The situation on the border with Belarus simply calls for a push back method. It is a bad solution, but the best available.
The situation on the border with Belarus simply calls for a push back method. It is a bad solution, but the best available.
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The push back method is nothing else than returning people who illegally cross the border to where they came from. The Border Guard uses it on the border with Belarus, just as other European formations dealing with the migration crisis. Many people draw attention to its illegality. However, the reality is more complex.
Is it possible to push a migrant back to the Belarusian side of the border? The push back method arouses great controversy, especially among human rights activists. It is often argued that it is incompatible with the 1951 Convention Relating to the Status of Refugees signed in Geneva.
There is no denying that the Polish Border Guard is using the push back method when trying to deal with the migration crisis. Does this mean that Polish border guards are thereby breaking the law? How, then, should Polish services respond to attempts by migrants to illegally cross the border? Despite appearances, there is no simple answer to these questions. And there are many indications that returning these people back to Belarus is the only reasonable option.
All the nasty elements in the narrative about the migrant crisis and the refugees themselves deserve unequivocal criticism. However, this does not change the fact that we are in an extremely complex situation that is not widely known to international law.
Consideration of the legal issues should begin with the basics: who exactly is a refugee? The aforementioned 1951 Convention uses a rather elaborate definition. In the simplest terms, it refers to people fleeing their home countries to escape persecution. Because of that persecution they cannot or do not want to return to their homeland. Polish legislation also strongly emphasizes the issue of persecution.
Meanwhile, the vast majority of people who try to get to Europe are simply looking for a better economic situation. It is no secret that they are not looking for asylum in Poland, but they are looking for a way to Germany. Our country is just on the way. Most migrants camping on the Belarusian side of the border are not refugees according to international law. Economic migrants are not protected as refugees.
International refugee protection is not available to economic migrants
Invoking the right to asylum is just a ploy to open the door to rich Western Europe for these people. Yes, in theory, we do not know whether a particular person is one of the many economic migrants or is actually fleeing persecution.
What is more, “refugees” arrive at the border between Belarus and Poland on scheduled flights organized by the Belarusian authorities, including the local secret services. The migration crisis in Poland was artificially created by Alexander Lukashenko, following the example of an identical maneuver used by Turkey a few years ago.
It is worth emphasizing that from the point of view of international refugee protection, migrants who accept Belarusian invitation are already in a safe country. Belarus is a signatory of the 1951 Convention.
Those who criticize the push back method, and Poland’s migration policy in general, refer to Article 33(1) of the Convention. It reads:
*No Contracting State shall expel or return in any manner whatsoever a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion*
They forget, however, that this provision also has a second paragraph which provides the Contracting States with a safety valve.
*However, a refugee who has reason to believe that he is a danger to the security of the State in which he is present may not invoke the benefit of this provision (…)*
In this case we are talking about an operation of foreign special services hostile to Poland. Migratory aggression on the part of Belarus is a threat to the security of the country. It is also directed against the European Union, which has an interest in stopping the waves of migrants and preventing third countries from using them for blackmail. Migratory aggression is a new phenomenon that the signatories of the 1951 Convention did not dream of.
It is also worth noting that national borders are not some kind of contractual lines. We have become accustomed to the freedom of travel in the Schengen Area and to the benefits of having a rather “strong” Polish passport. This does not mean, however, that we can “just happen” to cross the border with third countries, or fly to any country in the world without a passport.
Legality of this has been settled over 2 years ago in ECHR Grand Chamber ND and NT v Spain rulling, where ECHR rulled that pushbacks are legal as long as they have over-land element and are organized and in large numbers. All conditions which are fullfilled at PL-BY borders. In addition Poland does accept refugee applications at officials ports of entry at which migrants would have to stay, without entering territory, until asylum authorities provide their assessment. Yet they are fully empty.
Those that just throw around placards about “illegal” have no knowledge, nor interest in actual legality and use it only in political context in order for open borders advocacy.