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The General Principles of International Criminal Law in the Criminal Code of the Republic of Kazakhstan

  • Sergey SAYAPIN (a1)

Abstract

International Criminal Law [ICL] contains a number of general principles, which form the foundations of and conditions for holding individuals criminally responsible for crimes under international law (genocide, crimes against humanity, war crimes, and the crime of aggression), and other crimes against the peace and security of mankind. Most general principles of ICL have been adequately implemented in the current (second) edition of the Criminal Code of the Republic of Kazakhstan. This paper assesses the quality of and identifies the lacunae in the implementation of Kazakhstan’s Criminal Code, with a view to suggesting further improvements to this Code.

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Copyright

Footnotes

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Assistant Professor of International and Criminal Law, Director of the LLB in International Law programme at the School of Law, KIMEP University.

Footnotes

References

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1. WERLE, Gerhard and JESSBERGER, Florian, Principles of International Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2014) at 166 .

2. The legal regulation of immunities under the ICC Statute probably constitutes the most significant departure from customary international law (cf. Part V below).

3. Cf. art. 38(1)(b) of the ICJ Statute.

4. 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 3 February 2018).

5. Cf. art. 22 of the ICC Statute (“Nullum crimen sine lege”).

6. Cf. art. 23 of the ICC Statute (“Nulla poena sine lege”).

7. Cf. art. 5 of the ICC Statute (“Crimes within the jurisdiction of the Court”).

8. Cf. art. 24 of the ICC Statute (“Non-retroactivity ratione personae”).

9. For the text of the Covenant, see online: <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx> (last accessed 4 February 2018).

10. Cf. art. 5 of the Criminal Code of the Republic of Kazakhstan (“Temporal application of the penal law”): “The criminality and punishability of an act shall be determined by the law, which applied at the time of commission of that act […].”

11. Cf. art. 25 of the ICC Statute (“Individual criminal responsibility”).

12. Ibid., at 198–9, 205–20. See also AMBOS, Kai, Treatise on International Criminal Law, Volume I: Foundations and General Part (Oxford: Oxford University Press, 2013) at 144179 .

13. See Werle and Jessberger, supra note 1 at 200–4. See also Ambos, supra note 12 at 123–7.

14. On the responsibility of states, see generally CRAWFORD, James, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013).

15. Cf. art. 15(1) of the Criminal Code of the Republic of Kazakhstan (“Criminally liable individuals”): “A sane natural person having attained the age of sixteen years by the time of committing a criminal offence shall be criminally liable.”

16. Cf. arts. 27–31 of the Criminal Code of the Republic of Kazakhstan.

17. Cf. art. 24 of the Criminal Code of the Republic of Kazakhstan. See also Ambos, supra note 12 at 233–52.

18. Cf. art. 27 of the ICC Statute (“Irrelevance of official capacity”).

19. See Werle and Jessberger, supra note 1 at 270–3. See also Ambos, supra note 12 at 406–10.

20. See Werle and Jessberger, supra note 1 at 274.

21. Ibid., at 279.

22. See CASSESE, Antonio, GAETA, Paola, BAIG, Laurel, FAN, Mary, GOSNELL, Christopher, and WHITING, Alex, Cassese’s International Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2013) at 240248 .

23. See И. Ш. Борчашвили, Комментарий к Уголовному кодексу Республики Казахстан: Общая часть, том 1 (Алматы, Жетi жарғы, 2015), стр. 112–14.

24. Cf. art. 28 of the ICC Statute (“Responsibility of commanders and other superiors”).

25. Cf. art. 166(1) of the Criminal Code of the Republic of Kazakhstan (“Negligence or issuance of a criminal order during an armed conflict”): “Deliberate failure, during an armed conflict, on the part of a superior or official acting within [his or her] competence to take all feasible measures to prevent preparation for, or repress the commission by, a subordinate of criminal violations of the laws and customs of war or rules of international humanitarian law […].”

26. On this matter, see for example N. STÜRCHLER, “The Activation of the Crime of Aggression in Perspective”, online: <https://www.ejiltalk.org/the-activation-of-the-crime-of-aggression-in-perspective/> (last accessed 4 February 2018).

27. See the sixth paragraph of art. 71 of the Criminal Code of the Republic of Kazakhstan (“Releasing from criminal responsibility by virtue of lapse of a statute of limitations”).

28. Cf. art. 30 of the ICC Statute (“Mental element”).

29. Cf. art. 20(2) of the Criminal Code of the Republic of Kazakhstan (“Criminal offence committed with intent”): “A criminal offence is committed with a direct intent, if the perpetrator is aware of the social danger of [his or her] act (omission), foresees a feasibility or inevitability of socially dangerous consequences, and desires their onset.”

30. Cf. art. 20(3) of the Criminal Code of the Republic of Kazakhstan: “A criminal offence is committed with an indirect intent, if the perpetrator is aware of the social danger of [his or her] act (omission), foresees a feasibility of socially dangerous consequences, or treats them indifferently.”

31. See SAYAPIN, Sergey, The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State (The Hague: T. M. C. Asser Press/Springer, 2014) at 236-241 , 293.

32. Cf. art. 31 of the ICC Statute (“Grounds for excluding criminal responsibility”). See also Ambos, supra note 12 at 301–93.

33. Cf. arts. 65–71 of the Criminal Code of the Republic of Kazakhstan.

34. Cf. art. 32 of the ICC Statute (“Mistake of fact or mistake of law”).

35. See Werle and Jessberger, supra note 1 at 246.

36. Ibid. (footnotes omitted).

37. Ibid., at 247.

38. Ibid., at 248 (footnotes omitted).

39. Cf. art. 33 of the ICC Statute (“Superior orders and prescription of law”).

40. See Werle and Jessberger, supra note 1 at 248–253.

41. Cf. art. 82 of the First Additional Protocol of 8 June 1977 to the 1949 Geneva Conventions.

42. Cf. art. 437(1) of the Criminal Code of the Republic of Kazakhstan (“Disobedience or another non-compliance with an order”): “Disobedience, that is, refusal to comply with a superior’s order, as well as another deliberate failure to comply, on the part of a subordinate, with a superior’s order issued in due course, which have caused a significant harm to the interests of service […].”

43. Cf. art. 38 of the Criminal Code of the Republic of Kazakhstan (“Compliance with an order or instruction”): “1. Causing harm to interests protected by the present Code shall not be a criminal offence, if a perpetrator acts in pursuance of an order or instruction, which is mandatory for him. Criminal responsibility for causing such harm shall be borne by the person who issues an unlawful order or instruction. 2. A person who commits a deliberate criminal offence in pursuance of a manifestly unlawful order or instruction shall bear criminal responsibility on general grounds. Non-compliance with a manifestly unlawful order or instruction shall exclude criminal responsibility.”

* Assistant Professor of International and Criminal Law, Director of the LLB in International Law programme at the School of Law, KIMEP University.

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The General Principles of International Criminal Law in the Criminal Code of the Republic of Kazakhstan

  • Sergey SAYAPIN (a1)

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