Oleksii Plotnikov, PhD, International Judiciary

Perhaps it will not be an exaggeration to say that the whole world is watching the events on the Belarusian-Polish border, which are already being compared almost with the Berlin or Caribbean crises. From the point of view of international refugee law, the situation does not seem to be all that new. Security, human rights, non-discrimination and a high standard of living have been and remain desirable for millions of people arriving at the borders of the European Union. Some of them declare their intention to seek refugee statues, and many of these people indeed come from regions where they face a real risk of persecution.

Thousands of asylum seekers have been waiting for months to apply for refugee status at the Spanish Ceuta [1], on the Turkish-Greek border [2], and thousands more embark on a dangerous journey across the Mediterranean to be intercepted by patrol ships from EU countries [3]. The EU has long developed specific solutions for such situations, which include providing asylum seekers at the border with basic necessities, translation services, and legal assistance necessary for application for a refugee status. Mechanisms have been developed for the readmission and return to the country of origin of persons trying to cross the border illegally.

If we cynically forget that we are talking about human life, then it is hard to find anything unusual or even just interesting on the Polish border. After all, even a situation where a large group of people in immediate danger has arrived at the border, and the only salvation for them is to cross the border, is not unusual. Such people can and should be received under the so-called temporary protection procedure (see the relevant EU directive [4]).

Actually, it was precisely as potential refugees that the persons arriving from Belarus were considered until recently. On August 25 2021, the European Court of Human Rights ordered Poland and Lithuania to provide a group of several dozen Afghan citizens who were directly at the border, with food, water, clothing, medical assistance and, if possible, temporary shelter. The court did not forget to remind that this does not relieve Belarus of its own international obligations, and that it does not follow from this order that Poland and Lithuania are obliged to accept such persons on their territory. Until recently, the situation was reminiscent of the circumstances of the case of the European Court of Human Rights “N.D. and N.T. v. Spain”, where the ECtHR noted that when a group of asylum seekers is openly at the border, such persons should apply for protection at existing border crossing points. If the state has ensured the operation of such points, and there is a real opportunity to seek asylum, then this state has the right to prevent crossing the border in other places and to push back people who are trying to cross the border without permission.

Therefore, the presence of asylum seekers at the border and their attempts to break through the border are not a key characteristic of the current situation. It is useless to call it the “refugee crisis” [7] or the “migrant crisis” [8], as some commentators do. In fact, this is something else, and this “something” painfully reminds the Crimea in ​​2014.

There are numerous reports that the agents of the Belarusian security forces not only direct people to the border and do not allow them to return, but also directly help in crossing the border, issue tools to destroy fences, blind Polish defenders, etc. It doesn’t take too much imagination to compare this with the actions of the Russian military in the Crimea, which broke into Ukrainian military units under the cover of a crowd of civilians [10]. Similar analogies are being drawn even in Poland itself [11]. The question now is how the democratic world should react to the destructive actions of dictatorial regimes and what mechanisms can be used in this case.

First, the suggestion that it is a matter of human smuggling must be rejected. Such accusations by the EU against Belarus have already sounded [12], and they cannot be called empty, however, human smuggling does not represent the essence of the problem. According to the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, smuggling of migrants means procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.

The key characteristic here is the benefit. Human smuggling is a crime of profit and a lucrative illegal business with billions of dollars in turnover. It is possible that a lucrative motive could be present among individuals involved in organizing the crisis on the Polish border, but it is unlikely that the top political leadership of the states concerned proceeded from a desire to profit from the smuggling of 2,000 migrants into the EU. Thus, the smuggling assumption will have to be discarded.

Is it possible here to bring the Crimean analogy to the end and compare the persons on the Belarusian border with the deliberate use of a human shield made of civilians by the Russian aggressor in Crimea? From a legal point of view, such acts fall under the definition of a war crime “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” provided for in Article 8 of the Rome Statute of the International Criminal Court.

However, war crimes are so called precisely because they can only be committed during a war or, legally speaking, a state of armed conflict. In the spring of 2014, there was undoubtedly a state of armed conflict between Ukraine and the Russian Federation, as confirmed by the Prosecutor of the International Criminal Court [13]. Is there an armed conflict between Belarus and Poland now?

The answer to this question is far from being as unambiguous as in Crimea, because there is no information about the crossing of the border by at least one Belarusian serviceman, about the use of weapons or about the conduct of systematic hostilities. Without delving into the intricacies of the practice of the International Criminal Court on determination of the existence of an armed conflict (duration, systematic character, intensity and other criteria), we can argue that it is at least premature to talk about an armed conflict. The use of searchlights and lasers by the Belarusian security forces to blind Polish servicemen looks like a clear unfriendly action, but it still not the use of weapons. The qualification of events as an armed conflict will depend on further developments.

