The migrant crisis along the European Union’s (EU) border with Belarus is escalating. In recent weeks, large groups of migrants gathering in the territory of Belarus have attempted to enter Latvia, Lithuania, and Poland, at times resorting to violence to cross the border. Both the EU and NATO, as well as individual governments including the United States, have accused Belarus not only of orchestrating this crisis, but also of contravening international law in the process. In this two-part series, we explore these claims with the aim of identifying which, if any, of its international commitments Belarus is violating.
We begin by outlining the role of the Belarusian authorities in facilitating the flow of migrants seeking to cross the border with the EU, before turning to Belarus’ obligations under the relevant international agreements and rules of customary international law. We will first focus on the rules governing the use of force, the law of armed conflict, the principle of non-intervention and sovereignty. In the second part of the series, we address Belarus’ bilateral commitments, the pertinent rules of refugee law, and international human rights law.
Belarus: Weaponizing Migration?
Beginning in June 2021, the number of migrants seeking to enter Latvia, Lithuania, and Poland from neighboring Belarus has risen exponentially. The figures are sobering. While Lithuania received 321 asylum applications during 2020, that number has skyrocketed to 3,392 since the start of 2021. In a similar fashion, the number of attempted illegal border crossings into Poland has risen to several hundred each day by November 2021.
In recent months, evidence has emerged to suggest that the flow of migrants from Belarus was not just tolerated, but actively facilitated by the authorities in Minsk, most likely in retaliation for the sanctions imposed by the EU on Belarus earlier this year. While initial media reports suggested that the border crossings were encouraged and assisted, but not necessarily organized, by the Belarusian authorities, subsequent reporting uncovered documents which implicate State-owned companies in coordinating the travel of migrants to the border with the EU. Since then, the active involvement of the Belarusian government has become even more obvious. Numerous incidents have been recorded which show the Belarusian security services escorting migrants crossing into the EU or preventing their return to Belarus. Reports also confirm that the Belarusian uniformed services are transporting groups of migrants to locations near the border. In a worrying development, Belarusian personnel are now supplying migrants with tools to breach Poland’s temporary border reinforcements and actively participate in these efforts themselves.
European governments have repeatedly accused Minsk of masterminding the crisis. On Nov. 11, the EU members of the U.N. Security Council, joined by Norway, the United Kingdom, the United States, and Albania, condemned “the orchestrated instrumentalisation of human beings” and blamed Belarus for facilitating “the illegal crossing of the external borders of the European Union.” President Lukashenko has dismissed these accusations as “fake news”. However, such denials are difficult to reconcile with the stream of videos that show Belarusian service personnel participating in the disorder. Meanwhile, conditions at the border are worsening as winter approaches; several deaths were reported over the weekend, including that of a 14-year-old child.
An Unlawful Use of Force?
Mindful of the recent uptick in violence at the Polish-Belarusian border, it is appropriate to begin our analysis by exploring whether Belarus is in breach of its obligations under the U.N. Charter and related instruments, in particular the Friendly Relations Declaration.
There has been some speculation whether the deliberate and forcible expulsion of groups of people over an international border may amount to a use of force within the meaning of Article 2(4) of the U.N. Charter. Ian Brownlie noted in International Law and the Use of Force by States, a seminal exploration of the definition of “use of force,” that the issue is fraught with difficulty . To answer this question, it is useful to distinguish between three possible scenarios.
The first scenario involves a State using force against another State by relying on migrants as proxies. This scenario assumes that the migrants concerned carry out acts amounting to the use of force and that they do so under the effective control, or pursuant to the instructions or direction, of the first State.
In attempting to enter the EU from Belarus, groups of migrants have repeatedly used violence that may amount to an act of physical force within the meaning of Article 2(4) of the U.N. Charter. On Oct. 24, a group of 60 persons tried to break through the barbed-wire fence erected by the Polish authorities. Two Polish soldiers suffered minor injuries when they were attacked with branches and stones. On Nov. 8, several hundred migrants used wire-cutters and logs to damage another section of the fence. On Nov. 16, groups of young men attempted to dismantle the fence and break into Polish territory at Kuźnica, hurling stones and metal barriers at Polish troops and using sling shots.
