I. GENOCIDE

Although mass exterminations of various human groups by other human groups have happened throughout history, the term “genocide” only emerged in the twentieth century. It was suggested by a Polish-born American lawyer, Raphael Lemkin (1900–59).Footnote ⁴ Lemkin suggested developing a Convention on the Prevention and Punishment of the Crime of Genocide, since the substantive jurisdiction of the Nuremberg Tribunal with respect to crimes against humanity was limited to acts related to other crimes within the jurisdiction of the TribunalFootnote ⁵—and hence the Tribunal had no jurisdiction with respect to discriminatory manifestations of the Holocaust, which had occurred before 1 September 1939. The term “genocide” was composed from the roots of the Greek word γένος (“people”) and the Latin word “caedare” (“to kill”), and was first used in Lemkin's book published in 1944.Footnote ⁶ The Genocide Convention was adopted on 9 December 1948, and since then the concept of genocide has been implemented in the domestic penal laws of many states, including the Republic of Kazakhstan.

Article 168 of Kazakhstan´s Criminal Code largely corresponds to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, which lays down that genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as:

1. (a) killing members of the group;

2. (b) causing serious bodily or mental harm to members of the group;

3. (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. (d) imposing measures intended to prevent births within the group;

5. (e) forcibly transferring children of the group to another group.

The conventional definition of genocide became standard in that it formulates three attributes of genocide, which must exist cumulatively. First, the Convention protects only racial, national, ethnic, and religious groups. In other words, the Convention does not protect other identifiable human groups—for example, political parties or movements—and the use of the term “genocide” to designate persecution of political, professional, gender, or other social groups is incorrect.Footnote ⁷ Second, the crime of genocide can be committed by any method listed in Article II of the Convention, and, in accordance with Article III, the following acts are punishable:

1. (a) genocide;

2. (b) conspiracy to commit genocide;

3. (c) direct and public incitement to commit genocide;

4. (d) attempt to commit genocide;

5. (e) complicity in genocide.

Third, genocide is distinguished from other crimes under international law (most importantly, from crimes against humanity and war crimes) by virtue of its mens rea (the contextual element of genocide). The qualification of genocide requires proving that the crime was committed with a special intent directed at a full or partial destruction of a respective racial, national, ethnic, or religious group as such. On the one hand, in the absence of such an intent, an act, even if it entails numerous victims, cannot technically be qualified as genocide (see Section II on crimes against humanity below). On the other hand, the commission of any acts listed in Article II of the Convention against at least one person with an intent directed at a full or partial destruction of the protected group of which the victim is a member must be qualified as genocide.

II. CRIMES AGAINST HUMANITY

It is commonly agreed that the term “crimes against humanity” dates back to 1915 when the UK, France, and Russia issued a joint declaration in response to the extermination of Armenians in Ottoman Turkey.Footnote ⁸ The cruel persecution of Armenians by Young Turks was referred to in the 1915 Declaration as a “crime against the laws of humanity” and later, when the relevant provisions of the NurembergFootnote ⁹ and TokyoFootnote ¹⁰ Charters were drafted, with a view to criminalizing mass atrocities committed against the civilian populations of Europe and the Far East, this formula was transformed into “crimes against humanity”.Footnote ¹¹ The concept of crimes against humanity was also included in the 1954 Draft Code of Offences against the Peace and Security of Mankind, and in the International Law Commission's subsequent documents devoted to the codification of ICL.Footnote ¹² In turn, in the Statutes of the International Criminal Tribunals for the Former Yugoslavia [ICTY] and Rwanda [ICTR], the elements of crimes against humanity were formulated with due regard to the respective realities: Article 5 of the ICTY Statute emphasized a nexus between crimes against humanity and international or non-international armed conflicts, and Article 3 of the ICTR Statute provided that crimes against humanity must have been committed “on national, political, ethnic, racial or religious grounds”. Thus, the subject-matter jurisdiction of both Tribunals was limited. In turn, Article 7(1) of the International Criminal Court's [ICC] Statute contained no nexus between crimes against humanity and armed conflicts, and emphasized, as a “contextual element” characteristic of crimes against humanity, the circumstances of a widespread or systematic attack against any civilian population, with knowledge of the attack.

