In recent months, thousands of migrants from the Middle East, South Asia, and Africa have attempted to illegally enter Poland and fellow EU members Latvia and Lithuania from Belarus, many of them after arriving in Minsk on the proliferating flights from those regions to the Belarusian capital.
As the crisis on the EU-Belarus border grows, how can the European Union, its member states, and the West respond, whether it's by filing suit at international courts, imposing sanctions, or just trying to deal with the flow of migrants in third countries? Here are some key questions and answers.
If this is all being organized and choreographed by authoritarian ruler Alyaksandr Lukashenka and his security forces, are they violating international laws and commitments?
If it can be proved that what Minsk is doing is in fact human trafficking, then the answer is yes. Belarus is a party to the United Nations Convention Against Transnational Organized Crime and more specifically to two related documents that entered into force in 2003-04, the UN Protocol To Prevent, Suppress, And Punish Trafficking In Persons, Especially Women And Children and the UN Protocol Against The Smuggling Of Migrants By Land, Sea, And Air. The UN Security Council has also passed resolutions against human trafficking, most notably in 2017, so the international legal framework to potentially incriminate Lukashenka’s regime is there.
"If the reports that the regime is luring people in with the false promises of safe passage to EU are true – and all direct and indirect evidence points to that -- Belarus would be violating international regulations on preventing trafficking in persons at the very least,” said Bakhti Nishanov, a senior policy adviser to the U.S. Commission on Security and Cooperation in Europe, also known as the Helsinki Commission.
But there’s more.
"Belarusian border forces’ abusive treatment of migrants amounts to ill treatment, and in some cases possibly torture,” said Rachel Denber, deputy director of the Europe and Central Asia Division at Human Rights Watch in New York, contending that Minsk is violating its obligations under the UN Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment.
“If they are forcing migrants into Poland (or Lithuania) then that would amount to collective expulsion, which is also banned,” Denber said. And restrictions on freedom of movement violate the Universal Declaration Of Human Rights.
But is there legal recourse for the EU or individual EU states? Can they take Belarus to court?
They could, but they won’t -- at least not very soon, according to several EU diplomats who have spoken to RFE/RL on condition of anonymity. First of all, any legal recourse would take time -- and the EU and its member states want quick action. Second, enforcement is tricky: Many countries have ignored various international rulings in the past and many expect Minsk to do the same in this case. And then there is the matter of deciding which court to go for. Belarus is not party to the International Criminal Court (ICC) or the European Court of Human Rights (ECHR). The International Court of Justice (ICJ) normally adjudicates between two states that willingly put forward their arguments in a dispute, and to force one state to do so can take several years.
So, what other options does the EU have? Can sanctions be applied?
Yes, and the bloc is currently working on a sanctions package that could be green-lighted when its foreign ministers meet in Brussels on November 15, entering into force shortly thereafter. The EU agreed earlier this week to expand its sanctions criteria for Belarus to include “natural or legal persons, entities or bodies responsible for organizing or contributing to activities by the Lukashenka regime facilitating: a) illegal crossing of the external borders of a Member State b) smuggling of illegal or hazardous goods into the territory of a Member State.”
According to several diplomats familiar with the discussions about the sanctions, the EU -- with this enlarged scope in mind – will impose asset freezes and visa bans on some 40 people and entities Brussels considers to be involved in whipping up pressure on the EU border.
On the list will be officials and transport companies in Belarus that are ferrying people to the frontiers as well as state airline Belavia -- including a ban on leasing planes to the company, diplomats said. Also targeted will be all state-owned banks that aren’t already under sanctions; Belarusbank, Belinvestbank, Belagroprombank were blacklisted over the summer.
Will these sanctions have the desired effects?
That is doubtful, experts say. They fall short of the sweeping measures that many have been calling for. And since the autumn of 2020, the EU has already imposed four rounds of sanctions that together cover 166 people, including Lukashenka and his closest family members and entourage, as well as 15 entities. Parts of the country’s petroleum, potash, banking, and tobacco sectors have also been targeted. Yet, these moves don’t seem to have discouraged the Minsk regime.
But while the sanctions that are on the way may be underwhelming now, they could still be spiced up somewhat in the coming days. There is, for example, still debate about whether to include Belarusian airports and ground handling, and there are calls to also target third-country airlines.
At the same time, Brussels appears to be treading carefully. Given the chance that the sanctions will be challenged at the European Court of Justice (ECJ), there is a need to show meticulous evidence that people and companies are in fact involved in what they are being accused of. That is also one of the reasons why Russia is off the hook for now, as a direct link between Moscow and the migration crisis has not been documented. Meanwhile, the lucrative trade that goes via Belarus may translate into wariness about trying to impose tougher restrictions.
What else can the EU do?
Frontline states are already building walls and fences and would love the EU to pay for it -- something the bloc has categorically refused to do for a long time, in part due to memories of the Berlin Wall and concerns about the optics and the real-life implications of border barriers. All eyes will be on the European Commission as it plans to update its Schengen Border Code in early December, spelling out what actions a member state can take in case of a hybrid attack such as an artificially created inflow of irregular migrants. And while fences and walls might not be spelled out concretely as ways to protect the EU’s external border, “physical barriers” as a measure for protection of it may well be.
What kind of leverage does the EU have with third countries that fly migrants to Minsk?
It depends. The European Commission has stated that its main priority now will be to try to “turn off the tap” to Belarus. Margaritis Schinas, a commission vice president responsible for migration and asylum issues, is due to visit several countries the migrants have come from in the coming days. With Iraq, Brussels managed to reduce the number of direct flights in between Baghdad and Minsk considerably after political pressure and threats to cut development cash. A similar tactic might work with Lebanon, Jordan, and Syria, EU officials say, but they expect a tougher task when it comes to persuading Turkey and the United Arab Emirates. Ankara has its own migrant deal with Brussels, keeping millions of refugees from crossing the Aegean Sea, and it might seek further financial incentives in exchange for help in this area.
According to the Commission, the majority of people at the borders of Lithuania and Poland are Iraqis. And while the government in Baghdad has been cooperating with the EU on the issue, it has been loath to accept returnees unless they come back voluntarily -- a matter that EU officials say must be addressed as more and more people are stuck in no man’s land.
What about organizations such as the UN refugee agency (UNHCR), the International Organization for Migration (IOM), and the Red Cross? Are they doing anything? Can they get involved to avoid a humanitarian disaster?
Very few organizations are allowed near the border region, but the Polish authorities are working with the Red Cross and with Caritas, a Christian aid organization. Both UNHCR and IOM officials have been in contact with Minsk and Warsaw, urging them to get unhindered access to the migrants, provide humanitarian assistance, and most notably calling for those who wish to apply for asylum to be able do so where they are. This could prove to be a bridge too far for the Polish government, which doesn’t want to appear as if this route to asylum in the country is working for fear of facing more arrivals. Poland has also so far, unlike Lithuania, ignored calls from Brussels to let the EU border agency, Frontex, have a presence, arguing that its national border guard aided by the army can handle the situation. But if the humanitarian situation becomes worse during the winter, expect more calls for various international organizations to step in, on both sides of the border.
