• EB - Human Rights Society

Strong-Arming Diplomacy and Refugee Weaponization by Europe's Last Dictator: The Belarussian Crisis



ABSTRACT

The Belarussian border crisis involving thousands of refugees is yet another manifestation of the European Union’s conflicting stances on the Refuge Law and policy. While EU’s Refugee Law is deemed to be immensely humane and progressive, dissent towards its implementation from member nations causes the EU to undertake policy measures that are aimed at circumventing these legal obligations. This invariably causes significant harm to refugees who are turned into political tools for international relations. This article aims to untangle the cause behind this complex situation by analysing the EU’s law on refugees. Further, the article draws a clearer picture of the policy measures undertaken by the EU to shift its borders to circumvent the application of its laws on refugees. Additionally, the EU’s moral obligation towards refugees has been elaborated upon to establish their liability to ensure the protection of their human rights. Finally, the article draws causation between EU’s refugee law, its refugee policy, and the consequent instances of weaponization of refugees in contemporary scenarios.


Key words: Belarussian Migrant Crisis, European Union, Refugee, International Human Rights Law


1. INTRODUCTION


The European Union was formed with idealistic humanitarian intentions, upholding the rule of law and human rights, (i) along with common ideals for a humanitarian approach towards immigrants and refugees. Yet, this European wall of solidarity started showing cracks. With the European Refugee Crisis that began in 2011, regional politics and nationalistic ideals forced the EU to revisit its migration policy. This manifested in the form of the EU undertaking innovative, yet questionable, ways of circumventing its own laws.


The latest blow came from Alexander Lukashenko, referred to by many as “Europe’s Last Dictator” through the Polish-Belarussian Border Crisis. Thousands of refugees from the war-torn Middle East approached Poland’s border from Belarus, and many accuse Belarus of manufacturing the crisis as “hybrid-warfare”. Tens of thousands of these refugees are currently stuck on the Belarussian borders with Poland, Lithuania and Latvia making desperate attempts to cross the border. Yet, border crossings have been halted by Poland, Lithuania and Latvia, who have undertaken substantial deployment of armed forces on the border. Critics argue that Poland’s strict border stance is harmful to the refugees stuck on the Belarussian side, stating that Poland could take a softer stance of deporting the refugees instead of subjecting them to inhumane conditions on the border. Poland’s aversion to this alternative can be better understood by analysing EU’s legislation and political policy on refugees.


2. EU LAWS ON REFUGEES


The EU has a fairly humane legal framework on asylum. The European Convention on Human Rights (ECHR) largely leaves the issue of border management to nations. But these powers have been made subject to certain considerations deemed imperative under the Convention.


A contextual right to asylum has been granted under Article 18 of the EU Charter for Fundamental Rights, and Article 19 of the Charter upholds the principle of non-refoulment. Article 3(1) of the Asylum Procedures Directive provides the scope of asylum applications, whereby such applications can be made upon reaching the EU’s territory. Article 6 further provides that asylum seekers must be granted adequate access to these procedures of fair consideration of asylum applications, while also guaranteeing fundamental safeguards under EU laws. This implies that illegal immigrants cannot be directly returned from the borders without a fair hearing against applications seeking asylum.


While asylum is not a matter of right under ECHR, Article 3 of the Convention prohibits returning asylum seekers if it puts them at risk of torture, punishment or inhumane and degrading treatment. Additionally, Article 2 may also be invoked to guarantee the right to life.


While the EU allows for the establishment of transit zones to assist nations in processing immigrants, the Schengen Borders Code requires this processing to uphold basic human dignity. These rules are guided by the Directive on common standards and procedures in the Member States for returning illegally staying third-country nationals, which provides for the following safeguards:


· Article 4: Member states must take into account the best interests of children, family life and the health and condition of third-country nationals while respecting the principle of non-refoulment.


· Article 10: Unaccompanied minors can only be returned to family members, or home states if adequate facilities are guaranteed.


