Closed doors for investigation of post-electoral violence in Belarus at the International Criminal Court?

Photo by Максим Шикунец via Wikimedia Commons

On 9 August 2020, Belarus held presidential elections that resulted in a sweeping victory of Alexander Lukashenko who received 80 per cent of the votes. Shortly after the announcement of the results, protesters started appearing in the streets of Minsk and other cities. It did not take long before police started employing violence against the protesters to maintain Lukashenko’s grip on power with tear gas, stun grenades, rubber bullets and batons. Internet access and mobile phone service were cut off and police had detained thousands of demonstrators. Live ammunition was used as well.[1]

Since 1994, Lukashenko has won five elections and, so far, has stayed in power for 26 years. Only the first elections were deemed free and fair by international observers.[2] Lukashenko’s main election rival, Svetlana Tikhanovskaya emerged after several other political figures of the opposition were jailed, including her husband Sergei who had been detained in late May 2020 after campaigning against Lukashenko.[3] Sergei Tikhanovsky was blocked from running in the elections and was charged with causing public disorder and accused of being a foreign agent when the state security allegedly uncovered a large amount of money during a search of his property.[4]

Before the elections themselves, Tikhanovskaya’s support was demonstrated by massive public rallies with the largest anti-government demonstrations in decades.[5] Tikhanovskaya left the country for Lithuania after a video had been released in which she is believed to be recorded under duress.[6] Afterwards, Tikhanovskaya asked Belarusian authorities to stop the violence and called for rallies across the country to be peaceful.[7] On 14 August, Tikhanovskaya released a video in which she claimed her victory in the presidential elections and called for the creation of a transitional council tasked with handling the transfer of power from Lukashenko.[8]

Meanwhile, rallies all over the country continue and reports emerge claiming that State forces tortured the detained protesters.[9] International response ranged from countries that recognized Lukashenko and congratulated him, namely Russia, Kyrgyzstan, Armenia and Moldova, to countries that condemned the post-electoral violence and countries that did not recognize Lukashenko as a new leader.[10] The EU has agreed on the adoption of targeted sanctions against the Belarusian individuals responsible for the falsification of the election results and the violence[11], but comments appeared claiming that sanctions might not be sufficient and that the involvement of the International Criminal Court (hereinafter ‘ICC’) might be necessary.[12]

Establishing jurisdiction of the ICC

Belarus is a non-State Party to the Rome Statute of the ICC. Setting aside the nationalities of international journalists facing intimidation and attacks[13], the victims of the alleged crimes are citizens of Belarus. Neither territorial nor personal jurisdiction of the ICC can be established. The Rome Statute of the ICC provides that the ICC may exercise jurisdiction when a State Party refers the situation to the Prosecutor, when the situation is referred to the Prosecutor by the UN Security Council or when the Prosecutor has initiated an investigation.[14] Furthermore, a non-State Party to the Statute, such as Belarus, may lodge a declaration accepting the exercise of jurisdiction by the ICC with respect to the crime in question.[15] The ICC’s jurisdiction may only be exercised following these jurisdictional triggers.

Since Belarus is not a State Party and neither the victims nor perpetrators of the alleged crimes are citizens of a State Party to the Statute, in accordance with Art. 12(2) one could exclude from the very beginning the referral by the State Party and the initiation of the proprio motu investigation by the Prosecutor. Rule 48 of the Rules of Procedure and Evidence requires the Prosecutor when determining whether there is a reasonable basis to proceed with an investigation under Art. 15(3), to consider, amongst other factors, the jurisdiction of the ICC. Additionally, since Belarus is a non-State Party, another State Party can only refer a situation over which the ICC already has jurisdiction.[16]  

Referral by the UN Security Council

The UN Security Council (hereinafter ‘UNSC’) may trigger the jurisdiction of the ICC in cases where crimes are committed on the territory of a non-State Party, such as Belarus. The UNSC’s referrals require determination of the existence of a threat to the peace, breach of the peace or an act of aggression. The ICC has indeed been focusing on post-electoral violence and crimes committed during public protests before.[17] However, the jurisdiction in those situations was not triggered by the UNSC. Therefore, considering the previous practice of the UNSC in determining the scenarios at hand, one should be sceptical about the determination of the situation in Belarus as a threat to the peace. It rather appears that the UNSC “would not support the submission that the lack of democracy within a country would in and of itself pose such a threat.“[18] If the mass protests result in extensive violence or possibly an internal armed conflict with consequences for that State’s neighbours, the situation might create a threat to the peace.

