What does the ‘hybrid attack’ carried out by Belarus against the EU borders mean in reality? An international law perspective

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In reaction to the fraudulent 2020 Belarusian presidential elections and violent suppression of oppositionists by the State apparatus, the European Union imposed sanctions on Belarus, including a travel ban and an asset freeze. After the forced landing of a Ryanair plane in Minsk, it also prohibited various aircraft operated by Belarusian airlines from taking off from, landing in, or flying over EU territory. Lithuania and Poland offered assistance to Belarusian refugees fleeing the regime, and continued to demand democratic changes in Belarus.  The reply from Belarus came almost exactly a year later. In June 2021, Lithuania began reporting a growing number of migrants from the Middle East trying to illegally cross the Belarusian and Lithuanian border. When it was suggested that the Belarusian regime was behind this unexpected migration wave, Belarusian president Aleksandr Lukashenko stated in June 2021 that ‘(…) if someone thinks that we will (…) become a filtration camp for fugitives from Afghanistan, Iran, Iraq, Libya, Syria, Tunisia, they are mistaken at least. We will not hold anyone.’  Soon Poland and Latvia also reported similar problems with a growing influx of refugees trying to cross their borders and illegally trespass into the EU.

How does it work?

In May 2021, Belarusian travel agencies began to offer tours to Belarus for inhabitants of States such as Iraq, Afghanistan, Syria, Lebanon and Jordan. To make it possible, Belarus loosened its visa procedures. Agencies lured migrants with the easy entry to the EU. Those who paid 12,000-15,000$ flew to Dubai, Istanbul, or any other Middle East hub, where they changed to direct flights to Minsk operated by Belavia, the Belarusian state-owned airline. After arriving at Minsk it turned out that to entry EU migrants had to go through forests, streams and swamps. Moreover, they were not allowed to return to Belarus, even when they were refused to pass Polish, Latvian or Lithuanian borders. Instead, Belarusian border guards forced them over and over again to try to illegally cross the border, also encouraging the use of violence against border guards of the neighboring States. The result is that at the end of October around 23,000 attempts to illegally enter only Polish territory had been registered (over 11,000 attempts just in October itself) (comprehensive account of the situation can be found here and here).

International law perspective

Some call the border crisis a ‘hybrid attack’ (see the statements made by Ursula von der Leyen, NATO representatives, as well as from the Polish and Latvian authorities). Does this signify that the Belarusian actions, although morally and politically deserving of condemnation, are hard or impossible to assess on the grounds of international law? Not at all.

There is no legal definition of a ‘hybrid attack’; nevertheless, this concept has been defined by security and policy experts. Thus, the hybridity of the attack denotes that the attacker uses ‘various covert and overt tactics, enacted by military and/or non-military means’, applies both coercive and subversive methods, works through proxy insurgent groups, as well as conducts massive disinformation campaigns (EEAS, Food-for-thought paper “Countering Hybrid Threats”, par. 6).

Hybrid attack poses challenge to many different domains, including such fields as military, economy, infrastructure, cyberspace, politics, diplomacy, culture, as well as law (see Chapter 4, The Landscape of Hybrid Threats…). When it comes to the latter domain, actors carrying out hybrid attacks, exploit legal ambiguity and lack of consensus about some legal concepts among the international community; attempt to circumvent their legal obligations to avoid international responsibility and prompt long-lasting discussions about the legal assessment of their conduct; try to avoid reaching the threshold triggering mutual commitments between States (e.g. art. 5 of the NATO Treaty); and blur the clear distinction between the state of armed conflict and peace (Sari, Legal Resilience…, p. 10-11).

If to employ this definition to assess the border crises prompted by Belarus, it becomes obvious that the hybrid attack is at stake. It is easy to misjudge the facts: Any State may encourage tourist traffic in foreign States and to this end facilitate the formalities for newcomers. At first glance, it would be also difficult to find a legal norm which prohibits States from inviting foreigners because they may provide easier access to neighboring States. When it comes to the attempts to illegally cross the EU border, these are not Belarusian forces which are assaulting borders and using violence against Polish, Latvian or Lithuanian guards, but migrants from the Middle East; thus, officially, it is not an attack carried out by Belarus.

Such narrative, based on superficial and selective assessment of facts, misses the real goal of the Belarusian regime – to deliberately exploit thousands of migrants from the Middle East, seeking for better life, and push them at the EU border, in order to undermine the security of Belarus neighbors and create chaos within the EU, as a retaliation for sanctions imposed on Belarus.

Given that, there can be no doubts that the Belarusian operation breaches the principle of non-intervention. In general, intervention may be defined as ‘interference by a State in the internal or foreign affairs of another State. It is only prohibited when it occurs in fields of State affairs which are solely the responsibility of inner State actors, takes place through forcible or dictatorial means, and aims to impose a certain conduct of consequence on a sovereign state.’ (Kunig, Intervention, Prohibition of, par. 1). The Belarusian operation interferes with many spheres of internal responsibility for Poland, Latvia and Lithuania, including especially the security of their borders, and migration policies. Since Belarus has ‘weaponized’ migrants and is driving them to illegally enter the neighboring States, forcible means are in play. Its aim is to punish the EU for the sanctions imposed on Belarus, destabilize their internal situation, and undermine security.

