'Even if refugees are lured by Belarus, it is not a reason for Poland to violate international law'
Helsinki Foundation for Human Rights’ lawyer Jacek Bialas explains why Poland's push-backs of migrants are illegal
Back in September 2021, a 16-year-old boy from Iraq managed to cross the Polish border with his family. They were exhausted and hungry from the journey, but this boy was vomiting blood. The Salvation Foundation (Fundacja Ocalenie), an NGO trying to help refugees in the region, was not able to reach the family before they were pushed back to Belarus by Straż Graniczna, Poland’s border force. That 16-year-old died the same night.
The same pattern is found repeated across the thousands of people attempting to cross the border. The family, leaving the body of the boy in Belarus, were pushed back again – and once more the NGO was not able to meet with the family before they were sent back to ‘where they came from’.
“As far as we know, at least seven people have already died from being exhausted”, says Jacek Bialas, an international law expert associated with the Helsinki Foundation for Human Rights, who closely follows the crisis engulfing the eastern border of the European Union.
To understand the process which led to hundreds of people wandering in what is called ‘the green border’, a strip of land dividing Belarus from three EU-member states: Poland, Latvia and Lithuania, one has to go back to 2015 when the war in Syria resulted with millions of refugees seeking safety in Europe.
The current plight of refugees in Eastern Europe comes from two processes: the weaponization of refugees and asylum seekers by authoritarian regimes bordering the EU, and the right-wing populism successes in some former communist states – which are now members of the European Union.
Weaponization of refugees
However, the idea of using refugees and asylum seekers to exert political pressure on the neighbouring states is not new. In our current reality consisting of contemporary communication and media coverage, the strength of such tactics proved to be devastating. During the Syrian war for example, when the European Union did not support Turkey’s involvement in the war, Ankara responded by encouraging a massive inflow of refugees over the Mediterranean sea, who headed towards the EU.
The weaponization of refugees to create internal tensions within the EU was successful: the EU realised that its members would not be able to deal with such high numbers of refugees crossing the border, and so a €6 billion aid programme was awarded to Turkey, which now hosts an astounding number of 3.6 million Syrian refugees.
This political win for the Turkish president Recep Erdogan is feared to have been the inspiration for Alexander Lukashenko, a dictator ruling in Belarus. As a response to sanctions imposed by the EU following the rigged elections organized by Minsk, Lukashenko’s regime encouraged thousands of refugees from the Middle East to come to Belarus. They are being offered cheap direct flights to Belarus, free tourist visas, and are transported to the border with the promise of a warm welcome once they reach the EU border. Since the summer of this year, the process has led to hundreds and then thousands of refugees attempting to cross the borders of the three EU countries neighbouring Belarus: Poland, Lithuania and Latvia. EU officials and pundits call it a form of ‘hybrid war’ waged by Lukashenko on the European Union.
Reflecting on the strategy employed by Belarus, Jacek Bialas acknowledged that the Polish government is correct when blaming the Lukashenko regime for creating the current situation on the border. “However, even if those people were somehow lured by the Belarusian government which promised them easy and safe access to the EU, it is not a reason to violate international law and not accept asylum applications” he added immediately.
Additionally, Polish pushbacks expose migrants to directed violence towards them by the Belarusian border forces and police, who are accused of using dogs to navigate migrants towards the border of the EU. “Belarus uses violence, that’s the problem. We have information that people who did not manage to enter Poland, or who were pushed back by the Polish Border Guard to Belarus, are treated in a very brutal way. Effectively, one cannot go back towards Minsk. Basically one cannot do anything, they have to stay in Belarus, and then try their luck again in the green border.”
The sudden surge in numbers of asylum seekers (Polish authorities reporting more than 15,000 attempts to cross the border since early August) on the Polish border was an opportunity for the Polish government to illustrate their initial stance on refugee policy. In early September 2021, Poland, as well as Latvia and Lithuania had already introduced a state of emergency.
Europe’s history of push-backs
The 2015 refugee crisis resulted in another process that is now being implemented by the authorities of Poland. When millions had arrived in Greece and Italy, both of which were unequipped to handle such a massive inflow of refugees, these countries began practising what Julia Hahn, Deutsche Welle’s correspondent in Turkey described as a “disturbing violation of human rights and refugee law”: pushbacks, which is known as the practice of forcing refugees away from the border. This became a common strategy against the inflow in both countries.
This became a practice that all European states facing migration are playing with, despite it being hugely contested by human rights organisations and experts alike. Even countries like the United Kingdom appear to be mesmerised by this illegal, yet convenient method to reject refugees: in September of 2021, the UK’s home secretary Priti Patel had ordered British officials to adjust the maritime law in a way that would allow the Border Guard authority to turn around small boats crossing the English Channel from France. The idea resulted in severe backlash and was eventually unsuccessful, but the mere fact that legalising pushbacks was even explored is yet another testimony to the fact that this practice has become a common political tool.
Poland, however, is the first country to use pushbacks as one of its major elements in response to facing large numbers of immigrants trying to cross the border. Pushed by the Lukashenko’s regime, people of Iraqi, Afghani, Syrian and Yemeni origin are trying to apply for asylum in Poland, but the Border Guard (Straż Graniczna) is ignoring these requests and physically forcing them back into Belarus, resulting in thousands being stuck on a narrow strip of land.
From the legal point of view, the problem is that the practice of pushbacks is illegal. When the person appears on the Polish territory and applies for asylum, then the asylum application should be processed and the person should have the right to stay in Poland until the final decision is reached.
Jacek Białas, Helsinki Foundation for Human Rights
According to human rights standards, all people applying for asylum should be provided with food, clothes, and medical assistance if necessary. Furthermore, asylum applications, including the verbal ones, should be recognised and result in applicants being transferred to safety. Instead of following the law, Poland’s government is trying to defend its stance by portraying pushbacks as a necessary measure.
Mr Bialas understands it differently: “I think the government of Poland tried to use this situation to improve their performance on the political scene, to show that they are conducting an effective ‘fight against the danger’ created by migrants. I think more than 50% of Polish citizens support this policy, support the pushbacks. Most probably because they are somehow scared by the government propaganda that those people who tried to cross the border will be somehow dangerous to Polish society – people of Arabic origin were portrayed by the government as terrorists, just for the political reasons”.
His argument hints at yet another element: the lack of a consistent strategy towards immigrants and asylum seekers by the European Union, which enables different member-states to design their strategies in a way that reflects the particular interests of a given society or government. “I would say that there should be one, common European policy toward asylum seekers, which would entail, for example, introducing legal pathways for asylum seekers. This would help to reduce the appeal to resorting to life-threatening or criminal methods to cross the border”, Mr Bialas argues.
An EU-wide strategy towards refugees and asylum seekers would also render it impossible for governments to go around the definitions in order to deny people their rights; a tactic which is heavily exploited by the Polish government. “There is a body of laws providing all the definitions – who is a refugee, who is a subsidiary protection holder – regulating asylum procedures and reception conditions etc. At the end of the day, however, everything depends on how testimonies will be assessed by the asylum authorities. And, there are some serious differences – the recognisability rate could be different in particular member states”.
One example he gave is playing around with the credibility of testimonies. “By means of deciding that some applications are not credible, governments introduce subjectivity into the application assessment. A credibility assessment gives border guards the option to state that the person is lying in their testimony due to some discrepancies in it.”
Poland and Hungary defy the EU
Contrary to the argument presented by the Polish authorities, pushbacks are not the only solution. During the 2015 refugee crisis, much had been done to control the migration flows and assist member states in helping those who had already made it to the EU. The problem is that back then Poland was not a part of this solution, and so it became very difficult politically for the current Law and Justice government to seek help from the EU – and, in fact, Poland has so far turned down all offers of support from Frontex and the EU as a whole.
At Ritsona Camp it has been three years since child refugee Leila was last inside a classroom
In 2015, the European Commissioner for migration Dimitris Avramopoulos put together a scheme, under which 140,000 refugees could have been relocated from Greece and Italy to other member countries. Back then, Poland agreed to take part in the scheme and accept around 6,000 refugees. Soon after, the nationalist Law and Justice party (PiS) was elected to power and decided to completely ignore the decision of their predecessors. Because of that, in 2020 the European Court of Justice found Poland (as well as Hungary and Czech Republic) to be in breach of their European treaties.
The 2015 electoral campaign was accompanied by fierce anti-refugee rhetoric, with the Law and Justice party leader (and since 2015 de facto ruler of Poland) Jarosław Kaczyński claiming that refugees carry ‘all sorts of parasites and protozoa’; a statement for which he has never apologised.
