“Prosecution in Saab Case Threatens to Undermine The Principle of Diplomatic Immunity” — by Leonardo Flores

While US attorneys twisted the Vienna Conventions to fit their case against Alex Saab, a bizarre exchange highlighted the judge’s apparent bias and confusion about U.S. Venezuela policy.

“MIAMI, FLORIDA – The trial of Venezuelan diplomat Alex Saab continued on December 20, when U.S. District Judge Robert Scola heard closing arguments in an evidentiary hearing concerned with whether or not the concept of diplomatic immunity applied to his case. The diplomat was arrested on June 12, 2020, while en route to Iran from Venezuela as part of a special mission to broker a deal for food, fuel, medicine and other essential goods that became scarce in Venezuela due to the U.S. economic blockade. When his plane was forced to refuel in Cape Verde, local authorities arrested and eventually extradited him to the United States, despite the fact that he should have been afforded immunity under the Vienna Convention on Diplomatic Relations. Saab is facing a charge of conspiracy to commit money laundering, which could carry a twenty year sentence if convicted.

At Tuesday’s evidentiary hearing, Saab’s legal team pointed to five key pieces of evidence that the prosecution has not refuted. These include Saab’s diplomatic credentials, which were granted by then-Foreign Minister Jorge Arreaza in April 2018. Another letter from Minister Arreaza, dated April 2020, instructed Saab to negotiate as an envoy for aid in response to the COVID-19 pandemic. In June 2020, the Venezuelan Foreign Ministry and the Iranian Embassy in Caracas exchanged letters notifying and accepting, respectively, Alex Saab as a special envoy. 

The defense further noted that Saab had three documents in his possession when he was detained in Cape Verde: a letter from Venezuelan President Nicolás Maduro to Iran’s Supreme Leader Ayatollah Ali Khamenei, and two letters from Venezuelan Vice President Delcy Rodríguez to Iran’s Minister of Agriculture and the Senior Advisor to Iran’s Vice President, inviting them to visit Venezuela. As The Grayzone previously reported, these diplomatic missives were opened by unknown parties following Saab’s detention, a clear violation of international law. 

The crux of the defense’s arguments are that Saab was named a special envoy and sent on an official mission. The receiving State, Iran, accepted Saab as a special envoy. Plus, Saab was in transit between the sending State (Venezuela) and receiving State when he was detained. 

Saab’s lawyers characterized the prosecution’s case as a “grand conspiracy theory” based on “insinuation and speculation.” The prosecution not only tried to cast doubt on defense witnesses and evidence, but went so far as to argue that the Vienna Convention does not apply to special envoys, but only to permanent diplomatic missions (that is, embassies, consulates and their staffers). Moreover, they argued that since the United States has not signed the United Nations Convention on Special Missions, Saab has no claim to immunity.

However, the Vienna Convention includes the phrase “permanent diplomatic mission” only once. Article 2 states: “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.” The sending and receiving of a special envoys are acts of diplomatic relations. In Saab’s case, both Venezuela and Iran consented. According to Article 40.1, both Cape Verde and the United States, as third party states, should have accorded Saab “inviolability and such other immunities as may be required to ensure his transit or return.” 

At one point, referring to the defense’s evidence, U.S. Attorney Alexander Kramer said that Saab was “at best, a courier [and] being a courier of diplomatic communications does not make him a diplomat.” Again, the Vienna Convention would disagree. Article 40.3 grants diplomatic couriers the “same inviolability and protection as the receiving State is bound to accord.” 

Of course, Saab was not simply a courier, but a diplomatic agent sent to negotiate a humanitarian deal between two sovereign states. In an email presented as evidence, a high level U.S. official wrote that “Secretary Pompeo wants to talk about Alex Saab who is brokering the Iran-Venezuela deals next week.” This email was dated one day before Saab’s interrupted flight to Iran. 

Using the prosecution’s own logic, U.S. special envoys have no diplomatic immunity under the Vienna Convention. Perhaps someone should relay that information to Special Envoy Roger Carstens, who has visited Caracas at least twice in the past year to engage in talks about prisoner swaps with the Maduro government.

In fact, the Carstens visit and other talks between the White House and Maduro government further undermine the prosecution’s case. In addition to trying to disregard the Vienna Convention, U.S. Attorneys argued that Saab is not a legitimate official because the United States does not recognize President Maduro’s authority. They cited precedents that grant the executive branch the exclusive authority to recognize foreign governments. Per their reasoning, since the White House recognizes Juan Guaidó as the so-called interim president, it means that any officials appointed by President Maduro are illegitimate. 

However, it’s clear the U.S. government is trying to have it both ways. They continue to maintain the fiction of Guaidó as “interim” president while negotiating with the Maduro government. Unfortunately for Saab, Judge Scola’s questions during the hearing reveal either bias or confusion about U.S. Venezuela policy.

He first asked: “Why, in this case, shouldn’t I accept, as conclusive, the views of the State Department that he doesn’t have diplomatic status because we don’t recognize the Maduro regime[emphasis added] as a legitimate government in Venezuela?” 

The defense rightfully noted that the U.S. “government routinely deals with the Venezuelan Foreign Ministry.” They agreed that the executive has the authority to accept who is or is not a diplomat accredited to the U.S. Yet the Saab case is different because he was forcibly sent to the U.S. and his immunity doesn’t spring from any actions taken by the White House, but by the U.S.’s own treaty obligations. As defense attorney Lee Casey put it, “the question for the United States, frankly, is not whether or not he has diplomatic immunity, because he certainly does. The question is, does it comply with its treaty obligations?”

Judge Scola, who earlier in the trial asked what would happen if Trump, the “self-recognized president of the United States,” were to give out or sell diplomatic passports, returned to that tortured analogy:

“If President Trump, former president, gets indicted, okay, and he flees the country and makes arrangements to go to Iran and, stops in Cabo Verde on the way there, okay, and Iran recognizes him as the legitimate president, and recognizes his diplomatic status, then the United States is bound by that?” he asked. 

Scola continued by insinuating that President Maduro is “somebody who claims to be president of Venezuela, okay, which our government has said no, he is not the legitimate president of Venezuela. So, it wouldn’t matter what he does.” 

The defense rightfully turned the question around and asked the court if a third country decides “President Biden isn’t president, does that mean that every American diplomat in the world suddenly is not a diplomat and not entitled to immunity?”

As The Grayzone’s Anya Parampil tweeted, the question of who the rightful president of Venezuela is has now become fundamental to the case. However, as noted above, U.S. courts won’t entertain arguments about this, deferring the authority to recognize foreign governments to the executive branch. This same issue arose in the trial of the Embassy Protection Collective, when it was barred from even being mentioned.

The deck is clearly stacked against Saab. Judge Scola will rule on the issue of immunity before the new year, but it seems unlikely that Saab will be freed by a U.S. court. The most likely path towards his liberation remains a prisoner exchange with the Venezuelan government. Another possibility is if the Biden administration recognizes the Maduro government. Although this remains remote, in Venezuela three of the remaining four parties that back Guaidó will stop recognizing his shadow government in early January. Following that, pressure will grow for Biden to do the same.”

Credit: Leonardo Flores. Publication: The Grayzone. Published: December 23rd 2022. Source Link: https://thegrayzone.com/2022/12/23/saab-principle-diplomatic-immunity/

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