Commentary on Article 161. Propaganda or Public Calls for the Initiation of a War of Aggression of the Criminal Code of the Republic of Kazakhstan
1. Propaganda or public calls for the initiation of a war of aggression —
shall be punishable by deprivation of liberty for a term of up to five years.
2. The same act, committed through the use of mass media or telecommunications networks, or by an official holding a responsible public position —
shall be punishable by deprivation of liberty for a term of three to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The public danger of the crime under consideration lies in the ideological, psychological and political damage inflicted on the system of peaceful settlement of interstate relations. Propaganda or public calls for the initiation of a war of aggression constitute an element of the preparation of aggression, since they are intended or capable of creating or increasing a threat to peace, a breach of peace or an act of aggression. They differ from the preparation of a war of aggression in their psychological and informational content, which is aimed at instilling in the public consciousness and emotions of the population the idea of a war of aggression, its necessity and legitimacy as a means of resolving interstate problems.
In November 1947, the United Nations General Assembly, in Resolution 110 (II), “Measures to Be Taken Against Propaganda and the Inciters of a New War”, condemned war propaganda in any country and in any form, and in 1950 the Second World Congress of the Partisans of Peace appealed to the parliaments of all countries with a proposal to establish criminal liability for war propaganda. Article 20 of the International Covenant on Civil and Political Rights, adopted by Resolution 2200 A (XXI) of the United Nations General Assembly on 16 December 1966, categorically prohibits war propaganda: “Any propaganda for war shall be prohibited by law”, i.e. there must be a law that unequivocally states that such propaganda and speeches are contrary to state policy and provides for the necessary sanctions in the event of a violation. From that moment, this provision acquired the status of an international treaty norm. The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, adopted by United Nations General Assembly Resolution 42/22 of 18 November 1987, states that, in order to comply with the principle of non-use of force and non-threat of force, “States are obliged to refrain from propaganda for wars of aggression”.
The object of this crime is global informational and psychological security, as well as public relations aimed at protecting peace and the peaceful coexistence of States.
The objective side of the crime is expressed in active actions in the form of:
propaganda for a war of aggression;
public calls for the initiation of a war of aggression.
Propaganda is the in-depth explanation and dissemination, in any form (through mass media and public speeches by individuals), of views, ideas, doctrines and knowledge; ideological influence on the broad masses. In the criminal-law sense, war propaganda is understood as the dissemination among a wide range of persons of information that justifies a war of aggression, increases the number of supporters of such a war, and encourages the planning, preparation or initiation of aggression by one State against another. The form of war propaganda may be any: oral, written, through the use of mass media, by posting materials on the Internet, creating literary works, etc.
Calls consist of addressing an indefinite group of persons with the aim of convincing them of the necessity and expediency of a war of aggression against a particular people or State as the only means of resolving a conflict of various content and historical origin. They may take the form of an open or disguised call for the initiation of a world war, a war against a particular State or a group of States.
The public nature of calls is expressed in the fact that they are made directly in the presence of third parties or, in the case of their written form, with the expectation that other persons will become acquainted with them subsequently (for example, by posting posters or slogans of the relevant content). Most often, calls are addressed to a sufficiently large number of listeners: a crowd, an assembly, or the population of a region or country.
Calls may be episodic in nature; however, they must be specifically directed at initiating a war of aggression, rather than abstract anti-pacifism. Isolated instances in which a person expresses their assessments and views justifying the aggression of one country against another do not entail criminal liability, since the disposition of the Article uses the plural form — “calls”.
Propaganda or public calls for the initiation of a war of aggression are, by their criminal-law nature, one of the forms of incitement. They differ from incitement to initiate a war of aggression in their lower degree of specificity and greater ideological orientation. Moreover, incitement is carried out in relation to specific persons, whereas calls are addressed to an indefinite and broad range of persons.
If an act of aggression occurs under the influence of the calls under consideration, the person who directly initiated and waged the war shall bear liability for initiating and waging a war of aggression. However, the person who called for the initiation of a war of aggression cannot be held liable as an accomplice to this crime (Article 160 of the Criminal Code), due to the absence of targeted influence on specific persons.
In terms of its legal construction, the corpus delicti is formal. The crime shall be deemed completed from the moment when at least one outsider has perceived the information or independently familiarised themselves with it, regardless of whether the perpetrator succeeded in provoking the initiation of a war of aggression.
Preparatory actions for committing the crime under consideration (producing leaflets, reproducing other informational materials, making video recordings, etc.) do not entail criminal liability under Part 1 of Article 161 of the Criminal Code, since the crime belongs to the category of crimes of medium gravity.
The subjective side of the crime is characterised by direct intent. The person is aware that, in one way or another, they are disseminating among a wide range of persons ideas that justify aggression and encourage it, publicly calling for the initiation of a war of aggression, and wishes to do so. The motives for the crime may be any. A mandatory element of this crime is a special purpose: the initiation of a war of aggression.
If the calls are directed, for example, at conducting a war of liberation, the elements of the crime under consideration shall be absent.
The subject of the crime provided for in Part 1 of the Article under consideration is general, i.e. any person who has reached the age of 16.
Part 2 of Article 161 of the Criminal Code provides, among the qualifying elements, for the commission of the same acts through the use of mass media or telecommunications networks, or by an official holding a responsible public position.
The use of mass media or information and communication networks presupposes the dissemination of propaganda and calls for the initiation of a war of aggression through newspapers, magazines, radio, television, the Internet, etc.
A mass medium is a periodical printed publication, television or radio channel, film documentary, audiovisual recording, and any other form of periodic or continuous public dissemination of mass information, including Internet resources (Subparagraph 4) of Article 1 of the Law of the Republic of Kazakhstan dated 23 July 1999 “On Mass Media”).
A network is an aggregate of hardware and software tools that ensure the transmission of information between information systems, as well as between other telecommunications networks. According to the accessibility criterion, telecommunications networks are divided into local, departmental, corporate and publicly accessible networks.
In accordance with Subparagraph 16) of Article 3 of the Criminal Code, a person holding a responsible public position is understood to mean a person holding a position established by the Constitution of the Republic of Kazakhstan, constitutional laws and other laws of the Republic of Kazakhstan for the direct performance of state functions and the powers of state bodies, including a Member of Parliament, a judge, as well as a person holding a political public position or an administrative public position of the “A” Corps in accordance with the legislation of the Republic of Kazakhstan on public service.
A political public servant is a public servant whose appointment (election), dismissal and activities are political and policy-determining in nature, and who is responsible for implementing political goals and objectives (Subparagraph 16) of Article 1 of the Law of the Republic of Kazakhstan dated 23 November 2015 “On Public Service”).
The “A” Corps comprises administrative public positions at the managerial level, for which a special procedure is established for selection into the personnel reserve, competitive selection, the performance and termination of public service, as well as special qualification requirements (Subparagraph 1) of Article 1 of the Law of the Republic of Kazakhstan “On Public Service”).
The exhaustive list of categories of positions is established in the Register of Positions of Political and Administrative Public Servants (see the Decree of the President of the Republic of Kazakhstan dated 29 December 2015 “On Approval of the Register of Positions of Political and Administrative Public Servants”).
The act provided for in Part 1 of Article 161 of the Criminal Code belongs to the category of crimes of medium gravity.
The act provided for in Part 2 of Article 161 of the Criminal Code belongs to the category of serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker 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 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.
Constitution Law Code Regulatory Act Order Decision Resolution Advocate Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Law Firm of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses
