Comment to Article 156. Planning, preparation, unleashing or waging aggressive war of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Planning, preparing, or launching an aggressive war —
are punishable by imprisonment for a term of seven to twelve years.
2. Waging aggressive war —
is punishable by imprisonment for a term of ten to twenty years, or by death penalty or life imprisonment.
The public danger of the crime in question lies in the fact that it undermines the peaceful coexistence of States, as it is aimed at conquering foreign territory and subjugating citizens of other States.
The immediate object of the crime under consideration is peace and peaceful coexistence between peoples.
Peace in international law is interpreted as relations between peoples and States based on conducting foreign policy by nonviolent means and the absence of organized armed struggle between States.
Peaceful coexistence is understood as a type of relations between States that presuppose the renunciation of war, the use of force or the threat of force as a means of resolving disputed issues, resolving them through negotiations; non–interference in internal affairs and taking into account each other's legitimate interests; the right of people to make free socio-political choices; strict respect for the sovereignty of States; cooperation based on full equality and mutual benefit; conscientious fulfillment of obligations arising from the norms of international law and international treaties.
The objective side of the crime under consideration is formed by three types of socially dangerous actions: a) planning an aggressive war; b) its preparation and c) its unleashing.
War is understood as an organized armed struggle between states, nations (peoples), and social groups. In war, the armed forces are used as the main and decisive means, as well as political, ideological and economic means of struggle.
Aggression (translated from Latin as attack) is an illegal, from the point of view of international law, the use of force by one State against another, especially an armed attack on another State with the aim of seizing its territory, eliminating independence, changing the political or social order.
The concept of aggression (aggressive war) is defined in the decisions of the UN General Assembly, in particular in special Resolution 3314 of December 14, 1974. Aggression is defined as "the use of armed force of a State against the sovereignty, territorial integrity or political independence of another State or in any other way incompatible with the Charter of the United Nations."
When determining the aggressor, the sign of primacy (or initiative) is used as a basis committing an act of aggression. Planning an aggressive war means the strategic and/or tactical development of plans for unleashing and/or waging this war (for example, choosing a victim country, determining the timing and scope of aggressive military operations, etc.).
The preparation of an aggressive war is recognized as actions that pursue the goal of promising and successfully ensuring appropriate plans for unleashing or waging such a war (increasing the production of military equipment, increasing the number of armed units, creating reserves of food and fuel, intensifying intelligence activities about the enemy, conducting staff exercises in conditions close to a military situation, etc.).
The outbreak of an aggressive war should be understood as the actual beginning of the war itself, the implementation of an act of aggression, which can manifest itself in various forms. Typical of them, according to the General Assembly, are: invasion or attack by the armed forces of one State (aggressor) on the territory of another State (victim); attack by the armed forces of one State (aggressor) on the land, sea or air forces or fleets of another State (victim); the use of the armed forces of one State (aggressor) located on the territory of another State in violation of the terms of the agreement on their stay; the provision of territory by one State to another State for use for the purposes of aggression, etc.
The crime is considered completed at the time of at least one of these actions.
The subjective side of this crime is characterized by direct intent. The motive for this crime may be careerist motives, considerations of strengthening one's authority, misinterpreted interests of the state or society, etc.
The subject of the crime in question may be persons who, as a rule, hold senior government positions in public service bodies, in the Armed Forces of the Republic of Kazakhstan or executive bodies whose competence includes resolving issues of war and peace.
In Part 2 of Article 156 of the Criminal Code of the Republic of Kazakhstan, the legislator provides for the qualified composition of this act, which is characterized by the fourth, most dangerous stage of aggressive warfare - its conduct.
Waging is the commission of actions to continue an aggressive war, which involves large-scale aggression against another State. Waging is a continuation of aggressive war.
The crime in question is a continuing one, which is characterized by the continuous implementation of the composition of this criminal act. The crime begins from the moment the criminal act is committed and ends as a result of the action of the perpetrator himself, aimed at ending the crime (ending the act of aggression or conducting combat operations), or the occurrence of events preventing the commission of the crime (for example, the complete defeat of the aggressor).
The composition of the crime is formal. The crime is considered completed from the moment of the commission of the actions specified in the disposition of the criminal law norm.
Prisoners of war, military personnel and other participants in the war for fighting on the battlefield, for direct participation in military operations, cannot be criminally liable under Part 2 of Article 156 of the Criminal Code, since they are not the subjects of this crime. They are also not liable on the basis of Article 37 of the Criminal Code, according to which it is not considered a crime to harm interests protected by criminal laws by a person acting in compliance with an order or instruction binding on him. However, if a prisoner of war, as well as a serviceman, took part in the killings and torture of civilians, committed other violations of the laws and customs of warfare, he is subject to criminal liability, but only under Article 159 of the Criminal Code.
The crime provided for in Part 1 of Article 156 of the Criminal Code of the Republic of Kazakhstan refers to serious crimes.
The crime provided for in Part 2 of Article 156 of the Criminal Code of the Republic of Kazakhstan is considered a particularly serious crime.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
