It is now more than 230 days since the prominent Caracas-based businessman and diplomat Alex Nain Saab Moran was detained on the island of Sal, which is one of the ten main islands which make up the Republic of Cape Verde.
Saab is the subject of sanctions imposed by the United States in July 2019 and has been indicted on allegations of corruption around a social housing contract in Venezuela back in 2011. Mr Saab has always strenuously denied any wrongdoing. It should be noted that here is no extradition treaty between the Unites States and Cape Verde.
The detention is fast becoming the subject of intense debate over the application of customary norms of international law to the status of envoys representing governments on international missions. There is also a murkier aspect of how real politic combines with a whiff of conspiracy to deliver a large element of schadenfreude for US law enforcement.
International law and accepted norms of the right of free and uninterrupted passage for certain agents and representatives of governments are reflected in Venezuela’s strongly worded communications to the Cape Verdean authorities. Venezuela has designated Saab a Special Envoy of the Government engaged in the execution of a humanitarian mission on behalf of Venezuela. It is understood that Saab was on his way to Iran to negotiate the purchase much-needed basic medicines and medical equipment as Venezuela is suffering from the impact of the global C-19 pandemic. More recently, on 24 December 2020, Mr Saab was appointed as the Deputy Permanent Representative of the Bolivarian Republic of Venezuela to the African Union. This appointment marked not only a reaffirmation of Venezuela’s faith in Mr Saab but also underlined his immunity and inviolability.
As is now well known, Mr Saab’s aeroplane, which was taking him to Iran as part of a humanitarian Special Mission, stopped to refuel in Cape Verde around 18.30 on Friday 12 June. Approximately three hours after landing, Saab was detained “on the basis of an INTERPOL Red Notice issued at the request of the United States”. Now this is where the mystery deepens and quite what was done by whom and when will, should have been the subject of intense forensic analysis both inside and outside of Cape Verde. Curiously, thus far neither Cape Verde nor INTERPOL have shown much enthusiasm for such details.
The Red Notice was only issued by INTERPOL on Saturday 13 June 2020. Questions are now being asked about how could Mr Saab have been detained on 12 June and in any case being a designated Special Envoy on a Special Mission, he should not have been detained under any circumstances. The case once again highlights the role of INTERPOL and the tightrope it must often walk to keep all its member states happy.
Investigations indicate that the United States had been tracking Saab’s jet and suspected that he was on board and alerted the Cape Verdean authorities. Once it was clear that Alex Saab was indeed on board the United States issued an INTERPOL Diffusion Notice (often referred to as Red Notice-Lite) seeking the detention of Saab.
As the Financial Times highlighted in an article on 19 November 2018 (https://www.ft.com/content/6f6f7074-e8e1-11e8-a34c-663b3f553b35) the use of INTERPOL Diffusion Notices has risen 5-fold since 2018 resulting in significant disquiet that INTERPOL system is being gamed and that INTERPOL itself is being exploited.
The FT article goes on to say that “But the step change that has triggered concern about INTERPOL is the explosion in the volumes of requests being put through its systems. The number of red notices issued via the organisation to seek the arrest of a wanted person climbed from 1,378 in 2003 to 13,048 in 2017. Still more significantly, issues of so-called diffusions — a less formal request for arrest* or other assistance that can be made either to selected countries or INTERPOL’s entire membership — rose from 19,338 in 2015 to 26,645 in 2016 and then almost doubled to 50,530 last year.”
|Diffusion Notices vs Red Notices: A Worrying Trend|
Why should anyone be concerned by the dramatic rise in the use of INTERPOL Diffusion Notices? Unlike the INTERPOL Red Notice, Diffusion Notices, often referred to as Red Notice-Lite, require a very low threshold of scrutiny for them to be distributed through the entire INTERPOL System (see table later).
