Commentary on Article 159. Use of Prohibited Means and Methods of Warfare of the Criminal Code of the Republic of Kazakhstan
1. Cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, plundering of national property in occupied territory, and the use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan —
shall be punishable by deprivation of liberty for a term of up to twelve years.
2. The use of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan —
shall be punishable by deprivation of liberty for a term of ten to twenty years, or by the death penalty, or life imprisonment.
The public danger of this crime lies in the fact that waging war using prohibited means and methods is capable of turning prosperous cities and villages into ruins, picturesque landscapes into deserts, and the population of an enslaved country into heaps of corpses. Based on these considerations, the world community came to the inevitable conclusion that it was necessary to prohibit the use of the most cruel, senseless, inhumane and destructive means and methods of warfare.
The immediate object of this crime is the social relations ensuring the conscientious fulfilment of international obligations with regard to the use of means and methods of conducting military operations.
Certain forms of this crime are characterized by the presence of a subject matter of the crime, which includes national property, civilian objects, movable and immovable property belonging to another person.
National property represents a collection of material carriers of the spiritual values of a particular people. The 1954 International Convention for the Protection of Cultural Property in the Event of Armed Conflict classifies the following as such: monuments of architecture, art or history, works of art, manuscripts, scientific collections of books and archival materials, museums, major libraries, etc.
The objective aspect of this crime is characterized by the commission of any of the actions listed in the law:
- cruel treatment of prisoners of war or the civilian population;
- deportation of the civilian population;
- plundering of national property in occupied territory;
- the use in an armed conflict of means and methods prohibited by a treaty of the Republic of Kazakhstan.
The regime governing prisoners of war is primarily determined by the 1949 Geneva Convention relative to the Treatment of Prisoners of War, according to which prisoners of war must be treated humanely. None of them may be subjected to physical mutilation or medical experiments. Discrimination against prisoners of war on the grounds of race, colour, religion or social origin is prohibited.
International law establishes the rule that the civilian population not participating in a war must enjoy immunity from attack. When conducting operations, the belligerent parties must constantly take care to spare civilian objects (dwellings, structures, means of transport, shelters, hospitals, etc.); food supplies, the areas where they are produced, as well as sources of water. With regard to the civilian population of occupied territory, the following are prohibited: violence against life, health, physical or mental well-being, in particular murder; torture of all kinds; corporal punishment; mutilation; outrages upon human dignity, in particular humiliating or degrading treatment; coercion into prostitution or indecent assault in any form; taking of hostages; collective punishment; and threats to commit any of the aforementioned acts (Additional Protocol of 1977 to the Geneva Conventions of 1949 for the Protection of War Victims).
Deportation of the civilian population is the forcible removal (expulsion) of that population from the territory it occupies.
Article 49 of the Convention relative to the Protection of Civilian Persons in Time of War states that, regardless of the reasons, the forcible transfer and deportation of such a population from occupied territory to the territory of the occupying Power or to the territory of any other state, whether occupied or not, are prohibited. However, at the same time, the total or partial evacuation of the population of any occupied area is permitted if the security of that population or particularly imperative military reasons so demand. As stated in the aforementioned Convention, evacuees may be moved only into the interior of the occupied territory, except in cases where this is practically impossible.
Plundering of national property in occupied territory means its appropriation by any means, its conversion into the property of the occupying party, and the removal of property from the occupied territory.
In accordance with the 1954 International Convention for the Protection of Cultural Property, cultural property includes: monuments of architecture, art or history, works of art, manuscripts, scientific collections of books and archival materials, museums, major libraries, etc. The protection of the aforementioned property includes its safeguarding and respect. The belligerent parties are obliged to refrain from any hostile act directed against such property. Any acts of vandalism against it, as well as the plundering of cultural property located in the territory of another country, are prohibited.
The prohibited means of warfare include, first and foremost, the use of weapons of mass destruction. Certain types of conventional weapons may also be prohibited.
In 1980, a special Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects was adopted. The protocols annexed to this Convention prohibited the use of any weapon that injures by means of fragments which are undetectable in the human body by X-rays, and also restricted the use of certain types of land mines, booby-traps and certain types of incendiary weapons.
Prohibited methods of warfare involve certain ways of conducting war that are prohibited by international law. Thus, in accordance with Additional Protocol No. 1 of 1977 to the Geneva Conventions of 1949 for the Protection of War Victims, it is prohibited to give an order to belligerent parties to «leave no one alive, thereby threatening the enemy, or to conduct military operations on such a basis». It is also prohibited to unlawfully use the distinctive emblems of the Red Cross and the United Nations, as well as the flags, emblems and uniforms of neutral countries or states not involved in the conflict.
In accordance with the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the use in armed conflicts of any means capable of causing earthquakes, tsunamis, disruption of the ecological balance of any area, changes in weather elements, climate, and the condition of the ozone layer and ionosphere is prohibited.
These norms and principles also apply to armed conflicts occurring within the territory of a single state, that is, to its internal armed conflicts, as expressly stated in Additional Protocol No. 2 of 1977 to the Geneva Conventions of 1949 for the Protection of War Victims.
International law has, in essence, abandoned the traditional term «law of war» and adopted the term «law of armed conflicts» (or «international humanitarian law applicable in situations of armed conflict»).
The subjective aspect of this crime is characterized by direct intent, since the perpetrator is aware that he or she is using prohibited means and methods of warfare in an armed conflict in the form of cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, etc., and wishes to commit such acts.
The subject of the crime is a sane individual who has attained the age of 16 years.
Part 2 of the commented article provides for liability for the use of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan. Biological and chemical weapons are classified as weapons of mass destruction whose use is prohibited (Article 158 of the Criminal Code of the Republic of Kazakhstan provides the definition of weapons of mass destruction).
Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan by BORCHASHVILI I.Sh., Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007
Date of adoption of the act: 02.08.2007
Place of adoption: NONE
Authority that adopted the act: 180000000000
Territorial scope: 100000000000
Registration number of the regulatory legal act assigned by the rule-making authority: 167
Status of the act: new
Area of legal relations: 028000000000
Form of the act: COMMENTARY
Legal force: 1900
Language of the act: Russian
Criminal Code, Commentaries on the Criminal Code, Regulatory Resolution of the Supreme Court, Criminal Legislation, Regulatory Legal Acts of the Republic of Kazakhstan
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