European human rights commissioner reports on refugee “pushbacks” by Poland at Belarus border

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

The Council of Europe’s commissioner for human rights, Michael O’Flaherty, has written to the European Court of Human Rights (ECHR) reporting on Poland’s continued practice of “pushing back” asylum seekers into Belarus without considering their claims for international protection.

He also criticised the way in which political leaders have portrayed refugees and migrants as “human weapons” in a “hybrid war”, using this to justify not respecting their rights.

O’Flaherty submitted his comments to the ECHR in relation to a case that has been brought against Poland alleging that it violated the European Convention on Human Rights by sending 32 Afghan asylum seekers back over the border in 2021, when the ongoing border crisis first erupted.

His office notes that the case – as well as two similar ones brought against Lithuania and Latvia – will help “provide further clarification about the obligations of member states when faced with irregular arrivals, including in the context of the so-called instrumentalisation of migration by other states, such as Belarus”.

That issue has been brought to renewed attention this month after Poland’s government approved a new migration strategy that would allow it to temporarily and partially suspend the right to claim asylum – a measure intended to combat the crisis engineered by Belarus on the border.

In his comments submitted to the ECHR, O’Flaherty – who visited Poland on a fact-finding trip last month – noted that “Poland’s practice of summary returns of persons to Belarus without an individual assessment continues to date…in some cases includ[ing] persons who have formally requested asylum”.

That practice, informally known as “pushbacks”, has previously been criticised as a violation of human rights and international law by O’Flaherty, his predecessor as commissioner, Dunja Mijatović, as well as the UN’s special rapporteur on the human rights of migrants. It has also been deemed unlawful by Polish courts.

In his latest report, O’Flaherty noted that official data obtained by civil society groups show that 7,317 people were “summarily returned to Belarus” by Poland between December 2023 and 4 June 2024. That was more than the 6,000 recorded in a similar period of time from July 2023 to mid-January 2024.

In December last year, a new, more liberal government led by Donald Tusk took power from the national-conservative Law and Justice (PiS) party. However, it has maintained the previous administration’s practice of pushbacks.

O’Flaherty notes that there have been reported cases of pushbacks not only among people who have irregularly crossed the border from Belarus, but even among those who have crossed at official border points. He added, however, that that claim has been denied by Poland’s border guard.

The commissioner also reported that “refugees, asylum seekers and migrants, including vulnerable persons, reportedly continue to be stranded in the woods on the Poland-Belarus border”, often in difficult conditions. There have been 87 documented deaths around the border since 2021, he said.

However, he also acknowledged the role of Belarus in encouraging and helping – and often coercing – people to cross the border. He noted credible reports of “ill-treatment, sexual violence and other abuse by Belarusian state agents”.

“The commissioner recognises the challenge posed by actions by Belarus that encourage or coerce asylum seekers and migrants to move to Council of Europe member states, and enter their territories irregularly,” wrote O’Flaherty.

“Such actions may exploit migrants and put them in a situation of great precarity or even in a humanitarian or human rights emergency, whilst also placing burdens on states who are the targets of instrumentalisation,” he added.

This has led to “calls for certain derogations from existing obligations, including under EU law”. However, O’Flaherty noted that such instrumentalisation of migration is not a completely new phenomenon, and can be addressed within the existing human rights framework without the need for any exceptions.

He also criticised the framing of migrants as “human weapons” in a “hybrid war” and, therefore, a “de facto threat, implying that they do not deserve the full protection of their rights”. In May this year, Tusk declared that Poland is facing a “hybrid war of illegal migration” on the Belarus border.

In actual fact, “the practice of instrumentalising migration may also put asylum seekers and migrants in a particularly vulnerable position, which only corroborates the need to fully protect their rights in this complex and challenging situation”, argued O’Flaherty.

He, therefore, called on the ECHR to “consider restating the obligation to ensure genuine and effective access to a possibility to apply for protection, notwithstanding the challenges posed by instrumentalisation”.

The grand chamber of the ECHR is due to hold hearings in each of the three cases – against Poland, Lithuania and Latvia – on 12 February 2025.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

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.