Los orígenes ideológicos del derecho penal del enemigo

Abstract

«Criminal Law for enemies» is a term used by Prof. G. Jakobs for a kind of Criminal Law beyond the principles of the Rule of Law. But it have always existed in the history of Humanity. The first step of this Criminal policy is the legal exclusion of the called «enemies», that is, of the outsiders who don´t belong to the community and have to be expelled from the community, losing their status as citizens and their fundamental rights. The National Socialists are well known for having taken a second step in their war against their enemies, namely the physical detention and elimination of those designated as outsider, enemies of the community. The concentration camps, the «Konzentrationslager», Buchenwald, Dachau and Auschwittz are the coronation of a total war against enemies. Yet it is not hysterical to think of the continuing confinement of suspected terrorists in Guantanamo Bay as a moderate form of the same policy of extraordinary measures specially designed to deal with community enemies. There were in Germany many legal thinkers, who proposed before and during the Nationalsocialism a such Criminal Law for enemies, as the famous academic German criminal lawyer Edmund Mezger who proposed as well a «Criminal Law for enemies» in a draft code designed to eliminate the people he called the «Community aliens» or «Community enemies»(«Gemeinschaftsfremde-feinde»). A «Criminal Law for enemies» seeks then to get rid of or at least to neutralize the enemies. The problem, obviously, is now whether these measures are compatible with human rights and with the principles of our democratic Constitutions.