Written by: José António dos Reis
I am writing this article a bit disgusted, rather, with a pain in my heart, for its contents being an accusatory libel against the State of Cape Verde, a country where I was born, grew up and learned to love. It is not an accusation, in particular, against the Government, the President of the Republic or the Parliament. This is an accusation against the State of Cape Verde, and consequently against all the bodies that make up the State that have directly intervened or failed to intervene in this process, whose behavior was not guided by the principles of justice, equality, reciprocity, independence and non-interference in the internal affairs of other states.
I come from a generation that has lived through and knows what colonial domination was, that knows, because it lived through them, the fascist and one-party regimes. I know who helped us in critical moments and who took a stand against foreign domination in our country.
Today, we live in a complex conjuncture of accelerated dehumanization in which many are silent, others indifferent, and many others tactician or afraid of displeasing the “big uncle,” and all, in one way or another, contributing to the prevailing injustice and the world being dominated by the powerful and overbearing.
That is why I am not an indifferent citizen, and I try not to be, and I try to be, as much as possible, an attentive, fair and impartial citizen, but above all, in solidarity with the weakest and most oppressed of the world.
I am and will always be against injustice and oppression, and in the exercise/duty of my citizenship I am obliged not to remain silent, even if this boldness, in these times of managing silences, comes at a cost: and for my freedom and citizen dignity, I am willing to pay.
The Alex Saab case is – or has become – a complicated case, and whatever its outcome, the Cape Verdean state will come out badly in the picture. The analysis of the case does not dispense with political, legal and diplomatic appreciation, taking into consideration the actors involved and their declared and unacknowledged objectives. Only those who are distracted, deliberately or circumstantially, will approach this as a simple case of justice, and no more: in reality, this has everything, and very little of justice.
He who does not respect international law and thinks he has the power to interfere in the internal affairs of other countries, who can impose unilateral sanctions, who thinks he can force and punish countries that dare to contradict this policy, who sanctions and persecutes the leaders of other states, who does not respect the sovereignty of other nations, he who does this certainly does not promote law and justice: he does his own justice, the justice that suits him on each occasion.
For about seven years now, Venezuela has been the target of a set of laws and presidential decrees by the United States, aimed at its economic, political and diplomatic blockade. These actions of the American government aim to interfere and operate political change in that country, in clear confrontation with the principles of international law and the United Nations Charter itself.
Recalling some facts: the blockade on Venezuela began, officially, in December 2014, when the U.S. congress passed the Venezuela Human Rights Defense Act No. 113-278, which provided for sanctions against Venezuelans; In March 2015, an Executive Order No. 13692 was passed by the U.S. government, declaring Venezuela a “threat to the internal security of the United States,” thus artificially creating legal sustenance to attack Venezuela in various forms. The same procedure is used in 2019, invoking the threat to internal security, to enact a new executive order, where the American government imposed total economic sanctions against Venezuela, freezing all its assets in the United States and prohibiting transactions with that country, with emphasis on the sale of oil.
The impacts resulting from the blockade were and are enormous, and we should highlight the so-called bank withholdings in which operations such as payment orders, issued by Venezuelans that used to take around 48 hours, now take 10 to 20 days; fines to third countries that develop trade with Venezuela; or, still, the reduction of foreign currency capture that, due to the blockade, had a drop in the order of 99% in the last 5 years (2015-2020).
In a country where about 80% of the domestic consumption is met with imported products, with sharp drops in revenue and foreign exchange, national supply has become a difficult problem, if not a practically insoluble issue. It should not be forgotten that Venezuela has been prevented from carrying out international transactions with the US dollar, which has increased foreign exchange expenses, estimated at more than $20 billion.
Add to that the fact that the US government has sanctioned more than 100 entities and people linked to the Venezuelan government, in addition to having recognized, in 2019, Juan Guaidó as president of Venezuela.
The consequences of this blockade policy for Venezuela are catastrophic, so much so that the UN rapporteur, Alena Douhan, an expert in international law and human rights and appointed Special Rapporteur for Venezuela in March 2020, produced a report where she states categorically that the US sanctions have devastating effects on Venezuela’s food, health and education. And as a result recommended that “All legal mechanisms should be used to allow the Venezuelan government to restore its social and development projects. Therefore, it says emphasizing: “the importance of dialogue, the rule of law, and respect for human rights among the States”.
