Chilean court orders compensation for tsunami damages

by Rhodri C. Williams

Having apologized for their failure to protect victims of the Pinochet regime three decades ago, Chilean courts have now staked out a progressive position in responding to charges of government negligence that exacerbated the effects of the tsunami three years ago. According to the BBC, Chile’s Supreme Court awarded $100,000 to the survivors of Mr. Mario Ovando, who died as a result of a fatal blunder.

The court heard that following the earthquake, Mr Ovando had heard an announcement on the radio that there was no danger of a tsunami. On the basis of that he decided to stay in his home.

However, 20 minutes later his house was engulfed by huge waves. Although his relatives managed to free him and take him to hospital, Mr Ovando died three days later.

The Chilean Navy – which runs the Hydrographic and Oceanographic Service – admitted after the tsunami that it had made errors in its diagnosis and had given unclear information to government officials.

The government issued an alert, then deactivated it, then revived it only after the deadly waves had struck.

As described here in response to a UN report on reparations for victims of terrorism, the Chilean Supreme Court ruling fits into a recent pattern of establishing higher duties of care for state authorities in the face of events once written off as ‘acts of God’. And as noted by the BBC, the current case is likely to herald many more suits by other victims of the Navy’s faulty diagnosis. As such ‘pounds of cure’ accumulate in national and regional practice, one can only hope they will highlight the relative attractiveness of ounces of prevention.

Chile and the unfinished business of justice and reparation

by Clara Sandoval

Dr. Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University. She is the Director of the Essex Transitional Justice Network and Member of the Human Rights Centre as well as the Advisory Board of the Human Rights Clinic. She specializes on the Inter-American human rights system, transitional justice and reparations.

Forty years have passed since the coup in Chile and we are still waiting for justice and reparation for the majority of Pinochet’s victims. As a result of the dictatorship in Chile, there were more than 200,000 exiles, more than 38,000 survivors of torture (according to the Valech Commission) and roughly 3,000 persons subjected to enforced disappearance or extra judicial killings (according to the Rettig Commission).

Don Leopoldo García Lucero, his wife Elena and their three daughters are some of those victims. He was detained in 1973 in Santiago, passed through various detention centres (among them El Estadio Nacional, Tres Alamos and Chacabuco) where he was subjected to torture (physical and mental) and other cruel, inhuman or degrading treatment. In the summer of 1975 he was expelled from the country by decree. He arrived in the UK with his family as refugees. Since 1973 his life and that of his family has been on hold. He lives in London in social housing with his wife.

Chile has adopted important measures to deal with the legacy of mass atrocities, particularly in the area of reparation and memory, but most of them were for the benefit of the next of kin of those disappeared or killed. Meanwhile, justice (meaning the investigation, prosecution and punishment of the perpetrators of those crimes) and adequate, prompt and full reparation for torture survivors and their next of kin, those in exile and those victims who are both exiles and torture survivors remain an unfinished business.

Chile began its transition to democracy between 1988/90, and thirteen years later, in 2003, the Valech Commission was established to identify the survivor victims of torture, and only in 2004 some reparations were put in place to deal with the harm caused to torture survivors and their next of kin; these were primarily designed to provide redress to those living in Chile and not those in exile like Mr. García Lucero. In contrast, truth-seeking and reparation for victims of disappearances and killings took place just after the return to democracy at the beginning of the 1990s.

The investigation, prosecution and punishment of torture perpetrators remain a challenge in Chile. Very few cases are being investigated; the punishment of perpetrators is not proportional to the gravity of the crimes, and Chile lacks a specialized system (as it has for disappearances and killings) to investigate torture cases.

Furthermore, in Chile there are various obstacles to justice: the amnesty law remains in place (despite the judgment of the Inter-American Court in Almonacid Arellano v. Chile ruling it was contrary to human rights), and in particular, there is a law that decrees that all information that was collected by the Valech Commission remain secret for 50 years. However, this information is of extreme importance in the investigation of torture cases which occurred during the dictatorship given the difficulties to identify perpetrators without being able to cross-reference information with other persons who were detained in the same places and at the same time.

