Human Rights, International Courts and Deliberative Democracy

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Gargarella, Roberto, 1964-

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The aim of this paper is to discuss about some legal problems generated by situations of gross violations of Human Rights, and to do so from the perspective of a “communicative” approach to the Criminal Law. I am interested in stressing the importance of having an inclusive collective discussion for deciding how to deal with situations of massive violation or rights –and particularly of showing the legal implications of not having such a collective debate. In this exploration, I will frequently back my arguments with the theoretical views of two authors, namely Antony Duff and Carlos Nino. In the first part of my paper, I contrast Antony Duff’s communicative view –as applied to the analysis of International Criminal Law- with alternative approaches. Then, I examine the connection of this communicative perspective with a deliberative conception of democracy. In the second part of my paper, I try to demonstrate the merits of this approach for dealing with hard cases involving gross violations of Human Rights and the participation of foreign tribunals. In this final part, I test the potential of the deliberative view in three real and recent hard cases. The examples that I take into account are the case of the 1983 self-amnesty Law in Argentina (a self-amnesty passed by members of the last Military Junta, before handing over power to the new democratic authorities); and the Barrios Altos and Simón cases, which also involved amnesties directed at pardoning gross violations of human rights (amnesties that, in these cases, were not passed by military regimes, but rather by democratic or -in the case of Barrios Altos- quasi-democratic/quasi-authoritarian governments)


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