By: Henry Smith, Junior Research Associate, PILPG-NL
A group of ten Belarusians has requested that the German Federal Prosecutor’s Office investigate and prosecute the President of Belarus, Alexander Lukashenko, and other security officials for alleged human rights violations during a police crackdown on protests following presidential elections in 2020. The victims claim they were subjected to persecution, arbitrary arrests, and torture at the hands of the state police, which amount to crimes against humanity as defined in the Rome Statute of the International Criminal Court and in German law. On May 26, the German press reported that the Prosecutor would set up a preliminary observation process.
This blog will look at the victims’ claims, the reasons behind filing the case in Germany, and how Lukashenko’s immunity as president of Belarus might affect the German courts’ competence to hear the case against him.
Background of the case
In August 2020, Alexander Lukashenko claimed a landslide victory in the Belarusian presidential elections amid widespread allegations of electoral fraud. Those allegations were exacerbated by the previous arrest of two of Lukashenko’s opponents who were barred from running ahead of the polls.
The election results sparked mass protests and people demanding that Lukashenko step down. Belarusian police responded with violence and repression, arresting around 3,000 people on the first night following the election. Authorities also temporarily detained Ms. Svetlana Tikhanovskaya, a leading opposition candidate, who refused to accept the result claimed by Lukashenko, and then exiled her to Lithuania.
On December 4, the United Nations High Commissioner for Human Rights (OHCHR) delivered a report at the Intersessional meeting of the Human Rights Council detailing that 27,000 people had been arrested in peaceful public demonstrations, for charges such as violating the public order. The High Commissioner of Human Rights raised concern for the up to 2,000 complaints of torture and other cruel, inhumane, or degrading treatment that had been lodged with the OHCHR by victims and activists. Some of the methods described by the claimants include food and sleep deprivation, arbitrary beating, refusal of medical treatment, confinement in small cells, and forcing victims to kneel with their hands tied behind their backs.
The victims’ claims
In their request to the German Prosecutor, the claimants argued that the conduct of Mr. Lukashenko, other state officials, and police officers amounted to crimes against humanity, as defined in Article 7 of the Rome Statute and Section 7 of the German Code of Crimes Against International Law (CCAIL).
Although the alleged crimes were not committed in German territory, and neither the perpetrators nor the victims are German, the attorneys argued for universal jurisdiction to bring the cases to German courts. Under universal jurisdiction, the criminal courts of any state may prosecute serious international crimes, such as crimes against humanity, war crimes, genocide, and torture, as established in the Rome Statute and the Convention Against Torture (CAT) and incorporated into the CCAIL. To back their claim, the lawyers referenced the recent decision by the Higher Regional Court of Koblenz, sentencing Syrian officer Eyad Al Gharib to four and a half years in prison for torture and unlawful imprisonment of individuals in Syria, which amounted to crimes against humanity.
Lukashenko’s immunity
The sentence against the Syrian official might be an important precedent for grounding the German courts’ jurisdiction for the prosecution of Belarus security officers. However, in the case of Lukashenko, it is uncertain how the German prosecutor and the German courts will deal with his immunity as head of state.
It is a norm of customary international law that states’ high-ranking officials, namely the head of state, the head of government, and the foreign affairs minister, because of their importance in the functioning of the state, have personal immunity before domestic criminal courts of other states. That means that they cannot be criminally prosecuted in other states for any official or personal acts. The International Court of Justice (ICJ) confirmed this interpretation of the norm in the Arrest Warrant case (Congo v. Belgium).
There are some commentators, however, that argue that there is an exception to personal immunity in the case of grave international crimes. According to them, the laws prohibiting grave international crimes are peremptory norms, norms that cannot be derogated from, while the rule of personal immunity is not. Therefore, they argue that the prohibition against international crimes should prevail over immunity. However, this argument is not backed by international custom, as concluded in a report by the United Nations’ International Law Commission (ILC).
It might also be possible to argue that Lukashenko is not the legitimate head of state due to the allegations of electoral fraud, and that, therefore, he does not enjoy immunity. However, this also has little grounding in international law.
It is possible, therefore, that German courts would dismiss a criminal case against Lukashenko due to his position as president of Belarus. Nonetheless, as held by the ICJ in the Arrest Warrant case, and noted by the ILC, personal immunity is temporary and ceases when the official leaves office. Thus, when Lukashenko leaves the presidency, he might be subject to criminal prosecution before foreign courts.
Concluding remarks
In accordance with the precedent set out in the case of Syrian officer Eyad Al Gharib, it is likely that the German courts will assert universal jurisdiction over the alleged crimes committed by security officials in Belarus. However, with regards to Lukashenko, it is possible that the Federal Prosecutor will only take the case forward after he leaves the presidency, and no longer enjoys personal immunity.