This is why the litigation against Chile in the case of Don Leopoldo García Lucero, his wife Doña Elena and their three daughters was important to REDRESS and to me as one of its lawyers. Victims, particularly torture survivors who are permanently disabled (like Don Leopoldo) and were unable to move on after what happened to them, and are in exile with their families, are extremely vulnerable people who have a right to justice and reparation, but face multiple barriers to making them a reality.

Reparations for Chile’s exiles: upcoming guest-post on the Inter-American Court decision in García Lucero

by Rhodri C. Williams

Earlier this Fall, I had the pleasure of being invited to lecture at the Essex Transitional Justice Network’s 2013 summer school, which focused on land issues in transitional settings. I also stayed on for a seminar on land and traditions that got me back together with some familiar leading lights on HLP questions and acquainted me with a number of others. The EJTN has been doing some very interesting work at the frontiers of the transitional justice discourse, including research on economic and social rights approaches to TJ, rehabilitation as a form of reparation and, most recently, a book on corporate accountability in transitional settings.

As a human rights practitioner frequently (and rightly) accused of being a frustrated academic, the seminar was a good reminder of how many other people believe that the strain of trying to keep a foot in both camps is more than compensated for by the synergies that can result. One of the more impressive examples I encountered during my stay in Colchester was the work of ETJN Director Clara Sandoval, who is also not only a Senior Lecturer at the University of Essex Law School, but also a frequent practitioner. Recently, as a consultant for Redress, she helped to bring the case of Leopoldo Garcia Lucero v. Chile before the Inter-American Court of Human Rights.

The Garcia Lucero case involves the claim of an 80 year old torture survivor who was held for a year and a half in Chilean prison camps before being expelled in 1975. Since then, Mr. Garcia Lucero has struggled to make a new life in London, one among some 200,000 Chileans forced out by the Pinochet regime. Physically disfigured and permanently disabled, he sought an “effective remedy and full and adequate reparation for what happened to him” before the Inter-American Court.

In the decades since Mr. Garcia Lucero was victimized, the Chilean experience of transitional justice has come to be seen as a model in many respects. However, as Clara Sandoval noted in a BBC interview, efforts to provide reparations to victims of the Pinochet regime have been accompanied by relatively few convictions of perpetrators and largely excluded exiled victims, exacerbating their vulnerability. Meanwhile, with the recent commemoration of the 40th anniversary of the Pinochet coup, painful new revelations such as the failure of the Chilean courts to protect ordinary citizens continue to emerge.

Chilean judiciary apologizes

In what the BBC has called an ‘unprecedented’ move, the Chilean National Association of Magistrates of the Judiciary has apologized for failing to protect the rights of those persecuted by the Pinochet regime in the 1970s and 80s. Coming just a week shy of the 40th anniversary of the September 11, 1973 coup that brought Pinochet to power, the judicial apology appears to come as part of a broader moment of reflection.

Although the executive branch and security forces clearly had the most to answer for at the time, it seems the judiciary played an entirely passive role:

The magistrates’ association acknowledged that the Chilean judiciary could and should have done much more to safeguard the rights of those persecuted by the dictatorship. It said the judges had ignored the plight of victims who had demanded their intervention.

Chilean courts rejected about 5,000 cases seeking help on locating missing loved ones abducted or killed by the authorities. Critics say their usual response was they had no information about their fate.

Such a judicial apology raises an interesting set of issues. Apologies are often seen as sensitive because even as symbolic acts, they can have material consequences. There is a fine line between taking moral responsibility for atrocities and taking legal responsibility for them and compensation claims are usually quick to follow.

For instance, the recent admission by the Farc in Colombia that it shared responsibility for the suffering that has resulted from its prolonged insurgency is seen as a prelude to wrangling over its liability to compensate victims in the ongoing peace negotiations with the Government.

