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Crimes against the Peace and Security of Mankind in the Revised Edition of the Criminal Code of the Republic of Uzbekistan

In: Review of Central and East European Law
Author:
Sergey Sayapin KIMEP University, Almaty, Kazakhstan, s.sayapin@kimep.kz

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The Criminal Code of Uzbekistan, which was adopted in 1994 and entered into force in 1995, was the country’s first post-Soviet Criminal Code. In 2018, the President of Uzbekistan called for adoption of a revised edition of the Criminal Code whose provisions should correspond more closely to international law, and would be more appropriately suited to modern realities. The article offers an overview of the draft Chapter on crimes against the peace and security of mankind, as proposed by the author in his capacity as a member of the Working Group for revision of the Criminal Code. It draws upon the best practices of a number of States, and offers a concise article-by-article commentary on the draft Chapter.

1 Introduction

The Criminal Code of the Republic of Uzbekistan was the first post-Soviet Criminal Code. 1 It was adopted on 22 September 1994, and entered into force on 1 April 1995. In the ensuing period, the Code has been amended on multiple occasions, and Chapter viii of its Special Part, which deals with crimes against the peace and security of mankind and is the subject of this article, has been substantially amended four times. In 2003, Article 1541 was introduced, criminalizing service by Uzbek nationals in foreign armed forces and other similar institutions. Next, in 2014, failure to inform the law enforcement bodies of acts of terrorism committed or under preparation was criminalized under Article 1551. In 2016, criminal responsibility was introduced for undergoing terrorist training (Article 1552), and for financing terrorism (Article 1553). During the same period, sanctions for some crimes included in Chapter viii were amended as well, 2 although their definitions and elements remained unchanged.

On 14 May 2018, the President of Uzbekistan issued Regulation No. PP-3723 ‘On Measures for Cardinal Improvement of the System of Criminal and Criminal Procedure Legislation’, to which a corresponding Concept was attached. The Regulation singled out, in particular, the following problems in the quality of the country´s criminal law and law enforcement:

  1. gaps in criminal law and procedure resulting in inadequate protection of human rights and freedoms;
  2. insufficient prevention of crimes and a low level of legal culture;
  3. incompatibility of some sanctions with the gravity of crimes they are attached to;
  4. low quality of investigation and use of unlawfully acquired evidence;
  5. insufficient implementation of internationally recognized institutions of criminal law, including the absence of criminal responsibility of legal entities;
  6. low level of use of information technologies in criminal investigation and judicial activity.

Accordingly, the Regulation provided for development of new editions of Uzbekistan´s Criminal and Criminal Procedure Codes, by 1 December 2019. 3 In particular, paragraph 6 of Section 3 of the Concept (‘Ensuring efficient and secure protection of citizens’ rights and freedoms, of the interests of society and State’) provided for ‘the introduction in penal legislation of responsibility for commission of transnational and international crimes, with due regard to emerging challenges and threats in the world community’. 4 In August 2018, this author was invited to join the Working Group for the revision of the Criminal Code, and subsequently drafted a new edition of the Criminal Code´s Chapter on crimes against the peace and security of mankind as well as a number of relevant provisions to be included in the Code´s General Part. This article discusses the draft provisions in the light of Uzbekistan´s obligations under international law, and draws upon some of the best practices in international criminal law (icl) and domestic penal laws of several States. The article follows the sequence of proposed amendments, and reflects drafting progress as of 28 February 2019.

2 Penal Legislation of the Republic of Uzbekistan

Article 1 of the original edition of the Criminal Code of Uzbekistan is very concise and reads as follows:

The penal legislation of the Republic of Uzbekistan is founded upon the Constitution and generally recognized norms of international law, and consists of the present Code.

It was proposed to significantly expand this Article, and the following wording was suggested:

The penal legislation of the Republic of Uzbekistan is based on the Constitution of the Republic of Uzbekistan and generally recognized norms of international law. This Code is the only source of criminal responsibility in the Republic of Uzbekistan. New laws establishing criminal responsibility shall be applicable only after their inclusion in this Code.

In the event of a conflict between the norms of this Code and the Constitution of the Republic of Uzbekistan, the provisions of the Constitution shall apply.

Decisions of the Constitutional Court of the Republic of Uzbekistan and resolutions of the Plenum of the Supreme Court of the Republic of Uzbekistan on the application of the penal legislation of the Republic of Uzbekistan are an integral part of the penal legislation of the Republic of Uzbekistan.

Treaties ratified by the Republic of Uzbekistan shall have priority over the penal legislation of the Republic of Uzbekistan, and shall apply directly, except in cases when it follows from a treaty that its application requires adoption of a law.

The proposed wording creates a useful link between the Criminal Code and international law where most crimes included in the Chapter on crimes against the peace and security of mankind originate. On the one hand, it refers to treaties such as the 1948 Genocide Convention, the 1949 Geneva Conventions and their First Additional Protocol of 1977, which define “grave breaches” against protected persons, and to various treaties of the “Hague Law”, to which Uzbekistan is a State Party, and which define war crimes related to the means and methods of warfare. 5 Such a reference allows the respective definitions of crimes to be kept quite concise (for example, see Sections 8 and 10 below), and reduces the probability of omitting the elements of a specific crime from a provision, which were possible if the crimes were merely listed in the definitions. On the other hand, this approach alludes to human rights treaties such as the International Covenant on Civil and Political Rights (iccpr), 6 or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 which have a bearing on the quality of law enforcement, and whose direct application should be encouraged.

3 Extraterritorial Application of the Penal Law of Uzbekistan

Further, it was proposed to fine-tune Uzbekistan´s jurisdiction with respect to crimes against the peace and security of mankind, in line with customary principles of criminal jurisdiction. Currently, Article 12 of the Criminal Code (‘Application of the Code with respect to persons who committed crimes outside Uzbekistan’) reads:

Citizens of the Republic of Uzbekistan, as well as stateless persons permanently residing in Uzbekistan, are subject to liability for crimes committed in the territory of another State under this Code, if they have not been punished by a court of the State in whose territory the crime was committed.

[…]

Foreign citizens as well as stateless persons who are not permanently residing in Uzbekistan are subject to liability for crimes committed outside [Uzbekistan] under this Code only in cases provided for by international treaties or agreements.

However, with due regard to contemporary criminal threats of a transnational character, it was proposed to formulate Uzbekistan´s extraterritorial jurisdiction as follows:

[…] Citizens of the Republic of Uzbekistan, foreigners and stateless persons who have committed a criminal offence outside the Republic of Uzbekistan are subject to criminal liability under this Code regardless of the place of commission of the act in cases of their committing criminal offence against a citizen of the Republic of Uzbekistan or a stateless person permanently residing in the Republic of Uzbekistan, or of a crime against the peace and security of mankind, a terrorist […] crime or another crime against the vital interests of the Republic of Uzbekistan, if they have not been convicted in another State and are subject to criminal prosecution in the Republic of Uzbekistan […]

The proposed paragraph combines the passive personality principle, the protective principle, and the principle of universal jurisdiction (as far as crimes against the peace and security of mankind and terrorist crimes are concerned), and contains a safeguard against double jeopardy, in accordance with Article 14(7) of the iccpr. This approach is more explicit and therefore better corresponds to the principle of legal certainty.

4 Non-refoulement

Article 12(2) of the current Criminal Code already contains elements of the principle of non-refoulement:

A citizen of Uzbekistan may not be extradited for a crime committed on the territory of a foreign State, unless otherwise provided by international treaties or agreements.

Yet the same principle of legal certainty led this author to propose setting out the rule of non-refoulement in a more detailed fashion, in a separate draft Article:

Citizens of the Republic of Uzbekistan who have committed a criminal offense in the territory of another state are not subject to extradition [unless otherwise provided by a treaty of the Republic of Uzbekistan].

Foreigners and stateless persons who have committed a crime outside the Republic of Uzbekistan and find themselves on the territory of the Republic of Uzbekistan may be extradited to a foreign state for criminal prosecution or punishment in accordance with a treaty of the Republic of Uzbekistan.

No one can be extradited to a foreign state if there are substantial grounds for believing that he or she would be in danger of being subjected to torture, other cruel, inhuman or degrading treatment or punishment, as well as in the event of a threat of the imposition of death penalty.

In addition to reiterating that, as a matter of principle, nationals of the Republic of Uzbekistan should not be extradited to foreign States, the proposed Article specifies that foreigners or stateless persons may be extradited but decisions pertaining to extradition are explicitly subject to the principle of non-refoulement, as laid down in Article 3 of the Convention against Torture. Importantly, since Uzbekistan abolished the death penalty as of 1 January 2008, to become the 135th abolitionist country, 8 the principle of non-refoulement extends not only to prospects of torture or other ill-treatment but also safeguards individuals against imposition of the death penalty.

