18 May Quick Note on the Santrich Case at the SJP
I wanted to draw readers’ attention to an important case decided this Wednesday by Colombia’s Special Jurisdiction for Peace, the tribunal set up to spearhead its transitional justice process. The case involves the extradition request of Seuxis Pauxias Hernández Solarte, better known as “Jesús Santrich”, a demobilized FARC commander accused of narco-trafficking by the US.
As a demobilized FARC member, Santrich is covered by the Colombian Peace Agreement and its non-extradition protections. Under the Agreement, FARC members cannot be extradited for crimes committed during the duration of the conflict. In the Santrich case, the issue revolved around when exactly he had committed the crimes he was accused of. If the crimes where committed after the entry into force of the Agreement, Santrich would not benefit from non-extradition protections. The SJP’s Revision Chamber had to carry out “the analysis of the evidentiary materials that supports the facts, exclusively to evaluate the conduct and determine the precise date of its undertaking” (¶190, translations my own). A specific issue at stake here was however what happens when the evidentiary materials are not sufficient to establish a precise date for the facts?
The Chamber noted a series of principles that could help it solve the controversy (¶244 onwards). Specifically, the pro-homine principle (using the interpretation most favourable to the effective enjoyment and exercise of fundamental rights and freedoms), the pro-victim principle (SJP decisions must always seek to repair the harm caused to victims, and the finding of truth), pro-peace principle (SJP interpretations must keep in mind that peace is a pre-requirement for the enjoyment of fundamental rights).
The Chamber dealt with a massive absence of evidence by means of lack of collaboration both by Colombia’s Attorney General and the United States Department of Justice. The Attorney General claimed on television that he possessed audio and written materials that proved the crimes were committed after the signing of the Agreement. Upon request by the Chamber, however, he replied that the evidentiary material had been sent to the United States. The US DOJ, for its part, claimed it was under no obligation to supply it because their original extradition complaint “satisfied all the requirements” of the Colombia-US extradition treaty and “long established extradition practice in Colombia” (¶¶293-310). For the US Department of Justice, the Chamber did not really need these materials to rule on the extradition request (¶312).
With this backdrop, the Chamber analysed the evidence it had access to, from the extradition request itself. Extradition requests, however, are not designed to prove a specific date, but rather, the suspicion of a specific crime. The task to demonstrate when the crimes had allegedly been committed resulted impossible for the Chamber, as it only had access to two sworn statements, one by a US district attorney and one a DEA agent.
The main evidence alleged by the sworn statements in the extradition request was the reference to testimony of two confidential witnesses who had supposedly met with Santrich twice between 2017 and 2018, in order to discuss the delivery of cocaine (¶312). When the Chamber requested the Colombian Attorney General to file the judicial assistance agreement with American authorities to allow American officers to conduct criminal investigations in Colombian territory, though, it did not have any documentation to offer. Presumably then, these investigations had been carried out in secret by the US, in Colombia, without Colombia’s consent, and so the Chamber could not confirm compliance with due process guarantees (¶¶328-332). “Covert action in Colombia by American officials or their collaborators must abide by [Colombian] applicable rules”, it said. “[B]ringing informants, cooperating witnesses or state agents into our territory with the objective of carrying out criminal investigations, without complying with the law applicable to anyone located in Colombia is an affront to national sovereignty” (¶335 and 339). The Chamber concluded that this was an illicit evidence at best (¶346) and “disconcerting” that the Colombian District Attorney would defend such action in court (¶347).
Some time later, the Colombian Attorney General did file some additional evidence. Mainly a USB containing audio recordings. The recordings, however, failed to demonstrate the identity of the voices in them beyond all doubt. In fact, it became clear that the recordings had been copied from another source and therefore could have been edited. Despite these mishandlings, the Chamber analysed the recordings and concluded that while the main interlocutor may have indeed been trying to commit a crime through what he called “productive projects”, there was no evidence from the conversations that Santrich reciprocated. In one call he was asked to attend to a meeting without any evidence that the meeting actually took place. In another, the man showed concern because Santrich was leaving before meeting with his contacts (¶¶400-404).
The Chamber concluded that “what this call demonstrates is the persistence shown by Marín to meet with [Santrich], without the conversation necessarily revealing the conduct for which the extradition request was made, in such a way that it cannot be read differently than what it has the capacity of transmitting” (¶404). The audio tapes simply showed Marin was probably trying to commit a crime and should be indicted, not Santrich necessarily. Given these facts, the Chamber ruled that Santrich should benefit from the non-extradition protections of the Peace Agreement.
Talk of the decision spread like wildfire in Colombia, where the government’s attitude towards the Peace Agreement has been deteriorating since the election of Iván Duque to the Presidency. The decision prompted the resignation of Colombia’s Attorney General, while Duque’s ally and former President, Álvaro Uribe, deplored the decision, calling it a “crisis of public order”. To opponents of the SJP, extradition to the United States seems like the best way to prevent FARC members from gaining access to the Agreement’s so-called “alternative punishments”, based on restorative rather than retributive justice.
A few hours after the decision, however, and in an unexpected development, the Office of the Attorney General released a video of Santrich. In the video, Marin, the man from the audio recordings, and undercover DEA agents, discuss with Santrich what appears to be a cocaine smuggling operation to the United States. This prompted Santrich to be re-incarcerated barely minutes after his release.
The question in everybody’s mind was why this evidence was not submitted to the SJP, prompting speculation as to the motives behind such a move. Was it a plan to delegitimize the SJP by blaming it for the release of a FARC member? Whatever the reason, though, the Revision Chamber’s scathing evaluation of the Attorney General’s procedural conduct will leave little doubt to anyone actually reading the decision that the SJP was up to the challenge.