Expanding Protection: Global Lessons from the Ukrainian Refugee Crisis

| March 23, 2022
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Center for Ukrainian refugees set up in the “Manej” athletics center of Chișinău, Moldova. Photo credit: Gikü via Wikimedia Commons

European cities are being indiscriminately shelled. Hospitals targeted. Millions of civilians, mostly women, children, and the elderly, are seeking refuge in neighboring countries. Is it 1914? 1945? There is a feeling that in 2022 we are experiencing a “retro-future.” This is intensified by the world being in the midst of a global pandemic that has claimed millions of lives, recalling the 1918 influenza pandemic. The daily news is abuzz with the risks of World War II, a second Cold War, and nuclear escalation.

While we cannot read the tea leaves, we know for certain that Russia’s invasion of Ukraine has wreaked devastation and incalculable suffering, triggering the largest displacement of civilian populations in Europe in eighty years. Over 3 million people have fled Ukraine. The UNHCR estimates that the numbers may rise to 4.5 million. We are amid the “fastest growing refugee crisis in Europe since World War II.”

Before Russia invaded Ukraine, 2015 was dubbed the “year of Europe’s refugee crisis.” At that time, the arrival in Europe of close to 1.3 million refugees, many of them escaping war-torn Syria, was described as the largest refugee influx since the end of World War II. Unlike the current crisis, which is seeing Ukrainians crossing land borders to enter neighboring countries in Europe, Middle Eastern asylum seekers had to pass through third countries and then embark on dangerous crossing routes in the Mediterranean (primarily from Libya to Italy) and across the Aegean Sea, via Turkey, to Greece. Their arrival was met with conflicting responses; in Lesbos generosity and humanitarian solidarity, and in Germany—at least, initially—a warm “welcome culture” spearheaded by Angela Merkel’s famous words, “Wir schaffen das!” (“We can do it!”). Elsewhere in Europe, refugees faced discrimination, stigmatization, and within a few short months, “Fortress Europe” began to close its gates. Hungary’s Viktor Orbán demonized Muslim refugees hailing from the Middle East as a threat to Europe’s “Christian civilization.” Across Europe the far-right was emboldened, using the influx to galvanize anti-immigrant sentiment into a rallying cry of resurgent populist nationalism.

Fast forward to 2022. Once again, millions are displaced. Once again, some of the Russian aggression techniques witnessed in Syria, including bombing urban civilian areas, breaching safe passage through humanitarian corridors, and preventing aid delivery to stranded populations, are being used in Ukraine. In both cases, the results were and have been civilian death and displacement.

 

Confronting Racism and Double Standards

 

The European response to the Ukraine conflict has been different from that in Syria, and importantly so. In some ways, this coordinated response may serve as a blueprint for future instances of “mass influx” of displaced persons.

Before I describe this innovation, it is imperative to address a set of concerns relating to racism and bias manifested against migrants from African countries and other people of color. Here, we should distinguish between the action of frontline border guards (what political scientists would describe as “street level” officials) and broader policy patterns. I will address each in turn.

When the fighting broke out, reports emerged of racist and xenophobic treatment of people fleeing Ukraine who were visible minorities. One set of cases involved international students enrolled in Ukrainian universities who were pushed to the back of the line or altogether denied access to trains or border crossings as they tried to flee. One student from Ghana described her experience: “Mostly, they would consider white people first. White people first, Indian people, Arabic people, before Black people.” Such treatment is not only ethically deplorable but also categorically forbidden by law. This last point was lucidly articulated by the UN Special Rapporteur on contemporary forms of racism: “International law requires non-discriminatory protection of human rights, and all actors must respect this fundamental principle of non-discrimination, especially in times of great crisis.” The Rapporteur’s statement closed with a powerful plea: “I call on government and humanitarian authorities to ensure safe passage and life-saving protections for all people affected by the conflict.” The African Union echoed this sentiment, condemning the ill-treatment as “shockingly racist and in breach international law.”

Bias at the border is real and deeply disturbing, and must be called out and confronted, but it is not official policy of any state. An additional layer of critique goes beyond the “street level” denunciation to highlight unequal treatment that is embedded in broader, structural patterns. This set of concerns is manifested in the divergent response to the plea of refugees in search of safe haven, comparing 2022—which has seen and continues to see an outpouring of solidarity with “blue eyed, blond haired” Ukrainians—with 2015, when some of the very same countries refused to open their gates to refugees from Syria, Iraq, and Afghanistan, to mention a few examples. Here, what we are seeing is systemic level hypocrisy and double standards in humanitarian protection. Poland is a case in point. It is now heroically leading the relief effort, having accepted more than two million displaced persons since Russia invaded Ukraine. Back in 2015, however, together with its partners in the “Visegrád group”—Czech Republic, Hungary, and Slovakia—Poland staunchly opposed the EU plan to share responsibility among European states in order to relieve the disproportionate burden then carried by Greece and Italy, the frontline states of Europe’s southern frontier.

