Commentary on Article 163. 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, destruction or plunder of national property in occupied territory, 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 ten to fifteen years, with or without deprivation of citizenship of the Republic of Kazakhstan.
2. 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 fifteen to twenty years or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan, or by the death penalty.
The public danger of this crime lies in the fact that excessive cruelty in war and gross disregard for its laws and customs provoke corresponding and even greater cruelty on the part of the opposing side and delay attempts to resolve the conflict by peaceful means. The right of parties to an armed conflict to choose the methods and means of warfare is not unlimited; they are divided into permitted and prohibited ones.
The principal rules characterizing the methods and means of warfare are set out in Article 35 of the Additional Protocol to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977: “...2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”.
These rules and principles apply to armed conflicts of both an international and non-international character (internal armed conflicts). International law has, in essence, abandoned the traditional term “law of war” and adopted the term “law of armed conflict” (or “international humanitarian law applicable in situations of armed conflict”).
The law of armed conflict is a body of international legal principles and rules governing relations between states and other subjects of international law during the conduct of hostilities, prohibiting or restricting the means of warfare and providing for the humanization of methods of warfare with the aim of protecting victims of armed conflicts.
The object of this crime is social relations regulated by the rules of international law that ensure the conscientious fulfilment of international obligations with regard to the use of means and methods of conducting military operations.
Additional objects may include: life, health, sexual freedom and inviolability, personal dignity, physical liberty, property, etc. In certain cases, the subject matter of the criminal encroachment acquires legal significance: national property, civilian objects, movable and immovable property belonging to another person; the identity of the victim: a combatant, a prisoner of war, a representative of the civilian population of an occupied territory, etc.
The objective aspect of this crime is characterized by the commission of any of the acts listed in the law, or a combination thereof:
- cruel treatment of prisoners of war or the civilian population;
- deportation of the civilian population;
- destruction or plunder of national property in occupied territory;
- use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan.
For a proper understanding of the legal status of prisoners of war and the civilian population (victims of cruel treatment), it is necessary to refer to international legal instruments.
The categories of persons classified as prisoners of war and persons accorded the status of prisoners of war are defined in Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Thus, pursuant to this Article:
“A. Prisoners of war, within the meaning of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
- Members of the armed forces of a Party to the conflict, as well as members of militias and volunteer corps forming part of such armed forces.
- Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
- that of being commanded by a person responsible for his subordinates;
- that of having a fixed distinctive sign recognizable at a distance;
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.
- Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
- Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the attached model.
- Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
- Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
- Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary, by reason of such allegiance, to intern them, even though it has originally liberated them while hostilities were taking place outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in hostilities, or where they fail to comply with a summons made to them with a view to internment.
- The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, the fifth paragraph of Article 30, Articles 58–67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those provisions concerning the Protecting Power. Where such diplomatic relations exist, the Parties to the conflict on which these persons depend shall be permitted to perform towards them the functions of a Protecting Power as provided for in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties”.
Persons belonging to the armed forces of a Party to the conflict (with the exception of medical and religious personnel) are combatants, i.e. they have the right to take a direct part in hostilities.
Article 44 of the Additional Protocol to the Geneva Conventions of 12 August 1949 establishes that any combatant who falls into the power of an adverse Party is a prisoner of war.
The category of “prisoner of war” includes: 1) a combatant who has fallen into the power of an adverse Party; 2) a person whose status is equivalent to that of a prisoner of war. The Geneva Convention relative to the Treatment of Prisoners of War applies to the aforementioned persons from the moment they fall into the power of the enemy until their final release and repatriation (return to their homeland).
The definition of “prisoner of war” is not applicable to armed conflicts of a non-international character. Protocol II Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, uses the term “persons whose liberty has been restricted for reasons related to the armed conflict”.
The status of prisoner of war also does not extend to spies and mercenaries (Articles 46 and 47 of Additional Protocol I). In recent history, there have been precedents for denying prisoner-of-war status to terrorists on the grounds that they do not comply with the rules and customs of warfare.
Cruel treatment of prisoners of war entails their killing, torture, infliction of physical suffering, inhuman treatment, including biological experiments, causing severe suffering, infliction of damage to health (regardless of the degree of severity), unlawful deprivation of liberty, taking of hostages and rape.
