On the Polish-Belarusian border near the small village of Usnarz Górny, thirty-two Afghan citizens have been sitting quite literally between the Belarusian border guards on the one side and Polish border guards, army and police on the other for two weeks now. They sit there without access to water, food or medical aid. They sit there claiming their rights under EU and International law. Yet, they are not allowed to ask for asylum or establish any contact with the outside world. This inhuman and degrading treatment clearly amounts to a violation of Art 3 ECHR and was decried by the Commissioner for Human Rights of the Council of Europe, who called for immediate action to ensure the rights of the people kept hostage.
There can be no doubt whatsoever that Poland is violating the ECHR, EU and International Law. Yet, on a macro level, the situation tends to be presented as geopolitical revenge of a desperate Belarusian despot, who organized a new migration route to Europe – a response to EU sanctions against Belarus. From the EU law perspective, however, what we see is a rampant breach of the law. The tragic situation of those thirty-two hostages exemplifies both how devastating the consequences of rule-of-law backsliding might be and how closely linked the rule of law breakdown in Poland and the general denigration of EU values in the field of migration are.
Most significantly, what is going on at the Polish border is not at all atypical for the EU today, laying bare the depth of problems plaguing the EU’s inapt governance of migration. It is no longer obvious what difference there is between, on the one hand, legal “black-hole” Poland, as the learned Advocate General Bobek (C-748/19, para 138) put it, and, on the other, the EU as a whole, including the Baltic states who, assisted by FRONTEX, build fences and push people back into Belarus, as well as the Mediterranean Member States turning Mare Nostrum into a mass grave. EU’s famed value of the Rule of Law emerges as but a cunning figure of speech, as far as migration governance is concerned. No-one is guided by law in the act of dehumanising three dozen Afghani hostages at the EU border. The fact that values are also “law” is entirely forgotten.
Pushing the border further and further away to turn rights into a fictitious proclamation
It has been documented that the Belarusian authorities organized a migration route to the EU to increase the number of people who cross the EU border and benefit from their national and EU-level right to claim asylum in Latvia, Lithuania and Poland. That is most probably the case with people in Usnarz Górny, who might have been invited by the powers that be in Belarus to come to the EU. In a world entirely reliant on passport apartheid airlines and ferry companies are tools in the hands of the most affluent countries in their fight against the “passport poor”: those who received harmful statuses of liability rather than bundles of rights at the moment when citizenship was assigned to them at birth, as the Quality of Nationality Index, inter alia, shows. The FT has reported that the EU is threatening charter companies and ordinary airlines flying between Belarus and Iraq, accusing them of smuggling “illegal migrants” for the Belarusian regime. These flights are the only way for the people akin to being hostages at the Polish-Belarusian border to escape the horrors and misery of their countries of origin and attempt to use their right to apply for asylum or temporary protection in Europe. Although not presented as such, it is quite obvious that any pressure on an airline or a neighbouring country not to allow an Afghani to board is nothing but an attempt to quash her rights and to render the EU Charter of Fundamental Rights as well as values-speak entirely ephemeral and irrelevant.
This is a familiar tactic to push the border further and further away from the most affluent states. Is it not ironic that it takes a bizarre global outcast, Mr Łukašenka and his regime, to activate the rights proclaimed by the EU and make them usable in practice by bringing the Afghanis, the victims of US, but also Polish and Baltic occupation that claimed so many lives and resulted in a swift Taliban takeover of the puppet state established by the occupiers, right to the Polish and Lithuanian border? Again, do not forget the coloniality and racism of the whole context: Only the “non-white” migrants are deemed a threat – Poland eagerly admits countless Ukrainians. Outcast Belarus emerges as our mirror – a simple check of how substantial the right to claim asylum is. A check of how much we are governed by the Rule of Law, which we inconsistently preach. The EU has so far failed the check.
The fact that Poland, along with the Baltic States, invaded and occupied Afghanistan and Iraq, the countries of origin of the people whom Poland is now dehumanizing, is somehow forgotten. A dreadful and most likely illegal war far away, with massacres of civilians including pregnant women by Polish soldiers, is presumed to generate no responsibilities for the bellicose state. Border fences stand strong and are extended. Unlike Orbán’s famed fence, they separate the EU from a country which cannot be deemed safe by any measure: Belarus is not Serbia. Pushing back these people to Belarus is even less an option than with any other European country. And of course, Belarus is not responsible for the EU’s failure to live by its own law.
The Polish authorities argue that the Afghans did not cross the border, so they are not on Polish territory and as a result they cannot apply for asylum in Poland. They remain on the border, but they are separated from the entire world. Lawyers and civil society activistis tried to contact them through megaphones in order to show the officers of border guards that the Afghans apply for asylum in Poland. The border guards were not only deaf to those requests but also sabotaged any attempts of communication (e.g., by turning on loud emergency signals in their cars which makes distance communication impossible). Requests for asylum were also formulated when representatives of the Polish Ombudsman were present in Usnarz Górny. The Ombudsman in his official statement urged Prime Minister Morawiecki to admit those seeking asylum to the territory of Poland and underlined that humanitarian aid is immediately required on the Polish-Belarusian border. The Polish Ministry of Foreign Affairs offered such an aid to Belarus, offering to deliver it “through the nearest border crossing” instead of aiding directly the people in Usnarz Górny. The Government underlined that such an aid need to be secured according to international rules, but made no mention whatsoever of its obligations under the 1951 Geneva Convention and EU law. A new executive regulation of the Minister of Interior amended the COVID rules regarding border crossings and allowed the border guards to transport those who illegally crossed the border back to the border. It legalizes pushbacks, which are prohibited by international law, and follows an earlier, equally despicable Latvian example. All this is done on the prompt of the man who was once (no more) called Europe’s last dictator: Aliaksandr Łukašenka. He holds the mirror in which the EU perceives its own face – not a pretty sight. These actions of Łukašenka have been presented as a “hybrid war” – a gray zone between war and peace – but none of that can mask the truth that international law on protection of refugees prohibits refoulement of those seeking asylum.
