European human rights commissioner voices concern at Poland’s response to Belarus border crisis

The Council of Europe’s commissioner for human rights, Michael O’Flaherty, has expressed concern over Poland’s response to the migration crisis on its border with Belarus.

He warns that the practice of sending border crossers back to Belarus, including some who have sought to claim asylum, may violate international law. O’Flaherty also criticised the introduction of an exclusion zone on the Polish side of the border as well as plans to soften rules on the use of firearms by officers.

In a response to the commissioner’s remarks, a Polish deputy minister has assured him that Poland respects its legal and humanitarian responsibilities but also noted that the situation at the border is one “that neither international law nor Polish law could have predicted”.

In a letter to Prime Minister Donald Tusk sent last week, O’Flaherty said that evidence shows that 7,317 people were “summarily returned to Belarus” between December 2023 – when Tusk’s government came to power – and June this year. In some cases, this concerned people who had claimed asylum in Poland.

The commissioner noted that this continues a practice begun in 2021 under the former government in response to a migration crisis that has seen Belarus encourage and assist tens of thousands of people – mainly from the Middle East, Asia and Africa – to try to cross into Poland.

Such “pushbacks” were previously criticised by O’Flaherty’s predecessor as well as the UN’s high commissioners for human rights and for refugees, he noted, adding that they risk violating the principle of non-refoulement, enshrined in international law, that forbids countries from deporting refugees.

That principle is “absolute…and cannot be derogated from, even in terms of an emergency threatening the life of a nation…[and] applies irrespective of the conduct of the people involved, which may include the act of crossing a border in an irregular manner”, wrote O’Flaherty.

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The commissioner also expressed concern that the so-called “buffer zone” introduced by the government last month – which bans unauthorised people from approaching parts of the border – prevents access for humanitarian groups, human rights monitors and the media.

“I acknowledge the seriousness and complexity of the tasks faced by the Polish authorities in managing migration at the border,” wrote O’Flaherty, adding that he “condemns” Belarus’s “instrumentalisation of irregular migration”.

“However…the invocation of national security cannot serve as a carte blanche to adopt measures that raise questions of compatibility with human rights standards,” he said.

Meanwhile, O’Flaherty also sent a separate letter to Małgorzata Kidawa-Błońska, the speaker of the Senate, the upper house of parliament, which is currently considering a bill approved by the lower-house Sejm that would remove criminal liability for officers who use firearms to defend the border.

The commissioner noted that international law requires states “to reduce as far as possible the adverse consequences of the use of force”, including that “governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence”.

He warned that the proposed legislation could discourage border agents from using force proportionally and could result in the use of firearms not being properly investigated. “I [therefore] respectfully ask the members of the Senate to refrain from adopting the bill in its current form.”

Yesterday, Polish deputy interior minister Maciej Duszczyk, who has oversight of migration and border policy, officially responded to O’Flaherty’s letters.

He began by noting that the border crisis engineered by Belarus, which “combines activities of the state apparatus with those of criminal organisations dealing with smuggling of migrants”, is something “neither international law nor Polish law could have predicted”.

Duszczyk also pointed to the “brutal attacks” against Polish border agents by some migrants, who have used knives, branches, broken glass and stones. In one case this year, that resulted in the death of a Polish soldier who had been stabbed while trying to prevent a border crossing.

“Analysis of the situation at the border with Belarus must take into account the specificity of this phenomenon, which is an element of hybrid activities connected to Russia’s aggression against Ukraine…[and ] aims to destabilise the internal situation not only in Poland, but also in other EU member states,” he wrote.

Duszczyk claimed that “the Polish Border Guard respects the principle of non-refoulement, allowing foreigners to submit applications for international protection”. So far this year, 1,688 such applications have been accepted at border guard facilities at the border with Belarus, he wrote.

But “humanitarianism towards the victims of instrumentalisation must go in hand with the fulfilment of the state’s irrevocable duty to ensure the security of its borders and citizens”, added the minister. “Poland unwaveringly protects the external border of the EU.”

He pointed to European Court of Human Rights case law that has confirmed “that states have the right not to admit persons who attempted to cross the border illegally”.

Duszczyk also noted that normal border crossings with Belarus remain open and that it is possible for asylum seekers to submit applications for international protection there if they wish.

Main image credit: Agnieszka Sadowska/ Agencja Wyborcza.pl

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.