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Can the ICC hold Lukashenka accountable?

In an effort to tame Alyaksandr Lukashenka, several NGO’s are calling on the International Criminal Court to initiate an investigation into the misdeeds of his regime. A goat trail seems to be the only option.

August 19, 2021 - Gijs Willem Freriks - Articles and Commentary

Alyaksandr Lukashenka speaks in Zhitomir, Ukraine in 2019. Photo: Siarhei Liudkevich / Shutterstock

On May 19th, the International Partnership for Human Rights (IPHR), the Norwegian Helsinki Committee, Global Diligence LPF, and Truth Hounds called on the International Criminal Court (ICC) prosecutor to investigate crimes against humanity committed by Lukashenka’s regime. Two specific charges are at issue, that of deportation and persecution on political grounds. 

The question is how much of a chance these charges have. 

After the rigged presidential elections and Lukashenka’s re-election in August 2020, Belarusians took to the streets en masse, but those demonstrations were violently suppressed. So far, more than 30,000 Belarusians have been arrested, subjected to violence, torture, ill-treatment, and arbitrary detention. Also, nearly 15,000 nationals have (forcibly) left the country. 

This is certainly not the first call to the ICC to investigate Lukashenka’s misdeeds. Earlier, in an interview with Interfax-Ukraine, Valery Tsapkala, the leader of the opposition-led Belarus’ National Salvation, announced that he was collecting documents on the 1990s killings of ‘specific Belarusians’, like politicians Viktar Hanchar and Yury Zacharanka and businessman Anatoly Krasovsky. “This is a good initiative. After the ICC makes a decision, Lukashenka will be arrested as an international criminal when he goes abroad”, Tsapkala said. 

However, it is inconceivable that Lukashenka will have to explain himself in The Hague for the above political killings. The same is probably true of more recent cases, such as that of Raman Bandarenka, the artist who died in November 2020 after severe beating by security forces. There are two reasons for this. First, Belarus has never ratified The Rome Statute, the treaty drafted in 1998 that led to the birth of the ICC in July 2002. As a result, the ICC has no jurisdiction over Belarus’ territory. The only way to drag Lukashenka to the ICC for crimes against humanity committed on Belarus’ territory is through a referral by the UN Security Council (UNSC). However, Russia and China will veto such a referral, as they did in 2014 in cases of violence in Syria. And in 2015, Russia was the only country to block the creation of a special tribunal to investigate the downing of flight MH17. 

Second, it will not be as easy in all cases to have Lukashenka designated as responsible. To prove direct involvement in murders, judges need hard evidence, political scientist Valery Karbalevich also stressed in May in an interview with Nezavisimaya Gazeta: “Murders in Belarus are more likely the result of a bad combination of circumstances than a deliberate instruction to kill these people (…) I don’t think Lukashenka gave the order to kill Raman Bandarenka.”

However, there is a goat trail that can be followed to bring Lukashenka to the ICC. While the ICC has no jurisdiction over crimes that take place in Belarus, it does have jurisdiction over crimes in state parties such as Lithuania, Latvia, Poland, and Ukraine. Lukashenka’s campaign of repression has led to refugee flows to Belarus’ neighbouring countries. The ICC can exercise its jurisdiction over those responsible for the forced displacement, as the court did earlier when millions of Rohingya Muslims fled from Myanmar to Bangladesh. Myanmar has not ratified The Rome Statute, but Bangladesh has. Hence, the ICC judges ruled that this criminal case does fall within their jurisdiction. Against this background, a precedent has been set. This is also why the focus of the NGO’s, including IPHR, is limited to the forced displacement and persecution on political grounds. They cherish hopes that Lukashenka may one day be held accountable in The Hague. If not for the atrocities in his own country, then for his part in chasing away and persecuting Belarusians across the border. 

Either way, it will be a lengthy process. It could take years before a verdict is reached. Even if it is made at all. After all, the ICC is known as an expensive and ineffective institution. Rarely defendants are convicted. The free passage of Sudanese President Omar al-Bashir is probably the biggest blot in ICC’s history. However, this may change soon as the latest news is that the transitional government in Khartoum plans to hand Al-Bashir over to the ICC.

This is not to say that an ICC intervention would necessarily be meaningless and toothless. After all, if the ICC steps in, it can increase the psychological pressure on Lukashenka’s regime and possibly slow down the level of repression, if only for a while. In this sense, an ICC trial also has a symbolic effect. If Lukashenka ignores these events and the crackdown continues, he is likely to face additional sanctions from the international community. 

Gijs Willem Freriks is a Dutch journalist with a MA degree in Russian & Eurasian Studies from the European University in St. Petersburg.

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