Commentary on Article 165. Criminal Violations of the Norms of International Humanitarian Law During Armed Conflicts of the Criminal Code of the Republic of Kazakhstan
Violations of the norms of international humanitarian law during an armed conflict, expressed in the transformation of undefended localities and demilitarized zones into objects of attack, or the violation of agreements on an armistice, suspension of hostilities, or local agreements concluded for the purpose of the evacuation, exchange, or transportation of wounded and deceased persons left on the battlefield, or the commission of attacks against the civilian population or civilian objects, or the transfer of part of one’s own civilian population into occupied territory, or the unjustified delay in the repatriation of prisoners of war and civilians, —
shall be punishable by deprivation of liberty for a term of ten to fifteen years.
International humanitarian law applies only in the event of an armed conflict. The norms of international humanitarian law are aimed at protecting persons who do not take part in or have ceased to take part in hostilities, as well as at restricting the means and methods of warfare and protecting cultural property. Its principal instruments are the Geneva Conventions for the protection of war victims of 1949 and the two Additional Protocols concluded in 1977 under the auspices of the International Committee of the Red Cross.
International humanitarian law is an independent branch of international law, representing a system of legal principles and rules applied in both international and non-international armed conflicts, establishing the mutual rights and obligations of subjects of international law with regard to prohibiting or restricting the use of certain means and methods of armed warfare, ensuring the protection of victims of conflict during such warfare, and determining liability for violations of these principles and rules.
The Rome Statute of the International Criminal Court, adopted by the Diplomatic Conference of Plenipotentiaries under the auspices of the United Nations on the establishment of the International Criminal Court in Rome on 17 July 1998, contains the most comprehensive list of serious violations of international humanitarian law.
The provisions of international humanitarian law oblige States to take measures aimed at ensuring compliance with its rules or address certain aspects of this obligation. This obligation is enshrined in common Article 1 of all four Geneva Conventions of 1949 and Article 1 of Additional Protocol I. These provisions embody the principle that treaties in force must be performed in good faith. The same obligation exists under Additional Protocol II, although it does not contain a corresponding provision and is limited to proclaiming the fundamental rules.
The implementation of international humanitarian law is one of the elements of its realization. For these purposes, the Recommendations of the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States on the Implementation of International Humanitarian Law Applicable During Military Conflicts in the National Legislation of the CIS Member States, dated 16 October 1999, were adopted.
Individual liability for serious violations of international humanitarian law was established in international treaties not by introducing specific sanctions for criminal acts, but by prohibiting certain conduct and recognizing the obligation of States to prosecute such violations in accordance with national legislation.
At its core, the norms of international humanitarian law are intended to ensure a balance between military necessity and humanity.
International humanitarian law provides for measures that increase the likelihood of civilians surviving during an armed conflict, for example, the establishment of special zones in which no military installations are located. This law establishes the obligation to collect the wounded and provide them with the necessary assistance, and determines the measures that must be taken to ensure the most favorable possible living conditions for people during an armed conflict. International humanitarian law also contains special rules concerning the conduct of relief operations and the provision of means necessary for the survival of the civilian population.
The social danger of the crime under consideration lies in the fact that any armed conflict poses a threat to human life. Furthermore, the conduct of parties to armed conflicts is characterized by a tendency towards large-scale destruction, violence, and the violation of all human rights and freedoms. International humanitarian law ensures the protection of human life by adapting such protection to the circumstances of an armed conflict.
The object of the offence is the established order for the conduct of international and non-international armed conflicts, as determined by the fundamental principles of international law and international humanitarian law. In other words, the legal nature of war crimes is inherently dualistic: on the one hand, they include criminal violations of the rules governing the conduct of military operations (means and methods of warfare); on the other hand, they include criminal violations of the norms of international humanitarian law intended to protect the rights and interests of persons who do not take a direct part in an armed conflict.
The objective element of the crime is expressed in the commission of the following acts.
Turning undefended localities and demilitarized zones into objects of attack
The establishment of criminal liability for this act is provided for in subparagraph “d” of paragraph 3 of Article 85 of Additional Protocol I (see paragraph 1 of Article 59 and paragraph 1 of Article 60 of Additional Protocol I).
An undefended locality may be declared by means of a unilateral declaration or an agreement between the parties, whereas a demilitarized zone may be established only by agreement between the parties.
The relevant authorities of a party to the conflict may declare any populated area located in the zone of contact between armed forces or near such a zone, which is open to occupation by the opposing party, to be an undefended locality.
Such a locality must meet the following conditions:
all combatants, as well as mobile combat equipment and mobile military equipment, must be evacuated;
fixed military installations or facilities must not be used for hostile purposes;
neither the authorities nor the population must commit hostile acts;
no activities in support of military operations must be undertaken.
A declaration is made to the opposing party, providing as precise a definition and description as possible of the boundaries of the undefended locality. The party to the conflict to which such a declaration is addressed acknowledges its receipt and treats the locality as undefended, except in cases where the listed conditions are not actually complied with; in such cases, it immediately notifies the party making the declaration.
Even where the conditions are not complied with, such a locality continues to enjoy the protection provided for by the norms of international law during armed conflicts.
The parties to the conflict may agree to declare localities undefended even if such localities do not meet the established conditions. Such an agreement must contain as precise a definition and description as possible of the boundaries of the undefended locality; where necessary, it may provide for methods of monitoring.
The party having control over the locality that is the subject of such an agreement shall mark it, as far as possible, with signs that may be agreed upon with the other party, placing them where they are clearly visible, particularly along the perimeter of the locality, at its boundaries, and on highways.
The status of demilitarized zones is established by means of an agreement, which may be concluded orally or in writing, either directly or through the mediation of a Protecting Power or any impartial humanitarian organization, and may take the form of mutual and corresponding declarations. The agreement may be concluded in peacetime as well as after the commencement of hostilities. It must contain as precise a definition and description as possible of the boundaries of the demilitarized zone and, where necessary, establish methods of monitoring.
The subject of such an agreement is usually any zone that meets the following conditions:
all combatants, as well as mobile combat equipment and mobile military equipment, must be evacuated;
fixed military installations and facilities must not be used for hostile purposes;
neither the authorities nor the population must commit hostile acts;
all activities related to military efforts must be discontinued.
The parties to the conflict are prohibited from extending their military operations to zones to which they have granted demilitarized status by agreement, where such actions would be contrary to the provisions of that agreement.
The party having control over such a zone shall mark it, as far as possible, with signs that may be agreed upon with the other party and which shall be placed where they are clearly visible, particularly along its perimeter, at its boundaries, and on highways.
If hostilities approach a demilitarized zone and the parties to the conflict have reached an agreement to that effect, neither party may use that zone for purposes related to the conduct of hostilities or unilaterally revoke its status.
Violation of agreements on an armistice, suspension of hostilities, or local agreements concluded for the purpose of the evacuation, exchange, or transportation of wounded and deceased persons left on the battlefield (Article 15 of Geneva Convention I)
The basis for establishing liability is provided by the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 1949, according to which the protection of wounded and sick persons who do not take part in or have ceased to take part in hostilities is one of the principles of international humanitarian law.
According to Article 15 of the aforementioned Convention: “At all times, and particularly after an engagement, the Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and also to search for the dead and prevent their being despoiled.”
In order to accomplish this important task, which must be carried out as soon as circumstances permit, the belligerent parties may conclude agreements on an armistice, a ceasefire, or local agreements.
Such agreements may be concluded either in writing or orally.
The methods of violating such agreements may vary and include various forms of shelling of persons carrying out tasks in accordance with the agreements concluded, the installation of traps in places where measures to implement the agreements are being carried out, etc.
The crime is considered completed from the moment the terms of the agreement begin to be violated.
Attacking the civilian population or civilian objects
Paragraph 2 of Article 51 of Additional Protocol I and Article 13 of Additional Protocol II prohibit the use of means and methods of warfare directed against the civilian population as such, as well as against individual civilians.
Indiscriminate attacks against the civilian population are defined and expressly prohibited in paragraph 4 of Article 51 of Additional Protocol I, thereby developing the provision of Article 48 of the same Protocol, which requires the parties to the conflict to direct their actions only against military objectives.
Indiscriminate attacks include attacks:
which are not directed at a specific military objective;
in which methods or means of warfare are employed that cannot be directed at a specific military objective;
in which methods or means of warfare are employed whose effects cannot be limited and which, in each such case, strike military objectives and civilians or civilian objects without distinction;
by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians or civilian objects;
which may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
directed against the civilian population or individual civilians by way of reprisals.
It is prohibited to attack a person who has ceased to take a direct part in hostilities (paragraph 1 of Article 41 of Additional Protocol I, Article 12 of Geneva Convention II). The characteristics of such a person are set out in paragraph 2 of Article 41 of Additional Protocol I: the person is in the power of the adverse party; clearly expresses an intention to surrender; is unconscious or otherwise incapacitated by wounds or sickness and is therefore incapable of defending himself or herself, provided that in any such case the person abstains from any hostile act and does not attempt to escape. At the same time, it should be taken into account that the presence or movement of the civilian population or individual civilians must not be used to shield certain points or areas from military operations, in particular in attempts to shield military objectives from attack or to cover military operations, facilitate or impede them.
Civilian objects are understood to mean all objects that are not military objectives, in accordance with Protocol I.
Under the aforementioned Protocol, military objectives are objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
Installations and facilities containing dangerous forces are understood to include dams, dykes, and nuclear power stations, which must not be made the object of attack even where such objects constitute military objectives, if such an attack may cause the release of dangerous forces and consequent severe losses among the civilian population (paragraph 1 of Article 56 of Additional Protocol I). Paragraph 2 of Article 56 of Additional Protocol I specifies the conditions under which the protection afforded to installations and facilities containing dangerous forces ceases: if they are used for regular, significant, and direct support of military operations; if an attack against them is the only practicable way to terminate such support; and if such an attack does not entail excessive losses among civilians or create conditions for causing excessive damage to civilian objects.
Transfer of part of one’s own civilian population into occupied territory
Such actions create the preconditions for the subsequent annexation of occupied territory or the displacement of the civilian population of the occupied State. The basis for the criminal law prohibition of these actions is subparagraph “a” of paragraph 4 of Article 85 of Additional Protocol I and Article 49 of Geneva Convention IV.
In accordance with Article 49 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, the Occupying Power is prohibited from deporting or transferring parts of its own civilian population into the territory it occupies.
Furthermore, under subparagraph “a” of paragraph 4 of Article 85 of Additional Protocol I to the 1949 Geneva Convention, the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside that territory in violation of the aforementioned Convention, is recognized as a serious violation of the norms of international humanitarian law.
Such transfer is primarily associated with the consolidation of the occupying State’s control over the occupied territory beyond the limits permitted by international law (for example, the transfer of its own civilian population for the purpose of creating conditions for the subsequent annexation of the occupied territory or the displacement of the civilian population of the occupied State from their permanent place of residence). In view of this, the transfer of even an insignificant number of civilians of the occupying State is sufficient for the act to be recognized as criminal.
Occupied territory is understood as the territory of one State (or part thereof) that is temporarily occupied by the armed forces of another State and in which the authority of the military administration of the occupying State has been established.
From a legal standpoint, territory is considered occupied when certain conditions formulated in Article 42 of the Hague Regulations respecting the Laws and Customs of War on Land, annexed to the Fourth Hague Convention of 1907, are present: the territory must be “actually placed under the authority of the hostile army,” and the occupation regime shall extend “only to the territory where such authority has been established and can be exercised.”
