Commentary on Article 397. Unlawful Use of the Emblems and Distinctive Signs of the Red Crescent, Red Cross and Red Crystal of the Criminal Code of the Republic of Kazakhstan

1. Unlawful use of the emblems and distinctive signs of the Red Crescent, Red Cross and Red Crystal, as well as the names Red Crescent, Red Cross and Red Crystal —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

2. The International Red Cross and Red Crescent Movement is an international humanitarian movement involving approximately 97 million volunteers worldwide. The purpose of the Movement is to protect human life and health, prevent human suffering and alleviate it, regardless of race or religious and political beliefs.

These voluntary societies assist prisoners of war, sick and wounded soldiers, and in peacetime provide assistance to persons affected by natural disasters; in a number of countries, they also carry out measures aimed at preventing diseases.

The symbols of the Movement are the Red Cross, the Red Crescent and the Red Crystal.

The International Movement had two universally recognised emblems — the red cross and the red crescent. The national society of Israel refused to use these symbols, considering them religious, and used the Red Shield of David instead. Therefore, in order to introduce another emblem that was neutral with regard to religion and state affiliation, it was decided to introduce the Red Crystal — a red square on a white background. This emblem is used on an equal footing with the red cross and the red crescent.

The fundamental principles of the Society's activities were formulated at the Conference of Representatives of 14 European countries held in Geneva on 12 August 1949 (the Geneva Convention for the Protection of Victims of War).

The Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross in Geneva in October 1986, proclaim that the national Red Cross and Red Crescent societies, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies together constitute a worldwide humanitarian movement whose mission is to prevent and alleviate human suffering, protect human life and health, and ensure respect for the human person, particularly during armed conflicts and other emergency situations; to engage in activities aimed at preventing diseases, developing healthcare and social welfare; to encourage voluntary work; to promote the readiness of members of the Movement to provide assistance at all times; and to strengthen universal solidarity with those who need assistance and protection from the Movement.

In Kazakhstan, pursuant to the Agreement between the Republic of Kazakhstan and the International Federation of Red Cross and Red Crescent Societies on the Status of the Regional Delegation of the International Federation dated 10 August 1992, the Kazakhstan Regional Delegation of the International Federation operates in the city of Almaty.

The public danger of the criminal misdemeanour provided for in Article 397 of the Criminal Code lies in the fact that it infringes upon public relations ensuring the lawful use of the emblems and signs of the Red Crescent, Red Cross and Red Crystal. The unlawful use of the emblems of the Red Crescent, Red Cross and Red Crystal endangers the lives and health of employees of these societies, as well as the lives and health of those to whom these societies provide assistance.

The object of the criminal misdemeanour provided for in Article 397 of the Criminal Code is the public relations ensuring the activities of the International Federation of Red Cross and Red Crescent Societies and the Kazakhstan Regional Delegation of the International Federation, as well as the procedure for using the symbols of the Red Cross, Red Crescent and Red Crystal.

The subject matter of this criminal offence consists of the emblems and distinctive signs of the Red Crescent, Red Cross and Red Crystal.

An emblem is a conventional representation or sign of something. An emblem is an object or an image of an object serving as a symbol that expresses a particular idea; a conventional depiction of an abstract concept or idea in drawing or sculpture, the content of which cannot be represented directly or iconically.

A sign is a mark, image or object used to mark or designate something.

Thus, the emblem of the Red Crescent, Red Cross and Red Crystal should be understood as a protective distinctive sign: the Red Crescent, Red Cross or Red Crystal on a white background.

As a protective sign, the emblem is used during armed conflicts. It must command respect and deter aggressive actions. In such cases, the emblem must be large enough to be distinguishable from a considerable distance. No additions whatsoever are permitted either to the depiction of the symbols of the Red Crescent, Red Cross and Red Crystal or to the white background itself.

The use of the emblem of the Red Crescent, Red Cross and Red Crystal as a distinctive sign is intended to indicate, primarily in peacetime, that the persons and objects bearing it are associated with the International Red Crescent, Red Cross and Red Crystal Movement. In peacetime, the emblem must be smaller in size.

The objective side of the criminal misdemeanour provided for in Article 397 of the Criminal Code consists of the unlawful use of the emblems and distinctive signs of the Red Crescent, Red Cross and Red Crystal, as well as the names Red Crescent, Red Cross and Red Crystal.

The activities of the Red Crescent and Red Cross Society in the territory of the Republic of Kazakhstan are regulated by the Decree of the President of the Republic of Kazakhstan dated 17 April 1992, "On the Activities of the Kazakh Red Crescent and Red Cross Society"; and the Model Law "On the Use and Protection of the Emblem of the Red Cross or Red Crescent, the Names 'Red Cross' and 'Red Crescent', and the Distinctive Signals Used for the Identification of Medical Units and Medical Transport Vehicles", adopted at the fourteenth plenary session of the Interparliamentary Assembly of the Member States of the Commonwealth of Independent States.

According to the Decree of the President of the Republic of Kazakhstan "On the Activities of the Kazakh Red Crescent and Red Cross Society", the Kazakh Red Crescent and Red Cross Society operates in accordance with the Geneva Agreements of 1949, the Additional Protocols of 1977, the laws of the Republic of Kazakhstan and the Fundamental Principles of the International Red Cross and Red Crescent Movement.

In accordance with paragraph 4 of the aforementioned Decree, the Kazakh Red Crescent and Red Cross Society uses the combined symbols of the red crescent and the red cross on a white background as its emblem in all cases provided for by the International Conference of the Red Cross and Red Crescent, in accordance with the Geneva Conventions of 1949, the aforementioned Decree and the Rules on the Use of the Emblem by National Societies.

