History of Refugee Laws in Europe, Discrepancies and the Impact of the Ukraine-Russia War
The notion of one being forced from their homeland has been a common theme throughout history, but "refugee" comes to us as a fairly new concept. As World War I caused a spike in the number of forcibly displaced people (due to war, famine, and persecution), the 'refugee' category was officially acknowledged. During World War I, the international community created guidelines to protect basic human rights of those most vulnerable. The protection of forced displaced peoples were put in place during World War II; such protections were decided amongst states at this time there was an increase in the attempts of Jewish people to escape their countries due to persecution on the basis of their religion by Nazi Germany. By 1945, around 40 million individuals were forcibly displaced and millions were left with undignified lives; most of these individuals were women and children as men fought in war.
As a consequence of numerous individuals becoming stateless due to fear of persecution, the Allies (Great Britain, the United States, and the Soviet Union), established the United Nations Rehabilitation and Repatriation Administration in 1943. This Administration provided aid for mass resettlement and doctors, social workers, teachers, and other professionals to aid victims of war. In 1948 the United Nations created the Universal Declaration of Human Rights (UDHR) which required member states to comply with the obligations of human rights protections. Articles 15 and 16 of the UDHR explicitly state that no individual should be deprived of their nationality and these rights should be granted regardless of one's race, gender, and religion. In 1951 the Convention on the Rights of Refugees was crafted in the Geneva Convention. However, there was a the lack of universality of the former, as it was mostly for European states, due to the large Jewish displacement on account of WWII and the Holocaust. So, in 1967, the Protocol Relating to the Status of Refugees was created as a way to expand the rights of refugees globally, beyond European territories.
International communities outside of the European continent challenged the universality of these protocols. Hence, the Cartagena Declaration includes a non-binding agreement adopted by the Colloquium on the International Protection of Refugees in Latin America, Mexico, and Panama; this was ratified in Colombia in November, 1984. The Cartagena Declaration is based on commitments that countries have in regard to refugees which includes a range of commitments to peace, democratization, regional security, and economic cooperation. Although international law has made efforts to protect those in critical displacement due to armed conflict or human rights violations in their home countries. There are thousands of people who are left with no status and are victims of non-refoulement violations.
To properly understand refugee laws and how they function in modern times, it is necessary to examine the definition of "refugee". The term "refugee" was first established by the 1951 Convention on the Rights of Refugees which states in Article 1 The Definition of Refugee, that a person is eligible to be recognized as a refugee if it is a victim of persecution due to race, religion, nationality, membership of a social group or political opinion, and hence, they are unable to safely return to their country of origin. Since this definition is very narrow, the 1967 Protocol Relating to the Status of Refugees extended the Convention to address the recognition of refugees worldwide (as the Convention has always been Eurocentric). According to the 1951 Convention, refugees have to meet four criteria: they must have a justifiable fear of persecution, the persecution must be on the grounds of their origins or social stance, they must have been displaced to a foreign country, and they are ultimately unable to return to their home country.
In "Colonial roots of the 1951 Refugee Convention and its Effects on the Global Refugee Regime," Ulrike Krause explains how colonialism has affected the drafting of the 1951 Refugee Convention and Protocol. Refugees have always been addressed in Eurocentric and Westernized terms; as such, many countries were under colonial rule and these countries have been strategically excluded from the drafting of various refugee conventions. Countries under colonial rule have been strategically excluded from any drafting. For instance, research associate Mayblin in Colonial roots of the 1951 Refugee Convention and its effects on the global refugee regime assessed the origin of the Convention and the position of the United Kingdom which excluded non-European refugees in international debates. Before its drafting, discussions about the Convention were dominated by colonial leaders and their colonies were silenced and had little input when drafting the Convention. The superpowers had the power to take a stance on who and how they were politically willing to help and welcome to their country. Today, there is a negative sentiment towards migrants from previous colonies that became independent, making them fit uneasily into refugee frameworks. Colonization within international frameworks explicitly highlights how European states welcome refugees from other European states yet exclude refugees from Africa, the Middle East, and Asia.