The present 10 non-permanent members of the UNSC include Belgium, Dominican Republic, Estonia, Germany, Indonesia, Niger, Saint Vincent and the Grenadines, South Africa, Tunisia and Vietnam.[19] Adoption of a Chapter VII Resolution referring the situation to the ICC requires 9 out of 15 votes without the exercise of veto by any UNSC’s permanent member.[20] It is expected that countries such as Estonia and Germany have an interest in bringing the matter before the UNSC. Estonia and the US have already requested a discussion on this matter with China declaring that the situation in Belarus is not a matter for the UNSC and that the situation in Belarus does not pose any threat to regional or international peace and security.[21]

While the outcome of the UNSC’s further discussion on this matter falls into the realm of speculations, it seems safe to conclude that the risk of Russian veto being cast is real, especially when Russia recognizes Lukashenko as the Head of State and the Russian support in opposing the protests against Lukashenko was expressed in the communication between authorities of Belarus and Russia.[22]

Acceptance of the ICCs jurisdiction

One may imagine the exiled President or a transitional body to lodge a declaration accepting the ICC’s jurisdiction. Nonetheless, even if the ICC does receive the acceptance of the jurisdiction on behalf of Belarus, it does not automatically mean that the Prosecutor will open an investigation.[23] Alleged crimes committed in conjunction with elections were the subject matter of the declaration lodged by Côte d’Ivoire in its 2003 declaration.[24] On that occasion, the Pre-Trial Chamber noted that the declaration lodged under Art. 12(3) of the Rome Statute was signed by the Minister of Foreign Affairs who “had the authority to sign a valid declaration on behalf of Côte d’Ivoire.”[25] Thus, one needs to examine the legitimacy of a State representative lodging such a declaration.

It does not need to be emphasized that Lukashenko would not lodge a declaration accepting the jurisdiction of the ICC over crimes related to the suppression of the protesters. Hence, the only representative that would hypothetically be willing to lodge such a declaration remain Tikhanovskaya or some transitional council. The Office of the Prosecutor has dealt with the determination of the right authority to lodge a declaration on behalf of a non-State Party before. In 2013, the Egyptian Freedom and Justice Party submitted a declaration on behalf of Egypt’s overthrown President accepting the ICC’s jurisdiction pursuant to Art. 12(3) with respect to alleged crimes committed on the territory of Egypt. The Office of the Prosecutor concluded that the applicant lacked the locus standi to submit such a declaration on behalf of Egypt as the applicants were not in possession of full powers.[26]

Firstly, the Office of the Prosecutor referred to the UN Protocol List to determine that Dr Morsi was not the head of Egypt.[27] Secondly, the Office of the Prosecutor applied the effective control test, concluding that the head of the Freedom and Justice Party, Dr Morsi, no longer had the legal capacity to incur new international obligations on behalf of Egypt.[28] The Office of the Prosecutor explained that effective control refers to “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence.”[29] Furthermore, the Office of the Prosecutor also stressed that it prioritizes effective control in this determination, noting that having another competing authority retaining international treaty-making capacity would be inconsistent with the effective control test.[30]

One may, however, question whether Lukashenko has habitual obedience of the bulk of the population and a reasonable expectancy of permanence given the evolving situation. One should be sceptical about the Office of the Prosecutor accepting such a declaration lodged hypothetically by Tikhanovskaya or a transitional council. Yet, effective control is not the only criterion establishing the legitimacy of the government in international law. It appears that the Office of the Prosecutor does not apply further criteria establishing legitimacy such as popular support, ability and will to fulfil international obligations, non-dependence on foreign support in the exercise of control or respect for human rights.[31]

The situation appears to be different when the new government (with effective control) takes power after the previous one. Unlike the declaration submitted by Dr Morsi, both declarations submitted by Ukraine were not questioned regarding the full powers of the applicant, implying some double standard on the side of the Prosecutor.[32] On 25 February 2014, the Verkhovna Rada of Ukraine (Ukrainian Parliament) passed a resolution declaring acceptance of the ICC’s jurisdiction over the crimes against humanity committed by senior Ukrainian officials against Ukrainian nationals during demonstrations between 21 November 2013 and 22 February 2014.[33] On 9 April 2014, the then acting President of Ukraine, Turchynov, lodged a declaration accepting the ICC’s jurisdiction over senior officials in the office when alleged crimes against humanity were committed, including the ex-President of Ukraine, Yanukovych who fled Ukraine to Russia. Thus, the first declaration was lodged by the then acting President. In view of their functions, Heads of State, Heads of Government and Ministers for Foreign Affairs are automatically considered representatives of the State.[34] However, the second declaration of Ukraine was signed by the Chairperson of the Ukrainian Parliament and the full powers were not questioned by the Office of the Prosecutor.[35]

It appears that if the mass protests in Belarus result in Lukashenko’s stepping down from the Presidential office, the transitional government and the new Head of State might be able to successfully lodge a declaration accepting the ICC’s jurisdiction. It has been suggested that more States should recognize Tikhanovskaya as a legitimate head of Belarus.[36] While this may indeed contribute to the regime’s change in the long term, it seems unlikely to change the approach of the Office of the Prosecutor when it prioritizes the effective control test in the verification of the legitimacy of a Head of State for the purposes of lodging a declaration accepting the ICC’s jurisdiction.

