Polish-Lithuanian-Belarusian Border Crisis and Ius ad Bellum Part I: Background and Key Findings

[Mateusz Piątkowski is an Assistant Professor at the University of Łódź, Poland (Faculty of Law and Administration, International Law Department), Attorney-at-law, and Member of the Polish Society of the Military Law and the Law of War. The author thanks Dr Tomasz Lachowski from University of Łódź, Poland and LtnCol. Dr Wojciech Mendel from the Polish Society of Military Law and the Law of War for their valuable commentaries.]

In August 2020, major civil unrest erupted in Belarus in response to the rigged presidential election. Despite the mass protest, president Alyaksandr Lukashenko holds effective control of the state, and in brutal crackdowns, suppresses the democratic opposition, forcing the projected winner of the 2020 election, Sviatlana Tsikhanouskaya, to flee the country. Poland and Lithuania offered significant support for the oppressed Belarusians, granting them asylum (Tischanovskaya herself was granted asylum in Lithuania). Lukashenko’s actions were condemned by the EU and NATO and new sanctions were imposed on the regime, as international isolation of Lukashenko progressed, with their only ally being the Russian Federation. 

In spring 2021 Lukashenko started to highlight in his public speeches that the actions of Lithuania, Poland and the EU, which in his opinion sponsored the coup d`etat in Belarus, had to be punished in a radical way. Known for his unchecked temperament, the dictator emphasized that “Poland will receive a huge blow”. The first warning was sent in May 2021, when the Polish-registered Ryanair FR4978 flying from Athens to Vilnius was forced to land in Minsk in order to arrest the Belarusian journalist, Raman Pratasevich. The incidents also sparked a dispute regarding the circumstances in which an aircraft flying over a state could be forced to land in order to exercise that state’s criminal jurisdiction. As a response, the EU closed its airspace to Belarusian air carriers and EU state member state’s aircraft were banned from flying over the airspace of Belarus. 

In early summer 2021, Belarus adopted significant changes in migration policies, such as a “tourist visa” for nationals of the Middle East and African countries. Belarusian state-controlled tourist agencies offered affordable trips to Minsk or “hunting escapades”. At the same time, Belarus expanded flights connecting to countries such as Iraq, Syria, Turkey, and Dubai for no apparent reasons. Shortly after arriving in Minsk, migrants were provided with transportation to the border area with Lithuania. In place, Belarusian border guard agents served as “point men”, providing details about the border, the best places to cross, and further instruction to avoid eventual control. On 17 August 2021 Lithuania reported that Belarusian border guards crossed the border. In 2020, the number of illegal entries from Belarus into Lithuania was 74, while in the first eight months of 2021 Lithuania identified 3 836 arrivals. In October 2021, the Lithuanian Ministry of Internal Affairs reported that it processed approximately 1 289 international protection applications with only two applicants receiving refugee status.  

Simultaneously in August 2021, the number of intercepted crossings skyrocketed at the Polish-Belarusian border. From 1 January 2021 to 11 November 2021, Poland reported 33 000 illegal crossings. Poland responded by declaring a state of emergency at the frontier zone, the construction of barbed wire, and the redeployment of law enforcement and military forces. The most intense incident was reported on 8 November 2021, when a column of approximately 4 000 migrants marched to the Bruzhi-Kunica border crossing. The Belarusian military and police provided cutting tools, wooden logs, and stones. Belarusian soldiers and border guards created a cordon around temporary camps of immigrants, firing in the air from time to time to force the migrants to cross the border. People gathered near the border of Belarus were not allowed to return to Belarus and there were reports of abuse if they tried to do so.  

By analyzing the above-mentioned facts, the following conclusions can be drawn:

1. The migrant crisis on the border between Lithauania-Belarus and Poland-Belarus is artificially created and fully orchestrated by the Lukaschenko regime, which conceals international migrant smuggling under the false pretext of ‘tourist activities’. The actions of Belarus could be classified as  “coercive engineered migrations”. 

2. International law rigorously combats human trafficking. In 2000, alongside the United Nations Convention against Transnational Organized Crime, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. The Protocol establishes an overall duty on the state parties to prevent trafficking (Art. 9). Under the Protocol against the Smuggling of Migrants by Land, Sea, and Air, supplementing the above-mentioned UN Convention, the state of Belarus must effectively prevent the smuggling of migrants (art. 2), including by criminalization of smuggling (art. 6), cooperation between states with common borders (art. 10) and other border measures (art. 11). Belarus has been a party to these treaties since 2003. However, the Protocols are silent in regard to state-sponsored activities. The main ‘purpose and objective’ of these treaties is ‘to prevent and combat’ smuggling or trafficking. In order to achieve this goal, states must criminalize human trafficking or smuggling by correspondingly amending the state’s national law. By default, the Protocols link the offences to individuals, not states per se. To put it simply, the Protocols do not directly address the activities of the state, which by actions conducted by its agents is involved in human trafficking or smuggling. Nevertheless, the obligations towards other states, especially to those which have a common border, might be deduced by invoking the provisions which are creating preventive duties, such as the commitment to exchange information (art. 10 of the Protocol against the Smuggling of Migrants by Land, Sea and Air). Both Protocols contain a provision regarding the settlement of disputes, establishing a procedure with ultimately could trigger the jurisdiction of the International Court of Justice. Poland and Belarus did not submit reservations to this provision.

3. There are two goals of the operation. The first one is retaliation: individually against Poland and Lithuania, collectively against the EU and NATO. The second is political: to force the West to recognize Lukashenko as the lawful ruler of Belarus and to end the sanctions imposed after the unrest in August 2020. Furthermore, on the suggestion of Sergei Lavror, the Russian Federation Foreign Minister, the EU “could provide financial assistance” to Belarus to stop illegal immigration, just as Turkey is receiving financial support under the agreement with the EU. 

4. On the ground, the operation is being directed by Belarusian secret services, border guards, soldiers, and policeman. The agents of the Belarusian state provide the migrants with the tools for forced entry, transportation, instructions on how and when cross the border, intelligence and smuggling technics. They also pressured the migrants to make an attempt to cross and denied them the possibility of returning. In November 2021, there was also news regarding direct shipment of migrants between the Polish and Lithuanian borders, organized by the Belarusian military. 

5. On some occasions, there is the probability that Belarusian agents have crossed the international border. During the night between 1 and 2 November 2021, armed masked persons were spotted on the Polish side of the border. The Polish Ministry of Foreign Affairs protested against this intrusion. Also, as revealed in the news, there are reports stating that the Belarusian border guard special forces (OSAM) had infiltrated the Polish territory as far back as 2020.   

6. Recently, it has been reported that Belarusian border guards directly demolished a section of the barbed wire fence (already installed in the Polish territory) and Polish troops were blinded by laser and stroboscope lights.