By Femi Falana
From Lagos, Nigeria
I have been involved with Alex Saab’s legal fight over his assertion of diplomatic immunity since its earliest stages. As is to be expected in a case whose very origins are founded on the interference in the domestic affairs of Venezuela by the United States, there have been many inexplicable judicial decisions since Alex Saab’s initial arrest in Cape Verde on June 12, 2020.
The recent decision handed down by Judge Robert Scola in Miami is probably the hardest to understand and justify. On December 23, 2022, Judge Scola denied Special Envoy Alex Saab’s motion to dismiss the indictment issued against him in 2019. The decision was flawed, as it ignored numerous pieces of evidence supporting Alex Saab’s entitlement to diplomatic immunity and was cynical and callous in its timing, coming as it did on Christmas Eve. Judge Scola’s findings of fact and his conclusions of law are perplexing, indeed the timing of the decision and its content, leaves a strong suspicion that most of it was written even before the recent hearing.
Judge Scola gets the facts wrong
Nothing supports this view more than the fact that in his very first sentence Judge Scola states that Alex Saab “faces charges… under the guise of a food program meant to benefit Venezuelans.” The case before Judge Scola for which Alex Saab was actually indicted is alleged misconduct in the context of the importation of construction materials some of which were used in Venezuela’s social housing program. The embarrassing error underscores how questionable are the conclusions of Judge Scola’s factual analysis.
Judge Scola’s findings of fact concluded that Special Envoy Saab was not “truly traveling as a ‘special envoy’ at the time of his arrest.” This is directly contradicted by documents which Alex Saab was carrying when arrested in Cape Verde in June 2020. These documents of accreditation were written by President Nicolás Maduro and Vice President Delcy Rodríguez to Iranian Supreme Leader Ayatollah Khamenei and senior Iranian officials, respectively. The DOJ put forward no meaningful evidence to support any of its allegations yet Judge Scola basically credits the Department of Justice’s view that all of the evidentiary facts put forward by the defense —including numerous documents, many of which had been stipulated to by the DOJ—are fraudulent. He does not, however, explain in any compelling detail why he reaches this conclusion.
Alex Saab’s immunity claim should have been vindicated
Justice Scola further incredibly implies that Alex Saab’s claim to immunity is the product of a conspiracy between Venezuela and Iran – without evidence to support the conclusion. When it comes to conclusions of law, Judge Scola’s findings are equally flawed. Whilst he acknowledges the defense’s position that it is Venezuela and Iran, as sending and receiving states respectively, who established Alex Saab’s status as a Special Envoy and thus someone entitled to immunity, he goes on to stay that “any claim to diplomatic immunity asserted by a representative of the Maduro regime must… be considered illegitimate.” Thus, completely ignoring the fact that the real question before the Court was the interpretation of the United States’ treaty obligations and not about the executive branch’s right to determine the recognition of a foreign government. A point which was made repeatedly by the defense.
Perhaps most disappointingly of all, Judge Scola ignores the words of Chief Justice John Roberts who once said, “Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.” The overriding precedent in this case is that of Abdulaziz vs Metropolitan Dade County which establishes the entitlement of a Special Envoy, who is head of mission, to immunity protection under the 1961 Vienna Convention of Diplomatic Relations. The issue of whether or not Alex Saab was entitled to customary international law immunity when he was in Cape Verde was dealt with in considerable detail by the defense. Alex Saab’s “transit” through Cape Verde was accepted by Cape Verde as it stamped an entry permit (for which he paid!) in his passport. Judge Scola elected to ignore this unimpeachable evidence.
However, upon realizing that he was unable to discredit the overwhelming evidence of the appointment of Alex Saab as an envoy, Justice Scola conceded that he was “at best, a special envoy of the Maduro regime, which the United States has not recognized to be the official government of Venezuela since January 2019. So, Saab Moran is not entitled to diplomatic immunity in the United States.” This finding of the Judge confirms that he had set out, ab initio, to arrive at this conclusion. Thus, the ruling of Judge Scola was full of contradictions as it failed to take cognizance of the evidence that Alex Saab’s appointment as an envoy predated the decision of the United States not to recognise the Maduro regime with effect from January 2019.
It is also interesting to note that Judge Scola did not take judicial notice of the well reported 3-year investigations by Swiss prosecutors into alleged cases of money laundering against Alex Saab which ended in June 2021 after insufficient evidence was found to support the allegations. The Judge ought to have given serious consideration to the independent findings of the Geneva Prosecutor’s Office.
Judge Scola said that “Saab Moran fought extradition in Cape Verde for 16 months. He was provided due process by Cape Verdean courts and was ultimately extradited to the United States in October 2021 after losing an appeal to Cape Verde’s highest court.” It is curious to note that while Judge Scola found it convenient to rely on the decision of “Cape Verde’s highest court,” he deliberately refused to refer to the judgment of the Court of Justice of the Economic Community of West African States of March 15, 2021 which had declared the extradition proceedings in Cape Verde illegal, as well as that Court’s consequential orders for Saab’s immediate release from further custody, and the award of $200,000 reparation in Saab’s favor.
Judge Scola’s contempt for the African justice system.
In demonstrating his total contempt for the African justice system, Justice Scola endorsed the October 16, 2021 extradition of Alex Saab from Cape Verde in total defiance of the provisional order of the African Commission on Human and Peoples Rights issued on October 13, 2021 suspending the extradition of Alex Saab from Cape Verde pending the determination of his petition. As if that were not enough, Judge Scola claimed that the letter announcing the appointment of Saab Moran’s sudden naming in December 2020 as the Ambassador [and] Alternate Permanent Representative of the Bolivarian Republic of Venezuela to the African Union “only adds more cause for suspicion.”
Since it is trite law that suspicion, however strong, cannot take the place of proof, it is submitted that the Judge did not successfully challenge the evidence of the appointment of Saab Moran as the Ambassador [and] Alternate Permanent Representative of the Bolivarian Republic of Venezuela to the African Union. To that extent, Saab Moran was entitled to diplomatic immunity with effect from December 2020.
In conclusion, it is submitted that no matter how generous one tries to be when trying to understand Judge Scola’s decision, it is clear that his findings of fact and conclusions of law are deeply flawed. Given this state of affairs, the defense should be confident that it will be able to have Judge Scola’s decision overturned by the Eleventh Circuit.
Femi Falana is a human rights lawyer and Senior Advocate of Nigeria (“SAN”). Mr Femi Falana, has been at the forefront of defending human rights across Africa for over two decades now. He has defended and secured victories for many victims of human rights violations in Nigerian Courts and the ECOWAS Community Court. Mr Falana served as the President of the West Africa Bar Association (WABA), and in recognition of his exceptional qualities and dedication to human rights and criminal law, Falana received the International Bar Association’s Bernard Simons Memorial Award in 2008.