Commentary on Article 166. Inaction or Issuing a Criminal Order During an Armed Conflict of the Criminal Code of the Republic of Kazakhstan

1. The intentional failure by a superior or official, during an armed conflict, to take all possible measures within the scope of their authority to prevent subordinate persons from preparing or to suppress subordinate persons from committing criminal violations of the laws and customs of war or the norms of international humanitarian law —

shall be punishable by deprivation of liberty for a term of seven to fifteen years.

2. The issuance by a superior or official, during an armed conflict, to a subordinate of an order to leave no one alive or of other knowingly criminal orders or instructions aimed at committing criminal violations of the laws and customs of war or the norms of international humanitarian law —

shall be punishable by deprivation of liberty for a term of ten to twenty years.

The international legal basis for criminalizing the acts provided for in Article 166 of the Criminal Code is, firstly, paragraph 2 of Article 86 of Additional Protocol I, which imposes liability on superiors and officials in cases where they knew, or had information at their disposal which should have enabled them to conclude, in the circumstances existing at the time, that a subordinate was committing or was going to commit a violation of international humanitarian law, and where they failed to take all practically possible measures within the scope of their authority to prevent or suppress that violation. Secondly, the criminal law prohibition follows from Article 40 of Additional Protocol I, which prohibits “ordering that there shall be no survivors, threatening an adversary therewith, or conducting hostilities on this basis.”

In accordance with Article 2 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted on 25 May 1993 by Security Council Resolution 827 (1993) at its 3217th meeting, the Tribunal “shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: 1) wilful killing; 2) torture or inhuman treatment, including biological experiments; 3) wilfully causing great suffering or serious injury to body or health; 4) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 5) compelling a prisoner of war or a civilian to serve in the forces of a hostile Power; 6) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; 7) unlawful deportation or transfer or unlawful confinement of a civilian; 8) taking civilians as hostages.”

This power is also provided for in Article 4 of the Statute of the International Criminal Tribunal for Rwanda, adopted by Resolution 955 at the 3453rd meeting of the United Nations Security Council on 8 November 1994. This list (which is not exhaustive) includes: 1) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; 2) collective punishments; 3) taking of hostages; 4) acts of terrorism; 5) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; 6) pillage; 7) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; 8) threats to commit any of the foregoing acts. Identical elements of crimes are formulated in Article 3 of the Statute of the Special Court for Sierra Leone (16 January 2002).

For the purposes of the Rome Statute, war crimes mean: 1) grave breaches of the Geneva Conventions of 12 August 1949; 2) other serious violations of the laws and customs applicable in international armed conflicts within the established framework of international law.

In particular, it provides that “the fact that a superior knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes, and failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution” does not relieve the superior of criminal or disciplinary responsibility, as the case may be.

The object of the crime under consideration is international relations associated with the fulfilment by the State of its obligations undertaken in the field of international humanitarian law during an armed conflict.

The objective element of this crime is expressed in inaction, i.e. the evasion by a superior or official of the legal duty imposed upon them to prevent subordinate persons from preparing or to suppress subordinate persons from committing criminal violations of the laws and customs of war or the norms of international humanitarian law, as a result of which a threat of socially dangerous consequences arises or such consequences occur. In establishing criminal liability for inaction, it is necessary to establish not only the person's duty but also their ability to act.

A superior or official shall be subject to criminal liability for failing to exercise proper control over subordinates if they:

knew and consciously disregarded information that clearly indicated that subordinates were committing or intended to commit such crimes;

failed to take all necessary and reasonable measures within the scope of their authority to prevent or suppress their commission, or to refer the matter to the competent authorities for investigation and criminal prosecution;

the crimes concerned activities falling within their responsibility and control.

The procedure governing military subordination is determined by the Internal Service Regulations of the Armed Forces, Other Troops and Military Formations of the Republic of Kazakhstan, approved by Decree No. 364 of the President of the Republic of Kazakhstan dated 5 July 2007. By establishing the division of all military personnel into superiors (by virtue of their official position and military rank) and subordinates, the Regulations govern the relations between them in the course of performing military service duties.

