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Published online by Cambridge University Press: 26 August 2022
Crimes against humanity constitute mass crimes against civilian populations and represent the so-called ‘core crimes’ of international criminal law. Central Asian states have so far abstained from incorporating the corpus delicti of crimes against humanity in their criminal legislation. After a short overview of the current status of crimes against humanity under international law, this article analyses the domestic legislation of five Central Asian countries: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. It looks at current Criminal Codes to suggest how those could be strengthened by the inclusion of properly formulated crimes against humanity dispositions, taking into account the peculiarities of these national legal systems. The article also offers a brief review of possible factors which might have precluded the states in question from proper implementation. It argues in favour of such implementation, delineating its legal benefits and potential advantages for both State Parties and non-State Parties to the Rome Statute in Central Asia.
Assistant Professor of Public and International Law, KIMEP University School of Law, Almaty, Kazakhstan.
1 Werle, Gerhard & Jessberger, Florian, Principles of International Criminal Law (Oxford University Press 2014) 328, para 867Google Scholar.
2 ibid.
3 ibid.
4 ibid.
5 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex, 8 Aug 1945, 82 UNTS 279 (entered into force 8 Aug 1945), art 6(c).
6 Rome Statute of the International Criminal Court, opened for signature 17 Jul 1998, 2187 UNTS 90 (entered into force 1 Jul 2002) (henceforth ‘Rome Statute’).
7 Atadjanov, Rustam, Humanness as a Protected Legal Interest of Crimes against Humanity. Conceptual and Normative Aspects (TMC Asser Press & Springer 2019) 123CrossRefGoogle Scholar.
8 Ambos, Kai, Treatise on International Criminal Law (vol II, Oxford University Press 2014) 49Google Scholar; Charter of the United Nations, opened for signature 26 Jun 1945, 1 UNTS XVI (entered into force 24 Oct 1945), art 13.
9 Ambos (n 8) 49.
10 Atadjanov (n 7) 123; DeGuzman, Margaret, ‘Crimes against Humanity’, in Schabas, William & Bernaz, Nadia (eds), Routledge Handbook of International Criminal Law (Routledge 2011) 126Google Scholar.
11 Even so, it is far from being utmostly clear or consistent: Ambos, for example, reasons that the definition of crimes against humanity in modern instruments of ICL has been vague and inconsistent in many respects. See Ambos (n 8) 47.
12 Atadjanov (n 7) 6.
13 Werle & Jessberger (n 1) 144, para 374.
14 Rome Statute, art 1.
15 Amnesty International, ‘Universal Jurisdiction: A Preliminary Survey of Legislation around the World – 2012’ (Oct 2012) <https://www.amnesty.org/en/documents/ior53/019/2012/en/> accessed 1 Jun 2021. No subsequent reports with information similar to this one has been released by Amnesty International or other organisations compiling the data pertaining to crimes against humanity in one single document.
16 See the ratification status of the Rome Statute by Tajikistan at the following link: International Criminal Court, ‘Tajikistan’ <https://asp.icc-cpi.int/states-parties/asian-states/tajikistan> accessed 1 Jun 2021.
17 DeGuzman (n 10) 128. Some of those descriptions are centered around the view of crimes against humanity as a threat to international peace and security; others are focused on their gravity and the negative effects they have on the ‘conscience of humanity’ as mankind. Yet others include such a characteristic feature of these crimes as their group-based harm (ibid 127–130).
18 Atadjanov (n 7) 125. The competing normative visions of crimes against humanity are well but not too inclusively described in DeGuzman (n 10) 127–130.
19 DeGuzman (n 10) 127.
20 ibid; Atadjanov (n 7) 125.
21 Atadjanov (n 7) 6.
22 ibid 9.
23 ibid 149–151.
24 ibid 146–151.
25 ibid 10; May, Larry, Crimes against Humanity: A Normative Account (Cambridge University Press 2005) 80–95Google Scholar.
26 Atadjanov (n 7) 10; Luban, David, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of International Law 85, 111–114Google Scholar.
27 Atadjanov (n 7) 10–11.
28 ibid 312.
29 ibid 187.
30 ibid.
31 ibid.
32 Atadjanov (n 7) 312–313. The author has also previously analysed the issue of how the five constituting elements of humanness relate to the material part of these crimes (ibid 190–204).
33 United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (HMSO 1948) 196–197; Robert Cryer et al, An Introduction to ICL and Procedure (Cambridge University Press 2010) 234.
34 Atadjanov (n 7) 283.
35 ibid; Cassese, Antonio, International Criminal Law (Oxford University Press 2003) 144Google Scholar.
36 Atadjanov (n 7) 284; cf Florian Jessberger, ‘The Definition and the Elements of the Crime of Genocide’, in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (Oxford University Press 2009) 95.