· Article 13: Third-country nationals have the right to appeal against any decision made regarding their return and must be granted adequate legal assistance free of cost by member nations.


The Preamble of this directive requires all decisions to be taken on a case-by-case basis, with considerations going beyond the mere fact of illegal stay. Additionally, the national policy must uphold the rights granted by the Convention.


While member nations have argued that illegal immigrants at transit zones do not fall under their jurisdiction, this has been conclusively rejected in the Case of Amuur v France (No. 19776/92, ECHR 1996-III). Further, on multiple occasions, the European Court of Human Rights has held that individuals, over whom member nations exercise control at high seas, would also fall under their jurisdiction and would therefore be subject to EU safeguards. (ii)


Finally, Article 47 of the EU Charter of Fundamental Rights provides a general safeguard whereby all individuals alleging any violation of rights guaranteed under EU laws, have a right to fair redressal.


All these safeguards, while essential and very humane, provide member states with an incentive structure to avoid its implementation. As observed in instances discussed below, member nations deem the procedure and safeguards to be expensive and a huge burden on their social welfare structures. Coupled with the EU’s weakening unity, this provides the EU with incentives to avoid the implementation of these safeguards through creative circumvention. This primarily involves neighbouring nations who are tapped into for extended border protection, thereby creating a buffer between EU territories and immigration routes.


3. CASE STUDIES ON EU’S MIGRATION POLICY FRAMEWORK


A. EU-Turkey Migration Agreement

With the initial refugee influx around 2015, there was a considerable backlash within member nations against the EU policy on immigration, with individual nations expressing dissent to the unified policy. To preserve the EU’s unity, they looked outwards to nations that they shared borders with. Turkey, being located between the war-torn middle east and the EU, became a prime candidate.


Consequentially, the EU entered into an agreement with Turkey in March 2016, whereby Tukey would considerably contain the influx of refugees in exchange for financial support (6 billion Euros), visa liberalisation and reactivation of the EU accession process. This led to a virtual shift in the EU’s borders through the creation of buffer states to which EU policy and standards for the treatment of refugees don’t apply.


B. Melilla: Spanish Manifestation of the EU Policy

EU’s border extends beyond the continental confines of Europe. Spain holds two enclaves within territorial Morocco, Ceuta and Melilla. These enclaves saw significant intrusions from refugees escaping violence and poverty in Sub-Saharan nations. These provided for a safer passage into Europe owing to the territorial link between Morocco and the enclave itself.


While security on Melilla’s border was always monitored by Spanish authorities, EU policy of expanding roles of “buffer states” through exertion of economic and diplomatic influence became evident post a spike in border intrusions by refugees from Morocco into Melilla in 2005, with these attempts being violently crushed. Spain provides preferential economic treatment to Morocco. This incentive structure allowed Spain to involve Moroccan authorities in the efforts to secure Melilla’s borders.


4. MORAL CONSIDERATIONS FOR EU’S OBLIGATION


While legal obligations may be circumvented through the involvement of these buffer nations, the EU still has to uphold moral obligations owed to refugees. Therefore, a deep dive into EU’s moral obligations is essential.


A. Humanitarian Obligation to Grant Refuge

On humanitarian grounds, European nations are prime regional candidates for refuge. They have surplus resources with strong social welfare structures that allow for effective refugee integration. Europe is also geographically close to the regions currently engulfed by violence, and yet boasts a considerable political and social stability which is essential for integrating refugees.


The secular and liberal nature of EU provides better conditions to refugees who are fleeing predominantly religious conflicts, like those escaping the conflict between Christian Anti-Balaka and the Muslim Séléka in the Central African Republic.


B. The Colonial Obligation

Europe’s colonial enterprise and the consequent Eurocentrism in the 19th and 20th century re-wrote the socio-economic and political landscape of many countries. Indirect blame is cast on European colonisers for sectarian and ethnic conflicts in former colonies, and direct blame is cast for the manner in which subsequent independence of colonies was undertaken. This primarily refers to the drawing of arbitrary national borders with complete disregard of ethnic and historical contexts.


