An Introduction to the International Structure and Struggle:
The UN has always operated and strongly upheld the principle of sovereignty. The whole purpose of the UN is to ensure that its 191 member nations are able to carry out social, political, and economic discussions on a global scale, and then peacefully settle all arising and ongoing conflicts and disputes, and prevent any external threats and use of force against one another, through the Security Council[1]. The UN Charter was created with the large-scale goals of protecting human rights, maintaining international peace and security and upholding international laws.
However, the very hopes and ideals of the UN in protecting international norms through its provisions of a VETO power and value to the powerful nations means that its implementation and progress in each member nation’s conflict has been both a success and failure. When a general study of ten of the thirty-five total post-Cold War operations in civil wars[2] was conducted, it was found that 6 of these 10 were mostly successful in nature including Namibia, El Salvador, Cambodia, Mozambique, Eastern Slavonia, Croatia, and East Timor, while some conflicts like the ones in Somalia, Rwanda, Bosnia and Angola[3] had been large failures due to the inability of the UN to implement its missions in the form of a power struggle between the developed nations and developing countries.
This power struggle has recently emerged as a part of the European Union migrant crisis where groups of migrants have attempted to cross the Belarus border to enter into neighbouring nations of Poland, Latvia, and Lithuania[4]. Problems arose when the migrant groups were accused of using violent means to forcefully cross. The EU and NATO, along with the international community including the United States, held the government of Belarus responsible for this, blaming them for influencing the groups and for grossly violating principles of international law by acting contrary to its international commitments as a Member State[5].
The UN had been unsuccessful in monitoring Belarus’ performance of its commitments under various relevant international treaties and agreements to which it is a signatory and is obligated to follow. The authorities in Belarus had abetted the flow of these migrant groups across the EU border unchecked[6], and in doing so, had violated the rules governing armed conflict and the use of force, international humanitarian and refugee laws, and the principle of non-intervention.
A Brief Description of the Crisis:
In October of 2020, the EU imposed sanctions on Belarus titled Regulation (EU) 2020/1387 owing to its improper conduct of national elections and a violation of its international obligations to the EU[7]. In retaliation to this, Belarus began to actively facilitate the flow of migrants into Poland, Latvia and Lithuania. This was based on reports that also stated that while Lithuania only had about 300 asylum applications in 2020, this grew to over 3000 in 2021. This increase was uniformly seen across the three nations from June, 2021[8].
These reports were substantiated by disclosed documents which revealed that some State-owned travel agencies and companies had also helped organize the travel of these migrant groups across the border[9]. Further recorded incidents also captured Belarusian security personnel escorting these migrants and helping them physically breach Poland’s border fence[10].
The matter also took a turn for the worse when some of these migrant groups resorted to violence. Reports stated that a group of 60 migrants from Belarus attempted to break through the Polish border fencing in October. During this, two Polish soldiers were injured when the group attacked them with stones. Later in November, these migrants attempted to cut through and dismantle another part of the fence using wire-cutters[11].
Following these events, in November, 2021, several members of the United Nations Security Council belonging to the EU, along with Member States such as the US, the UK, and Norway issued a public statement condemning these actions of the Belarus government as an attempt to destabilize neighbouring EU nations and to escape their own human rights obligations[12]. However, in response to this, the President of Belarus, President Lukashenko stated that all of these reports and accusations were false and baseless[13].
The issue is that, while national leaders engage in a blame game in the UN, the situation continues to worsen for the migrants stranded at the border, with several deaths having been reported due to extreme winter conditions.
The Repercussions of this Crisis in the Context of International Humanitarian Laws:
The UN Charter provides obligations and rules that must be followed by all its Member States during times of crisis and armed conflict. It becomes essential to analyse the Belarus crisis in the context of these obligations to determine if Belarus has truly violated international commitments. Some of these include:
- Direct Use of Force: Article 2(4) of the UN Charter[14] states that Member States must not use or threaten to use force against other nations in any manner that is inconsistent with the purposes of the UN. Further, When the Belarus government intentionally sent migrants across the international border into the EU; the actions affected the territorial integrity of those nations. However, this cannot directly amount to use of force since there is no straightforward understanding of the term[15]. The situation would have to be interpreted under different scenarios based on various reports of the incidents.
