Desperate migrants as “armed gangs”? A response to Sari and Hudson

In the midst of a rapidly worsening humanitarian situation on the border between Poland and Belarus, Aurel Sari and Ben Hudson have examined in these pages the actions of Belarus from an international legal point of view through doctrinal lenses. the use of force, intervention and sovereignty, and secondarily as violations of bilateral treaties and human rights obligations. The momentum is understandable enough. With frequent and growing allegations of violations of international law in political discourse, it does indeed seem useful to examine what concrete primary rules Belarus might have broken by transporting Third Country Nationals (TCNs) from various countries in the Middle East. to Minsk, then transporting them to its western and northwestern border. I do not doubt the best intentions of the authors or their academic merits. However, this brief answer aims to explore how the chosen legal framework results in problematic discursive change, facilitating and possibly even justifying harm to vulnerable people.

After accurately describing the cynical instrumentalisation by Belarusian President Alexander Lukashenko of the TCN’s desire to reach the European Union and the build-up of tensions, especially along the border with Poland, Sari and Hudson examine a possible violation of the use of force (Article 2 (4) UN Charter) by Belarus. Recognizing that the question is “fraught with difficulties”, they propose different scenarios that could involve the rule. They convincingly reject the idea that acts of violence perpetrated by TCNs can be attributed to Belarus (in accordance with customary law as reflected in article 8 of the articles on State responsibility). However, they specify that the TCNs can be qualified as “armed bands”, of which they consider “the most intense episodes of violence” “neither on a small scale nor without consequence” and therefore mainly within the framework of article 2 (4 ) (insofar as these acts are materially and logistically supported and encouraged by Belarus). Based on the corresponding concepts taken from the Declaration on Friendly Relations and the International Court of Justice Nicaragua decision, Sari and Hudson conclude that this scenario could be sufficient to imply an illegal use of force.

While other writers could certainly come to a different conclusion, the analysis is for the most part cautious and apparently sound (I do not consider whether it is correct under existing law). Indeed, as stated, my aim is not to offer a substantive legal response. Instead, I want to ask myself whether we, as scholars of international law, should really take this argumentative path in the first place. Lawyers, by defining a problem in conspicuously neutral doctrinal language, hold the power to modify and shape discourse. It’s at least in part our work – legal conclusions drawn from meticulously researched and consistently argued academic papers – that provide policymakers and other political actors with the language to rationalize, for example, denying civilians status to women and to children in ISIS -controlled territory. The language used to describe these situations shapes the way they are perceived – from dehumanization and the implicit threat evoked by catastrophic water metaphors (floods, deluges, flooding), to speaking of “weaponry” migrants by some states against others. Likewise, calling TCNs “armed gangs” as Sari and Hudson do shapes the vocabulary allowed within the discursive space, reconfiguring the individuals in question as inherently dangerous and a threat to Western European societies.

Admittedly, the authors endeavor to stress that their legal analysis should in no way be interpreted as authorizing the Polish army or border guards to use force in response, whether against Belarusian troops or TCNs attempting to respond. to cross the border. But the reality that follows may turn out to be less straightforward. Once this new framing takes hold and people are characterized as threatening “armed gangs” in political and media discourse at large, as people whose actions result in a violation of the prohibition on the use of force – the most fundamental rule of the international legal order – why should anyone care about their fate and why shouldn’t we allow the Polish authorities to keep them away by any means necessary?

Empathy has its place in international legal reasoning, even when it comes to arguments that seem to deal with abstract concepts such as states, intervention, or interstate force. Empathy allows us to understand the “human dimension” of the subject and to consider appropriately the effects of the argument “on all those who will be affected by it”. In this regard, Sari and Hudson’s play falls short. Approaching the issue of the use of force with an empathetic mindset, even if it may seem distracting or counter-intuitive in the given context, would be to take into account the possible repercussions of applying concepts that have been developed under totally different factual circumstances – such as ‘armed gangs’ in the context of the Nicaragua judgment – to human beings trapped between hostile countries in freezing temperatures. Without relieving Belarus of its responsibility, then we might be prepared, for example, to consider the possibility that the violence committed by the TCNs (to the extent that it occurs) may arise not from primary aggression but from desperation.

Finally, we can also wonder about the substantial added value of the contribution. What is the point of an analysis that accuses Belarus of using force against Poland, given that there is no doubt – as Sari and Hudson rightly and clearly point out in Part II of their contribution – that Belarus is responsible for a violation of human rights and other rules of international law? Action by the UN Security Council on the basis of a “threat to the peace” in accordance with Article 39 of the UN Charter is politically inconceivable. The EU and other Western actors have already responded with sanctions anyway, and will likely step up even further soon. Determining a recourse to force apart from an armed attack would justify recourse to other countermeasures beyond sanctions, but for what purpose? What could they look like? In light of this, maybe – just maybe – we, as jurists, should sometimes refrain from such purely intellectual or theoretical exercises if they end up leaving real human beings – whose dignity and good – mental and physical being should be at the center of our work – worse, if only within the limits of our academic discourse.

Image: Migrants aiming to enter the Polish camp near the Bruzgi-Kuznica border post on the Belarusian-Polish border on November 17, 2021. (Photo by MAXIM GUCHEK / BELTA / AFP via Getty Images)
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