49Public International Law in the Times of New Challenges and a New Types of Conicts
Aleksandra Nowak
The University of Warmia and Mazury
in Olsztyn
nowak.aleksandra@interia.pl
ORCID: 0000-0002-2709-0355
Weronika Libuda
The University of Warmia and Mazury
in Olsztyn
weronika.libuda@gmail.com
ORCID: 0009-0001-2243-8017
PUBLIC INTERNATIONAL LAW IN THE TIMES OF NEW
CHALLENGES AND A NEW TYPES OF CONFLICT
MIĘDZYNARODOWE PRAWO PUBLICZNE W DOBIE
NOWYCH WYZWAŃ I NOWEGO TYPU KONFLIKTÓW
Abstract: There is no legal denition of a hybrid war in international public law, but what
is happening on the Polish border with Belarus can be called a new type of border conict.
The situation on the Polish, Lithuanian and Latvian borders is evolving in a dangerous direc-
tion for the security of these countries and the security of the European Union, but it is also
a humanitarian crisis. Public international law contains norms which give guidance on what steps
should be taken. However, the development of the situation depends on the decisions of the coun-
tries involved in this border conict. This conict on the eastern border of the European Union
has many aspects. This paper will provide an overview and explanation of the most important of
them. Provisions of public international law and Polish national solutions related to migration
and resolving such conict situations are also discussed. This conict is shown in a broader
perspective of other hybrid actions used by Russia.
Zarys treści: W prawie międzynarodowym publicznym nie ma legalnej denicji wojny hybry-
dowej, ale to, co dzieje się na granicy Polski z Białorusią, można nazwać nowym typem konf-
liktu granicznego. Sytuacja na granicy Polski, Litwy i Łotwy ewoluuje w niebezpiecznym ki-
erunku dla bezpieczeństwa tych krajów i bezpieczeństwa Unii Europejskiej, ale jest to również
kryzys humanitarny. Prawo międzynarodowe publiczne zawiera normy, które dają wskazówki,
jakie kroki należy podjąć. Jednak rozwój sytuacji zależy od decyzji państw zaangażowanych
w ten konikt graniczny. Konikt na wschodniej granicy Unii Europejskiej ma wiele aspektów.
Niniejszy artykuł zawiera przegląd najważniejszych z nich. W artykule omówiono przepisy
prawa międzynarodowego publicznego, prawa Unii Europejskiej oraz polskie rozwiązania
krajowe związane z kryzysem migracyjnym. Konikt ten pokazano w szerszej perspektywie
innych działań hybrydowych stosowanych przez Rosję.
49
49gl;;
Nr 7 ss. 49–58 2022
ISSN 2543–7321 Przyjęto: 04.10.2022
© Instytut Bezpieczeństwa i Zarządzania, Akademia Pomorska w Słupsku Zaakceptowano: 04.10.2022
Oryginalna praca badawcza DOI: 10.34858/SNB.7.2022.004
STUDIA NAD BEZPIECZEŃSTWEM
50 Aleksandra Nowak, Weronika Libuda
Keywords: international law, hybrid conicts, aggression, internal and external security
Słowa kluczowe: prawo międzynarodowe, konikty hybrydowe, agresja, bezpieczeństwo
wewnętrzne i zewnętrzne
Overview of the situation on the border with Belarus in 2021 and 2022
Before 24 February 2022, we could not imagine the situation that is currently
taking place in Ukraine. The war has changed our reality and will have a huge impact
not only on Europe but also on the world for many years to come.
However, in 2021 our attention was focused on a new type of conict which began
in autumn on the eastern border of Poland. This phenomenon, although on a smaller
scale, is also observed today. Though the issue of the Polish-Belarusian border has
disappeared from the media, Polish ocers detain dozens of people who want to cross
the border every day. Most of the migrants/refugees come from various countries
in Asia, i.e. from Afghanistan, from the Middle East countries and from Africa.
