By Elizabeth Mathie
Thousands of migrants who had been camped between the borders of Poland and Belarus, not permitted to return to Belarus and kept from entering Poland, were cleared from the border and given shelter in Belarussian warehouses on Nov. 18.[1] Though this action has eased somewhat the humanitarian crisis posed by the migrants trapped outside in winter cold at the border, the situation exemplifies what promises to be an ongoing challenge for humanitarian rights and international law.[2] The EU has accused Belarus of orchestrating the crisis by inviting migrants to come to Belarus and promising them passage across the Polish border.[3] Humanitarian groups have accused Poland of returning migrants who did successfully cross the border to Belarus without allowing them to apply for asylum, in violation of international law.[4] Adding to humanitarian concerns, Poland prevented lawyers, journalists and aid workers from accessing the migrants via the Polish border.[5]
Crystal van Leeuwen, a medical emergency manager for Médicins Sans Frontières (MSF), who was part of a week-long assessment of the situation with other humanitarian and aid groups, reported that the crisis amounted to the migrants “being treated like weapons.”[6] Similarly, sources characterized the border crisis as a form of “hybrid attack” executed by Belarus in retaliation for EU sanctions.[7] On Nov. 10, United Nations High Commissioner for Human Rights Michelle Bachelet called on both Belarus and Poland to “de-escalate and resolve this intolerable situation,” stating that de-escalation was a necessity under international human rights law and refugee law.[8]
However, how effective international law can be in addressing crises like this one is not clear. Poland, along with Lithuania and Latvia, which also experienced an influx of migrants attempting to enter their borders from Belarus, is a party to the European Convention of Human Rights (ECHR) and could face consequences in the European Court of Human Rights (ECtHR).[9] Belarus is not.[10] Although the ECtHR has so far stopped short of requiring Poland or Latvia to allow migrants entrance into their countries, earlier this year it asked both countries to provide migrants with “food, water, clothing, adequate medical care and, if possible, temporary shelter.”[11] Given the court’s urging to provide basic aid, and given reports of deteriorating human rights conditions in Belarus, it is possible Poland could be found to have committed “refoulement” by returning migrants to Belarus after they had successfully crossed the Polish border. [12] The power of the threat of international legal consequences such as this one, however, appeared limited in this crisis between nations answering to different international legal authorities.[13]
At the time of this writing, Poland had responded to the situation primarily by sending additional soldiers, border guards and police to the Belarussian border in an effort to repel mass-crossing attempts.[14] Further aggravating tensions, far-right groups within Poland seized the opportunity to organize in favor of maintaining a strong border.[15] It was only after violence erupted between Polish border guards and migrants attempting to cross on Nov. 16 that Belarus relocated hundreds of the migrants to a warehouse near the border, eventually clearing the whole of the main encampment.[16] Though the move provided migrants vital shelter from the cold, it remains unclear where they will be allowed to go from here.[17] As global warming threatens to increase population displacement and migration between nations, opportunities for this type of “hybrid warfare” and resulting humanitarian crises threaten to increase.[18] Whether international law can adequately address or help to stave off such crises remains to be seen.
[1] Andrew Higgins & Marc Santora, The main border crossing with Poland is cleared of migrants, N.Y. Times (Nov. 18, 2021), https://www.nytimes.com/live/2021/11/18/world/belarus-poland-border-migrants/belarus-says-the-main-border-crossing-with-poland-will-be-cleared-by-days-end (last visited Nov. 18, 2021). See generally Anton Troianovski, Monika Pronczuk & Anatol Magdziarz, West Accuses Belarus of Orchestrating Migrant Crisis at Polish Border, N.Y. Times (Nov. 9, 2021), https://www.nytimes.com/2021/11/09/world/europe/poland-belarus-border-crisis.html (last visited Nov. 18, 2021).
[2] Daniel Trilling, Dark things are happening on Europe’s borders. Are they a sign of worse to come?, Guardian (Nov. 8, 2021), https://www.theguardian.com/commentisfree/2021/nov/08/dark-europe-border-migrants-climate-displacement (last visited Nov. 18, 2021) (arguing that several border crises, including the Poland-Belarus crisis, indicate a coming “turning point in the way our governments respond to displacement” and calling on nations to work together to create a more robust system of protection for individual lives rather than continuing to harden borders at “considerable human cost”).
[3] Rob Schmitz, The EU accuses Belarus of luring global migrants into other European countries, N.P.R. (Oct. 12, 2021), https://www.npr.org/2021/10/12/1045345417/poland-belarus-lukashenko-eu-migrants-asylum (last visited Nov. 18, 2021).
[4] Id.
