[Opinion] How do you solve a problem like Lukashenko? Perhaps at the ICC

Yet, his enforcers continue to mete out violence and arbitrary detention with impunity. The regime has forced over 14,000 citizens to flee the country. This gives the International Criminal Court a sliver of a chance to hold the regime to account. The international community should call on the ICC to act.

On Wednesday (19 May), the International Partnership for Human Rights, Global Diligence LLP, Truth Hounds and Norwegian Helsinki Committee asked the prosecutor of the International Criminal Court (ICC) to investigate the crimes against humanity perpetrated by the Lukashenko regime in Belarus.

Since May 2020, president Lukashenko along with key members of the presidential administration, the government, law enforcement, state security, the judiciary and others agents and proxies have waged a campaign of repression against the civilian population of Belarus in a bid to retain power at all costs.

At least six civilians have been killed, over 33,000 have been arrested, hundreds have been tortured in police and state security detention and an estimated 14,000 have been driven out of the country.

There is little doubt that the scale and ferocity of the regime’s conduct has reached the threshold of crimes against humanity.

We have interviewed hundreds of witnesses who provide harrowing accounts of police brutality, interrogations under torture, inhuman and degrading treatment of detainees, sexual violence in prisons, intimidation and harassment on the streets and in peoples’ homes.

Parents have been threatened with having their children taken away into state custody. Protesters are losing their jobs, housing, bank accounts and other basic public services.

On 17 May 2021, Lukashenko ratified a law that permits law enforcement to use lethal force against protesters, granting them immunity from prosecution. The next day, the offices and homes of one of the last independent media organisations – TUT.BY – was raided and effectively gagged.

The problem is, Belarus is not a member of the Council of Europe or any other international justice mechanism.

Nor is it a state party to the ICC, and without a resolution from the UN Security Council, the ICC is only permitted to investigate and prosecute crimes committed on the territory of ‘State Parties’ or by their nationals.

Myanmar precedent?

However, in September 2018, the ICC accepted a key exception to this limitation in the situation in Myanmar. Where a non-state party forces civilians to flee across the border to the territory of a state party, the ICC may prosecute this conduct as crimes against humanity of deportation and persecution.

In the case of Belarus, thousands of civilians have fled to Lithuania, Latvia, Poland and Ukraine (all states over which the ICC has jurisdiction) as a result of the regime’s coercive conduct.

Some were physically driven into no-man’s land by the authorities, others were told to leave or face prosecution, others still fled in the face of imminent arrests, violence and other serious human rights abuses.

In November 2020, Lukashenko announced that “a core group” or 2,000 protesters should be “taken away to Lithuania and Poland”. In December, Lukashenko ratified a law that allows the regime to strip its opponents of Belarusian citizenship.

The same month, Lukashenko issued a clear threat – “we are not going to prevent anyone from leaving but remember this – if you leave you are not going to be able to return”.

Thus, the regime’s message to the people of Belarus is clear – stay and yield to the regime or run and never come back.

Whilst the ICC’s jurisdictional limitations prevent our case from reflecting the full spectrum of the violations in Belarus – as in the case of Myanmar – it is the only means currently available to the international community to hold the regime to account.

Whilst Lukashenko’s conduct has been met with widespread condemnation, the international community appears to stand by as thousands of pro-democracy protesters and activists are beaten up and languish in jails.

As protests continue to paralyse the country and the regime becomes more desperate, we fear further violence and bloodshed ahead. The international community must do something to hold the regime to account.

With Russia on the UN Security Council, there is no prospect of international justice for the victims of the regime – other than the ICC.

We therefore call on the international community to support our efforts to have the case investigated by the ICC prosecutor.

If nothing else, the deterrent effect of an ICC investigation may help to prevent further escalation of violence by the regime. Support from State Parties – in the form of a state referral under Article 14 of the Rome Statute – would bring the case to the fore and give the ICC more impetus to act swiftly and decisively.