More than Justice or Serbian déjà vu

25 May was another anniversary of the establishment of the International Criminal Tribunal for the former Yugoslavia. It was declared that the purpose of this judicial body was to contribute to ending impunity and help pave the way for reconciliation. Unfortunately, in fact, the Tribunal became a reflection of the hypocrisy of international justice in the hands of Western states. Much has already been said about the selective sentencing of Serbs. Today, however, we can see that the attention of the adherents of such justice has focused on another Slavic country.

Since the intensification of hostilities between Russia and Ukraine, a number of Western politicians representing mainly the EU and NATO countries have almost immediately issued calls for holding Belarus and its leadership to account. At the same time, the leaders of the Belarusian protests of 2020 being actively lobbied on various EU platforms quickly picked up this thesis. The clichés “aggressor state”, “war criminal” or “accomplice to the crimes against humanity” have become common parlance for the opponents of the official Minsk. However, do such statements have a rational-legal basis, or are we witnessing another selective pursuit of justice?
  Looking ahead, we note that the subsequent expert assessments turned out to be more restrained regarding the practical implementation of such initiatives.

Only persons can be held criminally liable

Starting with the thesis on the responsibility of Belarus as a state it is important to emphasise that a state cannot be held responsible for committing a “war crime”, “crime against humanity” or “genocide”. These types of offenses are criminalised individually, that is, only a person who took part in the commission of such atrocities can be held criminally liable. States have an international obligation to undertake to prevent and punish these crimes. However, with regard to the context of the events in Ukraine, obviously, Belarus has no jurisdictional abilities to prevent alleged offenses. Consequently, statements like “Belarus is complicit in committing genocide” spread by certain politicians and the media are nothing more than a journalistic mistake or deliberate political insinuation.
  Even if we assume the possible involvement of Belarus, as alleged, in the commission of an act of aggression, based on the thesis of providing its territory for Russia to carry out military operations against Ukraine, the following should be taken into account.
  At the heart of the current judicial mechanisms for establishing the responsibility of states, there is the basic principle of the consent of the state itself to have the issue of its responsibility examined by a specific court. Such consent may be expressed directly to a court or on the basis of a treaty. There are no provisions in the universal treaties providing for the submission to any court of disputes related to the commission of the crime of aggression imputed to Belarus.

What was it like in 2003?

Thus, there are simply no international judicial mechanisms that potentially have the ability to conduct processes to hold Belarus accountable as a state.
  At the same time, one may ask: have there been precedents similar to the current context in Ukraine before, and what were the consequences? In 2003, a coalition of states led by the United States and Great Britain carried out a military invasion of Iraq. The majority of the world’s States, international organisations and world leaders, such as the head of the United Nations at that time, Kofi Annan, openly declared that the aggression against Baghdad was contrary to international law. However, the members of the coalition did not suffer any serious consequences. Simultaneously, such countries as Kuwait or Italy were generally deprived of any international censure for providing their territories as a springboard for aggression.

Double standards once again

In this regard, any statements about Belarus as an aggressor state and attempts to bring Minsk to international responsibility will be a clear manifestation of the policy of double standards and selective approaches in the pursuit of “international justice”.
  Now let’s try to deal with the statements on the international persecution of Belarusian high- ranking officials. Firstly, let’s pay attention to the fact that the Belarusian army does not participate in any hostilities on the territory of Ukraine. In particular, a group of experts within the framework of the OSCE Moscow Mechanism, in its report dated 13 April “On Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine since 24 February 2022”, concluded that Belarus is not a party to the armed conflict to the date of writing of this report. Hence, it is impossible to assert that certain representatives of the Belarusian leadership could even potentially participate in the alleged crimes, namely, give orders, exercise control and have the intent to commit them. The mentioned actions are integral elements of the standards for the establishment of individual criminal responsibility enshrined in international criminal law.

Belarus has not recognised ICC

Moreover, to date, the International Criminal Court is the only universal international judicial mechanism competent to try cases involving the most serious crimes of concern to the international community. However, Belarus, like, for example, the United States, China, Turkey, Russia, enjoys its inalienable sovereign right and does not recognise the jurisdiction of this Court. Theoretically, the UN Security Council has the ability to submit a particular situation to the Court, but any of its permanent members can block such a decision by using their veto.
  Therefore, it should be concluded that there are also no international criminal justice mechanisms competent to prosecute Belarusian high-ranking officials.

Judiciary as an instrument of warfare?

Some experts draw attention to the initiative of Gordon Brown, the former Prime Minister of Great Britain, which declared aim is to eliminate the legal gap in the possibility of prosecuting high-ranking Russian officials, mainly for the crime of aggression. One can ask the question why Mr. Brown did not take similar initiatives in relation to his predecessor Tony Blair, who made the decision on the invasion of British troops in Iraq in 2003, but let's leave it rhetorical. Let’s pay attention to the fact that some politicians saw the possibility of expanding this initiative in relation to the leadership of Belarus. Currently, an international group of lawyers and politicians, led by a former British Prime Minister, is working on the creation of a hybrid judicial mechanism, following the example of the ad hoc tribunals for Lebanon, Sierra Leone and Cambodia. The peculiarity of such tribunals is that they were established by resolutions of the UN Security Council, and their applicable law was the norms of the domestic criminal law of the respective states.
  Since attempts to create such a tribunal for Ukraine through the UN Security Council do not have any prospects, this working group considers the establishment of such a mechanism by adopting a relevant resolution of the UN General Assembly as the main option. However, a simple reading of the UN Charter shows that the UN General Assembly has no such powers. It is the moment when many Serbs may have an acute sense of déjà vu. The International Tribunal for the Former Yugoslavia was also created without the expressly provided corresponding powers of the UN Security Council. Is there any doubt that such experiments will lead to the destruction of the existing system of international law, and possibly the world order? But, perhaps, the well-known saying “Let justice be done, though the world perish” is the engine of the process for the authors of this initiative.

Responsible states must not be ignored

In addition, the difference between the crime of aggression and other serious crimes is that finding someone guilty of committing it would directly establish the fact that an act of aggression was committed by the state represented by the accused, which will inevitably affect the rights and obligations of this state. In this regard, according to the most authoritative experts in the field of international criminal law, in order to establish the responsibility of a high-ranking official for the commission of a crime of aggression, the consent of his state for such a trial is necessary. Otherwise, the so-called Monetary Gold Principle* established by the International Court of Justice would be violated. According to this principle, the court cannot "rule without the consent of a third party if the “very subject-matter” of the case would affect the legal interests of that third party". Summing up, it can be noted that the most difficult political and military developments in the world tend to be accompanied by slogans, the sonority of which is given by words that evoke bright negative associations in society, such as “genocide”, “war criminal”, “aggression”.
  This review of the “justice” playing out is evidence that methods, accompanied by labeling and creating the image of an “enemy of mankind”, are more often motivated by political aspirations, rather than have a real legal basis. It is not a delusion to assume that the authors of such methods want something more than justice.  •

* The International Court of Justice (ICJ) can only resolve a dispute between two states with the consent of the parties. On this basis, in its leading decision in the 1954 Monetary Gold case, the ICJ stated that it cannot decide even if the parties have consented but the case centrally involves a third state that has not consented and is not a party to the litigation. (Editor’s note after www.pollux-fid.de)