In mid-November, Poland grabbed the headlines, not because of a further attempt to restrict the right to abortion, or attacks on gay people. Poland found itself in the tense situation of having to guard its border with Belarus against the attempt by several thousand people from the Middle East and further afield trying to enter the EU through their border.

The situation appears to have cooled down now. But that does not mean that all of the migrants have left or decided to make their futures in Belarus and the situation could easily become urgent once again.

This crisis showcases the ambiguities of refugee law both provoking and being exacerbated by political rivalries and possible cases of state-sponsored human trafficking. Violence was stirring, armies were deployed, and the struggle for survival became desperate, as hunger and exposure to freezing temperatures took their toll.

This migration emergency on Poland’s eastern border exposed again the limitations of law and policy when confronted with the reality of desperate people seeking to escape war, poverty and political unrest. Many of these people may not qualify for refugee status, but they came knowing that if they could reach a safe country and claim asylum, their claim would have to be given individual consideration, and that takes time, leading to significant numbers that end up staying for good. Due to increases in migration caused by the political and economic instability sparked by human-caused climate change, crises like this appear poised to continue.

There is a legal obligation on Poland not to force people back into Belarus without fully considering their claims to asylum. Under the principle of non-refoulement, as defined in article 33 of the 1951 Refugee Convention, no refugee shall be returned to any country “where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. This means that consideration of the possible need for asylum must legally be undertaken. The fact that the migrants intended to go on to Germany rather than stay in Poland is not legally relevant when looking at the violation of Poland’s obligation to the migrants.  

Where migrants did make it onto Polish territory, Poland breached international law when it forced them back across the border. When analyzing this breach, it is important to appreciate the context in which it happened. In addition, unpacking the ambiguity of the law as the situation played out at the border is instrumental to understanding how to effectively prevent a similar crisis in future. We know that the ban on refoulement applies to all who are already in the state. Whether it also applies to those who arrive at the border and request admission into the territory remains unclear. Moreover, refugee law simply has no mechanism to address a situation where a country, in this case Belarus, effectively used desperate people as a weapon against its neighbours. What should Poland have done? 

Human trafficking is another dimension to what could have been a humanitarian disaster. There is a real possibility that the Belarussian officials responsible for the creation and implementation of the policy of facilitating, even encouraging, migration through the country to Poland were in fact committing the criminal offence of trafficking in human beings. Steffen Seibert, a spokesman for then-German Chancellor Angela Merkel, has made that claim, saying that Belarus committed “state-run smuggling and trafficking … at the expense of the people who are lured into the country with false promises”. Others, including journalists from Der Spiegel and France 24, as well as politicians from Lithuania, Latvia and Estonia, followed suit. 

When it comes to identifying human trafficking, the media and politicians do not always get it right, preferring sensation over legal accuracy. In this case however, the legal argument for human trafficking can be legitimately made. Belarus is a party to the Council of Europe Convention on Action against Trafficking in Human Beings which, along with the UNODC defines trafficking as the recruitment, transportation, transfer, harbouring or receipt of people by various means, including force, deception, the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits for the purpose of exploiting them. The case can readily be made: the recruitment, transport and transfer were well established through first-hand accounts of the migrants. It is no secret that additional flights were added to flight schedules to facilitate the transport. The means were obvious: deceptive promises of a better, dignified, life, as well as abuse of a position of vulnerability. The sticking point may be exploitation, which is not defined in international law. 

It is hard to deny that Belarus was exploiting the vulnerability of migrants to bring pressure to bear on the European Union in response to sanctions imposed by Brussels. Minsk was using the migrants to gain a political advantage; this is exploitation, and it could happen again in Belarus or other countries with a similar will.

The three elements found in any definition of human trafficking are present, but now what? When it comes to human trafficking, gathering evidence is hard and prosecuting even harder. Since the crisis unfolded in a state of emergency, where the Polish government did not allow anyone access to the exclusion zone in the forests along its border with Belarus — no journalists, no volunteer medical doctors, no NGOs – one has to ask what is happening to those people who have not taken flights back to their home countries from Minsk. In the longer term, Poland must be aware that it is vulnerable to this happening again. The humanitarian challenge is to be able to deal with this without breaching legal obligations to vulnerable people who are seeking to enter the country. It is increasingly apparent that the vagaries of refugee law, the lack of a legal definition of exploitation and the increase in refugees globally have set the stage for exploitation and potential trafficking for political gain. We need to begin the process of addressing some of these issues now, before the next crisis at the border. 

Prof. Ryszard Piotrowicz is a professor of international law and a director of research in the department of Law and Criminology at Aberystwyth University. He specialises in migration, in particular the law concerning trafficking in human beings. He is a former Vice-President of GRETA, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings. @AberIHL

Dr Julia Muraszkiewicz, is a Practice Manager at Trilateral Research working on addressing societal problems using a SocioTech approach. She specialises in the law concerning trafficking in human beings, human security and victimology and understanding how data can be used to better understand these phenomenon. @jmuraszkiewicz