There is no doubt for anyone of good faith that the unilateral sanctions imposed by the US government are manifestly illegal. They are illegal under the Charter of the Organization of American States (OAS), grossly violating Articles 19 and 20 of Chapter IV of that international instrument; they, too, are illegal under international human rights law, extending those violations to treaties signed by the United States itself. What is more, the sanctions imposed on Venezuela violate American legislation itself, whose executive, in order to circumvent the control of other bodies, ingeniously evokes the “threat to the internal security of the United States” to be able to approve and execute them freely.
It is curious that, with all the fuss made by the American authorities
around money laundering by Saab, a spokesman for the Geneva Prosecutor’s Office told Spanish news agency Efe last March that the case opened by Switzerland against Saab in 2018 was dismissed for lack of evidence.
Alex Saab was accused of alleged money laundering through accounts in Switzerland, the same accusation, which the United States of America makes against him, without, however, making a minimum effort to prove the illicit origin of the money.
The accusation by the American authorities that Alex Saab laundered 350 million dollars, through the American financial system, having as the origin of the money possible contracts for the construction of low cost social housing in Venezuela, which he failed to fulfill, and whose final purpose was to pay for acts of corruption by some Venezuelan public institutions, is vague, imprecise, and impossible to prove, since the apparently injured party never claimed that this happened. It is curious that the United States of America appears, thinking it is Venezuela’s guardian, to determine the procedures and legality of administrative acts in a sovereign country, including the fulfillment or not of a contract.
This is a strange and difficult to prove accusation, which is used to support the persecutory and policy-making zeal of a state that thinks it owns or is the owner of another state; an accusation from a state that even without proving corruption, accuses and sends people to jail for laundering what is not known to be lawful or illicit origin.
Well, it is with this background that one must analyze and try to understand the United States’ attack against Alex Saab, which is part of a strategy that aims at neutralizing him and all those who dare to “break” the blockade of Venezuela.
Moreover, the blockade is considered a fundamental instrument of the United States’ action, whose ultimate goal is to overthrow the Venezuelan government, even if in flagrant violation of international law and in disrespect of the sovereignty of other states.
Whoever wants to risk being accused of anything, or country that wants to be sanctioned or fined, let them dare to transact anything with Venezuela or try to break the blockade.
This is the naked reality, to ignore it is simply to ignore the most basic principles of justice, and whoever wants to be fair and impartial, regardless of sympathy or not for the Venezuelan regime, cannot ignore the context and surroundings of this American action against Alex Saab, and cannot ignore this evident and notorious fact that is the flagrant violation of the sovereignty of a state. An obvious conclusion follows from this invasive stance: the motivations of the American government to persecute Alex Saab and Venezuela are political in nature, albeit disguised as legal reasons and pretexts.
Anyone who prosecutes a person for allegedly committing eight serious crimes, with the ability, for tactical convenience, to remove seven of the eight serious crimes, just to make extradition possible, is capable of anything. By this “simple” and significant gesture, one can see the true relevance that is given to the alleged serious crimes committed. Thus, at this rate, one could easily get ridiculous, should this expedient be necessary to obtain extradition, of the United States accepting, without blinking an eye, to withdraw all 8 crimes, in order to finally obtain extradition, to try and convict the man for no crime committed.
This is one more of the absurdities of this case, like a “china deal” that some want to call justice.
Thus, political persecution and other forms of coercion are instruments to be used against all Venezuelan leaders or their collaborators who dare, in the current blockade situation, to leave their country, under whatever pretext or mission, in order to circumvent or defy the unilaterally imposed sanctions. The “elimination” from the scene of Alex Saab is or is an integral part of this strategy of neutralizing all those who oppose the imposition of a new order in Venezuela.
Cape Verde State: Schizophrenia I
Regrettably, a year has already passed since the sad episode that occurred on the island of Sal, on June 12, where a special envoy of a country, with which Cape Verde has diplomatic relations, and who until recently, within the framework of cooperation, had students in that country, was illegally and arbitrarily arrested, inside a non-commercial aircraft, without an arrest warrant.
