By José António dos Reis – Jun 30, 2021
Orinoco Tribune’s translation of Part I of this excellent analysis on Alex Saab illegal detention and Cape Verde State role can be read HERE
A – The legality or illegality of the arrest
Discussing the ruling of the ECOWAS Court of Justice, there is little doubt that the arrest was illegal and arbitrary.
In this ruling, in which the rapporteur was precisely a Cape Verdean judge and former Minister of Justice of our country, the State of Cape Verde claimed that it detained Alex Saab at the request of the United States of America, more specifically, at the request of the District Court of Florida, adding that the detention was made based on the general principles of international mutual assistance in judicial matters, and in compliance with the provisions of Articles 3 and 4 of Law No. 6/VIII/2011, of August 29 of Cape Verde.
Since it has not been proven that Alex Saab’s detention was on the basis of Interpol’s Red Alert, since the Cape Verdean authorities could not prove that they had in their possession at the time of the detention any request from that entity, and, this being so, the court reaches an inevitable conclusion: Cape Verde acted without the authority of the Interpol to detain Alex Saab on June 12, and, due to this fact, the detention was illegal, as it was contrary to the provisions of the Article 6 of the African Charter on Human Rights.
But the ruling of the ECOWAS Court of Justice did not limit itself to analyzing Cape Verde’s intervention only from the perspective of a possible Interpol request. Cape Verde submitted to the procedure what could be called a Red Alert, dated June 13, which document states that “This request shall be treated as a formal request for provisional arrest, in accordance with applicable national and/or bilateral and multilateral treaties”, that is, the arrest based on Red Alert must comply with national laws and/or applicable bilateral or multilateral agreements.
The ECOWAS Court of Justice has made a detailed analysis of the national legislation, starting with Law No. 6/VIII/2011 which establishes that the extradition process can be done in two ways: either by early arrest or provisional detention, request for which must be formally submitted by the requesting entity, or by arrest not directly requested by the national criminal police authorities.
Cape Verde claims that it detained Alex Saab on the basis of the general principles of international mutual assistance in judicial matters and in compliance with the provisions of Articles 3 and 4 of Law No. 6/VIII/2011. Since Cape Verde has no bilateral extradition agreement with the United States of America, there is no basis for mutual assistance between the two countries.
After a thorough analysis of the articles of the cited Law, and the relevant articles of the Criminal Procedure Code, the ECOWAS Court of Justice concluded, again on this point, that the arrest and detention of Alex Saab “did not comply with the formalities required by the provisions of articles 268 and 269 of the Criminal Procedure Code, thereby the arrest was illegal and arbitrary.”
In the ruling of the Supreme Court of Justice of Cape Verde, no legal relevance was given to the fact that the Interpol Red Alert was activated after the arrest of Alex Saab, even though it is public and notorious that at first the Cape Verdean authorities had stated that the arrest of the Venezuelan diplomat was made based on the basis of an Interpol Red Alert, which was, in fact, confirmed by Alex Saab to the judge who validated the arrest, where he stated, quoted in the judgment, “they informed him that there was an Interpol arrest warrant against him, although they did not show it to him, and then they told him the reason for his arrest.”
And is this what the law requires?
Later on it will be clearly seen that it is not so!
The Supreme Court of Justice did not give much legal value to the fact that Cape Verde is not a full member of Interpol, but rather to the fact that this cooperation can take place without Cape Verde being formally associated with this organization.
To justify the detention and its legality, the Supreme Court of Justice referred to Article 39 of the International Judicial Cooperation in Criminal Matters Act, which provides for the figure of “Detention not directly requested,” a rule that allows the criminal police authorities “to carry out, under the terms of the criminal procedural law in force, the detention of individuals who, according to official information, namely from Interpol, are wanted by competent foreign authorities for the purpose of prosecution or execution of sentence for facts that clearly justify extradition.”
