Graduate of the International and Comparative Politics Department of the American University of Central Asia.
This work is an excerpt from the Bachelor’s thesis of the American University of Central Asia produced in 2013. The purpose of the work is to explore how obligations of the Kyrgyz Republic under international humanitarian law influence its national sovereignty. The original work compares the cases of Russian Federation and Kyrgyz Republic. However, this excerpt presents only the case of Kyrgyz Republic.
Until the twenties century there was no disciplinary distinction between law and politics. Sovereignty was an order of relations between sovereign and his subjects that included either protection of subjects’ rights or complete subordination of those rights to the holder of sovereignty. Today, modern political scholars such as Stephen Krasner agree that promotion of universal values for protection of human rights, as well as participation in international organizations brought states to the position when they are no longer supreme and central actors.[i] Human beings and their prosperity are now in the center of international affairs. As Stephen Ratner describes we have moved from describing the world to prescribing it certain form, which is the core of international law.[ii] Moreover, the holiness of states’ existence – sovereignty became a subject of questioning and is exposed to attacks from the side of international organizations and non-state actors, such as multi-national corporations, terrorist organizations and transnational diaspora communities that do not respect sovereignty status of the states.
From theoretical background study, general research question arose what is the impact of international obligations under Geneva Conventions over state sovereignty. I assume that due to enforcement measures that states try to provide to international criminal law, such as universal jurisdiction principle, sovereignty should soon be considered only in terms of defining territory, but not jurisdiction over the international crimes. This research presents modern sovereignty understanding as a combination of authority over the crimes committed on the territory of the state considered in the light of country’s status on international political arena. Thus, I claim that such countries as Kyrgyz Republic should be more willing to incorporate international criminal law norms into its national legislation to strengthen its political positions and protect state sovereignty from attacks of more powerful states like Russian Federation. However, small states often lack political will and resources to comply with their international commitments, and thus may become subjects of strong powers harassment.
Incorporation of the grave breaches of international humanitarian law into municipal criminal legislation
Under the Constitution of Kyrgyz Republic, “international treaties to which Kyrgyz Republic is a part and the universally recognized principles and norms of international law shall be the constituent part of the legal system of the Kyrgyz Republic.[iii]” The procedure requires Kyrgyz Republic’s parliament to ratify the treaty before it becomes a part of the national legislation; therefore, Kyrgyz Republic is a county with dual system of law.[iv] The procedure of ratification prescribes that the parliament of Kyrgyz Republic approves international treaty, and authorizes the government to undertake necessary measures for implementation of provisions of the treaty. In case there is a contradiction or a conflict between national laws of Kyrgyz Republic and the norms of ratified international treaties, the latter one prevails.[v] Recent international norms strive to become universal and have the same status and interpretation in every state for the purpose of proper implementation into the national legislation and their practice.[vi] Thus, the more states comply with international norms in the similar manner, the more prospects exist for universal jurisdiction establishment in wider areas of international relations and law. It is also assumed that similar understanding and practice of international norms on domestic levels ensures prosecution of perpetrators despite their location.[vii]
In the practice of international law, states are obliged to follow the norms in the good faith, thus leaving the choice of incorporation type and practice to the decision of states-parties to the agreements. The Geneva Conventions require states to “enact any legislation necessary to provide effective penal sanctions for persons committing” grave breaches.[viii] However, Geneva Conventions do not prescribe any punishment; the liability is assigned by the court and can be based on the national legislation of the state. The ICTY found that “there is no rule, either in customary or in positive international law, which obligates States to prosecute acts which can be characterized as war crimes solely on the basis of international humanitarian law, completely setting aside any characterizations of their national criminal law.[ix]” Consequently, the state has to enact national criminal legislation based on international criminal law to comply with international obligations. In order to examine the correlation and analyze reflection of the international norms and obligations of Kyrgyz Republic in its national legislation, the following analysis should be based on the comparison of definitions and searching for a penalty practice in the state.
Below is the table that provides an overview of the grave breaches of international humanitarian law and their reflection in Kyrgyz Republic’s Criminal Code.