Initially, the Cape Verdean authorities let it be known that the arrest had been made because of a red alert issued by Interpol. With the questioning that the red alert was only triggered on June 13, one day after the arrest, the argument has been put forward that the arrest request was made directly by the American authorities, more specifically by the Florida District Court, and that the Cape Verdean authorities acted under the provisions of articles 3 and 4 of Law 6/VIII/2011, of August 29.
As an example, it is worth recalling the statements, in an interview on Cape Verdean public television, of the then Cape Verdean Minister of Foreign Affairs, where he said that “the government is not taking any sides. Absolutely, we are not taking any sides. As a member of Interpol, the PJ fulfilled a mandate in a legal way and handed Saab over to the judiciary, which ordered the arrest.
The minister’s statements left no doubt: Alex Saab’s arrest was triggered by a request from Interpol, and the Cape Verdean police authorities only fulfilled their obligations as an alleged member of that organization.
In fact, Cape Verde is not even a full member of Interpol after all, as has been demonstrated throughout the case, since it has not complied with the formalities required for it to be able to invoke its status as a member of this international organization.
This argument of Interpol membership, shown on public television by the Minister of Foreign Affairs, was used in the ECOWAS Court of Justice, with one detail: the date that appears in the red alert, June 13, is justified with the time zone between Lyon and Praia. Confronted by the Court, there was no way to prove the time zone theory, and the Court ended up not accepting, as valid, the justification of the Cape Verde state.
As for the request by the Florida District Court for the detention of Alex Saab to Cape Verde, in the ruling of the ECOWAS Court of Justice there is no reference to a precise date as to when it was made. The precision of the date of the request is relevant to the case because it allows one to understand certain dynamics related to the moment of detention, bearing in mind that Saab does not live in Cape Verde, and, consequently, was not wanted here.
Since he does not live in Cape Verde, it is legitimate to ask: how did the American authorities and the Florida District Court learn of Alex Saab’s presence in our country so that they could, in time, issue the request for his arrest?
The request to Cape Verde by the American authorities, logically speaking, could only be made if, and only if, they knew that the wanted person was in Cape Verde. If so, by what means and channels did they have access to the information that the wanted person was in Cape Verde, when it is certain that the man did not even leave the aircraft in which he was traveling, much less cross our border?
It is also important to find out how the Cape Verdean authorities knew that Alex Saab was traveling exactly on that plane, on that day and time to our country, since Venezuela did not inform the Cape Verdean authorities about the passage of its special envoy through our territory.
Today it is known that the aircraft had not even planned to make the technical stopover in Cape Verde, the pilot having requested permission to land to refuel in some countries in the region, and these countries reacted negatively. It seems that Cape Verde was worked out to be the perfect destination so that what actually happened could happen.
So what is important to know is: who informed and instructed Cape Verde to commit such a stunt at 9:30 pm on June 12, getting on a non-commercial plane, without a warrant, to arrest a person, on a special mission for a state with which Cape Verde has diplomatic relations?
The State of Cape Verde will have to say how it knew that Alex Saab was arriving in the country on that plane and at that day and time, because it is proven that it was not via Interpol. It is more than evident that it was not via the Florida District Court for the simple reason that Alex Saab did not reside in Cape Verde. Nor was it by Venezuela, which only revealed to Cape Verde the presence of its special envoy the day after his arrest. One hypothesis remains, and perhaps the most likely one: was it the American intelligence and espionage services that were, it seems, monitoring the plane from Venezuela until it arrived in Cape Verde?
And a question remains in the air to be answered by those in charge: which is the counterpart in Cape Verde that exchanges information with the American secret and espionage services? The Judiciary Police is not! The Public Order Police much less! What is this entity? Who can investigate this so that public opinion stays and is enlightened?
The duplicity of Cape Verde’s posture makes it clear, however, that not everything was sufficiently rehearsed for there to be a guiding discursive line, with the necessary coherence, that could give the discourse produced the indispensable logic and credibility, as we will see later on.
A serious and respectable State does not use tricks and gimmicks to assert its position, it must give itself respect in order to be respected as such.
These questionings and the absence of serious and credible answers only suggest one thing: it seems that we are facing a political process, disguised as a legal matter, with clear outlines of political persecution and articulated at different levels and commands.