INTERPOL now finds itself in the middle of a politically-motivated farce tug-of-war which comes at a time when the organization is only just recovering from several embarrassing missteps (highlighted in the same FT article) over the past 36 months. INTERPOL’s rule book specifically prohibits the organization from being involved in issues which are politically-driven. Observers also remain puzzled why, if Saab was regarded as being of such high interest to US law enforcement, he was made the subject of an INTERPOL Red Notice only on 13 June 2020.
According to court filings events unfolded in the following way on 12/13 June:
Communication between Cape Verdean Law Enforcement (CVLE) and their US counterparts in which CVLE states:
“…American authorities alerted our police authorities…of the suspect’s possible arrival at Cape Verde and requested that he be detained as part of an alert …in the INTERPOL system.”
From which it is clear that Saab’s plane was being tracked/monitored and the US had placed some form of alert against the Special Envoy in the INTERPOL system.
“However, when doing a search through the system, there was a Broadcast which would not allow his detention/arrest, since the [Cape Verdian] law requires the “Red Alert’…”
What this is clearly saying is that there was an INTERPOL Diffusion Notice in the INTERPOL system and it was on the basis of this Diffusion Notice that the Special Mission was interfered with even though CVLE knew, and acknowledges, that such detention was illegal under the laws of Cape Verde and could only take place on the basis of an INTERPOL Red Notice (which is referred to as the “Red Alert”).
It is at this point that CVLE probably overstepped legal boundaries and assisted the US to unlawfully interfere with the Special Mission because CVLE communication goes on to say:
“…we immediately informed the American authorities of this fact that they immediately asked the General Secretariat in Lyon to issue a “Red Alert” to be able to carry out his detention/arrest, the alert was completed in record time and the individual was detained.”
This last certainly indicates that CVLE knew it had arrested Mr Saab at best dubiously, and at worst unlawfully, however, it cooperated with US officials who in turn pushed INTERPOL“in record time” to brush aside the initial illegal detention with the veneer of the Red Notice which Cape Verdean law required.
Despite the “record time” in which INTERPOL issued the Red Notice, Cape Verde’s position is unlawful for two reasons. At the time the Saab was initially detained his detention was illegal under the laws of Cape Verde and he should have been released. Furthermore, both the initial detention and the subsequent “cleansed detention” interfered with the performance of Saab’s Special Mission and thus constitutes interference with the domestic affairs of Venezuela making the detention illegal under both Cape Verdean law, the United Nations Charter and customary international law and again a problem for INTERPOL.
Venezuela has repeatedly stated that Saab is its Special Envoy and “…respectfully requests the honourable Cape Verdean judicial authorities to immediately release Mr Saab and promptly end this unfortunate situation”.
The question of the legality of Saab’s arrest and his immunity and inviolability has now moved on to the ECOWAS Community Court of Justice which is scheduled to hear Mr Saab’s application on Friday 5 February.
|INTERPOL LEXICON © Financial Times
NOTICES INTERPOL issues eight different types of notices at member states’ requests. Some notices are published, but many others are available only to those with access to INTERPOL’s information system.
Types of notice include:
Green to give warnings and intelligence about criminals deemed likely to repeat their crimes in other countries.
Yellow to help locate missing people, often children. Black to seek information on unidentified bodies. UN Security Council special for groups and individuals who are the targets of UN Security Council sanctions.
Red to seek the location and arrest of suspects, with a view to extradition or a similar process. These require an arrest warrant or court order issued by the applicant country. INTERPOL says many of its members treat a Red Notice as a valid request for provisional arrest.
Notices are not supposed to be issued if they breach article three of INTERPOL’s constitution, which forbids “any intervention or activities of a political, military, religious or racial character”.
DIFFUSIONS These don’t require the same level of procedure as notices. They can be sent out directly by member states to request the arrest or location of an individual, or more information in relation to a police probe. Countries can circulate diffusions to all INTERPOL’s membership or a limited part of it. Observers of INTERPOL say diffusions are intended to be a quick way of alerting other authorities to the possible presence of fugitives who may be crossing borders in real time
Jose Pinto Monteiro, Lawyer