Displacement from Conflict: Old Realities, New Protections?

Globally, conflicts are the main source of both internal and cross-border displacement. The conflict prompted by Russia’s recent invasion of Ukraine, which is a considerable escalation from the original incursion in 2014, has already caused the largest external displacement on the European continent in well over 60 years with numbers dwarfing arrivals in Europe during the (so-called) 2015 Syrian refugee crisis.

How does international law address cross-border conflict-induced displacement? As I have recently argued, the relationship between international humanitarian law (IHL) and international refugee law (IRL) is both inevitable and challenging. This is due to terminological, institutional, and structural differences and to their being specialized regimes designed to be invoked in divergent exceptional circumstances. I have therefore advocated a healthy scepticism in the interpretation of IHL terms-of-art as part of an IRL assessment, especially in respect of Article 15(c) of the EU Qualification Directive (QD) to which I shall return later.

This post explores complementary ways in which IRL and IHL can and should be used to maximize protection for those displaced from Ukraine. For brevity, I will not address internal displacement in Ukraine or the (il)legality, from a human rights law perspective, of preventing all Ukrainian men aged 18-60 from leaving their country of nationality.

Regional Refugee Law Response: Stepping Up to the (Temporary Protection) Plate

Several of the countries bordering Ukraine (Poland, Hungary, Slovakia, and Romania) are European Union (EU) member States. Article 78 of the Treaty on the Functioning of the European Union stipulates that

The Union shall develop a common policy on asylum, subsidiary protection, and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the 1951 Convention and the 1967 Protocol, and other relevant treaties.

All EU member states are signatories to the above-mentioned global refugee law instruments, which define who is a “refugee” and ensuing State obligations. In addition, the QD had created a “subsidiary protection” status in the EU for those who do not qualify as refugees pursuant to the 1951 Convention definition. I shall return later to the applicability of both instruments to persons displaced from Ukraine.

Yet, determination of refugee and/or subsidiary protection status requires an oft-lengthy process that is arguably less well-suited in response to immediate protection needs. That is why, over 20 years ago, in the aftermath of mass displacement from the Balkans, the EU has adopted, as part of its comprehensive Asylum framework (the Acquis), a Temporary Protection Directive (2001/55/EC of 20 July 2001) (TPD). Yet, it had never been activated in response to previous conflicts.

On 4 March 2022, the Council of the EU, acting on a proposal from the European Commission, unanimously agreed to activate the TPD. The implementing decision was made in response to a “mass influx” of “displaced persons,” defined as “the arrival in the EU of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the EU was spontaneous or aided.” The TPD sets “minimum standards for giving temporary protection” and adopts “measures promoting a balance of efforts between the member states in receiving such persons and bearing the consequences thereof”—a code for responsibility sharing (see general analysis of the TPD and dissection of the Ukraine-specific decision).

Critically, the TPD will apply not just to “Ukrainian nationals residing in Ukraine who are displaced as of 24 February 2022 following the military invasion by Russian armed forces,” but also to “Third-country nationals (TCNs) or stateless persons legally residing in Ukraine who are unable to return to their country or region of origin in safe and durable conditions because of the situation prevailing in that country.” The latter group could include persons enjoying refugee status or equivalent protection or who were asylum seekers in Ukraine at the time of the events leading to the mass influx. Hence, an asylum-seeker from Afghanistan who had resided in Ukraine prior to the Russian invasion will also be covered. One is hard-pressed not to recall that, only last autumn, Polish soldiers at the Polish-Belarus border were violently pushing back asylum seekers from Afghanistan. Family members of Ukrainians, TCNs, or Stateless persons meeting the above definition are also eligible for protection.

Importantly, temporary protection is to be granted without prejudice to the recognition of refugee status under the 1951 Refugee Convention. Hence, in theory, it should be possible for any displaced person from Ukraine who believes that they meet the definition in Article 1A(2) (see the discussion below) to apply for asylum in an EU member state at any time. However, the member States are permitted to delay consideration of an application for refugee status until temporary protection has ended. Realistically, they are likely to do so, except in cases where they wish to exclude persons from temporary protection on 1951 Refugee Convention grounds (for instance, if anyone seeking protection had participated in war crimes pursuant to Article 1F(1). However, when the TPD ceases to apply, one can foresee refugees sur place circumstances under which return of, for instance, LGBTQIA+ people, to areas under Russian de jure or de facto control would expose them to a well-founded fear of persecution, thereby qualifying them for refugee protection.

