The Migration Crisis on the Poland-Belarus Border: How Prejudice and Nationalism Lead to Grave Violations of International and Human Rights Law
For over a year, tensions at the Poland-Belarus border have been rising at an unprecedented rate. The resulting humanitarian crisis has inspired discussion about the legal status of refugees, shedding light on Poland’s shameful reaction to the eviction of Middle Eastern refugees by Belarus president Aleksandr Lukashenko in June of 2021. Polish authorities regularly subjected thousands of fugitives camping in the village of Usnarz Gorny without food, sanitation, and heating to water cannons or tear gas, and then, ultimately, pushed them back into Belarus. [1] Such state of affairs is dictated both by the ruling party’s - PIS- historically nationalist and Catholic agenda and by public sentiment. This anti-refugee policy is not only ethically questionable, but also legally untenable. Under several international acts, notably the European Charter of Human Rights (ECHR) and the Geneva Convention, Poland has the obligation to provide Middle Eastern refugees with temporary asylum and respect their right to apply for foreign protection.
On October 14, 2021, the lower house of the bicameral parliament passed a bill amending the Act on Granting Protection to Foreigners in the Territory of the Republic of Poland, which defines the rules, conditions, modes, and organs involved in granting protection to immigrants on Polish grounds. [2] The novel law, popularly known as the “disposal act,” legalizes migrant pushbacks, stating that all undocumented migrants caught crossing the external border will be immediately expelled from Poland and prohibited from re-entering the Schengen area for six months to three years. [3] Border guards possess the right to “leave the application for international protection unexamined,” which deprives asylum seekers a chance at sought-after safety. [4] This measure, similar to the razor-wired 186 km-long border wall completed in July, was designed to prioritize national interest and address security concerns.
These concerns regarding international safety are exploited by Polish officials to defend the country’s hostility towards refugees. The refugee crisis is believed to be orchestrated by the Belarusian president in retaliation for sanctions that the European Union (EU) imposed on his regime for falsified elections. [5] Peter Stano, the EU’s lead spokesperson for foreign affairs and security policy, went as far as claiming that Lukashenko is behaving like “a gangster” in his attempt to threaten the western world into obedience. [6] War refugees from countries such as Iraq, Afghanistan, Palestine, and Yemen are forced out of Belarus and encouraged by authorities to migrate to western Europe via Poland, Lithuania, and Latvia. [7] The crisis on the Poland-Belarus border is not a result of necessity or international safety, but rather Lukashenko’s calculated attempt to flood the EU with refugees—polarizing it in the process. Therefore, many actors in the international arena remain concerned that taking migrants in could be interpreted as a concession to Lukashenko’s will.
The provocative nature of the refugee influx does not, however, change the fact that the “disposal act” contradicts multiple international regulations, which, according to the principle of primacy of European Union law, customarily hold priority over national laws. [8] Since Poland has been part of the EU since 2004, it is obligated to respect the ECHR, including Article 4 in Protocol 4, which prohibits the “collective expulsion of aliens.” [9] The Helsinki Foundation for Human Rights defines expulsion as “the deportation of a foreigner present in the territory of a given country [and] the refusal to allow him or her to enter that territory.” [10] Therefore, by preventing Belarusian migrants from crossing its border, Poland repeatedly “expels aliens” and is in violation of Article 4. The country’s reaction to the migration crisis shows blatant disregard for key tenets of international law.
This is not the first time Poland has groundlessly expelled refugees from the border and violated their rights. In the case of M.K. and Others v. Poland (2020), the European Court of Justice unanimously ruled in favor of Russian nationals who, despite explaining that they would “face torture [and] other forms of inhuman treatment” in native Chechnya, were not allowed to lodge asylum applications and were repeatedly refused entry to Polish Terespol. [11] The Court held that Article 4 of Protocol 4 had been violated and classified the wrongdoing as a collective expulsion of aliens. Although Poland argued that the migrants “had not expressed a wish to lodge asylum applications,” evidence disproved this claim and revealed that there were no lawyers available, interviews were too brief, and the resulting rulings failed to address individual arguments of the petitioners. [12] In the published verdict, the Court classified this case as an “exemplification of a wider state policy of refusing entry to foreigners coming from Belarus,” corroborating suspicions that Polish immigration policies are motivated by ethnic and religious homogeneity. [13] The decision set precedent for events in which applicants are collectively exiled “without reasonable and objective examination” of factors motivating them to seek entry and is, therefore, applicable to the politicized pushback on the Poland-Belarus border. [14] Similar to M.K. and others, thousands of migrants currently applying for refugee status in Poland are being ignored in their well-reasoned pleas for safety.