Refugees are people eeing war or persecution. They are dened and protected by inter-
national law, such as the 1951 Geneva Convention Relating to the Status of Refugees,
its 1967 Protocol and the 1969 Organization of African Unity Refugee Convention,
and many other regulations at the international, regional or national level. A funda-
mental principle in international law is that refugees may not be expelled or returned
to places where their life or freedom would be endangered. They must also have
access to an objective and ecient asylum procedure. These are the duties of the au-
thorities of individual states. Migrants are those who decide to leave their country not
because of the immediate threat of death or persecution, but to improve their quality
of life by nding a better job, school or joining family members. Migrants can safely
return to their homes, whereas refugees cannot.
The regimes of Russia and Belarus organize the bringing of people from various
countries to the eastern external border of the European Union. First, they arrange
the travel of people to Belarus, and then the Belarusian authorities organize the ex-
pulsion of migrants to the border of Poland, Lithuania or Latvia. Migrants / refugees
are encouraged by the prospect of easily crossing the border. They are not prepared
for survival in the forest and for the conditions prevailing in the forest where they
spend many days without food or water in bad weather conditions. They are forced
out by the Belarusian authorities without the possibility of crossing the EU border.
Winter, for obvious reasons, reduces the number of migrants/refugees who want to
cross the border in this way, but the situation continues and there is still a lack of
cooperation between NGO activists and state services working on the border (Bor-
der Guards, the Polish Army and the Police). For example, from information pub-
lished by the NGO “Salvation Foundation” we have learned about the situation of
a 16-year-old boy from Yemen, who was allegedly lying unconscious on the Belaru-
sian side of the border for two days. “He was beaten by the Belarusian services, his
condition was getting worse. Doctors who managed to video connect with his group
51Public International Law in the Times of New Challenges and a New Types of Conicts
estimated that the boy must be hospitalized immediately, otherwise he might die.
There are 4 adults in the group and 4 children (Yemeni citizens)”.1 Later, in another
publication, we learned that Polish soldiers did not help the boy and his group,
they did not even give them the water they asked for. We have heard a lot of simi-
lar stories, or even worse, about the so-called pushback, i.e. expelling migrants
(adults and children) back to the forest to the border with Belarus. Due to the small-
er scale of the problem and the war in the Ukraine, this problem has now become
less visible. The Border Guard has reported attacks by Belarusian authorities. For
instance, in the area of Czeremcha in Podlasie, Belarusian soldiers attacked Polish
ocers. As a result of the incident, two people were injured: a Border Guard ocer
and a soldier. A Border Guard vehicle was also damaged.2 However, this kind of
information is of secondary importance now.
It was very dicult to assess the situation with migrants and refugees because
the actions of the Polish authorities were not transparent. The Polish authorities did
not want to allow Frontex to become involved in regulating this situation, and at
the time of greatest pressure, the Polish authorities made unfortunate statements about
banning journalists from entering the border area. Former Deputy Minister of Foreign
Aairs, Piotr Wawrzyk, a deputy from the ruling Law and Justice party in Poland, said
that the journalists may go to Belarus and report situation from there. Moreover, it was
said the ban on journalists staying in the border zone was for their safety. This cannot
be taken seriously because journalists work in more dangerous places, even where
active hostilities are taking place.3
In addition, from the beginning of the crisis at the border to the present day
the legal situation at the border has been changing signicantly. The ban on staying
in 183 localities near the border with Belarus, eective from 1 December 2021, was
extended until 30 June 2022. As the Polish Constitution did not allow for another
extension of the state of emergency, the government amended The Border Protec-
tion Act, which made it possible to introduce a temporary ban on staying in the bor-
der area. The ordinance of the Minister of the Interior and Administration conrmed
the existing restrictions in this area, and the appendix contained a list of the zones
that was subject to the ban. The list included 115 localities in the Podlaski Region
and 68 in the Lubelski Region. Then, on 1 July 2022, a ban was introduced on ap-
proaching the Polish-Belarusian border in the Podlasie region at a distance of less
than two hundred metres, rst valid until 15 September, then extended until 30 No-
vember and nally until the end of 2022. This ban replaced wider restrictions related to
1 Grupa Granica: Nieprzytomny nastolatek leży od dwóch dni pod granicą, po stronie Białorusi,
https://wiadomosci.gazeta.pl/wiadomosci/7,114883,28332360,grupa-granica-nieprzytomny-
-nastolatek-lezy-od-dwoch-dni-pod.html, [accessed: 08.12.2021].