World War II and the Holocaust were major events that created and expanded human rights protections and international aid. However, one of the worst crises in the 20th century that impacted European stability were the Yugoslavian wars from 1991-1999. Eighteen million refugees were forced to leave and twenty-four million were internally displaced. The former Yugoslavia was a Socialist state formed after the German occupation in WWII. It was composed of six republics: Serbia, Croatia, Bosnia, Albania, Slovenia, and other territories. During the successful years of the republic, President Tito was able to suppress conflict and ruled a coordinated State. After his death in 1980, suppressed tensions reemerged, giving space for nationalist groups to seek Croatian and Slovenian independence.
However, the Serbs were against these movements and violently stopped Slovenia and Croatia from seeking independence. In 1992, the number of deaths increased so immensely that the UN had to claim a ceasefire. Subsequently, Bosnia, a diverse state composed of a mix of Serbs, Muslims, and Croats, also sought independence after Croatia and Slovenia began their rise of nationalism. This conflict involved ethnic persecution as Bosnia's Muslims and Croats were particularly attacked by Serbs in Bosnia and Croatia that received help from Serbs in Yugoslavia, causing more than three million people to be displaced as a result of Serb efforts. At this moment, over a million Bosnian Muslims and Croats escaped their homes due to ethnic cleansing.
The 1951 Refugee Convention accounts for ethnic cleansing entailing refugee status.UN peacekeepers got involved yet, failed to halt the conflict. International peace efforts also failed; more than 100.000 people died and millions were displaced. The war between Yugoslavian states ended in 1995 as NATO bombed the Bosnian Serbs and Muslims, creating a separation of two new self-governing entities: the Bosnian-Serb Republic and the Muslim-Croat federation bound by a central government. The Croatian army made many Serbs in Croatia (under Serb control) flee, claiming themselves and Bosnia fully independent. In 1995, Slovenia, Montenegro, and Macedonia left the Yugoslavian rule, and in 1999, Kosovo's Albanians fought Serbs to gain independence. The various Yugoslavian wars are tragic because they struck during the final years of the Soviet Union and during a favorable economic time after World War II which impacted the welcoming of refugees since recovering countries focused on their prosperity, making it harder to integrate refugees to their societies. As commercial competition rose in Europe, the levels of accepted refugees drastically decreased compared to the post-World War II era. Refugees would entail large amounts of economic losses, so nations began to focus on the prevention of refugee flows by creating stricter borders. However, it is integral to examine how interational criminal law punishes the responsible for the millions of refugees and displaced people.
The wars in Yugoslavia included ethnic conflicts between different nations within then country. Forced cross-country migration was caused by the consequences of war, ethnic cleansing, persecution, and oppression by the most powerful groups. According to scholars such as Michael P. Roch, forced displacement in the Former Yugoslavia took form directly and indirectly. Forced displacement; in a direct form, is when an occupying force targets specific groups of individuals and forces them to cross borders to a neighboring country. Indirect forms occur spontaneously where armed conflict is ongoing. The author argues that once a conflict is recognized by the United Nations and involves foreign countries, the conflict is of international nature; arguably, this war was not a civil war between the states that compose Former Yugoslavia.
If one assumes that the Bosnian conflict was an international conflict, the Fourth Hague Convention of 1907 can be taken into consideration. The Hague IV does not specifically address forced migration, however, it prohibits the punishment against certain populations. Moreover, the Nürnberg Treaty after World War II, as well as the 1948 Geneva Convention, included forced deportation as a war crime – authorizing member parties to criminally enforce this prohibition. Article 3 of the Geneva Convention provides minimum humanitarian standards that have to be followed within the country during its civil wars. It states that despite race, religion, wealth, or gender, those who are wounded during the war should be treated humanely, respecting their dignity. More specifically, it mentions in section (1)(b) of the article that "outrages upon personal dignity, in particular humiliating and degrading treatment" falls under forcibly displaced civilians as their fundamental rights are violated. To enforce this statement, article 17 of the Protocol II of 1977 prohibits the displacement of civilians during a civil war. Additionally, the Genocide Convention plays an important role in international conflict, civil war, and peacekeeping. Like other agreements, this Convention does not include forced displacements as a crime but focuses on eliminating the persecution of individuals which ties to the definition of a refugee in article 1 of the Refugee Convention. Nonetheless, the Convention protects those who suffer from the psychological trauma that forced displacement causes. The Genocide Convention enumerates displacement as a criminal act– the intent to destroy and persecute a group of people.
