Commentary on Article 164. Violation of the Laws and Customs of War of the Criminal Code of the Republic of Kazakhstan

1. Compelling persons who have laid down their arms or have no means of defence, the wounded, the sick, persons who have suffered shipwreck, medical personnel, sanitary and religious personnel, prisoners of war, the civilian population in occupied territory or in an area of military operations, and other persons enjoying international protection during military operations, to serve in the armed forces of the enemy or to relocate, or depriving them of the right to an independent and impartial trial, or restricting the right of such persons to defence in criminal proceedings —

shall be punishable by imprisonment for a term of three to seven years.

2. The killing of persons listed in the first part of this Article —

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 the death penalty.

The public danger of the crime is manifested in the infringement of the rights of the civilian population under conditions of military operations and the violation of universally recognised principles of international law.

Compliance with the laws and customs of war acquires great importance during a possible military conflict: this not only demonstrates the State's adherence to the universally recognised principles of law but also, in the event of involvement in an external war or the outbreak of a civil war, makes it possible to conduct such a war with minimal losses and casualties and to bring it to an end more quickly. Under modern conditions, the main task of the armed forces in the event of war is to keep the conflict within its initial limits in order to prevent its escalation, and to resolve the conflict rationally and competently, while observing operational principles that remain within the boundaries of law.

When analysing provisions relating to armed conflict, reference should be made to the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (Convention I), the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Convention II), the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Convention III), the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Convention IV), the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977. These instruments provide for obligations on the part of States that have acceded to them to introduce the legislation necessary to ensure effective criminal penalties for persons who commit, or order the commission of, serious violations against victims of international and non-international armed conflicts.

The object of the crime provided for in Part 1 of Article 164 of the Criminal Code is the procedure for conducting warfare established by the relevant international instruments.

The victims of the crime may include persons who have laid down their arms or have no means of defence; the wounded; the sick; persons who have suffered shipwreck; medical personnel, sanitary and religious personnel; prisoners of war; the civilian population in occupied territory or in an area of military operations; and other persons enjoying international protection during military operations.

To understand the characteristics of the listed categories of victims, it is necessary to refer to Additional Protocol I (Articles 8, 43, 44, 51, 62, 71 and 79), Geneva Convention III (Article 4), and Geneva Convention IV (Article 4).

Persons who have laid down their arms or have no means of defence are understood to mean persons who have ceased to participate in armed combat and do not have the status of wounded, sick, shipwrecked persons, medical or religious personnel, prisoners of war or civilians (in international armed conflicts — persons who are not members of the armed forces within the meaning of Article 43 of Additional Protocol I; mercenaries and spies; and in non-international armed conflicts — persons affected by a non-international armed conflict who have ceased to participate in hostilities).

The wounded and sick are understood to mean persons, both military personnel and civilians, who, as a result of injury, illness or another physical or mental disorder or disability, require medical assistance or care and refrain from any hostile acts. This status is also granted to women in labour, newborn children and other persons who may require medical assistance or care at a given time (for example, pregnant women or infirm persons) and who refrain from any hostile acts.

Persons who have suffered shipwreck are understood to mean both military personnel and civilians who are in danger at sea or in other waters as a result of an accident that has occurred either to them or to the vessel or aircraft transporting them, and who refrain from any hostile acts. Such persons continue to be regarded as shipwrecked persons during their rescue until they acquire another status under international conventions or protocols, provided that they continue to refrain from any hostile acts.

In the event of hostile activity, the granting of the above-mentioned statuses may be refused.

Medical personnel are understood to mean persons assigned by a Party to the conflict exclusively to search for, collect, transport, diagnose or treat, including by providing first aid to, the wounded, sick and shipwrecked; to prevent disease (this term refers, for example, to hospitals and other similar medical centres and institutions, medical supply depots and medical and pharmaceutical depots of such units); to provide administrative and logistical support to medical units; or to work on medical transport vehicles and provide their administrative and technical support. Such assignments may be either permanent or temporary.

In particular, medical personnel include:

medical personnel of a Party to the conflict, both military and civilian, including personnel referred to in the Geneva Conventions (1949), and personnel assigned to civil defence organisations;

medical personnel of the national Red Cross (Red Crescent, Red Lion and Sun) societies and other national voluntary aid societies duly recognised and authorised by the Party to the conflict;

medical personnel of medical units or medical transport vehicles made available to a Party to the conflict for humanitarian purposes.

