About the author: Jessica Niewohner (J.D. Candidate, Class of 2024) is an Assistant Contributor to Travaux. Her academic interests focus on human rights law, both internationally and domestically, with a special focus on marginality and exclusion of women, incarcerated persons, and persons with disabilities. Jessica holds a B.A. in Law, Societies, and Justice, with a minor in human rights and political science from the University of Washington, Seattle. She is a former Disability Inclusive Development Fellow.
"Primal Forest Bialowieza / Poland" by Rudolf Robak available here.
Among the most fundamental human rights is the right to seek asylum in a foreign country to escape persecution. Yet recent news reports describing illegal pushbacks of migrants and refugees by the Polish government at its border with Belarus, as well as the response from the European Union (EU), raise important questions about the efficacy of international law in enforcing the rights of refugees.
Illegal pushback policies are nothing new in Europe. Videos and chilling investigations from NGOs bear witness to the palpable fear and violence that refugees face in pushbacks around Europe. Allegations against the European Border Patrol and Coastguard Agency (Frontex) indicate that it has ignored or participated in illegal pushbacks, violating numerous human rights. These allegations paint a picture of Europe’s unwillingness to uphold the rights of refugees, and show that these policies are allowed, if not encouraged, by inter-state government agencies.
Under illegal pushback policies, armed and often unidentifiable border guards force migrants and refugees back over the borders they just crossed, labeling them as “illegal immigrants” and ignoring their pleas for asylum. These pushbacks, while inhumane and a violation of international law, seem to have become the norm in Europe.
Actions being taken on the borders of Poland and Belarus go beyond illegal pushbacks, however, with many calling Belarus’ actions a direct attack aimed at destabilizing the EU. Despite this, Poland and the EU’s responses to this crisis may be seen as just as unconscionable.
Minsk’s Manipulation and Exploitation of Refugees
Since 2020, the EU has levied economic sanctions against Belarus for its human rights violations in connection to its 2020 presidential elections. In response, the Belarusian government has encouraged migrants and refugees to come to Belarus from the Middle East and Africa on tourist visas and then cross into the EU to gain asylum. These individuals pay a steep price for a Belarusian visa, but then are pushed across the border between Belarus and Latvia, Lithuania, or Poland, where they are prevented from crossing over or returning to Belarus. These refugees are trapped in a limbo, constantly being pushed between these borders, and unable to access adequate assistance. In the last two weeks alone, at least six trapped on the border in the Białowieża Forest between Belarus and Poland have died from cold and hunger, with both countries refusing to take responsibility.
Rik Daems, the president of the Parliamentary Assembly of the Council of Europe has called these actions human trafficking and an intentional creation of a migration crisis. In a joint declaration, Estonia, Latvia, Lithuania, and Poland alleged that this crisis was created in an effort to destabilize the EU as retaliation against the sanctions levied against Belarus. To many, it is a clear act of aggression with refugees used as weapons against the EU.
The EU and Poland Must Take Responsibility
However, while Belarus bears a portion of the responsibility for the impetus of this crisis, it is Poland that refuses to review the refugees’ asylum claims and pushes them back from the border, and the EU that fails to hold Poland accountable for its actions. The EU and Poland must take responsibility for their roles in this human rights disaster instead of holding Belarus solely responsible.
In response to the influx of refugees from Belarus, Poland has increased its border patrol and changed its laws—violating international regulations—to keep refugees out of the country. Recently, Polish Defense Minister Mariusz Błaszczak unveiled plans to build a 2.5-meter-high fence on its border. Poland has also declared a state of emergency at its borders, preventing journalists, NGOs, and activists from monitoring the situation for further human rights abuses.
Some Polish government officials have begun demonizing the refugees trapped on the border, a common tactic intended to secure public support for its inhumane pushback policies. In a press conference, Poland’s Interior Minister, Mariusz Kamiński, falsely claimed that a photo found on a migrant’s phone showed evidence of bestiality in an attempt to promote xenophobia and anti-refugee sentiment.
The international legal community has not been silent on this issue, but its words carry little weight. The European Court of Human Rights held in M.K. and Others v. Poland that Poland had collectively expelled people at its borders in violation of international law by refusing to hear the individual claims of refugees. In cases where an asylum seeker would be removed to an intermediate country, such as Belarus, the Court held that a country must either examine the merits of the asylum seeker’s application or ensure that this person would have access to an adequate asylum process in the country they would be removed to.
Additionally, the court has called on Poland and Latvia to help refugees trapped on the borders by supplying food, water, clothing, medical care, and temporary housing. However, the Court did not require either country to accept refugees into their countries.
Moreover, the UN Refugee Agency has also called on Poland to aid refugees, saying that “safe border management and providing safe haven for refugees are not mutually exclusive.” Poland thus far has not offered assistance to refugees and has claimed that the refugees are Belarus’ responsibility.
In a recent ruling, Poland’s Constitutional Court held that its laws hold supremacy over those of the EU, eliciting a harsh rebuke from EU officials. While the EU’s response to this decision has been vocal, the EU has been nearly silent on the human rights abuses at Poland’s border, likely because it simply does not want more refugees in Europe.
While this geopolitical conflict plays out, innocent people’s lives hang in the balance and more lives risk being lost as each day passes with no resolution. This crisis presents an opportunity for the EU to move away from its violent border control policies and set a standard throughout Europe that refugees must be protected and treated humanely. As winter approaches, Poland and the EU must determine if border security will be prioritized over human life and the international laws they are bound to uphold.