Unjustified delay in the repatriation of prisoners of war and civilians
Articles 109 and 118 of Geneva Convention III and Article 132 of Geneva Convention IV oblige the parties to the conflict to send seriously ill and seriously wounded prisoners of war back to their homeland, to release and repatriate prisoners of war upon the cessation of hostilities, and to release every civilian internee.
According to Article 109 of Geneva Convention III, during hostilities, the parties to the conflict are obliged to “send back to their own country seriously wounded and seriously sick prisoners of war, after having brought them to a state where they can be transported.” In addition, Article 118 of the same Convention provides for the immediate release and repatriation of prisoners of war upon the cessation of hostilities.
Identical rules are also contained in Geneva Convention IV. For example, Article 132 provides that “every interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.”
The crime is expressed both through actions and omissions that obstruct the repatriation of prisoners of war and civilians in the absence of valid reasons based on international humanitarian law that justify the delay.
In accordance with the aforementioned Conventions, “repatriation is the return to the country of citizenship (nationality), permanent residence, or origin of prisoners of war or civilians who were on the territory of another State for reasons related to an armed conflict (capture as prisoners of war, internment), or of civilians who wished to leave the territory of that State at the beginning of or during an armed conflict.”
The repatriation of prisoners of war or certain categories thereof is mandatory, except in special cases determined by Article 109 of Geneva Convention III (seriously ill and seriously wounded prisoners of war who do not wish to be repatriated).
At the same time, according to Article 35 of Geneva Convention IV, civilians, subject to certain restrictions, have the right to leave the territory of the enemy, but their repatriation is not mandatory either for the civilians themselves or for the State in whose territory they are located.
In this regard, criminal liability for such an act committed against a civilian arises only when that person has expressed a desire to leave the territory of the State in whose power he or she is held, and the perpetrator, in the absence of valid reasons based on international humanitarian law justifying the delay, has obstructed that person's repatriation through actions or omissions.
Valid reasons based on international humanitarian law justifying delays in the repatriation of prisoners of war and civilians may include:
the physical and mental condition of seriously ill and seriously wounded prisoners of war and civilians that makes their transportation impossible (Article 109 of Geneva Convention III);
detention until the conclusion of judicial proceedings or the completion of a sentence of prisoners of war or civilians accused of committing or having committed offences (Article 119 of Geneva Convention III, Article 133 of Geneva Convention IV);
the conflict between a civilian's desire to leave the territory of a State involved in the conflict at the beginning of or during that conflict and the State's interests, subject to the conditions provided for in Article 35 of Geneva Convention III;
the existence of force majeure circumstances at the place where prisoners of war or civilians are staying or accommodated (natural disaster, epidemic, etc.);
the existence of other valid reasons that make the repatriation of prisoners of war and civilians impossible or dangerous to their life and health.
Article 3 of Additional Protocol I provides that the application of the Geneva Conventions and Additional Protocol I shall cease “on the general close of military operations, and, in the case of occupied territories, on the termination of the occupation,” and that “persons whose final release, repatriation or re-establishment takes place subsequently” shall continue to benefit from the protection of the Geneva Conventions and Additional Protocol I “until their final release, repatriation or re-establishment.”
The time of commission of the act — the period of armed conflict — is of particular importance in the legal classification of the act.
The legal structure of the offence under Article 165 is formal. The crime is considered completed from the moment any of the actions specified in the disposition of the Article is committed.
The subjective element of the crime is characterized by direct intent: the perpetrator is aware of the social danger of the act committed and desires to perform the specified actions. The motives and purposes of the crime may vary, but they do not affect its legal classification.
The subject of the crime is general — a person who has reached the age of 16. As a rule, these are representatives of the command of the armies of the opposing parties and representatives of the occupation authorities; however, other persons may also be accomplices to the crimes.
The act provided for in Article 165 of the Criminal Code belongs to the category of particularly serious crimes.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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