In recent months, thousands of migrants and refugees have been stuck in a desperate limbo by the Belarus-Poland border, denied entry into the European Union (EU). Cases of brutal violence and pushbacks of migrants and asylum-seekers have been reported in the area conducted by Belarusian and Polish border authorities. The treatment of migrants and refugees at the EU’s external borders sheds light on the increasing migration crisis narrative where refugees are no longer seen as vulnerable people, but tools of warfare.
Struck by EU-imposed sanctions in May 2021, the Belarusian authorities began cooperating with local travel agents to facilitate travels for residents in the Middle East wanting to reach the EU. People travelling from the region were further guaranteed tourist visas by the travel agents, falsely assured a safe entry into the EU from Belarus.[1] Consequently, the number of flights started increasing from countries such as Turkey, Syria, Iraq and Jordan. Once arrived in Belarus, migrants were equipped with wire cutters and axes to access the border fences and enter EU territory.[2]
Three EU member states – Poland, Lithuania and Latvia – accused Belarus of deliberately causing a migrant crisis by illegally encouraging people into EU territory. The increase of migrants and refugees into EU territory has been referred to as “hybrid warfare” manufactured by the Belarusian President, Alexander Lukashenko. The instrumentalisation of migration where migrants are used to obtain concessions or achieve political, military and/or economic objectives is not to be viewed as a new phenomenon. Back in 2020, Turkey threatened to ‘open the gates’ to Europe as a way to put political pressure on the EU.[3]
In September, Poland declared a state of emergency in a 3-kilometre-wide stripe along their border with Belarus. Razor wire fences were constructed hindering people from crossing into Poland as well as preventing journalists and other civilians from operating in the area. Further actions were taken by the month of October as the Polish Parliament approved an amendment to the Act of Foreigners.[4] The amendment introduced a provision allowing for a person apprehended after an illegal border crossing into Poland to be ordered to leave the territory. By October the Polish authorities reported more than 15.000 attempts to cross the border illegally since early August.[5] Thus, in response to the increase of border crossing attempts into EU territory by the Belarusian-Polish border, Poland sent thousands of troops and police to protect its border.
Through reports from human rights organisations, migrants and asylum-seekers have testified to serious abuses from Polish and Belarusian border authorities.[6] People who successfully reached Polish territory were pushed back to Belarus by Polish authorities. As a result, people returning to the Belarusian side were then again violently forced back to cross into Poland by Belarusian border guards. The treatment of migrants and refugees by the Belarus-Poland border has thus been described as a dangerous game of human ping-pong.[7]
Those who still made it across to Poland were often in dire conditions. Due to the state of emergency, migrants and refugees were deprived of medical and humanitarian assistance as aid organisations could not enter into the restricted area. People interviewed by Human Rights Watch affirmed that Polish border guards failed to abide formal asylum procedures and ignored pleas for protection by people entering the area.[8] This has been seen as a result of the actions taken by the Polish Parliament in October, described as an amendment de facto legalising pushbacks as applications for international protection can be disregarded after an illegal border crossing.
“Pushback” is not to be understood as a legal term, but rather as a political term used to describe practises by states when a person trying to cross an international border, or have crossed one, and are sent back without processing their asylum claims.[9] The term should further be examined in the context of the recent years of EU’s migration policy characterised by strict border controls and an externalisation of migration management through third countries. The external border protection is viewed by the EU as a way to ensure freedom of movement within the Schengen area and to uphold efficient monitoring of people crossing both the external Schengen borders and the EU’s external borders with third countries.[10] Since the “refugee crisis” of 2015 with more than one million refugees entering Europe, EU member states have adopted various measures to hinder the flow of migrants entering by its external borders. According to an analysis by the Guardian, the EU countries have used illegal measures to push back more than 40.000 asylum seekers from their borders during the Covid-19 pandemic.[11]
The European Court of Human Rights (ECtHR) has condemned pushback practises as collective expulsions based on Article 4 of Protocol No 4 to the European Convention on Human Rights (ECHR). This should be understood as ‘any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group’.[12] The ECtHR condemned Italy in Hirsi Jamaa and others v Italy as 24 Somali and Eritrean migrants travelling from Libya had been intercepted at sea by the Italian authorities and sent back to Libya.[13] The Court stated that the applicants had been ‘under the continuous and exclusive de jure and de facto control of the Italian authorities’. Consequently, it was a breach of the prohibition on collective expulsions under Article 4 of Protocol No 4 to the Convention.
