Poland-Belarus Border Crisis and Human Trafficking Overview

THE POLAND-BELARUS BORDER CRISIS AND TRAFFICKING IN HUMAN BEINGS - A CRIMINAL LAW PERSPECTIVE Jan Stajnko, University of Maribor Micha Wawrzy czak, Adam Mickiewicz University & University of Bologna

POLAND-BELARUS BORDER CRISIS IN A NUTSHELL - TIMESHEET Summer 2021 The migrant wave starts to flow in through the border; Increased number of security officials were directed to the area; August 2021 Lithuania passes the law which allows for pushbacks to be performed; October 2021 Poland passes the law which allows for pushbacks to be performed; October-November 2021 Poland passes the law which allows to build the wall across the border (180-km long on 418km-long border); January-June 2022 Construction of the border wall (fence); 13 June 2024 establishing 'buffer zone on the border, which continues until now; according to the officials, it had reduced crossing attempts by 46%.

BORDER CRISIS IN NUMBERS DATA Year Attempts (approximately) Crossings (detainees) Bundespolizei data on crossings 2021 40 000 3 480 11 213 / 9 579 2022 16 000 990 8 534 2023 26 000 700 14 303 2024 30 000 2 278 16 148 / 4 888 2025 (until now) 6 500 n/d 1 288 / 69 Total: 118 500 7 448 BUT other data indicates ~6000 from 2021 to 2023 51 486 / 37 373 Disclaimer: the data is official only for attempts (Polish Border Guard), on crossings we can only relate on the numer of detailed persons (that were not pushed back) and this may not always be accurate as to including solely Belarussian border. Similarly to the data from Bundespolizei the data sometimes varies as to how many people come through Belarus route.

HUMAN TRAFFICKING UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime CoE Convention on Action against Trafficking in Human Beings (CETS 197) Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims Directive (EU) 2024/1712 amending Directive 2011/36/EU

HUMAN TRAFFICKING a) the act (what is done): recruitment, transportation, transfer, harbouring or receipt of persons. b) the means (how it is done): threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim; c) the purpose (why it is done): for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs, or the exploitation of surrogacy, of forced marriage, or of illegal adoption.

HUMAN SMUGGLING UN Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, harmonized criminalization

HUMAN SMUGGLING a) the act (what is done): the procurement of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. b) the purpose (why it is done): in order to obtain, directly or indirectly, a financial or other material benefit. or a) the act (what is done): i - producing a fraudulent travel or identity document, ii - procuring, providing or possessing such a document, or iii - enabling a person to illegally remain in a State. b) the purpose (why it is done): for the purpose of enabling the smuggling of migrants.

WHY IS THE DIVISION IMPORTANT? Gravity of the offence (severity of the imposed sanctions). Measures to assist and support victims of human trafficking (in comparison to smuggled migrants). The extent of the current and future EU harmonization Human trafficking is a Eurocrime under 83(1) TFEU (while human smuggling is not) Directive (EU) 2024/1712 amending amending Directive 2011/36/EU

IN SEARCH OF THE DIVIDING LINE BETWEEN HUMAN SMUGGLING AND TRAFFICKING Consent and agency of the migrant: awareness about the dire situation at the border? calculated decision to take the associated risks? misleading of migrants about the final destination? Control over migrants at the final destination: migrants forced by the guards to cross the border? guards preventing migrants to travel inside Belarus or return home? awareness of smugglers about the situation at the border crossing? violence used by the guards (and its extent)?

IN SEARCH OF THE DIVIDING LINE BETWEEN HUMAN SMUGGLING AND TRAFFICKING The role of a third party (Belarus): migration weaponization as a form of hybrid threat using migrants as a commodity to achieve geopolitical goals profit generated from the continuing exploitation of the victim? Legally protected goods (type of crime) increased threat for the Polish state and its immigration regime particularly dire exploitation of the person? The nature of commodity transport or the person?

DISCUSSION Blurred dividing line between criminalized migrant smuggling and human trafficking. Facilitated smuggling of migrants for geopolitical benefits - particularly serious form of a human smuggling offence. May amount (in some cases), to human traficking (awareness raising activities).