Three Reasons Why the International Community Should Engage with the Situation in Belarus

[Agata Kleczkowska is an Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences in Warsaw, Poland.]

Introduction

On 9 August 2020, presidential elections were held in Belarus, governed since 1994 by Alexander Lukashenko. This time, however, Belarusians did not believe in the overwhelming victory of the authoritarian president, and, certain of the victory of the opposition leader, Svetlana Tikhanovskaya, began mass protests. The determination of protesters brought the attention of many foreign observers, including not only the media, but also States and international institutions which called the presidential elections ‘neither free not fair’ and demanded the cessation of all forms of violence towards protesters. For Lukashenko, such statements amount to nothing more but interference in the domestic affairs of Belarus. This rhetoric was fully endorsed by Russian president Vladimir Putin and the Chinese Ministry of Foreign Affairs. In short: whatever is happening in Belarus, is the domestic affairs of the State and any foreign engagement is unacceptable.

The principle of non-intervention, even though not explicitly spelled out in the UN Charter, is one of the pillars of the international legal order today and reached the status of customary norm. The ICJ defined it as involving ‘the right of every sovereign State to conduct its affairs without outside interference’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), par. 202). The validity of the principle has been backed up in numerous legal acts and documents, including The Declaration on Principles of International Law, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty and many more.

Against the claims of presidents Lukashenko and Putin, interest expressed by some States in the Belarusian’s situation does not amount to violation of the principle of non-intervention. Moreover, even if international organizations and individual States adopt sanctions against Belarus due to the events that have taken place in that State since 10 August, it would not amount to a breach of international law. I believe that the international community is allowed to engage with the situation in Belarus for three reasons – the human rights situation, the right to self-determination of Belarusians, and possible foreign intervention. Obviously, any assistance for Belarus has to be provided within the international legal framework.

Human rights violations

The first argument is over human rights violations. Many international and non-governmental organizations, including Amnesty International, the UN High Commissioner for Human Rights, and Council of Europe condemned cases of violations of fundamental rights by authorities, reported by people who are now in Belarus. On the streets, police used unnecessary force against peaceful protesters, including rubber bullets, water cannons and stun grenades; in Brest, the police also fired live ammunition. One of the protesters was run over by a police vehicle in Minsk. Some claim that the police hunted for individuals; consequently, protesters, activists and journalists were arbitrarily detained. In August it was estimated that around 7,000 people in total were arrested, but today that number is certainly higher. Detainees described torture and other examples of ill-treatment in detention centers. People were bitten, forced to lie down or kneel on dirt, often naked, to mention just a few of the less brutal examples of treatment.

We could assume that the UN capacities to react are limited by Article 2 (7), but today violations of human rights no longer belong to the ‘essential’ domestic jurisdiction of a State, but are a matter of concern for the whole international community. In the past, the UN General Assembly has dealt with human rights violations (see the series of resolutions concerning apartheid in the 1960s), and the UN Security Council recognized flagrant human rights breaches as a threat to international peace and security (see UN SC Resolution 794). Thus, the lack of UN reaction may be the consequence of either the fact that the organization is uninterested in Belarussian affairs, or feels that it is too soon to take any action (the protests in Belarus were discussed before the UN SC on 18 August, during the closed meeting on Yemen in the segment ‘any other business’, while in his statement the UN Secretary General was not very supportive of the protesters). On the other hand, there are a number of regional organizations, with the EU at the top, helping persecuted Belarusians, and ready to hold responsible those who violate human rights. The President of the European Commission, Ursula von der Leyen, said that the EU will ‘reprogram money away from the authorities and towards civil society and vulnerable groups’, as well as EU States unanimously supporting sanctions on the Belarusian authorities. Thus, violations of human rights in Belarus should meet a proportional reaction from the international community, in the form of sanctions, or help for the victims of persecution.

Right to self-determination

Secondly, according to the official results of the presidential elections, Lukashenko received 80.1% of the votes, while Tikhanovskaya gained 10.12%. However, a number of observers contested the results, claiming that the elections results were falsified. Some independent monitoring groups reported the victory of Tikhanovskaya, e.g. the Voice Platform claims that she won with an overwhelming majority of votes. Online, one can also find allegedly original reports from the polling stations, such as the one claimed to be from the Belarusian Consulate in Munich, showing an uncontested victory by Tikhanovskaya over the incumbent president. However, the biggest proof of the enormous opposition against the incumbent president is the number of protesters on the streets of Belarus – with 200,000 people in Minsk alone. The protesters want President Lukashenko to leave office and the presidential vote to be repeated.

