Full text of the interview for Deutsche Welle with the lawyer from the National Anti-Crisis Management (NAM)
Article published on Deutsche Welle on February 14, 2025
Is there a chance for a trial against Lukashenko at The Hague?
At this point, it is more realistic to assume that certain international criminal procedural actions will be taken against the highest military-political leadership of Belarus, rather than a full trial.
To answer this question more thoroughly, it would be helpful to first explain how the process works in the International Criminal Court (ICC), which differs significantly from national criminal justice systems. The entire process in the ICC can be divided into six stages, only two of which can be fully or partially carried out in the absence of the accused — the preliminary examination and the investigation. However, except for the arrest warrant procedure, both stages are not judicial processes regarding a specific individual.
Given the lack of tools to physically arrest Belarusian authorities, the issuance of an arrest warrant currently seems to be the final procedure.
How realistic is the issuance of an arrest warrant against Belarusian officials and for what crimes?
Today, the Office of the Prosecutor is working in two directions, investigating crimes potentially committed by the highest military-political leadership of Belarus. These are the investigation of the "Ukrainian situatio" and the preliminary examination of the "Belarusian situation".
In the first case, the facts related to the illegal relocation of civilians (children) from Russian-occupied Ukrainian territories to Belarus are being considered. In the second, the circumstances surrounding crimes against humanity committed against part of the Belarusian civilian population are under review. Each of these two tracks theoretically could lead to arrest warrants.
The procedure for issuing an arrest warrant takes place only during the investigation stage. For this to happen, the Office of the Prosecutor must conclude that certain criteria are met, proving there is sufficient reason to believe that the individual in question committed crimes within the context of the ongoing investigation. The Office of the Prosecutor then submits a request to the Pre-Trial Chamber asking for an arrest warrant to be issued.
It is important to highlight a common misconception: The Office of the Prosecutor does not issue arrest warrants for the ICC. Only the Pre-Trial Chamber, the judges of the ICC, can do so.
From the outside, it may seem that an arrest warrant for the "Ukrainian situation" is more realistic since the "Belarusian situation" is still only at the preliminary examination stage. However, certain factors influencing the Office of the Prosecutor’s work suggest that the result may be faster in the latter case.
What factors influence this?
A key factor affecting the Office of the Prosecutor’s ability to prove that a crime was committed by a specific individual, and for the Pre-Trial Chamber to confirm that conclusion, is the availability of information and evidence, including those directly obtained from victims.
In this regard, the mechanisms for transferring such information by states, non-governmental organizations, victims, and witnesses, outlined in the Rome Statute, are especially important. Practice shows these mechanisms are most effective when the Office of the Prosecutor is already conducting a preliminary examination or investigation.
One such mechanism is the ability to submit communications under Article 15 of the Rome Statute. Taking advantage of the ongoing investigation of the "Ukrainian situation" the National Anti-Crisis Management (NAM) transferred collected information about the illegal relocation of Ukrainian minors from Russian-occupied territories to Belarus in June and November of 2023. It is important to note that NAM directly delivered this information to representatives of the Office of the Prosecutor. Communication is conducted directly.
At this stage, it would be inappropriate to speculate on whether the materials submitted are sufficient for the Office of the Prosecutor to conclude that an arrest warrant could be requested. The uniqueness of the situation is that the transmitted information primarily concerned orphans located in occupied territories or Russia, and there is no possibility to receive direct testimony from them about the circumstances of their relocation and stay in Belarus.
On the other hand, there is a vast amount of information about alleged crimes against humanity of an extraterritorial nature committed against part of the Belarusian civilian population. The majority of collected evidence comes directly from victims of these crimes.
Until recently, transferring this information to the Office of the Prosecutor of the ICC seemed fruitless since no preliminary examination of the "Belarusian situation" had even been initiated. Simply put, there was no criminal process in place where such information could be applied — this possibility only emerged after the Lithuanian government referred the "Belarusian situation" to the ICC.
How can a preliminary examination or investigation be initiated by the Office of the Prosecutor?
There are three ways to start a preliminary examination:
If a state party to the Rome Statute refers a situation to the Office of the Prosecutor.
If the situation is referred to the Office of the Prosecutor by the UN Security Council.
The Office of the Prosecutor can initiate an investigation on its own.
The key difference between the first two methods and the third is that, in addition to the Office of the Prosecutor independently collecting all the information, it also needs the approval of the Pre-Trial Chamber to move forward with the investigation. In the case of the "Belarusian situation", the third method is not only procedurally the most complex but also politically unrealistic, since it would require the Office of the Prosecutor to deal with crimes largely committed outside of the state's party to the Rome Statute.
In such circumstances, NAM and partner organizations made every effort to convince one of the states party to the Rome Statute to refer the "Belarusian situation" to the Office of the Prosecutor under Article 14 of the Rome Statute. The Ministry of Justice of Lithuania responded to this request. On September 30, 2024, the Lithuanian government referred the "Belarusian situation" to the Office of the Prosecutor, thereby removing a number of barriers that had previously made any criminal process in the ICC regarding crimes committed specifically against Belarusian civilians impossible.
What comes next?
The Office of the Prosecutor has now started the preliminary examination of the "Belarusian situation". If a positive decision is made, the Office of the Prosecutor can initiate an investigation into the "Belarusian situation", during which separate cases will be formed against specific alleged criminals.
If a decision is made to proceed with the investigation of the "Belarusian situation", the available information suggests that the issuance of an arrest warrant against the highest military-political leadership of Belarus is only a matter of time.
How soon can the Office of the Prosecutor make a decision on starting the investigation?
There are no strict deadlines, but practice shows that such a decision could be made by summer of this year.
What specific crimes are being investigated in the “Belarusian situation”?
This does not concern all acts of violence that have taken place since 2020. It is important to prove not just the fact of violence but that the context of this violence fits the criteria for crimes against humanity and that these crimes fall under the territorial jurisdiction of the ICC.
Today, it seems possible to speak only about two types of crimes: deportation and persecution for political reasons as crimes against humanity, which were partially committed on the territory of states parties to the Rome Statute.
The number of victims of deportation is currently estimated to be at least 300,000. The victims of the second crime are those who have faced threats of violence, criminal prosecution in absentia, and similar acts abroad while on the territory of states parties to the Rome Statute.
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