Belarus is Complicit in Russia’s War of Aggression

In the early hours of the 24^th of February, Russia launched a large-scale attack against Ukraine. By the following day, Russian forces were closing in on Kyiv, the Ukrainian capital. A large part of these forces penetrated the Ukrainian territory not through the separatist regions in the east or Crimea in the south, but through the north, coming from the territory of Belarus. The Ukrainian President has since rejected coming to Minsk for peace talks because of its lack of neutrality. As states are rolling out sanctions against Russia, they are starting to extend sanctions to Belarus. In addition, some states are explicitly including Belarus in their accusations against Russia for violating international law. This begs the question of what responsibility Belarus bears for its role in the Russian attack against Ukraine. By permitting the use of its territory, Belarus could be complicit in Russia’s unlawful use of force and could itself be committing an act of aggression.

The Russian Attack as a Violation of International Law

The legal assessment of Russia’s actions is straight-forward and there is no need to repeat the analyses of others. With its attack against Ukraine, Russia violates the prohibition on the use of force enshrined in Article 2(4) of the UN Charter and commits an act of aggression. In reaction to Russia’s attack and the violation of a fundamental norm of international law, NATO members and other states have started to impose sanctions. These measures are accompanied by a critical debate and demands for more drastic follow-up sanctions. The United States has already included Belarus in their early sanctions, targeting some entities and individuals in the Belarusian defence and finance sectors. Subsequently, both the European Union and the United Kingdom have announced similar sanctions against Belarus, but have not published further details by the time of writing.

Belarus’ Role in the Russian Attack

The Russian geographic choice of entry point into Ukraine is unsurprising. Soon after the Russian attack was initiated, it became clear that it was aimed at decapitating the Ukrainian government. As the city of Kyiv, which hosts the government’s seat, is located in the north, many Russian troops entered Ukraine by crossing its northern border with Belarus.

Although there have been some suggestions that Belarusian forces have taken part in the Russian invasion, the Belarusian President Aleksandr Lukashenko denies any engagement of his forces and clear evidence for participation of Belarusian forces is lacking. However, it is indisputable that Lukashenko allowed Russian forces to move through Belarusian territory and cross the border with Ukraine. One report states that Russian troops were further granted access to the air defence and traffic control systems of Belarus as well as its gas fuelling stations.

An increasing number of Russian forces was stationed in Belarus already weeks before the attack. The explanation given at the time was that of a joint military exercise. Just a few days before the launch of the attack, the Belarusian Defence Minister announced that the exercise was to be extended. By now, the strategic importance for the Russian attack of its forces having been hosted by Belarus has become clear. This is further exemplified by Russian troops capturing the nuclear power site at Chernobyl, only a few kilometres south of the Ukrainian-Belarusian border.

Belarus’ Responsibility for Assisting the Russian Attack

These events raise the question of whether Belarus bears responsibility for assisting the Russian attack. If Belarus was to involve its armed forces directly, this would constitute an unlawful use of force and an act of aggression in the same way as it is the case for Russia. However, a direct engagement in hostilities is not necessary in order for Belarus to be in violation of international law.

Under the rules of state responsibility, Belarus appears to be responsible for its complicity in Russia’s unlawful use of force. Article 16 of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts stipulates that a state’s aid or assistance in another state’s wrongful act constitutes a derived but separate wrongful act of the assisting state. The International Court of Justice found this rule in its judgment on the Bosnian Genocide to be representative of customary international law. The rule requires that a state provides aid or assistance that facilitates another state’s breach of international law, that the assisting state does so knowing the circumstances, and that it is bound by the breached rule itself.

By permitting Russian troops to be positioned in Belarus and to cross the border into Ukrainian territory, and by logistically supporting this movement, Belarus provided significant assistance in Russia’s attack. Given the short distance to Kyiv, the strategic importance of this assistance seems substantive, but in the end it is not decisive whether the assistance was essential or only incidental for Belarus to be complicit. It must be assumed that when providing this assistance, especially when allowing the crossing of its border, the Belarusian regime knew of the Russian attack. The prohibition on the use of force that was breached by Russia’s attack does of course also apply to Belarus. Looking at all three requirements of Article 16, it becomes clear that Belarus is responsible for assisting the Russian attack against Ukraine.

In its commentary (para. 8) on Article 16 of the Articles on State Responsibility, the ILC further clarifies that “[t]he obligation not to use force may also be breached by an assisting State through permitting the use of its territory by another State to carry out an armed attack against a third State.” This is an exact description of Belarus’ actions.

Belarus’ Act of Aggression

An additional perspective on Belarus’ responsibility arises from the fact that Russia did not just violate any rule of international law, but the prohibition on the use of force. Closely linked to this is the concept of aggression, for which the UN General Assembly adopted a definition in Resolution 3314 (XXIX). As a resolution of the General Assembly, the Definition of Aggression is not legally binding, but nevertheless constitutes important guidance in determining what acts qualify as an aggression. In Article 3, the Definition lists acts that constitute an aggression. Mostly, these are different versions of one state conducting an unlawful use of force against another state. However, Article 3(f) stipulates that an act of aggression shall also consist in “[t]he action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State”.

Here, the same facts that above constitute an assistance in Russia’s attack qualify the Belarusian involvement as an act of aggression. In allowing its territory to be used by Russia for perpetrating the aggression against Ukraine, Belarus is itself committing an act of aggression against Ukraine under the Definition of Aggression.

Since Belarus is far from being an equal partner to Russia, one might argue that Belarus had no choice but to assist the Russian attack. However, Article 5(1) of the Definition of Aggression is clear on this: “[n]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.” The same follows from Article 26 of the Articles on State Responsibility. In other words, nothing, not even the threat of a Russian occupation, justifies Belarus’ complicity in the Russian aggression against Ukraine.

What Could this Mean for International Sanctions?

Alongside diplomatic measures and supplies for Ukraine, economic and financial sanctions against Russia have to date been the primary international reaction to the attack. In general, those sanctions are based on the condemnation of the triggering act and on that act being found in violation of international law. What kind of sanctions are enacted and against who ultimately depends on many factors. And of course, Russia remains the logical primary target of all efforts. Still, the conclusion that Belarus is in violation of the prohibition on the use of force should not be overlooked. The prohibition is generally accepted to constitute an obligation erga omnes and, because it is owed to all states, there is a good argument that all states can take countermeasures against a breach, despite the equivocal stance of the ILC in Article 54 of the Articles on State Responsibility (see the useful analysis by Martin Dawidowicz). Sanctions against Belarus for its complicity in the unlawful use of force against Ukraine can therefore be taken not only by Ukraine, but also by the EU, the US, and other third states.

Imposing further sanctions on the Belarusian regime would stress that every complicity in Russia’s unlawful attack is taken seriously. Similar demands have been voiced by the Belarusian opposition leader Sviatlana Tsikhanouskaya. Ultimately, this could also constitute a deterring factor for other countries that are in one way or another facilitating the Russian war effort.