1. BOE, 24 November 1995. Entry into force of the Law will be as provided by Organic Law 10/1995 itself, six months after publication. 2. Similarly, F. Munoz Conde may be mentioned who, following Quintano Ripolles, speaks of a possible double perspective in the protection of the International Community: The traditional perspective and the innovative and wholly international one. Whereas the former would be agreed upon from a domestic angle by the States themselves, under equally domestic laws though aimed beyond their frontiers, the latter would be drawn up by the international community itself or in its name; cf. Derecho Penal. Parte Especial, 8th ed., Tirant lo Blanch, Valencia, 1991, p. 591. 1. In fact, when this penal expert was trying to adjust the Spanish Penal Code prior to the latest reform in this direction, he seemed to indicate that nothing much had been achieved: "our laws are still in the traditional phase, for they punish these offences only inasmuch as they affect the nation itself. The International Community may only be considered as the directly affected victim where genocide is concerned"; ib.. Following approval of the new Code, opinion does not seem to have altered much. The model is still the traditional one, though it recognizes that "standards of International Law ratified by Spain have been of influence..."; cf. F. Munoz Conde, Derecho Penal. Parte Especial, 1 lth ed., Tirant lo Blanch, Valencia, 1996, p.652.
3. Most deficiencies and vacuums in this legal system are no doubt due to the well-known and marked national reticence to give up portions of sovereign power. However, we think that from an objective point of view, many vacuums may also be attributed simply to its recentness and youthfulness inasmuch as the network of existing treaty instruments did not begin to interact uninterruptedly and solidly until the end of the Second World War. There is some doctrinal work that provides a perfect account of the visibly incipient feature of this international legal area and of the implications inevitably implied. For a balanced view, the following, among others, are worth reading: Y. Dinstein, "The Parameters and Content of International Law", Touro
Journal of Transnational Law, vol.1 (1990-2), pp. 315-324 and C.R. Doaovaa, "The History and Possible Future of International Law", Brooklyn Journal of International Law, vol. 13 (1987), pp. 83-109. 4. In this context, the already classical principle established at Nuremberg should not be forgotten, just as it was drawn up by the ILC in regard to certain crimes: "Crimes against the peace and the security of mankind are crimes of International Law and punishable as such, whether or not they are punishable under National Law. In this way, significant derivations that have been developing since the Nuremberg Trials are condensed in a formulation: International Law as the basis for classification, the autonomy of the international legal system on this point, the direct applicability of International Law with the resulting individual responsibility and the insignificance of provisions - or lack of provisions - in National Law for legal international purposes; cf. Report of the IGC on the work of its forty-eighth session, 6 May to 26 July 1996, General Assembly, Official Records, (A/51/10) 1996, Article 1 and Commentary (the official text is available at: http://www.un.org/law/ilc/reports/1996/96repfra.htm). For a detailed study of the peculiarities and available methods for carrying this adaptation into effect and, finally, for a desirable unification of domestic legal systems, one may refer to the excellent and ageless work of S. Glaser, Droit international penal conventionnel, vol. I, Établissements Émile Bruylant, Brussels, 1970, pp. 169-198.
5. The non-exemption of responsibility for acting in compliance with an order and the responsibility of the superior are matters that can be of particular importance with regard to offences against the international community classified in the Spanish Penal Code of 1995, specially those defined in Chapters II and II of Section XXIV (though also in what concerns another category of offences that in spite of not having yet been expressly provided for in the Spanish domestic penal system, to our way of thinking, should have been; vid., in this sense, paragraph II.A of this work concerning offences or crimes against mankind). At this point of the century, it would be useless to repeat yet again that the principle of compliance with orders from above does not constitute a case for the exclusion of responsibility by the author of an offence. It became a legal reality intemationally at the end of the Second World War (vid Art. 8 of the Nuremberg Statute). Being unable to assume, therefore, an exception to penal responsibility, the pleading of a case such as this can only be operative, if at all, as a factor for the mitigation of a punishment. In this line, Article 5 of ILC's Draft Code of Crimes against the Peace and Security of Mankind, "Order of a Government or a superior" and its commentary (which establishes that the mere existence of orders in no way acts as an automatic reason for imposing a lesser punishment and also what type of circumstances must exist for there to be such mitigation) are the most significant texts; vid Report of the ILC on the work of its fo�ty-eighth session... cit., Article 5 and Commentary and also Article 23 of the Spanish Penal Code of 1995. The question of responsibility of the superior, however, receives ever more attention where it concerns its negative or indirect dimension. This type of responsibility of the superior appears when an offence is committed by a subordinate in cases in which the former knew or had reason to know that an offence was being or was going to be committed and did not take all the necessary steps at his command to prevent it or to try to put a stop to it. This responsibility by omission is of special practical relevancy in cases of armed conflict. Vid. in this respect, articles 86 and 87 of Additional Protocol I of the Geneva Convention dated 12 August 1949, concerning protection of victims of international armed conflicts; Article 7 of the Statute of the International Criminal Tribunal for the former Yugoslavia; Article 6 of the Statute of the International Criminal Tribunal for Rwanda and Article 6 of the Draft Code of Crimes against the Peace and Security of Mankind, "Responsibility of the superior" and its commentary, in Report of the ILC on the wo�k of its forty-eighth session... cit., Article 5 and Commentary.