However, verification of the election results by an independent entity or a domestic court can alter the course of consideration of the Office of the Prosecutor. After presidential elections in Côte d’Ivoire resulting in a nationwide armed conflict, Quattara sent a letter to the ICC on 14 December 2010  accepting the ICC’s jurisdiction.[37] On 3 May 2011, Quattara sent another letter reiterating Côte d’Ivoire’s acceptance of the ICC’s jurisdiction, this time after the Constitutional Council had announced his election.[38] The Prosecutor then requested the Pre-Trial Chamber III to authorize an investigation into the situation in Côte d’Ivoire on 23 June 2011.[39] The not-so-uniform practice of the Office of the Prosecutor in dealing with declarations accepting the ICC’s jurisdiction thus remains troublesome, especially when left without any judicial oversight.[40]

Final remarks

So far, three deaths and thousands detained have been reported in relation to the security forces’ violent repression of mass protests in Belarus.[41] The evidence on torture of detained protesters and political opposition is yet to be fully documented. Belarus’ desire to transit towards a democratic state will unlikely involve the ICC. Political comments calling for the ICC to get involved in the situation in Belarus, therefore, remain in the realm of premature political jargon without any valid grounds. Neither will these cases reach the European Court of Human Rights as Belarus is not a State Party to the European Convention on Human Rights. The situation in Belarus once again shows that universal jurisdiction remains a highly omitted option, yet with great potential, especially in European jurisdictions.


Rastislav Šutek is a Co-founder of the Platform for Peace and Humanity.


[1] Victor, Daniel, “What’s Happening in Belarus?” (The New York Times, 13 August 2020) accessed at https://www.nytimes.com/2020/08/13/world/europe/belarus-protests-guide.html

[2] Wesolowsky, Tony, “Five Factors That Ensure Lukashenka Wins Every Election in Belarus” (Radio Free Europe/Radio Liberty, 6 August 2020) accessed at https://www.rferl.org/a/five-factors-that-ensure-lukashenka-wins-every-election-in-belarus/30769963.html

[3] Dettmer, Jamie, “‘Slipper Revolution’ Shakes Belarus” (VOA News, 22 June 2020) accessed at https://www.voanews.com/europe/slipper-revolution-shakes-belarus

[4] Ibid.

[5] Magnay, Diana, “Belarus: The three women on a ‘mission’ to take on Europe’s last dictator” (Sky News, 9 August 2020) accessed at https://news.sky.com/story/belarus-this-is-not-the-election-that-strongman-president-alexander-lukashenko-had-planned-12044698

[6] “Belarus election: ‘Not one life is worth what is happening now'” (BBC News, 11 August 2020) accessed at https://www.bbc.com/news/av/world-europe-53737449/belarus-election-not-one-life-is-worth-what-is-happening-now

[7] “Belarus election: Exiled leader calls weekend of ‘peaceful rallies'” (BBC News, 14 August 2020) accessed at https://www.bbc.com/news/world-europe-53780685

[8] Ibid.

[9] See e.g. “Belarus: Mounting evidence of a campaign of widespread torture of peaceful protesters” (Amnesty International, 13 August 2020) accessed at https://www.amnesty.org/en/latest/news/2020/08/belarus-mounting-evidence-of-a-campaign-of-widespread-torture-of-peaceful-protesters/

[10] See e.g. Haynes, Deborah, “Embattled Belarus president is no longer a legitimate leader, says Lithuanian counterpart” (Sky News, 13 August 2020) accessed at https://news.sky.com/story/embattled-belarus-president-is-no-longer-a-legitimate-leader-says-lithuanian-counterpart-12048705

[11] “Belarus election: Exiled leader calls weekend of ‘peaceful rallies'” (BBC News, 14 August 2020) accessed at https://www.bbc.com/news/world-europe-53780685

[12] See Twitter of Radosław Sikorski at https://twitter.com/sikorskiradek/status/1293641116609318913

[13] “Belarus: Attacks on journalists mount amid protes crackdown” (Amnesty International, 12 August 2020) accessed at https://www.amnesty.org/en/latest/news/2020/08/belarus-journalists-under-attack/

[14] Rome Statute of the International Criminal Court, 2187 UNTS 90, entered into force 1 July 2002, Art. 13.

[15] Ibid., Art. 12(3).

[16] Schabas, William A., ‘The International Criminal Court: A Commentary on the Rome Statute’, 2nd ed. (Oxford University Press, 2016) p. 375.