5 Public Call for the Commission of a Crime against the Peace and Security of Mankind

Article 150 of the current edition of the Criminal Code criminalizes propaganda for war – that is, dissemination, in any form, of views, ideas, or calls with the purpose of causing aggression by one country against another. Whereas Article 150 does reflect the requirement of Article 20(1) of the iccpr, its scope is limited to a particular crime – against peace – and therefore, it was proposed to replace it with an alternative provision:

A public call to commit a crime against the peace and security of mankind, as well as producing, storing for the purpose of distributing or distributing materials calling for the commission of such a crime, shall be punished […]

It appears that all crimes against the peace and security of mankind are sufficiently grave to warrant criminalization of their incitement. The proposed provision should inaugurate the Chapter on crimes against the peace and security of mankind in the new edition of the Criminal Code, and serve as a “forerunner” to the other substantive crimes in the Chapter. Presumably, the sanction for the crime should be sufficiently extensive, so that it could be applicable both to isolated incidents and to aggravated forms of the crime – that is, for its commission through the mass media or telecommunication networks, or by a State official.

6 Aggression

In the criminalization of aggression, Uzbekistan currently follows the so-called “Nuremberg and Tokyo model”, which is based on the respective jurisprudence of the two International Military Tribunals, and of the Nuremberg follow-up trials:

Those trials were designed for the specific purpose of prosecuting high-ranking civilian and military officials and important industrialists who had contributed to the outbreak of the Second World War in Europe and the Far East, and the definitions of the crimes against peace were constructed accordingly. They were made to suit the realities of a massive war, which lasted for about six years, involved – as combatants and workers of the military economy – hundreds of millions of people, affected dozens of countries and entailed unmatched political, economic, legal and humanitarian effects. Given such degree of gravity of the Second World War’s consequences, its prompt criminalization was but an equitable development. The lessons of Nuremberg and Tokyo – and the efforts of the United Nations […], which was being established concurrently – were all expected to prevent the occurrence of such wars in the future, and (so far) succeeded in attaining that aim. However, the problem with the “Nuremberg and Tokyo model” was that it did not cover international wars of a lesser gravity, and more than a few such international wars did occur after 1945 […] 9

The alternative provision should hopefully be better suited to contemporary challenges, and connect criminal responsibility with identifiable protected values:

Aggression, that is, the use of military force, a cyber attack, or another hostile act against the statehood, territorial integrity or political independence of the Republic of Uzbekistan, as well as in any other way incompatible with [the Charter of the United Nations] [international law], shall be punished […]

In recent years, information technologies and other “hybrid” tools have increasingly been employed, 10 in addition to conventional weapons, for the purpose of attacking other States, and the proposed provision on aggression takes these developments into account. Importantly, the proposal introduces criminal responsibility for an objectively measurable single “use of military force”, “cyber attack”, or “hostile act”, 11 and does away with the less measurable concept of “war of aggression”. Finally, it lists the statehood 12 of Uzbekistan and its territorial integrity or political independence as exemplary values protected under the UN Charter or, more generally, under international law.

7 Production, Acquisition or Sale of Weapons of Mass Destruction

The proposed provision introducing criminal responsibility for the production, acquisition or sale of weapons of mass destruction, which are prohibited by treaties to which the Republic of Uzbekistan is a party, should be a novelty in the Criminal Code. Whereas Uzbekistan´s critical position with respect to “traditional” weapons of mass destruction – that is, chemical, biological and nuclear weapons – has been consistent, 13 Article 246 of the Criminal Code currently criminalizes only the smuggling of weapons of mass destruction, materials and equipment, and radioactive materials, which could knowingly be used in their production. It appears that the proposed provision is more comprehensive in its coverage of modes of dealing in weapons of mass destruction. It also anticipates the emergence of new weapons of mass destruction – such as the so-called new physical principles weapons – and seeks to prevent their adverse effects.

