Poland’s Power Play at its Borders Violates Fundamental Human Rights Law 

While the political and diplomatic power play between the European Union and Belarus over sanctions and gas delivery cuts escalate, the conditions for thousands of migrants physically trapped between borders deteriorates by the hour. Despite a ban of journalists at the border area based on Poland’s declared emergency status, videos and pictures of migrants, including families with children in tents in freezing conditions without adequate shelter, food or access to sanitation facilities and stories of deaths reach the rest of the continent and beyond. For months, the situation at the border intensified with an increasing number of migrants and asylum-seekers entering Poland via Belarus allegedly with official help from the Lukashenko regime. This triggered increasingly violent responses from the Polish side of the border ranging from push-backs (legalized under Polish law, see for an analysis of the legality of the legislation on border procedure here and here) to the construction of a physical border fence. The ECtHR already ordered on 25 August 2021 in interim measures pursuant to Rule 39 of its Rules of Procedure that Polish and Latvian authorities must “provide all the applicants with food, water, clothing, adequate medical care and, if possible, temporary shelter.” The situation seems to deteriorate on a daily basis as Polish authorities seemingly ignore the interim measures and have argued that they cannot comply with them because the applicants are on Belarusian territory. 

So far, the EU’s reaction in this spiraling power struggle consisted not only of calling the Belarusian involvement in the situation a “hybrid attack” and contemplating the imposition of new sanctions on Belarus but also of condemning the violent Polish response – at least to a certain degree. However, we will argue that Poland is violating human rights on a massive scale in this border situation. Therefore, the EU is called upon once again to finally step up and protect those rights more effectively. Poland justifies its actions by referring to its sovereign right to control its borders and the EU external border. However, this right has strict limits and needs to be balanced against fundamental human rights. Poland and the EU have agreed on these limits by establishing and joining human rights regimes. Ignoring these commitments would further delegitimize already fragile standards of protection for migrants and asylum seekers.

So, how and why do Poland’s actions violate human rights Poland is bound by? In our analysis we will concentrate on some aspects of the European Convention on Human Rights (ECHR) to argue that Poland’s actions and border policy are illegal. However, this assessment is not conclusive and others have argued elsewhere that Poland is also in violation of secondary law of the European Union. We focus here on the violation of the prohibition of degrading and inhuman treatment and the prohibition of collective expulsion under the ECHR. Other human rights violations which warrant further analysis, and which claimants have relied on in their applications to the ECtHR, include the right to life, right to liberty and security, right to a fair trial, right to respect for private and family life and the right to an effective remedy. 

To start our assessment, we need to distinguish between two sets of circumstances relevant for the determination of a violation of the law. These are first, push-backs from the Polish territory to Belarus, and second, the containment of migrants in the border area allegedly without offering the possibility to lodge claims for international protection. This distinction is relevant given the question of the extraterritorial applicability of the ECHR. In other words, the question is whether Poland can dispense itself of its human rights obligations by building a physical barrier, denying claims for protection based on an emergency and the fact that those affected are not on Polish soil? 

The crux of the case: Are human rights applicable at and outside the border?

The short answer is yes. The ECHR is applicable to persons stranded at the Polish border. 

Art. 1 ECHR sets out that the Member States shall secure the rights and freedoms of the Convention to everyone “within their jurisdiction.” The jurisdiction envisioned by Article 1 ECHR is primarily territorial (see, for example, Al-Skeini and Others v. The United Kingdom). In 2020, the European Court of Human Rights (ECtHR) found that the Convention is applicable in a case comparable to our situation at hand, namely in the case of MK and Others v Poland. In that case, the ECtHR held that Poland exercised territorial jurisdiction over persons in the sense of Article 1 ECHR when subjecting them to border checks and denying their submissions for international protection. Hence, when border officials subject a person to inspection at the border, that person is within the jurisdiction of Poland and thus protected by the ECHR.

What is more, the ECtHR established several exceptions to the territoriality of Article 1 jurisdiction in its jurisprudence. 

In 2012, the Grand Chamber stipulated in the landmark Hirsi Jamaa and Others v. Italy case that the Convention is also extraterritorially applicable under certain circumstances (ECtHR Hirsi Jamaa v. Italy 2012: paras. 171-175). The Court established a jurisdictional link despite the Italian authorities acting outside their national territory on board a vessel. To do so, the Grand Chamber relied on the “control over persons-doctrine”, which provides for a jurisdictional link as long as the respective authority’s conduct constitutes a continuous and exclusive de jure and de facto control over the individual persons onboard. What we can take from this decision is that when Polish border guards carry out pushbacks, in case they enter Belarusian territory to conclude these actions, they are bound by the ECHR as they exercise de facto control over persons being pushed back. 