The ability to control the entry and continued presence of nonnationals on a state’s territory is viewed as a general rule for a sovereign state. Nonetheless, the obligations deriving from international humanitarian law and international human rights law must be respected. Notably, the prohibition of refoulement enshrined in the 1951 Refugee Convention cannot be overruled. It guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. The principle of non-refoulement is of specific importance to asylum-seekers. Considering the fact that such persons may be refugees, it is an established principle of international refugee law that they should not be returned or expelled pending a final determination of their status. However, the scope has been expanded by Article 3 of the Convention on Torture. The article prohibits state parties to ‘expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. Further, the Article 3 of the ECHR applies to expulsion cases if the use of violence during a pushback amounts to ill-treatment.
Accordingly, the pushback practises of migrants and asylum-seekers crossing into Polish territory must therefore be seen as a violation of international law as people are banned from seeking protection in the EU member state. Despite the obvious knowledge of mistreatment of the people on the other side of the border, Poland decided to turn them back to Belarusian territory.
In order to put the last months events into context one should closely study the growing trend of securitisation of migration. The phenomenon can be described as a way to turn migration into a security issue by using narratives of threat and danger to justify extraordinary measures.[14] During these past months EU member states, such as Poland, have participated in fuelling the migration crisis narrative by redefining refugees as ’military tools‘. This narrative and the intensified rhetoric is highly problematic as it leads to “a warped framing of a non-traditional security issue as a military threat”.[15] Consequently, as migrants are portrayed as a threat to national security and the sovereign borders of a state, states are enabled to motivate and justify measures that respond to these. This is indeed a worrisome development in the field of upholding fundamental rights within the EU.
Erika Hellerström, law student
[1] Belarus border crisis: How are migrants getting there? https://www.bbc.com/news/59233244, November 26, 2021 (accessed January 23, 2022).
[2] Jane Arraf & Elian Peltier, Migrants Say Belarusians Took Them to E.U. Border and Supplied Wire Cutters, https://www.nytimes.com/2021/11/13/world/middleeast/belarus-migrants-iraq-kurds.html, November 13 2021 (Accessed January 23, 2022).
[3] Branislav, Stanicek, EU-Turkey relations in light of the Syrian conflict and refugee crisis, March 9 2020, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2020)649327 (Accessed 2022-01-23).
[4] ECRE, “Poland: Parliament Approves ‘Legalisation’ Of Pushbacks, Council of Ministers Adopt Bill to Construct Border Wall, Another Life Lost at Border with Belarus,”, https://ecre.org/poland-parliament-approves-legalisation-of-pushbacks-council-of-ministers-adopt-bill-to-construct-border-wall-another-life-is-lost-at-border-with-belarus, October 14 2021 (Accessed January 23, 2022).
[5] Joanna Plucinska & Kacper Pempel, In forests on Poland-Belarus border, migrants fight for survival, October 14 2021, https://www.reuters.com/world/europe/forests-poland-belarus-border-migrants-fight-survival-2021-10-14/ (Accessed January 23, 2022).
[6] Human Rights Watch, “Die Here or Go to Poland” Belarus’ and Poland’s Shared Responsibility for Border Abuses, November 24 2021, https://www.hrw.org/report/2021/11/24/die-here-or-go-poland/belarus-and-polands-shared-responsibility-border-abuses#_ftn16 (Accessed January 23, 2022).
[7] Ibid.
[8] Ibid.
[9] Grażyna Baranowska, The Deadly Woods Legalizing pushbacks at the Polish-Belarusian border, VerfBlog, October 29 2021, https://verfassungsblog.de/the-deadly-woods/ (Accessed January 23, 2022).
[10] Anja Radjenovic, Pushbacks at the EU’s external borders, Think Tank European Parliament, March 3 2021, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)689368 (accessed January 23, 2022).
[11] Anja Radjenovic, Pushbacks at the EU’s external borders, Think Tank European Parliament, March 3 2021, https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2021)689368 (accessed January 23, 2022).
[12] Henning Becker v Denmark, Application no. 7011/75.
[13] Hirsi Jamaa and Others v Italy, Application No. 27765/09.
[14] Jef Huysmans, The European Union and the Securitization of Migration Journal of Common Market Studies, vol. 38/no. 5, s. 751–77.
[15] Ayse Bala Akal, European Union-Belarus Border Crisis: Why the narrative of “hybrid warfare” is dangerous, November 24 2021, https://blogs.prio.org/2021/11/european-union-belarus-border-crisis-why-the-narrative-of-hybrid-warfare-is-dangerous/ (Accessed January 23, 2022).
ICJ Studentsektion 