Observatory on European Studies _ Poland-Belarus Border Crisis: A Vanishing Point of International Refugee Law

2021-12-13

Catherine Maia*

Shashaank Bahadur Nagar**

A large number of people from Belarus gather at the borders of Poland, and to a lesser extent of Lithuania and Latvia, in sub-zero temperature, with an intent and hope to cross over to Poland into the European Union (EU). It is pertinent to mention that these people are mainly asylum seekers from Middle Eastern and African countries, running from persecution in their respective countries, especially in Afghanistan, Syria and Iraq.

The Polish authorities are adamant, as they are smelling Belarusian government conspiracy behind facilitating the entire scenario, in particular through the Belarusian airline Belavia, due to the sanctions imposed upon Belarus by the European Union after a brutal crackdown on democratic protests in December 2020 by the national authorities, and after the hijacking of a flight carrying an opposition journalist, who was forced to land in Minsk on the pretext of a bomb threat in May 2021. Belarusian President, Alexander Lukashenko, in power since 1994, was re-elected for a sixth term in August 2020, but his election was not recognised by the European Union countries. Following this election, the European sanctions adopted against officials of the Belarusian regime currently target 166 people, including Alexander Lukashenko and consist of an asset freeze and a ban on entry into the European Union.

While the Polish authorities are not allowing the asylum seekers to enter its territory and are being returned from national borders, it has been alleged by the European Union and by some of the survivors that Belarus is not allowing the asylum seekers to return to Belarus. As a result of this political tussle thousands of innocents are for months now wedged on the border of Poland and in the surrounding forests, amidst the approaching arctic winter, without any aid or assistance. While the European Union has shown sympathy towards these victims of international politics, it has refused to bow down to the Belarusian government.

Since few years now, Poland and the Baltic route has been the most preferred route for asylum seekers who are running persecution from Middle Eastern and African countries to enter into European Union, due to lack of physical borders and support from authorities on this route. Asylum seekers also include those students who were on student visa in Belarus and since now their visas have expired, and they have no hope having their asylum request accepted in Belarus, hence fearing being returned to their countries they are looking up to the European Union. Some other asylum seekers are looking for their family reunification with their family members who are settled as refugees in different parts of European Union.

Moreover, apart from the ones who are willingly taking the route of Polish border through Belarus, the Polish government and European Union are alleging that the Belarusian government under the said conspiracy is both encouraging and forcing the asylum seekers from Middle Eastern and African countries to take the route of European Union through the Polish Border, and in furtherance of the same Belarus is flying these asylum seeker from their countries to Minsk and even to Moscow, keeping them in hotels at Minsk, and thereafter forcibly directing them to Polish border in order to overwhelm the European Union. In other words, by carrying out its threat to “flood Europe with migrants”, Belarus is being alleged of using these asylum seekers as a “weapon” in a kind of asymmetrical warfare.

Further, these asylum seekers including women and children, had been stranded on the border for months without any aid until recently the UN Refugee Agency (UNHCR) was allowed to provide them humanitarian aid from the Belarusian side, while Poland is still firm in its decision in not to give access to either UNHCR or any non-governmental organization in or around the region, even the journalist are denied access. Hence, it is still unclear as to what methods are being used by the Polish authorities in order to keep the asylum seekers at bay.

While it cannot be denied that both the governments of Poland and Belarus, have various international obligations towards asylum seekers and refugees, and each of their alleged acts are in severe violation of these obligations.

Legal analysis of the violations

With regard to Poland, Article 14(1) of the Universal Declaration of Human Rights (UDHR), guarantees right to seek and enjoy asylum as a basic human right, and is supported by the framework of the 1951 Refugee Convention to which Poland is a State Party. Further, the right to asylum is also provided for in Article 18 of the Charter of Fundamental Rights of the European Union. There is an entire regime in place, establishing criteria and mechanism for determining Member States responsibility for examining an application for international protection established by Regulation (EU) No 604/2013 of the European Parliament and of the Council, which Poland has clearly violated. According to Article 3 of Regulation (EU) No 604/2013, which proclaims that “Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State”, Poland is obliged to examine the application for international protection of the asylum seekers who applies from its territory, including at the border, which this country has intentionally failed to do in the present context.