8 Criminal Violation of International Humanitarian Law

Article 152 of the current edition of Uzbekistan’s Criminal Code is inconvenient in that it contains only an incomplete list of violations of the laws and customs of war, and in that it employs 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). A literal interpretation suggests that acts committed against individual 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: a grammatical interpretation suggests that two victims or acts would be enough to meet the threshold of criminal responsibility but this would lead to the absurd conclusion that a single act affecting a single victim should not be penalized at all but a second act affecting a second victim should also entail criminal responsibility for the previous act which affected the first victim. Obviously, this confusion should be remedied, and the proposed alternative provision reads as follows:

A criminal violation of international humanitarian law, that is, an intentional encroachment committed in connection with an armed conflict on a person or object protected by international humanitarian law, or the use of a means or method of warfare prohibited by international humanitarian law, shall be punished […]

A criminal violation of international humanitarian law resulting in the death of another person or other grave consequences shall be punished […]

The proposed provision resolves all the deficiencies identified above in that it introduces criminal responsibility for a single act committed against a single person, and does not distinguish between international and non-international armed conflicts. It encompasses criminal violations of both the “law of Geneva” and the “law of The Hague”, and distinguishes between war crimes not resulting in the death of a person or other grave consequences from ones resulting in such consequences. Certainly, the prospective application of this provision would require a thorough knowledge of international humanitarian and criminal law on the part of legal advisors to the armed forces, law enforcement officials, and judges, for whom a training program should be established after adoption of the new edition of the Criminal Code.

9 Genocide

Although mass exterminations of various human groups by other human groups have occurred throughout history, the term “genocide” only emerged in the twentieth century. It was suggested by Polish-born American lawyer Raphael Lemkin (1900 – 1959). 14 Lemkin suggested developing a Convention on the Prevention and Punishment of the Crime of Genocide, 15 since the substantive jurisdiction of the Nuremberg Tribunal with respect to crimes against humanity was not independent but was limited to acts related to other crimes within the jurisdiction of the Tribunal 16 – 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 of 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. 17 The Genocide Convention was adopted on 9 December 1948, and ever since the concept of genocide has been implemented in the domestic penal laws of many States, including the current edition of the Criminal Code of the Republic of Uzbekistan:

Genocide, that is, an act committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group by killing members of such a group, causing serious bodily or mental harm to its members, preventing childbirth within the group, forcibly transferring children of the group to another, or by deliberately inflicting conditions of life calculated to bring about the physical destruction of the group shall be punished […]

This provision will be transferred verbatim to the revised edition of the Criminal Code, since it 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, ethnic, racial or religious group, as such:

  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 from the group to another group.

The conventional definition of genocide became standard, and was included verbatim in the Statutes of the International Criminal Tribunals for the Former Yugoslavia (Article 4) and Rwanda (Article 2), and in Article 6 of the icc Statute. It formulates three definitional attributes of genocide, which must exist cumulatively. Firstly, 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 use of the term “genocide” to designate persecution of political, professional, gender, or other social groups is incorrect. 18 Secondly, 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) attempting to commit genocide;
  5. (e) complicity in genocide.

Thirdly, 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 proof that the crime was committed with a special intent directed at full or partial destruction of a particular 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 on crimes against humanity below). On the other hand, commission of any acts listed in Article ii of the Convention against at least one person with an intent directed at full or partial destruction of the protected group of which the victim is a member must be qualified as genocide.

10 Crimes Against Humanity

It is commonly agreed that the term “crimes against humanity” dates back to 1915 when the United Kingdom, France and Russia issued a joint declaration in response to the extermination of Armenians in Ottoman Turkey. 19 The cruel persecution of Armenians by the 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 Nuremberg 20 and Tokyo 21 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”. 22 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. 23 In turn, in the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (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 icc Statute already 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.

In “crimes against humanity”, the element of “humanity” is crucial. How should “humanity” be understood for the purpose of icl? What is the legal value of this category? Can humanity as such be an object of criminal encroachments – as international peace and security are the object of the crime of aggression, and proper application of the law of international and non-international armed conflicts is the object of war crimes? International peace and security are harmed, for example, when a State or a non-State actor uses military force against another State in violation of international law, and a serious violation of the law of armed conflict takes place, for instance, when a combatant belonging to one side in an international armed conflict uses a weapon which is prohibited by international law, against another side’s combatant, or when a civilian who does not take a direct part in hostilities is deliberately attacked. In such cases, criminal acts are directed against objective phenomena, and can be measured objectively. In the context of crimes against humanity, though, the mechanism of criminal encroachments is more complex. It follows from Article 7(1) of the Rome Statute that the direct objects of specific crimes against humanity are the lives, health, dignity, liberty and security, sexual freedom, freedom of movement, group identity, and other personal rights and freedoms of civilians. Why should this category of crimes then not be named, seemingly, more simply and specifically – for instance, crimes against civilians (or the civilian population)?