Based on the definition contained in Articles 3 and 4 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, the category of “civilian population” in an armed conflict of an international character comprises all persons located in the territory of the states involved in the conflict who are not combatants (are not regarded as combatants), spies or mercenaries; in conflicts of a non-international character, it comprises persons who do not take part in hostilities.
International law recognizes the principle that the civilian population not participating in the war must enjoy inviolability. When conducting operations, the belligerent parties must constantly take care to spare civilian objects (dwellings, buildings, means of transport, shelters, hospitals, etc.); foodstuffs, the areas in which they are produced, as well as sources of water. With regard to the civilian population of occupied territory, violence against life, health, physical or mental well-being is prohibited, in particular murder; torture of all kinds; corporal punishment; mutilation; outrages upon personal dignity, in particular humiliating or degrading treatment; coercion into prostitution or any form of indecent assault; taking of hostages; collective punishment; and threats to commit such acts (Additional Protocol of 1977 to the Geneva Conventions of 1949 for the Protection of War Victims).
Cruel treatment of prisoners of war and the civilian population should be understood as any act of violence against the aforementioned persons, defined by the rules of international criminal law, which violates the lawful rights and interests of prisoners of war or civilians or contains a threat to the physical or personal status of such persons.
The killing of a prisoner of war or a civilian under aggravating circumstances requires additional qualification under Part 2 of Article 99 of the Criminal Code.
Deportation of the civilian population is the forcible removal of such population from the territory it occupies to a specified place or expulsion from its native places without specifying a destination. Article 49 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War provides that the forcible transfer and deportation of such 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, regardless of the grounds. At the same time, total or partial evacuation of the population of an occupied area is permitted if the security of that population or imperative military reasons so demand. Evacuees may be transferred only to areas within the occupied territory, except where this is practically impossible.
Under international law, in an international conflict, the deportation of both the civilian population of the opposing Party and one's own civilian population is recognized as an international crime. Deportation constitutes a particular form of cruel treatment, since it is always of a coercive nature and creates a real threat to the vital interests of civilians. The forcible or indirect, individual or mass deportation of civilians (the civilian population) within or beyond the boundaries of occupied territory, as well as to the territory of states not participating in the conflict, constitutes a crime.
“Indirect” displacement of the civilian population of occupied territory means that no direct violence is used against such population, but conditions are created under which civilians residing in occupied territory are forced to leave it.
If deportation is aimed at the total or partial destruction of a national, ethnic, racial or religious group, it must be classified as genocide under Article 168 of the Criminal Code, on the grounds of forcible displacement calculated to bring about the physical destruction of members of that group.
Plunder of national property in occupied territory is the theft of cultural property and civilian objects not justified by military necessity, their appropriation by the occupying Party, and the removal of property from occupied territory.
Destruction of property means the complete loss of its consumer properties and economic value, that is, bringing it into such a condition that it can no longer be used for its intended purpose and the properties it has lost cannot be restored.
Damage means the infliction of harm to property that substantially reduces its economic and commercial value and, consequently, its usability for its intended purpose. Unlike destruction, which means the irrecoverable loss of an item, damage results only in a deterioration in the quality of the item, which may be remedied through restoration, repair of the item, etc.
These concepts do not include the alienation of property resulting from annexations, contributions and reparations, which are determined by the terms of the capitulation agreement.
Annexation is the forcible unilateral incorporation by one state of all or part of the territory of another state. Contribution is a sum of money paid by the defeated state to the victor after the end of a war to compensate for military expenses.
Reparations are a form of material responsibility of a subject of international law for damage caused to another subject of international law as a result of an international wrongful act committed by it, in particular compensation by a state, pursuant to a peace treaty or other international instruments, for damage caused by it to states subjected to an attack.
National property is the aggregate of material carriers of the spiritual values of a particular people. National values include any property of nationwide or state significance, or property belonging to individual natural or legal persons in respect of which the state has established a special protection regime, including cultural property.
Article 1 of the International Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 classifies the following as such property:
- movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections or important collections of books, archival materials or reproductions of the property mentioned above;
- buildings whose main and effective purpose is to preserve or exhibit the movable cultural property referred to in paragraph “a”, such as museums, large libraries, archival repositories, as well as refuges intended to shelter, in the event of armed conflict, the movable cultural property referred to in paragraph “a”;
- centres containing a considerable amount of cultural property as defined in paragraphs “a” and “b”, known as “centres containing monuments”.