Table 1: Grave Breaches in Kyrgyz Republic’s Criminal Code
|Grave breaches of IHL as found in
GC 1 Art. 50
GC 2 Art. 51
GC 3 Art. 130
GC 4 Art. 147
|Provisions of Kyrgyz Republic’s Criminal Code matching grave breaches of IHL
|Willful killing||Article 97. Killing|
|Torture or inhuman treatment||Article 305-1. Torture is listed under Chapter 30. MalfeasanceInhuman treatment:Chapter 17 Crimes against personal freedom, honor and dignity
Article 123. Kidnapping
Article 124. Trafficking in Person
Article 125. Illegal confinement
Article 125-1. Forced labor
Article 128. Outrage
Article 129. Rape
|Biological experiments||Article 114. Forcing to Remove Human Organs or Tissues for TransplantationArticle 115. Violation of the Transplantation Surgery RulesArticle 116. Unlawful Abortion
Article 117. Infecting with HIV
Article 118. Infecting with a Venereal Disease
|Willfully causing great suffering, causing serious injury to body or health||Article 104. Intended Physical TrespassArticle 105. Intended Infliction of a Less Severe Damage to HealthArticle 111 Torture listed under Chapter 16 Crimes against life and health|
|Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly||Article 174. Intended Property Damage or DestructionArticle 175. Intended Wrecking or Destruction of Historic or Cultural MonumentsArticle 176. Property Damage or Destruction through Carelessness|
To elucidate the difference between grave breaches and provisions of the criminal code of Kyrgyz Republic, the two variables will be considered for each provision: definition of the crime and current penalty under Kyrgyz Republic’s legislation. The definition of the crime shall provide grounds for understanding of the term and national perspective on it; while penalty should illustrate the practice of the law and if it matches international experience.
“The elements of willful killing are the death of the victim as the result of the action(s) of the accused, who intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death, and which he committed against a protected person.”[x] The definition provides several important components that differentiate willful killing from homicide. Those are intention of the killing or to cause serious bodily injuries, and ability to foresee and understand consequences of one’s actions or inaction.[xi] Thus, intentionally reduced food provision that leads to the death of a person falls under the category of a willful killing, as well as reprisals or execution.[xii] For the distinction between the crimes committed in the time of war and peace, the ICC statute makes an addition to the definition of the willful killing in the time of war saying that the victim has to be a protected person.[xiii] The stress is also made that the definition of the protected persons goes beyond individual taking no active part in the hostilities.[xiv]
The Criminal Code of Kyrgyz Republic Article 97 defines killing as an “intended depriving another person of life” that shall be sentenced by 8 to 15 years of imprisonment.[xv] The article also provides elements of the killing that aggravate the crime. Those are mass killing, killing of woman knowingly pregnant, of a person knowingly helpless or juvenile person, in a manner threading lives of many people, due to interethnic, race or religious hostility, and others. Those types of killing shall be sentences by up to 25 years of imprisonment.[xvi]
Comparing two definitions provided by the chamber in Brdanin case and Criminal Code of Kyrgyz Republic, as well as additions from the ICC statute, several common trends should be highlighted.
- An intention to kill or cause serious bodily injuries or suffering
- Targeting protected or vulnerable persons is an aggravating crime
The Geneva Convention relative to the Protection of Civilian Persons in Time of War provides the following definition to the crime of torture “The infliction of suffering on a person to obtain from that person, or from another person, confessions or information.”[xvii]
The comments to the GV IV explain that the term is used sometimes to describe infliction of the moral suffering, but the condition of the purpose of the torture is to obtain information or confessions sometimes makes it impossible for local courts to deal with the crime.[xviii] The comments continue to explain that the torture is “more than a mere assault on the physical or moral integrity of a person.[xix]” Considering wider definition of the term, comments come to the conclusion that what requires additional clauses from the national legislations is that the purpose of the torture is not the pain, but something beyond it. Meanwhile, the crime of torture can sometimes be masked under inhumane treatment, as it is hard to define what is humane treatment, and to what extent protected persons can be treated humanely in the time of war.[xx] If psychological assaults are difficult to classify as the crime of torture, humane treatment clause foresees not only absence of physical torture, but also psychological integrity of the victims.[xxi]
The UN Convention against torture provides a wider definition of torture that includes elements of the willful infliction of the great suffering and inhumane treatment. This definition is also reflected in the article 305-1 of the Criminal Code of Kyrgyz Republic. “…Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[xxii]” Torture shall be punished by deprivation of liberty for a term of three to five years with disqualification to hold specified offices for a term of one to three years or without such disqualification.[xxiii]
Despite the fact that torture definition in the criminal code reflects elements of the other two crimes discussed, Kyrgyz Republic’s criminal legislation stipulates inhumane treatment and infliction of great suffering clauses as well. Article 104 define Intended Physical Trespass as an intended physical trespass, dangerous to health or resulted in loss of sight, hearing loss, loss of an organ or a function of such organ, mental illness or other health disturbance connected with stable loss of earning capacity by at least one third or resulted in miscarriage or irrecoverable face disfigurement, and determines sentence by 5 to 8 years of imprisonment.[xxiv] The Criminal Code provides another definition of the crime of torture in the article 111, defining it as infliction of physical or emotional suffering by systematic beating or other violent actions unless with consequences provided for in Articles 104 and 105 (loss of physical abilities). Thus, Kyrgyz Republic’s legislation differentiates between two crimes of torture also by the purpose that the crime was committed for, where first one is committed with the purpose of information extraction and the second one for any other purpose including mere sadism. Another group of crimes against personal freedom, honor and dignity include kidnapping, trafficking in person, illegal confinement, forced labor, libel, outrage, rape. Those actions could be attributed to the crimes that are defined as inhumane treatment the purpose of which is yet not clearly determined.