It appears that a reasonable interpretation of “humanity” should emphasize, in this context, the human nature of persons against whom the crimes in question are directed. This nature is common to all mankind, despite all objective – racial, religious, cultural, and other – differences among individuals and their groups, and consists in all individuals’ equal dignity and freedom, whose objective and measurable manifestations include non-discrimination, absence of threats to life, psychological and physical health, personal security, freedom of movement, residence, and work. 24 Certainly, the specific ways of implementation of these rights and freedoms are conditioned by cultural features of a given society, and the realization of specific rights in different societies may vary. However, no cultural variations may justify (and even reasonably explain) mass (widespread or systematic) deprivations of such fundamental rights – and crimes against humanity are exactly such acts. In a certain sense, the purpose of crimes against humanity consists in depriving victims of their human nature, turning them from subjects having conscience, will and freedom of choice to outlawed objects, in demonstrating the “sub-humanity” of identifiable human groups. In this sense, integrating an abstract philosophical category of “humanity” in a legal formula is relatively justified, although still somewhat imperfect from a strictly legal point of view. On the other hand, the formulation “crimes against the civilian population” would probably be more precise from the point of view of legal technique but it would certainly lack the emotional force and ethical substance of “crimes against humanity”. Be that as it may, the term “crimes against humanity” is nowadays recognized and established, and the issue here is not about replacing it with a new term but about interpreting the concept of humanity adequately, for the purposes of international and domestic criminal law.

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 a 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. 25 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 has been alien to the penal legislation of the Republic of Uzbekistan. Presumably, this is because Uzbekistan has not ratified the Rome Statute, and the Statute´s provisions do not bind Uzbekistan as rules of treaty law. However, since crimes against humanity are also a matter of customary international law, the proposed provision on criminal discrimination should implement the concept in the new edition of the Criminal Code in its second and third paragraphs:

Deliberate encroachment on the civil, political, economic, social or cultural rights of a person on the basis of her affiliation with any social group shall be punished […]

The same acts committed repeatedly or by prior agreement by a group of persons shall be punished […]

The acts envisaged in the first or second paragraphs of this Article [and] resulting in causing death to another person or [in] other grave consequences, shall be punished […]

The first paragraph criminalizes deliberate encroachments on an individual’s fundamental rights on the ground of their affiliation with any social group, 26 even if these are committed sporadically. The second paragraph introduces the elements of organization and multiplicity, which correspond to the requirement of a “widespread or systematic attack”, and thus elevate the offences to the level of crimes against humanity, as these are understood in international law. Finally, the third paragraph criminalizes particularly serious discriminatory acts, which result in the death of a person or other grave consequences, and therefore should be penalized more severely. It is submitted that the proposed provision is optimal, because it introduces the substance of crimes against humanity, by reference to international human rights law (ihrl), incorporates the contextual element of crimes against humanity, without technically employing the term “crimes against humanity”. Thus, ambiguity related to the understanding of “humanity” is avoided, and the corpus delicti is formulated in an objectively measurable way.

11 Ecocide

Ecocide is defined in a newly proposed provision as mass destruction of flora or fauna, contamination of the atmosphere, land or water resources, as well as commission of other acts, which have caused or might have caused an ecological disaster or an ecological emergency. Although this corpus delicti is relatively novel, it has been incorporated (in quite similar ways) in the criminal laws of a number of States, including Kazakhstan, 27 Kyrgyzstan, 28 Russia, 29 Tajikistan, 30 and Ukraine. 31 Importantly, the proposed Article does not distinguish between peacetime and armed conflict, and thus offers ecology general protection against massive harm at all times.

12 Attacking Internationally Protected Persons or Organizations

Another novel provision establishes criminal responsibility for attacking an internationally protected representative of a foreign State or an employee of an international organization, or their cohabitating family members, as well as service or residential premises or means of transportation of internationally protected persons, as well as kidnapping or forcibly depriving them 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, the proposed Article 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 have concluded bilateral headquarters agreements with the Republic of Uzbekistan (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. The provision 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. 32

13 Participation in a Foreign Armed Conflict

According to available data, some nationals of Uzbekistan are currently participating in armed conflicts abroad. 33 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 adversely affect the national security of Uzbekistan, indirect interference in other States´ domestic affairs, and complications in international relations. The novel provision to be introduced in Uzbekistan’s Criminal Code establishes responsibility for deliberate and unlawful participation by a national of the Republic of Uzbekistan in an armed conflict or hostilities in the territory of a foreign State, absent the elements of mercenary activity (cf. Section 14 below). Unlike mercenaries who, as a matter of practice, are mostly driven by pecuniary interest, individuals who may be held responsible under the new provision 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, Uzbekistan should be entitled to exercise criminal jurisdiction over its nationals, on the basis of the active personality principle or the protective principle. 34