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 and the plunder of cultural property located in the territory of another country are prohibited.
The term “national” does not imply a process of nationalization of property; rather, it refers to the fact that such property is located in the territory of the opposing state, even if the property belongs to another state, for example, the embassy of a non-belligerent state.
Military occupation is understood as the temporary occupation, in the course of war, of the territory of one state by the armed forces of another state and the assumption by the occupying state of the administration of those territories. At the same time, the occupied territory legally continues to remain the territory of the state to which it belonged before the occupation. The regime of military occupation must be distinguished from the regime of post-war occupation as a measure of international legal responsibility of a state for aggression.
Means of warfare are weapons and other military equipment used by the armed forces of the belligerent parties to destroy the enemy's manpower and material resources, suppress its forces and its ability to resist. A prohibited means of conducting an armed conflict is understood as the use of any type of weapon, military equipment or other means used to cause harm to the enemy, if such means are capable of causing excessive suffering and torment or inflicting excessive damage. The use of weapons of mass destruction does not fall within the elements of Part 1 of Article 163 of the Criminal Code.
Certain types of conventional weapons may be prohibited. On 10 October 1980, the 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 (United Nations General Assembly Resolution 3093). The Protocols annexed to this Convention prohibit the use of any weapon that injures by means of fragments that cannot be detected in the human body by X-rays, and also restrict the use of certain types of landmines, booby-traps and certain types of incendiary weapons. This Convention has been ratified by the Republic of Kazakhstan (Law of the Republic of Kazakhstan of 23 February 2009 “On Ratification of the 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, and the Protocols thereto: Protocol on Non-Detectable Fragments (Protocol I), Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) and Protocol on Blinding Laser Weapons (Protocol IV)”).
Methods of warfare are the procedures and various ways of using means of warfare for the purposes specified above, as well as the manner in which military operations are conducted as a whole.
Methods of conducting military operations such as using the civilian population as a “shield”, using prisoners of war and the civilian population for the donation of organs and tissues, issuing an order to “leave no one alive”, and the unlawful use of 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 participating in the conflict, are prohibited. It is prohibited to kill, injure or capture an adversary by resorting to perfidy, which means acts intended to betray the confidence of an adversary and make them believe that they are entitled to protection under the rules of international law. At the same time, international law does not prohibit the use of military ruses intended to mislead the adversary and induce them to act recklessly.
Article 25 of the IV Hague Convention of 18 October 1907 prohibits the attack or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings.
Qualification of an act as “use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan” is possible only if the relevant means or method does not fall within the content of the other acts specified in Parts 1 and 2 of Article 163 of the Criminal Code.
The elements of this crime are formal-material. The crime is deemed completed from the moment any actions characterizing cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, or the use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan are committed. The elements of the crime in its third form are formulated as material: the crime is deemed completed from the moment socially dangerous consequences arise in the form of damage caused to the owner or another possessor of national property as a result of its destruction or plunder.
The subjective aspect of this crime is characterized by direct intent, since the perpetrator is aware that they are 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 natural person 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.
The use of weapons of mass destruction in an armed conflict as an act means their direct use for the indiscriminate destruction of an indefinite number of persons. Weapons of mass destruction whose use is prohibited include biological and chemical weapons (the commentary to Article 162 of the Criminal Code provides the definition of weapons of mass destruction). Chemical and bacteriological (biological) weapons constitute prohibited means of warfare; their effect is based on the use of the disease-causing properties of microorganisms capable of causing epidemics of such dangerous diseases as plague, cholera, typhus, etc. The legal basis for prohibiting the use of this type of weapon of mass destruction is the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, approved by United Nations General Assembly Resolution 2826 (XXVI) of 16 December 1971. This Convention obliges states not only not to develop, produce or acquire any types of bacteriological weapons, but also to destroy such weapons.
The limitation periods for criminal prosecution and the limitation periods for the execution of a conviction do not apply to persons who have committed this crime.
The acts provided for in Parts 1 and 2 of Article 163 of the Criminal Code are classified as especially serious crimes.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 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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