Cape Verde: Schizophrenia II
The ambivalence of the Cape Verdean state pervades the whole process that, it must be said, was very poorly conducted.
Good or bad, Cape Verde decided to play on two boards. One, internally and the other, externally, with different teams and with different spokespersons and discourse.
Defendant in the ECOWAS Court of Justice, the State of Cape Verde normally participated in the process, did not question the competence of the court at any time, therefore accepted its jurisdiction, defended itself against the charges brought against it and justified the reasons for its actions. From the trial he emerged convicted, and obliged to release Alex Saab and pay him compensation.
The curious thing is that at no time before the ECOWAS Court of Justice did Cape Verde invoke the incompetence of the court, the inapplicability of the additional protocol of 2005, and even less did it claim not to recognize the jurisdiction of the court in the matter.
Cape Verde, as a defendant, complied and participated fully in all stages of the process, and like any litigant in a lawsuit could win or lose. It ended up losing, and should have behaved with verticality and honor, which did not happen.
On the domestic front, surprisingly, there is another Cape Verde state. It does not recognize the competence of the ECOWAS Court in matters of Human Rights, on the grounds that Cape Verde has not signed and ratified the additional protocol that attributed those competences to the court. It decided, in a solemn and unilateral way, not to comply with the decisions of the court, where it was present and litigated as a party, and only did not comply with the decision because the sentence was not favorable to it.
This position in not complying with the decision of the ECOWAS Court of Justice is led by the Attorney General of the Republic who, in an interview outside the Presidential Palace, said: “If the court has no jurisdiction, it cannot decide on this issue… Notice that in this case that is before the ECOWAS Court, it was not the judiciary that intervened as a party, it was the government. And if the government was a party to the case, you can’t say that the defendant has to put the person under house arrest. It is the court that does that.” He also added that for Cape Verde to be subject to the jurisdiction of ECOWAS it was necessary that the protocol had been signed and ratified, which never happened.
This reaction of the OPG was in relation to the first decision of the court, which ordered the placement of Alex Saab under house arrest, but his position regarding the incompetence of the court remained unchanged, even after the second decision of this court.
It should be noted that the Public Prosecutor’s Office, under Article 225.2 of the Constitution of the Republic, represents the state, and with all due respect, the statements of the Public Prosecutor in which he projects a two- or three-headed state of Cape Verde does not fit with the definition and concept of the state.
It was not the government or the judiciary of Cape Verde that was sued in the ECOWAS Court of Justice, it was the State of Cape Verde.
The Cape Verdean state is one, with its own structure and politically organized, where there is a separation and interdependence of powers, which may be represented externally by the government or the president of the Republic, but always on behalf of the state as a whole. The binding of the state to international treaties and agreements is done with the participation of the different organs of sovereignty, namely, the government that adheres or approves, the parliament that ratifies, and the president of the republic that promulgates, precisely to avoid the notion and the bicephalous or tricephalous behavior of the state when facing international commitments.
Who is bound to ECOWAS is not the government, it is the state of Cape Verde. Who is a member of ECOWAS is not the government, it is the state of Cape Verde.
What can be clearly seen is that the constituent organs of the Cape Verdean state have not properly articulated themselves in the Alex Saab process, because this is the only way to explain this communicational “cacophony” or split in the “personality” of the state. It is still to be explained why the Public Prosecutor has not defended or coordinated the defense of the State of Cape Verde in the ECOWAS Court of Justice, as a public entity that represents the state, according to the Constitution, where it would have the unique opportunity to question the competence and jurisdiction of the court, in this case, and, perhaps, where it would assert its thesis.
Invoking the principle of separation of powers to disregard a judicial decision in which the state of Cape Verde is condemned is a remarkable innovation in public international law, particularly because of the argument that the government is the one that has been sued, not the judiciary, and therefore the latter is not obliged to comply.
Cape Verde bound itself to the ECOWAS Revised Treaty in 1993, represented at the time by the Prime Minister, and freely approved some important norms of this community legal instrument, namely:
The preamble of the treaty where this gem comes from: “CONVAINCUS que l’intégration des Etats Membres en une Communauté régionale viable peut requérir la mise en commun partielle et progressive de leur souveraineté nationale au profit de la Communauté dans le cadre d’une volonté politique collective”;
Article 15 which creates the ECOWAS Court of Justice and gives it powers in which “Les arrêts de la Cour de Justice ont force obligatoire à l’égard des Etats Membres, des Institutions de la Communauté, et des personnes physiques et morales.”
