Why Extradition Requests to the US Cannot be Taken on Face Value
IndraStra Global

Why Extradition Requests to the US Cannot be Taken on Face Value

By Eduardo Pérez

Why Extradition Requests to the US Cannot be Taken on Face Value

A small country in West Africa is currently being pressured by the United States to extradite a Venezuelan diplomat on alleged money-laundering charges. As a result, little-known Cabo Verde is caught in the crosswire of allegiance to the US and the West, strong economic partners, and its ties to its African neighbors and the regional political and economic grouping to which it belongs – ECOWAS [the Economic Community of West African States].

The person in question is Alex Saab, a Special Envoy sent by the government of Venezuela to Iran on a humanitarian mission to secure goods for the South American country suffering from the effects, amongst other things, of US sanctions. It increasingly appears that the motives to extradite Saab are driven by politics. During court proceedings, the defense team for Saab has cited a number of missteps in Saab’s arrest and extradition request, not least that the Red Notice Interpol alert, the grounds for his arrest, was issued after Saab’s actual arrest in June 2020. 

Above and beyond the legitimate of the extradition request, there are serious legal and humanitarian issues at stake. 

US Precedent

In a diplomatic note dated 8th September 2020, the government of the United States, if Alex Saab’s extradition is approved, offers of charging him with only one count of conspiracy (punishable by a maximum of 20 years in prison) and dropping the remaining seven charges listed in the Extradition Request sent to Cape Verde on 29 June 2020. 

It is becoming clear that Washington’s promise to Cape Verde that it will charge Alex Saab only on one of the original eight charges (as a way of assuaging Cape Verde’s constitutional restriction on extradition if the extradite faces the death penalty or a whole-of-life sentence) cannot be fulfilled. 

Such a guarantee has no serious grounds nor can it be maintained, since, in the case of legal proceedings under the Rule of Law and with the separation of powers under the American system, it is never the Executive branch that can provide such an undertaking but rather the courts.

As currently proposed, there is no guarantee that could be constitutionally acceptable to Cape Verde that new and more serious charges would not be made against Alex Saab once he is on US soil. Such possible additional charges could eventually lead to the death penalty if Cape Verde persists in acquiescing to the American request. 

If Alex Saab were charged with all eight counts and found guilty of all eight charges, then he would potentially face a sentence of 160 years in prison. The 160 years would amount to a whole-of-life sentence (equivalent to the death penalty) and thus, under Cape Verde’s constitution make it impossible for Alex Saab to be extradited.

This same interpretation has also been made by the eminent Cape Verdean jurist and academic, Bartolomeu Varela, who in an interview with Notícias do Norte (NN), stated that “no one guarantees that new facts can be discovered leading to new charges that imply being condemned, for example, to the death penalty of the extraditee, the person whose extradition is sought”.

The US has precedent. There are numerous recent cases in which the United States has failed to fulfill identical guarantees given to other countries, even its closest allies, countries such as Great Britain, Spain, and Colombia, amongst others.

It is also highly unlikely that Cape Verde will be able to appeal to the Southern Florida District Court – where the criminal case against Alex Saab is taking place – in the event that the US Government violates the guarantees given when adding additional charges or not respecting the commitments made under the Diplomatic Note.

There are deficient jurisdictional allegations to support a charge of conspiracy to money laundering based on a violation of the Foreign Corrupt Practices Act are an additional basis for Cape Verde to deny Mr. Saab's extradition, under the unenforceable terms proposed by the United States.

The FCPA applies namely to “American citizens, nationals, and residents (…), American companies (…), agents, employees, workers, directors, and shareholders of American companies and foreign persons present in the territory of the United States.”

According to American jurisprudence legislation, “the only and obvious omission” with respect to the jurisdiction of the FCPA, is that which falls on a “foreign citizen who acts outside the USA but not on behalf of an American person or company”, which constitutes precisely the situation of Alex Saab, who never acted on American soil, a country whose territory he has not visited, in fact for over thirty years. 

Violation of the Principle of Reciprocity

The issue of reciprocity is another matter of analysis in this particular case, but also for future extradition requests. The United States, as a recurring and documented practice, never agrees to deal reciprocally with any State with which it does not have agreements. Extradition, even if this possibility is provided for under Article 16 of UNCTOC – the United Nations Convention against Transnational Organised Crime.

There are decisions of American courts that suggest that the United States would reject any request for extradition based on UNCTO. Reciprocity is the basis of the double criminality requirement”, which means that “a charge for which an individual is being extradited is serious enough to constitute a crime both in the requesting country and in the country that is handing over the individual. In simple terms, there cannot and should not be extradition without the premise of reciprocal treatment.

On that note, nations, and in this particular case, Cape Verdean should refuse to comply with a request from authorities of that country.

About the Author:

Eduardo Pérez is a Venezuelan journalist

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