2 Białoruskie służby zaatakowały polskich funkcjonariuszy Straży Granicznej, https://www.
msn.com/pl-pl/wiadomosci/polska/bia%C5%82oruskies%C5%82u%C5%BCby-zaatakowa
%C5%82y-polskich-funkcjonariuszy-stra%C5%BCy-granicznej/ar-AAW4JW0?li=BBr5KbO,
[accessed: 13.07.2022].
3 Wiceszef MSZ: Polscy dziennikarze mogą jechać na Białoruś i stamtąd relacjonować kryzys
na granicy, https://www.rp.pl/polityka/art19087821-wiceszef-msz-polscy-dziennikarze-moga-
-jechac-na-bialorus-i-stamtad-relacjonowac-kryzys-na-granicy, [accessed: 15.08.2022].
52 Aleksandra Nowak, Weronika Libuda
the migration crisis on the border with Belarus. Regulations on the border road strip
have been in force since 2023.4
The government claims these regulations are to ensure the eectiveness of actions
taken by the Border Guard. However, this was nothing more than a state of emer-
gency introduced by other means. Moreover, this was a permanent state of emergency,
which signicantly limited the possibility of movement on the territory of Poland,
not only limited to migrants. Exceptions to these regulations applied, for example, to
people who permanently reside in the indicated area. The introduced prohibition was
marked with boards with the words: “Area prohibited from entering – entry prohibited.”
The provisions stipulated that, in justied cases, the locally competent commander
of the Border Guard unit could allow other persons, in particular journalists within
the meaning of the Press Law, to stay in the prohibited area for a specied period
and on certain terms.
The amendment to the ordinance of the Minister of Interior and Administration
extended the competences of the Border Guard ocers. They were allowed to use
chemical paralysing agents, including handheld and knapsack gas throwers and tear-
gas grenades. So instead of using legal methods to solve the situation the state was
preparing for forceful solutions. This situation may seem even more surprising be-
cause some of these migrants/refugees did not want to stay in Poland. Some already
had their own families in Western Europe, and not all of them would be covered
by international protection and so would be sent back to their country of origin.
Therefore, long-standing procedures should be used. These people should be admitted
to refugee centres where their requests will be considered and where they could await
for decisions, rather than being pushed across the border and wandering in the forest.
The Polish Ombudsman has made critical comments regarding the response
of the Polish authorities to the humanitarian crisis on the Polish-Belarusian border.
Particularly critical remarks concerned the regulations introduced into the Polish
legal system which established previously unknown procedures in Poland and in
public international law for returning foreigners to the border or the issuing of or-
ders by the Border Guard to leave the territory of the Republic of Poland in this
specic way. Both these procedures the Polish Ombudsman considered contrary to
the provisions of the Geneva Convention on the Status of Refugees, the EU Charter
of Fundamental Rights, the European Convention for the Protection of Human Rights
and Fundamental Freedoms, and Polish Constitution. All these acts of law prohibit
the collective expulsion of foreigners. Neither of these procedures guarantees the right
of every foreigner to submit an application for international protection. Moreover,
it is not possible to analyse the individual facts of a situation of a foreigner, including,
for example, an analysis of the risk of violation of his right to life or freedom, as well
as freedom from torture and inhuman treatment. Foreigners are still being returned
to the border and forced to enter the territory of Belarus, despite the war in Ukraine
4 Fiłończuk, R., Zakaz zbliżania się do granicy polsko-białoruskiej na 200 metrów nie będzie
przedłużony, https://www.gazetaprawna.pl/wiadomosci/kraj/artykuly/8621162,bialorus-zakaz-
-zblizania-sie-do-granicy.html, [accessed: 01.10.2022].
