Magdalena Smieszek (Central European University)
There is a quote attributed to Newton that “we build too many walls, and not enough bridges.” The truism remains regardless of origins. It is walls, psychological and legal if not outright physical, that a certain set of migrants, often of the Muslim variety, meet at the European borders. As of writing, there are reports of four migrants, identified as Iraqi, that have been found dead on the Polish-Belarusian border, and several more migrants have been hospitalized. This is within a shameful weeks-long political standoff, one that has had an EU stamp of approval, in which Poland, like its Baltic neighbours, has declared a state of emergency at the border, blocking migrants from assistance and claims of asylum, while obstructing further scrutiny about any of this from journalists, human rights monitors, and NGOs. The suffering of fellow human beings ought to compel immediate EU collaboration with its neighbors on humanitarian matters, but has instead produced an authoritarian-like stalemate while people seeking international protection die of hypothermia. Henceforth I offer some commentary on legal and institutional implications, but will continue to leave aside the tone of emotionless neutrality. We’re in an emergency, after all.
Indeed, a perpetual state of mental crisis hovers over Europe and the world. Recent headlines would have us think that the displacement of Afghan people following the U.S. and NATO withdrawal of military forces from Afghanistan, or perhaps the looming effects of climate change, is the dawn of another “refugee crisis” even though the term should have already been taken out of the European lexicon. But here it is again, the perceived threat combined with ambiguous empathy, riled up by political and media-driven discursive tropes. References to “another wave” of migrants and asylum seekers is language a bit too similar to news about Covid. Except this time the political response is more resolute – that Europe is not really in the mood to go down the road of compassion for those asylum seekers that just go ahead and show up as if they were running from something, because suspicion is placed on the way they show up. In other words, it’s not their plight that gets the most attention but who is aiding their movement. The Czech Prime Minister even said, after speaking with some other EU leaders, that there is “really no place for them” in the European Union, referring to Afghan refugees.
To this, the European institutions’ cognitive dissonance has ensued with varied responses. In their meeting about Afghanistan, the Ministers within the Justice and Home Affairs Council of the EU discussed and put out a statement about what this situation means for international protection, migration, and security – their response had internal strife and was met with significant criticism, noted well by the European Council on Refugees and Exiles (ECRE). The European Commission has a plan to support neighboring countries to prevent movement, reinforce capacity at borders, grant humanitarian visas, coordinate voluntary resettlement, and encourage use of clauses in national agreements with third countries that permit EU member states to return refugees to those countries if not back to the countries of origin. In turn, the European Parliament, in its resolution, had a “wake-up call” and a more candid quality in expressing solidarity with Afghans, whether with those that remained or fled, recognizing that rather than a migrant crisis, this is “first and foremost a humanitarian and human rights crisis.” MEPs called for the European Commission and EU member states to comply fully with international law in a coordinated effort with their moral responsibility to pursue a humane asylum policy.
None of these laws, morals, and policies have prevented the migration-oriented standoff at the Belarusian border with the EU, that includes Poland, Latvia, and Lithuania, concerning primarily Afghan and Iraqi nationals. First off, a state of emergency as a principle of international law is meant exceptionally to permit rights and freedoms being suspended, but the Covid era apparently has brought into the mainstream this practice reminiscent of dictatorships and the Soviet era. In July, Lithuania was the first to call a state of emergency in response to an increase of migrants from Belarus, reportedly being pushed in by Belarusian officers in riot gear. The Lithuanian Interior Minister said it was not the “threat to the country” that called for the measure, but to improve the system that receives migrants, a comment that undercuts the legal justification for a state of emergency. Meanwhile, their parliament decided to build a fence. Latvia followed suit and declared a state of emergency, from August until November, at the border with Belarus, permitting border guards, armed forces, and police to use physical force to return the migrants, and a fence is going up there as well.
Then Poland went ahead and declared a state of emergency, a first since the communist era, in response to a handful of Afghan asylum-seekers at the border with Belarus – this measure preventing journalists, lawyers, and aid groups from gaining access. The most attention has been on 32 Afghans, mostly men but also 4 women and a teenage girl, that have been trapped “in no man’s land” between Poland and Belarus, and neither country would let them enter. In the cold, migrants have been drinking stream water and eating grass, with no bathroom facilities, some have reportedly been losing consciousness, and the women are under the gaze of the guards, with no access to sanitary materials. A Polish NGO arrived to help with tents, sleeping bags, food, and paperwork from lawyers, but they were pushed back by the border guards. When the NGO helpers tried to communicate with the migrants via megaphone, the guards turned up their car engines to drown out the noise. And why would such cruel and juvenile behaviour happen, one wonders. The simple unsatisfactory answer given is that Belarus is retaliating against EU sanctions, while Poland and the EU are countering illegal migration. While this answer may be relevant for a broader political discourse, it is quite irrelevant when it comes to saving lives of human beings and complying with international law when said humans seek asylum. And of course, this is hardly the first time that cruel responses denying basic rights have happened on the EU border. Pushbacks and denial of necessities happen repeatedly.