The second largest refugee crisis in Europe is the current displaced Ukraine citizens due to the Russia-Ukraine war. Territories within Europe that have created major tensions have a common denominator; they belonged to the Soviet Union until 1991. The dissolution of the Soviet Union provoked instability while the rest of Europe recovered from World War II and the consequences of the Cold War. During the Cold War, the Soviet Union installed early-controlled communists nations but the West remained capitalistic which created a strong division in Europe. In 1991, not only did the Soviet Union get divided, but so did Czechoslovakia and Yugoslavia when they abandoned the Communist regime. This resulted in major changes in the political landscape such as the bonding to NATO, and the increased emergence and dissolution of states. Ukraine joined NATO in 1994 bringing the West closer to the Russian borders. However, individual decisions of what territories the people getting divided belonged to caused increased politicization of ethnic and political identities creating tensions within Ukraine. The Russian nation was divided resulting in various borders – a prominent enclave being Russian-speaking Ukrainians. For example, in Crimea, a Ukrainian territory, the majority of the population was Russian. Despite being within Ukrainian borders, people in these regions identified as Russian; hence the identity issues. Language also plays an important role in identity formation, hence those within Ukrainian territory who speak Russian felt out of place, leading to the rise of independence movements from Ukrainians. Russia in the last decades has had a strong stance in their political identity. Putin, an authoritarian leader under a democratic society, has preserved the identity of Russia has historically been separate from politics of the West, especially Western liberal democracy. However, Ukraine has always been divided and weakened by pro-Western regime and authoritarian Russia that maintains Russian nationalism within Ukraine. The radicalization of the divide since the termination of the Soviet Union facilitated the rise of far right Ukrainian nationalists and Russian speaking separatists resulting in a "fascist" west and "anti-Ukrainian, pro-Russian" east.
The ethnic, and political tensions have been exacerbated due to the interdependence between both Russia and Ukraine surrounding the acquisition of natural resources. In 2014, Europe experienced one of the most serious security issues as Russia invaded and annexed Crimea; Ukraine's territory with a large Russian identity. One of the possible explanations for the invasion is due to the economic costs that result from the dependency of Russia to Ukraine's natural resources. The imperialistic and neo-colonial intention of Russia's attempt to take over Ukraine can be explained in two ways: the large geopolitical interest through the invasion of strategic areas, and identity loss from the separation of the Former Soviet Union. The resource dependency theory approach developed by Johannesson, Jokull and Clowes in Energy Resources and Markets – Perspective on the Russia-Ukraine War, comes from an economic and geopolitical field and concludes that Russian aggression towards Ukraine is due to the long-term political shifts that have affected economic futures. By invading these areas, Russia can gain more geopolitical power. Russia is strategically attacking areas where there is a pro-Russian identity, and then slowly accessing the less pro-Russian areas. Putin's main goal is to keep Ukraine closer to the East so that NATO has less geopolitical power to be close to the Russian borders. Due to war, genocide, persecution, and other atrocities in history, many children and marginalized communities have been victims of war due to lack of protection (prior to the 1951 Refugee Convention). During the end of WWII, refugees were accepted into countries of destination based on health requirements as these countries seeked to welcome "useful citizens": citizens who can be a positive part of the community in an economic, social, and political manner. Children left alone and single mothers with children were excluded from the grant of refuge because taking everyone is a high cost to the community – specifically people with special needs. However, in the 1951 Refugee Convention, specific values were established in the Register section. Recommendation B, Principle of Unity of the Family, recommends taking extraordinary measures to protect family maintenance and minors – especially those unaccompanied by a guardian. Although there is no universal definition of a 'minor immigrant', increased emphasis has been placed on children in recent decades. The phenomenon of juvenile migration has to be deeply analyzed as it is in continuous transformation due to globalization and strict borders. Bertozzi in The Minor Immigrant and the Effects of Juvenile Migration in Europe identified different