53Public International Law in the Times of New Challenges and a New Types of Conicts
and the active involvement of Belarus on the side of the aggressor. The Ombudsman
has asked for an immediate suspension of the use of pushback, and then for steps to
be taken to eliminate these procedures from the Polish legal system.5
Every person who wishes to apply for international protection at the border should
be admitted to Poland, and Border Guard ocers are required to provide an appropri-
ate application form to them. Otherwise, the provisions of the Convention relating
to the Status of Refugees, 28 July1951, cannot be fullled. The Convention obliges
states/parties to ensure fundamental rights and freedoms to people who are seek-
ing protection from persecution in their home country. In 2020, the European Court
of Human Rights issued a judgment in the case of M.K. and others v. Poland (applica-
tions no. 40503/17, 42902/17 and 43643/17). It was a complaint by Russian citizens
of Chechen origin regarding the lack of access to the refugee procedure at the Terespol
(Poland) border.
The European Court of Human Rights found that Poland had committed human
rights violations – decisions in the applicants’ cases had been taken without consid-
eration of their individual circumstances. They were part of a broader policy of not
accepting applications for international protection from people arriving at the Polish-
-Belarusian border and returning them to Belarus in violation of domestic and inter-
national law. This policy constituted the collective expulsion of foreigners.6 Despite
this judgment, such decisions are still common practice today.
The activities of Belarus and Russia in this regard are a part of a destabiliza-
tion policy towards Poland and the European Union. Therefore, it can be predicted
with high probability that this humanitarian crisis will be prolonged by Russia
and Belarus for a long time. We can no longer count on any diplomatic cooperation
with Russia and Belarus. Eorts, therefore, need to be stepped up in the migrants’
countries of origin. EU diplomacy must act and inform people and persuade them that
illegally crossing the EU border is impossible. When they are at the border, it is too
late. More often than not, migrants have travel related debts and nothing to go back to.
No service in the world can cope with thousands of desperate people, so problems must
be dealt with in their countries of origin, and not at the border where they will be trapped.
So far many people have died in the forests at the border, on both the Polish
and Belarusian sides, because of cold and exhaustion. This should not have happened
in the 21st century in the centre of Europe.
Currently, there is a physical barrier on the Polish-Belarusian border. It is a 5.5 m
high fence made of steel spans and it is 186 km long. The border is also protected
by an electronic barrier. It protects a longer distance, including part of the border
waters. The 206 km electronic barrier is equipped with 3,000 day-night and thermal
cameras, as well as 400 km of detection cables and 11 telecommunications containers.
5 Wstrzymać stosowanie pushbacków i wydawanie postanowień o opuszczeniu terytorium RP
na granicy polsko-białoruskiej. RPO pisze do MSWiA, https://bip.brpo.gov.pl/pl/content/RPO-
wstrzymac-stosowanie-push-backow-granica-bialorus, [accessed: 10.09.2022].
6 Ograniczony dostęp migrantów do procedury uchodźczej w Polsce. Informacje RPO dla Spe-
cjalnego Sprawozdawcy ONZ, https://bip.brpo.gov.pl/pl/content/ograniczony-dostep-migran-
tow-do-procedury-uchodzczej-informacje-rpo-dla-sprawozdawcy-onz, [accessed: 10.09.2022].
54 Aleksandra Nowak, Weronika Libuda
However, the problem of illegal migration on the Polish-Belarusian border has still
not been solved. Alexander Lukashenko’s regime continues to bring migrants from
the Middle East to send them to the border with Poland. The humanitarian crisis at
the border is not over and, with another winter coming, it could again take on a very
dramatic scenario.7
The essence of hybrid conicts
The situation described above, the border conict on the eastern border of the Eu-
ropean Union, may be classied as a hybrid conict. In international law there is no
legal denition of a hybrid conict or a hybrid war, it is rather a journalistic, popular-
scientic concept which has certain characteristic features. The concept itself is quite
new but, from the earliest times, certain elements characteristic of hybrid conicts
have been present in historical conicts and wars. This concept is becoming more and
more popular nowadays and it is used in many dierent situations.