“The Fourth Convention forbids the destruction of civilian hospitals and their property or damage to ambulances or medical aircraft. Furthermore, the Occupying Power may not destroy in occupied territory (Article 53) real or personal property except where such destruction is rendered absolutely necessary by military operations.[xxv]” On the other hand, the military necessity means that the conflicting parties may destroy factories, high voltage transmission lines, and other industrial objects that might be vital for survival of the local population during peace, but provide military advantage to the country in war.[xxvi] An example would be destruction of the oil well in the Iraq-Kuwait war.[xxvii]
In case of occupation, the occupying power may appropriate the property of the enemy state.[xxviii] However, Geneva Conventions stipulate limitations on appropriation of the civilian hospitals, foodstuffs and other objects vital for survival of the civilian population.[xxix] The comments to the Geneva Conventions also stipulate that an isolated incident of destruction will not be considered a grave breach. For the purpose of the crime to be attributed to the grave breaches the destruction has to be systematic.[xxx] The comments also note that “most national penal codes punish the unlawful destruction and appropriation of property. In the same way, most military penal codes punish pillage.[xxxi]” However, it seems hard to adopt similar provisions to the national penal codes without mentioning of the condition of war that justifies necessity of destruction.
Kyrgyz Republic’s criminal code article 174 stipulates that the intended property damage or destruction shall be punished by a sentence to triple ayip, or fine in amount of 100 to 200 minimum monthly wages, or up to 3 months of arrest. Whereas, intended wrecking or destruction of state-protected historic or cultural monuments or natural objects, shall be sentenced by fine in amount of up to 50 minimum monthly wages, or 150 to 240 hours of public works, or up to 3 years of imprisonment.
Practical application of the norms
Kyrgyz Republic has experienced internal disturbances in June 2010 and had to apply part of its humanitarian legislation in terms of regulation of the military conduct and stabilization of the situation. What did not happen is persecution of the persons involved into disturbances under international humanitarian law, as all perpetrators were punished under municipal Criminal Code. Since Kyrgyz Republic’s legislation does not stipulate incorporated norms of the Geneva Conventions as part of the national criminal legislation, it complicates the process for application of those norms when necessary not only in case of domestic events, but also in case international criminal enters territory of the state.
Despite existing limitations, there are several ways that Kyrgyz Republic may use to apply international principles if they are absent in the national legislation:
- Using precedent and analogy[xxxii]
- Using the help from foreign state (universal jurisdiction)[xxxiii]
- Using references to international norms and agreements, thus making it part of the national legislation[xxxiv]
Kyrgyz Republic will have to use one of the ways to apply humanitarian law principles in case they need to be invoked, and it might happen that Kyrgyz Republic will need to address foreign state to solve those issues. Scholars argue that the position of the Kyrgyz Republic on international arena weakens country’s sovereignty, because the country is not a permanent member of the UN Security Council.[xxxv] Hence, Kyrgyz Republic should deliberately comply with its international obligations under international humanitarian law to preserve its sovereignty and to be able to participate in international processes over international war criminals, and also because it has no other mechanisms to influence decision making of stronger states towards Kyrgyz Republic. For the moment, Kyrgyz Republic remains vulnerable to incidents when it is required to apply international criminal norms, as they are absent in the national legislation of the state.