14 Mercenary Activity

In comparison to some other States’ laws criminalizing mercenary activity, Article 154 of the current edition of Uzbekistan´s Criminal Code was drafted quite functionally. For example, Articles 170 and 171 of Kazakhstan´s Criminal Code establish criminal liability, respectively, for mercenary activity and setting up bases (camps) for training mercenaries. Under the first paragraph of Article 170, mercenary activity means recruiting, training, financing or providing other material support to a mercenary, as well as using him 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, participation by 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 person from criminal responsibility. 35 As a matter of fact, virtually any element in the definition can be circumvented quite easily – for example, by not letting an individual take direct part in hostilities, granting them the nationality of the State concerned, or formally making them a member of the armed forces. 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.

In turn, Article 171 criminalizes setting up 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 setting up a single base or camp.

By contrast, Article 154 defines mercenary activity as follows:

Mercenary activity, that is, participation in a territory or on the side of a foreign state in an armed conflict or hostilities by a person who is not a national or military serviceman of a State participating in the conflict, or who does not reside permanently in the territory controlled by a party finding itself in the conflict or conducting hostilities, or is not authorized by any State to perform official duties as part of the armed forces, with the aim of obtaining material remuneration or other personal benefits, shall be punished […]

The recruitment, training, financing or providing other material support to a mercenary, as well as using him in an armed conflict or hostilities, shall be punished […]

Usefully, this provision consists of alternative elements, which could, as a matter of fact, be combined in different ways and still be covered by the corpus delicti. Whereas Articles 170 and 171 of Kazakhstan´s Criminal Code should be quite difficult to apply in practice, because the definition of a mercenary is cumulative, Article 154 of Uzbekistan´s Criminal Code would apply to any single act matching any single element listed in the provision. Further, under the second paragraph, providing support to a single mercenary should be criminalized. With due regard to the appropriate quality of this Article, it will be transferred verbatim to the revised edition of the Criminal Code.

15 Enrolment, Recruitment to the Military Service, Security Service, Police, Military Justice, or other Similar Organs of Foreign States

Article 1541 was introduced in the Criminal Code in 2003, and reads as follows:

The enrolment of a citizen of the Republic of Uzbekistan in military service, to serve in security agencies, police, military justice or other similar organs of foreign states shall be punished […]

The recruitment of a citizen of the Republic of Uzbekistan into military service, to serve in security agencies, police, military justice or other similar organs of foreign states is punished […]

This provision results from the relationship of citizenship between the Republic of Uzbekistan and its nationals, 36 an important part of which consists in service by nationals in the armed and security forces, police and organs of military justice of the country. Due to their sensitivity, these types of service are reserved exclusively to nationals of Uzbekistan, and foreigners are excluded. It is considered that enrolment of Uzbek nationals in such services in foreign States might endanger the national security of Uzbekistan, since especially individuals who have already served in the armed or security services of Uzbekistan are regarded as carriers of State secrets. Also, service in the armed or security service of a foreign State raises the problem of an individual´s allegiance to their own State. The jurisdictional ground for criminalization is thus the protective principle. The recruitment of Uzbek nationals is criminalized under the second paragraph, as indirect interference in the maintenance of security of the State. Both paragraphs conclude with “catch-all” clauses referring to “other similar organs”, which presumably include organs of military intelligence, Prosecutor-General´s Offices, financial police, tax services, civilian courts, ministries of justice or emergency situations, and the like. This list is open, which certainly constitutes a departure from the principle of legal certainly, but, on the other hand, it is quite difficult to make a complete list of the agencies concerned. Importantly, the provision does not cover service by Uzbek citizens in international organizations in national or international positions. The provision should be transferred verbatim to the revised edition of the Criminal Code.

16 Responsibility of Commanders and other Superiors and Superior Orders

The proposed provision dealing with the responsibility of commanders and other superiors, and with superior orders, was inspired by Article 166 of the Criminal Code of Kazakhstan. The first paragraph of that Article criminalizes failure on the part of a commander or other superior to take all feasible measures within their 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, but does not formally encompass other crimes against the peace and security of mankind. Therefore, it would make sense to supplement Article 166 and extend its regime to other crimes included in Chapter 4 of the Special Part of Kazakhstan´s Criminal Code.