Polish state officials have attempted to exempt themselves from EU human rights obligations by arguing that asylum seekers are not yet on Polish soil. The opening to the ECHR dictates that contracting parties are required to grant rights and freedoms of the convention to “everyone within their jurisdiction,” but it fails to define the premises of a jurisdiction. [15] The European Court of Human Rights’ judgment over Hirsi Jamaa and Others v. Italy (2012) offers a useful interpretation of what a jurisdiction entails for immigrants and refugees territorially. [16] In Hirsi Jamaa, a group of Somali and Eritrean immigrants were not on the Italian coast when their vessel was intercepted by the Coastguard and Guardia di Finanza [Financial Guard] and redirected back to Libya. However, the Court found Italy guilty of collective expulsion of aliens. [17] The ruling asserted that by exercising control over migrants, border guards both affected their legal situation and exerted jurisdiction over them. Analogously, it may be inferred that when Poland exercises extraterritorial jurisdiction over migrants on its external borders, they must respect the liberties they are guaranteed by the ECHR.
The question that naturally arises concerns the ratio legis, “the reason,” behind Article 4 of the Charter. The prohibition of expulsion is driven by the principle of non-refoulement, a core idea in international law that ensures no one is forced to return to a location posing a threat to their safety, physical well-being, or dignity. [18] This concept is also central to the Geneva Convention of 1951. Article 31 of the Geneva Convention protects undocumented refugees from penalization as long as they satisfy the conditions of “directness,” “promptness,” and “good cause.” [19] Since they are not entering Poland for personal gain but are rather attempting to distance themselves from an oppressive regime, Belarusian migrants fit this description. Amnesty International, in cooperation with the humanitarian movement Grupa Granica [Border Group], reported that those forced back to Belarus are met with police brutality and often placed in detention centers isolated from the outside world. [20] Since Polish authorities are aware that Belarusian border control will beat, steal from, and threaten to return Middle-Easterners, they are formally obligated to provide migrants with applications for international protection and temporary accommodation.
Yet with pro-refugee volunteers being harassed with lawsuits for their involvement, and journalists banned from reporting in the area, it has become clear that authorities are actively attempting to limit the public’s knowledge about the dangers faced by refugees both on the Poland-Belarus border and outside of it. For instance, Weronika Klemba, a 21-year-old student, was groundlessly accused of smuggling immigrants into Poland and threatened with 8 years in prison after she was caught transporting clothes and medicine for those stuck on the border. [21] Poland not only failed to accommodate war refugees through national policy and jurisdiction, but it is also desperate to prevent citizens from doing so on their own prerogative.
By violently pushing asylum seekers back into Belarus, Poland is violating international conventions and abusing refugee rights. Figuratively and literally trapped between autocratic Belarus and prejudiced Poland, migrants have become pawns in a game of barbarism and lawlessness. These facts are especially relevant now, in the context of the highly-publicized discussion surrounding Poland’s solidarity with Ukraine. With hundreds of thousands Polish families opening their houses to Ukrainians fleeing Russian invasion, the country has been celebrated internationally for the scale and scope in its grassroots movement. But the fact that this warm welcome has not been extended to Middle Easterners exposes Polish institutional racism and hypocrisy. It is high time we questioned why some are greeted with open arms and others with barbed wire.
