Amanda Coakley
WARSAW, Poland—Poland’s ruling Law and Justice party has overseen the dismantlement of the Central European nation’s independent judiciary, targeted gay and lesbian rights, rolled back women’s reproductive rights, and gutted the media. Democratic backsliding set off alarm bells in Brussels as relations between the two came to a head in October, when Poland’s Constitutional Tribunal ruled that some European Union laws were incompatible with the country’s constitution.
Faced with such a frontal challenge to the EU’s fundamental order, Brussels has responded halfheartedly, only suspending around $41.2 billion in pandemic recovery funding. Poland came back fighting. Polish Prime Minister Mateusz Morawiecki said financial penalties amounted to “blackmail,” and another Polish minister threatened to undermine key EU climate legislation.
To deal with one crisis in the west, Poland looked east. When Belarus’s strongman, Aleksandr Lukashenko, orchestrated a migration crisis on Poland’s eastern border this year in response to EU sanctions, the Law and Justice party took a hard line on migration. Between September and November, the Polish government imposed a state of emergency 2 miles from its border with Belarus. In this gray zone, the Polish border police worked without scrutiny from international aid organizations or journalists. Migrants caught attempting to cross into Poland from Belarus were often pushed back, contrary to international rules on asylum.
On Tuesday, amendments to Poland’s Border Protection Act were quickly pushed through parliament to extend those conditions to the border region, a move Commissioner for Human Rights Dunja Mijatovic said would have “negative effects on the freedom of movement, assembly, and expression” and impede “the important work in protecting the human rights of migrants and refugees” at the border.
The Polish state has justified its actions by taking a page from Hungarian Prime Minister Viktor Orban’s book: Poland isn’t just defending itself but rather holding the line on irregular migration for the whole European Union.
To an extent, it has worked. While Brussels is appalled at Poland’s erosion of the rule of law, it has expressed “solidarity” with Warsaw on the border crisis, regardless of the conditions Poland has imposed along its frontier with Belarus. European Council President Charles Michel has talked about opening “the debate on the EU financing of physical border infrastructure,” a controversial issue that plays into the hands of the EU’s illiberal states, including Poland and Hungary. Other EU countries are getting in on the act: Lithuania and Latvia have also imposed a state of emergency along their borders with Belarus and engaged in pushbacks.
On Wednesday, the European Commission further supported these hard-line policies at the border by weakening protections for asylum-seekers under a new set of temporary measures, which include a simplified return procedure and an increased registration period from up to 10 days to four weeks.
If the Law and Justice party wanted the border issue to distract from the rule-of-law crisis by playing into Brussels’s fear of unchecked migration, it has had some success. Throughout Morawiecki’s recent tour of European capitals, talk wasn’t of the threat to the rule of law but rather the threat posed to the West by Russian President Vladimir Putin, a staunch supporter of Lukashenko.
“I think [Morawiecki] wants to send a message that this is the serious stuff, and the rest isn’t as important,” said Piotr Buras, a senior policy fellow at the European Council on Foreign Relations. “The nexus between Poland’s rule-of-law crisis and its border crisis is weaker than [the Law and Justice party] would like … but the EU could be hoping to show solidarity on the border issue to remain tough on the rule of law. However, it’s a problematic link because on one hand, the EU says it has problems with Poland’s rule of law while it remains completely silent on the violation of the rule of law on the Polish border. It’s inconsistent.”
This soft approach to rogue member states has prompted the European Parliament to launch legal action against the commission for failing to swiftly trigger a new rule-of-law mechanism that should have gone into effect at the beginning of the year.
“The problem with this European Commission in particular is that it seems to forget that it has to be independent,” said Sophie in ‘t Veld, a Dutch member of the European Parliament. “It’s acting more like a department serving the member state governments, which is very problematic. Poland and Hungary are pushing the limits, and what the commission is doing is trying to duck their responsibility and get out of an awkward position.”
The European Commission recently sent a letter to the Polish government asking about breaches of EU law, a first step toward triggering the rule-of-law mechanism; Hungary got a letter of its own. The move did little to placate critics.
“Every time it’s the usual ‘let’s start from scratch’ approach … while there is ample evidence [of violations to the rule of law],” said In ‘t Veld.
And it’s getting ampler. Last week, Poland’s Constitutional Tribunal ruled that the European Court of Human Rights has no power to intervene on the appointment of judges in the country. On Wednesday, the lower house of Poland’s parliament will read a draft bill that would implement a total ban on abortion and prison sentences for those who undergo or facilitate the procedure, a further signal of its divergence from core EU vales.
U.S. President Joe Biden’s administration, while talking up democracy since taking office, has been eager to keep Poland onside; Biden and Polish President Andrzej Duda met on the sidelines of the NATO summit in June. The U.S. State Department said it is “deeply appreciative of the leadership” shown by Poland, Lithuania, and Latvia in the wake of the border crises with Belarus.
And despite it all, Poland is on the list of invitees to Biden’s democracy summit next week, an event meant to “provide a platform for leaders to announce both individual and collective commitments, reforms, and initiatives to defend democracy and human rights at home and abroad.”
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