There are a number of hybrid conict denitions under debate. Col. Gian Gen-
tile of the U.S. Military Academy posed a number of unique insights into the debate
about future threats in essay in which hybrid warfare was labelled “vague.” In another
monograph out of the Army War College, the hybrid threat concept was simply trun-
cated to blurring of regular and irregular warfare. Neither author found the construct
clear or of much value.
Nathan Freier of the Center for Strategic and International Studies was one of
the originators of the hybrid warfare construct. According to his denition, hybrid
threats are represented by the now famous “quad chart” of four threats – traditional,
irregular, catastrophic terrorism and disruptive – that exploit revolutionary technology
to negate military superiority. This strategy noted that in the future the most complex
threats would be combinations of these four. Freier’s version denes a hybrid threat
as any actor who uses two of the four modes of conict.
Frank G. Homan modies the denitions used by the military. This denition
is adapted from the national defence strategy and focuses on the adversary’s modes
of conict. It explicitly eliminates “disruptive technology” and incorporates “disrupt-
ive social behaviour” or criminality as the fourth modality.8
Therefore, using many dierent sources, it can be assumed that hybrid conicts are:
–a modern version of guerrilla warfare;
– a combination of four types of aggression: traditional, irregular, terrorist
and cybernetic;
– a type of asymmetric conict, including military operations, irregular warfare
and propaganda;
7 „Płot” na granicy z Białorusią ukończony. Ostatni odcinek przechodzi odbiór, https://www.
money.pl/gospodarka/plot-na-granicy-z-bialorusia-ostatecznie-ukonczony-ostatni-odcinek-
-przechodzi-odbior-6904368464075648a.html, [accessed: 04.07.2022].
8 Homan, F.G., Hybrid vs. compound war, Armed Forces Journal, http://armedforcesjournal.
com/hybrid-vs-compound-war/, [accessed: 10.07.2022].
55Public International Law in the Times of New Challenges and a New Types of Conicts
– a combination of elements of traditional warfare, irregular war, civil war, arti-
cially induced insurrection and terrorism and criminal behaviour for political
gain.
It should be added here, based on the latest experience, that actions seemin-
gly uno.elated to a serious interstate conict can also seriously destabilize society
and the state, threaten economic development and seriously disturb public order.
Activities such as: spreading disinformation, conspiracy theories about, for exam-
ple, a global conspiracy or using vaccines to cause depopulation around the world,
using propaganda, manipulating the results of political elections in various countries
and, of course, causing migration crises, can also be classied as hybrid activities.
These do not have a military character, but they contribute to the serious destabilization
of the politics and economies of countries. They have a similar eect to a terrorist
threat, causing fear and panic in societies.
Conicts Below the Threshold of Armed Conict
As long as actions do not exceed the threshold of armed conict, in principle,
actions are legal according to international law, even if they are hostile. In such
conicts, the following may be noticeable: hostile destabilizing actions, triggering
a migration crisis, simulated shots, intense disinformation, cyberattacks, inltra-
tion, hostile propaganda, manipulation – nowadays with the use of mass media and
the Internet, exerting an unnoticed psychological inuence on society, causing targe-
ted hostility, nancing of political parties, politicians and organizations, which builds
political inuence and support, and even foreign electoral intervention. In these situ-
ations, migrants/refugees are treated instrumentally and it is irrelevant how bad their
situation is. In order to manipulate one’s own society, lies and dehumanizing termino-
logy are used. Only political goals count. Over time, the probability of an escalatory
action increases, both by the side which started hostile actions and also by the side
under attack.
From the beginning, this border conict has had many aspects which we did
not appreciate before – it was the beginning of the execution of a bigger plan and it
foreshadowed something much worse – the war that Russia started six months later.
The border situation can be summarized thus: apart from the obvious goal of destabi-
lizing the European Union states, other important goals were: analysis of reaction of
states, analysis of cooperation within the European Union, assessments of the reactions
media of individual societies and nally, creating an atmosphere of hostility towards
refugees. This was potentially supposed to create hostility towards future Ukrainian
refugees and, in a broader context, was a Russian attempt to create a new world order
and to establish new zones of Russian inuence on the European continent.
