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

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