The powers of officials are determined by the relevant regulatory legal acts of the Republic of Kazakhstan. For example, subparagraph 19) of paragraph 1 of the Internal Service Regulations of the Armed Forces establishes that a military servicemember is obliged to “know and strictly observe the provisions of international humanitarian law, including international rules governing the conduct of military operations, the treatment of wounded and sick persons, persons shipwrecked from the armed forces of the enemy, and the civilian population in the area of hostilities, as well as prisoners of war.”

A subordinate means a person who, by virtue of their official position or military rank, is obliged to comply with the orders and instructions of a superior or official.

It should be noted that 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 an International Criminal Court in Rome on 17 July 1998, provides for grounds for exempting a person from criminal liability for a war crime if, at the time of the commission of the act:

“a) the person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of their conduct, or capacity to control their conduct to conform to the requirements of law;

the person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of their conduct, or capacity to control their conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew that, as a result of the intoxication, they were likely to engage in conduct constituting a crime within the jurisdiction of the Court, or disregarded the risk of engaging in such conduct;

the person acts reasonably to defend themselves or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected;

the conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be made by other persons or constituted by other circumstances beyond that person's control” (Article 31).

The list of grounds for exemption from criminal liability provided above is not exhaustive.

An obligatory feature of the objective element is the time of commission of the crimes — the period of an armed conflict.

Article 166 establishes special elements of crimes — inaction by an official and abuse of authority; therefore, additional qualification under Articles 361, 370, 450 or 452 of the Criminal Code is not required.

The corpus delicti is formal. The crime shall be deemed completed from the moment the inaction begins, when the superior (official) had the ability, within the scope of their authority, to take all possible measures to prevent subordinate persons from preparing or to suppress subordinate persons from committing criminal violations of the laws and customs of war or the norms of international humanitarian law.

The subjective element of the crime is characterized by direct intent. The perpetrator is aware of the criminal nature of the conduct of the subordinate who is committing or preparing to commit a violation of international humanitarian law and does not wish to oppose it.

The subject of the crime is special: it is a superior or an official.

Superiors by virtue of their official position are military servicemembers who are entrusted with the permanent or temporary management of the official activities of other military servicemembers (commanders, heads of services, etc.).

By virtue of their official position, the following are considered superiors: the President of the Republic of Kazakhstan (Supreme Commander-in-Chief of the Armed Forces of the Republic of Kazakhstan), heads of the Armed Forces, other troops and military formations from among civilian personnel, and military servicemembers exercising leadership over subordinates in accordance with their official duties associated with their established staff positions.

A commander is a superior in relation to subordinates.

Superiors to whom military servicemembers are subordinate in the course of their service, even temporarily, are direct superiors.

The direct superior closest to the subordinate is called the immediate superior.

By virtue of their military rank, the following military servicemembers are considered superiors in relation to those who are not connected to them by the chain of command:

army generals — in relation to all military servicemembers;

colonel generals, admirals — in relation to all senior and junior officers, sergeants (petty officers), soldiers (sailors);

lieutenant generals, vice admirals, major generals, rear admirals, colonels, captains of the 1st rank — in relation to all junior officers, sergeants (petty officers), soldiers (sailors);

officers — in relation to sergeants (petty officers), soldiers (sailors);

sergeants (petty officers) — in relation to soldiers and sailors of the same military unit.

Military servicemembers who, by virtue of their official position and military rank, are neither superiors nor subordinates in relation to other military servicemembers may be senior or junior. Seniority is determined by the military ranks of the military servicemembers.

When military servicemembers who are not subordinate to one another perform duties jointly, and their official relationships have not been determined by the commander (superior), the one holding the higher position, and where the positions are equal, the one with the higher military rank, shall be the superior.

An official is a person who, permanently, temporarily or by special authority, performs the functions of a representative of authority or carries out organizational and administrative or administrative and economic functions in state bodies, local self-government bodies, as well as in the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan (subparagraph 26) of Article 3 of the Criminal Code).