As can be seen from the regulations allowing for the arrest by the criminal police authorities, there is clearly a legal requirement to avoid arbitrariness: the procedure must be carried out in accordance with the criminal procedural law in force, anything outside this framework is necessarily illegal.
At the time of the arrest, the Cape Verdean police authorities told Alex Saab that they had an Interpol warrant and that the arrest was based on this document, but Saab was never shown this document.
As the ruling of the ECOWAS Court of Justice clearly stated, “an arrest made pursuant to Article 269, Paragraph 3 of the Cape Verde Code of Criminal Procedure does not exempt immediate confirmation by warrant in accordance with Paragraph 2 of the same article,” adding that “even when the arrest is requested by means of telecommunications, it must be made by warrant, which must be drawn up in triplicate, signed by a judicial or prosecuting authority and must contain the identification of the person to whom a copy of the said arrest warrant must be delivered.”
The ECOWAS Court of Justice goes further, resorting to Articles 150 and 151 of the Cape Verde Code of Criminal Procedure, which allows certain irregularities in detention to be remedied, and reaches the following conclusion: the failure of the Cape Verdean authorities to comply with the legal norms is not procedural in nature, but rather of substance, and consequently, as states the judgment: “the execution of an arrest without a valid warrant as in this case, being an illegal act, such illegality cannot be remedied by the said provisions.”
A reasoned position to reflect on!
Similar approach was taken by the Supreme Court of Justice when confronted by the defense with the fact that Cape Verde had not completed the ratification process of the United Nations Convention against Transnational Organized Crime, an international legal tool invoked by the national authorities to cover the attack against Alex Saab, taking into consideration that Cape Verde has no extradition agreement with the United States of America.
The Supreme Court, without the opposing party having invoked it, resorted to a rule of the Vienna Treaty on the Law of Treaties, specifically Article 27, which states that “A party may not invoke the provisions of its internal law to justify the non-performance of a treaty,” in order to invalidate the claims of the defense.
However, the question that arises is whether Cape Verde, having not completed the ratification process of the United Nations Convention against Transnational Organized Crime, can consider itself a party to this same treaty. The Vienna Treaty on the Law of Treaties itself in its Article 2 defines a “party” as “a state that has consented to be bound by the treaty,” so, unless understood in some other way, it seems that Article 27 applies to parties to the treaty and not to third states, because this is the only way to understand the relationship established with Article 46 of the same treaty.
Since Cape Verde is not a full party to this treaty, it seems that Article 27 does not apply, with due respect, to the case at hand.
B – Are ECOWAS decisions binding or not on Cape Verde
To begin with, it is important to quote again, here and now, Article 15(4) of the Revised Treaty of 1993 which replaced that of 1975: “The judgments of the Court of Justice shall have binding effect upon Member States, Institutions of the Community, and upon natural and legal persons.” This is an imperative and unambiguous rule, enshrined in the ECOWAS Constitutive Treaty. The treaty, as regards the status, function, competencies, procedures and other issues related to the Court of Justice, referred for its definition an additional protocol.
Thus, the protocol A/P1/7/91 was approved, with the participation and signature of Cape Verde, which defined the composition, competencies, procedure and other matters related to the ECOWAS Court of Justice.
In 2005, through the additional protocol A/SP.1/01/05, the protocol A/P1/7/91 was revised, introducing some new competencies to the court and changing certain articles that made references to the articles of the 1975 Treaty. Cape Verde, it seems, was not present and did not sign the protocol A/SP.1/01/05; consequently, it has not ratified it.
The reasons why Cape Verde did not attend the Conference of Heads of State and Government are totally unknown, although it is more than certain that, as a full member of the conference, it received the invitation and agenda of the procedure.
It is also not known why Cape Verde did not sign or ratify the additional protocol A/SP.1/01/05, and it is certain that until the Saab case arose, it never spoke out against the said protocol.