56 Aleksandra Nowak, Weronika Libuda
Hybrid warfare
Hybrid warfare is a theory of military strategy, rst proposed by the already men-
tioned Frank G. Homan,9 which employs political warfare and blends conventional
warfare, irregular warfare, and cyberwarfare with other inuencing methods, such
as fake news, enemy propaganda, diplomacy, inuencing society and foreign electoral
intervention.
“To put it simply, hybrid warfare entails an interplay or fusion of conventional as
well as unconventional instruments of power and tools of subversion. These instru-
ments or tools are blended in a synchronised manner to exploit the vulnerabilities
of an antagonist and achieve synergistic eects. The objective of conating kinetic
tools and non-kinetic tactics is to inict damage on a belligerent state in an optimal
manner. Furthermore, there are two distinct cha-racteristics of hybrid warfare. First,
the line between war and peace time is rendered obscure. This means that it is hard to
identify or discern the war threshold. War becomes elusive as it becomes dicult to
operationalise it”.10 It is dicult for a regular army to respond adequately to this type
of hostile action.
In July 2014, the North Atlantic Treaty Organization ocially announced that
the war in southeastern Ukraine (annexation of Crimea by Russia and war in Donbas)
was a hybrid war. This was carried out by using armed force (Russian soldiers without
insignia, the so-called green men). In the war in Donbas there were also no clashes
between regular army units. It was an armed conict between pro-Russian separatists
from eastern Ukraine, with the Russian Federation supporting them, and forces loyal
to the legal authorities of Ukraine. In addition to military operations, terrorist attacks
were carried out, such as the shooting down of a Malaysia Airlines passenger plane
or the imprisonment of OSCE representatives.
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Summary
It is a new version of the old Machiavellian concept that the end justies the means.
This is particularly painful for Europe now when the war in Ukraine has become regular
and extremely cruel. The Kremlin’s earlier actions, such as the militarization of social me-
dia, propaganda, hostility towards Ukraine, repeating lies about alleged Ukrainian Nazis,
ene-my propaganda against the European Union, rewarding and supporting useful politicians,
and then the occupation of Crimea and the war in Donbas – referred to as a hybrid war – all
these activities prepared the ground for the present war. Putin dreams of a new world order.
An old man with a mania for grandeur and the belief that he can subjugate Europe will use
every opportunity to achieve his goals. Using a hybrid conict strategy is very eective
in this pursuit.
How eective these activities were can be proved by, for example, the support for Putin’s
policy by some European politicians, a high level of support for the war in Russian society
and the minds of a large part of the younger generation of Russians hypnotized by propaganda.
The opinion of a young Russian is an anecdote: they prefer to live in Russia and not
Switzerland because Switzerland is such a small country. Russia is indeed a very large country.
However, instead of dreaming of an empire, young people should care about the country’s
economic development. Russia has a lot to do in this area.
It turns out propaganda is a very eective weapon in a hybrid conict and it is not regu-
lated by international law. Public international law reacts quite slowly to changing situations.
As there is no international legislator, agreements are created by arrangements between states.
58 Aleksandra Nowak, Weronika Libuda
The long ratication procedures make the process even longer. On the other hand, the inter-
national community can respond quite quickly to threats by creating strategies and structures
for cooperation. A good example relating to hybrid threats is the cooperation between the EU
and NATO within Hybrid CoE. Because the speed, scale and intensity of hybrid threats have in-
creased in recent years, being prepared to prevent, deter, counter and respond to hybrid attacks,
whether by state or non-state actors, is also a top priority for NATO. The loyal cooperation
of states is the best answer to the hybrid threats posed by contemporary authoritarian regimes.
The situation on the eastern border of the European Union also requires a similar ap-
proach. The basis for actions towards Russia and Belarus should be joint actions of border
states and assistance from the European Union.