Technically, crimes against humanity include any acts listed in subparagraphs (a)–(k) of Article 7(1) of the ICC Statute, provided that they are committed as part of a widespread or systematic attack against any civilian population. It does not matter whether crimes against humanity are committed in an international or non-international armed conflict, or in the absence thereof. In the absence of an armed conflict, a widespread or systematic attack against a civilian population may qualify as a “situation of violence” under applicable international law. The criteria defining a widespread or systematic attack merit more attention. First, it should be noted that Article 7(1) of the ICC Statute mentions these criteria as alternatives: an attack against a civilian population must be either widespread, that is, must involve a significant number of victims as a result of a single mass crime, or systematic, that is, repeated at certain intervals.Footnote ¹³ ICL does not thereby set a minimum quantity threshold required to qualify criminal acts as crimes against humanity—this qualification is subject to a totality of factual and legal circumstances, which are reflected in Article 7(1), and whose existence and character must be established by law enforcement bodies and courts.

So far, the concept of crimes against humanity is alien to the penal legislation of the Republic of Kazakhstan. It may seem, at first sight, that the Criminal Code of Kazakhstan already contains the elements of many crimesFootnote ¹⁴ listed in Article 7(1) of the ICC Statute, and thus establishes criminal responsibility for their commission, with due regard to the provisions on the multiplicity of offences in the Code's General Part.Footnote ¹⁵ This is partly correct: the penal legislation of Kazakhstan does, indeed, contain the equivalents of most crimes against humanity in the sense of Article 7(1) of the ICC Statute. In particular, some of the so-called extremist crimes are reminiscent of some crimes against humanity.Footnote ¹⁶ However, under Kazakhstan's penal law, these do not fall (except Article 174) within the ambit of crimes against the peace and security of mankind (of which crimes against humanity are a part), and hence are not subject to the provisions of international and domestic penal law regarding the non-applicability of statutes of limitations. Such common crimes are also exempted from ICL rules on universal jurisdiction.Footnote ¹⁷ If crimes against humanity were integrated into Kazakhstan's penal legislation in the future, these aspects of the General Part of ICL should be taken into account.

III. THE CRIME OF AGGRESSION AND PROPAGANDA FOR WAR

Kazakhstan's Criminal Code establishes criminal responsibility for two distinct crimes against peace—aggression and propaganda for war. In the criminalization of aggression, the Criminal Code of Kazakhstan follows the so-called “Nuremberg and Tokyo model”, which is based on the Charters and respective jurisprudence of the two International Military Tribunals, and of the Nuremberg follow-up trials.Footnote ¹⁸ In line with this legislative model, Article 160 of Kazakhstan's Criminal Code suggests that the crime of aggression would usually require special subjects—that is, the highest officials of a state. It appears that, in order to more effectively prevent this crime, the specified “threshold” of criminal responsibility could be lowered, for example, to “waging an aggressive war or aggressive hostilities”.Footnote ¹⁹ Thus, the subject of this crime would become general, and the prospect of bringing lower-ranking individuals to criminal responsibility for conducting aggressive hostilities against the Republic of Kazakhstan might deter some foreign nationals from participating in such hostilities.

In turn, propaganda for war or public calls for initiating a war of aggression are criminalized under Article 161.Footnote ²⁰ The second part of the same Article establishes criminal responsibility for an aggravated form of the same crime—that is, for its commission through the mass media or telecommunication networks, or by a state official. Article 161 reflects the requirement of Article 20(1) of the International Covenant on Civil and Political Rights, and merits only one critical remark: given the gravity of the crime, replacing “calls” (in the plural) with “a call” (in the singular) would make sense, since a single call for initiating a war of aggression is already worthy of criminalization.

IV. THE PRODUCTION, ACQUISITION, OR SALE OF WEAPONS OF MASS DESTRUCTION

Article 162 establishes criminal responsibility for the production, acquisition, or sale of weapons of mass destruction, which are prohibited by treaties to which the Republic of Kazakhstan is a party; and in particular, of chemical, biological, nuclear, and other weapons of mass destruction. Whereas chemical, biological, and nuclear weapons are “traditional” weapons of mass destruction, and Kazakhstan's critical position with respect to such weapons has been consistent,Footnote ²¹ the introduction of criminal responsibility for dealing with other weapons of mass destruction—such as the so-called new physical principles weapons—should be commended, as it anticipates prospective scientific developments and seeks to prevent their adverse effects.

V. WAR CRIMES

The current edition of Kazakhstan's Criminal Code contains three distinct provisions on war crimes (Articles 163–165). Formally, this is a useful development in comparison with the previous edition where there was only one provision on war crimes (it was transferred to the new edition of the Code verbatim and became Article 163). However, the specific wording of Articles 163–165 raises questions. First, all three provisions are quite inconveniently phrased in that they employ the plural forms of nouns to describe the victims of the respective crimes (e.g. the wounded, sick, prisoners of war, civilians, and other protected persons), or the crimes as such (e.g. the employment of prohibited methods and means of warfare, attacking the civilian population or civilian objects, etc.). A literal interpretation suggests that acts committed against singular victims, or isolated acts, would not constitute war crimes (whereas, under international law, they should). Also, it is unclear from the provisions how many victims or acts are required to constitute a crime. Obviously, this confusion should be remedied, and the plural forms of nouns should be replaced by singular ones.

