The complicated, ever-evolving, nitty-gritty of peace in Colombia

In November 2016, then-Colombian President Juan Manuel Santos signed peace agreements with the FARC (the Revolutionary Armed Forces of Colombia,) Colombia’s largest guerrilla group at the time. It was a moment that promised more than 50 million Colombians the tantalizing prospect of a new life without the daily fear that 50-plus years of violence had imposed on the country. That same year, Juan Manuel Santos was awarded the Nobel Peace Prize, for his resolute efforts to bring the country’s more than 50-year-long civil war to an end, a war that has cost the lives of at least 220,000 Colombians and displaced close to six million people.”

 One of the most controversial provisions of the peace accords was the establishment of a parallel system of justice, the Special Jurisdiction for Peace, commonly called the JEP. The JEP functions alongside but completely independent from the the Colombian Attorney General’s Office. The peace treaties specify that:

The Special Jurisdiction for Peace will exercise judicial functions, and will fulfill the duty of the Colombian state to investigate, prosecute and sanction crimes committed in the context of and due to the armed conflict, and in particular, the most serious and representative.

If a crime was committed by the FARC, by their paramilitary counterparts or by their legal Colombian military contemporaries prior to the signing of the peace agreements, the JEP’s jurisdiction is clear. The JEP’s objectives are outlined in the accords as these:

Contribute toward the historical clarification of what happened. Promote and contribute to the recognition of the victims; of responsibility for those that were involved directly or indirectly in the armed conflict; and of the society as a whole for what happened. Promote coexistence across the country.

Guilt? Retribution? Punishment?

Not a lot of emphasis is placed on guilt, retribution or punishment. And many Colombians felt, and still feel today, that the JEP’s mission was, and is, way too compassionate on guerrillas who bombed, maimed, kidnapped, terrorized and killed their families and fellow citizens for over half a century. According to the Colombian National Center for Historical Memory, 220,000 people died in the conflict between 1958 and 2013, most of them civilians, and more than 5 million civilians were forced from their homes between 1985 – 2012.  And the conflict didn’t end in 2012.

What many Colombians focused on in the peace agreements saw was this:

…that those who decisively participated in the most serious and representative crimes and recognize their responsibility, will receive a sanction containing an effective restriction of their liberty for 5 to 8 years, in addition to the obligation to carry out public works and reparation efforts in the affected communities.”

The 5 to 8 years stipulation addled many. Public works? A sanction equal to a restriction of liberty? These questions gave many in Colombia pause. In fact, a majority of Colombians voted against the Peace Accords when given the opportunity to do so in a referendum on October 2, 2016. The accords later found a way to ratification through Santos’s congressional initiatives, some might say manipulation. Santos’s Nobel Peace Prize had already been announced.

The Santrich Affair

Under the peace agreements, ten former-guerrilla leaders were given guaranteed seats in the Colombian House of Representatives, no election required. The FARC got to choose the nominees for these ten. And the FARC chose Seuxis Paucias Hernández Solarte, generally known by his wartime alias — Jesús Santrich — and one of the key negotiators in the peace process, for one of those seats. The FARC was now a legitimate political party.

Already on April 10, 2018, the US Attorney’s Office for the Southern District of New York had announced that Jesús Santrich and 3 others had been arrested in Colombia and accused of “conspiring and attempting to import cocaine into the United States.” Colombia and the United States have a drug trafficking extradition treaty in place that goes back decades.

 The Southern District of New York’s evidence indicated that Santrich’s involvement in drug dealing occurred after the signing of the Peace Agreements and that he was therefore excluded from protection under the JEP’s judicial oversight.

“As alleged, the defendants conspired to ship cocaine from Colombia to the streets of the US. Thanks to the investigative work of the DEA, they are now under arrest and face significant criminal charges,” US Attorney Geoffrey S. Berman said in a statement. The 4 arrested were charged with plotting to import ten tons of cocaine to the US, a shipment with an estimated street value of $320 million.