Accordingly, the novel provision to be included in the revised edition of Uzbekistan´s Criminal Code reads as follows:

A deliberate failure by a military commander or other superior to take all possible measures, within their authority, to prevent or repress commission by a subordinate of a crime against the peace and security of mankind shall be punished […]

The issuance by a military commander or other superior to a subordinate of an order to commit a crime against the peace and security of mankind shall be punished […]

With due regard to the public danger of crimes against the peace and security of mankind, it makes sense to introduce the criminal responsibility of commanders and other superiors for commission by their subordinates not only of war crimes but also of other crimes in question. In particular:

It is thereby presumed that orders to commit genocide or crimes against humanity are manifestly unlawful – that is, the criminal character of these acts is so self-evident that no justification by reference to a superior order may be accepted.

In turn, orders to commit war crimes or a crime of aggression are not manifestly unlawful […] This is related, above all, to the technical complexity of rules of international humanitarian and criminal law, and of the law of international security, which regulate the respective primary legal relations. One should not expect non-experts – and most potential (military and civilian) perpetrators of war crimes, and of the crime of aggression, are not law experts – to be professionally competent in the relevant areas of law. Providing legal advice to military commanders and civilian superiors on matters of international and domestic law is the task of competent legal advisers. 37

17 Conclusion

The Republic of Uzbekistan has already accomplished important work in implementing crimes against the peace and security of mankind in its domestic criminal law but the opportunity to bring the Code into fuller conformity with international law, which arose in 2018, should not be missed. It has been suggested that the Chapter on crimes against the peace and security of mankind in the revised edition of the Criminal Code should contain, inter alia, a revised definition of the crime of aggression (including the crime of patriacide – that is, a criminal attempt to destroy a State´s political, economic, or social organization), cover a broader range of war crimes committed in international and non-international armed conflicts, and include a fine-tuned corpus delicti of a public call for commission of a crime against the peace and security of mankind. Importantly, it has also been suggested to adjust Uzbekistan´s position with respect to the principle of universal jurisdiction, and to incorporate crimes against humanity (under the title of criminal discrimination) in the Code´s revised edition. If these proposals take effect, the revised edition of Uzbekistan´s Criminal Code will be among the most advanced criminal laws in the Commonwealth of Independent States (cis) as far as the implementation of crimes under international law is concerned.

1

The official text of the Criminal Code (in Russian) is available at: http://lex.uz/docs/111457.

2

In particular, with the abolition of the death penalty as of 1 January 2008, it was replaced by other sanctions (see note 8).

3

The first drafts were due to be developed by 1 July 2019.

4

In the past few decades, discussion has been ongoing in Soviet and post-Soviet doctrines of icl regarding the most appropriate terms reflective of crimes proscribed under icl. In addition to “crimes against the peace and security of mankind”, the most common terms in use were “international crimes” and “crimes of an international character”. See A.V. Naumov and A.G. Kibalnik (eds.), Mezhdunarodnoye ugolovnoye pravo [International Criminal Law] (Uright Press, 2014), 121–123. However, since the publication of a Russian translation of Gerhard Werle’s Principles of International Criminal Law in 2011, the post-Soviet doctrine of icl increasingly employs the term “crimes under international law”. According to Werle and Jessberger, an act or omission constitutes a crime under international law if it possesses three attributes: (1) it entails individual criminal responsibility, and is punishable; (2) a norm establishing criminal responsibility for such an act or omission is one of international law; (3) the act or omission is punishable irrespective of whether it is a crime under domestic law. See Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (oup, Oxford, 3rd ed., 2014), 32. The concept encompasses crimes which cause the most significant harm to international law and order, peace and security, the lives and health of individuals, their personal security and identity. The “core” crimes under international law are genocide, crimes against humanity, war crimes, and the crime of aggression. All “core” crimes under international law have in common the so-called “contextual element” of organized violence, which may possess an objective or a subjective dimension. The “contextual element” of crimes against humanity, war crimes and the crime of aggression is objective, since these crimes, by definition, are committed in extreme circumstances of international or non-international armed conflicts or other situations of violence. In turn, the “contextual element” of genocide is subjective, and consists in a perpetrator’s intent to destroy, in whole or in part, a racial, national, ethnic or religious group as such.

5

For an overview of ihl treaties to which Uzbekistan is a State Party, see: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountrySelected.xsp?xp_countrySelected=UZ.

7

For the text of the Convention against Torture, see: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.