Further, Poland has time and again been alleged of returning the asylum seekers in need of international protection from its Terespol border checkpoint and other areas of effective control, without actually examining their application, hence initiating a “chain refoulement”. On the argument of asylum seekers being out of Polish jurisdiction, it is well settled now through the European Court of Human Rights case laws of M.K. and Others v. Poland (application n° 40503/17, 42902/17 and 43643/17), decided on 23 July 2020, and D.A. and Others v. Poland (application n° 51246/17) that the Terespol border checkpoint, where asylum seekers are subjected to boarder checks, is situated 2,600 metres into Polish territory, and further that the Polish border guards exercise their full authority and control over the foreigners/asylum seekers seeking entry. Hence, returning or pushing back of asylum seekers without actually allowing their claim to be examined is in clear violation to the principle of non-refoulement (under Article 33 of the 1951 Geneva Convention) which prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations. The provisions of European Union Law, including the Schengen Borders Code and Directives 2013/32/EU, clearly embraces this principle of non-refoulement, and also applies it to the persons who are subjected to border checks before being admitted to the territory of one of Member States (M.K. and Others v. Poland, supra). Furthermore, this principle is recognised as having risen to the level of customary international law.

There is no doubt that Poland has a right to control the entry, residence and exclusion of aliens from its territory, but that is subject to Poland’s treaty obligations, including the 1950 European Convention on Human Rights. Broadly, having settled the jurisdictional of asylum seekers in the present context, it is quite evident that their expulsion by Poland to Belarus would initiate “chain refoulement”, and the asylum seekers might eventually find themselves in the country of their origin, where they fear persecution, hence Poland cannot expel the aliens/asylum seekers to Belarus as it would violate Article 3 of European Convention on Human Rights, which says that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Under the present context, where there are reports that Belarus is allegedly subjecting these asylum seekers to torture and inhuman treatment, in order to force them to cross border and not to return back, even refoulement of these asylum seekers to Belarus alone would be in clear violation of Article 3 of the European Convention on Human Rights, as they might face torture and inhuman treatment at the hands of Belarusian authorities. In these circumstances, Article 3 implies an obligation not to return, and the treatment prohibited by this provision is absolute, which means that it cannot be derogated from (see Saadi v. Italy [GC], application No 37201/06). Moreover, in the light of the mentioned facts, it is incumbent upon Poland to examine the asylum application on individual basis and conduct proper investigation into the “real risk” faced by the asylum seeker or applicant on being returned before actually sending them back.

Furthermore, the remedy granted to the asylum seeker by the Polish authorities in the process of examination should be an “effective remedy” before national authorities. In other words, even if the examination decision is against the asylum seeker, still the asylum seeker should have a right to get the decision reviewed or appealed against before the Polish national authorities, if the Polish authorities denies this right then it would be clear a violation of Article 4 of Protocol n° 4 of the European Convention. Further, the decision of refusal to entry should have an automatic suspension effect, till the asylum seeker has exhausted all his effective remedies, otherwise it would not only be a violation of Article 4 of Protocol No 4 of the European Convention on Human Rights, but also a violation of Article 27 of Regulation (EU) No 604/ 2013. It is important to note that this violation is bound to occur at the hands Polish national authorities, as they do not have automatic suspension effect within their system for asylum seekers; on the contrary such decisions have immediate effect.

On 14 November, amidst the hue and cry of the asylum seekers at the chilly Polish border, and adding fuel in fire to the existing gridlock, the Polish Parliament passed the much feared “push-back” amendment. The Article 33 para. 1-a of the Act of 13 June 2003 on Granting Protection to Foreigners in the Territory of Republic of Poland provides that the head office of foreigners may disregard the application for asylum filed by a person crossing the Polish border irregularly, unless: i) arrived directly from the territory in which their life or liberty was under threat of persecution; ii) presented credible cause for illegal entry in the territory of the Republic of Poland; and iii) filed an application for granting international protection immediately upon crossing the border. In other words, unless for the aforementioned exceptions (which too are blatantly discretionary), the Polish authorities would have the right to push back any asylum seeker entering from the Polish territory irregularly/illegally, hence legalizing refoulement in cases of irregular entries, which is a clear violation of the customary principle of non-refoulement.

Further, this amendment also penalised such asylum seekers with an entry prohibition ranging from 6 months to 3 years, and such an order has an immediate effect.  It is important to note that the International Refugee Law under 1951 Convention does not differentiate between the asylum seeker entering regularly or irregularly, and obligates each Member States not to push-back or detain or even penalize such asylum seekers who enter irregularly, but the Polish Parliament, in order to rationalize the stated amendment misused Article 31 of the 1951 Refugee Convention, by misinterpreted words like “directly”, “without delay”, “good cause”, with their narrow interpretation. Furthermore, in doing so, the Polish Parliament has also violated Regulation (EU) No 604/2013 of the European Parliament.  

Moreover, the action of the Polish Parliament to pass such an amendment law was purely intentional, which is evident from the fact that, even though on 13 September, the Polish UNHCR had submitting their observation against the aforementioned amendment law (which was only a draft law till then). In their observation, they had requested the Polish Parliament not to interpret the Article 31 of the 1951 Geneva Convention in a narrow fashion as the same was never endorsed by the International Refugee Law, and such an interpretation could only have dire consequences, still the Polish Parliament showed a complete disregard to the mentioned observation.