[17] See e.g. ICC, Situation in the Republic of Kenya, accessed at https://www.icc-cpi.int/kenya; ICC, Situation in Guinea, accessed at https://www.icc-cpi.int/guinea

[18] de Wet, Erika, ‘The Chapter VII Powers of the United Nations Security Council’, (Hart Publishing, 2004) p. 161.

[19] Composition of the UNSC, accessed at https://www.un.org/securitycouncil/content/current-members

[20] Schabas, William A.,  ‘An Introduction to the International Criminal Court’, 5th ed. (Cambridge University Press, 2017) p. 149.

[21] “UN Security Council discusses disputed Belarus vote, protests” (France 24, 18 August 2020) accessed at https://www.france24.com/en/20200818-un-security-council-discusses-disputed-belarus-vote-protests

[22] “Belarus: Lukashenko claims Russia is ready to help ‘ensure security'” (DW, 15 August 2020) accessed at https://www.dw.com/en/belarus-lukashenko-claims-russia-is-ready-to-help-ensure-security/a-54580276

[23] ICC, Office of the Prosecutor, Policy Paper on Preliminary Examinations, November 2013, para. 76, accessed at https://www.icc-cpi.int/iccdocs/otp/otp-policy_paper_preliminary_examinations_2013-eng.pdf

[24] See ICC, Pre-Trial Chamber III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, ICC-02/11-14-Corr, 15 November 2011; ICC, Pre-Trial Chamber III, Decision on the ‘Prosecution’s provision of further information regarding potentially relevant crimes committed between 2002 and 2010’, ICC-02/11-36, 22 February 2012.

[25] ICC, Pre-Trial Chamber III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, ICC-02/11-14-Corr, 15 November 2011, para. 14.

[26] See ICC, Office of the Prosecutor, Prosecutor’s Decision on the ‘Declaration under Article 12(3) and Complaint regarding International Crimes Committed in Egypt’, OTP-CR-460/13, 23 April 2014.

[27] ICC, Office of the Prosecutor, The Determination of the Office of the Prosecutor on the Communication Received in Relation to Egypt, ICC-OTP-20140508-PR1003, 8 May 2014, para. 3, accessed at http://www.legal-tools.org/doc/2945cd/

[28] Ibid., para. 4.

[29] See ICC, Office of the Prosecutor, Prosecutor’s Decision on the ‘Declaration under Article 12(3) and Complaint regarding International Crimes Committed in Egypt’, OTP-CR-460/13, 23 April 2014.

[30] Ibid., para. 4.

[31] See e.g. Peterson, M. J., ‘Recognition of Governments, Legal Doctrine and State Practice, 1815– 1995’, (Macmillan Press. 199) p. 33.

[32] See Marchuk, Iryna, ‘Ukraine and the International Criminal Court: Implications of the Ad Hoc Jurisdiction Acceptance and Beyond’ (2016) 49(4) Vanderbilt Journal of Transnational Law.

[33] See ICC, Declaration of the Verkhovna Rada of Ukraine to the International Criminal Court on the recognition of the jurisdiction of the International Criminal Court by Ukraine over crimes against humanity, committed by senior officials of the state, 25 February 2014, accessed at http://www.legal-tools.org/doc/1a65fa/

[34] See Vienna Convention on the Law of Treaties, 1155 UNTC 331, entered into force 27 January 1980, Article 7(2)(a).

[35] Marchuk, Iryna, ‘Ukraine and the International Criminal Court: Implications of the Ad Hoc Jurisdiction Acceptance and Beyond’ (2016) 49(4) Vanderbilt Journal of Transnational Law, p. 362.

[36] Aksamitowska, Karolina, “To help Belarus, recognize Tsikhanouskaya as the legitimate president-elect” (Euromaidan Press, 15 August 2020) accessed at http://euromaidanpress.com/2020/08/15/to-help-belarus-recognize-tsikhanouskaya-as-its-legitimate-president-elect/

[37] ICC, Appeals Chamber, The Prosecutor v. Laurent Koudou Gbagbo, Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321, 12 December 2012, para. 55, accessed at http://www.legal-tools.org/doc/649ff5/

[38] Ibid., para. 56.

[39] ICC, Pre-Trial Chamber III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, ICC-02/11-14-Corr, 15 November 2011, para. 2.

[40] See Ling, Yan, ‘Non-States Parties and the Preliminary Examination of Article 12(3) Declarations’ in Bergsmo, Morten and Stahn, Carsten (eds.), ‘Quality Control in Preliminary Examination: Volume 2’, (Torkel Opsahl Academic EPublisher, 2018) p. 466-468.

[41] “Belarus: Third fatality among protesters confirmed” (112.International, 14 August 2020) accessed at https://112.international/politics/belarus-third-fatality-among-protesters-confirmed-53878.html

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s