Commentary on Article 167. Unlawful Use of Signs Protected by International Treaties of the Criminal Code of the Republic of Kazakhstan

Intentional use, contrary to international treaties, during hostilities, of the emblems of the Red Cross, Red Crescent, Red Crystal, or protective signs for cultural property, or other signs protected by international law, or the use of the national flag or state insignia of an adversary or a neutral State, or the flag or emblem of an international organization —

shall be punishable by imprisonment for a term of up to five years.

Civilian medical personnel, medical facilities, medical transport vehicles, and medical equipment during an armed conflict are identified by the emblem of the Red Crescent, which is used as a protective sign. The international legal provisions contained in Articles 38 and 39 of Additional Protocol I to the Geneva Conventions of August 12, 1949, relating to the Protection of Victims of International Armed Conflicts, dated June 8, 1977, define, in a broad sense, the recognized emblems, national emblems, as well as the circumstances in which their use is prohibited. These include:

the distinctive emblem of the Red Cross, Red Crescent, or Red Lion and Sun, or other emblems, signs, or signals provided for by the Conventions or Additional Protocol I;

internationally recognized protective emblems, signs, or signals, including the flag of truce and the protective emblem of cultural property;

the distinctive emblem of the United Nations Organization;

the flags, military emblems, military insignia, or uniforms of neutral States or other States that are not parties to the conflict;

the flags, military emblems, military insignia, or uniforms of opposing parties.

The Convention guaranteed the "neutrality" of medical personnel during wartime; in addition, it was the first to establish mechanisms for financing and operating national societies providing assistance to the wounded. A single distinctive sign guaranteeing the inviolability of medical personnel was approved. This is the Red Cross emblem on a white background. The emblem represents a reverse, inverted image of the Swiss national flag (a white cross on a red background) as a tribute to Switzerland, the country whose citizens stood at the origins of the emergence of the Red Cross and Red Crescent Movement.

A similar provision prohibiting the use, during an armed conflict and under certain conditions, of the distinctive sign of cultural property or a sign resembling the distinctive sign established by the Convention is contained in Article 17(3) of the International Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954.

The International Committee of the Red Cross is a humanitarian organization headquartered in Switzerland, forming an integral part of the International Red Cross and Red Crescent Movement, operating throughout the world and possessing international legal status. It is a neutral, impartial, and independent organization operating during armed conflicts and other situations of violence. The 1949 Geneva Convention established the legal status of the International Committee of the Red Cross; therefore, the Red Cross and Red Crescent signs are protected throughout the world. National Red Cross and Red Crescent Societies have been established in the States that have acceded to this Convention.

In accordance with international standards, the emblems and signs of the Red Cross and Red Crescent may be used only to identify personnel, vehicles, and facilities belonging to the societies of the International Committee of the Red Cross.

Every State Party to the Geneva Conventions is obliged to take measures aimed at preventing and suppressing abuses in the use of the Red Cross emblem.

This is also evidenced by the Model Law "On the Use and Protection of the Emblems of the Red Cross, Red Crescent, Red Crystal and the Names 'Red Cross', 'Red Crescent', 'Red Crystal', Distinctive Signals Used for the Identification of Medical Units and Medical Transport Vehicles", adopted by Resolution No. 33-12 of December 3, 2009, of the Interparliamentary Assembly of Member States of the Commonwealth of Independent States.

The social danger of the act under consideration lies in the perfidy manifested during hostilities and the failure to comply with the principles governing the legal regulation of armed conflicts, namely, the simulation of entitlement to protected status through the use of signs, emblems, or uniforms of the United Nations Organization, neutral States, or other States that are not parties to the conflict.

The object of the crime is the social relations aimed at preventing and suppressing abuses, during hostilities, involving the emblems of the Red Cross, Red Crescent, Red Crystal, or protective signs for cultural property, or other signs protected by international law, as well as the national flag or state insignia of an adversary or a neutral State, or the flag or emblem of an international organization.

The subject matter of the crime is defined in Articles 38 and 39 of Additional Protocol I to the Geneva Conventions of August 12, 1949, relating to the Protection of Victims of International Armed Conflicts, dated June 8, 1977, Article 17 of the International Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954, and other international legal instruments.

The list of signs protected by international law is of a blanket nature, since, in addition to specifying the emblems of the Red Cross and Red Crescent and protective signs for cultural property, it refers to other signs protected by international law. This list is not exhaustive, which makes it possible to expand it, without amending criminal legislation, upon the conclusion of an international treaty providing for the prohibition of the use, contrary to international law during an armed conflict, of other types of such signs.

From the objective side, this crime is expressed in the intentional use, contrary to international treaties during hostilities, of the emblems of the Red Cross, Red Crescent, Red Crystal, or protective signs for cultural property, or other signs protected by international law, as well as in the use of the national flag or state insignia of an adversary or a neutral State, or the flag or emblem of an international organization.

Such actions, for example, the use of these signs by military combat units as a means of camouflage, constitute perfidy in their substance. In accordance with paragraph 1 of Article 37 of Additional Protocol I, "perfidy consists of acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence."

Use means the application of something or someone for specific purposes. Unlawfulness means any form of improper use of emblems and distinctive signs (flags, armbands, etc.). The unlawful use of the names Red Cross and Red Crescent may be expressed in hoisting the flag or otherwise using the signs of the Red Cross or Red Crescent on facilities that are not medical facilities (tents, vehicles, etc.).

Personnel bearing the distinctive emblems of the Red Cross or Red Crescent who, under their cover, take part in hostilities lose the protection afforded to them under international humanitarian law.

The mandatory element of the objective side of the crime under analysis is the time of hostilities.

The unlawful use of the emblems and distinctive signs of the Red Crescent, Red Cross, and Red Crystal, as well as the names Red Cross, Red Crescent, and Red Crystal, in peacetime entails criminal liability under Article 397 of the Criminal Code.

In terms of the structure of its objective side, the corpus delicti is formal. The crime is deemed completed from the moment individuals unlawfully use the emblems of the Red Cross, Red Crescent, or Red Crystal, or protective signs for cultural property, or other signs protected by international law, as well as the national flag or state insignia of an adversary or a neutral State, or the flag or emblem of an international organization.

From the subjective side, this crime may be committed with direct intent. The offender is aware that they are using emblems, protective signs, and other signs protected by international law, national flags, state insignia, flags, or emblems of an international organization contrary to their intended purpose, and desires to do so.

Motives and purposes are irrelevant for the qualification of the crime; however, they are taken into account by the court when determining the punishment.

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

The act provided for in Article 167 of the Criminal Code is classified as a medium-gravity crime.

Commentary of 2021 on 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 the 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.

Constitution Law Code Regulatory Decree Order Decision Resolution Advocate Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages