Migrant “Instrumentalisation” before the ICJ
The Case of Lithuania v. Belarus
On 19 May, Lithuania introduced proceedings against Belarus before the International Court of Justice (ICJ) for the alleged smuggling of migrants. Lithuania claims that Belarus violated provisions of the Protocol against the Smuggling of Migrants by Land, Sea and Air (the Protocol), which supplements the UN Convention against Transnational Organized Crime. The case concerns a situation that has received much attention in Europe since its beginning in summer 2021: the significantly increased arrival of migrants mainly from the Middle East at the borders of Poland, Lithuania and Latvia with Belarus. It is hardly disputed that Belarus actively encouraged and enabled the transit of migrants, seeking to exercise pressure against the EU. The ICJ will have to decide whether this constitutes a violation of legal obligations under the Protocol. This blog will detail several difficulties with Lithuania’s argument which seeks to collapse key differences between migrant smuggling and the practice of migrant ‘instrumentalisation.’ Even if Lithuania convinces the Court, neither the problem of migrant instrumentalisation, nor the hollowing out of the right to asylum that has attended the phenomenon’s rise will be solved in these proceedings.
No general obligation to obstruct migration
First, a word on the Court’s jurisdiction which is based on Article 20 (2) of the Protocol, as both states are parties to the Protocol. Lithuania had originally made a reservation regarding Article 20 (2) and withdrew this reservation in May 2023, a move that enabled the submission to the ICJ.
After a short part on jurisdiction, a considerable part of Lithuania’s submission is then dedicated to describing the facts underlying the case. In particular, Lithuania elaborates on what is titled “Belarus’ Instrumentalisation of Migrants”. The background is well known: After the bogus presidential elections in August 2020, the Belarusian government brutally cracked down on the mass protests for democracy. The EU imposed sanctions against Belarus and intensified these sanctions when an intra-EU flight had been diverted over Belarusian airspace to detain an oppositional journalist in May 2021. The submission cites several statements from the Belarusian dictator Lukashenko that show that the subsequent surge in migrants’ arrivals via Belarus was orchestrated to “retaliate” against the EU (para. 28).
The “instrumentalisation”, as Lithuania describes it, consisted inter alia in travel agencies being authorized to issue visa invitations, the procedures for Iraqi nationals to obtain tourist visa being simplified and the requirement of a return ticket for obtaining the visa being lifted (para. 35). Two hotels in Minsk were designated to provide accommodation for migrants and there was organized transportation to the border with Lithuania. According to the submission, the support to cross the border to Lithuania was initially more passive in nature and became more organized and proactive over the months.
It must be stressed that many of the actions described by Lithuania as “instrumentalising migrants” are not unlawful as such. There is no prohibition on granting more generous visa conditions and there is no international legal obligation to obstruct (transit) migration. Bad intentions alone do not turn otherwise legal conduct illegal. One can see the regime of Lukashenko as a criminal dictatorial regime, while also noting that states are free to let people enter their territory, even if they do not intend to stay but travel onwards. With an international order that is increasingly premised on cooperative deterrence of migrants, there can be confusion as to the legality of enabling migration.
State-sponsored smuggling of migrants?
The section on facts also describes that Belarusian border guards brought migrants to the border with Lithuania, searching for the best areas to avoid being detected, using wire cutters to open the fences, and forcing migrants to cross. The submission details the violent mistreatment of migrants by Belarus if they “chose to return”.
Lithuania claims that Belarus violated Articles 10, 11, 12, 15 and 16 of the Protocol, which refer to the exchange of information between states, the border measures to prevent and detect the smuggling of migrants, the control of documents, further preventive measures against smuggling, and measures to protect and assist affected migrants. A prior question, however, is whether Belarus’ actions meet the Protocol’s definition of smuggling.
The Protocol defines the “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident”. Lithuania, in establishing the applicability of the Protocol, simply refers to the “organised smuggling of migrants through Belarus into Lithuania” (para. 57) and then turns to the conditions of Article 4 of the Protocol, the transnational nature of the offences and the involvement of an “organized criminal group”. The submission refers to the required intent to obtain a material benefit only in passing (para. 58), suggesting that the criterion serves to exclude humanitarian activities or help for family members from the application of the Protocol.
However, the question is not as simple as the submission makes it seem. Smuggling is an offense linked to the exploitation of migrants, typically by charging money for assisting with the illegal entry into a state. As such, smuggling is distinct, for one, from the provision of humanitarian support to people fleeing and seeking asylum, and from the trafficking of migrants, their displacement against their will. The material benefit necessary for smuggling is usually received from the migrants or people acting on their behalf. It is not defined in the Protocol, what “material benefit” includes. The travaux preparatoires indicate that the term corresponds to earlier formulations of acting “for profit”, and that the term should be understood broadly.
In the Belarusian case, the activities originate from the top level of government, and the benefit sought from those actors is mainly political. Instrumentalisation refers to the phenomenon of using the irregular entry of migrants as a tool to exert pressure upon other states. Because the pursued benefit is political in nature, its qualification as a “material benefit” within the meaning of the Protocol’s definition of smuggling is not self-evident. Even accepting that the notion of material benefit should be construed broadly, there needs to be at least some argumentation as to why it encompasses political benefits .
However, besides the top level of government, there are several actors involved in the activities, who clearly do benefit materially. Those working for the travel companies or hotels receive payments from the migrants. Border guards, in many cases, exploit the situation of migrants, charging “fees”. There is a strong indication that smuggling takes place. However, because these actors do not control the course of action, a certain dissonance remains. The Protocol addresses states in their obligation to criminalize and prevent the smuggling of migrants. What might be seen as state-sponsored smuggling of migrants in the Belarusian case does not easily fit into the structure of the Protocol. It is possible that the Court decides to pass over this difficulty and finds sufficient intent to obtain a material benefit, combining the various actors and aims involved. But it is likely that the applicability of the Protocol will require a more extensive discussion than the submission provides.
If the Protocol is applicable to the situation, there are good arguments that Belarus did violate the provisions in question. Article 10 of the Protocol provides that State Parties shall exchange “relevant information”, inter alia on the “identity and methods” of organized criminal groups and their typical routes. Article 11 of the Protocol demands that State Parties strengthen border controls to detect and prevent smuggling. Article 12 requires that travel or identity documents must be of such quality to prevent misuse. Article 15 foresees that State Parties engage in public information regarding the criminal nature of smuggling and cooperate in doing so. Article 16 of the Protocol calls for measures to protect the victims of smuggling. For this last provision, a violation by Belarus is evident, as it failed to protect migrants. For the other provisions, the unusual constellation of actors is obvious, with the state not just failing to prevent smuggling but actively involved in creating the conditions.
Asylum as the elephant in the case
The case Lithuania v Belarus calls on the ICJ to intervene regarding a situation that is already subject of extensive legal debate and action in other fora. Within the EU, the Belarusian conduct regarding the transit of migrants has been called a “hybrid attack” and prompted several legislative steps. The proposed “Instrumentalisation Regulation” failed to be adopted, but rules on instrumentalisation were included in the Crisis and Force Majeure Regulation as part of the reform of the Common European Asylum System. The rules foresee derogations from the general provisions regarding asylum procedures in cases of alleged instrumentalisation.
As Lithuania also details in the submission, it declared a State-level emergency on 2 July 2021 and changed its laws regarding asylum – reforms that the European Council on Refugees and Exiles (ECRE) condemned for undermining “the institution of asylum in Lithuania”. Lithuania emphasizes the challenges posed by the increased arrival of migrants and assesses the costs incurred “in relation to the migration crisis” at 200 million EUR, which includes the construction of a new border fence, elaborate surveillance systems and increased border personnel.
The European Court of Human Rights (ECtHR) is called to decide in a case regarding the treatment of migrants arriving in Lithuania via Belarus. The case C.O.C.G. and others v. Lithuania was brought before the Court in 2022, and the hearing took place before the Grand Chamber in February 2025. The case will decide whether alleged pushbacks and mistreatment through Lithuanian state officials violated migrants’ rights. In 2021, the ECtHR had already issued a preliminary measure that Lithuania during the Grand Chamber hearing admitted to not have followed sufficiently. The ECtHR proceedings imply/indicate that the border situation is not as one-sided as the ICJ submission suggests, in that migrants were often trapped between violent threats from both Belarus and Lithuania.
The elephant in Lithuania’s ICJ submission is the question of asylum access that was debated before the ECtHR at length. Lithuania suggested that the right to claim asylum remained in place, as foreseen in EU law, and that most migrants chose not to apply for asylum. This description was vehemently contradicted by the applicants before the ECtHR, who argued that asylum applications were repeatedly refused. Whether Lithuania continues to provide access to asylum does not affect the question if Belarus violated the Protocol by enabling the smuggling of migrants. Yet it does matter for a broader picture of addressing the instrumentalisation of migrants in international legal terms. Enabling the transit of migrants can lead to a significant increase in arrivals not only via smuggling and irregular border crossings but also via regular asylum applications in the form guaranteed by EU law. Even under the derogations allowed by the Crisis and Force Majeure Regulation, access to asylum cannot be entirely closed. In other words: to exercise pressure through the facilitation of migration would remain possible also without smuggling, if Lithuania respects her own legal obligations.
Conclusion
Only within a world of highly unequal mobility and severely restricted pathways to seek asylum in the wealthy states of the Global North can migrants be ‘instrumentalised.’ The EU remains formally committed to the fundamental rights of migrants, including the right to asylum and the guarantee of effective access to an asylum procedure. At the same time, it cooperates with neighboring states to restrict the arrival of migrants, including asylum-seekers. This leaves the EU and its member states vulnerable to pressure by neighboring states regarding the control of migration.
Overall, there is a good chance that Lithuania’s case against Belarus before the ICJ will be successful. Yet even if the Court finds that provisions of the Protocol against the Smuggling of Migrants have been violated, this will not fully address the legal challenge posed by the instrumentalisation of migrants: The enabling of migration is not as such unlawful, and it can lead to a significant increase in the number of asylum applications – not just of illegal entries. The violations of the Protocol are in that sense accessory to the phenomenon of instrumentalisation – and not the core of it. It will be interesting to see how these questions are debated on the stage of the courtroom and in conversation with the parallel proceedings before the ECtHR.