Next, the titles of Articles 164 and 165 essentially mean the same thing, because the terms “laws and customs of war” and “international humanitarian law” are practically synonymous. Consequently, the titles of these Articles do not indicate with necessary accuracy the immediate objects of the respective crimes and the interests protected by criminal law. It would be correct to rearrange the crimes listed in Articles 163–165 in accordance with their direct objects—for example, war crimes against persons, property, the environment, etc. Finally, Article 165 is entitled “Criminal violations of international humanitarian law during armed conflicts”. In this title, the words “during armed conflicts” are superfluous, because an overwhelming majority of International Humanitarian Law [IHL] rules apply in armed conflicts anyway, and only a few IHL rules apply in peacetime. Moreover, all crimes listed in Article 165 can only be committed in armed conflicts, and therefore the specific reference to armed conflicts in the title is an unnecessary repetition.

VI. THE RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS AND SUPERIOR ORDERS

Article 166 of the Criminal Code deals with the responsibility of commanders and other superiors, and with superior orders. The first paragraph criminalizes the failure on the part of a commander or another superior to take all feasible measures within his or her competence to prevent the commission of criminal violations of the laws and customs of war or IHL rules. In turn, the second paragraph establishes criminal responsibility for issuing an order to give no quarter, or another manifestly unlawful order aimed at the commission of criminal violations of the laws and customs of war or IHL rules. As commendable as Article 166 is, the crime´s corpus delicti is limited to war crimes only, and does not formally encompass other crimes against the peace and security of mankind. Therefore, it would make sense to extend the regime of Article 166 to other crimes against the peace and security of mankind.

VII. THE UNLAWFUL USE OF SIGNS PROTECTED BY TREATIES

Article 167 criminalizes the deliberate use, in contravention of treaties during hostilities, of the Red Cross, Red Crescent, and Red Crystal emblems, of a distinctive emblem for the protection of cultural property, and of other emblems protected by international law, as well as the use of the state flag or insignia of the enemy, or of a neutral state, or the flag or the emblem of an international organization. Significantly, a literal interpretation suggests that Article 167 distinguishes between the deliberate use of a number of emblems (whose list is not exhaustive) and any unauthorized use of some other emblems (whose list is exhaustive)—that is, a negligent use of the former, or their improper use in peacetime, should not entail any criminal responsibility, whereas any unauthorized use of the latter should be criminalized at all times. In the absence of an explicit prohibition of perfidy in the Criminal Code,Footnote ²² Article 167 usefully adds to the protection of civilian persons and objects.

VIII. ECOCIDE

Ecocide is defined in Article 169 as a mass destruction of flora or fauna, contamination of the atmosphere, or land or water resources, as well as the commission of other acts which have caused or might have caused an ecological disaster or an ecological emergency. Importantly, this Article does not distinguish between peacetime and armed conflict, and thus offers ecology general protection against massive harm at all times.

IX. MERCENARY ACTIVITY AND THE ESTABLISHMENT OF BASES (CAMPS) FOR TRAINING MERCENARIES

Articles 170 and 171 establish criminal liability, respectively, for mercenary activity and the establishment of bases (camps) for training mercenaries. Under the first paragraph of Article 170, mercenary activity means the recruitment, training, financing, or the provision of other material support to a mercenary, as well as using him or her in an armed conflict, hostilities, or other violent activities aimed at overthrowing or undermining the constitutional order or at encroaching upon the territorial integrity of a state. The third paragraph criminalizes, in addition, the participation of a mercenary in an armed conflict, hostilities, or other violent activities aimed at overthrowing or undermining the constitutional order or at encroaching upon the territorial integrity of a state. Article 170 does not itself define a mercenary, but instead refers to paragraph 15 of Article 3 of the Criminal Code, which was quite impractically inspired by Article 47 of the First Additional Protocol to the 1949 Geneva Conventions. Paragraph 15 of Article 3 implies that, in order to qualify as a mercenary, an individual must cumulatively possess all the attributes listed in the definition, and accordingly, the absence of at least one attribute should technically release the individual from criminal responsibility.Footnote ²³ As a matter of fact, virtually any element in the definition can be circumvented quite easily—for example, by not letting an individual take a direct part in hostilities, granting him or her the nationality of a state concerned, formally making him or her a member of the armed forces, etc. Accordingly, it would make sense to adjust the definition of a mercenary contained in paragraph 15 of Article 3 of the Criminal Code, in order to make Articles 170 and 171 workable.