In Mr Bialas’s perspective “the current government won the election in 2015 using the argument that refugees are terrorists from the Middle East.”
The expert underlined that the nationalist government’s rhetoric was not only aimed at new refugees, but also towards the immigration patterns which already existed. “That was the case with Chechens – one day, the government said ‘we do not want more Chechen asylum seekers’ ”, Mr Bialas recalled.
Data supports his view. Until 2015, Poland was accepting Chechen refugees and then suddenly stopped, despite humanitarian threats in Chechnya remaining unaltered. As quickly as 2016, 85,000 Chechens were denied entry into Poland. The European Court of Human Rights in Strasbourg has found Poland guilty of several human rights violations regarding the matter.
Back then, Polish border security officials claimed there were no attempts by Chechens to apply for asylum or international protection, the same practice now applied to all those attempting to come from Belarus.
All the above mentioned elements have contributed to the plight of thousands of people trapped on the Polish-Belarusian border. Lukashenko wants to achieve a deal similar to the one Erdogan got. The EU, however, has no consequent policy to employ, and Poland’s authorities are now stuck in the consequences of how they attempted to politically exploit the problems other EU member-states faced – most likely Mr Kaczyński and others had never imagined they might find themselves in the shoes of Greece or Italy in 2015.
Since I spoke to Jacek Bialas, the situation has deteriorated even further: instead of small groups being pushed back and forth by both the Belarusian and Polish border guards, the border is now heavily militarised, with thousands of migrants being pushed by Belarus to attempt to break through the barbed wire wall, put there by Poles – who respond with tear gas.
Results of the prolonged crisis are deadly. “As far as we know, at least seven people already died being exhausted”, Mr Bialas told me, but since then the number of those killed has increased several times – according to OKO.press, the most recent victim is a 14-year-old Kurdish boy who froze to death in a makeshift camp near Kuznica.
Before this, the dead body of a 24-year-old Syrian man who had been in Belarus since mid-September was found in Bialystok, Poland. Another victim was a 39-year-old Iraqi woman whose family, including three children, were found near her body. According to the Belarusian authorities, the husband of this woman reported they had been pushed back to Belarus by the Polish border guards.
In most cases, death is a result of exhaustion and hypothermia – people are stuck in swamps and forests, with temperatures reaching minus five degrees celsius at night. According to immigrants and human activists groups present in the region, dead bodies are a frequent sighting in the area. However, any independent verification of these claims or numbers are impossible as Poland has sealed the area off by imposing a state of emergency.
“We assume that the guards may easily just return people back to Belarus, without any monitoring or media attention”, Mr Bialas said when I asked about the decision not to allow the media or NGO’s into the border region. “In our opinion, there is no basis for that [state of emergency] because the situation could be dealt with without the state of emergency. Journalists are even able to go into war zones to provide records of the situation. We do not see why this is a state of emergency, why was it introduced”.
Undoubtedly, the state of emergency is politically useful as it enables the government to block access to the border to all those who would be able to expose the illegality of pushbacks: opposition MPs, human rights activists, refugee support groups and reporters. With the state of emergency declared, all those above are lawfully prohibited from the zone where most asylum seekers are present. “The guards may return people back to Belarus without any media attention”.
The situation in the Polish media sector doesn’t help. Since 2015, the government went to great lengths to subjugate all the media outlets it could – a campaign that was largely successful. In effect, all state-owned and state-controlled media companies, as well as numerous private outlets closely associated with the far-right cannot be considered independent in their editorial decisions. During the migrant crisis these outlets, in Mr Bialas’ words, “portrayed migrants as dangerous young men who want to use violence in Poland”, simply repeating the position of the Law and Justice government.
Poland still has a number of independent media outlets, which have received some success in exposing the illegal actions of Polish authorities. “They reported about the events which took place in one of the villages, where a number of families, including those with small children, were arrested by the Border Guard unit and then pushed back to Belarus”.
“These events got very significant attention from the media and the public, people were really outraged by what the media had shown them – that there are small children who should not be pushed back when they apply for asylum”.
All these reports helped to create public outrage in the EU on the situation. Showing the children and elderly victims of pushbacks helped combat the misleading agenda of the government: that those trying to cross the border are mostly hostile middle-aged men, as the government wanted the situation to be perceived as an opportunity to exploit Polish hospitality.