Marlon Marín, a nephew of another former FARC leader, Iván Márquez, was one of those arrested with Santrich. His uncle, Iván Márquez was again a FARC nominee for a no-vote-needed seat in Congress. After Santrich’s arrest, Márquez went into hiding. In late May of this year, Rodrigo Londoño, alias Timochenko, former head of the aforementioned guerrilla group FARC, chief negotiator for the FARC in the peace meetings in Havana and more recently a candidate for President of Colombia, distanced himself from Iván Márquez. He said that Márquez’s pronouncement, that it was a mistake for the FARC to have given up their arms, was wrong.

Upon his arrest, Marlon Marín offered to cooperate in the Santrich investigation, and following meetings with the DEA in Bogotá, his extradition order was rescinded and he was flown to the US as a protected witness.

Santrich remained in jail, pending extradition.

Colombia held presidential elections in 2018. Santos left office on August 6 of that year, and on August 7, his successor, Iván Duque Márquez, became President of Colombia. Duque had run on a platform emphasizing a reexamination of the terms of the mandate of the JEP.

As president, Duque insisted on his reforms to the decrees underlining the legitimacy of the JEP. His appeal went to the Senate and Congress. The results were indecisive. And Duque refused to sign off on the regulation of the basic legal structure of the peace agreements.

In the meantime, Santrich appealed his case to the JEP.

The JEP heard Santrich’s objections to his extradition. And on May 15 of this year, the JEP decided that Santrich should be freed and be immune from extradition to the United States. The decision was unprecedented in Colombian-American cooperation. One quick result of this decision was that videos of Santrich negotiating with Mexican drug cartel members began to appear on line, associating him through popular social media in drug dealing. Colombians were stunned.

And immediately upon his release, Santrich was rearrested by the Colombian Attorney General’s Office, based on new evidence that implicated him once again in illegal drug trafficking after the signing of the peace agreements.

What’s going on here? Who’s in control?

Apparently, the Supreme Court of Colombia. The Supreme Court of Colombia stepped in and announced on May 29 that Santrich should indeed be freed. The Supreme Court has jurisdiction over cases of wrongdoing by any Congressman or Senator. Even though Santrich had never taken an oath of office, the Supreme Court accepted that this was not of his volition; as he was under arrest at the time, he was unable to participate in a signing-in ceremony.

President Duque’s response was immediate and decisive. Duque called Santrich a mafioso, a term that in Colombia encompasses all those who are not guerrillas but who are underworld actors.

Santrich was freed on May 30.

But the Supreme Court wasn’t finished. On the same day, May 29, that they ordered the release of Santrich, the Supreme Court had a second pronouncement. The Court ruled that in the Senate and Congress a majority had indeed voted to deny President Duque’s objections to the underlying legal structure of the JEP and ordered the President to sign the statutory laws governing the JEP. On June 6, Duque signed off on the structural laws guaranteeing the legitimacy of the JEP.  It would not be a stretch to say to say that he did this willingly.

The Supreme Court has assumed control of the Santrich affair and affirmed its jurisdiction over his case. A huge power shift has taken place in the country. Does evidence implicate Santrich in drug dealing before or after the signing of the peace agreement, or indicate any involvement at all? The US Attorney’s Office for the Southern District of New York is convinced. They want Santrich extradited.

In Colombia, the Supreme Court will decide.

On June 6, the Supreme Court of Colombia announced that it had initiated an investigation of Santrich’s involvement in drug trafficking. They invited Marlon Marín, now a protected witness and a person under US custody to give evidence. The nitty-gritty of his evidence is proving bureaucratic to even get started. Permissions from the US Justice Department are now needed for Marlon Marín’s appearance, even video-appearance in Colombia. A date for his appearance has yet to be set.

On June 11, Santrich was officially signed in as a Representative in the Colombian Congress, and on June 12, he took possession of his congressional seat.

Right now, the Santrich affair is what Colombians wake up to the morning and go to sleep with at night. The process of peace in Colombia, the promotion of coexistence across the country as iterated in the mandate of the JEP, is proving hard to even get off the ground.

 The JEP has a ten-year mandate. Will the historical clarification of what happened in Colombia ever see the light of day? Colombians are at this moment in time, in all honesty, unsure.