6. With no intention of being complete, the Tokyo Convention may be examined concerning infringements and other acts committed on board aircraft dated 14 September 1963 (BOE, 25 December 1969); Convention for the Suppression of Unlawful Seizure ofAircraft dated 16 December 1970 (Article 2; BOE, 15 January 1973); Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation dated 23 September 1971 (Article 3; BOE, 10 January 1974); Convention for the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, dated 14 December 1973 (Article 2.2; BOE, 7 February 1986); International Agreement against the Seizure of Hostages (Article 2; BOE, 7 July 1984) or the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988 (Article 5; BOE, 24 April 1992). 7. J.L. Rodriguez-Villasante Prieto detects an even greater vacuum in "Delitos contra la Comunidad Intemacional" Seguridad Nacional-Seguridad Internacional.. VIII Seminario "Duque de Ahumada" (7, 8 8 and 9 May 1996), Ministerio del Interior, Direcci6n General de la Guardia CiviUUnivetsidad Nacional de Educaci6n a Distancia, pp. 55-107, p. 56. Internationalist doctrine has also found vacuums or, if preferred, matters that should be defined. In this context, there are the known successive drafts of the international code carried out privately by M.C. Bassiouni. It is enough to see an index, for example, that which has been translated into Spanish (Derecho Penal International. Proyecto de Codigo Penal Internacional, translation, notes and annex by J.L. de la Cuesta Arzamendi, Tecnos, Madrid, 1989) in order to get an idea of the series of conducts that might or should be classified in domestic legal systems: war crimes, unlawful use of weapons, crimes against humanity, seizure of hostages, unlawful use of postal services, offences concerning drugs, theft of national and archeological treasures, corruption of foreign civil servants, interference with submarine cables, international traffic of obscene publications, op. cit. pp. 101-104 and following. Another similar work by the same author is A Draft International Code and Draft Statute for an International Tribunal, Martinus Nijhoff Publishers, Dordrecht, 1987.
8. As we know, legal imperatives ("latest scruples of positivist legalism" in the words of A. Quintano Ripolles, Tmtado de Derecho Penal lnternacional e Internacional Penal, Tomo 11, Consejo Superior de Imestigaciones Cientificas/Instituto Francisco de Vitoda, Madrid, 1957, p. 613) established that the classification of these new international offences be formally related to that of the other two categories of international acts following the Second World War: crimes against peace and war crimes. In this way, only offences committed since 1 September 1939 could be considered crimes against mankind in compliance with the Statute of London and, therefore, fall within the jurisdiction of the Nuremberg Tribunal. On the requirement of such connection, the commentades of H.D. de Vabres may be seen, "Le proc6s de Nuremberg devant les principes modernes du droit penal international" in R. des C., t. 76 (1950-1), 433-605, specially pp. 515-522; A. Miaja de la Muela "El genocidio, delito internacional" in REDI, vol. IV ( 1951-2), 363-308, pp. 384-385; A. Quintano Ripolles, Tratado... ap.cit., t. II, pp. 607-623 9. See its Article 5. 10. See its Article 3. 11. See Report of the ILC on the work of its forty-eighth session... cit., Articles 17-18 and Commentaries. 12. In this respect, it would suffice to compare the "actions or persecutions" included in Article 6 of the Statute of London of 1948 with those of Article 18 of the Draft Code of ILC. This second text containing a very much greater series of conducts, largely reflects no doubt, customary law on this question and as far as certain acts are concerned, it enables one to see at least in what direction the States opinio iuris is going. In this provision it is assumed that any of the following actions constitute crimes against humanity when they are committed systematically or on a large scale and instigated or directed by a government, political organization or group: "a) murder; b) extermination; c) torture; d) enslavement; e) persecution on political, racial, religious or ethnical grounds; f) institutionalized discrimination on racial, ethnic or
religious grounds involving the violation of fundamental human rights and freedoms and resulting in seroiusly disadvantaging a part of the population; g) arbitrary deportation or forcible transfer of population; h) arbitrary imprisonment i) forcible disappearance of persons; rape, enforced prostitution and other forms of sexual abuse; k) other inhumane acts which seriously impair physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm"; Report of the ILC on the work of its forty-eighth session... cit., Supplement No. 10 (A/51/10), Article 18. 13. Apart from procedural disadvantages frequently generated by the application of the principle of universal jurisdiction (which basis of competence, let it not be forgotten, requires that the State that is ready to exercise it should count on the presence of the presumed author of the offence in its territory), the problems that may arise as to what is substantive and what is procedural should not be overlooked either, in these cases. Thus, if our Code included the specific classification of forcible disappearance or the generic specification of crimes against peace with, consequently, the corresponding provision of competence in Article 23.4 of the Organic Law on Judicial Power (LOPJ) it would no longer be necessary to resort to being obliged to find a comer for disappearances in the classification of genocide offences. In this context, see paragraph III.B.2 of this paper. 14. A variation of the sentence may not be avoided from State to State, which no doubt introduces a new factor of discrimination as the principle of universal jurisdiction now enters into it, owing to existing differences between penalties established in the various domestic systems. From another aspect, but still related to the same idea of establishing a specific and appropriate penalty for this type of offence, it may
perhaps be argued that the impossibility of reaching an agreement on the penalty/ies to be imposed or a margin for it/them at the moment of drawing up the Convention for the Prevention and Punishment of the Crime of Genocide of 1948 determined its absence from all later legal-international instruments of a penal characteristic, that do no more in these cases, than refer to the domestic systems (in spite ofthe fact that one may mention the example of an Agreement which, when it was being drawn up, contained another attempt to establish a penalty from the same international position: the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft -see the Italian and Austrian proposals in this context, in ICAO: Doc. 8979- LC/165-2 1970, p. 116-; doubtless the failure of this formula once again conditioned the lack of penalties in later regulatory texts). 15. As we know, the principle of universality may only be applied in respect of truly international offences whose main feature is that they seriously affect essential values of the international community in such a way that they are understood to be directed against it as a whole, but at the same time against each one of the States that are included in it. Therefore, this principle determines the jurisdiction according to the place where the assumed delinquent is to be found following commission of the offence, independently from the convergence, or not, of any other link This basis for establishing competence was set down in 1985 in Article 23.4 of the Organic Law of Judicial Power (LOPJ). 16. In any case, it should be pointed out that this consideration of genocide as a crime against humanity is not a unanimous one. In spite of the fact that the creator of the term himself and of the concept of genocide seemed to understand it so implicitly (see R. Lemkin, "Le crime de genocide", R.D.L, u. 4 (octobre-decembre 1946), pp. 213-223, specially pp. 216-220) and that this is really the most widely accepted criterion in the doctrine (see ad.ex. H.D. de Vabres, toe. cit., p 505 or M. Perez Gonzalez, "La responsabilidad internacional de sujetos distintos de los Estados", in M. Diez de Velasco (Dir.), Instituciones de Derecho Internacional Publico, 11the ed., Tecnos, Madrid, 1997, pp. 707-721, p. 713), there is no dearth of express negators of this concept (thus A. Miaja de la Muela, loc. cit., p. 386).
