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The Implementation of Crimes Against the Peace and Security of Mankind in the Penal Legislation of the Republic of Kazakhstan

Published online by Cambridge University Press:  27 June 2019

Sergey SAYAPIN
Sergey SAYAPIN*
Affiliation:
KIMEP University, [email protected]
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Abstract

The penal legislation of the Republic of Kazakhstan includes a number of crimes against the peace and security of mankind. Among these are most of the traditional “core” crimes under international law—genocide, war crimes, and the crime of aggression—as well as some other crimes. Crimes against humanity are not included in the Criminal Code so far but some of their definitional features are shared by so-called “extremist crimes”. In addition to other customary crimes against the peace and security of mankind—such as deliberately attacking internationally protected persons and organizations and abusing internationally protected emblems—the Code also includes more novel crimes, such as participation in foreign armed conflicts. This paper analyses the relevant provisions of the Criminal Code of Kazakhstan in the light of corresponding treaty-based and customary rules of international law, and suggests further improvements to be made to the Code.

Type
Notes and Comments
Information
Asian Journal of International Law , Volume 10 , Issue 1 , January 2020 , pp. 1 - 11
Copyright
Copyright © Asian Journal of International Law, 2019

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Footnotes

*

Assistant Professor of International and Criminal Law, Director of the LLB in International Law programme at the School of Law, KIMEP University. This paper is based on the author's talk at the International Conference “Ensuring the Rule of Law: New Opportunities in the Light of Global Changes” organized by the Institute of Legislation of the Republic of Kazakhstan, Astana, 15 June 2018.

References

1. See NAUMOV, A.V. and KIBALNIK, A.G., eds., Mezhdunarodnoye ugolovnoye pravo [International Criminal Law] (Moscow: Uright Press, 2014) at 121–3Google Scholar.

2. See WERLE, Gerhard and JESSBERGER, Florian, Principles of International Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2014) at 32Google Scholar.

3. The second edition of the Criminal Code of the Republic of Kazakhstan was adopted on 3 July 2014, and entered into force on 1 January 2015. See the text of the Criminal Code (in Russian), online: <https://online.zakon.kz/Document/?doc_id=31575252> (last accessed 13 January 2019).

4. See SANDS, Philippe, East West Street (London: Weidenfeld & Nicolson, 2016) at 137–89Google Scholar. See also SAYAPIN, Sergey, “Raphael Lemkin: A Tribute” (2009) 20 European Journal of International Law 1157CrossRefGoogle Scholar.

5. Cf. art. 6(c) of the Nuremberg Charter.

6. See LEMKIN, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944)Google Scholar.

7. See SAYAPIN, Sergey, “An Alleged ‘Genocide of the Russian-speaking Persons’ in Eastern Ukraine: Some Observations on the ‘Hybrid’ Application of International Criminal Law by the Investigative Committee of the Russian Federation” in SAYAPIN, Sergey and TSYBULENKO, Evhen, eds., The Use of Force Against Ukraine and International Law: jus ad bellum, jus in bello, jus post bellum (The Hague: T.M.C. Asser Press, 2018), 313 at 315–17CrossRefGoogle Scholar.

8. See Werle and Jessberger, supra note 2 at 329.

9. Cf. art. 6(c) of the Nuremberg Charter.

10. Cf. art. 5(c) of the Tokyo Charter.

11. See Sands, supra note 4 at 111.

12. See the 1954 Draft Code of Offences against the Peace and Security of Mankind, art. 2(11); the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, art. 18.

13. See Werle and Jessberger, supra note 2 at 339–40.

14. For example, cf. arts. 99 (“Murder”), 106 (“Deliberately causing grave harm to health”), 120 (“Rape”), 121 (“Violent acts of a sexual character”), 125 (“Kidnapping a person”), 126 (“Unlawful deprivation of liberty”), 128 (“Human trafficking”), and 146 (“Torture”) of Kazakhstan's Criminal Code.

15. Cf. arts. 12–14 of the Criminal Code of the Republic of Kazakhstan. See also SAYAPIN, Sergey, “The General Principles of International Criminal Law in the Criminal Code of the Republic of Kazakhstan” (2019) 9 Asian Journal of International Law 1CrossRefGoogle Scholar.

16. For example, cf. arts. 174 (“Incitement of social, national, clan-based, racial, class-based or religious hatred”), 404 (“Establishing, leading and participating in the activity of unlawful public and other associations”), and 405 (“Organising and participating in the activity of a public or religious association or another organisation after a judicial decision to the effect of banning their activity or liquidation in connection with their carrying out terrorism or extremism”) of Kazakhstan´s Criminal Code.

17. Cf. art. 8(1) of Kazakhstan´s Criminal Code.

18. See SAYAPIN, Sergey, “The Compatibility of the Rome Statute's Draft Definition of the Crime of Aggression with National Criminal Justice Systems” (2010) 81 Revue Internationale de Droit Pénal 165 at 169–75CrossRefGoogle Scholar.

19. Cf. art. 437 of the Criminal Code of Ukraine. On a recent trial under this art., see SAYAPIN, Sergey, “A Curious Aggression Trial in Ukraine: Some Reflections on the Alexandrov and Yerofeyev Case” (2018) 16 Journal of International Criminal Justice 1093CrossRefGoogle Scholar.

20. On the prohibition of propaganda for war, see passim KEARNEY, Michael G., The Prohibition of Propaganda for War in International Law (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar.

21. “Kazakhstan Signs Treaty on Prohibition of Nuclear Weapons” The Astana Times (11 March 2018), online: The Astana Times <https://astanatimes.com/2018/03/kazakhstan-signs-treaty-on-prohibition-of-nuclear-weapons/>.

22. An implicit prohibition of perfidy is included in art. 163(1) of the Criminal Code (“… employment in an armed conflict of means and methods prohibited by a treaty of the Republic of Kazakhstan …”). Since perfidy is a method of warfare prohibited by art. 37 of the First Additional Protocol to the 1949 Geneva Conventions, to which Kazakhstan in a State Party, perfidy is criminal under art. 163(1) of the Criminal Code.

23. Cf. Geoffrey BEST, War and Law Since 1945 (Oxford: Oxford University Press, 1994) at 350.

24. The Prosecutor-General´s Office of the Republic of Kazakhstan, “Obrashcheniye Generalnoy prokuratury Respubliki Kazakhstan” [Address by the Prosecutor-General's Office of the Republic of Kazakhstan] (30 October 2014), online: PROKUROR <http://prokuror.gov.kz/rus/novosti/press-releasy/obrashchenie-generalnoy-prokuratury-respubliki-kazahstan>.

25. See CRYER, Robert, ROBINSON, Darryl, and VASILIEV, Sergey, An Introduction to International Criminal Law and Procedure, 3rd ed. (Cambridge: Cambridge University Press, 2014) at 53–6CrossRefGoogle Scholar.

26. Cf. ibid., at 81.

27. See passim SUNDBERG, Jacob W.F., “The Crime of Piracy” in BASSIOUNI, Mahmoud Cherif, ed., International Criminal Law: Volume I, Sources, Subjects, and Contents, 3rd ed. (Leiden: Martinus Nijhoff), 799Google Scholar.

28. Cf. art. 271 of the Criminal Code of the Republic of Kazakhstan (“Piracy”): “Attack on a sea or river vessel with the aim of seizing someone else's property, committed with the use of violence or with the threat of its use … ”.

29. Cf. art. 101 of the United Nations Convention on the Law of the Sea.