This week, Zeuxis Hernandez—also known by the alias “Jesus Santrich”—will likely fill one of the five seats in Colombia’s House of Representatives that the Havana agreement reserved for ex-combatants. He will join Congress almost a year late, after having been incarcerated since April 2018, when he was indicted by the Southern District of New York of conspiracy to sell 10 tons cocaine, worth $320 million. Santrich’s case led to some of the most polarizing debates around the peace process, and more importantly made evident the huge challenges facing both the transitional justice system and Colombian institutions after the settlement of the conflict.
Santrich is a well-known figure. He is one of the members of the Revolutionary Armed Forces of Colombia (FARC) Secretariat and was a lead negotiator in the peace process between this group and the Colombian government. The request for Santrich’s extradition to the United States came as the first real challenge for the transitional justice tribunal, known as the Special Jurisdiction for Peace (JEP). This court had one specific task: to determine the date when the alleged crime took place. Because the FARC had acknowledged their involvement in drug trafficking to support the war, the Havana agreement made clear that crimes committed before the signing of the agreement in November 2016 were covered under the transitional justice system, and extradition for those cases was prohibited. If Santrich’s crime had taken place after November 2016, however, he could be extradited.
The case against Santrich was led by then Attorney General, Nestor Humberto Martínez, a controversial figure who has skirted accusations of corruption related to his connections to Obredecht, the Brazilian construction company that has been tied to corruption scandals throughout Latin America. Martínez affirmed he had proof that Santrich had met with two undercover US Drug Enforcement Agency (DEA) agents, and supported the US request for extradition. The request and its implications for the FARC shook Colombia. Opponents of the peace process have long argued that the FARC’s involvement with drug trafficking is proof of their criminal nature and were pleased to see their suspicions confirmed. Meanwhile, many in the FARC accused the attorney general of being part of a plot against the peace process and have maintained Santrich’s innocence.
In order to establish the facts, the JEP requested the Colombian government provide them with the evidence gathered by the Americans. Nine months after the request, no evidence had been shared and the head of the JEP, Patricia Linares, publicly demanded to know the reasons for the delay. The response from the Ministry of Justice? The letter addressed to the US Department of Justice had been lost in the mail. After a few weeks of national astonishment, the US finally sent an official answer: they refused to provide the JEP with any further evidence as that would challenge the good faith practice established by both countries, namely that Colombia agrees to extradition requests without needing further proof.
The stakes at this point were incredibly high. Opponents of the peace process have been openly critical of the JEP and argue that the transitional justice mechanism ensures impunity for the FARC. The US government also made its stance clear by revoking the visas of several justices of the JEP and the Supreme Court who were likely to oppose the extradition request, a move that many observers denounced as an intrusion into Colombia’s sovereignty, but which the administration of President Iván Duque defended.
On the other hand, many ex-combatants saw in the attempt to extradite Santrich the materialization of their fear that the peace process had been a ruse to get them to disarm, only to send them to jail. In fact, another member of the FARC Secretariat, Iván Márquez, declined to take his seat in Congress, and several guerrilla leaders refused to testify in the JEP until the extradition request was denied.
What was an already complicated situation became more dramatic on May 15, when the JEP, in a divided 3-2 decision, announced they couldn’t ascertain if a crime had been committed, and demanded that Santrich be freed immediately. In its decision, the JEP stated that they could not affirm with certainty if, or when, a crime had taken place because of lack of evidence, and thus asked the ordinary justice to continue investigating the case. It also accused the office of the attorney general of acting illegally. Furthermore, it came to light that the DEA agents had broken with protocol, by having entrapped Santrich without the knowledge of the Colombian state.
A few hours after the JEP made its decision public, Attorney General Martínez resigned in a letter in which he accused the transitional justice mechanism of “challenging the judicial order,” and soon thereafter left the country. Hours later, the deputy attorney general and the minister of justice also resigned in a sign of protest against the JEP’s decision. With the country still reeling from these developments, the government dragged its feet before freeing Santrich. President Duque’s party, the Centro Democrático, asked him to declare a state of emergency and extradite the FARC leader through a presidential order. Hearing this news, Santrich attempted to commit suicide in his cell.
Finally, in the early afternoon of May 17, after having received medical attention, Santrich was pushed out of jail in a wheelchair. The FARC leader was then promptly re-arrested as soon as he crossed the jail’s doors. The authorities claimed that in the hours that had passed since the JEP’s decision, new evidence had been obtained—with the help of international judicial cooperation—that proved Santrich’s involvement in the drug trafficking attempt. That night, a video that shows Santrich with the undercover DEA agents and others, purportedly arranging the drug deal, circulated widely on social media. This prompted the JEP to release a statement questioning why the attorney general’s office had not sent the evidence to the body in a timely manner.
With Santrich back in jail, the question of his future went to the Colombian Supreme Court. Because the FARC leader had been appointed as a member of Congress, a decision needed to be made regarding who would continue the investigation—either the Supreme Court, which has jurisdiction over crimes committed by members of Congress, or the traditional justice apparatus. On May 30, the Supreme Court confirmed Santrich’s standing as a congressman, and decided that, while the investigation takes its course, he should be freed.
Santrich will be likely sworn into office in the coming days, but the drama will continue. The Supreme Court has now started the investigation of the case, and has called Santrich to testify. The Office of the Inspector General asked the Supreme Court to incarcerate Santrich again, but the Court declined to do so. Meanwhile, President Duque has made it clear they will continue to fight Santrich’s presence in Congress. There is a real fear that, if the extradition process makes its way through the Courts, Santrich might try to flee the country—a decision that would be a significant blow to the peace process.
Despite the crisis this case has produced, the respect for the rule of law and the institutional order on all sides speaks to the strength of the Colombian institutions. It also highlights the strong reservations many, including those in high positions of power, have against the JEP. The transitional justice tribunal might have survived this first challenge, but it came out bruised, especially in the court of public opinion. How the JEP decides to handle the cases of those FARC leaders who have decided not to honor the Havana agreement will be essential for its future standing.