Given the relatively limited harm caused by these incidents, it may be queried whether they are sufficiently intense to qualify as a use of force for the purposes of the U.N. Charter. While it has been suggested that “very small incidents” do not so qualify, it has to be borne in mind that the most intense bouts of violence seen at the border are neither small-scale nor inconsequential. They involve dozens of persons actively engaged in violent acts and require the deployment of hundreds of uniformed personnel in response. These acts are directed against the integrity of Poland’s border installations – installations whose function it is to control access to Poland’s territory and thus guarantee its territorial inviolability and security. They involve physical damage to that infrastructure and in some cases injury, though minor, to the personnel defending it. It is worth underlining that some of the acts, such as the throwing of stones and use of sling shots, are clearly aimed at causing injury to Polish personnel. The better view is that these specific acts of violence may, in principle, qualify as a use of force within the meaning of Article 2(4) of the Charter given their forcible character, effects, and context.
However, there is little to suggest that the migrants have engaged in these acts either under the effective control of the Belarusian authorities or pursuant to their instructions or direction, though there is some evidence that Belarus has assisted in some of these efforts (discussed further below). As regards control, direction, or instruction, however, it is reasonable to assume that the migrants do not need to be told to attempt to dismantle or evade the border infrastructure, but are perfectly capable of deciding on this course of action themselves (see Nicaragua, para. 115). In the absence of evidence to the contrary, the migrants do not therefore appear to carry out acts of violence on behalf of Belarus. Until and unless this changes, Belarus is not in breach of Article 2(4) of the Charter on these grounds.
The second scenario involves the indirect use of force. As stated in the Friendly Relations Declaration, every State must “refrain from organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State”. Media reports confirm that the Belarusian authorities have transported migrants to the border, have provided them with directions for bypassing official border crossings, and have given them tools, such as bolt cutters, to physically breach the border fence. The Polish authorities have also accused Belarus of equipping migrants with tear gas. Although non-lethal in its effects, in the present circumstances it is reasonable to regard the use of tear gas against Polish border guards as an act of offensive violence. Accordingly, the Belarusian authorities are systematically supporting, enabling and arming groups of migrants to carry out acts of violence in their attempts to cross the border into the EU illegally (see Nicaragua, para. 228). While we may leave open the question whether this amounts to “organizing” unlawful territorial incursions, it certainly constitutes “encouraging” such incursions in contravention of Article 2(4) of the Charter. Also, whereas groups of armed migrants do not fit the notion of “irregular forces,” the notion of “armed bands” is broad enough to extend to such groups. Given that the Charter rules governing the use of force apply regardless of the weapon used (Nuclear Weapons, para 38), not only bands or groups armed with conventional weapons should be treated as “armed bands,” but also those that employ means capable of achieving analogous or comparable physical effects, as is the case here.
The third scenario involves the direct use of force. It appears that Belarusian uniformed personnel have themselves crossed the border into the EU on several occasions. On Aug. 18, 12 Belarusian officers dressed in riot gear were reported to have entered Lithuania. On Nov. 1, Polish forces encountered three uniformed and armed men, believed to be Belarusian personnel, inside Polish territory. In the absence of any physical violence, some may consider these incidents to be insignificant and therefore insufficient to qualify as a use of force.
However, on Nov. 12, the Polish Border Guard reported that Belarusian personnel destroyed sections of the border fence during the previous night and used lasers and strobe lights to harass Polish forces. As indicated earlier, the deliberate destruction of border installations with the aim of forcing or facilitating unauthorized entry constitutes a use of force. By contrast, the use of laser lights and strobes does not appear, at least at first sight, to be a violent act. When viewed in isolation, this may well be correct. However, the use of these lights was clearly intended to prevent the Polish border guards from carrying out their duties and thus to complement other violent efforts to breach the border. It should also be noted that, although not lethal, the lights employed were powerful enough to produce harmful physical effects. At the very least, their use adds to the gravity of the other destructive acts carried out by the Belarusian personnel against the fence. Accordingly, these acts were in breach of Article 2(4) of the Charter.
No Armed Attack
Whereas Belarus is using force in contravention of the U.N. Charter, its actions do not rise to the level of an armed attack triggering Latvia, Lithuania, or Poland’s right to use force in self-defense. An armed attack is a use of armed force that is of higher gravity because of its scale and effect (Nicaragua, para. 195). Where exactly this gravity threshold lies is not certain, but the International Court of Justice has declared that an armed attack exceeds a “mere frontier incident” (ibid.).