That the EU has activated the TPD for the first time in this crisis has justifiably prompted both praise (for acting decisively, rapidly, and indeed with unanimity) and criticism (given its inability to agree similar measures in previous crises and its propensity to actively prevent refugees from arriving on European shores through externalization policies). An authoritative read highlights a critical distinction between Ukrainians and Syrians, Iraqis, Afghans, Eritreans, or indeed any nationals on the top ten refugee-producing countries globally. Prior to 24 February 2022, Ukrainians had enjoyed visa-free (temporary) access to EU member States. Their need for “safe and legal routes” to the EU pertains first and foremost to having such “humanitarian corridors” to Ukraine’s borders, not beyond them. Indeed, the EU Council’s decision explicitly states that

Ukrainian nationals, as visa-free travellers … [can] choose the member state in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union. This will in practice facilitate a balance of efforts between Member States, thereby reducing the pressure on national reception systems.

This sound rationale for permitting (arguably encouraging) movement across EU borders stands in stark contrast to the position under the (in)famous Dublin III Regulation, which generally applies to asylum-seekers and which in the main places the responsibility with the EU member State of arrival.

Displacement from Ukraine and the 1951 Refugee Convention Definition

It is worth emphasising that, contrary to popular myth, international refugee law does not require a refugee to seek asylum in the first country they enter, nor is refugee status as such affected by transiting through one or more countries. Indeed, refugee status is declaratory, as the UNHCR Handbook puts it:

A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition…. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. (para. 28).

Hence, countries beyond Ukraine’s neighbours, including those that require Ukrainians to obtain a pre-arrival visa, must consider asylum applications from persons displaced from Ukraine, irrespective of whether they will have transited through one or more countries.

Article 1A(2) of the 1951 Refugee Convention defines a refugee as someone being outside their country of nationality or habitual residence (to cover cases of statelessness) due to a well-founded fear of persecution for one or more of five reasons (race, religion, nationality, membership of a particular social group, or political opinion) who is unable or unwilling to avail themselves of the protection of their State.

The provision does not refer to an armed conflict as a necessary or as a sufficient eligibility criterion. Yet, the UN High Commissioner for Refugees (UNHCR) Handbook states that “[p]ersons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.” (para. 164).

This so-called “war flaw” has prompted much debate, forcing UNHCR to clarify the above statement in its 2016 Guidelines on International Protection No. 12. In a conceptual reversal, UNHCR now claims that “rarely are modern-day situations of armed conflict and violence characterised by violence that is not in one way or another aimed at particular populations, or which does not have a disproportionate effect on a particular population, establishing a causal link with one or more of the Convention grounds.” (para. 33).

Addressing the challenge of squaring mass influx with the individualized character of refugee status, the UNHCR Guidelines are unequivocal, stating that “[t]he fact that many or all members of particular communities are at risk does not undermine the validity of any particular individual’s claim,” (para. 17), rejecting the so-called “differential impact” test according to which those fleeing armed conflict needed to show the risks they face is over and above the “normal” risks to life and liberty inherent in conflict.

Indeed, in most contemporary armed conflicts, such as the conflict in Syria, very many of those who had fled the conflict will have had a well-founded fear of persecution for several Article 1A(2) 1951 Convention reasons. Consider, for instance, the fate that awaited all Yazidis under ISIS rule. In contradistinction, in the circumstances in Ukraine at the time of writing, the IHL presumption that nationals will not have ordinarily severed their ties to their country of nationality, may sit uncomfortably with the 1951 Convention requirement that those seeking protection are unable or unwilling to avail themselves of their State’s protection, either because their State is the agent of persecution or because it is unable or unwilling to protect them from persecution emanating from non-State actors. Nevertheless, in those areas of Ukraine presently controlled by Russian forces, those refusing to return cannot in earnest avail themselves of the protection of Ukraine (nor, it appears, can they be expected to enjoy the protection of their occupiers).

The (Hitherto Avoided) Joy of Article 15(c) of the EU Qualification Directive

That the 1951 Convention may not fully protect those fleeing conflict inspired adoption of expansive refugee definitions in regional instruments in Africa (OAU Convention) and the Americas (Cartagena Declaration). In the EU, as previously mentioned, the QD is designed to offer subsidiary protection to “beneficiaries of international protection” who do not qualify as 1951 Convention but in respect of whom “substantial grounds have been shown for believing that,” if returned to their country, they would face “a real risk of suffering serious harm.” Article 15 stipulates that “serious harm” consists of, inter alia, (c) “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

By activating the TPD, the EU will have parked, at least for now, the need to consider application of Article 15 (c) of the QD to displacement from Ukraine. If one were to nevertheless undertake such an appraisal, the situation in Ukraine clearly qualifies as an armed conflict. Yet, “indiscriminate attack” within its IHL meaning sits uncomfortably with the individualized appraisal of “indiscriminate violence” that is purportedly required by the reference in the same provision to “individual threat” (see the ECJ’s attempt to square the circle in Elgafaji). Moreover, there may be Ukrainians or, indeed, Russian military deserters who would not satisfy the definition of a “civilian” within its IHL meaning were it to be applied in this context.