Religious personnel are understood to mean both military and civilian persons, for example, priests, who are exclusively engaged in performing their religious functions and are attached to:

the armed forces of a Party to the conflict;

the medical units or medical transport vehicles of a Party to the conflict;

medical units or medical transport vehicles made available to a Party to the conflict for humanitarian purposes;

civil defence organisations of a Party to the conflict.

The category of "prisoner of war" is examined in detail in the commentary to Article 163 of the Criminal Code.

The civilian population in occupied territory is understood to mean persons who, at any given time and in any manner whatsoever, find themselves, in the event of a conflict or occupation, in the power of a Party to the conflict or an occupying Power, but do not take part in hostilities. In addition, this category includes persons who do not directly participate in hostilities, including those members of the armed forces who have laid down their arms, as well as those who have ceased to participate in hostilities as a result of illness, wounds, detention or for any other reason, but do not have the status of wounded or sick persons. In case of doubt as to whether a person is a civilian, that person shall be considered a civilian.

Other persons enjoying international protection during military operations are recognised as persons who, in accordance with the rules of international humanitarian law, provide assistance to victims of war or perform other functions. For example, journalists on dangerous professional assignments in areas of armed conflict (Article 79 of Additional Protocol I); personnel of civil defence organisations (Article 62 of Additional Protocol I); personnel participating in relief operations (Article 71 of Additional Protocol I); and personnel of humanitarian organisations such as the International Committee of the Red Cross, etc.

The objective element of this crime is characterised by the commission of any of the alternative acts listed in the law, or a combination thereof:

compelling the above-mentioned persons to serve in the armed forces of the enemy;

compelling them to relocate;

depriving them of the right to an independent and impartial trial;

restricting the right of such persons to defence in criminal proceedings.

Compelling the above-mentioned persons to serve in the armed forces of the enemy includes cases where, through the use of violence or the threat of such violence, the specified persons are forced to participate in military operations against their own country or their own armed forces. Article 51 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War prohibits compelling protected persons to serve in the armed or auxiliary forces of the occupying Power.

Compulsion to relocate is expressed in the moral or physical coercion of the civilian population residing in occupied territory or in an area of military operations to leave their place of residence in the absence of any necessity arising from the need to ensure their safety or from particularly compelling military considerations.

Compulsion to relocate should be distinguished from deportation provided for in Article 163 of the Criminal Code, which constitutes the forcible removal (expulsion) of the population from the territory it occupies.

In accordance with Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. One of the inherent characteristics of this right and a necessary condition for a fair trial is the right to an impartial court, which presupposes the absence of prejudice and bias on the part of judges. Thus, the Geneva Conventions expressly prohibit the conviction of persons for offences that are not punishable under the national legislation of the belligerent parties or under international law, as well as the use of moral and physical pressure to obtain confessions of guilt from protected persons.

Furthermore, it is guaranteed that a person accused of committing an offence must be promptly informed, in a language they understand, of the details of the offence with which they are charged. A person may be convicted only on the basis of individual criminal responsibility, in compliance with the principle of the presumption of innocence, and has the right not to testify against themselves. In addition, the person has the right to initiate a number of procedural actions (the examination of persons testifying against them, etc.), as well as the right to be present at the trial and at the pronouncement of the judgment, and subsequently to appeal it.

Everyone has the right to receive qualified legal assistance (Article 13 of the Constitution of the Republic of Kazakhstan). The right to defence itself is identical to the process established for the defence party under the current national legislation.

Judicial guarantees occupy a special place in international humanitarian law. The guarantees provided for by this law shall apply from the beginning of any armed conflict, whether an international or internal armed conflict. Thus, even if, in the event of a state of emergency threatening the life of the nation, the application of judicial guarantees provided for by the law on the protection of human rights is suspended, these guarantees shall once again apply in full upon the commencement of an armed conflict, this time by virtue of the commencement of the application of international humanitarian law.

A detailed list of judicial guarantees applicable during an international armed conflict is set out in Article 75 of Additional Protocol I:

"... 4. No sentence may be passed and no penalty may be executed on a person found guilty of a criminal offence related to the armed conflict except pursuant to a judgment pronounced by an impartial and regularly constituted court respecting the generally recognised principles of regular judicial procedure, which include the following:

the procedure shall provide for the accused to be informed without delay of the particulars of the offence alleged against them and shall afford the accused all necessary rights and means of defence before and during the trial;

no person may be convicted of an offence except on the basis of individual criminal responsibility;

no person may be charged with or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the rules of national law or international law applicable to that person at the time when the act or omission was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, the law provides for the imposition of a lighter penalty, that law shall apply to the offender as well;

everyone charged with an offence shall be presumed innocent until proved guilty according to law;

everyone charged with an offence shall have the right to a trial in their presence;

no person shall be compelled to testify against themselves or to confess guilt;

everyone charged with an offence shall have the right to examine witnesses testifying against them or to require that such witnesses be examined, and shall also have the right to obtain the attendance and examination of witnesses on their behalf under the same conditions as those applicable to witnesses testifying against them;

no person shall be prosecuted or punished by the same Party for an offence in respect of which a final judgment acquitting or convicting that person has previously been pronounced in accordance with the same law and judicial procedure;

everyone prosecuted for an offence shall have the right to have the judgment pronounced publicly;

when a sentence is passed, the convicted person shall be informed of their right to appeal, either judicially or otherwise, and of the period within which they may exercise that right."

In the event of a non-international armed conflict, depending on its degree of intensity, the guarantees established by Article 6 of Additional Protocol II or the general principle provided for in Article 3 common to all four Geneva Conventions shall apply.

The structure of the elements of the crime is formal. The crime shall be deemed completed from the moment any of the acts provided for in Part 1 of the Article under consideration is committed.

The subjective element of the crime is characterised by direct intent. An important aspect of the content of intent is the offender's awareness that the act is being committed against persons who have laid down their arms or have no means of defence, the wounded, the sick, persons who have suffered shipwreck, medical, sanitary and religious personnel, prisoners of war, the civilian population in occupied territory or in an area of military operations, and other persons enjoying international protection during military operations. It is precisely this circumstance that makes it possible to distinguish these crimes from other criminally punishable acts (for example, offences against the person).

The subject is general: a sane individual who has reached the age of 16. However, taking into account the disposition of the Article, the circle of potential subjects is narrowed to individuals possessing the characteristics of a general subject but also vested with the authority to make decisions relating to the acts provided for in the objective element, and who, by virtue of their official powers, are aware of the existence of the laws and customs of war.

International law establishes not only individual responsibility for war crimes and crimes against humanity, but also command responsibility. In accordance with Additional Protocol I to the 1949 Geneva Convention, a commander shall be responsible for violations of the Conventions committed by subordinates if the commander knew of the possibility that they might commit crimes but failed to take the necessary measures to prevent them.

Under Part 2 of Article 164 of the Criminal Code, the object of the crime is international relations connected with ensuring the safety of persons entitled to protection during military operations in accordance with the rules of international law.

The additional object is human life.

The objective element of the crime is expressed in the actions or omissions of officials who, by virtue of their official powers, are obliged to take measures to preserve the lives of persons under international protection during an armed conflict.

The right to life is one of the rights from which no derogation is permitted under any circumstances. This right may never be restricted or suspended.

Any armed conflict poses a threat to human life. Therefore, a significant proportion of the rules of international humanitarian law are intended to ensure the protection of life, in particular, the lives of persons who do not participate or have ceased to participate in hostilities. Such persons are prohibited from being killed and may not be made the object of an attack. At the same time, international humanitarian law does not provide for the protection of the lives of combatants participating in hostilities.

It should also be emphasised that international humanitarian law imposes restrictions on the use of the death penalty. International humanitarian law ensures the protection of human life by adapting this protection to the circumstances of an armed conflict.

The above-mentioned international instruments, while establishing the laws and customs governing the conduct of military operations, place particular emphasis on the fact that during the conduct of military operations, "it is forbidden ... to kill or wound an enemy who, having laid down his arms or no longer having means of defence, has surrendered unconditionally, ... to declare that no quarter will be given" (The Hague Convention respecting the Laws and Customs of War on Land of 1907).

The elements of the crime provided for in Part 2 of the Article under consideration are material in nature, and the crime shall be deemed completed from the moment the victim's death occurs.

The subjective element of the crime may be expressed through either direct or indirect intent, that is, a person who is aware of the complexity of the public situation commits acts or omissions for the purpose of implementing the policy pursued by the State, including by killing persons enjoying international protection.

In particular, a commander who issues an order to fire on a certain area for the purpose of implementing a plan to capture a populated area is aware that civilians reside there but nevertheless carries out the plan, as a result of which the civilian population dies.

The crime provided for in Part 2 is a special provision, under which an act involving the death of two or more persons enjoying international protection during military operations is considered.

No additional legal classification of this act is required. Such killing should be distinguished from crimes committed for domestic or personal motives.

The act provided for in Part 1 of Article 164 of the Criminal Code is classified as a serious crime.

The act provided for in Part 2 of Article 164 of the Criminal Code is classified as an especially serious crime.

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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