International law grants the right to self-determination to ‘peoples’ which may refer to the whole nation or to ‘only a portion of the population of an existing state’ (Reference re Secession of Quebec, par. 123-124) who enjoy at least some of the following features: ‘(a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life’ (UNESCO Report, par. 22 (1)). Even if in the past some announced the existence of a Belarusian identity crisis (although it is not an unanimous view), the recent protests proved that the Belarusians are a community, sharing common values distinguishable from e.g. Russians. Thus, Belarusians may be named a ‘people’, and are entitled to the right to self-determination.

Even though the right to self-determination was mostly promulgated during the period of decolonization, it is broadly recognized today. One can distinguish between the internal and external aspects of self-determination; the former amounts to ‘people’s pursuit of its political, economic, social and cultural development within the framework of an existing state’ (Reference re Secession of Quebec, par. 126). The falsification of presidential election results and retention of power by a president who was not supported by the people in a democratic vote certainly violates this entitlement.

The Declaration on Principles of International Law states as follows: ‘Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.’ Obviously, this provision was created in the context of decolonization, but if the right to self-determination is applicable outside the times of colonialism, there is no reason why this provision couldn’t also be applicable. With regard to Belarus, this statement could mean that the people of Belarus, crushed by persecution ordered by president Lukashenko, are entitled to request, in pursuit of their right to self-determination, help from third States in a manner consistent with international law. The assistance provided by the rest of the States could take different forms: first and foremost, it could be diplomatic help, to pave the way for the representatives of the Belarusians in international fora (e.g. the online meeting of the UNSC with Tsikhanouskaya co-organized by Estonia, the UK and the USA). Secondly, financial help could be provided to the opposition and people persecuted by the regime (see the EU promise mentioned above) to help them to persist in fight against the regime. Thirdly, States may force the oppressive regime to make concessions by adopting sanctions, either individually or through international organizations.

Possible armed intervention

Finally, while Belarus stays under the strong influence of Russia, the hotline between Minsk and Moscow immediately rang when the mass rallies started. Even if it is not clear whether Lukashenko has sufficient forces at his disposal to suppress all protesters, and the staff of the police forces more and more take the side of the opposition, he can always rely on help from Russia. Under international law, Lukashenko has the right to request the military assistance from Putin, and thus Russian military units may enter Belarus upon request.

In the case of Belarus and Russia, this scenario was also put into writing: after recent telephone conversation between both presidents, the Kremlin issued a reminder that both States are bound by the Treaty on the Creation of a Union State, as well as being members of the Collective Security Treaty Organization. The Treaty Establishing the Union State was signed between Belarus and Russia in Moscow on 8 December 1999. One of the purposes of the Union State is to ‘pursue a coordinated foreign and defense policy’, as well as ‘[t]o ensure the security of the Union State and to combat crime’ (Article 2)’. While the Treaty is not very specific when it comes to the potential help that Russia can provide to Belarus, the instruments available through the Collective Security Treaty Organization (CSTO) are more concrete. Article 3 of the Charter of the CSTO states as follows: ‘The goals of the Organization shall be strengthening of peace, international and regional security and stability, protection of independence on a collective basis, territorial integrity and sovereignty of the Member States, in achievement of which the Member States prefer political means.’ To this end, ‘The Member States shall take joint measures to achieve the purposes of the Organization to form thereunder the efficient system of collective security providing collective protection in case of menace to safety, stability, territorial integrity and sovereignty and exercise of the right to collective defense (…)’ (Article 7). Thus, in the case of a Russian intervention in Belarus, the Treaty and the Charter could serve as another supporting argument for the validity and credibility of the presence of  Russian troops in the Belarusian territory, and their actions.

However, one should observe that the legality of such military assistance on request may be undermined on several grounds, depending on the ad hoc circumstances: Lukashenko’s request for sending troops may not be voluntary; he may no longer have the effective power to make such request etc.

Moreover, in a recent television interview, president Putin said that ‘Lukashenko has asked him to prepare a Russian law enforcement contingent to deploy to Belarus if necessary’. At the same time, he said that there is currently no need for it, and hopefully it will not happen in the future. This may mean that in case of intervention, Putin and Lukashenko will try to deny its military character, instead arguing that it is only the reinforcement of Belarusian police forces to restore public order.

Certainly, it will be easier to receive Russian forces in Belarus than to send them back, not to mention that the human rights situation would certainly deteriorate.

Concluding remarks

To conclude, aside from purely humanitarian reasons, there are legal and political grounds for foreign interest in the events occurring in Belarus. However, the engagement of EU and other regional organizations is not enough. It is high time for the UN to react appropriately, treating Belarus as one of its central, not peripheral, concerns.