categories of minor immigrants, including minors, who were refugees or asylum seekers, war refugees, and unaccompanied minors. According to the United Nations High Commissioner for Refugees, an unaccompanied minor is a child who is separated from their parents and has no adult guardian with them. The reasons for separation may be due to being kidnapped, escaping from one's family, or being sent by one's parents to countries of destination; such as European or North American countries. Based on the Geneva Convention, a refugee is an individual who escapes their country due to fear of persecution due to religion, national origin, political or social group, and cannot return home as their basic human rights would be put in jeopardy. With the rise of child refugees, analysis and data collection of minor immigrants is very hard to gather. Upon their arrival, it is very difficult to identify biographic information due to language barriers and psychological states that children occupy. The Common European Asylum System seeks to create fair asylum procedures to ensure that people are granted international protection and enjoy what entails being part of the European Union. As UNICEF exhibits, by March 7th 2022, nearly 100,000 children, half with disabilities, live in institutional care or in boarding schools away from their legal guardians or relatives. Hundreds of these children account for the millions of refugees that have fled the Ukraine to neighboring countries such as the Republic of Moldova, Romania, Belarus, Poland, Slovakia, and Hungary as shown in UNCHR's Operational Data Portal. The neighboring countries both within and outside the Schengen space are accepting refugees and accept the help of international organizations such as Save the Children which focuses on unaccompanied minors. Save the Children gathers professional staff and volunteers to provide refugees arriving at the Romania-Ukraine border with food, water, and hygiene kits. Special care for unaccompanied and separated children is given through psychosocial support and access to legal services. The Ukraine Refugee crisis is the largest since WWII in Europe with Syria and Venezuela leading worldwide.
Despite the gravity of different refugee crises in the last decades, different instances have been handled and accepted by host countries. The origin of refugees matters when it comes to being welcomed by the host country. Europe has opened their arms to the five million refugees giving housing and legal support (unlike the refugees coming from Syria during the largest refugee crisis in the past years). The sentiment of being culturally different from "others" challenges the ideas and efforts that the international community poses when drafting Refugee norms. A study by Krzyzowski and Nowicka explained in European solidarity as boundary-making: A conjoint analysis of attitudes towards Islam in the context of the 'refugee crisis.' proves that the attitudes towards Muslim refugees are different than towards Christian refugees. The citizens' views in Poland and Germany were examined and the results showed that the Polish community have higher scores in anti-Islamic attitudes; only 7% were willing to accept Muslims, whereas 25% were willing to accept in Germany. Both countries also show more acceptance towards women than men due to negative stereotypes attributed to Muslim men in Western media. Poland is one of the countries that is currently accepting the most amount of Ukrainian refugees because, as found in the study, the Polish community is willing to accept those culturally similar to them more than other European countries. The concept of solidarity in Europe was magnified in the 1973 Declaration of European Identity adopted in the Copenhagen Summit by the nine-member states of the European Community (EC). Solidarity was redefined in 1990 with a new view of unity in diversity with the aim of increasing the acceptance of those who are culturally different . In the Charter of Fundamental Rights of Europe (2000), the norms and values shared by all Europeans included the respect for diversity of history, language, population, and religion.
Regardless of the efforts from Conventions, Declarations, and international organizations, the promotion of the acceptance and aid to victims of human rights violations is studied in social psychology. The dynamics of feelings between in-group and out-group members naturally cause tensions and different levels of aid given. A study by Levine et al., 2005, examined the aiding levels between in-group and out-group members. The participants were given shirts of their favorite soccer teams, if a participant with a shirt of the rival team fell down, they were less likely to help the player get up. If the player has the preferred shirt, they will automatically help. Many similar studies show that it is innate to experience hesitation when helping those who are different and could pose a threat to the communities' harmony.