17. According to the text of the abolished Article 139, the offence of piracy committed against Spaniards or citizens of another State that was not at war with our country was sentenced to long-term imprisonment (reclusidn mayor). In the event of an offence committed against non-belligerent citizens of another State at war with Spain, the punishment was a long prison sentence (prisi6n mayor). Likewise, the rank of "chief, captain or head pirate", as well as seizure by boarding or by fire, or if the offence were accompanied by assassination, homicide, certain types of injury, or indecent assault, and if a person were left with no means of survival, were all considered classifications in Article 139, for purposes of the penalty (which was considerably greater). 18. Article 139, last paragraph. 19. Thus on one hand, Article 138 made a distinction between piracy against Spaniards or against foreigners of a state not at war with Spain and non-belligerent citizens of another State at war with our country, with a lessening of the penalty in the latter case. As may be seen, these distinctions, apart from being absurd, could present serious interpretation, problems in cases where the ship or aircraft seized carried non-belligerent citizens and foreigners at the same time; cf. J.M. Rodriguez Devesa and A. Serrano Gomez, Derecho Penal Espaiiol: parte especial, 13th ed., Dykinson, Madrid, 1995, p. 672. On the other hand, the incoherence resulting from not including deeds of piracy against belligerant citizens from a country at war with Spain, who would be atypical, had also been censured while also criticizing the vacuum existing concerning the stateless (id.). 20. Vid. among others, F. Munoz Conde, op. cit., pp. 593 and 594, and J.M. Rodriguez Devesa and A. Serrano G6mez, op. cit., pp. 669-670.
21. Act 209/1964, of 24 December; BOE, 28 December 1964. 22. BOE, 14 January 1964. 23. Among others, this law considered as acts of piracy "depredation and violence against people at sea or &om the sea by individuals of a ship's crew that has placed itself beyond the jurisdiction of any State (...)" (Article 9); "individuals of a ship's crew and persons on board that ship who provide means for persons from another ship to seize the former with violence, or to pillage or injure persons found on board" (Article 10.2), and "similar conduct committed at sea or from the sea against aircraft or similar apparatus" (Article 11). 24. Act 27/1992 dated 24 November; BOE, 12 December 1992. 25. There has also been criticism because the new Act does not establish any transitory provision regarding the sentences passed by the previous Act or pending cases; which, on one hand, will prevent compliance of convictions already imposed and, on the other, will mean that pending cases may be shelved. It is a matter of new problems that have been attributed to a in lapsus del legislador, sin duda debido a la ligereza con que se elaboran las normas"; J.M. Rodriquez Devesa and A. Serrano G6mez, op. cit., pp. 669-670.
26. Prior to the latest reform, the Chapter with the same heading "Offences against lus Gentium", included attacks on internationally protected persons (previous Articles 136 and 137), as well as the genocide offence (previous Article 137 bis). An important group of experts had already centred its attention on the evident lack of adaptation between the designation of the chapter and the contents before entry into force of Organic Law 10/1995. These criticistns still persist with more reason if possible, for half of the chapter has been emptied of its contents and the legislator still insists on that previous imbalance, vid., underlining that lack of correspondence and proposing the wording for this chapter "Offences against Internationally Protected Persons", the commentary of J.L. Rodriguez-Villasante y Prieto, "Delitos contra ..." in Seguridad Nacional-Seguridad Internacional, loc. cit., p. 57. 27. For cormboration and for a review of the more outstanding legal antecedents in our own legal system and in comparative legislation, see A. Quintano Ripolles, "Atentados contra la soberania estatal extranjera y sus organos", Tratado de Derecho Penal Internacional e Internacional Penal, Tomo I, Consejo Superior de Investigaciones Cientificas/Instituto Francisco de Vitoria, Madrid, 1955, pp. 283-296.
28. Vid. BOE, 7 February 1986. 29. cf. T.S. Vives, in T.S. Vives, J. Boix Reig, E. Orts Berenger, J.C. Carbonell Mateu and J.L. Gonzalez Cussac, Derecho Penal. Parte Especial, Tuant lo Blanch, Valencia, 1993, p. 43.
30. In this sense, one may see the criticism of Vives by Rodríguez-Villasante, in loc. cit., pp. 59 and 60. 31. Rodriguez-Villasante had already recently pointed out this possiblity when he expressly referred to this considerable extension of the definition of victim of the offence, insinuating and, doubtless guessing, that the latter had been "unsuspected for the Spanish legislator", loc. cit. p. 57 and also particularly pp. 60-3. 32. Article 1 of the Convention establishes the definitions of persons protected who come within the filed of application rationepersonae. Thus, for purposes of the treaty text: a) "United Nations personnel" is taken to mean: i) persons engaged or deployed by the Secretary- General of the United Nations as members of the military, police or civilian components of a United Nations operation; ii) Other officials and experts on mission of the United Nations or its specialized agencies or the International Atomic Energy Organization (IAEO) who are present in an official capacity in the area where a UN operation is being conducted. b) "Associated personnel" means: i) persons assigned by a Government or by an intergwemmental organization with the agreement of the competent organ of the United Nations; ii) persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the International Atomic Energy Agency; iii) Persons deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary General of the United Nations or with a specialized agency or with the International Atomic Agency.
