Amid a quickly escalating humanitarian situation at the border between Poland and Belarus, Aurel Sari and Ben Hudson have scrutinized in these pages the actions of Belarus from an international legal perspective through the doctrinal lenses of the use of force, intervention, and sovereignty, and, secondarily, as violations of bilateral treaties and human rights obligations. The impetus is understandable enough. With frequent and growing allegations of violations of international law within the political discourse, it seems indeed worthwhile to examine what concrete primary rules Belarus might have breached when flying third country nationals (TCNs) from various Middle Eastern countries to Minsk and then transporting them to its western and north-western border. I doubt neither the authors’ best intentions nor their academic merits. However, this brief reply intends to explore how their chosen legal framing entails a problematic discursive shift, facilitating and perhaps even justifying harm to vulnerable individuals.
After accurately describing Belarusian president Aleksander Lukashenko’s cynical instrumentalization of TCNs’ desire to reach the European Union and the buildup of tensions in particular along the border with Poland, Sari and Hudson examine a possible violation of the use of force (Article 2(4) UN Charter) by Belarus. Acknowledging that the issue is “fraught with difficulty,” they posit different scenarios that might implicate the rule. Persuasively, they reject the idea that the violent acts carried out by TCNs can be attributed to Belarus (pursuant to customary law as reflected in Article 8 of the Articles on State Responsibility). However, they stipulate that the TCNs may be qualified as “armed bands,” whose “most intense bouts of violence” they consider “neither small-scale nor inconsequential” and therefore principally within the ambit of Article 2(4) (to the extent that these acts are materially and logistically supported as well as encouraged by Belarus). Drawing on corresponding notions taken from the Friendly Relations Declaration and the International Court of Justice’s Nicaragua decision, Sari and Hudson conclude that this scenario might suffice to assume an unlawful use of force.
While other authors could certainly come to a different conclusion, the analysis is mostly cautious and seemingly sound (I do not address whether it is correct as a matter of existing law). Indeed, as indicated, my aim is not to offer a substantial legal response. Instead, I want to question whether we, as scholars of international law, should actually go down this argumentative path in the first place. Lawyers, by framing an issue through ostensibly neutral, doctrinal language, hold the power to shift and shape a discourse. It is at least in part our work – legal conclusions drawn in meticulously researched and coherently argued academic papers – that provide decision-makers and other political actors with the language to rationalize, for example, denying the status of civilians to women and children in ISIS-controlled territory. The language used to describe these situations shapes how they are perceived – from the dehumanization and implicit threat evoked by metaphors of catastrophic water (floods, deluges, inundation), to speaking of the “weaponization” of migrants by certain States against others. Similarly, characterizing TCNs as “armed bands” as Sari and Hudson do shapes the permissible vocabulary within the discursive space, reconfiguring the persons in question as inherently dangerous and a threat to western European societies.
To be sure, the authors go to great lengths to emphasize that their legal analysis should in no way be interpreted as permitting the Polish military or border guards to use force in response, either against Belarusian troops or the TCNs attempting to cross the border. But the ensuing reality might well turn out less straightforward. Once this new framing takes hold and the persons are marked as threatening “armed bands” in the broader media and political discourse, as persons whose actions entail a violation of the prohibition of the use of force – the most fundamental rule of the international legal order – why should anyone care about their fate, and why should we not allow Polish authorities to keep them out with all means necessary?
Empathy has a place in international legal reasoning, even with regard to arguments that seemingly deal with abstract concepts such as States, intervention, or inter-State force. Empathy enables us to comprehend the “human dimension” of the subject matter and to appropriately consider the argument’s effects “on all of the people who will be affected by it.” In this respect, Sari and Hudson’s piece falls short. Approaching the question of the use of force with an empathetic mindset, even if it may seem distracting or counterintuitive in the given context, would mean taking into account possible repercussions of applying notions that were developed in entirely different factual circumstances – such as “armed bands” in the context of the Nicaragua judgment – to human beings stuck between hostile countries in freezing temperatures. Without absolving Belarus of responsibility, we might then be ready, for example, to consider the possibility that violence committed by TCNs (to the extent that it is occurring) might be born not out of primal aggression but desperation.
One might, finally, also wonder about the added substantial value of the contribution. What is the benefit of an analysis that accuses Belarus of a use of force against Poland, given that there can be no doubt – as Sari and Hudson rightly and clearly point out in the second part of their contribution – that Belarus is responsible for a violation of human rights and other rules of international law? Action by the U.N. Security Council on the basis of a “threat to the peace” pursuant to Article 39 of the U.N. Charter is politically inconceivable. The EU and other western actors have already responded with sanctions anyway, and will likely further escalate them soon. Determining a use of force short of an armed attack would justify recourse to other countermeasures beyond sanctions, but to what end? What could those look like? In light of this, perhaps – just perhaps – we, as legal scholars, should sometimes abstain from such purely intellectual or theoretical exercises if they end up leaving actual human beings – whose dignity and mental and physical wellbeing should be at the center of our work – worse off, even if only within the confines of our academic discourse.