According to Article 2 of the Model Law "On the Use and Protection of the Emblem of the Red Cross or Red Crescent, the Names 'Red Cross' and 'Red Crescent', and the Distinctive Signals Used for the Identification of Medical Units and Medical Transport Vehicles", during an armed conflict the emblem is used as a protective sign and constitutes a visible symbol of the protection afforded under the Geneva Conventions and Additional Protocols to medical personnel, as well as medical units and medical transport vehicles. In such cases, the emblem must be as large as possible. The emblem is used as a distinctive sign to indicate that a person or object belongs to the International Red Cross or Red Crescent Movement.

The second section of the aforementioned Model Law establishes the rules governing the use of the emblem. The emblem is used as a protective sign and as a distinctive sign.

According to Article 3 of the Model Law, under the supervision of the executive authority, the medical service of the armed forces of the State uses the Red Cross (Red Crescent) emblem both in peacetime and during armed conflict to identify its medical personnel, as well as its medical units and medical transport vehicles on land, at sea and in the air.

The executive authority issues medical personnel with armbands and identity cards bearing the image of the emblem.

Religious personnel attached to the armed forces of the State enjoy the same protection as medical personnel and are identified in the same manner.

In accordance with Article 4 of the Model Law, with the special authorisation and under the supervision of the executive authority, civilian medical personnel, civilian hospitals and other civilian medical units, as well as civilian medical transport vehicles intended, in particular, for transporting and caring for wounded, sick and shipwrecked persons, are identified during an armed conflict by the emblem of the Red Cross (Red Crescent), used as a protective sign.

Civilian religious personnel attached to hospitals and other medical units are identified in the same manner.

The national Red Cross (Red Crescent) Society of a State may place its medical personnel, medical units and medical transport vehicles at the disposal of the medical service of the armed forces of that State, in which case they are subject to military laws and regulations. With the authorisation of the executive authority, the medical personnel, medical units and medical transport vehicles of the national Red Cross (Red Crescent) Society of the State are identified by the emblem of the Red Cross (Red Crescent), used as a protective sign. The executive authority issues medical personnel of the national Red Cross (Red Crescent) Society of the State with armbands and identity cards bearing the image of the emblem (Article 5 of the aforementioned Model Law).

The use of the emblem as a distinctive sign by national Red Cross or Red Crescent societies is established in Article 6 of the Model Law. Thus, the national Red Cross (Red Crescent) Society of a State uses the emblem of the Red Cross (Red Crescent) as a distinctive sign to indicate that a person or object belongs to that national society. The emblem used as a distinctive sign must be small in size in order to avoid confusion with the emblem used as a protective sign.

Under the same conditions and with the permission of the national Red Cross (Red Crescent) Society of the State, national Red Cross or Red Crescent societies of foreign States may use the emblem to identify their medical personnel, medical units and medical transport vehicles located in the territory of that State.

It should be noted that the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies use the emblem both in peacetime and in wartime when carrying out all types of their activities.

According to Articles 10 and 11 of the Model Law, persons who intentionally and without having the right to do so use the emblem of the Red Cross or Red Crescent, the name "Red Cross" or "Red Crescent", a distinctive signal, or any sign, name or signal that imitates them or may be mistaken for them, regardless of the purpose of such use, as well as persons who use the emblem or name on signs, posters, announcements, advertising leaflets or commercial documents, or for marking goods or packaging, offer goods marked in this manner for sale or place them on the market, shall be held liable in accordance with national legislation.

In order to avoid possible confusion between the coat of arms of Switzerland and the emblem of the Red Cross, persons who use a white cross on a red background, as well as any other sign imitating it, as a factory or trademark or as the main part thereof, for purposes contrary to the customs of business practice or under circumstances that may offend Swiss national sentiments, shall be held liable in accordance with national legislation.

Persons who intentionally commit, or order the commission of, acts that cause the death or serious bodily injury or damage to the health of an adversary by using the emblem of the Red Cross, the emblem of the Red Crescent or a distinctive signal for perfidious purposes commit a war crime and shall be held liable in accordance with national legislation.

Perfidy means acts intended to induce the confidence of an adversary and make the adversary believe that they are entitled to protection or are obliged to provide such protection under the rules of international humanitarian law, for the purpose of betraying that confidence.

Thus, unlawfulness means any form of improper use of the emblems and distinctive signs (flags, armbands, etc.). The wearing of the aforementioned signs by persons who do not belong to the personnel of medical institutions is considered unlawful.

The unlawful use of the names Red Cross, Red Crescent and Red Crystal may be expressed through the hoisting of a flag or other use of their signs on objects that are not medical institutions (tents, vehicles, etc.).

By its legal structure, the criminal misdemeanour is a formal offence and is considered completed from the moment the emblems and signs of the Red Crescent, Red Cross and Red Crystal are unlawfully used.

The subjective side of the criminal misdemeanour under consideration is expressed in the form of direct intent. The offender is aware that they are unlawfully using the emblems and distinctive signs of the Red Crescent, Red Cross and Red Crystal, as well as the names Red Crescent, Red Cross and Red Crystal, and desires to do so.

The motive and purpose in relation to the criminal misdemeanour under consideration have the status of optional features of the subjective side. Accordingly, they do not affect the legal classification of the offence. Motives may vary and must be taken into account when imposing punishment.

The subject of the criminal misdemeanour provided for in Article 397 of the Criminal Code may be any sane natural person who has reached the age of 16.

The act provided for in Article 397 of the Criminal Code is classified as a criminal misdemeanour.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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 the 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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