IHL: Explicit Protection from Refoulement

IHL envisages destruction, death, and ultimately displacement. Nevertheless, adherence to and respect for IHL rules, not least those protecting civilians against the effects of hostilities, can minimize displacement of civilians for reasons related to the armed conflict. The horrid picture emerging from Ukraine of disregard of basic principles of IHL is no doubt contributing to mass displacement.

The clearest IHL articulation of the principle of non-refoulement is found in Article 45(4) of the Fourth Geneva Convention: “Protected persons” should “in no circumstances be transferred to a country where [they] may have reason to fear persecution for [their] political opinion or religious beliefs.” This provision applies (only) to “civilians who find themselves in the hands of a party to the conflict of which they are not nationals” (per Article 4). Hence, it would only apply to Ukrainian nationals in the hands of Russia—and vice versa (see discussion of co-belligerency on this forum). This explicit and unqualified protection from refoulement is therefore limited both in scope and, critically, to parties to the conflict.

IHL: Implicit Non-Refoulement Obligations

In this international armed conflict between Russia and Ukraine, the applicability of Article 1 Common to the 1949 Geneva Conventions (CA1) is not in doubt. I had previously argued that we must adopt a purposive reading of the CA1 undertaking to “respect and to ensure respect” for the convention[s] “in all circumstances,” drawing analogies to the ICJ’s Genocide judgment. I contend that, when persons “taking no active part in hostilities” flee to a non-belligerent party from territories where violations of Article 3 Common to the 1949 Geneva Conventions (recognized by the ICJ in The Paramilitaries Case as a “minimum yardstick” in both IACs and NIACs) are occurring or likely to be occurring, the obligation to ensure respect requires States Parties not to refoule such persons so long as risk of exposure to these violations persists.

The International Committee of the Red Cross agrees. This position is also consistent with the obligations erga omnes under Article 146 of the Fourth Geneva Convention to repress grave breaches and indeed the obligation to “take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches.”

The grim picture emerging from Ukraine leaves little doubt that, at the time of writing, returning persons to Ukraine could expose them to serious violations. I would argue that, in refraining from refoulement. High Contracting Parties (HCPs) would be taking clearly lawful action in the exercise of their sovereignty that does not engage with other parties and hence neither require their cooperation nor is dependent on their behavior. Such action would be legally and, I suggest, morally required (compare, for instance, the expectation in the ICJ Wall Advisory, para. 159, that HCPs to the Fourth Geneva Convention should “ensure compliance by Israel with international humanitarian law”).

Non-refoulement at Cessation of Hostilities: Return of POWs

The rebuttable presumption under IHL that nationals enjoy the protection of their country of nationality also applies to their return as soon as reasons for displacement cease to exist, and their right to do so. Yet, some prisoners of war (POWs) in the hands of party to the conflict may fear precisely that scenario. The armed conflict has already seen the capture of thousands of Russians by Ukrainian forces. For our purposes, and notwithstanding this blog’s analysis, IHL is rather unequivocal concerning the release and repatriation of those qualifying as POWs after “cessation of active hostilities.” According to Article 118 of the Third Geneva Convention, it shall take place “without delay.” Yet the 2020 ICRC Commentary rightly notes that while refusal to return cannot be based on “mere convenience,” “the obligation to repatriate must be understood as subject to an exception where the prisoners face a real risk of a violation of fundamental rights by their own country,” an interpretation which “accords with the principle of non-refoulement” (para. 4469).

Concluding Thoughts

The reality of mass external displacement prompted by conflict is not new. The way non-belligerent countries respond, and the extent to which their actions are legally required, rather than purely (morally) desirable, depends both on our adopting purposive interpretations of existing obligations and on (political) willingness to avail ourselves of bespoke protection devices, such as the TPD. It is encouraging to see responsibility-sharing and solidarity manifested in the reception of displaced Ukrainians; one dare hope that the same principles would apply without discrimination to those seeking protection wherever they come from.

When the conflict finally ends, some of those externally displaced will (still) have protection needs, pursuant to eligibility for refugee status under the 1951 Convention, including, increasingly, Russian dissidents – or indeed pursuant to the Third Geneva Convention (think repatriated Russian soldiers). Others who are currently receiving protection pursuant to the TPD in EU member states will have lost family members who were left behind and may be unable to return to obliterated residential areas they had once inhabited. Let us hope that the spirit of generosity by which they had been welcomed will not wane even when formal protection obligations cease.

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Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, School of Law.

Photo credit: Ministry of Internal Affairs of Ukraine (mvs.gov.ua)