Not just a Polish, but a EU problem
The main element of the Polish government’s narrative is that Poland needs to defend its borders. That’s why more than 900 soldiers have been sent the border with Belarus. Furthermore, the Minister of Defence announced building a 2,5 meters high barbed-wire fence on the Belarusian border. The Minister of Culture Piotr Glinski said that “Poland defended itself against the wave of refugees in 2015 and now it will also defend itself”. The Deputy Foreign Minister said that people kept in Usnarz Górny “are not refugees, they are economic migrants”, apparently coming to this conclusion without examining each individual application in detail, as is required by law. Just as in 2015 when it avoided the participation in the EU relocation mechanism, Poland is again in breach of the law. But this breach appears almost venial in comparison to the prohibitions imposed on the ships saving non-white people in the Mediterranean from drowning from entering ports in Italy and Malta, or the deadly pushbacks by the Greek coast guard. The stand-off in Usnarz Górny is not just a problem of the Polish state: it is the reflection of a chronic EU-wide Rule of Law deficiency. Interestingly enough, the Prime Ministers of Poland, Lithuania, Latvia and Estonia have issued a joint statement, in which they underlined that “unity and urgent diplomatic, financial and technical support by the EU and its Member States is key to responding effectively to the challenge posed by Łukašenka’s regime”. The own disregard of legal and human rights obligations are presented as a fight against a despot.
Meanwhile FRONTEX, the European Border and Coast Guard Agency, is silent. Mid-August FRONTEX informed that “migratory pressure continued to build up on the eastern frontiers of the European Union with more than 3000 illegal entries from Belarus registered at the border to Lithuania in July”. Frontex also confirmed that “the migration flow is fed by controlled arrivals on tourists visas or on the basis of visa-free entry to Belarus”. FRONTEX supports Lithuania with more than 100 standing corps officers, patrol cars and helicopters. We do not anymore expect the EU to ensure “peace” of any kind. The terrible consequences of the EU’s “Neighbourhood Policy”, which cost thousands of lives in the Ukraine and caused humiliation in Armenia, created a dysfunctional legal system of migration that criminalises and humiliates. By violating its own law consistently and across the board the EU has failed Łukašenka’s mirror test.
Both “illiberal” Poland and “value-based” EU emerge as successful powerhouses of othering, hypocrisy and wanting legality, where double standards reign and scapegoating migration, especially ‘non-Western’ migration brings steady political dividends.
The breakdown of EU law at the Polish border is thus, regrettably, not at all atypical. The Latvian response to the same pressure, i.e. more non-white people in desperate need entering via Belarus, took the shape of outright unlawful legislation allowing for mass pushbacks and violating EU and international law and of course the Latvian constitution. The Polish reply is similar but more graphic: a wall of soldiers eagerly following an unlawful order. Not only in Poland – in the EU the law can sometimes be equally switched off in its entirety when it is viewed as politically inconvenient. Given the EU’s migration management track-record, Poland appears less as an exception but as the rule, its “Constitutional breakdown” notwithstanding. One can say only two positive things about the story as it is unfolding. Firstly – and unlike in the Mediterranean – the helpless people humiliated at the Polish border are on firm soil and will probably not drown under the watchful eye and in full knowledge of FRONTEX. Secondly, the EU will definitely not conclude another “extra-legal” agreement as it has done with Erdoğan earlier. Since Belarus is now perceived as worse than Turkey, the Court of Justice will not have a chance to say that the document mandating systemic violations of vital rights of a huge group of people is “not EU law”, exchanging Rule of Law for political expediency. Once either death or illegality rubber-stamped by the ECJ as kosher are both out of question, not so many options remain not to help those in need “legally”. It is not surprising, thus, that the EU and Poland opted for the open violation of the law: inhuman treatment, attempted mass expulsions, and impenetrable fences.
PS: In the morning of August 25 the ECtHR indicated interim measures against Poland and Latvia (Amiri and Others v. Poland 42120/21 and Ahmed and Others v. Latvia 42165/21) obliging those countries to provide the people at the border with food, drink, medicines and adequate shelter and underlining that this obligation is “without prejudice to any duties Belarus may have under international law regarding the situation of the applicants”. The interim measures are an indictment of the EU’s migration policy that results in the potential violation of Articles 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment) and Article 4, Protocol 4 (prohibition of the collective expulsion of aliens). It is a forceful reaction to the a complete breakdown of the EU Rule of Law at the border, which was assisted by FRONTEX. The Court made no difference between building a fence combined with pushbacks (Latvia) or a wall of soldiers and the police (Poland).