33. V'1d. Article 19 of the Draft in Report ojthe ILC on the work ojits jorty-eighth session... cit., Article 19 and Commentary. The ILC expresses itself strongly in its commentary on this provision. Specifically, for our purposes the following is significant: "(...) attacks against such personnel are in effect directed against the international community established for the purpose of maintaining international peace and security by means of collective security measures taken to prevent and remove threats to the peace. The international community has a special responsibility to ensure the effective prosecution and punishment of the individuals who are responsible for criminal attacks against United Nations and associated personnel which often occur in situations in which the national law-enforcement or criminal justice system is not fully functional or capable of responding to the crimes.... In terms of the broader negative implications of such attacks, there may be an increasing hesitancy or unwillingness on the part of individuals to participate in United Nations operations and on the part of Member States to make qualified personnel available to the Organization for such operations` ; id. Commentary on Article 19. 34. Vid. paragraph 1 ofArticle 19 and the ILC's commentary on the subject, in loc. cit. 35. Article 605 first paragraph, where the punishment involves 20-25 years imprisonment and, if two or more aggravating circumstances coincide, 25-30 years. 36. Id., second paragraph, with a prison sentence of 15-20 years if the injury were one of those defined in Article 149 (i. e., which might cause "the loss or unserviceableness of an organ or main member, of one of the senses, or impotence, sterility, grave deformity or grave somatic or psychic illness", and of 4 to 8 years in the case of any other injury. 37. Article 605, first paragraph, imposing 6 months to 3 years imprisonment.
38. Thus the principle of inviolability must be applied to the person of the diplomatic agent who may never be the object of any measure of detention or arrest and who enjoys absolute immunity from jurisdiction in the receiver State (Vid. Articles 29 and 31 of the Vienna Convention on Diplomatic Relations, dated 18 April 1961; BOE, 24 January 1968). Consular officers may not be arrested or remanded in custody except when it concerns a serious offence and only by decision of the appropriate legal authority. And, excepting the latter, they may only be arrested or subjected to some other manner of limitation of their personal freedom by virtue of a firm sentence. Furthermore, civil servants and consular officers have immunity with respect to the intervention of the legal and administrative authoriteies of the receiver State for acts carried out in the performance of their duties (cf. Article 41, par. 1 and 2, and Article 43, par. 1 of the Vienna Convention on Consular Relations, dated 24 April 1963; BOE, 6 March 1970). As for the immunity of members of special missions, they are defined in Articles 29 and 31 (for representatives of States and diplomatic staff with similar recognition to that established in the 1961 Convention) and in Articles 36, 37 and 39 (for administrative and technical staff, service employees and persons who are part of mission members' families, respectively) of the Convention of 8 December 1969. Inmmunity guaranteed to members of permanent missions to International Organizations is included in the Vienna Convention on the Representation of States in the Relations with International Organizations of a Universal Character, concluded on 14 March 1975 (Articles 28, 30 and 36), as well as in the various existing bilateral treaties on these matters. For its part, the Convention on the Safety of UN and Associated Personnel obliges receiver States in Article 4 to sign agreements with the UN as soon as possible, concerning the statute of operations to be carried out and the staff who participates in them. Agreeements that must include "provisions for the prerogatives and immunity of members of the military and of the police in the operation". 39. Just as J.M. Tamarit Sumalla maintains very sensibly, when he points out that "a pesar que el sujeto activo aparece contemplado de modo indiferenciado conforme a la formula usual 'el que', cabe entender que tan solo podran ser autores del delito los funcionarios, puesto que la violacion de la inmunidad supone una accion del Estado receptor contra el Estado representado por la persona internacionalmente protegida (...). En lo que respecta a la detencion, no se produce concurso de delitos con el tipo de detenci6n ilegal practicado por autoridad o funcionario, ya que el art. 530 se refiere a las garantias 'constitucionales y legales', entre las que no se encuentra la inviolabilidad diplomatica, reconocida a traves de normas de Derecho internacional publico"; "Delitos contra la Comunidad international", in Comentarias a la Parte Especial del Derecho Penal, G. Quintero Olivares (Dir.) and J.M. Valle Muiiiz (Coord.), Aranzadi Editorial, Pamplona, 1996, pp. 1633 and following, p. 1637.
40. It would be impossible to give here even an approximate number of the attacks upon the freedom ofinternationallyprotected persons. Merely as an indication, one may see the many cases during the 70s up until the middle of the 80s mentioned in C.E. Baumann, Diplomatic Kidnappings, Martinus Nijhoff Publishers, Dordrecht, 1973, id., "Diplomatic Kidnappings", in B.M. Jenkins (Ed.), Terrorism and Personal Protection, Butterworth Publishers, USA, 1985, 23-45; or in R Przetacldk, Protection of Officials of Foreign States according to International Law, Martinus Nijhoff Publishers, The Hague, 1983.
