The Hague and Europe’s Last Dictatorship

Aleksandr Lukashenko’s regime has been in power for over 30 years. Belarusians who have fled the country report years of systematic repression, persecution, and inhuman treatment by authorities. These accounts also include allegations of murder, torture, and arbitrary detention weaponised against the civilian population.

An avenue for accountability is in sight. On 30 September 2024, Lithuania submitted a referral to the Office of the Prosecutor of the International Criminal Court (ICC). The document alleges systematic “deportation, persecution, and other inhumane acts” rising to the level of crimes against humanity under article 7 of the Rome Statute.

The referral notably claims that the crimes in question were in part committed on Lithuanian territory, as well as that of other States Parties to the Statute. Despite the referral not specifying the states, reports from non-governmental organisations point to Poland, Latvia, and Ukraine (§67). Such a strategy appears to be aimed at constructing a case for an investigation even when part of the alleged crimes were committed on the territory of a non-State Party. In light of the relationship between the states at hand, the Rome Statute, and the elements of the crimes, this article will argue that there may be reasonable grounds for the exercise of jurisdiction in light of alleged cross-border criminal conduct.

The Perennial Question of Jurisdiction

The ICC is only able to exercise jurisdiction over crimes committed on the territory of a State Party or crimes committed by a national of a State Party per article 12(2) of the Rome Statute. The decision to proceed with opening an investigation hinges on factors presented in article 53(1) of the Statute, including the vital question of jurisdiction. Belarus’ status as a non-Party to the Statute of the Court thus creates the first hurdle for the Court.

Lithuania’s positioning of certain elements of crimes being committed in part on its own territory is a strategic act to overcome jurisdictional obstacles to opening an investigation. In filing the referral under articles 13(a) and 14, the Government of Lithuania alleges that there are reasonable grounds to believe that crimes against humanity have been committed by Belarusian officials, with part of the element of these crimes being committed on the territory of Lithuania since at least 1 May 2020. By doing so, the referral seeks to claim territorial jurisdiction in cases of crimes with cross-border elements.

Transboundary Criminal Conduct

The elements of the crime against humanity of deportation involve forcible displacement to another State without grounds permitted under international law, “by expulsion or other coercive acts”. The person or persons who are alleged to be the victims must have been lawfully present in the area, with the perpetrator being aware of this lawfulness and equally aware of or intending the conduct being committed as part of a widespread or systematic attack directed against a civilian population.

Similar accusations of deportation from a non-State Party to a State Party have previously come before the ICC in the case of Bangladesh/Myanmar, where the Court accepted to open an investigation in 2019. In a 2018 decision, Pre-Trial Chamber I (PTC I) confirmed that deportation is “linked to the destination of “another State””, with this destination requirement being vital to the identification of the criminalised conduct in question (§60).

Given that deportation necessarily involves transboundary acts, the corresponding conduct must take place on the territory of more than one State (§71). In the interest of jurisdiction, PTC I has asserted that at least “one legal element of a crime within the jurisdiction of the Court” must have been committed on the territory of a State Party to meet the preconditions for the ICC to exercise its jurisdiction under article 12(2)(a) (§64). Transboundary criminal conduct involving two states with varying statuses as States Parties to the Statute therefore has the potential to meet this requirement.

Lithuania’s referral alleges the deportation of civilians across the border and onto Lithuanian territory. In this case, it relies on the transboundary nature of deportation to claim an element of the crime occurred on its soil. Such a crime would consequently be within the Court’s jurisdiction. With reasonable evidence of a coordinated flight of individuals onto the territory of a State Party, an element of deportation may thus rise to the desired standard.

Reports from non-governmental organisations indeed claim that threats by authorities have intentionally forced civilians across the Belarusian border and into Lithuania, Poland, and other countries. However, this alone is not sufficient to determine whether these acts amount to deportation. Other elements of the alleged crime must first be considered, including whether the civilian exodus was a consequence of intentional actions by state authorities.

Actus Reus, Mens Rea, and Cross-Border Movement

The link between the acts committed by the accused and the act of crossing a border has been addressed extensively within the realm of international criminal law. In the Popović judgement, the International Criminal Tribunal for the Former Yugoslavia (ICTY) identified that it must be the act of the accused that determines the cross-border destination (§893). There must be an established nexus between the movement of victims across the border and the actions of the accused to constitute the very concept of the actus reus in the case of deportation.

Additionally, the mens rea of the crime must encompass cross-border displacement, establishing that the accused intended to displace victims across a border (§904). Otherwise, there is a risk of leaving such a constituent element open to individual choices by the victims, rather than direct acts by the accused.

The Trial Chamber established that this forced displacement is characterised by an “absence of genuine choice” (§896). This encompasses not only physical violence, but also threats, coercion caused by fear of physical or psychological violence, and detention. This component has previously been addressed in the ICTY’s Prlić judgement, acknowledging that “the mere threat of resorting to force or physical or mental coercion may be enough, if the targeted population facing this coercive climate or these threats, has no other choice but to leave its territory” (§50). What renders removal unlawful is the absence of genuine choice, which must be assessed in light of the circumstances at hand.

Factual Circumstances Under Scrutiny

Communications submitted by various organisations under article 15 of the Statute purport to affirm the intention of authorities to force civilians in opposition to the regime outside of Belarus’ borders. They also propose evidence that it is indeed the actions taken by Belarusian state authorities that have forcibly displaced part of the population without a choice.

Among the most direct is a communication from the International Partnership for Human Rights (IPHR) that contains interviews with victims and firsthand accounts of state-imposed violence. The communication submits that, in a televised 2020 interview, Lukashenko announced that “a ‘core group’ of 2000 protesters should be “taken away to Lithuania and Poland” (§115). It further alleges that displacement was “a key goal of the regime’s attack” on dissidents and the political opposition (§144).

Threats of arrest if individuals did not leave, as well as departure being a precondition of being released from arbitrary detention, resulted in a coercive environment intentionally created by the regime and state authorities (§140). Interviews with various witnesses confirm that individuals felt they had “no choice other than to flee or face political persecution” (§127), with threats by authorities to physical freedom and integrity becoming “unbearable” (§142) and communicating a great degree of violent psychological coercion. These acts are thus coordinated in such a way that they may be considered widespread and systematic attacks against the civilian population, rising to the standard of crimes against humanity under article 7 of the Rome Statute.

Other communications submitted by the International Accountability Platform for Belarus (IAPB), Reporters Without Borders (RSF), and Viasna further allege forced civilian departures, forced exile, and the creation of an atmosphere of “fear, terror and persecution” to “cleanse” disloyal individuals from the population. The Report of the Group of Independent Experts on the Situation of Human Rights in Belarus, published on 7 February 2025, confirms diverse practices forcing individuals into exile. Taken together, the reported circumstances are such that it may therefore be plausible for the situation to amount to forcible displacement by authorities outside of Belarusian borders and to States Parties to the Rome Statute, meeting jurisdictional standards and allowing the Court to proceed with an investigation.

In considering whether to open an investigation, the Court’s decision will thus hinge not only on the cross-border nature of the acts to establish territorial jurisdiction, but also on the acts themselves and whether the state’s involvement necessarily established the elements of such an international crime. Ultimately, deciding to open an investigation would represent a welcome step forward to finally ending three decades of impunity.