Commentary on Article 163. Use of Prohibited Means and Methods of Warfare of the Criminal Code of the Republic of Kazakhstan

1. Cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, destruction or plunder of national property in occupied territory, use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan —

shall be punishable by deprivation of liberty for a term of ten to fifteen years, with or without deprivation of citizenship of the Republic of Kazakhstan.

2. Use of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan —

shall be punishable by deprivation of liberty for a term of fifteen to twenty years or life imprisonment, with or without deprivation of citizenship of the Republic of Kazakhstan, or by the death penalty.

The public danger of this crime lies in the fact that excessive cruelty in war and gross disregard for its laws and customs provoke corresponding and even greater cruelty on the part of the opposing side, as well as postponing attempts to resolve the conflict by peaceful means. The right of parties to an armed conflict to choose methods and means of warfare is not unlimited; they are divided into permitted and prohibited means and methods.

The fundamental provisions characterizing the methods and means of warfare are set out in Article 35 of the Additional Protocol to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I), dated 8 June 1977: “...2. It is prohibited to employ weapons, projectiles, materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

These rules and principles apply to armed conflicts of both international and non-international character (internal armed conflicts). International law has, in essence, abandoned the use of the traditional term “law of war” and moved to the term “law of armed conflict” (or “international humanitarian law applicable in situations of armed conflict”).

The law of armed conflict is a body of international legal principles and rules governing relations between States and other subjects of international law during the conduct of hostilities, prohibiting or restricting the means of warfare and providing for the humanization of methods of warfare in order to protect victims of armed conflicts.

The object of this crime is the social relations regulated by international law that ensure the bona fide fulfilment of international obligations concerning the use of means and methods of conducting military operations.

Additional objects may include: life, health, sexual freedom and inviolability, personal dignity, physical liberty, property, etc. In certain cases, the subject matter of the criminal offence acquires legal significance: national property, civilian objects, movable and immovable property belonging to others; the identity of the victim: a combatant, prisoner of war, representative of the civilian population of occupied territory, etc.

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

cruel treatment of prisoners of war or the civilian population;

deportation of the civilian population;

destruction or plunder of national property in occupied territory;

use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan.

For a proper understanding of the legal status of prisoners of war and the civilian population (victims of cruel treatment), it is necessary to refer to international legal instruments.

The categories of persons classified as prisoners of war and persons accorded prisoner-of-war status are defined in Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. In particular, pursuant to this Article:

“A. Prisoners of war, within the meaning of the present Convention, are persons belonging to one of the following categories who have fallen into the power of the enemy:

Members of the armed forces of a Party to the conflict, as well as members of militias and volunteer corps forming part of such armed forces.

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in their own territory or outside it, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

they are commanded by a person responsible for his subordinates,

they have a fixed distinctive sign recognizable at a distance,

they carry arms openly,

they conduct their operations in accordance with the laws and customs of war.

Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, for which purpose the latter shall provide them with an identity card in the attached model.

Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

Inhabitants of non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

Persons belonging, or having belonged, to the armed forces of the occupied country, if the Occupying Power considers it necessary to intern them by reason of such allegiance, even though it had originally liberated them while hostilities were taking place outside the territory it occupies, particularly where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in hostilities, or where they fail to comply with a summons made to them with a view to internment.

Persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, the fifth paragraph of Article 30, Articles 58–67, 92 and 126, and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those provisions concerning the Protecting Power. Where such diplomatic relations exist, the Parties to the conflict on whom these persons depend shall be permitted to perform towards them the functions of a Protecting Power as provided for in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.”

Persons belonging to the armed forces of a Party to the conflict (with the exception of medical and religious personnel) are combatants, i.e. they have the right to participate directly in hostilities.

Article 44 of the Additional Protocol to the Geneva Conventions of 12 August 1949 establishes that any combatant who falls into the power of the adverse Party is a prisoner of war.

The category of “prisoner of war” includes: 1) a combatant who has fallen into the power of the adverse Party; 2) a person whose status is equivalent to that of a prisoner of war. The Geneva Convention relative to the Treatment of Prisoners of War applies to the persons concerned from the moment they fall into the power of the enemy until their final release and repatriation (return to their homeland).

The definition of “prisoner of war” is not applicable to armed conflicts of a non-international character. Additional Protocol II to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts, dated 8 June 1977, uses the term “persons whose liberty has been restricted for reasons related to the armed conflict”.

Prisoner-of-war status also does not extend to spies and mercenaries (Articles 46 and 47 of Additional Protocol I). In contemporary history, there have been precedents in which prisoner-of-war status was not extended to terrorists on the grounds that they do not comply with the rules and customs of warfare.

Cruel treatment of prisoners of war includes their killing, torture, torment, inhuman treatment, including biological experiments, the infliction of severe suffering, causing damage to health (of any degree of severity), unlawful deprivation of liberty, hostage-taking and rape.