41. As a result, we consider that the nuance Rodriguez Devesa and Serrano Gomez added to their commentary on paragraph three of the foregoing Article 137 is at least incomplete and not at all realistic, when they state that the expression '"offence committed against persons" should be interpreted to the exclusion of the offences of parricide , murder, homicide and injury; in particular, when they specify, without even alluding to the offences of unlawful detention, kidnapping or terrorism, that "restan muy pocas figuras que, por si fuera poco, son de dudosa aplicacion: auxilio o induccion al suicidio, infanticidio o aborto, por supuesto sin consentimiento de la embarazada, si la persona es de sexo femenino"; op .cit., p. 655. 42. However, we should point to J.M. Tamarit Sumalla's surprise, shared by us, who in turn underlines the "ausencia de una referencia expresa a los atentados contra la libertad, a los que alude el art. 2.1,a) del citado Convenio (...), con una mention explícita al secuestro". Likewise, in the writer's opinion, this omission does not entail the slightest obstacle for considering that among the offences contemplated in paragraph three of Article 605, offences against freedom may be included; cf. "Offences against...", Comentarios..., op.cit., p. 1635. 43. Vid. also, the commentary on the subject by ILC, Supplement No. 10 (AlSJllO)..., loc. cit., Article 19.
44. A. Quintano Ripoll6s, referring to previous penal classifications, already stressed "el plus especifico de conocer la cualidad oficial del sujeto pasivo, sin lo cual tal delito no tiene razon alguna de ser"; op. cit., p. 286. Also in the words of J.M. Rodriguez Devesa and A. Serrano Gomez, "el dolo debe abarcar la condicion de Jefe de Estado o persona internacionalmente protegida de la victima"; op. cit., p. 654. In the same context, for E. Munoz Conde, "s6lo es posible la comisi6n dolosa, que debe abarcar la condici6n (...) de la victima. En caso de comision imprudente de estos hechos seran aplicables los articulos 142 y 152"; Derecho Penal..., Ed. 1996, op. cit., p. 654. Along the same lines, one may refer to 1.L. Rodriguez-Villasante Prieto's commentary, loc. cit., p. 60. 45. cf. F Munoz Conde, op .cit., p. 653.
46. Our country thus adapted its domestic legislation to the Convention for the Prevention and Punishment of the Crime of Genocide that it had just signed; vid. BOE, 8 February 1969. 47. A criticism of this conventional approach may be found in various studies; e.g. see G.A. Finch, "The Genocide Convention", AJIL, Vol. 43 (1949-4), 732-738, pp. 733-734; J.L. Kunz, "The UN Convention on Genocide", AJIG, Vol. 43, (1949-4), 737-746, p. 745. This treatment of the offence from a merely private and individual perspective was not able to avoid, what is more, the intervention of one of the famous reservations that gave rise to the ICJ's Report. Precisely, the matter concerning the reservation tabled by the Philippines on the intended penal immunity of the President of the Republic, may be seen in M. Diez de Velasco Vallejo's commentary in "El sexto dictamen del TIJ: Las reservas a la Convencion sobre el genocidio", REDI, vol. IV (1951-2), 1029-1089, pp. 1049-1052. 48. Establishing only the principle of territorial jurisdiction, at the same time as referring the affair to the international court whose jurisdiction would have been accepted by the parties, whose establishment is still being awaited since that time (cf. article 6 of the Convention).
49. It must be put on record that the 1948 Convention, as well as our Code, similar to other texts such as the latest work by the ILC, unlike the London Convention of 1948, conceives the classification of genocide exhaustively. 50. In this context, see J.L. Rodriguez-Villasante Prieto, "Delitos ..:', Seguridad Nacional-Seguridad Internacional..., loc. cit., pp. 67-68.
51. Even so, this is the place where other experts in this matter also see, in certain acts of displacement, a clear example of cultural genocide. This, for example, is the case of S. Glaser, who in view of Article 2, section 6 of the 1948 Convention (displacement by force of the children of one group to another group), declares that "(...) Abstraction faite de ce que le choix du cas susmentionne d'un genocide culturel (transfert force d'enfants ...) est fort arbitraire -en effet on ne voit pas une difference substantielle entre ce cas et, par exemple, le fait d'empecher la naissance para sterilisation ou avortement - le genocide culturel devrait etre admis dans son ensemble"; Droit international penal...., op. cit., pp. I 10-111. 1. 52. During the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide carried out by the Sixth Commission, several delegations proposed the incorporation of the cultural genocide category just as, in fact, it had been established in an initial treaty draft. Among others, Egypt, Pakistan and Venezuela were in favour. The United States of America and France were roundly against; cf. Document Seventeen (a), Sixth Committee. Legal Questions, Official Records ojthe Second Part. First Session of the General Assembly, Summary Record of Meetings 2 November-13 December 1946. As for the decision of not including cultural genocide in the draft Code of Offences against the Peace and Security of Mankind, refer to the explanation given by the ILC in its Report ojthe ILC on the work oj itsforty-eighth session... cit.,Article 17 and Commentary. That exclusion of a category of cultural genocide from the 1948 Convention already at that time gave rise to comments from the experts. It would certainly be interesting to look trough some of those texts, keeping in mind the events in various points of the planet, including our continent, that once again shocked the world. As one more than graphic example, leaving cultural genocide out was a largely justified option, according to Miaja de la Muela, owing to the enormous distance existing between action aimed at destroying cultural demonstrations and genocide strictly speaking. Whereas the latter always contitutes a common offence, so called cultural genocide has a marked political character. On the other hand, what is more, if for the former it would also be impossible to find absolving or extenuating circumstances, a supposed prevention of separatisms could still be invoqued for the latter; cf. A. Miaja de la Muela, "El genocidio, delito internacional", REDI, vol. IV (1951-2), 363-408, p. 378. Understandably, it is a question of opinion. Perhaps we should not forget either that the problems being discussed in this context have to do with the most intimate customs and traditions related to the different or multiple forms of human life.
