Commentary on Article 160. Planning, Preparation, Initiation or Waging of a War of Aggression of the Criminal Code of the Republic of Kazakhstan
1. Planning or preparation for a war of aggression shall be punishable by imprisonment for a term of ten to fifteen years.
2. Initiating or waging a war of aggression shall be punishable by imprisonment for a term of fifteen to twenty years, or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan, or by the death penalty.
A number of international legal instruments (the Charters of the Nuremberg and Tokyo Military Tribunals, the Resolution of the United Nations General Assembly of December 11, 1946, the UN Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States of October 24, 1970, and others) contain the legal classification of the planning, preparation, initiation or waging of a war of aggression as the gravest international crime.
The first multilateral instrument prohibiting aggression and declaring it unlawful was the 1928 Paris Pact, which established an international legal obligation on States to renounce war as an instrument of national policy.
The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, adopted by UN General Assembly Resolution 2625 (XXV) of October 24, 1970, contains the following provision: “States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”
The Declaration on the Right of Peoples to Peace, adopted by UN General Assembly Resolution 39/11 of November 12, 1984, proclaims: “The peoples of our planet have a sacred right to peace”; “the preservation of the right of peoples to peace and the promotion of its implementation constitute one of the fundamental obligations of every State.”
As early as 1923, aggressive war was declared an international crime by the League of Nations.
On March 20, 1992, the Commonwealth of Independent States adopted the Declaration on the Non-Use of Force or the Threat of Force in Relations between the States Members of the CIS.
The social danger of the crime under consideration lies in the fact that it undermines the peaceful coexistence of States and peoples, causes enormous human losses and immense economic damage, leads to the loss of cultural and historical values, and negatively affects the destinies of States and peoples.
The object of the crime under consideration is peace and peaceful coexistence between States and peoples.
Additional objects may include life, health, property, etc. (everything that may suffer as a result of military operations).
In international law, peace is interpreted as a state (situation) characterized by the absence of hostility, open political disputes between States, war and military (armed) conflicts.
Peaceful coexistence is understood as a type of relations between States that presupposes renunciation of war and of the use of force or the threat of force as a means of resolving disputed issues; their settlement by peaceful means on the basis of the UN Charter; non-interference in internal affairs and consideration of each other's legitimate interests; the right of peoples to make a free socio-political choice; strict respect for the sovereignty of States; cooperation based on full equality and mutual benefit; and good-faith fulfilment of obligations arising from the norms of international law and international treaties.
Article 8 of the Constitution of the Republic of Kazakhstan states: “The Republic of Kazakhstan respects the principles and norms of international law, pursues a policy of cooperation and good-neighbourly relations between States, their equality and non-interference in each other's internal affairs, peaceful settlement of international disputes, and renounces the first use of armed force.”
The objective element of this crime is characterized by alternative actions taking four possible forms (continuing and ongoing offences):
planning a war of aggression (Part 1);
preparation for a war of aggression (Part 1);
initiating a war of aggression (Part 2);
waging a war of aggression (Part 2).
The commission of any one of the specified actions is sufficient to establish that the crime has been completed.
War is a socio-political phenomenon associated with a change in relations between States, peoples and social groups, involving a transition to the use of armed violence to achieve political, economic and other objectives (the Military Doctrine of the Republic of Kazakhstan, approved by Decree of the President of the Republic of Kazakhstan dated September 27, 2017).
War is a conflict between political entities (States, tribes, political groups, etc.) occurring in the form of hostilities between their armed forces. According to the formulation of Carl von Clausewitz (1780–1831), “war is the continuation of politics by other means” (German: Vom Kriege — a treatise on the art of war). In this sense, war is organized armed violence aimed at achieving political objectives.
According to UN General Assembly Resolution 3314 (XXIX) of December 14, 1974, aggression (from Latin aggressio — attack) is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. The document contains a note concerning the interpretation of the term “State”, the use of which does not prejudge the question of recognition of a State or the question of whether a State is a Member of the United Nations.
