which he failed to fulfill, and whose final purpose was to pay for acts of corruption by some Venezuelan public institutions, is vague, imprecise, and impossible to prove, since the injured party apparently never claimed that this happened. It is curious that the United States of America appears, believing itself to be Venezuela’s guardian, to determine the procedures and legality of administrative acts in a sovereign country, including the fulfillment or not of a contract.
This is a strange and difficult to prove accusation, which is used to promote the persecutory and police-like zeal of a state that thinks itself the owner of another state; an accusation from a state that even without proving corruption, accuses and sends people to jail for laundering money without it being known whether said money is of lawful or illicit origin.
Well, it is in this background that one must analyze and try to understand the assault of the United States against Alex Saab, which is part of a strategy aiming to neutralize him and all those who dare to “break” the blockade of Venezuela.
Furthermore, the blockade is seen as a fundamental instrument of the policy of the United States of America whose ultimate goal is to overthrow the Venezuelan government, even if it is in flagrant violation of international law and in disrespect of the sovereignty of other states.
Whoever wants to risk being accused of anything, or any country that wants to be sanctioned or fined, let them dare carry out any transaction with Venezuela or try to break the blockade.
This is the stark reality, to ignore it is simply to ignore the most basic principles of justice, and whoever wants to be fair and impartial, irrespective of having sympathy or not for the Venezuelan regime, cannot ignore the context and the background of this US action against Alex Saab, and cannot ignore this evident and notorious fact that this is flagrant violation of the sovereignty of a state. An obvious conclusion follows from this invasive stance: the motivations of the US government to persecute Alex Saab and Venezuela are political in nature, albeit disguised as legal reasons and pretexts.
Anyone who prosecutes a person for allegedly committing eight serious crimes, with the ability, for tactical convenience, to remove seven of the eight serious crimes, just to make extradition feasible, is capable of anything. Through this “simple” and significant gesture, one can see the true importance that is given to the alleged serious crimes committed. Thus, at this rate, one could easily become ridiculous; if this expedient was necessary to obtain extradition, of the United States accepting, without blinking, to withdraw all eight crimes in order to finally obtain extradition, to try and convict the man for no crime committed.
This is another one of the absurdities of this case, like a “China deal” that some want to call justice.
Thus, political persecution and other forms of coercion are instruments to be used against all Venezuelan leaders or their collaborators who dare, in the current blockade situation, to get out of the country, under whatever pretext or mission, in order to circumvent or defy the unilaterally imposed sanctions. The “elimination” of Alex Saab from the scene is an integral part of this strategy of neutralizing all those who oppose the imposition of a new order in Venezuela.
State of Cape Verde: Schizophrenia I
Unfortunately, a year has passed since the sad episode that occurred on the island of Sal, on June 12, where a special envoy from a country with which Cape Verde has diplomatic relations, and which until recently, within the framework of cooperation, had students in that country, was illegally and arbitrarily arrested inside a non-commercial aircraft, without an arrest warrant.
Initially, the Cape Verdean authorities made it appear that the arrest had been made because of a red alert issued by Interpol. With the questioning that the red alert was issued only on June 13, one day after the arrest, the stated reason became that the arrest request was made directly by the US authorities, more specifically by the Florida District Court, and that the Cape Verdean authorities acted under the provisions of articles 3 and 4 of Law 6/VIII/2011 of August 29.
As an example, the statement of the then Cape Verdean minister of foreign affairs, made in an interview on Cape Verdean public television, is worth recalling, where he stated that “the government is not taking any sides. Absolutely, we are not taking any sides. As a member of Interpol, the PJ legally fulfilled a mandate and handed Saab over to the courts that had ordered the arrest.
The minister’s statements left no doubt that Alex Saab’s arrest was triggered by a request from Interpol, and the Cape Verdean police authorities were merely fulfilling their obligations as a supposed member of that organisation.