The fact that in the present case the acts of violence take place at the border with Belarus does not exclude the possibility that they may qualify as an armed attack: otherwise no violation of an international frontier, however severe, would ever give rise to the right of self-defense. Rather than their location, what matters is whether or not these acts of violence are sufficiently substantial in their scale and severe in their effects. In the absence of more widespread physical destruction and injury than what we have witnessed so far, this is not the case. The threshold of an armed attack therefore has not been crossed.
The absence of an armed attack is reflected in some of the official statements on the matter. In its Conclusions adopted on Oct. 22, the European Council has referred to the “ongoing hybrid attack launched by the Belarusian regime,” while European Council President Charles Michel more recently spoke about a “brutal and violent hybrid attack.” However, others have used more guarded language. The joint statement issued by EU Member States and third nations in the Security Council on Nov. 11 refers to “hybrid operations.” The statement made by the North Atlantic Council on Nov. 12 describes Belarusian activities as “hybrid actions.” Presumably, these phrases were chosen carefully to avoid the impression that the right of self-defense might be engaged – as it would be at the point of armed attack.
That said, while none of the individual incidents for which Belarus bears responsibility amount to an armed attack in their own right, the possibility cannot be excluded that they may amount to such at a future date when viewed accumulatively. Whether in such circumstances Article 5 of the North Atlantic Treaty may be engaged, triggering collective self-defense obligations of treaty members (as has been queried), will depend in the first instance on its invocation by Latvia, Lithuania, and Poland.
Violations of the Law of Armed Conflict?
Despite the fact that Belarus is using force both indirectly and directly at its borders with Poland (and possibly Latvia and Lithuania), it is questionable whether the crisis has given rise to an international armed conflict between Belarus and any of these States within the meaning of Common Article 2 of the Geneva Conventions of 1949.
Even if one accepts that an international armed conflict arises as soon as there is resort to armed force between States, and that it does so regardless of the intensity of the fighting, the fact remains that so far the acts of violence have been directed against physical objects, with no recourse to armed force between Belarusian and Polish, Lithuanian, or Latvian personnel. In these circumstances, it seems premature to declare the existence of an armed conflict.
For this reason, Belarus is not in violation of its obligations under the law of armed conflict, as the bulk of these obligations are simply not applicable. In particular, the use of lasers and strobe lights is not a violation of the Fourth Protocol on Blinding Laser Weapons annexed to the Convention on Certain Conventional Weapons. This is so because the Protocol applies only during armed conflict. In any case, it prohibits only the employment of laser weapons “specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness.” The lights used by Belarusian personnel do not appear to fit this description.
The Principles of Non-intervention and Sovereignty
Even if the acts of violence against the border infrastructure are not considered to constitute a use of force because of their relatively low intensity, they nevertheless almost certainly amount to a violation of the principle of non-intervention. The principle prohibits coercive intervention into matters falling within the reserved domain of domestic jurisdiction of another State (Nicaragua, para. 195). While each State is bound to admit certain persons into its territory, which may include asylum seekers, it does not have to admit everyone or do so in an uncontrolled manner. Thus, by encouraging illegal entry, facilitating the circumvention of border controls, participating in the physical destruction of border infrastructure, and hindering Polish personnel in carrying out their official functions, Belarus is engaged in coercive acts in matters that fall within the reserved domain of domestic jurisdiction of Poland, in breach of the principle of non-intervention.
For the same reasons, Belarus is violating the sovereignty of its neighbors, as pointed out by Polish Prime Minister Mateusz Morawiecki. Based on the majority view which treats sovereignty as a rule of international law, Belarus has violated Latvia, Lithuania, and Poland’s sovereignty by causing physical damage on their territory and/or interfering with their exercise of the inherently governmental function of controlling access to their respective national territories.
Overall, an analysis of Belarus’ actions suggest that they are in breach of the prohibition to use force, as set out in Article 2(4) of the U.N. Charter, as Belarusian personnel are using armed force against Poland (and possibly Latvia and Lithuania) both directly and indirectly. However, these acts of force do not reach the level of an armed attack, meaning that Poland’s right to use force in self-defense is not engaged. Poland must therefore refrain from the use of force against Belarus, although it should be underlined that this does not preclude law enforcement actions to maintain the border against persons or groups seeking to enter Poland unlawfully. The analysis also shows that Belarus is violating Latvian, Lithuanian, and Polish sovereignty and acting in contravention of the principle of non-intervention. None of the acts, however, amount to an international armed conflict.