This is, mind you, in spite of the European Commission President von der Leyen’s fairly recent State of the Union speech in which she said that a European response to refugees and migrants must be done with “empathy and decisive action.” Of course, there is very often a disconnect between political rhetoric of a particular stance and the general vibe on the street, but the feelings of the European people are in fact much more nuanced and welcoming than headlines and national politicians insist.
Empathetic resolve must begin by applying international and European laws, ones that themselves have psychological underpinnings as I have written about. In response to the chaos at the EU/ Belarusian border, the UN High Commissioner for Refugees (UNHCR) quickly appealed to the Polish government with a basic request that everyone should know by now – “to provide these people with access to the territory, immediate medical care, legal aid, and psychological and social support,”in line, by the way, with Poland’s own Constitution. National, international, and European human rights laws require that individual assessments be made concerning asylum claims, and that asylum seekers should not be punished (ie. not starved, pushed back, denied assistance and asylum) for being at the border illegally. UNHCR noted that the“instrumentalizing of vulnerable persons” for political points goes against international refugee law and the humanitarianism to which the states have obliged themselves. In more recent UNHCR observations on Poland’s draft law amending the Act on Foreigners and Act on Granting Protection to Foreigners, the refugee agency notes that the law’s restriction of access to territory and asylum procedures with arbitrary rejection for persons crossing illegally creates de facto two categories of asylum seekers. They stress that the right to asylum, as espoused in numerous international laws, including the EU’s own Charter of Fundamental Rights, does not depend on type of arrival.
Likewise, with the patience of saints, the European Court of Human Rights (ECtHR) responded with statements to Lithuania, Poland, and Latvia, applying Rule 39 and seeking interim measures, kindly requesting the countries to provide food, water, clothing, adequate medical care and, if possible, temporary shelter for the Iraqi and Afghan nationals at the Belarusian border. But the ECtHR qualified its statement that the governments under the purview of the European Convention of Human Rights (which includes the right to life…) to which Belarus is not a party, do not have to let the applicants into the countries. The UN has echoed such notions, ad nauseum, that providing human rights does not impede state control over their own borders, as if putting this qualification in human rights focused statements is at all necessary – we get it, states have sovereignty; there is no need to undermine the call for universality.
Let’s reflect for a moment on the absurdity at the core of this particular European crisis – the EU responds to Belarusian abuse of human rights through economic sanctions, to which Belarus responds by facilitating an increase of migrants at the EU border thereby showing EU hypocrisy when it comes to human rights. If Belarus is playing a political game with migrants as the pawns, the European Union apparently is doing the same. Belarusians and EU member states alike are using physical force on persons coming out of war-torn and impoverished countries and denying them basic necessities and legal rights. The “right” political play would be one of collaboration with diplomacy and consistency of rule of law at the forefront, these high virtues that the EU espouses. But alas, we are left with the governments bickering, while regular citizens are either eating up the justification or standing up against it, all while migrants – aka human beings – are deprived of dignity as they barely survive, or don’t.
Europe has a moral and legal obligation that must not be so muddied – to not block, reject, and essentially torture asylum seekers thereby ignoring their (and one’s own) fundamental rights and causing further psychological damage that itself can create security risks, but do the human right thing in line with tomes of international commitments. I wrote a book about the psychology of refugee-related human rights laws, which have evolved and been in place for generations – by all means, have a look. But really, open hearts already know that all human beings have a right to life and that requires food, protection, to be taken care of, and not be abandoned. Yes, there is a crisis, but as I and many others have voiced, the emergency concerns Europe and her identity. In a transnational online call with activists and politicians this past week, organized by Rethinking Refugees in Poland, citizens expressed concern about the situation at the border and expressed their understanding of European law. The bridges that can be built can be achieved through dialogue and mutual care, and so we remain astute about “the future of Europe” around which an EU citizen conference is ongoing, and perhaps there we can pin the most potential.
Magdalena Smieszek ([email protected]) is a team member of the BRIDGE Network. She completed a Doctorate of Juridical Science (SJD) at the Central European University, in the field of European migration and human rights, in addition to degrees focused on international law from universities of Oxford (an MSt), Windsor (a JD), and Calgary (a BA). In her book, The Evolving Psyche of Law in Europe: The Psychology of Human Rights and Asylum Frameworks (Springer, June 2021),. she explores the social psychology of international human rights and asylum frameworks. She has taught at both the graduate and undergraduate level, notably at CEU in several departments, the Open Learning Initiative (OLIve) for refugees and asylum seekers, the Roma Graduate Programme, and at Al-Quds University/ Bard College in East Jerusalem. She has over twenty years’ experience working internationally, including a ten-year period in several positions with the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the United Nations Development Programme (UNDP) and others, acquiring considerable global experience. She welcomes listeners of the How We Are Human podcast.
The views expressed in this blog reflect the position of the author and not necessarily that of the BRIDGE Network Blog.