{"id":25247,"date":"2025-06-23T08:00:24","date_gmt":"2025-06-23T06:00:24","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=25247"},"modified":"2025-11-14T15:07:47","modified_gmt":"2025-11-14T14:07:47","slug":"the-road-not-taken","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-road-not-taken\/","title":{"rendered":"The Road Not Taken?"},"content":{"rendered":"

On 30 September 2024, the Republic of Lithuania took the noteworthy step of referring<\/u><\/a> the situation in Belarus to the International Criminal Court\u2019s Prosecutor. Lithuania\u2019s referral alleges that crimes against humanity have been committed in Belarus since May 2020, around the time of Belarus\u2019 disputed August 2020 election<\/u><\/a>,\u00a0in what it describes<\/u><\/a> as a campaign of crimes carried out against the civilian population at the behest of senior political, law enforcement and military leaders. Specifically, the referral\u00a0cites<\/u><\/a> deportation, persecution, and other inhumane acts against the civilian population of Belarus, \u201cat the behest of senior Belarusian political, law enforcement and military leaders\u201d. Crucially, Lithuania asserts that part of the elements of these crimes occurred on Lithuanian territory (as well as other States Parties\u2019 territories, such as Poland, Latvia, and Ukraine) \u2013\u00a0specifically the forced displacement of Belarusian civilians into Lithuania \u2013 thereby bringing the situation within the ICC\u2019s territorial jurisdiction despite Belarus itself not being a party to the Rome Statute.<\/p>\n

Lithuania\u2019s referral was welcomed<\/u><\/a> by Belarusian pro-democracy forces in exile as a long-awaited bid for accountability. With an estimated 600,000 people having fled<\/u><\/a> Belarus since 2020, many of whom resettled in ICC member states, Lithuania emphasized<\/u><\/a> the need to provide justice and prevent the recurrence of such crimes.<\/p>\n

Submitted with considerable anticipation, this referral initially made waves in regional and international media, but quickly faded from the spotlight.\u00a0While many commentators dismissed the referral as politically symbolic \u2013 or overlooked it entirely \u2013 this step raises certain fundamental legal questions. Below, we explore the legal basis for Lithuania\u2019s referral, how it fits the ICC\u2019s jurisdictional framework, and the broader prospects for an ICC investigation.<\/p>\n

Legal Basis for ICC Involvement<\/strong><\/p>\n

The ICC\u2019s jurisdiction and trigger mechanisms are governed<\/u><\/a> by the Rome Statute, and Lithuania\u2019s referral invokes several key provisions. Pursuant to\u00a0Article 13(a) of the Statute, the Court may exercise its jurisdiction if a State Party to the ICC refers to the Prosecutor \u201ca situation in which one or more [ICC] crimes appears to have been committed\u201d for investigation.<\/p>\n

The ICC can consider the referral only if jurisdictional preconditions are satisfied under Article\u00a012. Article 12(2)\u00a0sets out<\/u><\/a> that for the Court to exercise jurisdiction (absent a UN Security Council referral), at least one of the two links must hold: (a) territory or (b) active personality. In the Belarus context, the ICC cannot exercise jurisdiction on the basis of nationality, as the alleged perpetrators are nationals of a non-State Party. Thus, the jurisdictional basis must come via territory \u2013 meaning some part of the alleged criminal conduct must have taken\u00a0place on the territory of an ICC member state. Lithuania\u2019s referral explicitly addresses<\/u><\/a> this by asserting that part of the elements of certain alleged crimes, such as deportation, occurred on Lithuanian soil (and potentially on other States Parties\u2019 territories). This clever jurisdictional hook is modeled on previous ICC practice\u00a0in the Bangladesh\/Myanmar situation that allows<\/u><\/a> the Court to prosecute cross-border crimes when at least one essential element occurs in a State Party\u2019s territory (ICC-RoC46(3)-01\/18<\/u><\/a>, para. 64). This gateway may also open the door for the Prosecutor to investigate other crimes within the same situation, even if those occurred entirely on non-State Party territory.<\/p>\n