53. It is true that when the 1948 International Convention was being drafted, the United States, United Kingdom and The Netherlands tried to include them rather insistently what is more. This came up against the express objection of countries like the ex-USSR, Poland, Egypt, Iran, Peru, Brazil and Uruguay who blocked that mwe. Various criteria were mentioned in order to oppose their inclusion. It ended in the foreseeable argument of the impossibility of intervening in the internal affairs of States and, fundamentally, in the presumed subjective and provisional character of these groups. We find the latter reasoning erroneous or only partially valid, insofar as religious groups have indeed been included, however, as capable of becoming
victims of the offence. A. Miaja de la Muela also appears to show his disapproval of the non-inclusion when he says that "desgraciadamente para sus miembros, los partidos politicos en peligro de exterminio fisico por el gobernante de signo opuesto, han tenido, antes de llegar a este trance, una actuaci6n que dificilmente pueden ocultar los que participaron en ella, y de la que queda constancia en ficheros, manifiestos, prensa, seguramente mejor definitoria de la filiaci6n at partido perseguido que los que puedan ser los caracteres somaticos que acrediten la pertenencia, en caso de persecuci6n de tipo racial, at grupo etnico en desgracia"; loc. cit. pp. 377-378. 54. It could be thought that in general other links tend to exist, in situations of this kind, apart from political affiliation. Thus for example, in the recent cases of genocide in Rwanda and Burundi, the systematic elimination of internal political opposition was at the same time related to a particular sector of the population, to be precise, to a minority ethnic group. Nevertheless, it is also worth noting how political ideology, in certain cases, constituted the real link in a group, whose members have been persecuted and many of them eliminated for belonging to it. If we come to the cases of compulsory disappearances of Spaniards in Latin America, the existence of the required intention would still have to be proved, i.e. of the total or partial destruction of the group. But even if that were the case, the principle of legality would turn the atypicalness of the political group as a possible victim of the offence into the cause of the certain non-application of the penal classification of genocide. However, the fact that the offences referred to cannot be included in that penal category -international and domestic- in no way diminishes their seriousness. That impossibility is due we think, only to insufficient adaptation, already mentioned, of the Spanish legal system to International Law, according to which those execrable deeds constitute, with not the slightest doubt, authentic crimes against humanity.
55. Where, as Tamarit Sumalla has stated most reasonably, it would only be possible to speak of, depending on the case, "the coercive imposition of crossbreeding", cf. op.cit., p. 15. 56. Tamarit Sumalla has a similar opinion, id. p. 15. 57. See section II.A above. 58. Which would be similar to what is being done in the Statutes of the International Tribunals for the former Yugoslavia (Article 5) and Rwanda (Article 3) and the ILC in its Draft Code. Thus, section j) of Article 18, that actually has the title "Crimes against Humanity", explicitly includes "rape, enforced prostitution and other forms of sexual abuse"; Report of the ILC on the work of its forty-eighth session... cit., Article 18 and Commentary.
59. Tamarit Sumalla's expression, in op. cit., p. 16. 60. J.L. Rodriguez-Villasante Prieto, "Delitos contra ..." in Seguridad Nacional-Seguridad International .... loc. cit., p. 70.
61. What is more, this is the generally followed option, either implicitly or explicitly, in Spanish law. In this context one may refer to the suggestive forms of argument by F. Muiioz Conde, Derecho penal ..., 1996, op .cit., pp. 657-658; Rodriguez-Villasante, loc. cit., pp. 68-71 and J.M. Tamarit Sumalia, op.cit., pp. 15-1642. 62. In this respect, Tamarit Sumalla indicates yet another problem of great practical interest: the degree of awareness required of the author of the deed regarding the fact that the regime, whose rehabilitation he is advocating, organize or protect that type of act, thinking fundamentally of adolescents who are not very conscious of these matters, who are recruited by organizations of a neo-Nazi type. A question which, as the writer says, may only be taken into consideration by the judge "mas que en el momento de proceder a la individualizacion de la pena, dentro del margen de arbitrio que le ofrece la norma, mas bien escaso atendiendo a la peculiaridad de este delito"; op. cit., pp. 1641-1642. 63. The words of Muiioz Conde appear convincing in this respect: "is the napalm bombing of Vietnamese villages by the American air force during the Vietnam war genocide? Is the systematic bombing of Palestinian refugee camps by Israeli aviation genocide? Does it mean that a communist may be accused of genocide for defending a communist theory of society or state, justifying the assassinations, the 'gulags' and the policy of extermination of some ethnic groups perpetrated by Stalin in Russia in mid- 20thc. can be classified as genocide?": Derecho Penal..., 1996, op. cit., pp. 657-658.
64. Article 1 of the four Geneva Conventions dated 12 August 1949, Article 1.1 of additional Protocol I to these Conventions dated 8 June 1977. 65. Articles 49 of Convention I dated 1949, 50 of Convention II, 129 of Convention III and 146 of Convention IV (first paragraph of all). It was not necessary to repeat this obligation in Protocol I given its additional characteristic as regards the four Conventions notwithstanding which this Protocol includes the duty of participant States to "repress grave infringements" (Article 86.1). On the other hand, the Conventions as well as Protocol I consolidate the possibility of incriminating and punishing the guilty of these acts by incorporating several clauses that in general correspond to the principle aut dedere aut iudicare (second paragraph of Articles 49 of Convention I, 50 of Convention II, 129 of Convention III and 146 of Convention IV; Article 88 of Protocol I). 66. BOE, 26 July 1989. 67. The text of this proposal, under the title "Propuesta de modificacion del ordenamiento penal espaiiol, como consecuencia de la ratificaci6n por Espana de los protocolos de 1977 adicionales a los Convenios de Ginebra de 1949", may be seen in Revista Espanola de Derecho Militar, n. 56/57 (July-December 1990/January-June 1991), pp. 693-845. The proposal was prepared by a commission of experts of the CEDIH chaired by M. Perez Gonzalez and consisting of J. Sanchez Del Rio y Sierra, J.L. Rodriguez-Villasante Prieto, F. Pignatelli Meca, F.J. Pulgarim de Miguel and M. Anton Ayllon.