However, was Article 2 (4) of the UN Charter violated? The answer to this question depends on the dynamically changing circumstances. Mere encouraging migrants to illegally trespass the EU border is not enough to reach the threshold of the use of force. However, in recent weeks the situation changed into much more violent. Belarusian services tried several times to provoke Polish border guards by shooting against them near the border fence, to blind them with lasers, as well as to destroy the border fence with their vehicle. They also brought groups counting hundreds of migrants to the borderline and equipped them with stones and stun grenades. Migrants used them to attack Polish guards and policemen, hurting officers. They also regularly undertake attempts to destroy the border fence. These activities allow to conclude that the threshold of the use of force was reached.

If so, did the situation at the Polish border meet also the test of the ‘most grave forms of the use of force’ (Nicaragua, par. 191)? The ICJ famously declared the ‘mere frontier incidents’ as being below the threshold of an armed attack (Ibid, par. 195); likewise, the Eritrea-Ethiopia Claims Commission stated that ‘[l]ocalized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for purposes of the Charter’ (par. 11). On the other hand, one has to bear in mind that in the Oil Platforms case, the ICJ allowed for flexible test to assess whether the threshold of an armed attack was reached (‘The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence”, par. 72). Thus, the qualification of the specific case of the use of force as an armed attack depends on the circumstances, not the label that may be attached to the particular situation. From that perspective, it seems that the skirmishes at the Polish border are more than ‘mere frontier incidents’, given their goal and employed tactics. Nevertheless, it does not seem that currently their ‘scale and effects’ are that of an armed attack. Thus, at this point Poland cannot invoke the right to self-defense, but it has to depend on the collective security system.

What can be done?

If States exploiting hybrid attacks are taking advantage of the crises affecting multilateralism, only the return of multilateral cooperation can be a remedy. Due to the hostile position adopted by Belarus, the EU has to cooperate with States of origin of migrants and actors involved in their travel to Europe, as it is unable to resolve the crisis internally.

The first step is to prevent Belarus from mass granting of visas in the Middle East. The regulation of visa procedure is closely tied to the sovereignty of every State, as it is connected with the State’s right to control admissions into its territory. Thus, as long as other States cannot interfere with the State’s visa regulations, they may have influence on where the visas are granted. Usually consular offices are responsible for admitting applications and issuing visas. A consular pot is established in the territory of the receiving State only with that State’s consent (Art. 4 of the VCCR); thus, the withdrawal of the consent by the receiving State prompts the shutdown of the consular pot. That is why, upon Iraqi government request, Belarus has recently closed its consulates in Baghdad and Irbil. This may turn out to be an effective measure, as most of the Iraqi migrants depart from the Kurdish part of Iraq, especially including Irbil, Shiladze and Sulaymaniyah.

The next step is to prevent airlines from bringing migrants to Belarus. While the issue affects several air carriers, all eyes are now on Turkish Airlines and FlyDubai. The EU may impose sanctions (‘restrictive measures’) on these airlines (Art. 215 of the TFUE), including freezing of all funds and economic resources (see e.g. sanctions employed by EU against Butembo Airlines) or obliging Member States to prevent access to the airports under their jurisdiction of all flights operated by the airlines (see sanctions against ).

In addition to measures taken in June 2021, the EU is considering new sanctions to prevent any EU-registered companies from leasing aircrafts to Belavia. That will affect some Irish aircrafts leasing companies which have contracts with Belarus. Ireland’s Foreign Minister declared that his State will back sanctions, but with regard to future contracts, as the Irish government seeks to protect existing agreements.

The EU also decided to impose sanctions against those directly involved with the influx of migrants. To this end the Council broadened the listing criteria on which specific designations can be based to target individuals and entities organizing or contributing to activities by the Lukashenko regime that facilitate illegal crossing of the EU’s external borders (see Council Decision and Council Regulation). Allegedly the new restrictions will target around 30 persons and entities, including the Minister of Foreign Affairs of Belarus. They will be banned from entry into or transit through the EU Member States territories, as well as their funds and economic resources will be frozen.

In addition, the EU has also offered the help of Frontex (European Border and Coast Guard Agency), which can, inter alia, ‘deploy the standing corps in the framework of border management teams, migration management support teams and return teams’ (Art. 10 (1) (j) of the Regulation (EU) 2019/1896). In Lithuania, Frontex is also preparing Rapid Border Intervention Teams – ‘a mechanism providing rapid operational assistance for a limited period to a requesting EU Member State’. The presence of multinational corps at the Polish, Latvian and Lithuanian borders, being the proof of cooperation among EU members in the face of the crisis, can work as an important deterring factor.

Conclusions

The border crisis is a test for the Western world of how it can handle hybrid attacks coming from authoritarian, ready for anything regimes. It will also demonstrate if democracies are able to stand up to the fabled ‘hybrid threats’ and find the appropriate measures to effectively respond. Neither the EU nor NATO have tools at their disposal which are specifically aimed at countering hybrid threats – the question is thus whether their existing tools will turn out to be sufficient, or if something more is required to respond effectively.

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Agata Kleczkowska says

December 13, 2021

Just a small up-date - on 2 December the Council has already adopted sanctions against Belarus: https://www.consilium.europa.eu/en/press/press-releases/2021/12/02/belarus-eu-adopts-5th-package-of-sanctions-over-continued-human-rights-abuses-and-the-instrumentalisation-of-migrants/