Regarding Belarus and its international obligations – even though Belarus is not a member to the Council of Europe and not a party to European Convention on Human Rights –, it has acceded to the 1951 Geneva Convention and its 1967 Protocol in the year 2001 without any reservations. Moreover, Belarus is a party to 1966 International Covenant on Civil and Political Rights (ICCPR), 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1989 Convention on the Rights of the Child (CRC), 1979 Convention on the Elimination of All Forms of Discrimination against Women, as well as other international and regional agreements.

It is worth mentioning that, according to the UNHCR’s Universal Periodic Review on Belarus, the country had a refugee friendly legal system, and it had inculcated its obligations under the 1951 Geneva Convention under its domestic law, along with the principle of non-refoulement. As per the review, there was not even a single case of refoulement in Belarus from the year 2007 to 2014. Furthermore, the asylum seekers from Middle Eastern countries were easily accepted as refugees, who enjoyed equal rights with the citizens of Belarus in more or less everything. Importantly, since the year 2013, there was no negative decision policy for Syrian asylum seekers. Further, the refugees could apply for citizenship after 7 years of obtaining refugee status. But it seems that the Belarusian government has taken a complete U-turn from being the protectors to the perpetrators. As mentioned before, the Belarusian authorities have been alleged of forcing the asylum seekers through torture and inhuman treatment to cross the Polish border, and are preventing them to return to Belarus, which again is a complete violation of the 1951 Refugee Convention and the principle of non-refoulement, along with its other mentioned international obligations.

Ulterior motives and the resonating culpability

As mentioned in a Joint Statement adopted on 11 November by the United States and European members of the UN Security Council, the Belarusian government is accused of organizing a “cynical instrumentalization of migrants”. The objectives of orchestrating this unprecedented influx of asylum seekers at the Poland-Belarus border are to “destabiliz[e] neighboring countries and the European Union’s external border and divert[e] attention away from its own increasing human rights violations”. It is also a way of exhorting the European Union to withdraw it sanctions imposed on Belarus after the government’s violent crackdown on peaceful protestors last year.

This tact of weaponizing refugees is not a new one. Recent example is of Turkey and Greece, when after the so-called 2015 European refugee crises, where there was influx of Syrian refugees at Greek border through Turkey, soon after the European Union entered in a deal with Turkish government to shut its borders in order to prevent the influx, in return for financial aid. Nevertheless, in 2019-2020, claiming that the European Union did not fulfil its promise, and after several threats, the Turks reopened their border, immediately leading to thousands of people gathering at the Greek border, through land and sea, forcing the European Union to renew its diplomatic relations with the Turks and, thereby, limiting those refugees to the Turkish land. In the past too, various totalitarian regimes namely Cuba, Libya, Former Yugoslavia, Uganda, North Korea, and many others, have been using it as tact of warfare against their stronger counterparts, in order to gets their demands fulfilled.

While the Belarusian intent behind the alleged weaponizing of refugees seems quite patent, the intent of Poland to further exaggerate the situation through the mentioned violations, and recently through its draconian amendment law, seems ambiguous. As per Agnieszka Dudzińska and Michał Kotnarowski’s 2019 report based on public opinion of Polish people, they concluded that the Polish people have generally unfavourable attitude towards Muslims, and hence they oppose accepting refugees from Middle Eastern and African countries, due their religious belief system, and therefore the government’s policy to refuse people from that part of the world corresponds with the attitude of their voters. The present right-wing government of Law and Justice (PiS) also fears being replaced by the radical rightist of their country, if at all they dare to go against the attitude of their voters.

In the light of mentioned facts, it seems that the present ruling political party of Poland wish stabilise itself in the eyes of voters in order to be re-elected in the upcoming Polish election in the autumn of 2023. A political campaign followed by many political parties across the globe in order to attain power, while the recent example would be of the former President of USA Donald Trump towards Mexicans immigrants in general during his electoral campaign. 

A background set on a political filed requires political solutions. In the light of this statement, the only solution which seems to be possible is that both Poland and Belarus should peacefully negotiate in presence of European Union and Russia in order to achieve an amicable solution, which if may require should include reconsideration on sanctions imposed by European Union. Meanwhile, the UNHCR and other non-governmental organisations should be allowed complete access to the region, in order to provide humanitarian aid and for accepting application for refugee status determination, subject to the choice of the applicant, while Belarus should stop using physical and moral violence against migrants under its jurisdiction.

 

*Catherine Maia

Professor at the LusĂłfona University of Porto (Portugal), Visiting Professor at Sciences Po Paris (France)

 **Shashaank Bahadur Nagar

Legal Practitioner of Human Rights and Refugee Laws (India)