The questions that rise from the present research and should be answered in the future projects is how to improve the process of incorporation of the grave breaches of IHL into domestic legislations of small states and how will that impact relations with countries of significant political power. The present research proves that although compliance with obligations and commitments under international criminal law hinder state sovereignty, it also provides sufficient grounds of protection and improvement of the status of small states on international arena. If sovereignty is understood as the authority over criminal cases on the territory of the state, then universal jurisdiction principle does not only hinder state sovereignty, but also protects the status of sovereign states of insignificant political power empowering them with the rights to consider universally recognized crimes. It equalizes status of states on international arena by establishing common principles and definitions of the crimes, thus ruling out room for political manipulations over important criminal cases. However, the processes of political power balancing and change in international relations system are yet to be studied.
[i] Steven Ratner, “International Law: The Trials of Global Norms”, Foreign Policy, No. 110, Special Edition: Frontiers of Knowledge (Spring, 1998), pp. 65-80
[ii] Ratner, Ibid
[iii] Constitution of Kyrgyz Republic, Article 6
[iv] Nogoibaeva E. K., Myrsalieva N. K., Correlation between International Law and National Legislation in the Kyrgyz Republic, AUCA Academic Review, 2009
[v] Criminal Procedural Code of Kyrgyz Republic, Article 2
[vi] Jonathan Garson, Universal Jurisdiction for Crimes of Jus Cogens or is there another route?, Journal of International Law and Policy, Vol. IV, University of Pennsylvania
[vii] Judgment, Hadzihasanovic (IT-01-47-T),Trial Chamber, 15 March 2006, x260 http://intl-jicj.oxfordjournals.org/content/7/4/723.full.pdf+html
[viii] Art. 49 GC I, Art. 50 GC II, Art.129 GC II, Art. 146 GC IV
[ix] Judgment, Hadzihasanovic (IT-01-47-T),Trial Chamber, 15 March 2006, x260 http://intl-jicj.oxfordjournals.org/content/7/4/723.full.pdf+html
[x] Kordic and Cerkez, Appeal, 17/12/2004, paras 36-38 : Brdanin, Trial Chamber, Judgment, 01/09/2004, para.381 http://www.cojite.org/tl_files/cojite/contenu/Concepts%20Cles/Wilful%20killing%20%28%20Homicide%20intentionnel%29.pdf
[xiii] Rome Statute of the International Criminal Court, 1998
[xiv] ICRC, International humanitarian law and the challenges of contemporary armed conflicts, 2007, http://www.icrc.org/eng/assets/files/other/irrc-867-ihl-challenges.pdf
[xv] Criminal Code of Kyrgyz Republic
[xvi] Criminal Code of Kyrgyz Republic
[xvii] ICRC, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949
[xix] ICRC, Ibid
[xx] Ward Ferdinanduss, The Prosecution of Grave Breaches in National Courts, Journal of International Criminal Justice 7 (2009), 723-741
[xxiii] Criminal Code of Kyrgyz Republic
[xxiv] Criminal Code of Kyrgyz Republic
[xxvi] Chile Eboe-Osuji, Grave Breaches as War Crimes: Much Ado About Serious Violations, ICC, 2011
[xxvii] Eboe-Osuji, Ibid
[xxviii] ICRC, Practice Relating to Rule 50. Destruction and Seizure of Property of an Adversary, http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule50
[xxxii] Saikal Esengeldiyeva, Ministry of Foreign Affairs of Kyrgyz Republic, Implementation of International Humanitarian Law in Kyrgyz Republic, http://www.mfa.kg/articles/implementaciya-norm-mejdunarodnogo-gumanitarnogo-prava-v-kirgizskoi-respublike-7_ru.html
[xxxiii] Kenneth Roth, The Case For Universal Jurisdiction, Foreign Affairs, September/October, 2001
[xxxiv] Krystof Drzewicki, National legislation as a Measure for implementation of International Humanitarian Law, Implementation of International Humanitarian Law, p. 110—111
[xxxv] Vitaly Kalugin, Implementation Mechanism of International Humanitarian Law Norms at National Level, Belarusskiy Zhurnal Mezhdunarodnogo Prava, I MezhdunarodnyhOtnosheniy, №1, http://elib.bsu.by/bitstream/123456789/29853/1/2000_1_JILIR_kalugin_r.pdf