Smoke and Mirrors: The Art of Misdirection in Claiming Diplomatic Immunity

[Moisés Montiel is a lawyer advising individuals, companies, and States on matters of international law, human rights, and other international areas at Lotus Soluciones Legales. @moisesmontielm]

Alex Saab, a Colombian national and businessman, decided to throw his lot in with the Maduro administration in Venezuela and is currently awaiting a decision by the Supreme Court of Cabo Verde on whether or not he’ll be extradited to the US to face prosecution on charges of alleged money laundering.

Saab’s defense team has built its arguments around the notion that he enjoys diplomatic immunity and that both his arrest in Cabo Verde and the request of extradition by the US are unlawful as they violate the conventional and customary rules governing diplomatic immunities. The logic behind the defense is that, since 2018, Saab has acted on behalf of Venezuela as Special Envoy to Iran and, -since December of last year- as Alternate Permanent Representative-designate to the African Union and therefore enjoys the ensuing immunity.

This contention merits scrutiny since the immunity claimed by Saab’s defense exhibits deficiencies that preclude it from barring the US attempt to seek extradition from Cabo Verde. Naturally, this analysis stems from publicly available evidence, and is carried out in the intelligence that there is no ‘smoking gun’ piece of evidence out there. But even if taken as a purely academic exercise, it provides an invaluable opportunity to take a peak under the hood of diplomatic immunities.

Now you see a Special Envoy

The defense for Saab claim that, at the time of his arrest in Cabo Verde -during a fueling stop in a private aircraft with no diplomatic passport on him-, the Colombian businessman enjoyed immunity because of his designation as a Special Envoy to Iran. The proof of this is a letter addressed to Ayatollah Khomeini.

Curiously enough, the letter contains no mention by name, rank, or any other bit of information identifying Saab as a Special Envoy. The communication -if it can be understood as an accreditation at all- is essentially a bearer’s bond. That omission precludes the instrument from satisfying customary and conventional requirements on accreditation and from causing the intended effects.

The opinio juris conventionalis evidenced on the Convention on Special Missions’ article 8 is revealing. It expresses the need for “all necessary information (…), and in particular the names and designations of the persons it intends to appoint” to be provided to the receiving state. This is also supported by article 27(5) of the VCLT, which is in force among all parties and could be held to apply to Special Envoys as per its ratio personae scope.

As anyone who’s even slightly familiar with the dispatch of diplomatic affairs will confirm, the detail exhibited by verbal notes and like communications informing of the arrival or transit of a person vested with immunity is excruciating. And well it should be: bestowing powers of representation on an individual is no small matter, especially when said individual isn’t a national of the sending State. Most conventions allow for the possibility of accrediting a person of a different nationality, however they all consistently point out that nationals are, in principle, preferred. Article 8 of the VCDR is a prime example of this.

In addition, attempting any method of interpretation on the letter itself will prove it impossible to conclude that the usus loquendi, the context, or the object and purpose of the letter is to grant immunity to its (unidentified) bearer.

Moreover, the relevant case-law of the ICJ indicates that immunities are not to be casually considered. If the test laid out in the Arrest Warrant case is applied here, it is evident that Saab was not, at the time of his arrest, a high officer of the Venezuelan government and therefore does not enjoy absolute or personal immunity; neither was he a duly accredited government official who may be said to enjoy functional or limited immunity in the discharge of his official duties.

Even if the claim were entertained, the general principle enshrined in the VCDR, the VCCR, and the Convention on Special Missions, (largely held to be codificatory in nature) and other conventions dealing with personal immunities, suggests that the effet utile of immunities is not to benefit individuals but to ensure the efficient performance of the functions of missions. The question ensues: Does the arrest of Saab make the conduct of diplomatic affairs between Maduro and Iran impossible or gravely affect their efficiency? In this -extremely- digital day and age, the answer could very reasonably be in the negative.

As a last counterargument to the notion that Cabo Verde has incurred in breach, consider the condition laid out by article 42(4) of the Special Missions Convention, where the duty to allow transit of an Envoy is contingent on the advance notification given to the third state. Considering that Cabo Verde does not recognize Maduro’s administration, no effect can be extracted from any notification emitted by it (if it even was).

Now you see an Alternate Permanent Representative to the African Union

On 24^th December, the Maduro administration appointed Saab Alternate Permanent Representative of Venezuela to the African Union, it follows from there that, as per the General Convention on Privileges and Immunities of the Organization of the African Unity (now Union), the staff duly accredited to the organization shall enjoy immunity. Saab would then benefit from said immunity. Except, he isn’t for two specific reasons.

The first one, and perhaps the most evident, is that the designation is made in order to retroactively bestow immunity on the belief that it would make his arrest unlawful ex ante. The ‘first in time first in right’ principle and the prohibition against ex post facto legislation with purportedly retroactive effects render this claim unsound at best. The doctrine of intertemporal law, as enshrined in the seminal Island of Palmas Arbitral Award, forces any reasonable person to consider the circumstances in light of the legal situation that prevailed at the time the facts occurred.

The claim that the appointment was made in bad faith and in overt fraud of the interests of justice, will not be put forth here exclusively because of lack of evidence at hand. However, the Roth Test used by Justice Stewart on the Jacobellis v. Ohio case does come to mind when attempting to describe the obscenity of the attempt.

The second reason stems from article V(4) of the AU Convention on immunities. It states the duty to waive the immunity of a representative when the refusal to do so would impede the course of justice, and when it doesn’t affect the functioning of the mission.

With a live extradition predating his official designation, it is easy to conclude that justice would be anything but served should he be considered retroactively immune. Also, it’s safe to assume that the observer mission of Venezuela to the AU has functioned perfectly well until present and will, presumably, continue to do so in Saab’s absence.

Naturally the idea that this convention is applicable to Venezuela is open to discussion as the country is not, strictly speaking, a member of the AU but rather just an observer. However, even this tenuous association entails a duty for Venezuela to uphold the duties and principles upon which the organization rests. Those include not using the organization in order to shield individuals from lawful prosecution.

Abracadabra and now you don’t

In their remarks to the US Southern District Court for Florida, Saab’s defense made some rather striking observations. The defendants wrote:

“Whatever its opinion of Mr. Maduro, the United States continues to recognize Venezuela as a sovereign member of the community of nations, and the law of nations requires it to respect that state’s sovereign rights, including to dispatch diplomatic emissaries to any other country in the world.”

This opinion, as any person fresh out of law school would point out, ignores the difference between recognition of states and of governments. While recognition has fallen somewhat into disuse, the practical solution that substituted it is very much alive. It posits that effective political intercourse between governments is what stands in lieu of formal recognition.

From there it follows, that obligations are owed to the government with which material and factual engagement occurs. This is relevant in Venezuela’s case given the duplicity of governments attributing themselves personality. Both Cabo Verde and the US recognize Juan Guaidó as Venezuela’s acting executive. Therefore, respect for diplomatic privileges and immunities is due only in respect of Guaidó’s appointees.

The designation of Saab as a Special Envoy and later appointment as representative to the AU are both actions of the Maduro Administration. By definition incapable of producing any legal effects for the US or Cabo Verde. No prejudice is caused to the Guaidó Administration by arresting Saab (maybe even the opposite). Both the US and Cabo Verde continue to recognize Venezuela as a member of the community of nations and, in aiding to bring to justice a suspected criminal, uphold their duties vis a vis Venezuela.

This fact alone turns the previous analyses redundant. However, the opportunity to examine the subtleties of immunities in practice is much too great a temptation to pass on. Not unlike the temptation to see beyond the smoke and mirrors to find that the magician is just an expert in misdirection.