Tensions between Lithuania and Belarus have escalated as Lithuania, a State Party of the Rome Statute, submits a referral to the International Criminal Court (“ICC”) Office of the Prosecutor,[1] citing Articles 13(a) and 14 of the Rome Statute,[2] to investigate Belarus for alleged crimes against its civilian population.[3] The Rome Statute of the International Criminal Court was established in 1998 during a conference of 160 States as the “first treaty-based permanent international criminal court.”[4] The Statute “sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties.”[5] Article 1 of the Rome Statute defines the ICC as a permanent institution with the power to “exercise its jurisdiction over persons for the most serious crimes of international concern.”[6]
There are three classifications of atrocity crimes: crimes against humanity, war crimes, and genocide.[7] For a referral to be made, a State Party “refers alleged atrocity crimes to the ICC Prosecutor.”[8] To qualify for referral, the atrocity crimes must occur “on the territory of the State Party that makes the referral or on the territory of another State Party; or by a national from the referring State Party or another State Party.”[9] If Lithuania’s referral of Belarus’s alleged crimes against humanity proceeds to investigation and prosecution, this referral could mark a significant turning point for the ICC. Investigating and prosecuting a Non-State Party for alleged crimes could pave the way for similar referrals, potentially expanding the ICC’s jurisdiction.
Lithuania argues that while Belarus is not a State Party, some of the crimes they have committed occur within the borders of Lithuania.[10] The alleged atrocity crimes these officials have allegedly committed involve “deportation, persecution, and other inhumane acts committed against civilians”[11] and “amounts to a widespread and systematic attack on the civilian population, pursuant to a State policy to eliminate all opposition and dissent.”[12]
Although deportation appears less severe than other acts, the ICC classifies deportation under Article 7 of the Rome Statute as forced relocation, encompassing situations where citizens must flee due to an “intentionally created climate of fear, terror, and persecution.”[13] Lithuania’s choice to refer Belarus sends a message to not only the Belarusian government but also the world:
The Government’s referral is the first time a State Party has referred a situation in a Non-State-Party under the jurisdictional basis which provides that so long as part of the unlawful conduct occurs on the territory of a State Party then the Court could have jurisdiction (established under the Myanmar/Bangladesh precedent, and in circumstances where the Prosecutor/Court was not already acting).[14]
In November 2019, the ICC judges determined they had jurisdiction over the matter of Bangladesh and Myanmar.[15] While Myanmar was not a State party, Bangladesh ratified the Rome Statute in 2010, and part of the alleged crimes took place in Bangladeshi territory.[16] Using this decision to bring forth its referral, Lithuania strengthens the Court’s jurisdiction to reach beyond atrocities committed by State parties. Lithuania claims Belarus:
[S]ince 1 May 2020, and continuing, crimes against humanity – including deportation, persecution and other inhumane acts – have been carried out against the civilian population of Belarus, at the behest of senior Belarusian political, law enforcement and military officials, and that part of the element of these crimes was committed on the territory of Lithuania, bringing such crimes temporally, territorially, and materially (by subject-matter) within the jurisdiction of the Court. It was also reasonable to believe that part of the elements of these crimes was committed, and continues to be committed, on the territory of other States Parties.[17]
These alleged crimes have resulted in a spike in Belarusian immigrants moving into Belarus’s neighboring territories of Belarus, including Lithuania.[18] Since 2021, Belarusians have become the fastest group of foreigners in Lithuania.[19] From the beginning of 2020 to now, October 2024, the Belarusian population in Lithuania has grown from about 17,800 to 61,000.[20] While the increase in Belarusians may help fill gaps in the labor market, “mainly in the construction and logistics sectors, and also set up their own businesses,”[21] it also raises concerns about national security, as Lithuania’s special services, including the State Security Department (VSD), warns of potential intelligence services infiltrating among incoming migrants.[22]
In 2022, Lithuania’s parliament declared Russia a terrorist state and stated that its actions against Ukraine constituted genocide.[23] Given these claims and other conflicts,[24] Lithuania now has reason to be concerned about Russia attempting to infiltrate and gain classified information and retaliate against Lithuania and its claims. Lithuania introduced a new questionnaire-based screening procedure for Belarusians and Russians seeking entry to address rising national security concerns.[25] This questionnaire has reportedly been a cause for concern for many since the questions are not public knowledge,[26] and anyone over eighteen who wishes to enter must fill it out.[27] Since the questionnaire’s introduction, various migrants from both countries have been denied entry, and some have been unable to renew their residency.[28] Unfortunately, for anyone required to fill out the questionnaire, there is no public record of what others have been denied entry for, similar to the questionnaire itself. After multiple years of dealing with increasing migrant numbers and heightened national security concerns, Lithuania now targets one of the core reasons for pushing Belarusians out of their home into neighboring countries, including Lithuania. By addressing the underlying causes driving Belarusians out, Lithuania will likely have a reduced number of immigrants entering, thereby reducing the concerns of potential espionage.