If reports substantiate that the migrant groups carried out acts of violence on behalf of and under the directions of Belarus, then these acts would amount to use of physical force which would fall within the purview of Article 2(4) since the groups attacked Polish soldiers and used tools to break through the border fence. Irrespective of how small-scale these attacks were, they cannot be termed as inconsequential since they were done to cause injury and were against the integrity of Poland’s territorial borders and its security.
The issue is that the reports simply suggest that Belarus aided the migrants in crossing over with nothing to prove their role in the violence. In fact, when this is read in relation to the report of the International Court of Justice in the Nicaragua Crisis[16], a reasonable assumption in such situations is that migrant groups do not necessarily need express instructions or directions to attempt to dismantle or elude border security. They are capable of acting in such a manner independently.
- The Friendly Relations Declaration[17]: As per this Declaration, States must not organize or encourage irregular forces and armed bands to infiltrate the territory of another State. Based on reports, the Belarus government had assisted these migrant groups in crossing the border and may have also provided them with the tools used to cut through the Polish fence. Since these rules apply irrespective of the kind of weapon used in an attack[18], the migrant groups using stones and wire cutters would also be armed bands.
Even if this had no lethal effect, the very act of supporting and enabling these groups to infiltrate the EU borders illegally would violate the obligations under this Declaration.
- Principles of Non-intervention and Sovereignty: The principle of non-intervention implies that States cannot engage in acts of coercive intervention, especially in respect of matters that fall within the scope of another State’s domestic jurisdiction[19]. While the acts of the migrant group and Belarusian authorities do not specifically amount to use of force, they do violate the principle of non-intervention, especially in respect of the physical damage to the Polish border fence. Since every State has the sovereign right to decide when and how to admit asylum seekers into its territory, the illegal and uncontrolled circumvention of the migrant groups across the border, encouraged by Belarusian authorities, amounts to an intervention into the sovereign function of Polish authorities. Thus, Belarus has violated the principle by aiding and encouraging the forceful migration into EU territories.
- Laws of Armed Conflict: Some experts questioned whether there had been a violation of the laws of armed conflict since Belarus has been accused of the use of both direct and indirect force at the Polish border. This situation would not necessarily amount to an armed conflict between the EU nations and Belarus, as mentioned in Article 2 of the Geneva Conventions, 1949[20]. For an international armed conflict to arise, States would have to resort to continuing use of armed force against each other. This crisis cannot be prematurely declared as an armed conflict since no State has directly taken up arms against the other, and the obligations necessary for application of these laws have not been satisfied yet.
The Right of Self-Defence under the UN Charter:
The right of self-defence[21] can only arise when an act of use of physical force amounts to an armed attack against a State. Since the acts by Belarus do not yet amount to an armed attack against Poland, Latvia or Lithuania, their right to use force to defend their territories will not arise and would not be justified under the UN Charter.
However, the ICJ had also previously stated that the use of armed force, even when not severe in effect or of a high gravity, would amount to being in excess of a mere frontier incident[22]. In this context, the violence could possibly still amount to an armed attack at the border and could give these nations the right of self-defence to protect their territorial integrity. A major determinant in this case would be whether the acts of violence are substantial enough in effect and are causing widespread damage or injury. Since no report can clearly substantiate such an effect, it would be safe to state that the threshold has not been crossed yet.
Thus, while these isolated incidents are not of a large enough scale to individually amount to armed attacks, if the matter is not resolved soon, they could possibly cumulatively escalate at a future date to the point where the EU States would be able to resort to their right of collective self-defence under Article 5 of the North Atlantic Treaty which states that the Parties in Europe would consider an attack against one or more of them as an attack against all and would then be able to assist the attacked party by exercising the right of individual or collective self-defence as under Article 51 of the UN Charter to take necessary action to protect the security of the entire area.
