Identifier
Created
Classification
Origin
09BOGOTA434
2009-02-11 20:18:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Bogota
Cable title:  

SUPREME COURT RULES AGAINST KIDNAPPING EXTRADITION

Tags:  PGOV PTER SNAR KJUS CO 
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OO RUEHWEB

DE RUEHBO #0434/01 0422018
ZNR UUUUU ZZH
O 112018Z FEB 09
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6963
INFO RUEHBR/AMEMBASSY BRASILIA 8638
RUEHCV/AMEMBASSY CARACAS 1632
RUEHLP/AMEMBASSY LA PAZ FEB PANAMA 2990
RUEHQT/AMEMBASSY QUITO 7682
RUEHGL/AMCONSUL GUAYAQUIL 4815
RUEKJCS/SECDEF WASHDC
RUEKJCS/JOINT STAFF WASHINGTON DC
RHEHNSC/NSC WASHDC
RUEAWJC/DEPT OF JUSTICE WASHDC
RHMFISS/HQ USSOUTHCOM MIAMI FL
RUEAIIA/CIA WASHDC
UNCLAS BOGOTA 000434 

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PTER SNAR KJUS CO
SUBJECT: SUPREME COURT RULES AGAINST KIDNAPPING EXTRADITION
OF FARC'S "ENRIQUE GAFAS"

SUMMARY
-------

UNCLAS BOGOTA 000434

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PTER SNAR KJUS CO
SUBJECT: SUPREME COURT RULES AGAINST KIDNAPPING EXTRADITION
OF FARC'S "ENRIQUE GAFAS"

SUMMARY
--------------


1. (SBU) The Colombian Supreme Court ruled on February 5
against the extradition of FARC member Alexander Farfan,
("Enrique Gafas") for the kidnapping of three Americans.
This is the Court's seventh denial of U.S. extradition
requests related to hostages or terrorism since August. In a
confusing development, the Court approved four
terrorism-related extradition cases in the same time frame.
In its unfavorable decisions, the Court ruled that Colombia's
Constitution limits extraditable offenses to acts that take
place outside of Colombian territory -- deviating from its
previous standard that extraterritorial effects were
sufficient to trigger extradition. Still, Colombia
extradited 209 suspects to the United States in 2008, with
twenty more extradited in January, 2009. End Summary.

HOSTAGE-TAKING AND TERROR NOW UNEXTRADITABLE?
--------------


2. (U) The Colombian Supreme Court ruled on February 5
against the U.S. request to extradite FARC member Alexander
Farfan ("Enrique Gafas") on hostage taking, conspiracy to
provide material support to a 'foreign terrorist
organization' (FTO),and material support to an FTO charges.
In the Gafas case, the Court continued to deviate from its
prior holdings that extradition is allowed if a criminal act
has "extraterritorial effects." Instead, the Court held that
Gafas' extradition would be inconsistent with Colombia's
Constitution, since his crimes were committed solely in
Colombian territory. Gafas was the jailor of three American
military contractors, Ingrid Betancourt, and numerous other
hostages held by the FARC.


3. (SBU) In the past six months, the Colombian Supreme
Court has denied seven U.S. requests to extradite FARC and
ELN members on either hostage taking or terrorism charges
using the "territorial" test. In addition to the Enrique
Gafas case, the Court ruled against the extradition of three
FARC co-defendants -- in an indictment involving nine FARC
members -- on terrorism charges (the Court did rule in favor
of extradition for one of these individuals who was
separately indicted for narcotrafficking). The Court also
ruled against the extradition of three ELN members who were
indicted for hostage taking.


4. (SBU) Still, in a confusing development, the Court
approved the extradition of two other FARC co-defendants in
the group of nine, all of whom were indicted on the same
terrorism charges. The Court has yet to rule on the
remaining four FARC co-defendants in that indictment. In a
separate case, the Court approved the extradition of two FARC
co-defendants charged with terrorism offenses. In its
favorable rulings, the Court continued to apply its
traditional "extraterritorial effects" standard.


5. (SBU) The differing results in similar cases may
reflect the Court's practice of assigning responsibility for
drafting Court decision to individual judges -- some of whom
have competing views on what is the constitutional standard.
We understand the Court is split, with two magistrates
favoring the "extraterritorial effects" standard and seven
the "territorial" approach.

PROSECUTORIAL AND GOC
OFFICIALS DISAGREE WITH COURT'S STANCE
--------------


6. (SBU) Prosecutor General (Fiscal General) Mario Iguaran
-- who has no role in the Court's decision process -- has
argued publicly that while Gafas' crimes took place solely in
Colombia, their commission harmed judicial rights of American
citizens. Hence, the extraditions of all of the FARC
defendants sought on terrorism charges could be considered
constitutional. In its opinion on the ELN kidnapping cases,
the Inspector General's Office (Procuraduria) argued the same
-- that the effects of kidnapping went beyond Colombia's
borders and that the U.S. claim to extraterritoriality was

legitimate. GOC officials also disagree with the Court's
decision in the Gafas and other FARC case, but have no way to
challenge the Court's rulings.

EXTRADITIONS AT RECORD LEVELS
--------------


7. (SBU) The Court continues to approve narcotrafficking
extraditions without difficulty. The GOC also remains
supportive of extraditions. In 2008, Colombia extradited a
record number of 209 suspects to the United States. At the
end of 2008, the Uribe administration had extradited 790
individuals to the United States -- representing 91 percent
of all Colombian extraditions to the United States since

1991. Twenty suspects were extradited in January, 2009
alone.

BROWNFIELD