With the Ukrainian-Russian war, solidarity from the Western world is that of offering diplomatic support to Ukraine and showing Russia a strong stance against their nation. As Severine Autesserre (2012) explains in a study describing politicization of the media, issues are presented to the public in short, concise, and persuasive manners in order to attract public attention. However, this way of choosing what is relevant to certain situations, leaves behind a lot of crucial information. In the Ukrainian-Russian war, the narrative is that the West sees Russia as the enemy. Media outlets explicitly show Russian attacks against Ukraine; therefore, increased support from the West comes from a simplified narrative of the current situation. In comparison to the Syrian refugee crisis, Syrian civilians are not viewed as victims like Ukrainians are. Syrian civilians were put in the same category as rebel groups in the area such as ISIS. Hence, the West attacking Syria and not providing the same aid to its refugees is viewed as the only solution given the threats that rebel groups pose to Western societies. As mentioned, the cultural and ideological differences play a big role in the overall acceptance of refugees. The level of solidarity that European countries have shown towards those in need has one possible explanation. According to Robert O. Keohane (1997), in international law there are two possible optics that explain why States comply with international human rights laws. In his work, he identified two lenses: normative, using international law for the states' reputational interests, and instrumental, using international law as an instrument to achieve the States' interests. Interests are the central concept between these two views on compliance. Countries following the normative lens are interested in gaining a positive reputation while those following the instrumental lens are mainly interested in material gain. In this case, it is important for the European Union and the European continent to take a position in the conflict. It is a norm to help refugees since it is mentioned in Convention and Protocols. It is also the moral obligation for fellow European countries to have good reputations between each other in order to achieve harmonious relationships that European countries often lack. On the other hand, this solidarity can be seen through the instrumental lens as States complying to international law for their own benefit. Many of the Ukrainian refugees are granted legal pathways by the Schengen space to move freely within the European Union, to have residency rights with access to housing, social welfare and medical assistance, to have custody and safety for unaccompanied children with access to education, and access to the labor market.
Nevertheless, nations' willingness to comply with the potential conventions and protocols to seek justice for the violation of Ukrainian refugees rights varies. Sovereignty plays a role for not adhering to states' obligations as members of the international community. The internationalization of human rights resulted in a growing recognition of territorial sovereignty. The increased awareness with respect to human rights by the international community has increased during the 20th century, resulting in a greater sense of State obligation to intervene in areas where atrocities are committed. However, the increase of globalization during the 20th century has blurred the lines of physical territorial borders and artificial spaces as technology has been developing rapidly. This process of deterritorialization explained by Benhabib (2020) gives space for contradiction between territory and human rights. This process is a way to avoid complying with international human right violation interventions and to preserve and reinforce borders. One of the architects of liberal international human rights post-WWII, Louis Henkin, claims that sovereignty grants states to enjoy political independence, territorial integrity and nationality. However, state sovereignty is often confused and adds limits to smooth interstate relations that international communities were aiming for. Sovereignty offers the liberty for states to accept international human rights standards how they want, if they want, and whenever they want, under their circumstances. . States are able to void certain articles from Conventions, such as France nullifying article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as they claim it conflicts with their Constitution. Since it is highly difficult to force countries to fully commit to their obligations, many other Conventions can be used to reinforce the statements of the 1951 Refugee Convention. This aids the international community to add gravity to the rights violation. For instance, in Articles 13, 14, and 15 of the UDHR, state that everyone has the right of freedom of movement, and the freedom to exit and return to a country. Moreover, these claim that everyone has the right to asylum; meaning one can enjoy their rights in other countries. Basic international rights standards are enumerated in many of the Conventions, and Declarations in order to re-clarify what rights include. These are embodied in the ICCPR, ICESC, in the Convention of the Elimitation of Racial Discrimination, in CEDAW, in the CDC, and many more. Finally, Article 15 specifically prohibits the loss of citizenship; this right to nationality is restated in Article 34 of the 1951 Refugee Convention. For further enforcement, the principle of non-refoulement has been made fundamental and no reservations are accepted. Non-refoulement is not only mentioned in article 33 of the 1951 Refugee Convention, but also in the European Court of Human Rights, Article 3(1) reads: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Additionally, this prohibition is mentioned in Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It further applies the prohibition of direct expulsion, return, extradition and transfer to a third country, were the individual might be a victim of refoulment and put in possible danger from torture.