Based on the definition contained in Articles 3 and 4 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, the category of “civilian population” in an international armed conflict comprises all persons located in the territory of the States involved in the conflict who are not combatants (are not regarded as combatants), spies or mercenaries; in non-international armed conflicts, it comprises persons who do not take part in hostilities.

International law recognizes the rule that the civilian population not participating in the war must enjoy inviolability. When conducting operations, belligerent parties must constantly take care to spare civilian objects (dwellings, buildings, means of transport, shelters, hospitals, etc.), food supplies, areas where they are produced, as well as sources of water. With regard to the civilian population of occupied territory, violence against their life, health, physical or mental condition is prohibited, in particular: murder; torture of all kinds; corporal punishment; mutilation; outrages upon human dignity, in particular humiliating or degrading treatment; compelling persons to engage in prostitution or any form of indecent assault; hostage-taking; collective punishment; and threats to commit any of the above-mentioned acts (the 1977 Additional Protocol to the 1949 Geneva Conventions for the Protection of War Victims).

Cruel treatment of prisoners of war and the civilian population should be understood as any act of violence against such persons, as defined in the rules of international criminal law, which violates the lawful rights and interests of prisoners of war or civilians or poses a threat to the physical or personal status of such persons.

The murder of a prisoner of war or civilian under aggravating circumstances requires additional qualification under Part 2 of Article 99 of the Criminal Code.

Deportation of the civilian population means its forcible removal from the territory it occupies to a specified place or expulsion from its native places without specifying a destination. Article 49 of Convention (IV) relative to the Protection of Civilian Persons in Time of War states that the forcible transfer and deportation of such population from occupied territory to the territory of the Occupying Power or to the territory of any other State, whether occupied or not, are prohibited, regardless of the grounds. At the same time, the total or partial evacuation of the population of an occupied area is permitted if the security of that population or imperative military reasons so demand. Evacuated persons may be transferred only to the interior of the occupied territory, except where this is materially impossible.

Under international law, in an international conflict, the deportation of both the civilian population of the opposing Party and one's own civilian population is recognized as an international crime. Deportation constitutes a particular form of cruel treatment, since it is always forcible in nature and creates a real threat to the vital interests of civilians. The forcible or indirect, individual or mass deportation of civilians (the civilian population) within or beyond the occupied territory, as well as to the territory of States not participating in the conflict, constitutes a crime.

“Indirect” displacement of the civilian population of occupied territory means that no direct violence is used against such population, but conditions are created under which civilians residing in occupied territory are forced to leave it.

If deportation is aimed at the complete or partial destruction of a national, ethnic, racial or religious group, it must be classified as genocide on the basis of the forcible transfer of persons calculated to bring about the physical destruction of members of that group (Article 168 of the Criminal Code).

Plunder of national property in occupied territory means the theft of cultural property and civilian objects not justified by military necessity, their appropriation by the Occupying Party, and the removal of property from the occupied territory.

Destruction of property means the complete loss of its consumer properties and economic value, that is, rendering it unusable for its intended purpose in such a way that the properties it has lost cannot be restored.

Damage means the infliction of harm to property that substantially reduces its economic and commercial value and, consequently, diminishes the possibility of using it for its intended purpose. Unlike destruction, which means the irrecoverable loss of an item, damage entails only a deterioration in the item's quality, which may be remedied through restoration, repair, etc.

The alienation of property resulting from annexation, contributions and reparations does not fall within these concepts, as such matters are determined by the terms of the surrender agreement.

Annexation is the forcible incorporation by one State, through unilateral action, of all or part of the territory of another State. Contribution is a sum of money paid by the defeated State to the victor after the end of a war to compensate for military expenses.

Reparations are a form of material responsibility of a subject of international law for damage caused to another subject of international law as a result of an international wrongful act committed by it; in particular, compensation by a State, pursuant to a peace treaty or other international instruments, for damage caused by it to States that have been subjected to attack.

National property is an aggregate of material carriers of the spiritual values of a particular people. National values include any nationwide or State property, or property belonging to individual natural or legal persons in respect of which the State has established a special protection regime, including cultural property.

Article 1 of the International Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 classifies the following as such property:

movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; architectural ensembles which, as such, are of historical or artistic interest; works of art; manuscripts; books; other objects of artistic, historical or archaeological interest; as well as scientific collections or important collections of books, archival materials or reproductions of the property mentioned above;

buildings whose main and effective purpose is to preserve or exhibit movable cultural property referred to in subparagraph “a”, such as museums, large libraries, archival repositories, as well as shelters intended to preserve, in the event of armed conflict, the movable cultural property referred to in subparagraph “a”;

centres containing a considerable amount of cultural property referred to in subparagraphs “a” and “b”, so-called “centres containing monuments”.

