Expert in the field of international law, candidate of legal sciences, Kateryna Dzeikala, answers the question of who and under what circumstances can issue a warrant for Lukashenka's arrest, explains why it is hardly possible to create an international tribunal for the regime's crimes against Belarusians, and considers whether Lukashenka will be put on trial for co-aggression against Ukraine.

Briefly:

• As for alleged war crimes on the territory of Ukraine, it is very difficult to bring Lukashenka to justice in this matter.

• It will be possible to prove Lukashenka's personal guilt for participating in Russia's aggression against Ukraine.

• For the first time, the UN group in the case of Belarus publicly stated that the regime in Belarus had committed crimes against humanity.

• As for the crimes committed by Lukashenka's regime on the territory of Belarus, a separate international tribunal is unlikely to be created here.

— After the International Criminal Court (ICC) issued a warrant for the arrest of Russian President Vladimir Putin, many Belarusians have a question: does this structure have no reason to issue the same warrant for Alexander Lukashenko?

Why, despite all the talk going on since 2020, has this not happened yet?

- If we are talking about Lukashenka, it is important to understand what specific alleged crimes we can talk about here.

Either it is connected with repressions against Belarusians, or with the war in Ukraine.

If we talk about repressions inside Belarus itself, the ICC has no jurisdiction in this case, because the Belarusian authorities have not ratified the statute of this court.

Such jurisdiction of the ICC can be obtained if the new authorities of Belarus in a special statement recognize it in relation to specific crimes within a specific period.

Ukraine also did not ratify the Statute, but Kyiv recognized the jurisdiction of the Court in relation to specific crimes committed on Maidan and Donbass since 2015.

- So Russia also did not recognize the jurisdiction of this court.

Why was it possible to issue a warrant for Putin's arrest?

- Russia did not recognize it.

However, the jurisdiction of the ICC can be exercised not only by the nationality of the alleged criminal, but also by the place of the crime.

Therefore, in order to issue a warrant for Putin's arrest, it was enough for the jurisdiction of this court to be recognized by Ukraine, on whose territory the crimes of which Putin is accused were committed.

- So then it turns out that no one can file a complaint in this court regarding alleged crimes on the territory of Belarus, because another state does not have the right to file a complaint, and the current authorities of Belarus, of course, do not want to recognize the jurisdiction of this court?

- Naturally, another state cannot claim jurisdiction over the territory of another state.

And the current authorities, of course, are not going to do it.

This can be done by the new authorities in Belarus.

As for the alleged war crimes committed by Putin on the territory of Ukraine, it is very difficult to bring Lukashenka to justice here.

There are general principles of criminal law, namely, the principle of personal guilt.

That is, you can be arrested only for what you personally did and were aware of your actions.

Vladimir Putin and Maria Lvova-Bialova are accused of concrete personal participation in the deportation of Ukrainian children with specific goals.

- That is, until Lvova-Bialova said at the meeting with Putin that according to his order they took the children out of Ukraine - the international justice had nothing to show Putin?

After Buchi and Irpyan?

- Not quite so.

What struck Lvov-Bialov was that it facilitated the work of the court, the collection of evidence.

But, of course, there was more than that.

The court has a standard of evidence for issuing a warrant.

To issue a warrant, the prosecutor must collect enough material, evidence, "reasonable grounds to believe."

And there is also certain evidence that it was these people who committed such actions.

Forcible deportation of the population for the purpose of its forcible assimilation is an absolute war crime.

And this means that the prosecutor currently has enough evidence to issue a warrant for these individuals.

In addition, it should be taken into account that children are a vulnerable group that they are trying to protect first of all.

— Belarus takes, let's say, a rather passive part in the aggression.

So, does this mean that the judges of the International Court of Justice will have no reason to issue a warrant for Lukashenka's arrest - at least until Belarusian troops are not participating in military operations on the territory of Ukraine?

- Not quite so.

After all, there is such a crime as "participation in aggression".

It will be possible to prove Lukashenka's personal guilt for participating in Russia's aggression against Ukraine.

But due to certain legal features, the idea of ​​a separate tribunal in the case of Russian aggression appeared, a resolution of the European Parliament was recently adopted.

It is due to the fact that the ICC has limited jurisdiction over Ukraine.

Now much will depend on how and by whom this tribunal will be established.

— On March 23, 38 OSCE participating countries issued a joint statement in which they announced a repeated appeal to the Moscow Mechanism in connection with human rights violations in Belarus.

What is the practical significance of this?

— In 2020, such a "Moscow mechanism" was already launched in relation to Belarus, and then it was in the form of a special rapporteur.

Now there is a difference: an expert group is being created that will investigate what has happened in the last year, for the time that has passed since the first report.

I have already heard some skepticism about this, but these things should not be underestimated.

In the light of the fact that the UN group in the case of Belarus has already submitted a report, and there it was publicly announced for the first time that the regime committed crimes against humanity in Belarus.

The OSCE group can strengthen these findings, continue to study this topic, and collect even more evidence.

It is important to record this, to develop this topic - because this will facilitate the work of some court, which will still be created in due time.

— But both Belarus and Russia are members of the OSCE, they will, of course, vote against.

And what's next?

- The most important thing is that all the evidence collected by the group will be recognized at the international level, the majority in the OSCE will vote for them, and they will await their trial.

The more this is recognized at the international level (not just wording, but concrete facts with names and descriptions), the easier it will be to justify certain political positions and conduct international negotiations.

- You keep saying: "for the future trial."

But, apart from the Ministry of Internal Affairs, who can create this court to hear cases of crimes against humanity on the territory of Belarus?

- We need to separate two things.

When it comes to the tribunal against aggression, the European Union believes that it should be established by the UN General Assembly.

Previously, such tribunals (for the former Yugoslavia, for Rwanda) were created by the UN Security Council.

Now it is clear that this issue will not pass in the Security Council, because Russia and China are there.

Therefore, it is proposed that these functions be taken over by the UN General Assembly.

I believe that the European Union can create such a tribunal.

As for the crimes committed by Lukashenka's regime on the territory of Belarus, let's be honest: a separate international tribunal is unlikely to be created here.

Still, compared to the genocide in Yugoslavia and Rwanda, our situation is different.

Therefore, a good solution could be the creation of a mixed tribunal - partly with international judges, partly with national Belarusian ones.

- Do you mean the new Belarusian authorities?

- Yes.

- It is clear that under the new authorities everything will be different.

I would like to know what can happen in this case "before the new" authorities, before the fall of the regime?

- Before the fall of the regime, the only thing that can happen is to create an international tribunal on aggression against Ukraine, and the process will begin there.

He will start collecting evidence, facts - and, perhaps, he can issue a warrant for Lukashenka's arrest.