Article 9(4) of the Revised Treaty which gives the decisions of the Conferences of Heads of State and Government binding force “Les décisions de la Conférence ont force obligatoire à l’égard des Etats Membres et des Institutions de la Communauté.”
Article 9(6) of the same Revised Treaty which states “Ces décisions sont exécutoires de plein droit soixante (60) jours après la date de leur publication dans le Journal Officiel de la Communauté”, as well as the acceptance by the Cape Verde state of provisions provided in paragraph 7 of the same article which establishes the obligation “Chaque Etat membre public les mêmes décisions dans son Journal Officiel dans les délais prévus”.
There was a significant change in the organization and functioning of ECOWAS that, it seems, went unnoticed in Cape Verde, with the national authorities sailing a little on the side of the tide, and where it was noted the absence of a national body that had the domain, knowledge and experience in issues related to ECOWAS so that the country could follow and bind or not to certain decisions of this community body.
In a Conference of Heads of State and Government held on June 14, 2005, in Abuja, where Cape Verde was present, through the Director General of Foreign Policy of the Ministry of Foreign Affairs, probably invested with full powers, representing the President of the Republic, important decisions were taken in the framework of the ECOWAS reform, namely
(a) transformation of the ECOWAS Executive Secretariat into the ECOWAS Commission, as well as the adoption of a new legal regime for Community Acts. Until that time, only Protocols and Conventions were binding on Member States;
b) The Community Acts become additional Acts, Regulations, Directives, Decisions, Recommendations and Opinions.
Thus, the Conference becomes empowered to amend the Treaty, through Additional Acts and not through Additional Protocols and the Additional Acts are binding for the Member States as well as for the Community Institutions.
The Council of Ministers has the power to enact Regulations and Directives, take Decisions and issue Recommendations. Regulations and Directives are binding and directly applicable on Member States as well as on the Community Institutions;
c) The Conference further agreed that after the second term, the ECOWAS Parliament would be composed of parliamentarians elected by universal and direct suffrage to exercise legislative powers in specific areas.
While ECOWAS is transforming itself and equipping itself with new instruments of supranational character, within its walls, it is distractedly playing with the sovereignty of the nation-state times, in a retrograde, and in some cases reactionary, nationalism.
Judgments and Disagreements
The State of Cape Verde was transformed, voluntarily or involuntarily, from a cooperator in the international judicial process into an active party, if not the main stakeholder in the accusatory process against Alex Saab.
Practically all of the defense’s interventions were aimed at opposing the actions of the Cape Verdean authorities: starting with the detention on June 12, through the status of Special Envoy, conditions of treatment as a prisoner, among other situations. This posture was reiterated at various times and situations, which led the defense of Alex Saab to seek justice in other instances such as the ECOWAS Court of Justice or the United Nations Human Rights Committee.
Cape Verde, assuming the role of main accuser, left the American authorities as a mere spectator in the process. So much so that it seems they did not even have the need to trigger the provisions of article 47 of the International Judicial Cooperation in Criminal Matters Act in order to be represented and participate in the progress of the case. They had and have Cape Verde as an active party in the process and they simply are or were reassured!
Judgments handed down by two judicial bodies on the same case should be cause for reflection, all the more so because we are dealing with decisions by collegial judicial bodies of the highest levels, which leads one to believe that the decision made the necessary weighting of several values at stake. Considering the relevance of this decision, whose consequences may do justice or destroy a person’s personal and family life, the decision makers should necessarily keep in mind that maxim: it is better to have a criminal at liberty than an innocent person convicted and deprived of liberty.
From the two judgments, some aspects that seem particularly relevant to us should be highlighted, namely: the legality or illegality of the arrest, whether or not Cape Verde is bound by the decisions of the ECOWAS Court and the status of special envoy.