There is no information regarding the participation of Cape Verde in the preparatory work, especially in the drafting and consensus building of the proposal of the protocol that was discussed and approved at the conference. As is known, and is of good practice, these documents, when they arrive at the conference, the essential points will have already been agreed upon, with the meeting serving only for their ratification.
Cape Verde at no time in the process of drafting and approving the protocol presented any objection, much less “reservations” in relation to any of its norms.
Cape Verde does not reject the protocol or oppose its content, it only states that it has not ratified it. This is Cape Verde’s main argument for not being bound by the decision of the ECOWAS Court of Justice: simply because it has not signed and ratified the 2005 protocol without any plausible explanation.
What might seem like a sovereign choice, simply appears to be a great neglect of its obligations as a member of a community.
Cape Verde has committed and assumed some obligations, under the Revised Treaty, and has accepted, namely that:
a) The decisions of the ECOWAS Court of Justice as binding (Article 15(4) of the treaty);
b) The decisions of the Conference of Heads of State and Government as binding (Article 9(4) of the treaty);
c) 60 days after publication in the Official Gazette of the Community, decisions are enforceable by operation of law (Article 9(6));
d) Each Member-State must publish the same decisions in its official gazette within the time limits laid down in Paragraph 6 of the same Article;
e) Each Member-State shall commit itself to take all appropriate measures, in accordance with its constitutional procedures, to ensure the promulgation and circulation of such laws and regulations as are necessary to implement the provisions of this treaty (Article 5(2));
f) Each Member-State shall commit itself to honor its obligations under the present treaty and to comply with the decisions and regulations of the community (Paragraph 3 of the same article).
The decision of the conference, which approved the Additional Protocol (A/SP.1/01/05), was held in Accra, Ghana, on January 19, 2005, and in it, the Final Communiqué reads as follows:
“… the protocol related to the Court of Justice (that of 1991) did not provide the court with consequential powers aimed at making an adequate contribution to the acceleration of the regional integration process. As a result, the conference amended the protocol.
The amended protocol allows the court to settle conflicts arising from the interpretation and application of additional treaty acts, decisions, regulations and directives of the competent institutions. This amendment allows individuals and legal persons to seek redress from the court. This amendment also establishes a procedure for enforcement and respect of the court’s decision.”
This was the content of the decision of the Accra Conference on the Additional Protocol (A/SP.1/01/05) which, as we have seen, is binding under the Revised Treaty of 1993.
And what did Cape Verde do in the face of this decision?
During the 16 years that this protocol has been in force, and is an integral part of the treaty and the competences of the court, Cape Verde has remained impassive and serene, and has not used any of the instruments that the treaties provide to assert its possible and unknown opposition. Cape Verde does not state any objection, does not make any reservations, does not ask for a suspension of this part of the treaty, and instead limits itself, when confronted with an unfavorable decision by the court, to use the argument of a bad loser: the protocol has not been signed or ratified by us, therefore the decision of the court is not binding on us.
Cape Verde, by not having communicated to ECOWAS its opposition, which would have been legitimate, to this part of the treaty in force, is clearly in breach of the obligations it solemnly assumed when it accepted the provisions of Article 5, Paragraphs 2 and 3 of the Revised Treaty.
It should be noted that the Revised Treaty of the ECOWAS, in the transitional provisions and safeguard clause, in Paragraph 1 of Article 92, establishes that “Upon entry into force of this Revised Treaty, in accordance with the provisions of Article 89, the provisions of the United Nations Vienna Convention on the Law of International Treaties adopted on May 23, 1969, shall apply to the definition of the rights and obligations of Member States under the ECOWAS Treaty of 1975 and this Revised Treaty.”
Now, this being the case in this binding matter, the invocation of Article 27 of the Vienna Treaty on the Law of Treaties, which reads: “A party may not invoke the provisions of its internal law as justification for failing to perform a treaty,” is entirely appropriate.
