Latin America Advisor

A Daily Publication of The Dialogue

Are Colombia’s Courts Capable of Keeping the Peace?

Colombia’s Supreme Court last week freed former FARC rebel leader Seuxis Hernández, also known as Jesús Santrich, who is wanted on cocaine trafficking charges in the United States. // File Photo: Colombian Government. Colombia’s Supreme Court last week freed former FARC rebel leader Seuxis Hernández, also known as Jesús Santrich, who is wanted on cocaine trafficking charges in the United States. // File Photo: Colombian Government.

Colombia’s Supreme Court on May 29 freed former Colombian rebel leader Seuxis Hernández, also known as Jesús Santrich, from prison on the grounds that he is protected by parliamentary immunity as a member of Colombia’s Congress. The ruling followed Hernández’s rearrest on new evidence after he was freed by the Special Jurisdiction for Peace, a court established by Colombia’s 2016 peace accords with the FARC rebels. The decision by the special court, known by its initials JEP, to release Hernández led the country’s attorney general and his deputy to resign in protest. What does the magistrates’ decision to free Hernández say about the JEP court? What are the implications of Hernández’s release by the Supreme Court, and how will the case affect relations with the United States, where Hernández is wanted on cocaine trafficking charges?

Gimena Sánchez-Garzoli, director for the Andes at the Washington Office on Latin America: “The recent judicial saga whereby different judicial bodies arrested, then released, then rearrested and then rereleased former FARC rebel Jesús Santrich hits at issues that go to the heart of the political polarization that exists between the pro-peace and anti-peace camps in Colombia. For the anti-peace camp, the allegations against Santrich are proof that the FARC used peace as a cover to continue with and get away with crimes. For the pro-peace camp, these allegations and actions of the attorney general are viewed as an effort to sabotage peace. There is strong disagreement between the judicial bodies as to the merits of the allegations. It has become a rallying cry for both those who wish to dismantle the peace’s transitional justice mechanism and those who defend the peace and its transitional system. It is difficult to know the validity of the evidence when the U.S. Department of Justice refuses to provide it, a position U.S. Ambassador Kevin Whitaker has staunchly defended in the press. The United States has invested a lot to strengthen Colombia’s judicial system to help the country achieve peace. While imperfect, the peace has demobilized thousands of fighters, decreased violence and given hope to millions who seek to heal from the conflict. Insisting on extradition, whether the merits are there or not, undermines Colombia’s judicial system. Extraditing a player in the peace process without extremely clear evidence that they committed the crimes they are accused of will destabilize the peace.”

Maria Velez de Berliner, managing director at RTG-Red Team Group, Inc.: “The Special Jurisdiction for Peace (JEP)’s initial freeing of Hernández confirmed a majority of Colombians’ belief: that the JEP is a sellout to FARC high court and was created to exonerate demobilized FARC leaders, reinserted militias and sundry criminals. The FARC’s 2016 agreement with the Colombian government enshrined the JEP into Colombia’s Constitution. Therefore, the JEP can be amended or voided only through a constitutional convention whose convening appears doubtful. The Supreme Court’s subsequent freeing of Hernández, claiming he has parliamentary immunity, was expected; this court enjoys the same derision and distrust that the JEP has. Both courts’ decisions mean Colombia lacks a judicial system that most Colombians can trust and rely upon. The country has a judicial system that both courts and the FARC have turned into a laughing stock. Consequently, a majority of Colombians are looking to the United States as the judge of last resort. They hope the Drug Enforcement Administration (DEA) covertly whisks Hernández out of Colombia to be tried in the United States. That is unless, true to Colombia’s violent history, Hernández comes across an accidental ‘loose bullet,’ as has happened to more than 500 civic leaders and 187 demobilized FARC members assassinated in Colombia since December 2016. Other than any covert action by the DEA to extract Hernández from Colombia to justice in the United States, it remains to be seen what the United States will tangibly do, except for public statements of disapproval and the threatened decertification of Colombia for its failure to ‘stem the flow of drugs into the United States.’ What remains unchanged is that both decisions to free Hernández have dealt a mortal blow to the scant confidence that few Colombians had in their judicial system. Justifiably so.”

César Caballero, manager at Cifras & Conceptos in Bogotá: “The Supreme Court’s decision is another example of the real division of power that exists in Colombia. It does not mean that Jesús Santrich will be declared innocent or guilty, but rather that the authority to which he must answer is the Supreme Court. At this moment, three different high-level courts have ruled in favor of him: the Consejo de Estado, which granted his congressional immunity; the JEP, which rejected his extradition; and now the Supreme Court, whose ruling set him free. One important aspect of this legal debate is the way in which the probes against Santrich were conducted. Some argue that there were no legal grounds. However, the attorney general’s office has presented new evidence to support its case against the former guerrilla leader. For the Colombia-U.S. relationship, it is clear that his case is at the top of the U.S. agenda, so there will be a continuous effort to send him to United States. That, if it occurs, will not happen in the short term but could take the rest of this year.”

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