68. BOE, 2 July 1985 (correction of errors in BOE, 4 November 1985). 69. In this context, see J.L. Rodriguez-Villasante y Prieto: "Delitos contra la comunidad internacional", in Seguridad nacional-Segurtdad internacional (VIII Seminario "Duque de Ahumada "..., loc. cit., pp. 73-74.
70. See "Propuesta de modificaci6n..." on this evolution, pp. 705-707. 71. BOE, 11 December 1985. 72. Preamble of the Military Code of 1985.
73. In this context see J.L. Fernandez Flores: "Delitos contra las leyes y usos de la guerra", in Comentarios al Cddigo Penal Militar (Coord. R. Blecua Fraga and J.L. Rodriguez-Villasante Prieto), Civitas, Madrid, 1988, pp. 815-819. 74. Before the Penal Code of 1995, there were no precedents for the regulation of offences against protected persons or property in the event of armed conflict in general legislation, excepting, perhaps, the 1928 Code, where Article 244 punished the conduct of those who, in times of war, did not respect the neutrality of ambulances, hospitals or hospital ships or aircraft, who did not help the wounded or the sick, or who prevented authorized charitable institutions from taking in the wounded, sick or prisoners. On the other hand, according to J.L. Rodriguez-Villasante Prieto (in "Propuesta de modificacion ...", p. 718 and in "Delitos contra la comunidad international...", loc. cut., pp. 85--86), some States have justified compliance with their international obligations arguing that the provisions corresponding to the special part of the Penal Code where various common offences are classified (murder, homicide, injury, torture, rape, unlawful detention, theft, larceny, damage, fire, fibel, omitting to give aid, coercion, among others), are sufficient; in spite of which the writer maintains that the problem of appropriate punishment for those war crimes would still exist, notwithstanding the great difficulty of subsuming all acts that constitute grave infringements of the 1949 Conventions and of the additional Protocols of 1977 in the common classifications of the Penal Code. 75. In the Code itself (Article 8). 76. Thus, J.L. Rodriguez-Villasante Prieto: "El Codigo Penal militar en el sistema penal espanol. Principio de especialidad y concurso de leyes" (pending publication in Cuadernas de Derecho Judicial, Consejo General del Poder Judicial, Madrid.
77. It would be useful to recall here that application of the death penalty established in military penal legislation exceptionally for certain offences committed in wartime (cf. Article I of the Constitution), has been abolished by virtue of Organic Law 11/1995, dated 27 November (BOE, 28 November 1995). 78. Article 244 of the 1928 Penal Code, Article 14 of the Military Penal Code in force. The Constitution itself uses the words "wartime" in Article IS in fine. 79. In this content, see 0. Casanwa y la Rosa, "El Derecho international humanitario en conflictos armados (I): objectivos militares, bienes de caricter civil, metodos y medios de combate", in Insdtuciones de Derecho intensacional publico (Dir. Manuel Diez de Velasco), 11th edition, Tecnos, Madrid, 1997, pp. 824-825 (Chap. XLIII).
80. "Propuesta de modificacion ..." loc. cit., p. 715. 81. Id. 82. Furthermore, as J Sanchez del Rio has also stated (loc. cit., p. 716), the use of the words "in the event of..." in the definition of different classifications, enables the inclusion of the special case of territorial occupation of areas belonging to an opponent when, once hostilities are over, that occupation is prolonged in time though there really is no further armed combat of any kind.
83. Article 803 defines protected persons according to the conventional texts to which it refers. The categories therein indicated do not constitute a closed list, for Item 6 of this Article establishes that "any other person being of that condition by virtue (...) of any other International Treaties signed by Spain" should be considered a protected person. This makes inclusion of categories such as those that fall into the field of application of the Convention mentioned, on safety of UN staff and of associated staff approved by Resolution 49/59 dated 9 December 1994 of the UNGA, easier in the future, once this Convention is in force internationally and for Spain. In this context, see J.L. Rodriguez-Villasante Prieto; "Delitos contra la comunidad internacional", in Seguridad nacional-Seguridad internacional... loc. cit., p. 91-92. 84. Thus, following the order of the corresponding precepts, attacks on life, integrity and survival of protected persons (Article 609) are described, as are the use of prohibited methods and means of war (Article 610), certain very serious infringements directed against civilians, prisoners of war and other categories of protected persons (Article 611), various grave violations of International Humanitarian Law (Article 612) and attacks against cultural property and, in general, against property of civilian characteristics (Article 613). 85. J.L. Rodriguez-Villasante Prieto: "Delitos contra la comunidad internacional", Seguridad nacional-Seguridad Internacional... loc. cit., pp. 112-113. Also, P. Pignatelli Meca in "Propuesta de modificacion ...", loc. cit., pp. 722-725.
86. The comentional basis is provided by Articles 50 of Convention 1, 51 of Convention II, 130 of Convention III, 147 of Convention IV and 11, 41 and 85 (paragraphs 2 and 3) of Protocol I.