In fact, Cape Verde is not even a full member of Interpol after all, as has been demonstrated throughout the procedure, since it has not complied with the formalities required for it to be able to become a member of this international organization.
This argument of Interpol membership, aired on public television by the minister of foreign affairs, was used in the ECOWAS Court of Justice, with one added detail: the date that appears in the red alert, June 13, is justified with the difference in time zone between Lyon and Praia. Confronted by the Court, there was no way to prove the time zone theory, and the Court eventually did not accept as valid the justification of the State of Cape Verde.
As for the request for the detention of Alex Saab, made to Cape Verde by the Florida District Court, the ruling of the ECOWAS Court of Justice does not refer to a precise date of its formulation. The accuracy of the date of the request is relevant to the case because it allows one to understand certain dynamics related to the moment of detention, keeping in mind that Saab does not live in Cape Verde, and, consequently, was not wanted here.
Since he does not live in Cape Verde, it is legitimate to ask: how did the US authorities and the Florida District Court learn of Alex Saab’s presence in our country so that they could, in time, issue the request for his arrest?
Logically speaking, the request to Cape Verde by the US authorities, could be made if, and only if, they knew that the person they wanted was in Cape Verde. If that was the case, then through what channels did they have access to the information that the wanted person was in Cape Verde, when the man did not even leave the aircraft in which he was traveling, much less cross our border?
It is also important to find out how the Cape Verdean authorities knew that Alex Saab was traveling exactly on that plane, on that day and at that time to our country, since Venezuela did not inform the Cape Verdean authorities about the passage of its special envoy through our territory.
Today it is known that it was not even planned for the aircraft to make the technical stopover in Cape Verde. Given that the pilot had requested permission to land to refuel in some countries in the region and received negative responses, it seems that Cape Verde was worked out to be the perfect destination so that what actually happened could happen.
It is therefore important to know the following: who informed and instructed Cape Verde to commit such a feat at 9:30 p.m. on June 12, entering a non-commercial aircraft, without a warrant, to arrest a person who was on a special mission for a country with which Cape Verde has diplomatic relations?
The State of Cape Verde will have to say how it knew that Alex Saab was arriving in the country on that plane and on that day and at that time, because it has been proven that it was not via Interpol. It is more than evident that it was not via the Florida District Court for the simple reason that Alex Saab did not reside in Cape Verde. Nor was it via Venezuela, which only revealed to Cape Verde the presence of its special envoy the day after his arrest. There is one hypothesis, and perhaps it is the most likely one: was it the American intelligence and espionage services that were, it seems, monitoring the plane from Venezuela until it arrived in Cape Verde?
Another question remains in the air to be answered by those in charge: which entity of Cape Verde is the counterpart that exchanges information with the US secret and espionage services? The Judicial Police is not! The Public Order Police much less! What is this entity? Who can investigate this so as to enlighten public knowledge?
The duplicity of Cape Verde’s posture makes it clear, however, that everything was not sufficiently rehearsed for there to be a guiding line of discourse, with the necessary coherence, that could give the discourse produced the indispensable logic and credibility, as we will see later on.
A serious and respectable State does not use tricks and gimmicks to assert its position, it must respect itself in order to be respected as such.
These questions and the absence of serious and credible answers only suggest one thing: it seems that we are facing a political process, disguised as a legal matter, with clear elements of political persecution, and articulated on different levels and commands.
State of Cape Verde: Schizophrenia II
The ambivalence of the Cape Verdean State pervades the whole process which, it must be said, was very poorly conducted.
For better or worse, Cape Verde decided to play on two boards. One, internally, and the other, externally, with different teams and different spokespersons and discourses.
As defendant in the ECOWAS Court of Justice, the State of Cape Verde normally participated in the process, did not question the competence of the court at any time, therefore accepting its jurisdiction, and defended itself against the charges brought against it and justified the reasons for its actions. From the trial the State emerged convicted, and obliged to release Alex Saab and pay him compensation.
