"is a denial of the right of existence of entire human groups, in the same way that homicide is the denial of a human individual's right to live such a denial of right of existence shocks the human existence causes a great loss to humanity in the cultural and other contributions represented by these human groups, and is contrary to moral law and the spirit of the UN target. " (Resolution 96, December 11 1946 of the General Assembly of the United Nations.)
"Genticidio." Jimenez de Asua.
the Greek "genos" (race, nation or tribe) and the Latin suffix "cide" (killing).
the Latin "Fall" (action to abate, killing) or "caedere" (kill) and the genitive "genus" genius "(race, tribe, nation).
Crime de Barbarie.
Genocide as a crime that attacks the existence of entire human groups, represents the violation and disregard one of the most vital principles of the world, such as the right of all peoples and all individuals to coexistence, to prularismo and dignity. The consideration of the human being "deserving", requires all peoples and all states the obligation of tolerance and respect for racial diversity, cultural, religious, ethnic, political, national, because only on the basis of this respect can be achieved the conditions for a peaceful and civilized coexistence. Therefore, the genocide as a crime against mankind offends all peoples and destabilizes the same state where the events are produced and hence its extreme gravity.
CHARACTERISTICS OF GENOCIDE.
features that genocide is in international law, are now well defined, as follows:
1. It is a fact deliberate or intentional, massive or widespread injury to an essential asset for the prevention of human beings, consisting of killings, serious personal injury, prevent births within the group or movement of children within the group constituted by the same in a intentional crime, and therefore in a state crime.
2. It is a crime under international law because it infringes an obligation and an essential good for the preservation of man that offends the conscience of humanity itself.
3. It is a crime against humanity, extremely serious, which can never be described as political crimes, provided for extradition of the material and intellectual authors or participants.
4. It is not a war crime because it can be committed in time of peace or war. It is a crime trend or intent. In addition to fraud, as knowledge and understanding of the events will require a final element, subjective, or mood, consisting of the purpose of clear or eliminate the national, ethnic, religious or social.
5. The taxpayer's genocide of humanity, national, religious, ethnic or social. Those particularly affected are liable to genocide because the existence of specific group or objectified in them.
6. Action is a crime of permanent, continuous, successive, or status. It is also an unlawful act by which complex is consummated until end acts of killing, serious bodily injury and so on.
7. The subject agent of genocide may be an officer or an individual, but has often been a crime of state.
LEGAL RIGHT SUPERVISED.
Only in the second half of the twentieth century became aware of the need to establish genocide. On the one hand because the Holocaust shook the universal consciousness and made clear the absence of a criminal offense to pick up the deep content and injustice implicit in the extermination of human groups identified by national ties, ethnic, racial or religious. And, secondly, by the crisis that made the model of the legal state of law and its formal conception of freedom and equality, democracy deteriorated until it became a dictatorship of majority.
Genocide is a behavior in which the legally protected interest is not individual but collective in nature, it refers to the right to exist they hold the national, ethnic, racial, religious or political.
national group The term refers to the clusters that have certain characteristics in their way of life of relationship that identifies, associates and gives them specific characteristics which relate them to each other.
It seems clear that the social group is characterized by economic circumstances, culturares. Including labor and political ideology, because quite often the social conditions for the existence of political groups (parties class or social sector). In the context of social or national group comprises a large number of clusters and associations groups, companies, associations, unions or professional associations etc productive., To the extent that we could say that comprises, in general, any association that is identified by its principles, goals or objectives.
Specific elements of the basic offense of genocide contained in Article 101 of our Penal Code, are two: Death of group members and purpose of total or partial destruction of the group.
1. DEATH OF MEMBERS OF THE GROUP.
The death of group members is the material element of the crime of genocide, which coincides with the same biological phenomenon required in common homicide or basic (Art. 103). Is ontologically the same conduct (death of a human being) but should be committed for specific purposes defined in the moral ingredient of the offense.
the victim's membership in a national, ethnic, religious or political, it is assumed concurrently, to determine the action, the rule says "... For reasons of belonging to the same", which means that mobile should be clear, not to generalize deaths members of historically persecuted groups or communities, many of which correspond to the common grounds that accompany many attacks against life (jealousy, envy, revenge etc.)
