Experts say proof of willful intent and not just negligence is needed to convict those responsible for such an offence.
The tragedy of the people Yanomamion what hundreds of indigenous people were rescued by the teams Of Ministry of Health in critical health, it can be classified as genocide, according to the jurists consulted by the Stage. This Wednesday, the 25th, the The federal police have opened an investigation into the case. The jurists defend that the preliminary investigation determines whether there has been direct action or omission by public agents to deprive the indigenous people of assistance and care up to leading them to their death. Potential perpetrators – individuals who may be miners, former ministers and even former President of the Republic Jair Bolsonaro (PL) – could face prosecution or an international criminal court.
The jurist Gustavo Sampaio, professor of Constitutional Law at the Fluminense Federal University (UFF), recalled that a federal law of the Juscelino Kubitscheck government, in the 1950s, clearly typified the crime of genocide. “This crime does not fall under the Brazilian Penal Code, but under Federal Law 2.889 of 1956, which establishes as the practice characterized by the intention to destroy, in whole or in part, a national ethnic, racial or religious group, as appears to be the case of the Yanomami,” he explained.
In the hypotheses referred to in article 1 of the law, the following acts take place: killing members of the group; cause serious damage to physical and mental integrity; take measures to prevent births within the group or forcibly transfer children from the group to another group. “Here (in the case of the Yanomami) if you talk about genocide because there is the second-degree direct fraudthat is, when the means employed lead to the desired result, that is, the total or partial extermination of that group”.
According to Sampaio, when agents of the former government did not act against the occupation of Yanomami territory by illegal miners, they caused the deaths of indigenous people. “Dumping mercury into riverbeds, compromising fauna and flora, generating spreading diseases, such as cancer, when these agents reduce food capacity, block the supply of medicines to these populations, even if the primary objective is the satisfaction of an economic interest, despite the environmental and human catastrophe that is created, being aware that these practices will lead to the extermination of this people or their reduction, this action characterizes the crime of genocide”, he explained.
The jurist recalled that, during the covid-19 pandemic, when it was said that Bolsonaro had committed the crime of genocide by delaying, for example, the purchase of vaccines, he did not agree. “There may be other crimes there, including manslaughter, but not genocide. Here, public agents, from the President of the Republic to the agent of a superintendence charged with the conservation of those peoples, those who have acted to reduce the protection system , of food supply, which led to that humanitarian tragedy, these agents will be involved in the crime of genocide,” he said.
Doctor of criminal law from the University of São Paulo (USP), jurist Matheus Falivene also understands that framing the Yanomami case as genocide is possible. “This situation of abandonment and starvation can also constitute genocide, but it must demonstrate that there was willful intent, not simple negligence. The police will have to prove the intention to bring about the result we have seen, and also whose blame, if It is an isolated action by the miners or if there has been a systematic action by government agents, including the former president of the Republic”.
If the former president and other authorities knew about that situation in Roraima and did nothing, it could set up the crime of genocide by omission, according to him. “It needs to be investigated, as it’s a relevant matter. It’s what we call a cabinet crime. The idea of genocide emerged after WWII as a way to fight Nazism. Hitler was never directly in a camp concentration by killing Jews, but he was largely responsible. Here, too, it must be investigated whether any authority made it state policy.”
Again according to Falivene, genocide admits only the direct intention, which would be the intention of the person to commit the crime, to destroy the ethnic group. “If it is just negligence, disregard for assistance, the crime is not typified as genocide. It is difficult to prove this intent in practice, but it is not impossible. Acting on behalf of the seeker, by itself, does not constitute genocide if it proves that there has also been a suspension of aid, food, means of subsistence, can characterize the crime”, he says.
For Sampaio, it was a known fact that the Yanomami peoples disrupted the criminal activity of illegal miners and politicians interested in expanding this activity. “In the case of public agents, every conduct must be analyzed on a case-by-case basis. If the state reduces food supplies, medical assistance, protection, it contributes to genocide. It seems to me that in the last four years, which coincide with this government In the past, this campaign to expand the white borders, ore and economic activity has prevailed, at the expense of the preservation of indigenous culture, ”he said.