The curious thing is that at no time before the ECOWAS Court of Justice did Cape Verde invoke the incompetence of the court, the inapplicability of the additional protocol of 2005, and much less did it claim not to recognize the jurisdiction of the court in the matter.
Cape Verde, as defendant, complied and participated fully in all phases of the procedure, and like any litigant in a lawsuit could lose or win. In the end it lost, and it should have behaved in an upright and honorable manner, which did not happen.
On the domestic front, surprisingly, another State of Cape Verde emerges. It does not recognize the competence of the ECOWAS Court in matters of human rights, on the grounds that Cape Verde has not signed and ratified the additional protocol that attributed those competences to the court. It decided, solemnly and unilaterally, not to comply with the decisions of the court where it was present and litigated as a party, and did not comply with the decision because the ruling was not in its favor.
This position of not complying with the decision of the ECOWAS Court of Justice is led by the Attorney General of the Republic who, in an interview outside the Presidential Palace, said, “If the court has no jurisdiction, it cannot decide on this issue… Note that in this case that is before the ECOWAS Court, it was not the judiciary that intervened as a party, it was the government. And if the government was a party to the case, you cannot say that the defendant has to put the person under house arrest. It is the court that does that.” He also added that for Cape Verde to be subject to the jurisdiction of ECOWAS it was necessary for the protocol to have been signed and ratified, which never happened.
This reaction of the Prosecutor General’s Office was in relation to the first decision of the court, which ordered the placement of Alex Saab under house arrest; however, the Attorney General’s position regarding the incompetence of the court remained unchanged, even after the second decision of the court.
It should be noted that the Public Prosecutor’s Office, under Article 225(2) of the Constitution of the Republic, represents the State, and with due respect, the statements of the Attorney General in which he projects a two- or three-headed state of Cape Verde does not fit the definition and the concept of State.
It was not the government or the judiciary of Cape Verde that was sued in the ECOWAS Court of Justice, it was the State of Cape Verde.
The State of Cape Verde, with its own structure and political organization, where there is separation and interdependence of powers, which may be represented externally by the government or the president of the Republic, but always on behalf of the State as a whole. The binding of the State to international treaties and agreements is done with the participation of different institutions of sovereignty, namely, the government that adheres or approves, the parliament that ratifies, and the president of the republic that promulgates, precisely to avoid the notion and the bicephalous or tricephalous behavior of the State when facing international commitments.
It is not the government that is bound to ECOWAS, it is the State of Cape Verde. It is not the government that is a member of ECOWAS, it is the State of Cape Verde.
What can be clearly seen is that the constituent bodies of the State of Cape Verde have not articulated themselves properly in the Alex Saab case, because this is the only way to explain this communicational “cacophony” or “split personality” of the State. It remains to be explained why the Public Prosecutor has not defended or coordinated the defense of the State of Cape Verde in the ECOWAS Court of Justice, as a public entity that represents the State, according to the Constitution, where it would have the unique opportunity to question the competence and jurisdiction of the court, in this case, and, perhaps, where it would assert its thesis.
Invoking the principle of separation of powers to disregard a judicial decision in which the State of Cape Verde is found guilty is a remarkable innovation in public international law at all levels, particularly because of the argument that the government is the one that has been sued, not the judiciary, and therefore the latter is not obliged to comply.