Lessons from the Bangladesh<\/strong>\/Myanmar<\/strong>\u00a0<\/strong><\/p>\n

The closest parallel to the Belarus situation is the ICC\u2019s handling<\/u><\/a> of the Rohingya deportation from Myanmar. In that situation, Myanmar (like Belarus) was not an ICC member,\u00a0however, the cross-border nature of the crime of deportation \u2013 Rohingya being driven into Bangladesh \u2013 provided a foothold. In April 2018, former ICC Prosecutor Fatou Bensouda took<\/u><\/a> the innovative step of requesting a ruling from the Pre-Trial Chamber on whether the Court had jurisdiction \u201cover the alleged deportation of the Rohingya people from Myanmar to Bangladesh.\u201d The Pre-Trial Chamber I answered<\/u><\/a> affirmatively. This decision established that even a non-State Party can come under ICC jurisdiction if part of a crime happens on the territory of a State Party. The Chamber reasoned that interpreting Article 12(2)(a) in light of its object and purpose and relevant rules of international law allowed such an exercise of jurisdiction (ICC-RoC46(3)-01\/18<\/u><\/a>, para. 65). It pointed out that many national legal systems and prior international cases (e.g. PCIJ S.S. <\/em><\/u>Lotus<\/em><\/u> case<\/u><\/a>, p. 20) support the idea that territorial jurisdiction is not strictly confined to situations where the entire conduct occurs on the territory \u2013 one element suffices (ICC-RoC46(3)-01\/18<\/u><\/a>, para. 66).<\/p>\n

Article 12(2)(a)\u2019s reference to the \u201cconduct in question\u201d occurring on State Party territory was interpreted contextually to mean that partial conduct is sufficient. The Court did not set a rigid threshold but emphasized that at least one essential element must take place on the territory of a State Party. No explicit provision in the Rome Statute forbids jurisdiction in such mixed territorial scenarios, and the drafters even anticipated that tricky questions of territorial scope might arise and left it to the Court to resolve (ibid<\/em><\/u><\/a>., para. 70). Therefore, the combination of Lithuania\u2019s referral and the fact that the alleged abuses have extraterritorial effects in ICC member states gives the Court a jurisdictional basis to proceed.<\/p>\n

Following that ruling in Bangladesh\/Myanmar, Prosecutor Bensouda proceeded<\/u><\/a> to request authorization to open a full investigation, which Pre-Trial Chamber III granted<\/u><\/a> in November 2019. The Chamber explicitly concluded it had jurisdiction because \u201cpart of the criminal conduct [took] place on the territory of a State Party\u201d\u00a0(ICC-01\/19-27<\/u><\/a>, para. 43). It found a reasonable basis to believe that crimes against humanity of deportation and persecution had been committed against the Rohingya, and these fell within the Court\u2019s purview due to the Bangladesh link. Notably, the Chamber did not limit the investigation only to deportation; it acknowledged that other crimes (such as apartheid or genocide) might have been alleged but it focused on those necessary to establish jurisdiction (ibid<\/em><\/u><\/a>., para. 129). Once the investigation was authorized, the ICC Prosecutor gained the ability to investigate any crimes within that situation that are sufficiently linked, which could include additional crimes the evidence reveals, even if committed largely in Myanmar.\u00a0The \u201csituation\u201d is initially defined by the referring party \u2014 in this case, Lithuania \u2014 but its scope is ultimately interpreted and confirmed by the Court at the authorization stage. The Court has consistently viewed \u201csituations\u201d broadly, emphasizing that admissibility is assessed with reference to potential cases and groups of persons likely to become the focus of future proceedings (ICC-01\/09-19-Corr<\/u><\/a>, paras. 50, 182).<\/p>\n

Jurisdictional Prospects<\/strong><\/p>\n

For Belarus, the Bangladesh\/Myanmar case suggests a likely path: the ICC could assert jurisdiction primarily on the basis of deportation of Belarusian civilians into Lithuania and other States Parties, as well as associated persecution. These offenses would serve as the jurisdictional trigger. Once an investigation is underway, it could encompass other crimes against humanity committed as part of the overall attack on Belarus\u2019s civilian population (e.g. torture, imprisonment, etc.), because those crimes can be factually interconnected with the deportation\/persecution campaign.<\/p>\n