He recalled a ministerial meeting in which then Environment Minister Ricardo Salles (PL) spoke of “exploiting the opportunity to let the cattle through”, demonstrating that the government cared neither for the environment nor for the Indians, but of the expansion of the white frontier. “In my opinion, I understand that the humanitarian tragedy that has generated criminal liability and possibly genocide has occurred in the last four years and this should be investigated severely. Now with the expansion of diseases, the reduction of hospital medical support, all of this. “
For the jurist Acacio Miranda da Silva Filho, doctor in Constitutional Law and Master in International Criminal Law, if it is proved that there has been a genocide, the Yanomami case could be brought before an international criminal court. “The genocide is foreseen in two legislations, a Brazilian one of 1956, which arises from a determination by the UN (United Nations Organization) due to the Second World War, and more recently, in 1998, the Rome Statute, which provides for the crimes prosecutable by the Permanent International Criminal Court”, he says.
According to him, both national legislation and the fact that Brazil is a signatory to the Roman statute allow Brazilians who commit these crimes to be tried by this court. “Genocide is when there is an aim to eradicate a certain race or ethnicity. It is the deliberate extermination of people who are in this condition. Of course, it must be demonstrated that (public agents) deliberately acted in that direction, and then it was something intentional, or if it was a lame public policy that was not able to serve this population. If it’s just a lack of ability, then there’s no crime.”
For the jurist, genocide can also be practiced by omission. “This occurs when one has an obligation and deliberately does not fulfill it so as to obtain the result of the extirpation of a race or a people. Once this has been demonstrated, we have two possibilities: judgment by the Brazilian judiciary or by the international criminal court The tendency, given the circumstances, is for Brazilian justice to surrender so that those responsible are tried by the international tribunal”.
According to Silva Filho, the external court has more affinity with the matter and there would be a better judgment from a technical point of view. It would also be a judgment devoid of ideological passions, according to him. “Unfortunately, we live in Brazil with this almost bloody ideological division and this ends up affecting those who should not be affected, such as the first and second instance courts. In international judgment, this context would be removed,” he says.
The jurist Sampaio understands that the jurisdiction of the international criminal court is established only when the State of origin of the crime does not intervene. “I hope that Brazil will investigate, indict and convict those responsible so as not to be subject to international action. It is a commitment made by the states that are parties to the Treaty of Rome, to judge and convict their criminals. If we are not able to doing so, we will give the international community a receipt of incompetence and leniency that will tarnish our image abroad even more,” he said.
On social media channels, Bolsonaro said the Yanomami scare was “yet another farce from the left” and said indigenous health had been one of his government’s priorities, highlighting its performance during the pandemic. THE Stage tried to reach out, but received no response from former Health Minister Marcelo Queiroga about the case.
The attack in 1993 was declared a genocide
The first case of genocide tried in Brazil took place precisely in the Yanomami Indigenous Land, in 1993, when 12 indigenous people were murdered by miners. On the morning of July 23, prospectors invaded the area where some tribe members were staying and shot and killed an adult man, two elderly women, a woman, three teenagers, four children and an infant.
The case, which became known as the Haximu Massacre, was denounced by the Federal Prosecutor’s Office (MPF) and, in 1996, five miners were convicted by the Federal Court in Roraima of the crime of genocide – an attempt to exterminate the ethnic group. The sentence was even changed to murder charges by the Federal Regional Court (TRF), but, in 2000, the Superior Court of Justice (STJ), unanimously, upheld the idea that there had been genocide.
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Source: Terra
Ben Stock is a lifestyle journalist and author at Gossipify. He writes about topics such as health, wellness, travel, food and home decor. He provides practical advice and inspiration to improve well-being, keeps readers up to date with latest lifestyle news and trends, known for his engaging writing style, in-depth analysis and unique perspectives.
