Due to the fact that the republic of Belarus has signed few, if any, international criminal law treaties, it appears very difficult to initiate a criminal case against its repressive government and its illegitimate President in particular, let alone bring them to justice. It’s also obvious that, with the current government remaining in power in the country, there is a little chance of capturing the perpetrators and bringing them to a trial before a court. 

A court hearing in the ICC

International Criminal Court (ICC), situated in the Hague, is widely viewed as a “court of last resort”, a place where major figures such as heads of state can be prosecuted and justice can be served, when all other institutions of the world cannot be engaged. ICC’s jurisdiction is, however,  limited to four categories of crimes, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The crimes against the people of Belarus committed by the republic’s government and its head in the course of repressions that took place after the elections of August the 9th, 2020, and are still taking place, can be arguably characterised as crimes against humanity, which makes them potentially prosecutable by the ICC. 

However, Belarus hasn’t ratified the Rome Statute of the International Criminal Court, which is its legal basis and contains definitions of acts and context, together constituting a crime against humanity and other categories of crimes. Аnd that makes the prospects of initiating a case in the ICC against Aleksander Lukasenka, the country’s illegitimate President, problematic. The Court requires that, before a country could request an investigation of alleged crimes committed on its territory, it must have ratified the Statute. 

In absence of that, under article 15 ter of the Rome Statute, the filing process can be initiated by the UN Security Council’s referral directly to the ICC, in accordance with Chapter 7 of the UN Charter. This requires adoption of an appropriate Security Council resolution, the chances of which in the Belarus case are usually considered equal to zero, in light of the fact that Russia and China traditionally veto adoption of such documents.

Another option that could enable initiation of a case by the ICC is for the country to lodge a declaration under article 12(3) of the Rome Statute accepting the ICC’s jurisdiction over alleged crimes committed on its territory. In the case of the Belarus, however, the possibility that the current government could lodge such a request seems very remote, to say the least. Such situation also excludes the possibility of preparing a dossier of materials on crimes against humanity for consideration by the ICC Prosecutor, who, if there is jurisdiction, could (theoretically) initiate an investigation in accordance with article 15, paragraph 3 of the Statute proprio motu, that is, on her own initiative.

Taking all the above into account, one might inevitably conclude that the obstacles standing in the way of initiating such a case in the ICC are insurmountable. It is no wonder then, that so far no expert in the international criminal law has voiced an opinion that a practical solution can be found for the issue of bringing Aleksander Lukashenka and his co-perpetrators to international criminal justice by the ICC.

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