2. PURPOSE OF DESTRUCTION OF ALL OR PART OF THE GROUP.
is a specific mental element which is the reason for a higher ranking of behavior from the standpoint of criminal protection. In fact, there appears the heavier penalty, in relation to basic homicide and other criminal types that can be associated in paragraph 2 of Article 101.
The most subjective element l connotation that accompanies this crime certainly gives his attack against humanity, such as denial of the species, negating the other, their otherness, their difference. Discrimination is fundamentalists, whose lower price for life is more blameworthy, as not corresponding to the common motivations of personal relationships, but the heightened intolerance of different cultural conditions of others.
In principle, the active subject is undetermined. However, has rightly stated that it is impossible that a person attend the special circumstances required to promote the elimination of a human group ties identified by nationality, ethnicity, race, religion or politics. One purpose of this nature requires a confluence of minds and instruments that are beyond the reach of a single human being. Hence they require the confluence of several people who go to the configuration of the extermination plan, and that international law requires that the genocidal acts are part of a government policy or a political organization.
genocide is the group, because this is the owner of the legally protected. Therefore, it is immaterial whether the conduct is realized on many or more of its members or one of them because, regardless the number of persons within the prohibited action takes place is the right of existence of the human group that is vulnerable or endangered.
material object on that specific conduct constituting genocide are members of human groups, national, ethnic, racial, religious or political.
The legal order is the right of existence of these groups.
The conduct is of a composite alternative is to kill members of the group, injuring them seriously, producing a forced pregnancy, subjecting them to conditions of life calculated to bring about its destruction physical, total or partial take measures to prevent births within the group or forcibly transferring children from one group to another.
1. Kill members of the group. This behavior is more serious as it involves the loss of lives as a mechanism to extinguish a human group. This behavior not only denies the right to life of one or more human beings, but their destruction is to extinguish the national, ethnical, racial, religious or political nature which they belong. Since this claim is central to the adequacy typical behavior, it is immaterial whether the number of group members which causes them death, since what is alleged is not one or a multitude of murders, but one or more committed for the purpose of destroying all or part of this group.
2. Causes serious bodily or mental harm to members of the group. In principle could be regarded as the act of harm to members of the group is inconsistent with the intent to destroy in whole or in part for this purpose because that means would be insufficient, and before it the complaint of genocide would not be possible. However, this type of conduct is alleged genocide allows accompli and not attempt to genocide the actor who tried to kill members of the group with the purpose of destroy it, without having been able to kill them. Thus, in the event that the injuries inflicted not have the fitness required to destroy all or part of the group, and attention to the importance of legal right is at stake, it is anticipated upon completion of genocidal behavior and extending the scope of protection of the law.
3. Produce a forced pregnancy. This conduct is relevant in the case of racial and ethnic groups, forced pregnancy as women in these groups is aimed at changing the ethnic composition of the group and promote their destruction.
4. Subjecting members of the group conditions of life calculated to bring about its physical destruction in whole or in part. In this case the conduct is consumed with the subjugation of members of the group conditions that deprive or restrict them to ensure that its members continue to exist as human beings and, therefore, to screen at the time and contribute to the permanence of the group they belong. It should be noted that in this mode the genocidal behavior is consumed with the submission of group members to those conditions, regardless of whether total or partial physical destruction of those members of the group becomes effective or not. Then, if group members are subject to such conditions, the genocidal behavior is accomplished, and the group itself not be destroyed, and so these particular members of the group were neither
5. Take measures to prevent births within the group. In this event the conduct is consumed with single measures such as abortion or forced sterilization because it denies them the right to exist for future generations of the group and threatening life itself.
6. Forcibly transferring children from one group to another. This behavior is to move, to shift children from one group to another, and is punishable as it affects their identity and sense of belonging. Note that in this case, attends a double qualification in the subject liability, not only because they are members of a national, ethnical, racial, religious or political, but members under 18 years of age. Hence, if it's forced removal of adults, the conduct is atypical of genocide, although it could be charged a crime against humanity such as forced displacement.