37 Atadjanov (n 7) 284.
38 ibid 285.
39 ibid.
40 Christian Tams et al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (CH Beck-Hart-Nomos 2014) 85–86.
41 For a comparative analysis of the protective scopes of genocide and crimes against humanity, see Atadjanov (n 7) 286–291.
42 ibid 296.
43 Akhavan, Payam, ‘Reconciling Crimes against Humanity with the Laws of War. Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence’ (2008) 21 Journal of International Criminal Justice 21, 21–22Google Scholar.
44 Cryer et al (n 33) 233.
45 ibid.
46 This is logically explained because the law concerning war crimes was originally based on reciprocal premises between parties to the conflict. See ibid; Atadjanov (n 7) 296.
47 Cryer et al (n 33) 233.
48 Frulli, Micaela, ‘Are Crimes against Humanity More Serious Than War Crimes?’ (2001) 12 European Journal of International Law 329, 330CrossRefGoogle Scholar.
49 Atadjanov (n 7) 301.
50 ibid; Cryer et al (n 33) 317.
51 Cryer et al (n 33) 318; Atadjanov (n 7) 297.
52 Cryer et al (n 33) 318–319.
53 Bassiouni, M Cherif, Crimes against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press 2011) 660–663CrossRefGoogle Scholar. The originally proposed numbers in the referenced source have been checked and updated by this article's author.
54 Bassiouni (n 53) 660-663.
55 Werle & Jessberger (n 1) 144–145, para 374.
56 ibid 146–148, paras 377–386 (Professors Werle and Jessberger aptly and succinctly describe these methods).
57 Sayapin, Sergey, ‘Central Asia. State Report Overview’, in Lee, Seokwoo (ed), Encyclopaedia of Public International Law in Asia (Brill 2021) 2Google Scholar.
58 ibid.
59 Kazakhstan adopted a law on treaties on 30 May 2005, Kyrgyzstan on 24 April 2014, Tajikistan on 23 July 2016 (in its new edition), Turkmenistan on 10 May 2010, and Uzbekistan on 6 February 2019 (in its new edition).
60 Sayapin (n 57).
61 Sergey Sayapin, ‘Crimes against the Peace and Security of Mankind in the Revised Edition of the Criminal Code of the Republic of Uzbekistan’ (2019) 44 Review of Central and East European Law 527.
62 Sergey Sayapin, ‘Implementacija principov mezhdunarodnogo ugolovnogo prava v ugolovnom zakonodatel'stve Respubliki Kazahstan [The Implementation of Principles of International Criminal Law in the Criminal Legislation of the Republic of Kazakhstan]’ (2018) 1-2 Law and State no 153, 1.
63 Sayapin (n 57).
64 ibid.
65 The current edition of the Criminal Code of Kazakhstan was adopted on 3 July 2014; it entered into force on 1 January 2015. For the text of the Code in Russian, see: ‘Ugolovniy Kodeks Respubliki Kazakhstan [Criminal Code of the Republic of Kazakhstan]’ (Zakon) <https://online.zakon.kz/Document/?doc_id=31575252> accessed 1 Jun 2021. For a brief overview and analysis of the implementation of the four core crimes in the Kazakhstani Criminal Code, see Sayapin (n 62).
66 ‘Konstitutsia Respubliki Kazakhstan [Constitution of the Republic of Kazakhstan]’ (Zakon) <https://online.zakon.kz/Document/?doc_id=1005029> accessed 1 Jun 2021.
67 Restricting this interpretation only to international treaties would be too limiting and incorrect; it would contradict a proper inclusive understanding of international law whose sources include, first of all, treaties, rules of customary law, and general principles of law.
68 Kazakhstani Criminal Code, arts 99, 106, 120, 121, 125, 126, 128 and 146.
69 These would include: incitement of social, national, clan-based, racial, class-based or religious hatred (art 174), establishing, leading and participating in the activities of unlawful public and other associations (art 404) as well as organising and participating in the activities 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 (art 405).
70 Of which crimes against humanity are a part.
71 Under international criminal law, the statute of limitations does not apply to crimes under international law (core crimes).
72 Sayapin (n 62) 6.
73 Criminal Code of the Kyrgyz Republic, arts 380–395. The current edition of the Criminal Code was adopted on 2 February 2017 and entered into force on 1 January 2019. See ‘Ugolovniy Kodeks Kirgizskoy Respubliki [Criminal Code of the Kyrgyz Republic]’ (Zakon) <https://online.zakon.kz/document/?doc_id=34350840> accessed 1 Jun 2021.
74 ibid art 381.
75 For a detailed analysis of this important aspect of crimes against humanity, see Atadjanov (n 7).
76 Kyrgyz Criminal Code, art 3.
77 However, apartheid is provided as a separate crime against peace and security of mankind under Article 386 of the Code.
