Commentary on Article 162. Production, Acquisition or Sale of Weapons of Mass Destruction of the Criminal Code of the Republic of Kazakhstan
Production, acquisition or sale of chemical, biological, nuclear, as well as other types of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan —
shall be punishable by imprisonment for a term of five to ten years.
At present, the threat of an increase in the production of chemical and biological weapons continues to intensify. This is caused by the relative “low cost” of their development, the possibility of using existing means of delivery in service, as well as the desire of certain groups in industrially developed countries to profit from the trade in technologies and equipment for the production of chemical and biological weapons.
The provision on the illegal trafficking of weapons of mass destruction has been implemented (incorporated) from the relevant provisions of international law. Shortly after the end of the First World War, the use of chemical and biological weapons was condemned by the international community and prohibited by the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (commonly known as the Geneva Protocol) of June 17, 1925.
The logical outcome of the struggle to prevent the use of such weapons was the adoption and entry into force of two comprehensive documents of international law: the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction of December 16, 1971, and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of January 13, 1993.
In the Republic of Kazakhstan, the Law of the Republic of Kazakhstan “On Ratification of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction” was adopted on May 7, 2007.
The public danger of the crime under consideration lies in the fact that the possession of weapons of mass destruction by states creates a real possibility of using such weapons in the event of interstate or internal conflicts as a means of resolving the conflict in favor of the party that has used them. This creates a threat of mass loss of human life, contamination or destruction of animal and plant life, as well as other harmful consequences for society and the environment.
The production, acquisition or sale of chemical, biological, nuclear, as well as other types of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan constitutes a serious crime that poses a threat to the security of humanity. The disposition of the article lists specific acts that can be characterized by the broader term “illegal trafficking in weapons of mass destruction.”
The object of this crime is public relations aimed at protecting peace and the peaceful coexistence of states, which are threatened as a result of the production or proliferation of weapons of mass destruction.
The security of humanity is also threatened when acts of illegal trafficking in weapons of mass destruction are committed, since the crime under consideration may serve as a basis for committing an even more serious crime. For example, this protected interest may be harmed when various terrorist acts are committed using weapons of mass destruction obtained as a result of their illegal acquisition or manufacture.
As the subject matter of the crime, the current wording of Article 162 of the Criminal Code uses the generic concept of “weapons of mass destruction,” specifying their types: chemical, biological, nuclear and “other types.” In international law, weapons of mass destruction are understood to mean weapons that act indiscriminately or cause excessive damage through an explosion or by means of radioactive materials, lethal chemical and bacteriological weapons, and any other weapons that may be developed in the future and possess the properties of an atomic bomb or other weapons mentioned above. Their danger and distinction from other types of weapons, among other things, lie in the following: indiscriminate effects, meaning that the extent of the destructive force of this type of weapon cannot be clearly limited; harm to an indeterminate number of persons, since the consequences are so widespread that it is difficult to determine the exact number of victims. Their effects also extend to the environment and, consequently, raise the question of the possibility of normal existence for present and future generations.
At present, several types of weapons of mass destruction exist.
Chemical weapons are toxic substances and means of their military use, the damaging effect of which is based on the toxic properties of chemical substances and compounds which, when in gaseous or liquid form, can enter the human body through the respiratory system, skin, mucous membranes or digestive tract. They are intended to destroy manpower, but may also be used to contaminate terrain, weapons, military equipment and various rear-area facilities.
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction was signed in Paris on January 13, 1993, by 130 states and entered into force on April 29, 1997. This Convention defines in detail the constituent elements and components of chemical weapons and recognizes their trafficking and use as criminal acts: a) toxic chemicals, including reagents involved in their production, except in cases where they are intended for purposes not prohibited under the Chemical Weapons Convention, provided that their types and quantities correspond to such purposes; b) munitions and devices specifically designed to cause death or other harm through the release of toxic chemicals; c) any equipment specifically designed for use directly in connection with the use of the aforementioned munitions and devices.
Biological (bacteriological) weapons are based on the use of the disease-causing properties of microorganisms capable of causing mass diseases among humans, animals and plant life. The basis of their damaging effect consists of bacterial agents — bacteria, viruses, fungi and toxic products of their vital activity — used for military purposes through living infected disease carriers (insects, rodents, ticks) or in the form of suspensions and powders. Bacterial agents intended to affect humans include the pathogens of plague, smallpox, anthrax, tularemia, brucellosis, cholera and other diseases. Bacterial agents may be used by means of special missiles, artillery shells, aerial bombs and other munitions.