However, apologies are usually issued by the executive or perhaps the legislative branch, with the consequences likely to be handled through the courts or administrative reparations programs. When a Court admits liability for violations in the form of systematic failure to provide remedies, what are the consequences of that? Its hard to imagine that the relatives of the disappeared turned away twenty years ago would be permitted to go back to those courts now in order to sue them.

It is also interesting to query whether this could lead to a trend. I suspect TN readers can think of other courts that may have failed to take the high road in the past or are neglecting to do so now. Any nominations for the next few judiciaries that should be getting in line for some sackcloth and ashes?

 

The week in links – week 09/2011

I thought I would begin this one with a plug for a Roger Cohen column. It ostensibly focuses on the unfolding of ‘Obama-ism’ as a nascent foreign policy doctrine, but beautifully makes the point that just as 2001 was seen as interring the spirit of 1989, 2011 may signal an equally new and more hopeful turning point in human affairs. The uplifted tone invites a certain amount of skepticism, but one can also choose to simply indulge in a moment of abandoned optimism.

Events in North Africa have obscured what would otherwise be headline (well at least visible) news from other parts of Africa. Perhaps most notably, Cote d’Ivoire continues its slide toward civil war. Turtle Bay recently reported that South Africa’s contributions to the mediation efforts have been viewed with some skepticism, as it is not clear whether an effort is afoot to impose the type of power-sharing agreement that has worked so brilliantly in Zimbabwe.

In Zimbabwe itself, political repression by Mugabe’s paramilitaries and displacement continue apace. Meanwhile, the Supreme Court has unsurprisingly upheld the country’s draconian land reforms, as reported in ASIL’s most recent ‘International Law in Brief’. Finally, returning to South Africa, the BBC reports this week on a bid by Georgia to poach  white farmers disgruntled by the far less arbitrary but ambitious and problematic land restitution program there.

A year on, BBC also provides a useful followup report on the earthquake in Chile. Although Chile’s relatively advanced state of preparedness spared it from loss of life on anything like the scale seen a month earlier in Haiti, the economic consequences were devastating. BBC points out that the cost of the damage was one-third of all costs caused by disasters worldwide in 2010 and amounted to one-fifth of Chile’s GNP. As in Haiti, the greatest challenge a year on is presented by the need to move survivors from ad hoc shelter arrangements to more sustainable housing.

Behind the miner rescue headlines in Chile – a new settlement with the Mapuche

by Rhodri C. Williams

I’m grateful to the students in a course I’m currently teaching on minority rights in Stockholm for pointing out an interesting and potentially significant development that got lost behind the drama of last month’s rescue of 33 miners from the bowels of a collapsed shaft. In an earlier post that elaborated on a longer piece by David Dudenhoefer in OpenDemocracy, I discussed how the Chilean earthquake last February both obscured and highlighted the simmering tensions between the Mapuche indigenous group resident in the affected area since time immemorial and the incoming government of President Sebastian Pinera.

Mapuche protests over the land taken from them after their initial military defeat in the 19th century and in the course of a wave of malicious privatization undertaken under the Pinochet regime has often involved violence and property damage. The Chilean official response has been schizophrenic. On one hand, earlier governments both ratified ILO Convention 169 and committed themselves to a program of voluntary buy-back of confiscated Mapuche land. On the other hand, the government response to protests has been heavy-handed. Harsh police tactics, lethal use of force and dubious trials under a Pinochet-era anti-terrorism law ultimately led to a hunger-strike by Mapuche activists that  generated a good deal of negative publicity since the time of the mine collapse last August.

Mapuche land claims shake post-quake Chile

by Rhodri C. Williams

TN readers of longer vintage will recall that I posted a few times on the humanitarian situation in Chile after the quake that hit at the end of February, only weeks after the devastation in Haiti. However, given the higher level of preparedness in Chile and the fact that government institutions remained intact and capable of responding in a robust manner, the types of acute humanitarian and land issues seen in Haiti did not seem to be at issue.