And if we combine the provisions of Article 27 with those of Article 45 of the same treaty, which states that “A State may no longer invoke a cause of nullity, revocation, withdrawal, or suspension of performance of a treaty, based on Articles 46 to 50 or Articles 60 and 62, if, after having become aware of the facts, that State, … by virtue of its conduct, should be considered as having agreed that the treaty is valid, remains in force or continues in execution, as the case may be,” it is clear that Cape Verde conveyed, to everyone, the idea that it had nothing against that part of the treaty.
The conduct of Cape Verde, during these 16 years, in the face of a decision that was public and well known, and not having formally contested it by appropriate means, either before or after its entry into force, can only be understood as having implicitly agreed (and it would be very serious if Cape Verde argued that it was unaware of the decision to extend the jurisdiction of the court), being the argument of non-binding to the treaty, a mere expedient or maneuver to avoid complying with the unfavorable decision of the ECOWAS Court of Justice.
To use the popular slang: One who remains silent, consents.
Thus, borrowing the arguments of the Supreme Court of Justice, when it rebutted the arguments of the defense regarding the fact that Cape Verde had not completed the process of ratification of the United Nations Convention against Transnational Organized Crime, the Supreme Court, on that occasion, relied on a rule of international law to overthrow the intentions of the defense.
The Supreme Court then maintained that “Article 27 of the Vienna Convention on the Law of Treaties, a norm that has the nature of customary international law, as is consensually admitted, and is therefore part of the Cape Verdean legal order, pursuant to Article 12, Paragraph 1, of the Constitution of the Republic” provided legal coverage for the claims of the Cape Verdean authorities to arrest Alex Saab. To conclude its reasoning, the Supreme Court also stated summarily: “Therefore, the lack of publication of the notice of ratification of the treaty in question, which may affect the effectiveness of this legal instrument, cannot, however, be invoked as grounds by the State of Cape Verde, including its judicial institutions, to avoid its obligations to another contracting party,” of course, by virtue of the provisions of Article 27 of the Convention.
Paradoxically, this same argument was not invoked by the Supreme Court of Justice to demonstrate the binding nature of the decisions of the ECOWAS Court of Justice on the State of Cape Verde, by virtue of the provisions contained in both the Revised Treaty and the Vienna Convention on the Law of Treaties.
A distinction should be made between a State that subscribes to or approves a treaty that is open to all countries, and a State that is an integral part or member of an organization that produces a treaty. What is discussed and decided in an organization to which a State belongs concerns that same State, which has at its disposal mechanisms to propose, change, suspend the application, not accept or promote other diligences to enforce its will and not the recourse to the way of silence.
The feeling one gets is that many see ECOWAS as something external to Cape Verde, as if it were a strange and distant body on the “African coast,” when in truth, Cape Verde is an integral part of this community, holding the same rights and obligations as any other member in full enjoyment of their rights.
Returning to the assessment of the decisions of the Supreme Court of Justice, in the wake of its previous positions, it also rejected the claim of the defense when it invoked Article 12(3) of the Constitution of the Republic of Cape Verde, as well as Article 210(2), also of the Constitution, to demonstrate that the decisions of the ECOWAS Court of Justice are binding on Cape Verde.
First of all, what do the two articles of the Constitution say?
Article 12(3) says that “Legal acts emanating from the competent organs of supranational organizations to which Cape Verde is a party will take direct effect in the internal legal order, provided that this is established in their respective constituent conventions” and Article 210(2) states that “Justice is also administered by courts established through international treaties, conventions or agreements to which Cape Verde is a party, in accordance with their respective rules of jurisdiction and procedure.”
Two norms that show the constitutional openness of the state of Cape Verde to receive in its internal legal order the decisions issued by international judicial bodies of which Cape Verde is a part.
The arguments used for the rejection of its applicability by the Supreme Court were that, on the one hand, the ECOWAS is of non-supranational nature and, on the other, that “the consent of the State of Cape Verde for the recognition of the justice administered by such courts as to the rules defining their jurisdiction and procedure” is necessary.