Cape Verde bound itself to the Revised Treaty of ECOWAS in 1993, represented at the time by the prime minister, and freely approved some important norms of this legal instrument of the Community, namely:
The preamble of the treaty where it is precisely stated: “the integration of Member States into a viable regional Community may require the partial and progressive pooling of their national sovereignty for the benefit of the Community in the framework of a collective political will;”
Article 15 creates the ECOWAS Court of Justice and grants it powers in which “the judgments of the Court of Justice are binding on Member States, on the institutions of the Community, and on private and legal persons;”
Article 9(4) of the Revised Treaty, which gives binding power to the decisions of the Conferences of Heads of State and Government: “the decisions of the Conferences shall be binding on the Member States and the Institutions of the Community;”
Article 9(6) of the Revised Treaty that establishes that “these decisions are enforceable by the power of law sixty (60) days after the date of their publication in the Official Journal of the Community,” as well as the acceptance by the State of Cape Verde of provisions provided for in paragraph 7 of the same article, that establish the obligation that “each Member State shall publish the decisions in question in its Official Gazette within the time limits provided.”
There was a significant change in the organization and functioning of ECOWAS that, it seems, went unnoticed in Cape Verde, the national authorities navigating somewhat at the whim of the tide, and also notable was the absence of a national body that had the scope, knowledge and experience on issues related to ECOWAS so that the country could follow and bind or not bind itself to certain decisions of the community institution.
At a Conference of Heads of State and Government held on June 14, 2005, in Abuja, where Cape Verde was present, through the Director General of Foreign Policy of the Ministry of Foreign Affairs, probably invested with full powers, representing the President of the Republic, important decisions were taken in the framework of the ECOWAS reform, namely:
a) Transformation of the ECOWAS Executive Secretariat into the ECOWAS Commission, as well as the adoption of a new legal regime for Community Acts. Until that time, only Protocols and Conventions were binding on Member States;
b) The Community Acts become additional Acts, Regulations, Directives, Decisions, Recommendations and Opinions
Thus, the Conference is empowered to amend the Treaty by means of Additional Acts and not by means of Additional Protocols, and the Additional Acts are binding on the Member States as well as on the Community Institutions.
The Council of Ministers has the power to enact Regulations and Directives, take Decisions and issue Recommendations. The Regulations and Directives are binding and directly applicable for Member States as well as for Community Institutions;
c) The Conference also agreed that after the second term, the ECOWAS Parliament would be composed of parliamentarians elected by universal and direct suffrage to exercise legislative powers in specific areas.
While ECOWAS is transforming itself and equipping itself with new instruments of supranational character, within its walls a retrograde and, in some cases, reactionary, nationalism is distractedly playing with the sovereignty of the times of the nation-state.
Decisions and Disagreements
The State of Cape Verde has transformed itself, voluntarily or involuntarily, from a cooperator in the international judicial process into an active party, if not the main stakeholder, in the case against Alex Saab.
Practically all of the interventions of the defense were aimed at opposing the actions of the Cape Verdean authorities: starting with the detention on June 12, passing from the status of Special Envoy to conditions of treatment as a prisoner, among other situations. This posture was reiterated at various times and in different situations, which led the defense of Alex Saab to seek justice in other bodies such as the ECOWAS Court of Justice or the United Nations Human Rights Committee.
Cape Verde, assuming the role of main accuser, left the US authorities as a mere spectator in the process. So much so that it seems that they did not even have the need to activate the provisions of Article 47 of the International Judicial Cooperation in Criminal Matters Act in order to be represented and participate in the progress of the case. They had and have Cape Verde as an active party in the process and they simply are or were reassured!
Judgements rendered by two jurisdictional instances on the same case should be cause for reflection, all the more so because we are dealing with decisions made by collegial judicial bodies of the highest levels, which leads one to believe that the decision was made with the necessary consideration of the various values at stake. Considering the relevance of this decision, the consequences of which may do justice or destroy a person’s personal and family life, the decision makers should necessarily keep in mind that maxim: it is better to have a criminal at liberty than an innocent person convicted and deprived of liberty.
Of the two judgments, some aspects that seem particularly relevant to us should be highlighted, namely: the legality or illegality of the arrest, whether or not Cape Verde is bound by the decisions of the ECOWAS Court, and the status of special envoy.
Featured image: #FreeAlexSaab poster. File photo.
Translation: Orinoco Tribune (Saheli Chowdhury)