The Court will now assess this referral made by Lithuania and determine whether it will proceed with investigating and prosecuting various senior Belarusian officials for the alleged atrocity crimes they have allegedly committed against the Belarusian civilians.[29] This process can be lengthy due to the numerous procedural steps the Court must follow[30] before deducing on an investigation.[31] If the ICC Prosecutor does decide to initiate proceedings against Belarus, “it could lead to international arrest warrants for Lukashenka and possibly other senior Belarusian officials.”[32] The Court’s decision in this matter will take time and will be thorough, as ICC cases often involve high-profile figures from various countries.[33] An international warrant for any official implicated in this matter will impact the global perceptions of Lukashenka and his associates, likening them to other dictators and significantly limiting their chances for international relations opportunities.[34] Not only would Belarus’s regime’s diplomatic relations be affected, but also those of other countries. Various countries currently face comparable challenges, including conflicts between Ukraine and Russia, Palestine and Israel, and other conflicts that receive less media attention. Each conflict has a similar jurisdiction question as Lithuania and Belarus. If the Court asserts jurisdiction in this case, other Party States may use this precedent to render similar situations involving Non-Party States. Therefore, if one case progresses to investigation, it could potentially set a precedent for the other referrals, giving them a higher likelihood of also moving to investigation. Applying the Myanmar and Bangladesh decision, as well as any future relevant court decisions, the Court can expand its ability to prosecute a broader range of atrocity crimes and positively impact more civilian lives.
Lithuania’s government’s decision to bring forth this referral of Belarus to the ICC could result in an expansion of cases the Court’s jurisdiction will allow. If the Court decides to move forward with the investigation, the Court will establish a precedent for hearing cases involving Non-State Parties’ actions affecting State Parties. With all of the ongoing and arising conflicts, the expansion of jurisdiction will allow other State Parties to bring forth issues similar to the current Lithuania and Belarus conflict and potentially prosecute many more regimes committing various atrocity crimes.
[1] Lithuania refers the Situation in Belarus to the Prosecutor of the International Criminal Court to investigate the crimes against humanity committed by the authoritarian regime of Lukashenko, The Ministry of Justice of the Republic of Lithuania (2024) https://tm.lrv.lt/en/news/lithuania-refers-the-situation-in-belarus-to-the-prosecutor-of-the-international-criminal-court-to-investigate-the-crimes-against-humanity-committed-by-the-authoritarian-regime-of-lukashenko/?__cf_chl_tk=gH..OpDI_XCoViP3MLwNunJuxfuDRVk6cj239I18etU-1728266263-0.0.1.1-4714 [hereinafter Ministry of Lithuania].
[2] Rome Statute of the International Criminal Court, art. 13(a), 14, opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute].
[3] Ministry of Lithuania, supra note 1.
[4] Understanding the International Criminal Court, ICC (2013), https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.
[5] Id.
[6] Rome Statute, supra note 2, art. 1.
[7] How the ICC Works, ABA-ICC Project https://how-the-icc-works.aba-icc.org/#:~:text=A%20State%20Party%20referral%20is,of%20another%20State%20Party%3B%20or (The International Criminal Court (ICC) is the world’s only permanent international court with a mandate to investigate and prosecute genocide, crimes against humanity, and war crimes. These three sets of crimes — collectively called “atrocity crimes”— have many overlapping characteristics) (Last visited Nov. 11, 2024) [hereinafter ABA-ICC].
[8] Id.
[9] Id.
[10] Ministry of Lithuania, supra note 1.
[11] Id.
[12] Id.
[13] Referral of Lukashenka regime’s crimes to International Criminal Court. FAQ, Sviatlana Tsikhanouskaya (Oct. 1, 2024), https://tsikhanouskaya.org/en/news/referral-of-lukashenka-regimes-crimes-to-international-criminal-court-faq.html [hereinafter Lukashenka].
[14] ABA-ICC, supra note 7.
[15] ICC – Situation of Bangladesh/Myanmar, IMM UN, https://iimm.un.org/icc-situation-of-bangladesh-myanmar/ (Last visited Nov. 11, 2024)[hereinafter Bangladesh/Myanmar]; See also Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Bangladesh/Myanmar), PRE-TRIAL CHAMBER III, No. ICC-01/19 (Nov. 14, 2019), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_06955.PDF.
[16] Id.
[17] Ministry of Lithuania, supra note 1.
[18] Joanna Hyndle-Hussein, Increasingly distant neighbours: Lithuania towards Belarusians, OSW Commentary (Jan. 10, 2024), https://www.osw.waw.pl/en/publikacje/osw-commentary/2024-01-10/increasingly-distant-neighbours-lithuania-towards-belarusians.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Rachel Treisman, Lithuania designates Russia as a terrorist country, a global first, NPR (May 10, 2022, 12:50 pm), https://www.npr.org/2022/05/10/1097911440/lithuania-russia-terrorism-genocide-ukraine.
[24] See id. (Lithuania continues to call out Russia on its actions, resulting in a tense relationship and possibly resulting in Russia completely cutting economic ties).
[25] Hyndle-Hussein, supra note 18.
[26] Jurga Bakaitė, Security threat or arbitrary rejection? Belarusian exiles battle with Lithuania’s migration policies, New Eastern Europe (June 16, 2023), https://neweasterneurope.eu/2023/06/16/security-threat-or-arbitrary-rejection-belarusian-exiles-battle-with-lithuanias-migration-policies/.
[27] Special questionnaire for foreigners wishing to settle in Lithuania, The Ministry of Justice of the Republic of Lithuania (June 21, 2023), https://migracija.lrv.lt/en/news/special-questionnaire-for-foreigners-wishing-to-settle-in-lithuania/.
[28] Hyndle-Hussein, supra note 18.
[29] Republic of Lithuania/Republic of Belarus, Preliminary Examination, No. ICC-01/24 (2024), https://www.icc-cpi.int/lithuania-belarus.
[30] See ABA-ICC, supra note 7.
[31] Id.
[32] Lukashenka, Supra note 13.
[33] See Claire Klobucista & Mariel Ferragamo, The Role of the ICC, CFR (May 22, 2024 12:40 pm), https://www.cfr.org/backgrounder/role-icc.
[34] Lukashenka, supra note 13.
