–Sandra Botero, Universidad del Rosario
In November 2016, the Colombian government and the FARC guerrilla signed peace accords putting an end to the oldest armed conflict in the Americas. The peace agreements proposed an ambitious institutional framework for transitional justice. This framework includes a truth commission, a commission for investigating disappearances, a dedicated investigative unit and a special ‘criminal tribunal’. Known for its Spanish acronym JEP (Justicia Especial para la Paz), the tribunal’s special “peace jurisdiction” is temporary, charged with investigating and adjudicating on crimes related to the conflict.
The 51 judges in the tribunal were selected recently through an innovative procedure including civilian input and a mix of local and international actors. When seated, the judges will be part of a highly qualified court, one that is also the most diverse high tribunal in Colombia and probably in the region. The announcement of the judges has generated a heated debate around the selection process and the tribunal’s composition. This discussion, which those opposed to the government are turning into a campaign to discredit the JEP, is politically pivotal to the implementation of the peace accords, given the importance of the tribunal to their materialization and the controversies surrounding the peace process. This essay provides an overview of how this novel appointment process operated, underscoring the importance of the political decisions yet to be made about the JEP.
The institutional mechanisms that determine which actors decide who sits on high courts shape judiciaries profoundly, as do those mechanisms that define if and how judges can be influenced once they are on the bench. The problem of delegating authority to judges whose behavior one cannot easily control has led many to conclude that designers and decision-makers will put in place mechanisms to select like-minded judges that will do their bidding. However, recent research on the appointment process for international and domestic tribunals suggests that motivations behind institutional choice are more complex, and that designers of appointment mechanisms are not always and not exclusively seeking to appoint their political cronies.
The JEP is a case in point. The government and the guerrillas delegated staffing the court to a third party, a selection committee whose members were appointed by other institutions. In doing so, both negotiating parties relinquished control over the profile of the judges. There are multiple reasons why this makes sense in the Colombian context. That neither party had a direct say could legitimize the process and the judges. At the same time, both parties probably wanted to signal a commitment to international human rights norms to other communities, including victims of the conflict and international actors. Colombia has had to face charges before international human rights tribunals in prior occasions, and is currently being monitored by the ICC, so this was likely a concern for the government.
The appointment process for the JEP was mixed, somewhere between that of a domestic high court (involving only national actors) and that of an international court (often involving supranational actors), with some novelties. The Supreme Court, the National Committee on Higher Education, the International Center for Transitional Justice, the UN Secretary General, and the president of the European Court of Human Rights each appointed one member to the selection committee. Two Colombians (José Francisco Acuña and Claudia Vaca) worked alongside three foreigners (Argentine Juan Mendez, Peruvian Diego García-Sayan and Spaniard Álvaro Gil Robles) to select the judges. Guided by the accord’s mandate for plurality, participation and gender inclusion, the committee put in place a merit-based public selection process in which any Colombian citizen with the minimum professional qualifications could apply for a position online. The CVs of the 3,502 hopefuls were made publicly available, and the committee then opened a 15-day period for comments from the public through its website. 78 candidates were called in for personal interviews. These were taped and made available online once they were all completed, as were the selection criteria. In September 26, after a two-month judicial selection process unparalleled in Colombia for its transparency, participation and accessibility, the committee announced the justices.
The resulting tribunal has an equal number of male and female justices—no other Colombian high court or high-level government institution has full gender parity—and includes the country’s first afro Colombian and indigenous magistrates (10% each). 60% of the judges are not from Bogotá, a nod towards materializing regional presence in key state institutions. Justices have a variety of professional backgrounds, including but not limited to criminal law: academics, prosecutors, former and sitting high court justices, military judges, human rights lawyers as well as experts in gender and indigenous law. Provided that the bill that regulates the JEP is approved (it is currently in Congress) the tribunal should begin work in two months. Once the justices draft their own operating rules and the bill is voted on, we will know more about who the judges will be accountable to and what are the jurisdictional limits of the court. Though in principle JEP justices may only be judged by a special congressional committee, exactly how much control the government or other institutions like the regular judiciary will have over them could still be modified.
The justices are not the ones the FARC or the government would have picked, had they been left to their own devices. If the government’s nominees to other high courts are any indication, Juan Manuel Santos’ administration would have preferred a moderate court. On the other hand, the FARC have openly criticized some appointees. Unfortunately, the partisan nature of the current debate in Colombia around transitional justice in particular, and the peace accords in general, is obscuring the high quality of the tribunal and what the process represents.
The novelty of this selection process (unlike that of any other tribunal, according to García-Sayán, an international expert on the matter) and the transformative potential of its diverse composition, are getting lost in political bickering amidst the presidential campaign. The government’s vocal opposition, the Centro Democrático, is attacking some of the appointees and the JEP overall, threatening to recuse certain justices and organize a referendum to nullify the legislation implementing the peace accords. In practice, rolling back the accords is difficult. However, since its election season and many of the agreement’s key components are still being discussed in Congress, the political stakes are immense.
Suggested Citation: Sandra Botero, Colombia’s Special Criminal Tribunal: Justicia Especial para la Paz, Int’l J. Const. L. Blog, Oct. 15, 2017, at: http://www.iconnectblog.com/2017/10/colombias-special-criminal-tribunal-justicia-especial-para-la-paz
 The negotiations were significantly debilitated by the results of a referendum held in October 2016 in which voters rejected the text of the peace accords by a very narrow margin (Botero 2017 and Matanock and García Sánchez 2017).
 Voeten 2009; Brinks and Blass 2017.
Botero, Sandra. 2017. “El plebiscito y los desafíos políticos de consolidar la paz negociada en Colombia.” Revista de Ciencia Política 37 (2): 369–88.
Brinks, Daniel M., and Abby Blass. 2017. “Rethinking Judicial Empowerment: The New Foundations of Constitutional Justice.” International Journal of Constitutional Law 15 (2): 296–331.
Matanock, Aila M., and Miguel García Sánchez. 2017. “The Colombian Paradox: Peace Processes, Elite Divisions & Popular Plebiscites.” Daedalus 146 (4): 152–66.
Voeten, Erik. 2009. “The Politics of International Judicial Appointments.” Chicago Journal of International Law 9 (2): 387–405.