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Can domestic courts adequately address past torture? The García-Lucero case and the meeting of justice and reparations obligations for Chilean torture survivors

Introduction

Can domestic courts adequately address past torture? the garcía-lucero case and the meeting of justice and reparations obligations for chilean torture survivors. Analyzes the García-Lucero case and the IACtHR's role in addressing past torture, justice, and reparations for Chilean survivors, challenging state duties.

Abstract

The Americas, home to perhaps the most concerted domestic court effort to prosecute past atrocity crimes in recent times, also has a two-tier regional human rights system that came of age in the era of mass violations in 1970s and 1980s Latin America. Inter-American Court of Human Rights (IACtHR) jurisprudence since the late 1990s can be understood as creating a strong presumption of a present duty to prosecute such crimes, and to actively guarantee corresponding rights to truth, justice, reparations and guarantees of non-repetition – transitional justice rights – to affected individuals or groups. The recent, 2013, IACtHR verdict in the case Garcia Lucero et al vs. Chile is somewhat unusual in that it deals with the specific reparations needs of a Chilean survivor of dictatorship-era torture now resident in the UK. In doing so, the case challenges conceptions of sufficiency in reparations policy and the geographical reach of state duties in this regard. Perhaps even more strikingly, the verdict also suggests that the Chilean state to have initiated justice proceedings – including a criminal investigation – as soon as one of its administrative reparations programmes received official notification of the allegations of torture made by Mr. García Lucero. The implications of such a verdict are substantial not only for Chile – where at least 100,000 individuals have made similar applications, and 40,000 have had their survivor status recognised by a truth commission – but also in raising questions about the judicial status of truth commission proceedings, and the necessarily inter-related nature of truth, justice and reparations dimensions of public policy about past atrocity. The paper considers how these challenges have and may in future play out in Chile’s current treatment of survivors of past torture, and considers the conditions under which resort to regional human rights instances such as the IACtHR may have impact in producing change at state or substate level, whether in the ‘host’ country or elsewhere in the region.

Review

This paper offers a timely and important examination of the complex interplay between domestic legal frameworks and regional human rights obligations in addressing past atrocity crimes, specifically focusing on torture. Centered on the landmark *García-Lucero et al vs. Chile* case, the research delves into the capacity of domestic courts to provide adequate justice and reparations for survivors. By positioning the case within the broader context of the Americas' concerted efforts to prosecute past violations and the evolution of Inter-American Court of Human Rights (IACtHR) jurisprudence, the paper establishes a strong foundation for its analysis of contemporary challenges in transitional justice. The core of the paper's argument revolves around the groundbreaking implications of the *García-Lucero* verdict. It meticulously highlights how this specific case challenges conventional understandings of reparations sufficiency and the geographical reach of state duties, particularly as it involves a survivor residing outside the ‘host’ country. Even more critically, the paper underscores the verdict's suggestion that states may bear a duty to initiate criminal investigations upon receiving administrative notification of torture allegations, thereby elevating the judicial status of administrative and truth commission findings. This insight has profound ramifications, not only for Chile, with its tens of thousands of torture survivors, but also for other nations grappling with the legacy of mass violations, by drawing attention to the necessarily inter-related nature of truth, justice, and reparations. Ultimately, this work makes a significant contribution to the fields of human rights law and transitional justice. It not only illuminates the specific challenges faced by Chile in treating survivors of past torture but also offers a broader analysis of the conditions under which regional human rights bodies, such as the IACtHR, can effectively catalyse change at national and sub-national levels. By exploring the potential impact of such verdicts on state policy and practice, the paper provides valuable insights for scholars, policymakers, and practitioners striving to ensure accountability and provide meaningful redress for victims of historical injustices.

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