Edited by Sierra Luz Romero
Sources:
[1] Andrew Roth and Lorenzo Tondo, “Polish police fire teargas at people trying to cross from Belarus,” The Guardian, November 16, 2021, https://www.theguardian.com/world/2021/nov/16/polish-belarus-border-police-teargas-please.
[2] Ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej, Dzial I, Art.1, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20031281176/U/D20031176Lj.pdf.
[3] Ustawa z dnia 14 pazdziernika 2021 r. o zmianie ustawy o cudzoziemcach oraz niektorych innych ustaw, Art. 1, https://orka.sejm.gov.pl/opinie9.nsf/nazwa/1507_u/$file/1507_u.pdf.
[4] Ustawa z dnia 14 pazdziernika 2021 r. o zmianie ustawy o cudzoziemcach oraz niektorych innych ustaw, Art. 3, https://orka.sejm.gov.pl/opinie9.nsf/nazwa/1507_u/$file/1507_u.pdf.
[5] Christina Hebel and Christoph Reuter, “Lukashenko's Revenge: How Belarus Is Funneling Refugees into the EU,” Der Spiegel, August 17, 2021, https://www.spiegel.de/international/europe/lukashenko-s-revenge-how-belarus-is-funneling-refugees-into-the-eu-a-a3151fc2-9b3b-4812-a63a-298ea26f55b0.
[6] Alexandra Brzozowski, “EU Accuses Lukashenko of ‘Gangster-style’ Approach,” Euractiv, November 9, 2021, https://www.euractiv.com/section/europe-s-east/news/eu-accuses-lukashenko-of-gangster-style-approach/.
[7] Hebel and Reuter, “Lukashenko's Revenge.”
[8] “Primacy of EU law (precedence, supremacy),” EUR-Lex, https://eur-lex.europa.eu/EN/legal-content/glossary/primacy-of-eu-law-precedence-supremacy.html#:~:text=The%20principle%20of%20the%20primacy.
[9] European Convention on Human Rights, Protocol No. 4, Art.4, https://www.echr.coe.int/documents/convention_eng.pdf.
[10] Helsinska Fundacja Praw Czlowieka, “Po stronie prawa. Analiza sytuacji na granicy polsko-bialoruskiej,” https://hfhr.pl/po-stronie-prawa-analiza-sytuacji-na-granicy-polsko-bialoruskiej/.
[11] M.K. and Others v. Poland, 40503/17, (ECHR July 2020), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-12916%22.
[12] M.K. and Others v. Poland, 40503/17, (ECHR July 2020), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-12916%22.
[13] M.K. and Others v. Poland, 40503/17, (ECHR July 2020), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-12916%22.
[14] M.K. and Others v. Poland, 40503/17, (ECHR July 2020), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-12916%22.
[15] European Convention on Human Rights, Art.1, https://www.echr.coe.int/documents/convention_eng.pdf.
[16] Hirsi Jamaa and Others v. Italy, 27765/09, (ECHR February 2012), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-102%22.
[17] The Guardia di Finanza is an Italian law enforcement agency cooperating with the Ministry of Economy and Finance in fighting financial and trade crime. Hirsi Jamaa and Others v. Italy, 27765/09, (ECHR February 2012), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-102%22.
[18] The 1951 Convention Relating to the Status of Refugees, Art. 33, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.23_convention%20refugees.pdf.
[19] The 1951 Convention Relating to the Status of Refugees, Art. 31, point 1, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.23_convention%20refugees.pdf.
[20] “Witamy w Guantanamo. Okrutne traktowanie na granicy polsko-bialoruskiej i w osrodkach dla cudzoziemcow,” Amnesty International, April 11, 2022, https://amnesty.org.pl/okrutne-traktowanie-na-granicy-polsko-bialoruskiej-i-w-osrodkach-dla-cudzoziemcow/.
[21] Katy Fallon, “Smugglers or saviours? Poland’s divided stance on aiding refugees,” The Guardian, April 15, 2022, https://www.theguardian.com/global-development/2022/apr/15/smugglers-or-saviours-poland-divided-stance-on-aiding-refugees-ukraine-belarus.