While the ICC\u2019s jurisdiction must always be grounded in the preconditions set out in Article 12 of the Statute, its practice suggests a recognition that the Prosecutor\u2019s investigative mandate is not artificially confined to isolated incidents or crimes, as such a narrow approach would run counter to the object and purpose of the Statute. In particular, Article 54(1)(a) requires<\/u><\/a> the Prosecutor to \u201cextend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility.\u201d This obligation, coupled with the Court\u2019s situation-based approach to jurisdiction, allows for a comprehensive examination of criminal conduct that forms part of a broader campaign. Although the scope of admissibility and jurisdiction must always be carefully assessed, the Prosecutor is expected to investigate the full factual and legal context of a situation, not merely the fragments that first triggered jurisdiction. In that sense, a more functional reading of Article 12(2)(a), informed by the Court\u2019s teleological method of interpretation, may accommodate investigations that encompass crimes factually linked to the situation, even where individual acts occurred wholly within a non-State Party.<\/p>\n

Potential Outcomes and Broader Implications<\/strong><\/p>\n

Following Lithuania\u2019s referral, the ICC Prosecutor\u2019s Office (OTP) has opened<\/u><\/a>\u00a0a preliminary examination of the Belarus situation as of late 2024. This is the first phase in the ICC process, where the OTP analyzes available information to decide whether the Statute\u2019s criteria are met to proceed. Given the strong evidence from UN inquiries<\/u><\/a>, NGO reports<\/u><\/a>, and Belarus\u2019s own public actions, the preliminary examination could progress relatively quickly. The Prosecutor needs to determine if there is a \u201creasonable basis to proceed\u201d with an investigation, considering jurisdiction, admissibility, and interests of justice (Article 53(1)<\/u><\/a>). If the Prosecutor concludes affirmatively, he can proceed straight to a full investigation because a State Party referral is on the table. In practice, we might expect an announcement sometime in 2025 declaring that the OTP is opening an investigation into the Situation in Belarus (Lithuania\/Belarus), similar to announcements made after referrals of situations like Venezuela<\/u><\/a> (2018) or Ukraine<\/u><\/a> (2022).<\/p>\n

Closing Observations<\/strong><\/p>\n

The referral of Belarus to the ICC and the prospective investigation marks a significant extension of international justice into a country that for decades seemed beyond reach. One should avoid political speculation, but legally, one can say the move also strengthens the path for future cases: regimes that employ transnational repression or exert pressure that forces opponents to flee abroad may increasingly find themselves exposed to ICC jurisdiction. While exile alone does not automatically constitute persecution as a crime against humanity, it can, in conjunction with other acts, form part of a broader pattern of targeted repression that meets the threshold under Article 7 of the Rome Statute.<\/p>\n

In terms of process, one should temper expectations with realism: ICC processes are slow, and Lukashenko and officials may never be physically brought to trial unless political circumstances change. But even in their absence, the ICC can issue indictments that will stand as a historical record of culpability. In other ICC situations (e.g. Sudan and Libya), years passed without surrender of suspects, yet the cases remain active and charges pending, exerting a long-term pressure.<\/p>\n

The jurisdictional theory for the situation in Belarus has strong support in ICC jurisprudence, and the alleged crimes are undoubtedly of the kind the ICC was created to address. The coming months will likely see the ICC\u2019s preliminary examination conclude and, if all criteria are met, the opening of a formal investigation \u2013 a development that could eventually put Belarus\u2019s leadership in the dock, at least figuratively if not physically.<\/p>\n

 <\/p>\n

Editorial note: <\/em>The author\u2019s identity is known to the editorial team, but the name has been withheld for protection.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On 30 September 2024, the Republic of Lithuania took the noteworthy step of referring the situation in Belarus to the International Criminal Court\u2019s Prosecutor. Lithuania\u2019s referral alleges that crimes against humanity have been committed in Belarus since May 2020, around the time of Belarus\u2019 disputed August 2020 election,\u00a0in what it describes as a campaign of […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7420,5117,3823,3912],"authors":[7628],"article-categories":[6000],"doi":[],"class_list":["post-25247","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-belarus","tag-crimes-against-humanity","tag-icc","tag-jurisdiction","authors-anonymous","article-categories-article"],"acf":{"subline":"Understanding Lithuania\u2019s ICC Referral of Belarus"},"meta_box":{"doi":"10.17176\/20250627-083056-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=25247"}],"version-history":[{"count":9,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25247\/revisions"}],"predecessor-version":[{"id":25263,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25247\/revisions\/25263"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=25247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=25247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=25247"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=25247"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=25247"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=25247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}