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Placebo for Lukashenko’s weakening immunity

Pavel Latushka: Deputy head of the United Transitional Cabinet of Belarus, Head of the National Anti-Crisis Management, Ambassador

At the beginning of the year, Lukashenko signed amendments to the Law on the President of the Republic of Belarus, which, among other benefits, prioritized the immunity of the dictator and his family members.

However, it's important to note that we are not discussing the health of the aging Lukashenko. Rather, Lukashenko is aware that the customary immunity granted to heads of state may not be sufficient to shield him from the consequences of his actions over the past three and a half years. Consequently, the dictator has opted to address this issue in the only way he knows – by inventing a law that guarantees him the desired protection if it does not already exist.

While this method may be effective within the confines of Belarus, where people are held hostage by the dictator and the system itself, unfortunately, can outlive the dictator, its power beyond the country's borders is questionable. State officials' immunity primarily exists as a legal concept that governs the relationships between states.

Let's examine the effectiveness of such a measure. 

According to customary international law, immunity is derived from the principle of sovereign equality among states and aims to define the limits of jurisdiction exercised by states in their interactions with one another. State immunity extends to individuals in different forms based on their relationship to the represented state, primarily to ensure their immunity from the criminal and civil jurisdiction of other states.

Individuals representing a state may enjoy two types of immunity: personal and functional.

Functional immunity generally applies to all government agents acting in an official capacity. However, this immunity does not cover actions committed by individuals in their personal capacity (private actions).

Nevertheless, it is widely recognized that international law has developed exceptions to functional immunity, particularly in cases involving the prosecution of the most serious international crimes, such as crimes against humanity and war crimes. Various theories and rationales support this exception. For instance, some scholars argue that the duty to prosecute and prevent the commission of international crimes represents mandatory rules that take precedence over other rules of international law.

Moreover, a widely held view among experts is that by accepting international treaties that impose obligations to prosecute crimes in accordance with international law, states implicitly waive the immunity of their officials who commit such crimes.

Augusto Pinochet in the last years of his life
Augusto Pinochet in the last years of his life. Source:

This line of reasoning was the foundation of the Pinochet case before the UK House of Lords, which determined that functional immunity for the crime of torture was effectively abolished by states that ratified the 1984 Convention against Torture.

The most progressive position, enjoying broad support within the expert community, is that an exception has emerged within customary international law. This exception stipulates that functional immunity does not extend to the jurisdiction over the most serious international crimes, such as crimes against humanity.

According to the adopted amendments, Alexander Lukashenko will be granted immunity after the termination of his presidential powers. He cannot be held accountable for actions committed in the exercise of his presidential duties, and as a result, he cannot be detained, deprived of personal freedom, or subjected to investigative and other procedural measures.

Additionally, his family members, primarily his children, will also enjoy similar immunity.

Thus, the adopted amendments explicitly reference functional immunity, specifically relating to official actions, which by definition do not encompass those associated with the commission of the most serious international crimes.

Therefore, this law serves as a kind of placebo for the dictator, intending to mimic the immunity of Alexander Lukashenko, which, in reality, never existed.

On the other hand, the three highest officials of the state, traditionally recognized as the head of state, the head of government, and the minister of foreign affairs, enjoy personal immunity in addition to functional immunity. Personal immunity remains in effect as long as the individual holds the respective position and applies to both official and private actions. Personal immunity ceases when the person leaves office or status, but continues to cover official acts performed during their tenure.

It is worth considering that due to some states recognizing Alexander Lukashenko as someone who continues to control the system of public administration in Belarus, they may recognize his entitlement to the privileges of personal immunity. As per current international law, no exceptions exist for prosecuting a person with personal immunity. However, it is important to remember that once Alexander Lukashenko ceases to hold the position of the regime's leader, neither functional nor personal immunity will shield him from accountability for actions committed in his personal capacity, particularly his international crimes.

Any state that possesses the desire and necessary legislation will have the opportunity to hold Alexander Lukashenko accountable for these crimes within the framework of its national jurisdiction.

Furthermore, members of Alexander Lukashenko's family do not possess any personal immunities. If they are implicated in international crimes, they may face criminal prosecution in any country at present.

Moreover, several states have started to acknowledge the possibility of not recognizing personal immunities of current heads of state concerning the most serious international crimes. A notable example is the recent arrest warrant issued by a French court for the current President of Syria, Bashar al-Assad, for crimes against humanity.

However, it is crucial to bear in mind that references to immunity are only relevant within the context of criminal prosecutions in national jurisdictions. Presently, Alexander Lukashenko's international crimes are already under the spotlight of the International Criminal Court (ICC), where immunities simply do not exist within their procedures. The ICC will undoubtedly undertake all necessary measures to ensure the completion of the required procedures. And NAM will certainly do everything possible in this matter to help bring all necessary procedures to their logical conclusion.

Should an arrest warrant be issued by the Pre-Trial Chamber of the ICC, any state party to the Rome Statute is obligated to carry out the extradition procedure for the concerned individual if they appear within that state's jurisdiction. No law enacted in Belarus will have any impact on this matter.

The trial of Omar al Bashir
The trial of Omar al Bashir. Source:

To illustrate how this mechanism operates, we recommend acquainting oneself with the fate of the former President of Sudan and a close friend of dictator Lukashenko, Omar al-Bashir, who evaded international justice for 10 years, with each of his trips outside the country fraught with constant risks of arrest. A similar destiny is inevitable for Alexander Lukashenko.

In essence, the new law serves as a placebo for the dictator and his entourage, temporarily boosting his morale through self-deception, but it will in no way shield him from international criminal prosecution or grant him immunity.


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