Hence, when Polish officials commit pushbacks on Polish or Belarusian territory or exercise border inspections, they are bound by the ECHR.   

Poland’s border policy violates the non-refoulement principle and the prohibition of collective expulsion

We now turn to a violation of the prohibition of returning someone to a place where their life and well-being is at risk (non-refoulement) under Art. 3 European Convention on Human Rights (ECHR) and the prohibition of collective expulsion in Art. 4 Protocol No. 4 to the ECHR. In this regard, it is necessary to differentiate between persons who have managed to cross into Polish territory and persons who are not admitted at border checkpoints and/or fail to overcome the fence separating them from Polish territory.

Push-backs from Polish territory

The “easier” legal question pertains to push-backs from Polish territory. The procedural dimension of Art. 3 ECHR entitles a person to an individual assessment of their claim that expulsion will expose them to degrading and inhuman treatment. The individual assessment must be independent and rigorous and requires a prompt response. Further, a person must be able to access a remedy with automatic suspensive effect (M.K. and Others v. Poland, para. 143). Art. 4 Prot. 4 ECHR complements this by preventing states:

“from being able to remove a certain number of aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority” (Hirsi Jamaa and Others v. Italy [GC], para. 177). 

The factual situation at the Polish/Belarusian border seems to be that persons are being pushed-back into Belarusian territory without an individual examination of whether they face degrading and inhuman treatment if expelled from Poland.

Yet, the more difficult legal problem is the question of Poland’s obligations when sealing off its borders? 

No borders without gates under the ECHR

The ECtHR clarified in several recent decisions of 2020 and 2021 (the cases of N.D. and N.T. v. Spain, M.K. and Others v. Poland, D.A. and Others v. Poland (note that a request for referral to the Grand Chamber is pending) and Shahzad v. Hungary) that states cannot simply seal off their borders. If a state does not offer genuine and effective means for asylum seekers to lodge their claims, it violates its duty to assess each case individually under Art. 3 and Art. 4 Prot. 4 ECHR. Hence, even though the migrants and asylum seekers’ situation on the Belarusian side of the fence may not fall under the Article 1 ECHR jurisdiction, for a lack of a territorial or another direct link, they nevertheless enjoy the right to lodge their claims for protection with the Polish border guards. If Poland entirely seals off its border and fails to provide genuine and effective border posts to lodge such claims, it violates its human rights obligations.   

However, the highly disputed 2020 N.D. and N.T. v. Spain Grand Chamber decision concretized that migrants and asylum seekers may forfeit these guarantees if the fact that they did not enjoy an individual examination is caused by their “own culpable conduct”. This means according to the Court that the people in question entered the territory en masse, with force and by circumventing official border posts. In view of videos of hundreds of desperate people trying to break the temporary border fence to Poland to gain access, Poland may try to invoke this exception. However, as long as Poland does not provide sufficient, genuine and effective measures for asylum seekers to bring lodge claims for international protection, Poland cannot rely on the exception established in N.D. and N.T. Reports of push-backs suggest that persons are not able to effectively lodge a claim for international protection even though at least some migrants have expressed their will to apply for international protection. The official border crossing in Kuznica, for example, has been sealed off by Polish authorities. Since the Polish government has held that migrants stranded at the border are part of a hybrid attack which must be averted and given the factual situation outlined, it seems unlikely that genuine and effective access to legal means of entry are available. Thus, as others have also argued, it seems likely that Poland does not comply with its duty to provide the possibility for individual examinations of protection needs. 

The repeated abuse of migrants as means to exert pressure calls for drastic EU responses

In 2011, the former leader of Libya Al-Gadaffi threatened to “flood Europe with migrants” as revenge for Italy’s endorsement of a rebel group. In 2020, Turkey’s president Erdogan used similar methods to put pressure on the EU by increasing the numbers of border crossings between Turkey and Greece. And now, Lukashenko seemingly makes use of this very same perfidious tool. History seems to be repeating itself. To state the obvious, this power play comes at the detriment of vulnerable human beings unrelated to the political issues between the actors involved. The repeated incurrence of such instances shows that the question of migration from the Global South to the Global North is as contentious and unsolved as ever before – despite international efforts such as the 2016 New York Declaration for Refugees and Migrants or the 2018 Global Compact for Migration. It is also another test for the coherence of the EU’s policies and its adherence to its own values. Between all of these issues, another danger arises: that those in need are dehumanized. The current language used by politicians describing migrants as “weapons” hides the suffering of those who ended up as pawns of power. In light of the inherent worth of every human being finding expression inter alia in Article 1 EU CFR, this cannot be tolerated. Irrespective of the ongoing dispute between Belarus and the EU, immediate measures to resolve the urgent and dire situation for those trapped at the border must be taken by the EU. This is not a question of “giving in” to Lukashenko, but a question of legal and moral duty.