That being said, in this present crisis, unlike previous ones, it is notable that Poland shares a border with Ukraine. This is important. Globally, 73 percent of the world’s refugees are hosted by neighboring countries. Turkey, for example, hosts the largest number of refugees worldwide—close to 3.7 million, many of whom escaped into Turkey from neighboring Syria. In this crisis, Poland is Europe’s Turkey. On this account, the explanatory factor for the diverging treatment is not racial, ethnocultural, or religious animus but rather a more sanguine story of political will and shared historical and geopolitical links. Whichever narrative one adopts, the fact remains that depending on where you are fleeing from, individuals whose basic safety and dignity the international refugee system is designed to protect receive decidedly disparate treatment. This disparate treatment—barbed-wire versus empathy and solidaric admission—underscores the inequality these refugees face on account of arbitrary factors beyond their control: which geopolitical crisis they are escaping and from which country they originate. Elsewhere, I have termed this the birthright lottery.

 

Avenues for Innovation

 

What is exceptional, and potentially a game changer in the global refugee regime, is the decision of the European Union and its member states to dust off a legal procedure known as the Temporary Protection Directive. This tool was drafted in 2001 in response to the bloody conflicts in the Balkans. It has been on the books for more than twenty years but until now has not been activated. The decision to revive it for the present crisis was adopted unanimously in Europe’s capitals.

The European directive activates an “exceptional measure to provide immediate and temporary protection to displaced persons from non-EU countries and those unable to return to their country of origin.” It isdesigned specifically to address circumstances of “mass influx,” whereby the standard asylum procedure that requires individualized assessment of each claim is unfeasible. This legal instrument allows anyone arriving from a particular region or country (in this case, Ukraine) to instantly qualify for temporary protection. Those benefiting from this solidarity mechanism are entitled to stay in an EU member state and gain important rights and benefits, including access to employment, housing, social welfare, emergency medical treatment, education for school-age children, and opportunities for family reunification. This protection status is initially granted for a period of one year and may be extended for up to three years.

Unlike the refugees in 2015, who came primarily from countries that required visas for entry, Ukrainians were entitled to enter Europe’s free-movement area (the “Schengen zone”) without a visa for a period of up to ninety days, even prior to the crisis. The directive therefore pre-empted the following question: what will happen on day 91 to the millions who escaped Ukraine? The short answer: they will be allowed to stay.

Beyond instructing border guards to keep the gates open and allow people to pass through—a crucial decision that may translate into the difference between life and death for people on the run—the innovation of this new mechanism lies in two additional features.

First, there is an agreement to promote responsibility sharing among European states (backed up by a generous financial commitment by the EU to support such solidarity). This was a sticking point in the 2015 refugee crisis—and globally the lack of “burden sharing” among states remains a major obstacle to providing adequate protection to millions who are “locked up” in refugee camps or in the territories of the first country of asylum they could reach. Today, 85 percent of the world’s refugees are hosted in developing countries; least developed countries provide asylum to 27 percent of the total. This is blatantly unfair. The preamble of the 1951 Refugee Convention calls for international cooperation and is also a core feature of the recent global compacts. But the EU Temporary Protection Directive provides an operational regional model that demonstrates how to put these promises to work in a concrete, solidaric fashion.

The second feature is the decision to allow individuals to choose where to enjoy the rights and protections provided by the directive. Allowing individual choice is a breakthrough for which scholars and advocates have long called. The refugee system is designed to protect individuals, but it gives them little voice in deciding which country will host them. Proximity becomes destiny, as the principle known as “territorial arrival” dictates that people who arrive at the border or territory of a given country must seek asylum there. The European directive, by contrast, allows individuals to choose the member state in which they will enjoy the rights that attach to temporary protection. They may wish to follow pre-existing connections and networks to join family members (defined broadly to include relatives that go beyond the nuclear family) and friends across diasporic communities that exist within the Union.

 

Hope for the Future

 

Out of devastation may come innovation. The EU’s willingness to implement a multilateral framework that highlights responsibility sharing and individual choice in response to the current tragedy in Ukraine may well prove to be a blueprint for responding to future incidents of mass influx, whether from war or climate crises or any manner of catastrophe. We must recognize the structural failings that have led to great disparities in the application of the global refugee regime and use this moment of solidarity to build a better future for all people suffering from displacement, no matter where they come from. It offers a silver lining in an otherwise dark situation. Let us not repeat the mistakes of the past but rather develop guiding lights to instill glimmers of hope for a better tomorrow.


—Ayelet Shachar

Ayelet Shachar (FRSC) is Professor of Law, Political Science, and Global Affairs, and holder of the R.F. Harney Chair in Ethnic, Immigration and Pluralism Studies at the University of Toronto, where she directs the Harney Program at the Munk School of Global Affairs & Public Policy. Previously, she was Director at the Max Planck Institute for the Study of Religious and Ethnic Diversity. She is an award-winning author and recipient of the Gottfried Wilhelm Leibniz Prize.

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