Will Putin and Lukashenko get an international arrest warrant for persecuting the Russian and Belarusian opposition?

In recent days, international justice has gathered momentum and made itself known. Last Thursday (16 March), the International Criminal Court (ICC) issued an international arrest warrant against Russian President Putin for crimes against humanity, in particular the forced deportation of children from the occupied Ukrainian territories to Russia. There are talks that a similar warrant for the bombing of civilian energy infrastructure will follow soon.

A day earlier (15 March), the Independent International Commission of Inquiry on Ukraine, set up by the United Nations Human Rights Council, published its findings, which also identified the deportation of children as one of the clear crimes. The International Criminal Court is also conducting a war crimes investigation in Ukraine, gathering evidence at mass crime sites such as Bucha, Irpen and Izyum. The investigation into these crimes will determine the legal responsibility of each soldier or military leader who committed the crime.

The international community has also agreed to set up a special Tribunal to investigate the crime of Russia‘s military aggression against Ukraine, where Putin’s direct responsibility for the decisions to launch such criminal aggression would be examined. The European Parliament has also endorsed the establishment of such a Tribunal by a special Resolution. The United Nations General Assembly declared that Russia’s actions constituted a war crime of aggression in the first days of the war. However, the International Criminal Court cannot investigate this crime because it has no direct mandate in relation to Russia (Russia has not ratified the Rome Statute), and the United Nations Security Council will not grant such a mandate because of the Russian veto. That is why a special Tribunal is being set up to investigate the crime of war aggression. This Tribunal would also investigate Lukashenko’s responsibility for the crime of war aggression, because, under international law, Lukashenko is a clear accomplice to such a crime.

The international community is therefore determined to act decisively in order to ensure that the crimes committed by Russia in Ukraine, namely the crime of war aggression, war crimes and crimes against humanity, are strictly and effectively addressed by international justice. Some crimes are already being investigated by the International Criminal Court, and some crimes (which cannot be investigated by the International Criminal Court) will be investigated by a special Tribunal. This creates a very important precedent through international legal means to assess and, at the same time, to stop all crimes related to Russia’s criminal aggression against Ukraine.

While the situation with regard to the international assessment of such crimes is becoming clearer, it is still unclear how the international community is to assess the crimes of both the Lukashenko and Putin regimes against the Belarusian and Russian people themselves, persecuting, terrorising, torturing, imprisoning and denying them any right to freedom of speech and assembly. Previous attempts to protect the rights of such people in other, neighbouring countries, using the instruments of universal jurisdiction, have not been very effective, and the various international sanctions have not had the desired effect. It is therefore worth raising the question of how to make effective use of other instruments of international justice, so that the criminal acts of both the Lukashenko and Putin regimes against their own citizens can be effectively judged by the courts, and the perpetrators be prosecuted.

International law stipulates that if the actions of a government against its own citizens take the form of crimes against humanity, the ICC, if it has a mandate to do so (if a country has ratified the Rome Statute or if the ICC has been given such a mandate by the UN Security Council), must take up the task of investigating such crimes. Whether crimes against one’s own nationals can be considered crimes against humanity depends on the scale and systematic nature of the crimes.

In recent days (9 March), another study on human rights in Belarus, commissioned by the United Nations Human Rights Council and carried out by the United Nations High Commissioner for Human Rights, has been published. It investigates the situation in Belarus as of 1 May 2020, covering the run-up to the 2020 presidential elections and the post-election period.

The in-depth investigation consistently reveals the full panorama of Lukashenko’s brutal actions in persecuting, torturing, imprisoning and depriving Belarusian citizens of any civil human rights. The report draws the crucial conclusion that the Lukashenko regime has committed a whole series of violations of international human rights law (“The High Commissioner has reasonable grounds to believe that several violations of international human rights law were committed in Belarus between 1 May 2020 and 31 December 2022. They include arbitrary deprivation of the right to life and to liberty, torture and ill-treatment, including sexual violence, denial of the rights to due process and to a fair trial, arbitrary denial of the right to enter one’s own country, violations of the rights to freedom of expression, peaceful assembly and association and to equal protection of the law”).

More importantly, the conclusions of the Report state that these violations can also be considered as crimes against humanity, in particular because these acts are carried out as part of a widespread and systematic attack against civil society, knowing that such acts are committed in an organised and offensive manner (“54. Some of the violations may also amount to crimes against humanity, as defined in international customary law, when such acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Considered cumulatively, the organized nature of the violations renders it improbable that they were random and accidental. On the contrary, they appear to have been part of a campaign of violence and repression, intentionally directed at those who were – or were perceived to be – opposing the Government or expressing critical or independent voices, a campaign which consisted of the following components”).

Such a statement by the Commissioner for Human Rights, that the persecution of citizens by the Lukashenko regime may amount to crimes against humanity, opens up new possibilities for the use of international justice instruments.

The next logical step could be a decision by the United Nations General Assembly to endorse the formula of the aforementioned report drawn up by the UN Commissioner for Human Rights on Lukashenko’s crimes against humanity. This would open up the possibility of clarifying whether such crimes can be investigated by the ICC, which, in accordance with the definitions set out in the Rome Statute, is also engaged in the investigation of crimes against humanity, not just war crimes. Such a sequence of legal steps would be entirely analogous to the recent precedent-setting sequence of legal steps in the investigation of Russia’s war of aggression against Ukraine: first, the UN General Assembly declared that the war of aggression against Ukraine constituted a crime under international law, and then it was decided which international legal body should undertake the investigation of this crime. It was decided to create a special Tribunal.

Such a way forward for the international legal investigation of Lukashenko’s crimes was also proposed by the European Parliament, in its Resolution on further repression of the Belarusian people, adopted last week (15 March), calling on the ICC to investigate the Belarusian regime’s crimes and to initiate pre-trial proceedings if it appears that such crimes fall within the definition of crimes against humanity (“encourages the International Criminal Court to investigate and initiate pre-trial proceedings against the Belarusian regime in cases of crimes against humanity”).

Dainius Žalimas, former President of the Constitutional Court of Lithuania, argues that it is a mistake under international law to ask the ICC to investigate crimes against humanity committed by the Belarusian regime, because the ICC does not have and will not have such a mandate . The reason for that is that Belarus has not ratified the Rome Statute and Russia would block a UN Security Council decision to grant a special mandate to the ICC. Therefore in this case the ICC would not be in a position to investigate Lukashenko’s crimes against the humanity of the people of Belarus.

This is why we have to take into account the precedent that is now being set, where the democratic community establishes a special Tribunal to investigate the crime of war of aggression, since the ICC has no mandate to investigate such a crime of aggression. In the same way, a special Tribunal should be created to investigate crimes against humanity committed by the Lukashenko regime. This would bring international justice back to the people of Belarus, who suffer inhuman persecution at the hands of the Lukashenko regime.

In the same way, the international community should do the same with regard to the assessment of Putin’s crimes against humanity perpetrated against its citizens. Putin is keeping pace with Lukashenko in persecuting any dissatisfaction by Russian citizens with the actions of the Kremlin regime. Aggression against one’s own citizens is as much a crime under international law as military aggression against a neighbouring state.