369 Marina de Luengo Zarzoso The legal challenges posed by the responsibility to protect in the new security and defence landscape to destroy it completely and make it disappear; it suffices to want to remove it from a specific territory64. To allege the existence of a crime against humanity, at least two elements must exist: that the aforementioned crimes or criminal offences are committed and, moreover, they must have been committed within a context, as part of a general attack on the civilian population or a part of it65, and, in any event, when these crimse are committed because the victim belongs to a group that is persecuted for political, racial, national, ethnic, cultural, religious, gender or disability reasons or any other reasons universally recognised as unacceptable under international law, or when committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime. It is precisely the second element that characterises and distinguishes crimes against humanity66. The basic difference between genocide and crimes against humanity is that the desire to destroy a group is not the motive behind the latter. A number of crimes have been added to the Spanish Criminal Code so as to be able to penalise offences against persons or property protected in the event of armed conflict (Chapter III, Articles 608 to 614 bis). This is the real war crime law67. These are the criminal offences enshrined in the Military Criminal Code68, and regulated in the ordinary Criminal Code as a result of the commitments undertaken 64 “The subjective element of injustice aimed at harming the legal interest indicates that the latter is an ethnic, racial or religious group, but not necessarily the entire group in the sense that all human beings belong to the group that inhabits the earth, and not even those who live in the territory of a state; it suffices for it to be a sub-group confined to specific geographical or social areas”. Vid. GIL GIL, A.: “El genocidio y otros crímenes internacionales”, Valencia, 1999, pag. 194. 65 Vid. FEIJOO SANCHEZ, B.: “Los crímenes de lesa humanidad: una nueva modalidad delictiva en el Código Penal de 1995”, in CUERDA RIAZU, A. (Dir.): “La respuesta del derecho penal ante los nuevos retos. IX Jornadas de profesores y estudiantes de derecho penal de las Universidades de Madrid”… cit., pag. 41. 66 Ibid., pag. 48. 67 Vid. C VIVES ANTON, T., ORTS BERENGUER, E., ARBONELL MATEU, J.C., GONZALEZ CUSSAC, J.L.: “Derecho Penal. Parte Especial”, Tirant lo Blanch, Valencia, 2012. Consulted the electronic version. 68 War crimes are set out in Articles 69 to 78 of the Military Criminal Code. Professor Gil Gil has pointed out that “as was the case with most countries, Spain’s first positive and permanent step towards the criminalisation of unlawful conduct during war was military criminal legislation.” In Spanish law, war crimes initially came within the sole jurisdiction of military law; recently, however, they have been incorporated into the ordinary Criminal Code. Their inclusion in ordinary criminal legislation was deemed necessary, considering that combatants that are not necessarily militaries can commit crimes and that the Military Criminal Code would not apply in such cases. Vid. GIL GIL. A: “Bases para la persecución penal de crímenes internacionales en España…cit., pags. 27 and 28.
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