As a result, it came as a bit of a shock to discover that land may actually be more contested in Chile than in Haiti, and that the potential for land-related violence existed prior to the disaster and may have been exacerbated since, both due to the immediate diversion of attention to the reconstruction effort and the longer term effects of the new law-and-order government of President Sebastian Piñera, who took office just weeks after the quake.

Freelance journalist David Dudenhoefer writes in OpenDemocracy this week on the Mapuche, Chile’s largest indigenous group, which inhabits precisely the area the quake hit hardest. While I would highly recommend that readers go directly to Mr. Dudenhoefer’s article,  a few points are worth summarizing here. The Mapuche were militarily conquered in the 19th century, granted ‘mercy title’ to a fraction of their former territory, and then progressively lost even that in the course of decades of repression, deforestation and commercial pressure on their lands.

Deteriorating situation in Chile

Since my post yesterday, the level of devastation in Chile has become more apparent and the Government has requested urgent assistance from abroad. Although the death toll does not appear likely to rise to anything close to that of Haiti, the level of displacement – two million people – is staggering.

In a sad irony, the NY Times reports that Chile’s response to its own earthquake may have been slowed down for want of tents and other humanitarian goods it earlier sent to Haiti. On an HLP-relevant note, the Times also notes that although the general standard of preparedness and infrastructure is much higher in Chile than it was in Haiti, the disproportionate vulnerability of the poor remains a constant:

The quake has also exposed the fact, experts say, that although Chile is one of the most developed countries in the region, it is also one of the most unequal, with huge pockets of urban and rural poor, who suffered most in the quake.

Here in Europe, the EU’s embattled new foreign policy chief, Catherine Ashton, has confirmed a pledge of 3 million Euro to assist quake victims in Chile. That was yesterday and today Ashton departed for a (for many observers, long overdue) trip to Haiti, noting before her departure that (this time), she was ready to visit Chile as soon as necessary. All this as the EU Commission gears up to help the victims of a severe storm that tore through western Europe in the last days, killing 51 people and flooding large areas, particularly in France.

Earthquake in Chile

The first quarter of 2010 will not soon be forgotten soon in the Americas. The effects of the two catastrophic earthquakes that occurred in Haiti and Chile in the space of about two months will take years, if not decades, to address. There is also a grim regularity to the events that serves as an ungentle reminder of the way in which the frequency and severity of natural disasters worldwide has shot up in the last years. The Chile quake hit just as the Haiti quake was getting far enough behind us to have seeped out of the headlines and settled into its own new Wikipedia entry.

The difference between the effects of the respective quakes also serves as a very timely reminder of one of the central imperatives of disaster risk reduction – the need to focus on human vulnerability and increase human resilience. The fact that the death toll appears to have been so much lower in Chile despite the more forceful quake there speaks volumes. So do some of the vignettes from the New York Times article I read this morning that indicate levels of government capacity and social trust that contrast strongly with earlier reports on the initial absence of the police and later arbitrariness (e.g., handing alleged looters over to lynch mobs) in Port au Prince:

The police fired water cannons and tear gas to disperse hundreds of people who forced their way into shuttered shops in the southern city of Concepción, which was devastated. But law enforcement authorities, heeding the cries of residents that they lacked food and water, eventually settled on a system that allowed staples to be taken but not televisions and other electronic goods.

[President] Bachelet later announced that the government had reached a deal with supermarket chains to give away food to needy residents.

***

The earthquake, one of the strongest in recorded history, left a devastating footprint on a country that knows quakes well.

Residents of a collapsed 15-story apartment building in Concepción, opened just months ago, were outraged that it had been so badly damaged and were convinced that contractors had not complied with building codes that require buildings to be able to withstand temblors. Already, there was talk among residents of taking builders to court once the emergency is over.

Chile will probably not require nearly as much international assistance to recover from its quake as Haiti. Indeed, while it is crucial that appropriate international assistance be sent to Chile, one hopes that the disaster there will not distract donors and early recovery actors from the critical long-term needs of the Haitian population.