Commentary on Article 171. Establishment of Bases (Camps) for the Training of Mercenaries of the Criminal Code of the Republic of Kazakhstan
The establishment of a base (camp) knowingly intended for the training of mercenaries, or the provision of premises or a land plot knowingly for the same purposes, shall be punishable by imprisonment for a term of seven to twelve years, with confiscation of property.
The establishment of a base (camp) knowingly intended for the training of mercenaries, or the provision of premises or a land plot knowingly for the same purposes, constitutes one of the main internal threats to military security.
One of the negative consequences of globalization has been the internationalization of terrorist activities. As practice demonstrates, many terrorist organizations around the world maintain strong mutual ties or establish occasional contacts to provide assistance to one another by supplying cover documents, exchanging information, organizing training camps and places of refuge for terrorists after they have committed unlawful acts, assisting in the recruitment of mercenaries, and placing their military instructors, militants, and other participants in terrorist activities at the disposal of another organization.
In a number of countries, particularly in border territories (“grey zones”), camps for training terrorists operate. The first information about international links between terrorist groups and their mutual support through weapons and information appeared as early as the beginning of 1972. At that time, reports emerged in the press that terrorists from the United States (American Weathermen) and Turkey (Turkey’s Dev Gene), the IRA, and Sandinista guerrillas from Nicaragua had attempted to conduct joint summer training exercises at the bases of Palestinian camps in Jordan. At the same time, according to the Irish Times newspaper, small groups of IRA militants received instruction in the use of explosives and guerrilla warfare techniques in Lebanon.
For Kazakhstan, which has come to the attention of international terrorist groups, it is important to pay particular attention to those regions and localities that may be used by terrorist groups to establish camps for training militants.
The public danger of the crime under consideration lies in the fact that it creates a threat of resolving issues of state-building and government through unconstitutional and violent means, while the uncontrolled actions of a significant number of armed individuals generate social tension in society, carrying a potentially high risk of causing harm to individuals, human casualties, and substantial material damage.
The object of this crime is peace (see the commentary to Article 160 of the Criminal Code) and international law and order (see the commentary to Article 170 of the Criminal Code), in the form of renunciation of war as a means of resolving contentious issues of international politics and non-interference in the internal affairs of other states.
An additional object is the rules governing the conduct of war and the formation of national armed forces, as established by international treaties.
The objective element of the crime is expressed in one of two actions:
in the establishment of a base (camp) knowingly intended for the training of mercenaries;
in the provision of premises or a land plot knowingly intended for the training of mercenaries.
The establishment of a base (camp) means activities involving the development of its structure, functional purpose, chain of subordination and management system, recruitment and logistical support, as well as the recruitment of people, allocation of responsibilities among them, development of internal rules of conduct, etc.
Base (camp): 1) a place where troops are stationed, usually temporarily, in the open air, in tents; 2) a position occupied by troops for an extended period and adapted for accommodation and protection; 3) a temporary settlement or encampment.
Military base — a specially equipped area (section of terrain) strategically located from a military standpoint, ensuring the deployment and combat and day-to-day activities of formations and units (forces and assets) of various branches of the armed forces.
The owner has the right, at their discretion, to perform any actions with respect to property belonging to them, including alienating such property into the ownership of other persons, transferring to them, while remaining the owner, their rights to possess, use, and dispose of the property, pledging the property and encumbering it in other ways, and disposing of it otherwise. However, the exercise by the owner of their powers must not violate the rights and legally protected interests of other persons or the state (Article 188 of the Civil Code of the Republic of Kazakhstan).
Provision of premises means the transfer of premises by one party (the owner) into the temporary possession and use of another party (in the case of paid use — the tenant or lessee; in the case of gratuitous use — the borrower) for the purpose of training mercenaries (Articles 540, 581, and 604 of the Civil Code of the Republic of Kazakhstan).
Provision of a land plot means the transfer by a land user of a land plot belonging to them for temporary land use (granting a person the right to use land) to another person (a secondary land user), knowingly for the purpose of training mercenaries (Articles 31, 32, and 33 of the Land Code of the Republic of Kazakhstan dated June 20, 2003).
The terms “mercenary” and “training of mercenaries” are characterized in the commentary to Article 170 of the Criminal Code.
By its construction, the corpus delicti is formal. The crime is considered completed from the moment any action aimed at establishing a base (camp) is committed, or from the moment the premises or land plot is transferred.
The subjective element of the crime is characterized by direct intent and a special purpose, since it presupposes that the perpetrator knowingly, that is, with full awareness, establishes a base (camp) for the training of mercenaries or provides premises or a land plot for the same purposes. If the person is under an honest misconception regarding the intended purpose of the premises or land plot, the elements of the crime are absent. The purpose of the crime is the training of mercenaries.
The subject of this act is a physically competent individual who has reached the age of 16.
Article 171 of the Criminal Code classifies this offense as a serious crime.
The act provided for in Article 171 of the Criminal Code belongs to the category of serious crimes.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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