87. Thus, the Agreement dated 10 April 1972 on the prohibition of development, production and storage of bacteriological weapons (biological) and toxic and on their destruction (BOE, 11 July 1979), the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 10 December 1976 (BOE, 22 December 1978), the Agreement dated 10 October 1980 on prohibitions or restrictions in the use of certain conventional weapons which might be considered as excessively noxious or of indiscriminate effects, and their corresponding Protocols (BOE, 29 December 1993), the Agreement dated 13 January 1993 on the prohibition of the development, production, storage and use of chemical weapons and on their destruction (BOE, 13 December 1996), etc. We should point out that when ratifying the two 1977 additional Protocols on 11 April 1989 (BOE, 26 July 1989), Spain made an interpretative declaration concerning the whole of Protocol I by virtue of which "it is understood that this Protocol, in its specific field, is applied exclusively to conventional weapons, apart from the provisions of International Law applicable to other types of weapons". In the specific case of nuclear weapons, implicit object of this interpretative declaration, we know that the ICJ, in its consultative opinion dated 8 July 1996 (LC.J., Reports 1996), considers the principles of International Humanitarian Law applicable to this type of weapon, (including that which prohibits causing superfluous evils or needlessly aggravating the suffering of opponents) (see paragraphs 74-84 of the consultative opinion) but, we think open to criticism, considers that it does not have sufficient elements for deciding with certainty that the use of such weapons would necessarily be contrary to the principles and rules of the Law applicable to armed conflicts in any circumstance (see paragraphs 90-97). 88. These two conditions, whose concurrence in a specific case could be verified if that were the case, on the basis of observations by international organizations for investigation of the facts, together with the element of intentionality ("conceived for causing or that it is with good reason foreseen that they will cause damages...") determine the serious nature of the infringement. This seriousness explains the severity of the punishment (10 to 15 years imprisonment, apart from the penalty for the results produced).
89. It would perhaps have been preferable in this case to use the term of "protected person" for the victim of the offence (cf. Article 85.4, g) of Protocol I), in order to include all the provisions regulated in the two Protocols (Article 75.4 of Protocol I, Article 6 of Protocol II). 90. It should be pointed out that, in general, the new Code considers as an aggravating circumstance of responsibility, committing the offence for racist, anti-Semitic or any other kind of discriminating reason concerning ideology, religion or belief of the victim, ethnic group, race or State to which he belongs, sex or sexual preference, illness or handicap (Article 22, 4); and Article 173 punishes the infliction of degrading treatment that seriously impairs the victim's moral integrity. 91. In this context, J.L. Rodtiguez-Villasante Prieto: "Delitos contra la comunidad internacional", Seguridad nacional-Seguridad intemacional...., loc. cit., p. 103; and also F. Pignatelli Meca in "Propuesta de modificaci6n ...", loc. cit., pp. 741-742, pointing out that this precept "se incrimina una serie de conductas entre las que no existe otro nexo comun de identidad que el de la pena con que puedan, en su caso, ser castigadas", adding that the heterogeneity of these acts (save for those described in 4, 5 and 6) "es absoluta, pues mientras en la normativa internacional humanitaria son consideradas como infracciones graves, ohas no pueden sino considerarse 'actos contrarios', ademas de que tienen por objeto la protecci6n de bienes diversos (la indemnidad juridica que se confiere a ciertos lugares o elementos, la inmunidad de ciertas personas, los derechos de algunas personas protegidas, el valor o significado de ciertos signs)".
92. Consequently, the appropriate classification for these violations if the destructive intention coincides, by application of the principle of specialty in the case of a coincidence of offences (Article 8, rule 1, of the Code), is genocide.
93. See IH.B of this paper. 94. However, we do not think that imprescriptibility should be included for the offences established in Chapter I of the same Section XXIV of the Code, i.e. the ones classified under the title of Offences against lus Gentium (vid. paragraph III.A of this paper). It would appear appropriate to indicate here that during the preparation of the New York Convention on the Prevention and Punishment of Offences against Internationally Protected Persons including diplomatic officials, it reached a point where they discussed if penal action resulting from the offences classified therein was not the object of prescription (this was how it appeared in the first Draft of Articles prepared by R. Kearney; vid. Article 5, Doc. A/CN.4/L.182, 13 n, Anuario de la Comisidn de Derecho Internacional, Vol. II, p. 218. This initial proposal had the support of two staunch defenders in the ILC: Sette Camara and Ushakov. For both, the insertion of a provision of this type was indispensable from the practical point of view, in order to prevent the authors of offences from avoiding a trial, given the transnational and international elements often present in the commission of these offences and also owing to the pernicious effect that such acts always have on the maintenance of good international relations (cf. id. p. 237, paragraphs 43-47 and paragraph 52, respectively). Nevertheless, the solution finally adopted by the Sixth Commission as to remove that clause, which decision we consider well founded. Such a provision (apart from implying interference with a matter pertaining to the policy of each State which, without a doubt would prevent a large amount of support for the Agreement) could enclose, from a technical perspective, a marked elitist character. Certainly, even while recognizing the unquestionable essential and vital characteristic of functions that this category of persons carry out in the maintaining and upholding friendly relations between States and in keeping international peace and security (as the ICJ wanted to reaffirm in various passages of its sentence on the affair of US Diplomatic arul Consular Staffin Teheran (vid. I.C.J, Reports 1980, for example, pp. 30-31, paragraphs 61-62; p. 40, paragraph 86; p. 42, paragraph 91), it cannot be ignored that practical reality has shown us how the incidents that have affected this type of person have not always endangered or deteriorated the relations between the States in question; and the opposite: there have been many occasions
on which offences against the freedom or life of internationally unprotected persons have sparked off tremendous international crises between the States involved (remember the Achille Lauro Case, as well as Lockerbie). On the other hand, we must keep in mind that not all offences classified in the New York Convention and, consequently, also in the 1995 Penal Code are of the same gravity and, therefore, subject to the same degree of penalty and of correlative terms of prescription. It is not only the commission of a homicide or another type of attack against the physical integrity of these persons that is contemplated, but also, for example an imperfect form of offence against the means of transport of such persons. Therefore, a generalized imposition of exclusion of the prescription with respect to any offence aimed, directly or indirectly against persons worthy of special protection might indicate the use of an excessive technique. 95. BOE, 2 June 1994.