To support its decision, the Supreme Court relies on Prof. José de Pina Delgado, currently a judge at the Constitutional Court of Cape Verde, to get scholarly explanations on the issue, where he says in particular that “for the purposes of the Cape Verdean Constitution, ECOWAS is not a supranational organization, since the country has not bound itself to any of the treaties that they would represent and with the limitations pointed out to such supranationality.”
The obvious question that should be asked is whether ECOWAS would become supranational if Cape Verde binds itself to these treaties, which would represent the supranationality. Or if ECOWAS already is supranational, regardless of whether or not Cape Verde is bound by those treaties.
Using the Supreme Court’s logic: the European Union would cease to be a supranational organization because some member countries do not adhere to the single currency. Is that so?
ECOWAS may or may not be supranational depending on its nature and essence, without having to affirm itself as such, as it does not need the declaration of bindingness of a state to define itself as supranational or not.
The question of supranationality is the subject of studies and analysis by various specialists, and here, by way of example, we can mention the vision and position of some of them.
For Prof. Luís Pereira Coutinho, an analysis “of supranational political institutions involves, first of all, distinguishing them from the classic international organizations of an intergovernmental nature,” and then adding that intergovernmental organizations are subject to “a logic of interstate coordination, that is, of articulation between interests that remain defined at the level of the different States,” and that in view of this logic and management of the interests of each State, their actions require the “continuous consent of the States—of all or only some, depending on their organizational structure.”
In his view, organizations of a supranational nature overcome the issue of coordination and the need for continuous consent, since, as he explains, “the making of binding decisions within supranational institutions does not depend on the continuously expressed consent of all or some of the states, which is reflected in the absence of the requirement for unanimity.”
For Prof. Eduardo Biacchi Gomes, what characterizes what he calls the “institute of supranationality,” “is the autonomy and independence that it gives to community bodies in relation to Member-States, since the fact that they are hierarchically placed between national and international legal orders guarantees them primacy over the laws of the States.”
According to Prof. José Cretella Neto, supranational organizations are organized in such a way that the very States that constitute them cede part of their sovereignty and allow interference by these bodies. Cretella Neto observes the following characteristics in supranational organizations:
a) The bodies of the organization are made up of people who are not representatives of the governments of the member countries;
b) The bodies can take decisions by majority vote;
c) The organizations have the authority to adopt binding acts, such as decisions;
d) Some of these acts have direct legal effect on individuals and legal entities of Private Law;
e) The constitutive treaty of these kinds of organizations and the measures adopted by their bodies constitute a new legal order; and
f) The fulfillment of the obligations by the member countries and the validity of the acts adopted by the bodies of the organization are subject to judicial review by an independent court of justice.
For Aline Beltrame de Moura, who holds a Masters in Law and International Relations, the definition of supranationality becomes complex because each author tries to define it according to their conceptions. However, she affirms that all the theories converge on three essential elements: (i) transfer of portions of competencies of the States in favor of the supranational organization, (ii) direct and immediate applicability of the community ordinance to State public entities and individuals, and (iii) independence of the community institutions with regard to the Member-States.
In a very interesting article, published in June 2018 in the newspaper Expresso das Ilhas, with the title Cape Verde in ECOWAS: The hypothesis of a differentiated integration, Dr. Benfeito Mosso Ramos, current judge counselor of the Supreme Court of Justice, argued for a differentiated treatment for Cape Verde, given its particularities, within the ECOWAS framework.
In this article, he warned about what was happening in ECOWAS, which some, according to him, were already calling “political integration,” and highlighted, explaining, “the mandate, tending to be supranational, given to the main community bodies, the decision to transform the respective parliament into a legislative body and the principle of direct binding of Member States to the decisions of the Conference of Heads of State and Government, as well as of the Council of Ministers,” would already configure a transformation of the organization into a supranational entity. For Dr. Mosso Ramos, without any progress in terms of economic integration that could justify such an option, “there ended up being a transformation in the nature and objectives of ECOWAS, which, from the initial organization of intergovernmental cooperation, changed in a few decades into what is now assumed by its leadership as a supranational organization.”