Article 171 criminalizes the establishment of a base (camp) for training mercenaries, or offering premises or land for the same purpose, with knowledge of the purpose. The elements of this crime are quite clear, and the only observation pertains to the relationship between the plural form of the nouns “bases” and “camps” in the title of the Article, and their singular form in the body of the Article. The singular form is certainly correct, and criminal responsibility should be borne for contributing to the establishment of a single base or camp.

X. PARTICIPATION IN FOREIGN ARMED CONFLICTS

According to available data, some nationals of Kazakhstan are currently participating in armed conflicts in Afghanistan, Syria, Iraq, and Ukraine.Footnote ²⁴ The public danger of such participation is compound: it includes the acquisition by individuals of dangerous (for example, separatist or religious) ideologies or skills (in particular, military skills), which could affect adversely the national security of Kazakhstan; indirect interference in other states’ domestic affairs; and complications in international relations. Article 172 of Kazakhstan´s Criminal Code establishes responsibility for deliberate and unlawful participation of a national of the Republic of Kazakhstan in an armed conflict or hostilities in the territory of a foreign state, absent the elements of mercenary activity in the sense of Article 170 (cf. Section IX above). Unlike mercenaries who, as a matter of practice, are mostly driven by pecuniary interest, individuals who may be held responsible under Article 172 are motivated by other factors, such as ethnic or religious affiliation with a group participating in a foreign armed conflict, or a particular ideology, or simply by a sense of adventure. In any such event, Kazakhstan should be entitled to exercise criminal jurisdiction over its nationals, on the basis of the active personality principle or the protective principle,Footnote ²⁵ and a number of trials under Article 172 have already taken place.

XI. ATTACKING INTERNATIONALLY PROTECTED PERSONS OR ORGANIZATIONS

Article 173 of Kazakhstan's Criminal Code establishes criminal responsibility for attacking an internationally protected representative of a foreign state or an employee of an international organization, or his or her cohabitating family members, as well as the service or residential premises or means of transportation of internationally protected persons, as well as kidnapping or forcibly depriving such a person of liberty, or threatening to commit such acts. Notably, the protective scope of this provision is significantly broader than that of Article 19 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, which is limited to the “United Nations and associated personnel involved in a United Nations operation”, and to acts committed “intentionally and in a systematic manner or on a large scale”. In addition to the latter, Article 173 also provides protection to the personnel referred to in the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, and in other sources of diplomatic law, as well as to international organizations which concluded bilateral headquarters agreements with the Republic of Kazakhstan (such as the International Committee of the Red Cross), and to their personnel, with due regard to the rules of the respective agreements. It also criminalizes, quite laudably, single acts of hostility committed against internationally protected persons or objects. Article 173 is a good example of a domestic rule of criminal law to the effect that a state is not precluded from offering a higher level of protection than that required under international law, if it so desires. The protective scope of a domestic provision of criminal law should not be narrower than that of its counterpart under international law, but it may well be broader.Footnote ²⁶

XII. PIRACY

Finally, the corpus delicti of piracy, reflected in Article 271 of the Criminal Code, raises a few questions. Historically, piracy has been recognized as the first international crime; pirates were referred to as the hostis humani generis (“enemies of the human race”), and were subject to universal jurisdiction.Footnote ²⁷ However, in the Criminal Code of Kazakhstan, the corpus delicti of piracy is placed in Chapter 10 of the Special Part (“Criminal offences against public safety and public order”). It appears that the objects which piracy attacks are more numerous and complex than that: they include the lives and health of people, the safety of navigation, as well as property—and therefore, piracy would be better placed in Chapter 4 of the Criminal Code's Special Part, along with other crimes against the peace and security of mankind. More specifically, in the current wording of Article 271, piracy essentially amounts to a crime against property,Footnote ²⁸ and should find itself in Chapter 6 of the Special Part of the Criminal Code (“Criminal offenses against property”). On the other hand, if an attack took place not for the purpose of seizing property, but for another purpose (for example, to take hostages), the attack would not at all be covered by the definition of piracy. Last but not least, since piracy is not technically a crime against the peace and security of mankind, Kazakhstan would not be able to assert its criminal jurisdiction if a crime were committed on the high seasFootnote ²⁹ by foreign nationals against foreign nationals. If, however, the corpus delicti of piracy were revised and transferred to Chapter 4 of the Special Part of the Criminal Code, all these issues would be resolved.