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Abstract

This article is analysing the political instrumentalisation of migration by Belarus and the reactions of the EU and its Member States, from both legal and policy perspectives. The arrival of asylum seekers from Belarus to Poland in winter 2021-2022 has prompted a particularly strong and arguably disproportionate response in the EU. The wartime rhetoric of the EU equating the border crisis with a hybrid attack of Belarus was legally wrong and politically counter-productive. The notion of hybrid attack has no meaning in international law. Legally speaking, the behavior of Belarus was not an attack but a violation of the principle of non-intervention under Article 2(7) of the UN Charter. It was in fact an illegal counter-measure imposed in reaction against the EU sanctions after the repression of political opponents by the Belarus regime. Migrants and asylum seekers became the collateral victims of this political crisis. The article documents and analyses the numerous violations of human rights law and refugee law carried out by Belarus, Poland and Lithuania against migrants and refugees, such as arbitrary detentions and illegal refoulements. The article also critically assesses the EU Commission proposal for a new regulation, which establishes a sort of permanent state of emergency with a broad range of derogations to EU law and international law. The collective hysteria triggered by this crisis starkly contrasts with the enthusiastic hospitality of the EU towards Ukrainian refugees. This double standard does not only undermine the Common European Asylum System as a whole; it is also in blatant contradiction with international refugee law.

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