Eight articles of the Resolution are devoted specifically to the definition of aggression. This definition includes: a) the general definition of aggression (Article 1); b) a list of actions that are to be classified as acts of aggression (Articles 3 and 4); c) an objective criterion constituting prima facie evidence of an act of aggression (Article 2); d) clarifications necessary for a complete definition of the concept (Articles 5, 6, 7 and 8). Only the combination of all the specified elements constitutes the concept of aggression as an integral category.
As is evident from the definition, aggression is regarded as a synonym for armed intervention (interference). Other forms of intervention (economic, ideological, etc.) do not fall within the concept of aggression. There is no international instrument containing a clear formulation of economic, ideological or information aggression.
The above-mentioned UN General Assembly Resolution provides an illustrative list of acts of aggression. Acts of aggression are generally divided into direct and indirect acts. Direct aggression means the invasion or attack by the armed forces of a State of the territory of another State; any military occupation, even temporary, resulting from such invasion or attack; and any annexation (forcible incorporation) of the territory of another State. Direct aggression also includes the bombardment of another State or the use of weapons against it; the blockade of the ports or coasts of a State by the armed forces of another State; an attack by the armed forces of a State against the land, naval or air forces (fleets) of another State; and the violation of conditions governing the military presence in the territory of another State established by an international agreement.
Indirect aggression means the sending by a State of armed bands and groups, regular forces or mercenaries that carry out acts of armed force against another State of such gravity that they are equivalent to the acts listed above, or the substantial involvement of a State in such acts.
An act of complicity in aggression is considered to be the conduct of a State that allows its territory, which it has placed at the disposal of another State, to be used by the latter to commit an act of aggression against a third State.
The determination of an aggressor is based on the criterion of precedence (or initiative) in committing an act of aggression in violation of the UN Charter. Without taking this circumstance into account, it is difficult to distinguish between unlawful actions and legitimate self-defence measures. In this regard, as proposed in international legal scholarship, the principal criterion for determining the unlawfulness of the use of armed force should be considered to be the “principle of precedence or consideration of the chronological sequence of events.”
For the purposes of establishing a war of aggression, it is irrelevant whether it has been officially declared or not.
It should be borne in mind that the concept of aggression in international law exists in two dimensions: from the perspective of general international law, where only States may be recognized as subjects of such conduct, and from the perspective of international criminal law, where the crime gives rise to individual criminal responsibility.
It should be borne in mind that, under current international law, a war or military operations may be classified as aggressive only by the UN Security Council, and the above-mentioned definition of aggression may be applied only in relation to the international criminal-law responsibility of States (Article 39 of the UN Charter, signed on June 26, 1945). However, a State can commit an act of aggression only through the actions of individuals. Consequently, a State's violation of the rule prohibiting aggression provides grounds for the criminal liability of the relevant individuals responsible for planning, preparing and carrying out aggression.
Internal armed conflicts are not international in nature. Crimes committed during such conflicts — murder (Article 99 of the Criminal Code), hostage-taking (Article 261 of the Criminal Code), sabotage (Article 184 of the Criminal Code), terrorist acts (Article 255 of the Criminal Code), etc. — are classified as ordinary domestic criminal offences.
It should be noted that there are two cases in which the use of force by a State is lawful. Opposed to a war of aggression is a non-aggressive, just, liberation war. Article 51 of the UN Charter proclaims the inherent right of individual or collective self-defence if an armed attack occurs. Another exception is the use of armed force, authorized by the UN Security Council, against a particular State for the purpose of “maintaining or restoring international peace and security” (Article 42 of the UN Charter).
Planning a war of aggression means the strategic and (or) tactical development of a system of activities that provides for the procedure, sequence, timeframes and other essential conditions relating to the preparation and substantiation of the idea of war, the development of its political concept, mobilization and commencement of military operations, etc. The planning of aggression is not limited to the preparation of military plans; it also encompasses the economic, diplomatic and political creation of conditions for initiating a war of aggression. From the objective standpoint, “planning” is not covered by the concept of “preparation for war”. This made it possible, at the time, to bring to justice officials of Germany and Japan who had participated in the production and procurement of weapons and military equipment, the construction of fortifications, etc.
