Hungary’s harsh new refugee laws may be illegal, experts say

Harsh new laws imposed by Hungary that criminalize refugees caught crossing a razor-wire fence along the Serbian border are inefficient and may be a breach of international human rights law, experts have said.

On Tuesday, Hungarian authorities detained scores of refugees for breaching the 13-foot fence built to keep out people fleeing conflict zones in Syria, Afghanistan, Eritrea and elsewhere. More than 430,000 people have crossed European borders since January, and thousands more arrive each day through Macedonia, Romania and Serbia. For many, Hungary stood as a springboard toward more wealthy EU nations in the bloc’s west. But confronted with growing numbers crossing into its territory, authorities in Budapest declared a state of emergency Tuesday and sealed it border with Serbia.

The move has received international criticism.

“Entering irregularly is what refugees do, it’s what they have always done, they flee for their lives and they should be able to cross borders without punishment,” United Nations’ Special Rapporteur on the Human Rights of Migrants Francois Crepeau told Al Jazeera.

Hungary’s policy represents a “violation of international law” codified in the Geneva Conventions, which require the protection of refugees, said Franck Düvell, an associate professor of social sciences at Oxford University and a senior researcher at the university’s Center on Migration, Policy and Society.

Enforcement of the law, moreover, will be "inefficient," said Crepeau. "It's only going to move the migration to another country until that other country reacts."

As the refugee crisis continues, the new laws may create a domino effect. “Hungary may see a sharp decrease in arrivals in coming months, but as soon as Slovakia does the same and the next country does the same, they will come through anyway,” said Crepeau. “These people will come, and if they don’t provide them with solutions, they will find other ways.”

Aside from the legal consequences of the law, the decision to criminalize refugees also carries huge moral weight for the future of the European Union (EU), which is built on the idea of the free movement of goods and people across borders, Düvell said.

“It certainly demonstrates in a very nationalist fashion the refusal of accepting any international responsibility for a refugee crisis of historical proportions,” he said. "And this is severely undermining the values that underpin the idea of the EU as such.”

Crepeau speculated that “creative lawyers” could start amassing evidence to bring a case to the attention of the European Human Rights Court in Strasbourg, France. Any possible legal action, he said, would likely first pass through the Hungarian courts, which would rule on whether the measure directed at refugees is consistent with Hungarian constitutional law.

He cautioned that threats of sanctions against any EU member state at this point — political or financial — before any legal actions would be undertaken, may do little to move the bloc’s countries toward agreement on accepting a mandatory quota system for refugees. Crepeau advocated for more “scolding, pushing, and shoving” until they reach agreement. “I think the EU is in enough disarray that we're looking a lot more for leadership than for punishing those who react differently,” he said.