In determining whether there is an armed conflict, and therefore whether the law of armed conflicts applies to the situation, it will be of great importance to determine whether the actions of Belarus constitute an act of aggression. The UN General Assembly Resolution 1974 “Definition of Aggression” [14] includes such actions as “sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State” so serious that they are tantamount to an attack by the forces of the state itself. There are reports of the issuance of special tools and equipment, up to tear gas, to persons on the Polish border by Belarusian officials. These reports require verification, but if they are confirmed, then it will be possible to assume the presence of the criterion of armament. However, even this is unlikely to be enough to establish the fact of aggression. Those who break into Poland are hardly going to conduct military operations in the interests of Belarus, as, for example, the Russian-controlled “self-defence of Crimea” did. In addition, it can hardly be established that Belarus exercises control over their actions more than a simple pushing to the border.

At present, the actions of Belarus do not fall under either the definition of aggression, or the definition of war crime. However, this does not mean that they are legitimate. At least, Poland has already suffered material damage, at least it is already known about the death of a Polish soldier [15]. In a broader sense, the actions of Belarus are obviously unfriendly with tendency to escalation. Combined with the actions of Russia, which allows combat aircraft to fly in of use of force, requiring a response at the level of the UN Security Council, as well as a joint response by the EU and NATO, of which Poland is a member.

The fact that the Belarusian military and employees did not cross the Polish border does not absolve Belarus of responsibility. According to a very old principle of international law, an action of a state, which causes negative effects on the territory of another state, entails responsibility of the first state. Most often this principle is used in cases of environmental pollution, but in principle it applies to any action. For example, it is often mentioned in connection with cyber attacks (there are many publications on this topic, we can offer this one as an example: [16]). In this case, where a Belarusian border guard shines a laser into the eyes of his Polish colleague across the border, this is exactly an action with a negative cross-border effect.

Another question is the establishment of the responsibility of Russia. It is hardly possible even now to establish that Russia fully controls the actions of the Belarusian leadership. Formally, Belarus remains a sovereign state, albeit with a self-appointed dictator at its head. It can in no way be compared with the so-called “DPR” or “PMR”. However, it can be argued that Russia was involved in organizing the crisis on the Polish border by allowing the use of its territory and its state-operated airline company to smuggle people into Belarus.

Each individual action of Belarus or Russia can be viewed as a manifestation of international policy, albeit unfriendly. However, in the aggregate, such actions as the delivery of persons from Russia to Belarus with their subsequent pushing to the border, pressure from both countries in matters of gas transit, aircraft flights and others can create a cumulative effect equal to specific violations of international law (for example, the threat of force), or international crimes (for example, aggression).

It was Prince Charles, who, with a specific British humor apologized for comparing Putin with Hitler, adding that he, of course, is not Hitler, but sometimes he is “a bit Hitlery sometimes” [17]. His Highness wrote this in the spring of 2014 in response to the actions of the Russian Federation in the Crimea. Now, in the fall of 2021, Great Britain is sending its military to Poland and intends to send British SAS to defend Ukraine [18] in response to the events in Belarus. What is happening is not yet an aggression, not a war crime, and not a Crimean scenario. However, it already looks a bit “Crimy”.

Sources

1. https://www.eurointegration.com.ua/news/2021/05/18/7123273/

2. https://hromadske.ua/posts/cina-pitannya-lyudi-chomu-na-kordoni-greciyi-j-turechchini-tisyachi-bizhenciv

3. https://www.dw.com/uk/u-seredzemnomu-mori-znykly-bezvisty-ponad-40-mihrantiv/a-58146987

4. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001L0055

5. https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7100942-9612632&filename=Interim%20measures%20Poland-Latvia-Belarus%20border.pdf

6. https://www.echr.com.ua/translation/sprava-n-d-ta-n-t-proti-ispani%D1%97/

7. https://www.bostonglobe.com/2021/11/12/opinion/amid-growing-refugee-crisis-poland-belarus-must-respect-human-rights/

8. https://www.bbc.com/news/world-europe-59253377

9. https://news.liga.net/ua/world/news/pogranslujba-polshi-belarus-razdaet-migrantam-instruktsii-i-gaz-gotovyat-k-proryvu-granits

10. https://arc.construction/22446

11. https://novapolshcha.pl/article/kordon-polshi-ta-bilorusi-yak-zmusiti-lukashenka-vidstupiti/

12. https://www.dw.com/en/opinion-poland-belarus-border-crisis-points-to-cynicism-and-hypocrisy/a-59783098

13. https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE-Ukraine_ENG.pdf

14. https://zakon.rada.gov.ua/laws/show/995_001-74#Text

15. https://ua.interfax.com.ua/news/general/779555.html

16. http://yuv.onua.edu.ua/index.php/yuv/article/view/1985

17. https://www.newyorker.com/humor/borowitz-report/an-apology-from-prince-charles#entry-more

18. https://www.mirror.co.uk/news/world-news/british-special-forces-ready-deploy-25453247