Legal Liability of Non-Execution of Military Illegal Orders by Members of Armed Forces in the Kyrgyz Republic

Abstract

The Kyrgyz Republic has its army and all parts that constitute the system of Defense. Almost the most important part of the army is Members of Armed Forces. They have special legal liability, specific work and conditions which are written in many normative legal acts of the Kyrgyz Republic1. Sometimes, legal norms provided by the legislation are not enough to solve some situations. These situations may arise as a result of misunderstanding of the law by Members of Armed Forces and can result in violation of laws. At the moment of receiving illegal order, Members of Armed Forces hesitate and do not know how to act: in case of execution of illegal order there comes a criminal liability for committing a crime2; however, the national legislation of the Kyrgyz Republic does not provide Members of Armed Forces with clear definition and legal liability for the non-execution of illegal orders: “The person is not criminally liable for the non-execution of illegal order, …, if they have been assigned to the person unlawfully. Liability arises only when the factual executed act contains elements of another crime.”3 Firstly, this norm does not really describe the solution of the non-execution of the illegal problem. Secondly, Article 39 does not state anything about disciplinary liability, however it is extremely important to consider the fact that the system of the military service is built on the discipline. The Commonwealth of the Independent States (CIS) countries can become as a model in question of paraphrasing Article 39 in favor of Members of Armed Forces. Almost all Criminal Codes of CIS countries state: “Non-execution of illegal order excludes criminal liability.”4 This implementation of the norm seems more explaining and understandable than the Kyrgyz Republic’s one. In addition, the experience of foreign countries can be used as recommendations for Kyrgyz courts, scholars and legislators. As a result, the problem of misunderstanding of criminal and disciplinary liabilities of Members of Armed Forces can be solved by taking into account many foreign countries and norms under Humanitarian Law. 4