Belarus in the dock

 

On Sept 30, Lithuania submitted a referral to the International Criminal Court (ICC) requesting an investigation into Belarus over possible crimes against humanity targeting Belarusian civilians “at the behest of senior political, law enforcement, and military leaders”. The ICC will now conduct a preliminary examination, which may lead to an investigation and, potentially, criminal charges.

While Belarus is not a state party to the ICC, Lithuania is, and according to its referral, there are “reasonable grounds to believe” that crimes against humanity such as deportation, persecution, and other inhumane acts were committed partly on its own territory, putting them within the ICC’s jurisdiction. This is the first time an ICC state party has referred a non-ICC state party to the court over conduct occurring on its territory.

It is also the first time top Belarusian leaders, including president Aleksandr Lukashenko, have faced an examination by an international court, despite their years-long effort to eliminate domestic opposition, including a violent crackdown on popular protests sparked by the 2020 presidential election.

The ICC and its state parties may have lacked the necessary resources or information to pursue an investigation into these activities, or they may simply have lacked the will, especially given the diplomatic fallout that inevitably accompanies a referral.

But Lithuania does not have the luxury of ignoring the situation in Belarus. Some 3.2 million Belarusian civilians, more than Lithuania’s entire population, have entered the country in recent years, largely during the period of repression surrounding the 2020 election, and more than 60,000, fearing for their personal safety, are settling there for the long term.

For the ICC, however, the referral raises significant challenges. The court is stretched thin, in terms of capacity, resources, and political backing. Meanwhile, the nature and incidence of conflicts – and of atrocities (war crimes, crimes against humanity, and genocide) – are changing fast.

In recent years, the world has faced the largest number of active armed conflicts since 1946. Today, 100 countries have been at least partly involved in some form of external conflict in the last five years, up from 59 in 2008. In 2000-20, almost one-fifth of countries “experienced mass atrocities or had serious concerns raised that they could take place”.

A measure of the ICC’s success, as a court of last resort, is that most atrocity crimes are occurring outside its 124 state parties, which together comprise a kind of “domain of relative peace”. But if the majority of alleged atrocities occur in non-ICC states, how can the court fulfil its mandate to “end impunity for the perpetrators of the most serious crimes of international concern”?

Lithuania’s recent referral suggests an answer: investigate individuals whose crimes occur only partly on the territory of an ICC state. After all, the consequences of atrocities committed in non-ICC states are increasingly spilling over into territories within the ICC’s jurisdiction.

For example, Bangladesh faced an influx of Rohingya from Myanmar in 2016-17, when crimes against humanity – including illegal deportations – were allegedly being carried out. Russia’s aggression against its neighbours – Georgia (an ICC member) in 2008, and Ukraine in 2014 and since 2022 – has undoubtedly had far-reaching spillovers.

But, while this approach is legally justified, if daring, it runs up against significant practical challenges, not least how to compel alleged perpetrators to appear in The Hague for legal proceedings.

The ICC has had a warrant out for Vladimir Putin’s arrest since March 2023. By investigating Russian, American, and Israeli/Palestinian nationals, the court has gone some way towards shaking charges of bias against Africa. But, in the absence of arrests and trials, it is at risk of being dismissed as irrelevant.

This would be a tremendous loss. The arc of justice is long, to paraphrase Martin Luther King Jr, but the process that begins when a warrant is issued is irreversible.

Ad hoc courts or tribunals for Kosovo, Rwanda, Sierra Leone, and the former Yugoslavia, which had arguably more limited powers than the ICC, waited years or even decades for alleged perpetrators to be apprehended after arrest warrants were issued.

Even without an arrest, the warrant shapes internal and external political dynamics. The threat of arrest prevented Putin from traveling to summits in South Africa and Brazil, and Lukashenko worries that an ICC prosecution will stop him from playing a role in future peace negotiations between Russia and Ukraine.

Since ad hoc initiatives can be costly and may result in selectivity, a permanent court is better suited to issue warrants. In other words, if the ICC did not exist, we would have to invent it.

The ICC also has a powerful normative impact, underscored by the fact that the US, a non-member that is under investigation over its actions in Afghanistan, still provides evidentiary support to the court and money for victims.

Even states that are reluctant to join the ICC change their minds when they become a victim: Armenia joined in 2023, and Ukraine will join in 2025.

No one doubts the scale of the challenges the ICC faces. In 2025, there are likely to be no active trials at the ICC, partly because the court has not been able to enforce existing arrest warrants: while 11 war criminals have been convicted, 24 defendants remain at large.

If the ICC is to continue defending and enforcing international law, it needs protection, resources, and sustainable support, including in executing its warrants.

As for Lithuania, the government is asking the ICC to close the legal lacuna that states like Belarus have been using to stage incursions and conduct hybrid warfare in neighbouring countries, and to demonstrate to Lukashenko and other authoritarians that their actions have consequences.

You can be the self-appointed “last and only dictator in Europe” one minute, and await trial on criminal charges at The Hague the next. - FMT

Gabija Grigaitė-Daugirdė is vice-minister of justice of the Republic of Lithuania. Aarif Abraham, a British barrister at Doughty Street Chambers, acted as counsel to the Lithuanian government in the ICC state party referral.

The views expressed are those of the writers and do not necessarily reflect those of MMKtT.