The events of the past week in Colombia surrounding the case of Jesus Santrich have once again surfaced critical issues of the rule of law in Latin America and whether the United States’ extradition relationships contribute to or debilitate it.
For those not familiar with the case, Jesus Santrich was an ideological leader and one of the peace negotiators for the now defunct Revolutionary Armed Forces of Colombia (FARC), the guerrillas who reached a peace accord with the Colombian state in December 2016. As part of that historic agreement, a transitional justice system (JEP) was created in order to encourage FARC members to confess their crimes in exchange for less stringent punishments. The philosophy behind the arrangement was to seek transparency and accountability for the FARC’s half century of victims and expedite the reconciliation process within Colombian society. Key to the arrangement was a guarantee that the defendants, ex-FARC guerrillas, would not be extradited to the United States for confessed crimes that took place prior to the JEP’s entry into force. Crimes committed after that date would be handled by ordinary Colombian justice system, with extradition on the table.
Almost as soon as the system was created, information surfaced that FARC leadership and their lawyers were selling spots on the JEP list to non-FARC drug traffickers. In the course of investigating these allegations, U.S. and Colombian authorities came across Santrich brokering the transshipment of a ten thousand kilo load of cocaine to Mexican traffickers. Santrich was indicted in the United States in early 2018, and in April of that year, he was arrested in Colombia, where he sat for a year awaiting a jurisdictional decision by a JEP court. That five-judge panel ruled 3-2 on May 15 that the date of the recorded evidence of Santrich’s drug deal conversations could not be established based on the U.S. extradition request.
As such, the JEP ruled that the guarantee of non-extradition remained in place, and Santrich was ordered freed from La Picota prison. The next day, Colombia’s Attorney General resigned in protest, and opponents of Colombia’s transitional justice system - 46% of respondent to a Gallup Poll last week, compared to 47% who supported it – lit up social media with comments to the effect of, “ We told you so! The JEP is nothing more than an impunity pact the FARC negotiated with former President Santos who was more interested in his Nobel Peace Prize than justice in Colombia.”
Two days later and still detained, Jesus Santrich, a blind Yoda-like character, with a long history of cocaine exports under his Gucci-revolutionary belt, apparently inflicted upon himself unspecified wounds to pressure the Colombian government to release him in compliance with the JEP decision. No sooner was he escorted out of prison then he was re-arrested on new Colombian charges that sustain the evidence provided to the prosecutors by the DEA was, in fact, corroborated by Colombian experts as commencing in June of 2017. So now Santrich faces both extradition -- Colombia's Inspector General has appealed the JEP's May 15 decision -- and a Colombian criminal case based on the same evidence.
I know….the Netflix series writes itself. However, let’s leave aside the guilt or innocence of Mr. Santrich for the moment.
Why do he and so many other Latin American narcotraffickers, money launderers, and corrupt politicians go to such great lengths to avoid extradition to the United States? The answer is simple: it ends their criminal careers and the time ain’t easy. Recall that as far back as the late 80’s the infamous Pablo Escobar and his cronies called themselves the Non-Extraditable Ones, and killed scores of Colombian legislators, prosecutors and judges to make extradition of Colombians from Colombia illegal, so intimidating was the thought of an American jail cell.
Escobar succeeded, for a while, but brave Colombian authorities and the Americans patiently worked to re-establish a legal extradition relationship starting in 1996. I worked as a junior embassy officer in Bogota on that decade-long effort and it has been enormously successful. To date, hundreds of major Colombian criminals, mostly drug traffickers, have been extradited, tried and convicted in the United States. In Mexico, as well, extradition is an incredibly effective tool for ensuring that drug and other crime bosses have no place to hide with their ill- gotten gains.
El Chapo Guzman is only the latest and most famous in a list of dozens of Mexican bad guys doing hard time courtesy of Uncle Sam. And this time, he won’t bribe his way out.
The State Department and the Department of Justice (DOJ) have assiduously worked over decades to assist countries like Honduras, Peru, El Salvador, Guatemala, Ecuador, Panama and others to send us their high-profile bad guys. It is a proven tactic that ends careers in crime. But does it genuinely aid in consolidating the rule of law in these countries? After a career’s worth of experience, my honest answer is “ I don’t know.”
Santrich’s case reveals the unintended consequences of what may be an over reliance by the United States on the extradition tool as a means for Latin judiciaries to outsource the really hard cases, where political pressure and bigtime bribe money come into play.
For now, the American officials who decided to share the evidence should be commended. Most US prosecutors are loathe to do, but perhaps they, like the American diplomats in Colombia, are starting to see that the cause of justice in Colombia may best be served by Colombian versus American justice.