One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).
While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges.
From foreign judges to amici curiae a la colombiana
The role of foreign jurists in the JEP has been a controversial issue from the very start of the peace negotiations and the dispute continues until today. The first Peace Agreement envisaged a mixed SJP or JEP composed of Colombian as well as foreign judges, giving the Colombians a two thirds majority (see p. 170 of the first Peace Agreement). The participation of foreign jurists was especially demanded by the FARC-EP but also supported by the government, particularly stressing that the participation of foreign judges ensured the compatibility of the case law with the international standards, especially with regard to a possible ICC intervention. However, the foreign judges had to be substituted by foreign jurists (amici curiae) in the second Peace Agreement.
Generally, international courts’ or criminal tribunals’ chambers have a wide margin of discretion when deciding whether to invite an amicus curiae to present observations on a pending case. Moreover, the rules of procedure and evidence usually leave it to the discretion of the judges to decide how amici curiae shall present their observations and recommendations, be it orally or written (see Rules 103 RPE ICC, 67 RPE KSC, 74 RPE ICTY/ICTR, RPE 83 MICT, see also Art. 105 ICJ Rules, Rule 61 ECtHR Rules and Art. 44 IACtHR Rules of Procedure). In contrast, the Final Peace Agreement and the implementing legislation regulate the participation of foreign jurists as amici curiae – once they have been invited by a JEP-Chamber to participate in the proceedings – as follows:
Whenever the intervention of foreign jurists is required, they will participate in the debates of the Section/ the Chamber in which their intervention would have been required, under the same conditions as the magistrates but without the right to vote. ((Final Peace Agreement, section 5.1.2., para 65, subsection 1 (p. 167)/ para 66, subsection 2 (p. 168) and Legislative Act No 1 of 4th April 2017, Art. 7, para 3, translation and underlining by the authors.)
Whereas amici curiae rarely appear in person before most courts or tribunals and instead submit written statements or recommendations (amicus curiae briefs), the Final Peace Agreement conveys the idea of a more dynamic participation in an oral and direct form, deliberating together with the actual judges. In a nutshell, accordingly, the amici have the right to discuss and deliberate, but no right to vote (not being judges). Thus, it is fair to say that the amici operate as a kind of expert witnesses but under the tight control and at the discretion of the Colombian judges.
Another interesting feature of the Colombian model has to do with the already explained selection of a fixed number of amici curiae by the Comité de Escogencia. Thus, while amici are normally not limited at the outset, not even to natural persons, the Colombian model opts for a roster of a limited number of amici, namely 14 in total (10 “titulares” and 4 “suplentes”) (see section 5.3., (p. 191-2) of the Final Peace Agreement), 6 (4 and 2) of which may appear before the Tribunal for Peace (Tribunal para la Paz) and 8 (6 and 2) before the various Justice Chambers (see also Art. 99 Proyecto de Ley Estatutaria 008 of 2017). This does not mean, however, that other interested parties, especially victims, are not allowed to participate in the proceedings; on the contrary, they have broad participation rights although they have, of course, not the same standing as the (pre-selected) amici.
Consultants or de facto judges?
Given these particularities of the ‘Colombian model’ the question arises whether there is anything at all left that it has in common with the traditional concept of amicus curiae before international tribunals. Arguably, the ‘Colombian amici’ are more than distant consultants or advisors, given that they may play a quasi-judicial role in the SJP. This argument does not only find support in the amici’s wide-ranging participatory rights and their ensuing ability to exert particular influence on the proceedings’ outcome but also in their selection which has been done – in the same was as that of the Colombian judges and other authorities – by the Comité de Escogencia (application via the Committee’s website, selection on the basis of written and publicly available information, possibility of comments by Colombian citizens or organizations, interview before the Comité); they also will be appointed by the President of the Republic (see section 5.1.2., para. 68 (p. 169) and section 5.3. (p. 191 s.) of the Final Peace Agreement; Art. 110 Proyecto de Ley Estatutaria 008 de 2017).
It is also striking that the regulations on the foreign amici are located right next to the provisions on the Colombian judges of the SJP. This is especially noticeable since it stands in clear contrast to the rules of procedure and evidence of other bodies that mention the intervention of amici curiae as a minor option at a much later point than the regulations on judges as the bodies’ central protagonists. This shows that the amici are being considered as an integral part of the SJP – just like the judges. This can be explained by the Final Peace Agreement’s genesis: As already mentioned above, the Final Agreement is the outcome of the revised first Agreement that originally envisaged foreign judges as members of the SJP. In order to accommodate the concerns of the domestic opposition with regard to a truly mixed national-international tribunal, the contentious parts of the original wording were changed – alas without carrying out substantive alterations or fundamental systematic changes. While the term ‘foreign judges’ (magistrados extranjeros) was entirely deleted in the Final Peace Agreement and instead replaced by ‘foreign jurists’ (juristas extranjeros) as amici curiae, the central relevant provisions remained at the same position. Although some details of the Final Peace Agreement’s new wording indicate reluctance to grant foreign jurists a major role in the proceedings (for example by inserting the word ‘exceptionally’, see section 5.1.2., para 65, subsection 2 (p. 167) and para 66, subsection 2 (p. 168)), an overall analysis of the Final Peace Agreement’s structure and wording confirms the view that the amici come closer to actual judges than to mere consultants.
Against this background, it is somewhat surprising that the Colombian Constitutional Court held in its already mentioned judgment on AL 01/2017 that the provisions concerning foreign jurists are:
‘contrary to the principles of autonomy, independence and impartiality that govern the administration of justice and to the guarantees that implement them, since it confers foreign jurists the competence of having an impact on the decision-making process of the JEP even though they are not responsible in any way of their decisions.’. (Constitutional Court, Communication of 14th November 2017 [summary of the judgment, the full written judgment is expected at the beginning of 2018], para 14 (p. 23), translation by the authors)
As a consequence, the recent draft Statutory Law 008 of 2017, taking into account the Court’s position, is more restrictive with regard to the amici than the Final Peace Agreement and the Legislative Act No 1/17:
‘Foreign jurists ‘will act with the sole purpose of providing a concept or amicus curiae on the subject of the case under study. When the intervention of foreign jurists is required, they will participate in the corresponding processes in order to provide their expert opinions as amicus curiae.’ (Art. 99, Proyecto de Ley Estatutaria 008 of 2017, translation by the authors)
As if this situation is not confusing enough, the Constitutional Court, complementing the statement quoted above, adds the following sentence (in the quoted summary of the judgment): ‘This does not, of course, go against their [the amicis’] participation in the corresponding processes in order to provide their expert opinions as amicus curiae’. Thus, it seems as if the Court wanted to reaffirm the active participation of the amici not limiting their intervention to the submission of written opinions. At any rate, it appears as if the Court wants to restrict the influence of the foreign jurists in the JEP-proceedings.
Ultimately, only practice will show to what extent the Colombian judges will rely on amici curiae, how their involvement is going to influence the JEP’s case law and whether the foreign jurists’ role in the proceedings will differ significantly from the originally intended function(s). Clearly, the actual involvement of the amici is in the hands of the Colombian judges since they have to invite them to participate in the first place. And even if this happens it will very much depend on the practicalities of this intervention and the personal relationship between the Colombian judges and the foreign amici whether the latter will play a quasi-judicial or a minor role.