The reality is that ECOWAS underwent a structural change that was also followed by other changes, which revived the supranational nature of the organization, depending on a new system of legal acts. This change in ECOWAS has resulted in a substantial transformation in the legal dimension: the traditional community acts, such as protocols, gave way to additional acts that are, by definition, binding.
Analyzing the perspectives of these different specialists, it can be concluded that the essence of supranationality lies in the transfer of parts of State powers to the supranational organization, the direct and immediate applicability of community law, and the independence of community institutions from Member States. It is obvious that ECOWAS already has these institutes, although not at such an advanced stage as those of the European Union (model of supranational organization), but it is already at a level that is nothing like MERCOSUR (model of intergovernmental organization), and this only shows that there are different stages in the life and evolution of organizations.
It seems that the Supreme Court of Justice, in the judgment of this case, and more specifically, on the issue of the binding nature of the decisions of the ECOWAS Court of Justice on the State, was not able to free itself of its status as a party, taking into account its possible subordination, because that is the only way to understand the statement in the judgment that states “even if the State of Cape Verde were bound by the decisions of the ECOWAS Court of Justice, rendered in the context of individual complaints for alleged violations of human rights, failure to comply with these decisions would just constitute a question of international responsibility of the State,” that is, the court is inciting the other party not to comply with a judicial decision, which is a regrettable gesture/act, and in an insinuating way, the Supreme Court makes it clear that it is a minor issue to subject the country to a conviction for international responsibility of State.
On the issue of Article 210 (2), it seems that the Supreme Court of Justice is clearly distancing itself from Prof. José Pina Delgado, because the professor states, regarding this article of the Constitution, that “this provision inserts into the Cape Verdean legal system a clause of institutional openness which domesticates the international courts, transforming them into judicial bodies of the Cape Verdean system of courts,” and concretizes the assertion with two requirements for this to occur: a) that the entity be of a judicial nature; and b) that it has been created by treaty and Cape Verde has bound itself to it, as well as that it covers situations like those of the two ad hoc courts created by the Security Council.
The fundamentalism of the Supreme Court of Justice in terms of argumentation makes it not realize that these international courts, once they meet the requirements, become “judicial bodies of the Cape Verdean system of courts,” and that in this situation they can administer justice just like the other courts.
It seems obvious that ECOWAS, since 2005-2006, has ceased to be an intergovernmental organization; its nature has become that of a supranational organization, with some hybridity, of course, as the European Union was for a long time.
C – The status of Special Envoy: yes or no?
The figure of the special envoy is defined in Article 1(e) of the New York Convention on Special Missions as a “representative of the sending State in the ‘special mission’ is any person on whom the sending State has conferred that capacity.”
The State, which sends its special envoy to another State, is free to choose whomever it wishes to perform this task, and there is no special requirement that conditions its choice. However, the sending State, before appointing its special envoy, must provide the receiving State with all the necessary information about the size and composition of the special mission, and in particular the names and designations of the persons it intends to nominate.
Upon acceptance by the receiving State, there will formally be a special envoy or mission.
Alex Saab left Venezuela for Iran as an envoy of the government of Venezuela.
The plane carrying him had to, and according to some, was forced to, make a technical stopover to refuel on the island of Sal.
A technical stop for refueling means that the aircraft is given a place, in an appropriate location to receive fuel, with the passenger remaining inside the aircraft.
The passenger remaining inside the aircraft signifies that they do not cross the border, and do not need a visa or other formalities with the border authorities.
It turns out that the Cape Verdean police authorities, not known under whose order, decide to invade the aircraft, possibly without the permission of the captain, and probably without a warrant, as demonstrated by the ECOWAS Court of Justice, to detain the passenger, in this case Alex Saab.