But in such conduct, to constitute the crime of genocide, must attend a special ingredient subjective, that is, a specific purpose of the actor who is intent on destroying all or part of the group. Thus to say that genocide is the realization of certain crimes is worse under the author's purpose. That purpose makes this than any of the constituent acts of genocide is part of a program designed to eliminate members of national, ethnic, racial, religious or political.
The crime of genocide is not competition with other crimes such as murder or injury, it legally protects a supra-individual that is the existence of racial, ethnic, racial, religious or political and not assets individual legal that may hold the members of the group. Strictly speaking these are the subject of the action and not legally protected.
Moreover, the offense is committed in the commission by default, but this is possible is required to attend all the elements that are part of the typical structure:
1. The typical situation is supplemented with the situation as guarantor of the active subject, that there should be no position regarding the legal right and personal life of a member of the group, but in relation to the existence of the human group protected.
2. That the breach of duty imposed on the guarantor is supplemented with unlawful production of l result, defined as provided for in each of the forms amount to genocide and no partial or total destruction of the group, because this is a special ingredient that accounts subjective exhaustion of crime but not its consummation.
3. The personal ability to perform the action to be complemented by the author's ability to avoid the unlawful result.
As this result supports the crime of attempt. However, it is not necessary in the first category of genocide, which is to kill members of the group, since the infliction of causing serious bodily or mental harm to members of the group consumes the genocide and prevents the charge tempted a genocide.
is imperative to point out that the result consuming behavior is reflected in each of the forms of genocide and not depleting the intended purpose by the perpetrator or participant. This realizes the special ingredient type and is relevant to the exhaustion of behavior, not its consummation.
commission's conduct is willful. The intent is predicated of any criminal behavior patterns. It is about knowing and loving the death of group members, seriously injuring them, or be subjected to conditions that involve its destruction or prevent births, or transport children, forced pregnancy or cause. A part of this must attend the special ingredient consistent subjective claim the extermination of the group. This ingredient is essential for the characterization of behavior, for if not fulfilled the typical alignment is different and may be, for example, homicide, injuries, and even crimes against humanity. However, it imposes clear that for the consummation of the crime of genocide requires that special ingredient in the author's subjective attend or participate, but that intention is realized. This is because the crime of genocide is consumed with the deployment of any of the conduct described in the type, not the realization of the particular intention of the author or part, for the realization of this intention no is a completed act but exhausted, and is thus irrelevant for typing, but may itself important for the determination of unfairness of the conduct.
subjective ingredient may pose special difficulties of proof. However, it is likely to be accredited by any element of conviction, whether in the case of direct evidence such as documents or testimony, or indirect evidence, as evidence. In fact, this test is perhaps the most relieved, and hence the need for indicators to establish the facts from which must be deducted through a logical inference, those relevant to the process and which demonstrate the special ingredient subjective subjective behavior.
advocating genocide.
According to Article 102 of the CP commits the crime of advocating genocide which by any means disseminate ideas or doctrines that encourage or justify the conduct constituting genocide or seeking rehabilitation schemes or institutions that protect generating practices conduct constituting genocide.
These directly and publicly inciting others to commit the crime of genocide or of legitimate facts that stimulate further production of exacerbating them as worthy of carrying
Bibliography.
López Escobar, Edgar. Crimes against life and personal integrity. Read. Bogotá, 2005. Pp. 23-97
Tocora, Luis Fernando. Special Criminal Law. LIBRARY EDITIONS OF PROFESSIONAL Ltd. 10 th ed. Bogotá, 2004. Págs.9 -15.
Gómez, Carlos Arturo and José Joaquín Martínez Urban. Crimes against life and personal integrity. LESSONS OF CRIMINAL LAW. SPECIAL PART. EXTERNADO UNIVERSITY OF COLOMBIA. Bogotá, 2006. Pp. 906-918.
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