The history of negotiating with criminals in Colombia sheds light on the law of submission

Colombia's Supreme Court has ordered the arrest of two former officials linked to the defunct Fondo de Solidaridad y Garantía (Fosyga) nearly 20 years after the agency was embroiled in one of the country’s most notorious corruption scandals. The court accused them of participating in a scheme that defrauded public funds through irregular mediation in the health sector between 2006 and 2011. Claudia Patricia Rojas, who previously served as coordinator of the Analysis and Follow-Up of Recoveries Group at the Ministry of Protection Social, now dissolved since May 4, 2011, faces charges. Luis Andrés Ruiz Martínez, an IT engineer contracted by the same entity and partner in a consulting firm, was also ordered arrested. Both are alleged to have been part of a network that manipulated payments for medical supplies, services, and technology not included in the Mandatory Health Services Plan (POS) submitted by health providers (EPS). The legal process began in November 2020, when a Bogotá Criminal Court acquitted the defendants, ruling that the primary evidence used against them was obtained illegally. At that time, police accessed the email account of one of the accused at an internet café based on information from an unnamed source, without a judicial order. A year later, the Penal Chamber of the Bogotá High Court overturned the acquittal, convicting both men of embezzlement by misappropriation. It ruled that the digital evidence collected was legally justified under guarantees judges. Their defense teams filed a special appeal arguing that the criminal action had prescribed, that their due process rights were violated, and that several judicial principles were breached during the investigation. The Supreme Court partially denied the appeal, ordering the Bogotá High Court to reassess the prison sentence imposed on Ruiz Martínez. With this decision, the high court issued arrest warrants for Rojas and Ruiz Martinez while excluding Edgar Isaías Medinas from the case after determining that the criminal action had fully prescribed. The corruption network within Fosyga, now known as ADRES, consisted of former officials from the defunct Ministry of Protection Social. These individuals allegedly managed the irregular payment of recoveries made by EPS for medicines, services, and technological equipment not covered by the POS. Meanwhile, the Colombian government is preparing to submit a new bill on submission to justice to Congress. This move reignites a longstanding debate over how different governments have engaged with criminal organizations since the 1980s to dismantle illegal activities and bring them before courts. For decades, the armed conflict in Colombia blurred the analytical distinction between political-military groups and organized crime structures, particularly those linked to drug trafficking. From the mid-1980s onwards, sectors of the drug trade aligned with self-defense groups and paramilitary structures in the context of counterinsurgency efforts. In this process, drug traffickers adopted anti-communist rhetoric, while armed groups gained financial and logistical resources from illicit economies. This created a clear interdependence: drug traffickers provided money and logistics, while self-defense groups offered protection, territorial control, and access to local politics. In this context, the incorporation of drug traffickers into self-defense structures and later into paramilitarism became a recurring phenomenon, creating channels of interaction with different national governments. These interactions occurred through dialogues, negotiations, and disarmament mechanisms applied in various moments and regions of the country. Parallelly, other actors directly linked to drug trafficking sought mechanisms of submission or subjection to ordinary justice. This latter process gained particular relevance in the early 1990s when several members of the Medellín Cartel accepted the mechanisms established by the Colombian State and were imprisoned in national penitentiaries. The first attempts at negotiation came after the assassination of Justice Minister Rodrigo Lara Bonilla in April 1984. Several members of the Medellín Cartel leadership moved to Panama, where they received protection from the regime of Manuel Noriega. From there, they sent a written proposal titled "Unconditional Surrender," structured in two parts. The first addressed the backgrounds and meanings attributed to the phenomenon of drug trafficking in Colombia; the second contained so-called "immediate action points," which constituted the operational proposal of the drug traffickers. The episode also generated debate regarding the channels of mediation and the role played by figures such as the then Attorney General of the Nation, Carlos Jiménez, and former President Alfonso López Michelsen. The official position of the government of Belisario Betancur was to deny the existence of negotiations with drug traffickers. In contrast, López Michelsen publicly stated that the proposal could contribute to reducing the time needed to dismantle the phenomenon of drug trafficking. Substantively, the offer from the drug traffickers proposed dismantling their illegal activities in exchange for guarantees related to non-extradition, absence of criminal prosecution in Colombia, and preservation of a portion of their assets. Initial contacts did not succeed after the existence of these talks became public.