A – Legality or illegality of arrest:
In 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 a Cape Verdean judge and former Minister of Justice in 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 the arrest of Alex Saab was on the basis of Interpol’s Red Alert, since at the time of the arrest the Cape Verdean authorities did not prove that they had in their possession any request from that entity, and this being so, the court reaches an inescapable conclusion: Cape Verde acted without the authority of INTERPOL to arrest Alex Saab on June 12, and, for that reason, the arrest was illegal, as it was contrary to the provisions of 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 attached to the case, what could be called a Red Alert, dated June 13, in this document it is written that “This request will be treated as a formal request for provisional arrest, in accordance with applicable national and/or bilateral and multilateral treaties”, meaning that the arrest based on a Red Alert must comply with national laws and/or applicable bilateral and multilateral agreements.
The ECOWAS Court of Justice 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 arrest, whose request 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 Law, already cited, 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, so 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 occurred after the arrest of Alex Saab, even though it is public and notorious that the Cape Verdean authorities, at first, stated that the arrest of the Venezuelan was made based on an Interpol Red Alert, as confirmed by Alex Saab, before the judge who validated the arrest, where he says emphatically, quoted in the judgment, “they informed him that there was an Interpol arrest warrant for him, although they didn’t show it to him, and then they told him the reason for his arrest.
And is that what the law requires?
Later on, it will be clearly seen that it is not!
The Supreme Court of Justice did not give much legal value to the fact that Cape Verde is not a full member of Interpol, it valued the fact that this cooperation can take place without Cape Verde being formally bound to this organization, it being enough that there is interest on the part of Cape Verde in making use of this important instrument for the authorities to act, without any formal binding to this international entity being necessary.
To justify the detention and its legality, the Supreme Court of Justice looked to article 39 of the International Judicial Cooperation in Criminal Matters Act, which provides for the figure of “Detention not directly requested”, a norm that allows the criminal police authorities to “make, 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 normative that allows 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, which they never showed.
As the ruling of the ECOWAS Court of Justice made clear, “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 three copies, signed by a judicial or prosecuting authority and must contain the identification of the target 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, to reach the following conclusion: the failure of the Cape Verdean authorities to comply with legal norms is not procedural in nature, but rather of substance, and consequently, we quote 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!
The same type of approach was taken by the Supreme Court of Justice when confronted by the defense with the fact that Cape Verde had not concluded the ratification process of the United Nations Convention against Transnational Organized Crime, an international legal instrument 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 breach of a treaty”, to invalidate the defense’s claims.
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. It is the Vienna Treaty on the Law of Treaties itself in its article 2 that defines a “party” as “a state that has consented to be bound by the treaty”, so that, unless better understood, 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.
In conclusion, it appears that the arrest of Alex Saab was and is clearly illegal.
B – Binding or not Cape Verde to the decisions of the ECOWAS Court?
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 force on Member States, Institutions of the Community, and physical and moral persons”. This is an imperative and unambiguous norm of interpretation, 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 its definition to 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 neither present nor signed the protocol A/SP.1/01/05, consequently, it has not ratified it.
It is unknown, at all, the reasons why Cape Verde did not attend the Conference of Heads of State and Government, being more than certain, as a full member of the conference, that it received the convocation and agenda of the work;
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 protocol;
There is no information regarding Cape Verde’s participation in the preparatory work, especially in the drafting and consensus building of the protocol proposal that was discussed and approved at the conference. As is known, and is 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 during the process of drafting and approval of the protocol presented any objection, much less “reservations”, to any of its norms.
Cape Verde does not reject the protocol nor did it oppose its content, it only states that it has not ratified it. This is Cape Verde’s big argument to be disengaged from the ECOWAS Court of Justice decision: simply because it has not signed and ratified, without any plausible explanation, the 2005 protocol.
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 itself and assumed some obligations, under the Revised Treaty, and 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 Journal of the Community, decisions are enforceable as of right (Article 9.6);
(d) Each Member State must publish the same decisions in its Official Journal within the time-limits laid down in paragraph 6 of the same Article;
(e) each Member State shall undertake 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 undertakes to fulfil its obligations under the present Treaty and to comply with the decisions and regulations of the Community (paragraph 3 of the same Article).
The conference decision, which approved the Additional Protocol (A/SP.1/01/05), was held in Accra, Ghana, on January 19, 2005, and in it, the following is stated in the Final Communiqué:
“… the protocol relating 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 face of this decision?