[5] Katy Fallon, Rights groups decry Poland’s ban on media at Belarus border, Aljazeera (Nov. 13, 2021), https://www.aljazeera.com/news/2021/11/13/rights-groups-decry-polands-ban-on-media-at-belarus-border (last visited Nov. 18, 2021). Journalists have reported being intimidated by Polish forces even in areas where they were allowed access. Agnieszka Pikulicka-Wilczewska, Polish forces intimidate media near Belarus border: Journalists, Aljazeera (Nov. 18, 2021), https://www.aljazeera.com/news/2021/11/18/journalists-allegedly-blocked-from-reporting-poland-border-crisis (last visited Nov. 18, 2021).
[6] Jon Henley, ‘People treated like weapons’: more deaths feared at Poland-Belarus border, Guardian (Oct. 31, 2021), https://www.theguardian.com/world/2021/oct/31/poland-belarus-border-migrants-deaths (last visited Nov. 18, 2021).
[7] Anna M. Simmons, Migrant Dies as Belarus-Poland Border Standoff Deepens, Wall St. J. (Nov. 13, 2021), https://www.wsj.com/articles/migrant-dies-as-belarus-poland-border-standoff-deepens-11636817338?page=1 (last visited Nov. 18, 2021); Anna Noryskiewicz, Tension mounts as soldiers and migrants mass at Belarus-Poland border, EU accuses Belarus of “hybrid attack”, CBS News (Nov. 9, 2021), https://www.cbsnews.com/news/belarus-poland-border-crisis-migrant-soldiers-mass-as-eu-claims-hybrid-attack/ (last visited Nov. 18, 2021); Schmitz, supra note 3.
[8] Comment by UN High Commissioner for Human Rights Michelle Bachelet on the Belarus-Poland Border Situation, UN Office of the High Commissioner for Human Rights (Nov. 10, 2021), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27791&LangID=E (last visited Nov. 18, 2021).
[9] Chart of Signatures and Ratifications of Treaty 005, Council of Europe, https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=005 (last visited Nov. 18, 2021).
[10] Id.
[11] Liv Klingert, European court asks Latvia, Poland to help migrants stuck at Belarus border, Politico (Aug. 26, 2021), https://www.politico.eu/article/european-court-human-rights-latvia-poland-iraq-afghanistan-migrants-belarus-border/ (last visited Nov. 18, 2021).
[12] Matthew Anderson, Belarus’s Lawfare Against Latvia, Lithuania and Poland, Lawfare (Oct. 25, 2021), https://www.lawfareblog.com/belaruss-lawfare-against-latvia-lithuania-and-poland (last visited Nov. 18, 2021) (describing the potential for returning migrants to Belarus to be considered “refoulment” in violation of the ECHR; arguing that Belarus is deliberately using migrants to create international law compliance crises for Latvia, Lithuania and Poland, knowing that Belarus itself is not bound by the ECHR).
[13] Id.
[14] Aljazeera, Poland blocks hundreds of migrants, refugees at Belarus border (Nov. 8, 2021), https://www.aljazeera.com/news/2021/11/8/poland-ups-security-on-belarus-border-amid-fears-of-major-breach (last visited Nov. 18, 2021).
[15] Vanessa Gera & Monika Scislowska, Poland’s far right demands strong borders in Belarus crisis, Wash. Post (Nov. 11, 2021), https://www.washingtonpost.com/politics/polish-forces-securing-border-and-cities-on-independence-day/2021/11/11/21954110-42db-11ec-9404-50a28a88b9cd_story.html (last visited Nov. 18, 2021); see also Troianovski, Pronczuk & Magdziarz, supra note 1; Leonid Ragozin, Who is benefiting from the Poland Belarus border crisis?, Aljazeera (Nov. 17, 2021), https://www.aljazeera.com/opinions/2021/11/17/who-is-benefitting-from-the-poland-belarus-border-crisis (last visited Nov. 18, 2021) (arguing in part that the far-right Polish government has used the crisis as a “useful distraction” from “a bitter conflict with the EU over the rule of law,” and as an opportunity to “present itself as a ‘defender’ of ‘Europe’s borders’ against a perceived invasion from the East”).
[16] Andrew Higgins & Marc Santora, Belarus offers shelter to migrants: ‘My kids were freezing and about to die’, N.Y. Times (Nov. 17, 2021), https://www.nytimes.com/live/2021/11/17/world/belarus-poland-border-migrants/belarus-offers-shelter-to-migrants-my-kids-were-freezing-and-about-to-die (last visited Nov. 18, 2021).
[17] Higgins & Santora, The main border crossing with Poland is cleared of migrants, supra note 1.
[18] Trilling, supra note 2.