Conclusion:
The UN had been set up with a global objective of ensuring peace, cooperation and security amongst all the nations and in quoting what is given in the Charter, it is said that the UN had been created “to save succeeding generations from the scourge of war”.
The UN had some major successes in this aspect, but has also had undeniable major failures which have caused irreparable loss to life and global relations, majorly because the UN has no structured framework for creating international law, enforcing treaties, or preventing wars[23]. The UN has, in practice, simply served as a puppet forum[24] for nations to discuss, and attempt to create a rather unnecessary alliance with one of the permanent members. When acts of war and conflict take place, the international community expects the UN to hold those responsible accountable. But the flawed mechanisms of the UN have failed to meet this expectation in many cases including the Belarus crisis.
There is no clear and conclusive report to prove that Belarus has breached the rules governing use of force enough to amount to armed attacks that would trigger a right of self-defence. Thus, while Poland and other nations in the EU continue to face dangers to their territorial integrity and sovereignty, they do not have a justified right to use any force against Belarus to protect themselves, except to the extent that border security personnel are already authorized.
[1] Arnold Wolfers, “Discord And Collaboration: Essays On International Politics” p 176-77 (1962)
[2] UN peacekeeping missions; see Jett, 1999, p. 6
[3] Feldman, H.J., (1991) ‘The United Nations and Conflict Resolution’, The Singapore Symposium on the Changing Role of the United Nations in Conflict Resolution and Peacekeeping, 13-15 March
[4] Auriel Sari, Ben Hudson, “Stirring Trouble at the Border: Is Belarus in Violation of International Law?”, Just Security, November edn., 2021
[5] ibid
[6] https://www.bbc.com/news/world-europe-59302919
[7] Official Journal of the European Union, “Legislation”, 2020, Publications Office of the European Union, Vol 63
[8] Id, refer to footnote no. 4
[9] Charlotte Bruneau, Joanna Plucinska and Yara Nader, “How Minsk became a destination for migrants travelling as tourists”, 2021, Reuters, https://www.reuters.com/world/europe/how-minsk-became-mecca-migrants-travelling-tourists-2021-11-15/
[10] Id, refer to footnote no. 4
[11] Id, refer to footnote no. 4
[12] Sven Jurgenson, Joint Statement in the UN Security Council on behalf of EU members of the Security Council, Norway, UK, US and Albania, Nov. 11, https://www.gov.uk/government/speeches/joint-statement-on-belarusian-authorities-instrumentalisation-of-migrants
[13] https://www.bbc.com/news/world-europe-59256927
[14] The Charter of the United Nations, 1945, https://www.un.org/en/about-us/un-charter
[15] Ian Brownlie, “International Law and the Use of Force by States”, 1963, Oxford Scholarship Online March 2012
[16] International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, “Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Nicaragua v United States of America”, June 1986, para 115
[17] General Assembly Twenty-Fifth Session, Resolutions Adopted on the Reports of the Sixth Committee, “Declarations on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (A/8082)”, 1970
[18] International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, “Legality of the Threat or Use of Nuclear Weapons – Advisory Opinion of 8 July 1996”,1996, para 39
[19] Id, refer to footnote no. 16, para 195
[20] Common Article 2 – Application of the Convention, Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, August 1949
[21] Article 51, The Charter of the United Nations, 1945, https://www.un.org/en/about-us/un-charter
[22] Id, refer footnote No. 19
[23] Bjorkdahl A, (2006), “Promoting Norms through Peacekeeping: UNPREDEP and Conflict Prevention”, International peacekeeping, vol. 13, no. 2, pp. 214-218
[24] Cox R, (1981), “Social Forces, States and World Orders: Beyond International Relations Theory”, Millennium, vol. 10, no. 2, pp. 128–129
YLCC would like to thank Dylan Sharma for his valuable inputs in this article.