The Kurdish example (iii) provides a clearer manifestation of this. It is relevant since many refugees at the Belarussian border and the ones in Turkey are ethnic Kurds. Post-World War I, the victorious nations undertook the task of dismantling the Ottoman Empire. Demands for an independent Kurdish state were ignored by European powers and Kurdish majority areas were split between nations like Turkey, Syria and Iraq. Consequentially, decades-long conflicts are still underway in the region for a separate Kurdish state owing to the vastly separate identity of the Kurds from the nations that they were split into, and the subsequent mistreatment that they have faced. (iv)


5. CONCLUSION


Outsourcing of border security to avoid refugees is not unprecedented. In 2014, after a spike in illegal border crossings from people escaping violence from Guatemala, El Salvador, and Nicaragua, the US Government-funded Mexican authorities to push for stricter border security on Mexico’s southern border. Yet, EU’s moral obligation is arguably more direct. Not only have most European economies benefitted greatly from colonial exploitation, but this colonial enterprise is partially responsible for various conflicts in post-colonial nations. Regardless of the policy framework chosen by the EU for dealing with the refugee crisis, primacy must be given to the protection of human rights of these refugees.


While EU’s circumvention of its laws may be deemed justifiable by some, this circumvention mustn't allow for exploitation of refugees by its neighbouring states. Belarus is not a sole contemporary example. Turkey undertook a military campaign to create a buffer zone in Kurdish controlled regions of Syria to relocate Kurdish refugees present in Turkey at that time. While EU’s agreement with Turkey was deemed to be justified owing to the refugees being admitted into a conflict-free and economically stable region, such subsequent displacement vitiates this justification. This situation has been exacerbated further by reports of human rights violations at the hands of Turkey. Therefore, within the current framework, EU cannot guarantee humane treatment of refugees within these buffer nations. This issue is caused by EU’s inability to accurately fix accountability on parties for breaches of human rights over these extended borders.


Rather, this display of weakness within the framework of EU’s refugee policy has allowed for diplomatic exploitation, and the Belarussian refugee crisis is a manifestation of the same. Innocent refugees have been made pawns in international power-play, which has created a need to grant primacy to the protection of their human rights. Within the current policy framework, this can be ensured through greater obligations of protecting human rights being imposed on these “buffer states” by the EU while also formulating refuge agreements.


Lastly, while the policy framework undertaken by the EU to deal with refugees is immensely humane, the same is not being upheld. Instead, the existence of these laws and policies only weakens the EU’s united stance and allows for exploitation by these partner nations, as well as those seeking to undermine EU’s interests. These cracks have started to show, and has made the Union vulnerable to actors like Belarus. Therefore, the EU must revisit and reconsider the existence of a policy it doesn’t uphold, but whose existence itself allows for the weaponization of vulnerable and innocent refugees.


REFERENCES

(i) Manners, I. (2002) “Normative Power Europe: A Contradiction in Terms?”, Journal of Common Market Studies, 40(2), pp. 235–258.


(ii) Xhavara and Others v. Italy and Albania, No. 39473/98, 11 January 2001; ECtHR, Medvedyev and Others v. France [GC], No. 3394/03, 29 March, 2010.


(iii) Gunter, Michael M. “The Kurdish Question in Perspective.” World Affairs, vol. 166, no. 4, World Affairs Institute, 2004, pp. 197–205, http://www.jstor.org/stable/20672696.


(iv) Houston, C (2008), Kurdistan: the crafting of national selves. Berg, Oxford, UK; New York, US.



This piece has been authored by Prateek.


Prateek is a final-year student of law (BA LLB) at the Army Institute of Law, Mohali.


Image Source: https://eng.belta.by/photonews/view/several-hundred-people-gather-at-polands-checkpoint-8284/

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