During the 16 years that this protocol has been in force, and it is an integral part of the treaty and of the competences of the court, Cape Verde has remained unmoved and serene, has not used any of the instruments that the treaties provide to assert its possible and unknown opposition. Cape Verde has not declared any objection, has not made any reservations, has not asked for a suspension of this part of the treaty, and when confronted with an unfavorable court decision, Cape Verde has limited itself to using the argument of a bad loser: the protocol has not been signed or ratified, therefore the decision of the court is not binding on us.
Cape Verde, by not having communicated to ECOWAS its opposition, which would be 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 ECOWAS treaty, in the transitional provisions and safeguard clause, in Article 92(1), states that “Dès l’entrée en vigueur du présent Traité révisé, conformément aux dispositions de l’article 89, the provisions of the Vienna United Nations Convention on the Law of International Treaties adopted on 23 May 1969 shall apply to the definition of the rights and obligations of Member States under the ECOWAS Treaty of 1975 and this revised Treaty.
Well, if this is the case, in this binding matter, the invocation of Article 27 of the Vienna Treaty on the Law of Treaties is entirely appropriate, which states: “A party may not invoke the provisions of its internal law as justification for failing to perform a treaty”.
And if we combine the provisions of Article 27 with 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 on the basis of Articles 46 to 50 or Articles 60 and 62 if, after it has become aware of the facts, that State
b) by reason of its conduct, is to be regarded as having agreed that the treaty is valid, remains in force or continues in execution, as the case may be”, it is evident that Cape Verde conveyed to everyone the idea that it had nothing against that part of the treaty.
The conduct of Cape Verde, during those 16 years, in the face of a decision that was public and notorious, 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: HE WHO SHUTS UP, CONSENTS.
Thus, borrowing the arguments of the Supreme Court of Justice, when it rebutted the defense arguments, regarding the fact that Cape Verde had not completed the ratification process of the United Nations Convention against Transnational Organized Crime, the STJ, on that occasion, relied on a rule of international law to overthrow the intentions of the defense.
The STJ then held 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 cover for the Cape Verdean authorities’ claims to arrest Alex Saab. In concluding its reasoning, the STJ also stated in summary fashion: “Therefore, the lack of publication of the ratification notice of the treaty in question, which may condition 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 State of Cape Verde to the decisions of the ECOWAS Court of Justice, 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 its rights.
Returning to the decisions of the Supreme Court of Justice, following its previous positions, it also rejected the defense’s claim 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 rules 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 part.
The arguments used for the rejection of their applicability by the STJ were that, in one case, the non-sup supranational character of ECOWAS and, in the other, that it is necessary “the recognition by the justice administered by such courts of the consent of the State of Cape Verde as to the rules defining their jurisdiction and procedure.
To support its decision, the STJ relies on Prof. José de Pina Delgado, currently a judge at the Constitutional Court of Cape Verde, to get the doctored 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 they would represent and with the limitations pointed out to such supranationality”.
The obvious question that should be asked is whether Cape Verde binding itself to these treaties, which would represent the supranationality, ECOWAS would become supranational? Or if ECOWAS already is, regardless of whether or not Cape Verde is bound by those treaties.
Using the STJ’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 assert itself as such, as it does not need the declaration of bindingness of a state to define itself as supranational or not.
The issue of supranationality is a matter of study and analysis by various specialists, and here, by way of example, we can bring to light the vision and position of some of them.
For Prof. Dr. 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 the scope of 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. Dr. Eduardo Biacchi Gomes, what characterizes what he calls the “supranationality institute”, “is the autonomy and independence that it gives to community bodies in relation to the Member States, since the fact that they are hierarchically placed between the national and international legal orders guarantees them primacy over the laws of the States”.
In Prof. José Cretella Neto’s understanding, 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 notes the following characteristics in supranational organizations:
“(a) The organs of the organization are integrated by persons who are not representatives of the governments of the member countries;
b) The organs can make 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 organs constitute a new legal order; and
f) The fulfillment of the member countries’ obligations and the validity of the acts adopted by the organs of the organization are subject to judicial review by an independent court of justice.
For the Master in Law and International Relations, Aline Beltrame de Moura, the definition of supranational becomes complex because each author tries to make it according to his conceptions. She, however, affirms that all the theories converge on three essential elements: (i) transfer of portions of competences 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 before the Member States.