Nuclear weapons are explosive weapons of mass destruction based on the use of intranuclear energy released during chain reactions involving the fission of the nuclei of heavy isotopes of uranium and plutonium or during thermonuclear fusion reactions involving the fusion of light hydrogen nuclei — the isotopes deuterium and tritium — into heavier nuclei, for example, helium isotopes. Nuclear weapons include various nuclear munitions (warheads of missiles and torpedoes, aerial and depth bombs, artillery shells and demolition charges equipped with nuclear warheads), means of delivering them to their targets and control systems. The damaging factors are: blast wave, thermal radiation, penetrating radiation and radioactive contamination.
The system of international legal instruments regulating nuclear weapons includes: the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water; the 1968 Treaty on the Non-Proliferation of Nuclear Weapons; and the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in Their Subsoil of February 11, 1971. These agreements laid the legal foundation for the non-proliferation of nuclear weapons as the most dangerous and destructive type of weapons of mass destruction.
Another type of weapons of mass destruction includes toxic weapons, which are weapons whose damaging factor consists of protein or polypeptide substances produced as a result of the vital activity of certain microorganisms, animals and plants and capable of causing the death of humans and animals.
Toxic weapons are often regarded as a type of biological weapon. They differ from each other only in the nature of the damaging factor: in biological weapons, it is a living microorganism, whereas in toxic weapons, it is a product of metabolism.
The handling of these types of weapons is regulated at the international level by 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 December 16, 1971 (opened for signature in 1972, entered into force in 1975, and is of unlimited duration).
Scientific and technological progress and the development of new technologies may quite clearly lead to the creation in the future of new types of weapons of mass destruction that are currently unknown. For this reason, neither the acts of international law nor the disposition of Article 162 of the Criminal Code provide an exhaustive list of such types of weapons. Even today, types of weapons have been created which, by their characteristics, may be classified as weapons of mass destruction but are not legally recognized as such. For example, radiological weapons are weapons with indiscriminate effects (aimed at causing the death of an indeterminate number of people), the components of which may cause prolonged radioactive contamination of a territory.
The objective element of the crime includes several alternative acts: the production, acquisition or sale of any of the aforementioned subjects of the crime.
Compared with the previously applicable Criminal Code of July 16, 1997, the current version of Article 162 of the 2014 Criminal Code additionally identifies nuclear weapons of mass destruction as a subject matter of the crime.
The production of weapons of mass destruction may consist of any action aimed at obtaining weapons of mass destruction ready for use; the act of producing weapons of mass destruction may be carried out as a single act and under “artisanal” conditions, which must also entail an appropriate legal assessment.
To acquire weapons of mass destruction means to become their owner or possessor (regardless of whether any consideration is provided in return) as a result of purchase, exchange, receipt as a gift or in repayment of a debt, theft, etc., involving actions with respect to the subject matter of the crime.
The sale of weapons of mass destruction means the transfer of the subject matter of the crime into the possession of other persons (regardless of whether any consideration is provided in return): sale, exchange, donation, transfer in repayment of a debt, transfer for temporary use, etc.
Unlike the illegal trafficking in weapons of mass destruction, the use of such weapons (Part 2 of Article 163 of the Criminal Code) is considered a war crime against peace and the security of humanity. The use of weapons of mass destruction in an armed conflict means their direct use for the indiscriminate destruction of an indeterminate number of persons. Where any act of illegal trafficking in such weapons precedes the use of prohibited weapons of mass destruction, the act committed shall be classified cumulatively under Article 162 and Part 2 of Article 163 of the Criminal Code.
The corpus delicti is formal. The crime shall be considered completed from the moment of production, acquisition or sale of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan.
The subjective element of the crime is characterized by direct intent, meaning that the perpetrator was aware of the social danger of any of their actions involving the illegal trafficking in weapons of mass destruction (that is, the production, acquisition or sale of chemical, biological, nuclear, as well as other types of weapons of mass destruction) prohibited by an international treaty to which the Republic of Kazakhstan is a party, foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence. The motives and purposes of the crime may vary and shall be taken into account when determining the punishment.
The subject of the crime is general, meaning any sane natural person who has reached the age of 16.
The act provided for in Article 162 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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