For over fifty years, Colombia has faced a bloody and cruel civil conflict. Some of the most conservative studies have estimated that the total death toll of the war may be 220,000. The weight of this number heavily lies on the civilian population. It is estimated that around 81% of those killed in the conflict are non-combatant civilians. This represents, according to the data collected by the government’s Center for National Memory, around 180,000 civilian victims. In other words, as a civilian, the probability of being a victim in the Colombian conflict was nine times higher than a military or a guerrilla member. To put this in context, according to the United Nations, the global annual murder rate for 2012, the year the peace negotiation between the government and the FARC started, was 6.2 murders per 100,000 inhabitants. For that same year, the average in Colombia was 31.3 murder per 100,000 inhabitants.

After four years of negotiations, on August 24, 2016, the Colombian government signed a peace agreement with the guerrilla group FARC to end the fifty-year civil conflict. This ongoing accord has been the most successful peace attempt to date. Proof of this is that the agreement is currently being implemented by the parties, although not without some difficulties. A central part of the agreement conceived a System of Truth, Justice, Reparation, and Non-Repetition. Under this system, the Special Jurisdiction for Peace (SJP) was established as the cornerstone of the transitional justice system. This Jurisdiction for Peace, based on the terms of the agreement, is conceived as the institution that will exercise judicial functions, fulfilling the duty of the Colombian state to investigate, prosecute, and punish crimes committed in the context of and due to the armed conflict, particularly the most serious and significant crimes.

The SJP provides an opportunity to look into a revolutionary proposal to form Transitional Justice tribunals. As it will be explained in this Article, the peace agreement conceived a unique and untested way to appoint the judges of the SJP. Conventionally, the way of appointing judges for this type of institution has been a top-down approach. In the past, the selection of justices has been from the rank and file of victors in war (like in the case of the International Military Tribunals created in Nuremberg and Tokyo after World War II), through the United Nations Security Council (for the case of the International Criminal Tribunals for the Former Yugoslavia and Rwanda), or by International Bodies comprised only by states (like the case of the Assembly of State Parties of the Rome Statute regarding the International Criminal Court).

In contrast, for the first time, the selection process of the judges of the SJP was conducted by an independent committee appointed by third parties designated by the Colombian government and the FARC. Also, unlike the vast majority of transitional justice institutions, only Colombian lawyers were appointed to the new Tribunal and the process of selection was run completely through an online platform that was open to public comments regarding the candidates’ qualifications and proficiency. Additionally, the peace agreement included clear formal criteria—related specially to affirmative actions in favor of minorities—that served as the guidelines for the selection process of the justices. Understanding the way those in charge of appointing the judges of the SJP translated this abstract formal criterion into reality not only allows us to grasp the impact of this new experiment on transitional justice but also helps to answer a broader question about judicial independence in transitional scenarios. Courts are institutions run by human beings, so they are subject to all kinds of subjective influences. Because of this, judicial independence is not directly observable. That is why empirical studies must rely on certain proxies to evaluate independence. One of the more common and reliable proxies is the appointment process, because in these scenarios the profile of a particular court is molded. The filters applied in this process are key elements for determining the kind of institution the Special Jurisdiction for Peace is destined to be.

This Article traces the trials and tribulations surrounding the selection process for the SJP. In the heat of the current political debates around the implementation of the peace agreement, it is important to understand the origins of the institution that has the extraordinary challenge of closing, in a judicial sense at least, this chapter of violence in Colombia’s history.



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