Preparation for a war of aggression includes actions related to the preliminary preparation of means of conducting war, the concentration of armed forces in specific directions, the conduct of reconnaissance activities, incitement of the population to hatred towards the peoples of other States, and other actions aimed at removing possible obstacles to the invasion of the territory of another country by armed forces and creating conditions for the successful conduct of a war of aggression. An example of preparation for a war of aggression is reconnaissance, that is, the gathering of intelligence about the enemy and the terrain in the area of the anticipated invasion, carried out by commanders and officers of armies and military units.
In terms of the structure of the objective element, the corpus delicti provided for in Part 1 of Article 160 of the Criminal Code is truncated, meaning that the crime is deemed completed from the moment of preparation for the crime: the planning or preparation of a war of aggression.
In Part 2 of Article 160 of the Criminal Code, the legislator provides for an aggravated form of this offence, characterized by the most dangerous stages of a war of aggression — its initiation or waging.
Initiating a war of aggression should be understood as the actual commencement of aggression and military operations, expressed in provoking a conflict with another State and creating and using a pretext for an armed invasion of or attack on the territory of another State. The concept of “initiation” includes activities both before the commencement of the war and during its course, namely provocative statements by leaders, the concentration of troops along borders, provoking the opposing side into an armed conflict, treacherous attacks by armed forces, diplomatic démarches pursued for aggressive purposes, “reconnaissance in force”, that is, individual armed attacks against border guards of another State, the seizure of its vessels, etc., and individual acts of aggressive conduct.
Waging a war of aggression means directing military operations in order to implement plans for a war of aggression after it has been initiated. It involves full-scale aggression against another State in the form of an offensive, attack or invasion of its territory with the aim of seizure or for other geopolitical purposes, thereby undermining the foundations of international security. The crime under consideration is a continuing offence, characterized by the uninterrupted commission of the elements of the criminal act. The crime begins at the moment the criminal act is committed and ends as a result of actions by the perpetrator aimed at terminating the crime (cessation of the act of aggression or the conduct of combat operations), or the occurrence of events preventing the commission of the crime (for example, the complete defeat of the aggressor).
The corpus delicti is formal. The crime is deemed completed from the moment the actions specified in the disposition of the criminal law provision are committed.
The subjective element of this crime is characterized by direct intent. The perpetrator is aware that they are carrying out actions involving the planning, preparation, initiation or waging of a war of aggression, foresees in general terms the grave consequences thereof and desires their occurrence.
The purposes and motives of the conduct may vary: political, ideological, religious, careerist, etc.
The subject of the crime is general, that is, a sane natural person who has reached the age of 16. In practice, however, as follows from the interpretation of the objective and subjective elements of the offence, the subject is a person who, by virtue of their political or official status, is capable of directly influencing the foreign policy of the State and the adoption of decisions on military planning and command, and who generally holds senior public positions in public administration bodies, the Armed Forces of the Republic of Kazakhstan or executive bodies whose competence includes resolving matters of war and peace. These may include heads of States and governments, leaders of parliamentary factions, heads of political parties, heads of diplomatic missions, military commanders, etc.
Prisoners of war, military personnel and other participants in a war cannot be held criminally liable under Part 2 of Article 160 of the Criminal Code merely for their direct participation in military operations, since they are not subjects of this crime. They are also not subject to liability under Article 38 of the Criminal Code, according to which causing harm to interests protected by criminal law by a person acting in execution of a binding order or instruction is not recognized as a crime. However, if a prisoner of war or a member of the military participates in the killing or torture of civilians or commits other violations of the laws and customs of war, they shall be subject to criminal liability, but only under Articles 163–165 of the Criminal Code.
The acts provided for in Parts 1 and 2 of Article 160 of the Criminal Code are classified as especially grave crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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