The day after the arrest, the Venezuelan authorities contact the Cape Verdean authorities to inform them that Alex Saab is their special envoy and that he was on a mission to Iran, adding that he enjoyed privileges and immunities in the ambit of international law.
It is unknown to this day what the response of the Cape Verdean authorities was to the information provided by Venezuela, but it will not be difficult to figure out what it was, taking into account the behavior shown by Cape Verde throughout the process.
One of the key arguments used by the Supreme Court of Justice to dismiss the defense’s appeal, in relation to Alex Saab’s status as special envoy, was the invocation of the provisions of Article 42(4) of the New York Convention on Special Missions, which requires, for the purpose of granting immunities and privileges to the members of the special mission of a State, prior communication to the third State.
Article 42 of the Convention clearly focuses on the facilities to be granted to the special envoy, special mission, administrative and technical staff at the service of the special mission, and members of their families when they transit the frontiers of third States, conditioning its conception to the duty of prior communication to third States. At no time does the Article 42 of the Convention attribute any power to the authorities of third States to recognize or not the status of special envoy, and consequently it is not up to them to grant or withdraw the status of special envoy to anyone.
What paragraph 4 of the article in question imposes is the duty of the State sending the special mission, to notify the third State in advance, and giving the latter the possibility of objecting to the proposed member or members of the special mission.
Although the Convention does not deal with aspects related to a posteriori communication to third States about the passage of a special envoy or members of a special mission, since Cape Verde and Venezuela are not States in conflict, the communication from the Venezuelan authorities, even if made later, should, in the name of good diplomatic relations, be treated favorably, although the case did not require any such step, as we will see later.
Curiously, in its ruling on the case, the Supreme Court of Justice considered that “there is no evidence in the case file that the State of Cape Verde consented to the Claimant’s transit through its territory with the status of special envoy”… and then added that “without such consent, the Cape Verdean Courts cannot recognize the Claimant’s status as special envoy, which means that he does not enjoy the inviolability and immunities to which he claims, based on the United Nations Convention on Special Missions.”
But what is at stake here is not the recognition of the status of special envoy, as the Supreme Court seems to want, because that is a matter that only concerns Venezuela and Iran. The status of special envoy does not end when the envoy is traveling on their special mission, as it follows from the convention, it only ends when the special mission ends.
What Article 42 intends is to guarantee that when the envoy or the special mission travels through the territories of third States, their privileges and immunities are guaranteed, which is why there is a requirement for prior notification and no objection, since in the event of prior notification and no objection, third States are obliged, under the convention, to grant privileges and immunities.
Moreover, this condition that the Supreme Court considers as absolute does not result from a good reading of the Convention, that only with the consent of the third State may the envoy or special mission be recognized and granted privileges and immunities. Paragraph 5 of the same Article 42 of the Convention takes care to negate this idea when it states that: “The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to the official communications and belongings of the special mission, when the use of the territory of the third State is due to force majeure.” In other words, third States are obliged to grant privileges and immunities to the entities referred to in paragraphs 1,2, 3, of Article 42, in the absence of any prior communication or non-objection, if the reason given for entering the territory of the third State is force majeure.
In the case of Alex Saab, he transited through the borders of Cape Verde forced by the Cape Verdean authorities, so it was a situation that could be perfectly considered force majeure: because it was against his will.
It is also important to emphasize that Article 42 of the United Nations Convention on Special Missions deals with “transit through the territory of a third State,” which was not the case here.
Alex Saab did not transit, and had no intention of transiting territory of Cape Verde. The plane in which he was flying made a stopover, which is completely different from the notion of transit. Stopover and transit are technically different concepts in civil aviation, and it was probably not by chance that the Convention speaks of transit and not of stopover.
When there is a stopover, in this case for refueling, the passenger does not leave the aircraft, therefore no visa or other formalities are required because the passenger does not pass through the borders of the country, and, consequently, the third State is not required to grant privileges and immunities, simply because there is no need.