Due to the adherence of sovereignty, the right to seek asylum can be interpreted as a right for sovereign states to determine whether they should let the individual into the country rather than granting the absolute right of seeking refuge. In spite of clear human rights definitions, the concept of non-refoulement and the obligation that countries have to provide aid to refugees succumb to gaps in the Conventions. For instance, the 1951 Convention does not take into consideration economic migrants; it does not acknowledge that in cases of extreme poverty, rights are being violated. Persecution based on an ethnic, gender, and religious bases can come in the form of unemployment and systematic poverty for those who are minorities. Hence, in the Ukrainian Refugee crisis, European states are giving these victims the chance to integrate themselves in the labor field of the country of destination. The imbalance of power that liberal Western democracies have, causes them to redirect their responsibilities to third parties in order to create areas where human rights would be protected without stepping on European or Western territories. Using lawless states such as Libya or authoritarian regimes such as Turkey to put refugees in safer spaces has been a common trend during the last decade of European Refugee crises. Excluding those who count as worth welcoming compared to those who do not is the biggest problem in liberal democracies.
Unfortunately, third party countries often use migrants in ways that further violate their rights. Organized mafias profit off those who want to cross borders to Europe by sending refugees in narcoboats to cross the Mediterranean sea or to force women and girls into sex work. As claimed by gender activist Olena Zaitseva, Ukrainian women and girls are more vulnerable to be recruited as sex workers by traffickers. This occurs because of the sexism and objectification of women and the socioeconomic issues prevalent due to the war in Ukraine. This has resulted in extreme poverty, psychological weakness, and desperation.
The recent rise of nationalism in the European continent has shaped modern refugee laws and their compliance. The proximity of the Ukraine-Russia war to Europe possesses a threat as if Russia gains power, it could directly affect the achieved harmonious relationship that Europe has at the interstate level and as a Western political entity. Europe, the West, and NATO have been threatened by Russia's ambition to become the most powerful nation. Therefore, their interference and protection of Ukrainian refugees are essential for the world to take a stance against the autocratic state of Russia. The rise of populism and the successful efforts from far-right political parties have generated an anti-immigration sentiment. There has been a drastic increase in popularity of these far-right parties, mostly in Southern European Union countries after experiencing little economic progress after the 2008 crisis. For example, in 2015, Spain's new far-right political party drastically increased in popularity. They are known for their high nationalism, for their ideas to protect the Spanish economy and their strong stance on anti-immigration policies, and their lack of legal repair for illegal immigrants to be protected under the law.
Europe needs to find a balance between having a high level of openness to refugees no matter their home country, and show their stance against Russian threats. Showing a political stance should not put others' rights in jeopardy (like those with Middle Eastern origin are experiencing). Both the European Union and the European countries; not belonging to the Union, have been resilient throughout history. Arguably, a lot of the causes of Global South miseries come from European colonialism. However, many of the international efforts seeking world peace started through European initiatives due to the consequences of World War II and the Cold War. When enforcing international law, accountability to individual people and state sovereignty needs to be regulated. Considering the number of policies, Conventions, Declarations, and organizations that the international community has created to tackle the refugee crisis, what is needed is a new narrative for enforcement. Countries need to be politically encouraged to have the will to comply. The international community has to promote more inclusivity to aim decreased discrimination so that the 1951 Convention, the 1977 Protocol, and others like the Cartagena Declaration, are correctly imposed. Finally, countries receiving larger amounts of Refugees due to proximity like Italy or Greece should be the focus of the European Union. As a group, these countries have received large amounts of displaced people, and should be aided in a more effective manner, without disregarding the law. The European Union tends to forget about Southern European countries leaving them with lack of resources to provide aid and not resorting to non-refoulement.
In terms of the Ukrainian-Russian war, European countries such as Poland are impressively aiding and providing refugees with fundamental human rights and providing them a space that enables them to be active citizens until the war stops. The political mobility and the protection given to Ukrainian victims is a powerful tool systematically utilized by the West to portray a global stance that is in opposition to Russia. Authoritarian countries should be more harshly punished by the International Criminal Court and the UN Security Council. Public shaming and reputational harming are something that states want to avoid, therefore it is essential that the global community targets these nations so that their interstate connections are weaker resulting in essentially peaceful agreements.