Part 2 of the article under consideration provides for liability for issuing to a subordinate, during an armed conflict, an order to “leave no one alive” or another knowingly criminal order or instruction aimed at committing criminal violations of the laws and customs of war or the norms of international humanitarian law. Article 40 of Additional Protocol I prohibits “ordering that there shall be no survivors, threatening an adversary therewith, or conducting hostilities on this basis.”

In national legislation, the relevant prohibition is established in Part 4 of Article 5 of the Law of the Republic of Kazakhstan dated 16 February 2012 “On Military Service and the Status of Military Servicemen”: “Commanders (superiors) are prohibited from issuing orders (instructions) and directives that are unrelated to the performance of military service duties or aimed at violating the legislation of the Republic of Kazakhstan.”

An order is a written or oral instruction issued by a superior, expressed in strict compliance with the law, binding for execution and constituting the principal act of military administration. Orders communicate combat missions to troops and regulate the daily life of military units. The form of the order is irrelevant for the purposes of legal qualification.

The knowingly criminal nature of an order or instruction being issued means that the superior or official is aware of its manifest and obvious inconsistency with the requirements of criminal law and international humanitarian law.

When a person commits a war crime, that person shall be subject to criminal liability without any reference to the execution of an order or instruction, owing to the manifestly criminal nature of the act committed.

In the event of execution of a criminal order, liability for the resulting consequences shall be borne not only by the superior who issued such an order but also by the subordinate who executed it. The basis for holding the person executing the order liable is their knowing awareness of the criminal nature of the superior's instruction. In addition, liability for harm caused in execution of a binding but criminal order should arise where the person executing it had a real opportunity not to comply with the order in such a situation. The superior shall act as an organizer.

Paragraph 33 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 28 October 2005 “On Judicial Practice in Cases Involving Military Criminal Offences” explains that the precise execution of an order issued by a superior (commander), which is binding for execution, exempts a subordinate from liability for actions committed pursuant to that order and for their consequences, provided that the subordinate was not aware of the unlawfulness of the order being executed.

The commission by a subordinate of a crime in execution of a knowingly unlawful order issued by a superior (commander) entails the subordinate's criminal liability jointly with the superior (commander) who issued the unlawful order.

Failure by a subordinate to execute a knowingly unlawful order issued by a superior (commander) excludes the subordinate's criminal liability.

The intentional commission of a crime in execution of a knowingly unlawful order issued by a superior (commander) should be distinguished from cases where a subordinate commits a crime in complicity with a superior (commander), where no relationship of subordination arises between them and they enter into a prior conspiracy to jointly carry out a criminal intent. In such cases, the liability of the superior (commander) and the subordinate arises in accordance with the general rules governing the forms of complicity.

Exemption of the person executing the order from criminal liability is possible if the following conditions are met: firstly, if the person executing the order was obliged to comply with an order issued by the government or a superior; secondly, if the person executing the order did not know that the order was unlawful or the order itself was not manifestly unlawful in nature.

Orders to commit crimes of genocide or crimes against humanity are manifestly unlawful (paragraph 2 of Article 33 of the Rome Statute).

The official position of a person who has committed a war crime (head of State or head of Government) does not exempt that person from criminal liability and does not, in itself, constitute grounds for mitigation of the sentence.

If such an order is not executed due to circumstances beyond the perpetrator's control, the fact that an official (superior) issued an order to commit a war crime must be regarded as an inchoate crime in respect of the person who issued that order.

Under Part 2 of the article under consideration, the crime shall be deemed completed from the moment a superior or official, during an armed conflict, issues to a subordinate an order to leave no one alive or other knowingly criminal orders or instructions aimed at committing criminal violations of the laws and customs of war or the norms of international humanitarian law. Consequences are not an obligatory element of the elements of crimes contained in the article under consideration. If consequences occur, they may be taken into account when imposing punishment on the perpetrator.

The subjective element of the crime provided for in Part 2 of Article 166 of the Criminal Code is characterized by direct intent. The perpetrator is aware of the criminal nature of the order or instruction being issued by them during an armed conflict and wishes to issue it.

The acts provided for in Parts 1 and 2 of Article 166 of the Criminal Code are classified as especially grave crimes.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker 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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