It is extremely bad behavior on the part of one who is demanding consent or prior communication to the third State for the granting of privileges and immunities or the recognition of the status of special envoy to those who made or make stopovers in Cape Verde.
The way things are going, any day now passengers whose planes make stopovers in Cape Verde will be required to have an entry or transit visa.
The lack of common sense and the absurdity, with all due respect, should have limits.
It is hoped that there is still time for the country to save face from this great “mess” from which some stubbornly do not want to see it get out, and that history will reserve a place for them at the bottom of the page of this sad and regrettable episode.
With each passing day it becomes more and more untenable to keep Alex Saab in prison for reasons and grounds that the Cape Verdean state itself finds difficult to sustain.
I am not a jurist, but I am not illiterate as Reinaldo Azevedo likes to say, one of the great Brazilian journalists and liberals, a staunch defender of the thesis that Lula was convicted without evidence by Judge Sergio Moro, whose evidence was revealed through “leaks” when a hacker managed to penetrate the cell phones of judges and prosecutors, and from the content the whole orchestrated plot to accuse and imprison a citizen was discovered.
It would be an act of courage, prudence, lucidity and humility for Cape Verde to consider the signs coming from the ECOWAS Court of Justice, the UN Human Rights Commission and the Swiss Prosecutor’s Office itself, and act in strict respect for the rule of law and justice.
P.S.: After all, the State of Cape Verde did what any litigant does when they lose in a court judgment: it appealed.
Using the figure of a Motion, Cape Verde filed, on April 15, two motions asking the ECOWAS Court of Justice to annul the sentence.
On June 24, after the hearing that took place on May 31, the ECOWAS Court decided to uphold the judgment of March 15, stating that there had been no error in time zone calculation regarding the Interpol Red Alert received by Cape Verde, and that this aspect has no bearing on the illegality of the arrest.
In addition, the court declared itself competent, in terms of jurisdiction, to hear and decide on the matter in question.
Will the State of Cape Verde continue to declare that it does not comply with the court decision?
1) Ruling of the Supreme Court of Justice – Ruling No. 28/2021
2) Ruling of the ECOWAS Court of Justice – Ruling No. ECW/CCJ/JUD/07/21
3) Charter of the Organization of American States
4) PUBLIC LAW 113–278—DEC. 18, 2014
5) Alena Douhan – Report of the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights
6) Law No. 6/VIII/2011, of August 29
7) ECOWAS Revised Treaty 1993
8) African Charter on Human Rights
9) Criminal Procedure Court of Cape Verde
10) Protocol A/P1/7/91
11) Final Communiqué_30eme-Sommet-ECOWAS-Abuja-14-June-2006
12) Additional Protocol A/SP.1/1/05
13) Final Communiqué_28eme-Sommet-ECOWAS-Abuja-19-January-2005
14) Vienna Convention on Law of Treaties
15) New York Convention on Special Missions
16) Constitution of the Republic of Cape Verde
17) United Nations Convention against Transnational Organized Crime
18) Luís P. Pereira Coutinho – Supranational Political Institutions: Some Notes
19) Eduardo Biacchi Gomes – Supranationality and Economic Blocs
20) José Cretella Neto – General theory of international organizations
21) Aline Beltrame de Moura – International Organizations of a Supranational and Intergovernmental Nature – The Hybrid Character of the European Union and the Inter-governmentability of MERCOSUR
22) Jorge Barcelar Gouveia and Francisco Pereira Coutinho et al. – Public International Law in Portuguese Language Rights
23) Benfeito Mosso Ramos – Cape Verde in ECOWAS – The hypothesis of differentiated integration
24) Kathleen Rocheteau Gomes Coutinho and Paulino Oliveira do Canto – The Challenges of Regional Integration Policy and Multilevel Governance in the Economic Community of West African States
Featured image: #FreeAlexSaab poster. File photo.
Translation: Orinoco Tribune (Saheli Chowdhury)