We recently published a two-part series (here and here) on the migrant crisis along the border of Belarus and the European Union (E.U.), focusing on whether Belarus is complying with its international obligations. Henning Lahmann has responded to our posts, suggesting that our chosen legal framing entails a “problematic discursive shift” that facilitates, and perhaps even justifies, harm to vulnerable individuals.
Lahmann takes issue with our conclusion that Belarus is acting in contravention of the Friendly Relations Declaration by “encouraging the organization of … armed bands … for incursion into the territory” of Poland, on the ground that this casts migrants into the role of “armed bands.” While Lahmann graciously accepts that our legal analysis is “mostly cautious and seemingly sound,” (though he reserves judgement of whether “it is correct as a matter of existing law”), he questions “whether we, as scholars of international law, should actually go down this argumentative path in the first place.” In essence, he faults us for a lack of professional judgement and empathy. In this article, we would like to explain, by way of a brief response, why we chose to head down that path the way we did.
There is much in Lahmann’s essay that we agree with wholeheartedly. We agree that lawyers “hold the power to shift and shape a discourse.” How we frame an issue colors not just the way it is understood and perceived, but also provides principled justifications for taking or failing to take action in response. With such discursive power comes responsibility: we must accept accountability for our framing.
We also agree with Lahmann that empathy has a place in international legal reasoning. The law may be abstract and formalistic, but its subjects are people: their desires, fears, their well-being. As one of us works in the field of international human rights and refugee law, and the other in international humanitarian law, these points are not lost on us. We have seen them up close.
We differ, however, about where these points lead us in the present context.
Lahmann suggests that by characterizing third country nationals (TCNs) at the Belarusian border as “armed bands,” we are reconfiguring these persons as “inherently dangerous and a threat to western [sic] European societies.” As a point of clarification, it is important to underline that we have not suggested, and are not suggesting, that TCNs in general or all of those caught up in the present crisis are part of armed bands. The majority of the migrants at the Belarusian border are not engaged in acts of violence. But that does not detract from the simple fact that some migrants have carried out repeated acts of violence, have used improvised weapons to this end causing serious injury, and have done so in large groups.
We accept that characterizing these groups of migrants as “armed bands” within the meaning of the Friendly Relations Declaration for the purposes of assessing Belarus’ compliance with its international obligations may lead some, whether inadvertently or deliberately, to label all TCNs as members of “armed bands” without distinction.
However, we believe that the mere fact that an argument can be misunderstood or misconstrued is not a good enough reason to exercise self-censorship in expressing otherwise valid points – just as we believe that those who engage in debate may bear some responsibility for what use is made of their arguments by others. As so often with complex issues, there is a need for balancing competing considerations.
What are these considerations in the present case?
Lahmann questions what added value an analysis of the U.N. Charter rules on the use of force offers in the present context. Given that Belarus is in violation of a range of human rights and bilateral agreements, as well as sovereignty and the principle of non-intervention, what is the point in also reproaching it for violating the prohibition to use force? Unable to see any tangible benefit in doing so, Lahmann calls our analysis of this issue a “purely intellectual and theoretical exercise.” Here we disagree fundamentally.
Bearing in mind that the prohibition to use of force is not just any rule of international law, but supposedly a “fundamental or cardinal principle of such law” (Nicaragua, para. 190), an analysis that neglected this matter would rightly be criticized as incomplete. Indeed, without such an assessment, it is difficult to see how one could argue that talk about Article 5 of the North Atlantic Treaty is premature or the language of “hybrid attack” inapt, as we have done. Nor do we see how any of this is a “purely intellectual and theoretical exercise.” Just because the U.N. Security Council is unlikely to take enforcement action, as Lahmann suggests, does not mean that compliance with Article 2(4) of the Charter is irrelevant – or else most of us working in this field might start looking for a different job. Similarly, the fact that the E.U. has already adopted sanctions does not mean that they may not need to be reconsidered or that their justification is immaterial.
More to the point, we expect the legal characterization of the situation to feed into discussions and decisions over appropriate response actions at the national and international level, both immediately and over the longer term. These include, for example, the potential invocation of Article 4 of the North Atlantic Treaty in this and similar circumstances; the ongoing debate over collective counter-measures; what (if any) emergency measures may be warranted; whether the relevant domestic and institutional legal frameworks allow effective measures to be taken and offer adequate safeguards; whether circumstances precluding wrongfulness may have arisen; or whether the Latvian, Lithuanian, and Polish authorities are faced with a “disruptive situation which is difficult to control and endangers public safety” on account, amongst things, of large numbers of persons using force against them (N.D. and N.T. v. Spain, European Court of Human Rights, para. 201).
We are first and foremost academic lawyers, so leave it to others to decide how best to take these questions forward. This is not to say that we do not have views on the matter or that we are not ready to share them. In this context, we do not recognize the sharp distinction that Lahmann seems to draw between scholars, decision-makers, and political actors. We have worked with plenty of practitioners who are formidable scholars, and seen plenty of scholars who are not afraid to engage in political action. Indeed, empathy in international legal reasoning is hardly a matter of detached scholarship, but straddles the border with political action.
Lahmann is right to say that approaching the rules governing the use of force in international relations with an empathetic mindset requires us to be alert to the repercussions our legal arguments may have for individuals. However, we do not believe that such empathy must necessarily manifest itself in one-dimensional legal “framing,” for instance one that views the matter through the lens of human dignity to the exclusion of other perspectives. It should be possible to recognize that the human beings at the Belarusian border are both the victims of sinister forces and pernicious circumstances, yet also have a degree of agency that they use in different ways and with different consequences. It should therefore be possible to express different degrees of empathy towards different people, and also to employ different legal categorizations, rather than schematically treat everyone either as a victim of circumstances beyond their control or as a threat to law and order.
We appreciate that this nuance may be lost on some and that it does lend itself to misunderstanding and mischaracterization. We also appreciate that where to draw these different lines is neither self-evident nor uncontroversial. We appreciate, therefore, the political risk and the risk of politization.
So where does this leave us?
It leaves us in a difficult space, a space marked by moral and political dilemmas to which easy answers are not forthcoming. One way to guard against the temptation of one-dimensional responses and over-simplification is robust debate – and we are grateful to Lahmann for engaging in such a debate. We should be careful, though, not to mistake disagreements over the exercise of professional judgement and empathy for a lack of either.