8

See Amnesty International, “Uzbekistan otmenyayet smertnuyu kazn” [Uzbekistan abolishes the death penalty], Doc. eur 62/001/2008, available at: https://amnesty.org.ru/node/262/#.

9

See Sergey Sayapin, The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State (tmc Asser Press / Springer, The Hague, 2014), 202–203.

10

On “hybrid warfare”, see Gergely Tóth, ‘Legal Challenges in Hybrid Warfare Theory and Practice: Is There a Place for Legal Norms at All?’, in Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law: jus ad bellum, jus in bello, jus post bellum (tmc Asser Press / Springer, The Hague, 2018), 173–183.

11

On the criminalization of “hostile acts”, see Sayapin, op.cit. note 9, 212–217.

12

The reference to statehood implies criminal responsibility for “patriacide”, a crime whose concept was proposed by this author and defined elsewhere as “the destruction of a State´s constitutional, political, economic, or technical organization inherent to its statehood”. See Sergey Sayapin, ‘The United Nations General Assembly Resolution 68/262 in the Context of General International Law’, in 2(1) European Political and Law Discourse (2015), 19–30, at 26.

13

See, e.g., letter from the Permanent Mission of the Republic of Uzbekistan to the United Nations of 18 January 2017, Doc. UZ009/17, available at: http://www.un.org/ru/sc/1540/pdfs/uzbekistan-action-plan.pdf.

14

See Philippe Sands, East West Street (Weidenfeld and Nicolson, 2016), 137–189. See also Sergey Sayapin, ‘Raphael Lemkin: a Tribute’, in 20 European Journal of International Law (2009), 1157–1162.

15

For the text of the Genocide Convention, see: https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx.

16

Cf. Art. 6(c) of the Nuremberg Charter.

17

See Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Carnegie Endowment for International Peace, 1944).

18

See Sergey Sayapin, ‘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 Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law: jus ad bellum, jus in bello, jus post bellum (tmc Asser Press / Springer, The Hague 2018), 313–327, at 315–317.

19

See Werle and Jessberger op.cit. note 4, 329.

20

Cf. Art. 6(c) of the Nuremberg Charter.

21

Cf. Art. 5(c) of the Tokyo Charter.

22

See Sands, op.cit. note 13, 111.

23

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.

24

See passim Rustam Atadjanov, Humanness as a Protected Legal Interest of Crimes against Humanity: Conceptual and Normative Aspects (tmc Asser Press / Springer, 2019).

25

See Werle and Jessberger op.cit. note 4, 339–340.

26

Importantly, these include groups which are not protected under the Genocide ­Convention – such as political parties, professional, cultural or gender-based groups, or groups based on the sexual orientation of their members.

27

Cf Art. 169 of Kazakhstan´s Criminal Code.

28

Cf Art. 374 of Kyrgyzstan´s Criminal Code.

29

Cf Art. 358 of Russia´s Criminal Code.

30

Cf Art. 400 of Tajikistan´s Criminal Code.

31

Cf Art. 441 of Ukraine´s Criminal Code.

32

Cf See Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurt, An Introduction to International Criminal Law and Procedure (cup, Cambridge, 3rd ed., 2014), 81.

33

Sputnik News, “Chetyreh uzbekov, podozrevayemyh v terrorizme v Sirii, vernuli na rodinu” [Four Uzbeks suspected of terrorism in Syria returned home], available at: https://tj.sputniknews.ru/asia/20181026/1027247719/uzbekistan-syria-zaderzhanie-arest-terrorizm.html.

34

See Cryer et al. op.cit. note 32, 53–56.

35

Cf Geoffrey Best, War and Law since 1945 (oup, Oxford, 1994), 350: ‘Article 47 of AP I contains a six-point definition which approximates as nearly as conference politics permitted to the idea of the (white) mercenary figure who had, not without reason, become a primary object of anti-colonial and post-colonial African revulsion since the early 1960s. It includes neither foreign advisers (so long as they keep out of actual combat) nor foreign volunteer fighters of ideological or religious motivation’.

36

For the Law “On the Citizenship of the Republic of Uzbekistan” (in Russian), see: http://lex.uz/acts/.

37

See Sergey Sayapin, ‘The General Principles of International Criminal Law in the Criminal Code of the Republic of Kazakhstan’, in 9(1) Asian Journal of International Law (2019), 1–9, at 8. Cf also Art. 82 of the First Additional Protocol of 8 June 1977 to the 1949 Geneva Conventions.

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