Polish-Lithuanian-Belarusian Border Crisis and Ius ad Bellum Part II

[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. You can find Part I of this post here.]

Under international law, military confrontations between states are measured by their intensity and gravity. To establish the threshold and to distinguish between the less and more grave forms of use of force, ius ad bellum offers a three-tier classification of interstate incidents. Tier one is the violation of sovereignty, territorial integrity, and political independence. Sovereignty is a precondition of state subjectivity in international law and could be described as a concept “by which is meant that the State has over it no other authority than that of international law” (para. 81). The state’s exclusivity in exercising jurisdiction over its territory is warranted by the principle of non-intervention. Territorial integrity protects a substantial element of statehood, the ability of a state to control its land, airspace, and waters. The following activities are considered in contravention of the above-mentioned principles of international law: 

• Unauthorized intrusion of airspace by aircraft;
• Unauthorized crossing of borders by the military forces;
• Extraterritorial enforcement of jurisdiction (for example, the Eichmann case);
• Unauthorized covert intelligence operations (for example, the “Rainbow Warrior” incident)
• Any unauthorized intervention in state internal affairs; 

The principle of territorial integrity also contains a specific rule regarding the border itself: the inviolability of frontiers. The rule has been elaborated in multiple documents, especially in those relating to the European and post-Soviet context such as: the Helsinki Final Act of 1975 and Declaration on respect for sovereignty, territorial integrity, and immunity of borders of the State Parties of the Commonwealth of Independent States of 1994. Additionally, art. 4 of the North Atlantic Treaty (to which Poland and Lithuania are parties) underlines that every party has a right to consult other NATO members if the situation is threatening “territorial integrity, political independence, or security”. 

Not every violation of territorial sovereignty, unauthorized entry, or illegal intervention in state domestic affairs is considered as a use of force. This is the reason to discuss the existence of the second tier of interstate incidents: the use of force itself, and in this regard, the classical approach of the UN Charter refers to the military force. The Ethiopia-Eritrea Claims Commission Awards classified the “localized border encounters between small infantry units” below the threshold of art. 51 of the UN Charter, however, it could deduce that such an incident would certainly fall under the scope of art. 2(4) of the UN Charter. This is aligned with the viewpoint presented by the Independent International Fact-Finding Mission on the Conflict in Georgia. It could in this place be concluded that the use of force must be associated with hostile intent and it should target the state: territory, armed forces, warships, and military aircrafts. The third tier will not be considered here, as only “grave  forms” of the use of force are classified as an armed attack, allowing the state to invoke self-defense under the art. 51 of the UN Charter (para. 51) .

If one applies the “classic” approach to art. 2(4) of the UN Charter, unless there is an armed confrontation directed against Polish military, or the open intrusion of Belarusian forces on Polish territory with the specific hostile intent, the situation falls below the threshold of the “use of force” and needs to be classified as a violation of territorial integrity or inviolability of frontiers. Furthermore, officially, neither Poland nor Lithuania did invoke art. 2(4) of the UN Charter in their communication, except Poland protesting against the possible intrusion of Belarusian agents 

How about using migration as a military ‘subsidy’?  According to the Max Planck Encyclopedia of International Law “the causation of a massive influx of refugees has not so far been treated in practice under the principle of the nonuse of force”. Likewise, ILA’s 2018 report on the use of force coercion measures, without the use of armed or physical force, are not equated with the type of force envisaged in article 2(4). Furthermore, it cannot be stated that migrants are a group of individuals under the effective control of the Belarusian government (Art. 8 of the ARSIWA). Although the migrants deliberately decided to board the plane to Belarus with the intention of reaching the EU, it is not simple to say if they ultimately agreed that: 1) the crossing was going to be illegal and 2) the crossing might be forced. This is even more difficult to accept when one assesses that the migrants might be victims of state-sponsored criminal acts like smuggling and human trafficking. Migrants who want to leave the frontier have been subjected to abuse. On a factual basis, it cannot be denied that among migrants there might be undercover agents or persons trained by the regime, although by using the IHL argument as analogy, the overall character of the group cannot be compromised by the status of the individuals. In addition, despite the speculation of Lukashenko himself, migrants are not armed with lethal means of combat.  

However, it has to be mentioned here that in the case of a large migration influx, from time to time they are under “attack”. “Refugee aggression” was invoked in the UN Security Council as a basis for the Indian “self-defense” operation in Bangladesh in 1971. Greece closed the border with Turkey in 2020, citing “national security reasons” and Spain invoked art. 51 of the UN Charter in the ECHR case of N.D. and N.T. v. Spain of 2020, however, it did not explain this approach.  

The key context for all Lukashenko’s actions is coercion – understood as a deliberate attempt to force the EU to abandon the sanctions against the regime and to recognize the Belarusian leader as a legitimate president. However, Lukashenko’s blackmail is in fact an interference in domestic affairs (such as migration, recognition, and sanctions) of other sovereign states (such as Poland and Lithuania), which may be tantamount to a prohibited foreign intervention in internal matters. It is worth recalling in this regard the ICJ’s viewpoint in Armed Activities on the Territory of the Congo (para. 64): 

The Court further affirms that acts which breach the principle of non-intervention “will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations”

In this ruling, the ICJ stated that a mixture of coercive actions, even involving indirect use of force, can, under certain circumstances, be tantamount to a violation of the prohibition of use of force.  In this regard, I do not believe that the general classification of the Polish-Belarusian crisis should be based solely on observing separate events, without taking into account the whole pattern of repetitive and widespread actions of Belarus.  

The Belarusian government clearly created a ‘friendly environment’ for illegal and forced crossings. This includes the artificial creation of the crisis, abstention from border protection on the Belarusian side, the noncriminality of forbidden activity of individuals in the frontier zone, supply of tools and intelligence, alongside creating the conditions of a “no return policy”. Although it does not exercise armed force itself, the Belarusian government is fully accepting of the possibility of using force against migrants or by the migrants, to ultimately benefit from the disorder. The general conjunction of the circumstances, both actions and deliberate abstentions or omissions of the Belarusian government, a mixture of coercive measures directed against migrants, could lead to the conclusion that the regime is willingly using the artificially created migrant border crisis as a weapon directed against Poland and Lithuania. It needs to be emphasized that the ultimate goal of the operation is to force the affected states and the EU to change its internal policies. Regular military intervention has a similar objective. If one analogies the effects of military intrusion and border crisis under the ‘effect-based’ approach (as applied in cyberwarfare), the outcome would be similar. The use of force does not necessarily need to involve the kinetic consequence; it needs to at least have a similar effect. 

In addition, the fact that the border wire is being dismantled by tools provided by Belarus and, on some occasions, the Belarusian border guards are directly destroying the wire, raises the question whether the destruction of the installation located on the Polish territory is, in fact, the direct use of force against the sovereign element of Poland: its territory and borders. If also adding to account the findings about the possible intrusions of Belarusian military on Polish soil and the deployment of blinding weaponry such as lasers and stroboscope lights directed against Polish forces, the possible classification of the border crisis as a use of force by Belarus against Poland is even more apparent.