78 Needless to say, murder and rape constitute crimes in the Kyrgyz Criminal Code but not under the heading of crimes against international legal order, or crimes against the peace and security of mankind, but as domestic crimes against life (murder) and crimes against sexual integrity and sexual freedom (rape). In other words, they represent ordinary domestic crimes in the eyes of the national legislator but not international crimes.
79 See Rustam Atadjanov, ‘Crimes against Humanity’, in Sergey Sayapin et al (eds), International Conflict and Security Law (forthcoming Jul 2022).
80 Criminal Code of the Republic of Tajikistan, current edition available in Russian at the following link: ‘Ugolovniy Kodeks Respubliki Tajikistan ot 21 Maya 1993 goda no 574 [Criminal Code of the Republic of Tajikistan dated 21 May 1998 No 574]’ (Zakon) <https://online.zakon.kz/document/?doc_id=30397325#pos=3859;-54> accessed 1 Jun 2021.
81 ‘Crime’ in singular form, unlike all other sections of the Code where the titles contain ‘crimes’ in plural.
82 For a brief overview and history of the non-international armed conflict in Tajikistan (1992–1997), see Atadjanov, Rustam, ‘Non-International Armed Conflict in Tajikistan’, in Lee, Seokwoo (ed), Encyclopaedia of Public International Law in Asia (Brill 2021)Google Scholar.
83 According to the ICC published guide to the Rome Statute Elements of Crimes, ‘since article 7 pertains to international criminal law, its provisions “…” must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole.’ See Elements of Crimes (International Criminal Court 2011) 5 <https://www.icc-cpi.int/resource-library/Documents/ElementsOfCrimesEng.pdf> accessed 1 Jun 2021.
84 The Statute does not require its State Parties to adopt an implementing legislation with respect to any crime under the jurisdiction of the Court. It is certainly encouraged to do so even if there is no legal obligation under the treaty law.
85 The Criminal Code of Turkmenistan was adopted on 12 June 1997 and entered into force on 1 January 1998. ‘Ugolovniy Kodeks Turkmenistana ot 12 iunya 1997 goda No 222-I [Criminal Code of Turkmenistan dated 12 June 1997 No 222-I]’ (Zakon) <https://online.zakon.kz/document/?doc_id=31295286#pos=1224;-49> accessed 1 Jun 2021.
86 For clarity, all criminal codes in Central Asia are formally divided into two main parts: General Part and Special Part. The Special Parts contain/describe the criminal offences proper.
87 The present official edition of the Criminal Code of the Republic of Uzbekistan is available in Russian at the following link: ‘Ugolovniy Kodeks Respubliki Uzbekistan’ (LexUz On-line) <https://lex.uz/docs/111457> accessed 1 Jun 2021.
88 See Sayapin, Sergey, ‘Crimes against the Peace and Security of Mankind in the Revised Edition of the Criminal Code of the Republic of Uzbekistan’ (2019) 44 Review of Central and East European Law 527Google Scholar.
89 For a brief description on the nature of those amendments, see ibid 527–528.
90 For a more detailed analysis of the issues arising out of these gaps, and possible solutions, see ibid 536–537.
91 Sayapin (n 87) 528–529.
92 The proposed definition's language and style correspond to the textual language used in the criminal legislation of Uzbekistan as a matter of practice.
93 According to Professor Bassiouni, national prosecutions of crimes against humanity would remain few, and there may be political reasons for this reluctance. States have proven unlikely to prosecute their own leaders: Bassiouni (n 53) 721–722.
94 Richard Vernon, ‘Crime against Humanity’ (Encyclopaedia Britannica, 2 Jun 2017) <https://www.britannica.com/topic/crime-against-humanity> accessed 1 Jun 2021.
95 Atadjanov (n 7).
96 Which is, again, a matter of both treaty and customary international law.
97 Moreover, that would may turn out useful for national criminal justice systems of the states in other Asian regions. It is suggested that the implemented formulations of crimes against humanity in Central Asia can be taken as positive examples for improving the domestic implementation in those states.
98 It would be relevant to mention here that crimes against humanity represent some of the most serious violations of international human rights law as well.
99 It is worth mentioning here that, most of the time, Central Asian authorities try to avoid publicly discussing or officially covering developments in the International Criminal Court (ie, ongoing cases and investigations, jurisdictional issues, support for the cause of international criminal justice, etc). This attitude should be understood in conjunction with the lack of motivation by Central Asian states (except Tajikistan) to ratify the Rome Statute – which is possibly regarded by them as an encroachment upon their sovereignty and according immunity upon their representatives. While analyses of geopolitical factors are not the main focus of this article, they definitely play a significant role in this context and affect decision–making processes on international legal issues, including the domestic implementation of crimes against humanity.