The protection of the said property includes its safeguarding and respect. Belligerent parties are obliged to refrain from any hostile act directed against such property. Any acts of vandalism against it and the looting of cultural property located in the territory of another country are prohibited.

The term “national” does not imply the process of nationalization of property; rather, it refers to the fact that such property is located in the territory of an opposing State, even if the property belongs to another State, for example, property belonging to the embassy of a non-belligerent State.

Military occupation is understood as the temporary occupation, during a war, of the territory of one State by the armed forces of another State and the assumption by the occupying State of the administration of those territories. At the same time, the occupied territory legally remains the territory of the State to which it belonged before the occupation. The regime of military occupation must be distinguished from the regime of post-war occupation as a measure of international legal responsibility of a State for aggression.

Means of warfare are weapons and other military equipment used by the armed forces of belligerent parties to destroy the enemy's manpower and material resources, suppress its forces and undermine its ability to resist. A prohibited means of conducting an armed conflict means the use of any type of weapon, military equipment or other means used to inflict harm on the enemy, provided that such means is capable of causing excessive suffering and torment or excessive damage. The use of weapons of mass destruction does not fall within the elements of Part 1 of Article 163 of the Criminal Code.

Certain types of conventional weapons may be prohibited. On 10 October 1980, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects was adopted (United Nations General Assembly Resolution 3093). The Protocols annexed to this Convention prohibit the use of any weapon that injures by means of fragments which cannot be detected in the human body by X-rays, and also restrict the use of certain types of land mines, booby-traps and certain types of incendiary weapons. This Convention was ratified by the Republic of Kazakhstan (Law of the Republic of Kazakhstan dated 23 February 2009 “On Ratification of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and the Protocols thereto: Protocol on Non-Detectable Fragments (Protocol I), Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), and Protocol on Blinding Laser Weapons (Protocol IV)”).

Methods of warfare are the procedures and various ways of using the means of warfare for the purposes specified above, as well as the manner in which military operations are conducted as a whole.

The following methods of conducting military operations are prohibited: using the civilian population as a “shield”; using prisoners of war and the civilian population for the donation of organs and tissues; issuing orders to “leave no one alive”; and unlawfully using the distinctive emblems of the Red Cross and the United Nations, as well as the flags, emblems and uniforms of neutral countries or States not participating in the conflict. It is prohibited to kill, injure or capture an adversary by resorting to perfidy, which means acts designed to inspire the confidence of an adversary and lead them to believe that they are entitled to protection under the rules of international law. At the same time, international law does not prohibit the use of military ruses intended to mislead the enemy and induce it to act recklessly.

Article 25 of the Fourth Hague Convention of 18 October 1907 prohibits attacking or bombarding, by whatever means, undefended towns, villages, dwellings or buildings.

Classification of an act as “the use in an armed conflict of means and methods of warfare prohibited by an international treaty of the Republic of Kazakhstan” is possible only where the relevant means or method does not fall within the scope of the other acts specified in Parts 1 and 2 of Article 163 of the Criminal Code.

The elements of this crime are formal-material. The crime is deemed completed from the moment any act characteristic of cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, or the use in an armed conflict of means and methods prohibited by an international treaty of the Republic of Kazakhstan is committed. The elements of the crime in its third form are formulated as material: the crime is deemed completed from the moment socially dangerous consequences occur in the form of damage caused to the owner or another possessor of national property as a result of its destruction or plunder.

The subjective element of this crime is characterized by direct intent, since the perpetrator is aware that they are using prohibited means and methods of warfare in an armed conflict in the form of cruel treatment of prisoners of war or the civilian population, deportation of the civilian population, etc., and wishes to commit such acts.

The subject of the crime is a sane natural person who has reached the age of 16.

Part 2 of the Article under commentary provides for liability for the use of weapons of mass destruction prohibited by an international treaty of the Republic of Kazakhstan.

The use of weapons of mass destruction in an armed conflict, as an act, means their direct use for the indiscriminate destruction of an unspecified group of persons. Weapons of mass destruction whose use is prohibited include biological and chemical weapons (the commentary to Article 162 of the Criminal Code provides a definition of weapons of mass destruction). Chemical and bacteriological (biological) weapons constitute prohibited means of warfare, the effects of which are based on the use of the disease-causing properties of microorganisms capable of causing epidemics of such dangerous diseases as plague, cholera, typhus, etc. The legal basis for prohibiting the use of this type of weapon of mass destruction is 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 16 December 1971. This Convention obliges States not only to refrain from developing, producing and acquiring any types of bacteriological weapons, but also to destroy such weapons.

The limitation periods for criminal prosecution and for the enforcement of a conviction do not apply to persons who have committed this crime.

The acts provided for in Parts 1 and 2 of Article 163 of the Criminal Code are classified as especially serious crimes.

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 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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