Above Photo: Caracas, Venezuela, October 17: Demonstrators chant slogans during a rally in support of Alex Saab.
And International Diplomatic Law.
The detention of Alex Saab continues to draw attention not only because of what it means for Saab but also for diplomatic relations more generally. Here is what leaders need to know about Saab, who was arrested during a refueling stop in Cape Verde.
Who Is Alex Saab?
Alex Saab is a Colombian-born Venezuelan who was appointed as a special envoy by the government of Venezuela in April 2018. In October 2021, Saab was extradited to the United States, where he faces one charge of conspiracy to launder money tied to a Venezuelan social housing program.
Why Does His Case Matter?
Despite his diplomatic position, Saab was arrested at the request of the United States in Cape Verde, in June 2020, while making a refueling stop on his way to Iran, which was his third special mission to Iran as a diplomatic envoy for the government of Venezuela during the height of the COVID pandemic.
Saab was not carrying a diplomatic passport, but that has no bearing on his status because a diplomatic passport is not required for a person to be entitled to diplomatic immunity
In fact, in the case of U.S. v Noriega and Others in 1990, the U.S. District Court of the Southern District of Florida said that a diplomatic passport might secure “certain courtesies in international travel, [but] they are without significance in international law.” In other words, the possession of a diplomatic passport does not automatically make the holder a diplomat. Critically, nor does the absence of a diplomatic passport indicate that a traveler is not a diplomat or a special envoy on a diplomatic mission on behalf of a State. Many States do not issue diplomatic passports either to members of their overseas missions or to special envoys.
What Does International Law Say about the Case
There is ample evidence of Saab’s appointment to the position of Special Envoy by the government of Venezuela and of Iran’s acceptance of his special missions, including the one he was undertaking at the time of his arrest.
The Netherlands government, following consultation with its Advisory Committee on Public International Law, set out four generally-accepted conditions that must be met by foreign official visitors to the Netherlands in order to qualify as a person on a special mission: (1) the mission must be temporary in nature (generally for a relatively short period of time, ranging from part of a day to a period of several weeks); (2) the mission must be from “one State to another” (although this does not mean that all members of an official mission must be government officials. They may, for example, be parliamentarians or representatives of the business community); (3) the mission must be to the government of the receiving State; and (4) the receiving State must have consented to receive the mission in question.
All four of these tests, which reflect existing customary international law, were met by Alex Saab on his special mission to Iran. This entitles Saab to inviolability – immunity from arrest and detention – either in the receiving State – Iran – or in States through which he has to travel on his way to Iran – Cape Verde – and in any States in which he finds himself against his will, which perfectly describes his situation in the United States.
International law confers on a special envoy the right of unimpeded passage through the territory of third States when travelling from the State which appointed him (the “sending State”) to the “receiving State” that consented to the mission. Under these rules, the envoy is guaranteed inviolability and such other immunities as may be necessary to ensure his safe passage.
What Now?
It follows that the continued detention of Alex Saab in the U.S. is a grave violation of his inviolability as Venezuela’s special envoy in transit on a special mission to Iran, which clearly recognized his status and has protested at his illegal arrest and detention.
There is abundant evidence of the appointment of Alex Saab to carry out a special mission. The requirement that a special mission must be notified is directed at the receiving state, and it doesn’t make sense to suggest that all transit states must be notified if a special envoy is overflying or in an aircraft that stops to refuel in the transit state.
The fact that the U.S. does not recognize the Maduro government in Caracas is irrelevant. What matters is that both the sending state – Venezuela – and the receiving state – Iran – have recognized Saab as a special envoy. The U.S. is not entitled to interfere with the diplomatic activities of Iran and Venezuela. For the U.S. to interfere, as it is doing now by seeking to prosecute Alex Saab, violates international diplomatic law.
The extradition of Alex Saab to the United States and his continued imprisonment violates international diplomatic norms. His arrest is a breach of diplomatic norms. As such, bringing his arrest to an end is in the interest of all members of the global community, including the United States since if the U.S. continues to disregard Saab’s immunity it may well find that the immunity of U.S. special envoys abroad will be put at risk.
Eileen Denza is a distinguished expert in international law, with a particular focus on diplomatic law, including immunity and inviolability. Her book Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations as well as her practical experience in government have established her as a preeminent authority in the field of diplomatic immunity. Denza served as a Legal Advisor in the UK’s Foreign and Commonwealth Office, where she gained firsthand experience in dealing with matters of diplomatic relations and immunity. She worked on legislation and litigation pertaining to immunity of diplomats, consuls, international organizations and States. Denza has also been a Visiting Professor at University College London, teaching courses on Foreign Relations Law and other topics of international and European law. She has appeared as an expert before Congressional committees, the House of Lords, the House of Commons and the European Parliament.