Despite the extensive build up, many people inside and outside Ukraine are stunned by the events unfurling there. Few expected the full-scale invasion that was launched early Thursday morning and continues into today. Shock is palpable, even in the reports of seasoned commentators and journalists. In Ukraine itself, there are accounts of defensive actions, of stoicism, and of fear. Hundreds of civilian and military casualties have been reported, to be added to the estimated 3000 deaths since 2014.
Displacement is an inevitable result of state aggression and war, as people flee when faced with persecution and violence that characterise such events. Sources suggest already 100,000 people have been displaced since the invasion started, adding to the at least 1.5 million displaced internally in 2014 or by the violence since, and others already outside the country. In the last two days, thousands have fled Ukraine, crossing borders into neighbouring countries.
Speculation about the levels of displacement that may result from the war is rife and preparations need to be made, even amidst deep uncertainty about what is happening, let alone what is likely to follow. Commissioner Johansson has stated the EU is “well prepared”. There will be an emergency meeting of the JHA Council at the weekend, bringing together EU interior ministers to prepare responses on displacement, following on from the emergency Summit and other meetings yesterday to decide on wider security and political questions.
In supporting people displaced from Ukraine, the Member States will be at the forefront but there are multiple actions that the EU can also take. In addition, civil society is mobilising, including local civil society in Ukraine seeking to continue its work despite the risks, and international NGOs and civil society in countries at the borders where people arrive.
While preparedness is crucial, scaremongering should be cut out. Regardless of the very real alarm many are experiencing, and regardless of the coming increases in displacement, stoking fears about the number of refugees and whether there will be a(nother) “refugee crisis” is never helpful, and certainly not now. Some of the media coverage, even before the invasion, was distastefully sensationalist, with journalists sounding a bit too excited about the newsworthiness of a “refugee crisis”. The reality of war is yet to have a sobering effect. But the focus needs to be: prepare, yes; panic, no. The situation will be manageable so long as decisions are taken to manage it.
Second, any plans need to be adaptable, and response mechanisms need to be flexible. Perhaps more so than in other crises, the sheer unpredictability of the situation is striking. The aims of and motivations behind the invasion are unclear: is it regime change, destabilisation, land grab, consolidation in the regions where there was already Russian state presence? How the war will play out is highly unpredictable, meaning great uncertainty about how many people will be forced to flee internally or across the borders.
The uncertainty is exacerbated because the Russian regime seems to have entered a new phase in its relations with Europe and the “international community”. Previously attempts were made to either coat actions in a patina of respect for international law or to construct (barely) plausible deniability. Elaborate arguments were often made to claim that actions were legitimate under international law and in the run-up to the invasion, this continued. But this week, all that has been dispensed with: Putin’s “history lesson”, which should now be seen as the harbinger of the invasion, broke with any pretence of respect for international norms. In this new context, plotting potential scenarios is much more difficult. Displacement will be a consequence of the actions of the Russian state, but the scale, speed and directions are as uncertain as those actions.
Inside the EU and out
In terms of specific actions for the EU, in support of its Member States, other countries, and above all the people affected, there are six immediate areas to consider.
First, there will be major humanitarian needs in Ukraine and the UN agencies and NGOs are mobilising either to deploy or – in most cases – to expand the operations that they already have in the country. Funding and access will be key and the EU has much to offer, with its effective and experienced humanitarian structures, and its extensive funding. On the other hand, the events at the borders with Belarus, including on the EU’s side of the border, demonstrate the deadly impact of denying access to humanitarian assistance providers.
Along the same lines, and although it may seem futile in the face of unscrupulous international actors, it is still important to underline the importance of International Humanitarian Law. In recent years, conflicts have been characterised by a serious erosion of respect for IHL, with large increases in civilian casualties a direct consequence. The level of suffering, the duration and complexity of the conflict will likely be exacerbated if IHL is disregarded. While the EU has been unable to influence the Russian regime, others may have better results, at reiterating the provisions of international law, including in UN fora.
Member State preparation
Second, Member States being adequately prepared is crucial. The public response, in the form of statements and rhetoric, is positive so far, and hopefully the Commission’s assessment that they are well prepared is correct. All this should be strongly welcomed. Yes, it would be naïve not to acknowledge that political choices about responses to refugee movements are determined by factors such as nationality, religion and race. But these are long-term questions and it is unhelpful to launch those debates now, when urgent response is needed. ECRE argues that functioning asylum systems are needed so that ALL people in need of protection can have access to a fair procedure, relevant for this and all other displacement crises.
In the immediacy, Member States’ preparations need to focus on ensuring adequate reception conditions and then access to asylum procedures for those arriving who wish to seek asylum. It should be noted that people’s circumstances and protection needs – and their wishes – are likely to vary considerably and that will need to be built into the response.
In order to reach support, access to territory is key, meaning that people fleeing have to be able to cross borders, as is allowed under international law. Safe routes out are central but often scarce in any situation where lives are at risk. In order to facilitate travel, a number of Member States have made it clear that they will continue or start to issue visas to Ukrainians. Others are establishing humanitarian corridors. This is also highly welcome. As a side note, Ukraine is a country with a large international community, many non-nationals present do not have EU citizenship. They will also be among those fleeing with their lives at risk, and thus need to be able to cross the border.
The EU in support
Third, a crucial role for the EU is in coordination efforts. This might be through the use of the “Blueprint network”, which is a mechanism for EU coordination in response to displacement crises. ECRE has been sceptical about its use when that seemed aimed at preventing the movement of people seeking protection, such as in response to events in Afghanistan. The focus on the network should to bring together the multiple EU actors involved in order to ensure an adequate response for displaced people in and outside the EU. There may be other – better – coordination mechanisms to serve the same purpose; from the outside it is impossible to judge. The important issue is that coordination is in place.
Fourth, the EU has practical tools that can be used immediately. There is emergency funding under AMIF to support the Member States most affected, including for reinforcing reception capacity and for ensuring adequate staffing in asylum systems. Then, the EU Asylum Agency (EUAA) is well-placed to deploy to support the affected Member States, by reinforcing their capacity, including in the form of operations if requested. In recent years, the EUAA has developed experience in managing operations to support Member States; ECRE’s analysis of these operations shows that they can make a significant positive contribution to Member States – so long as the purpose is to make asylum systems function and not to limit access to asylum. The operation in Lithuania and Latvia in response to Belarus’ actions showed how quickly the EUAA is able to deploy.
Fifth, the emergency provisions available in the Common European Asylum System need to be considered seriously now – and certainly should be points for discussion during the emergency JHA Council. Most obviously, this could rapidly become a situation falling within the scope of the Temporary Protection Directive, yet to be invoked but clearly designed for just such a situation. Some Member States are already introducing national temporary protection regimes. In addition, there are the emergency clauses of the Dublin Regulation, also yet to be invoked. Again, taking into account the different circumstances of people arriving and the different reasons they have had to leave will be crucially important.
There will be clear-cut cases of persecution, particularly if the worst-case scenarios come to pass and the whole territory is occupied. There will also be people faced with violence and other threats, especially if the situation continues into a war of occupation and resistance. In line with international law, it should not be excluded that people leaving situations of conflict and violence may be fleeing situations with characteristics and circumstances that actually qualify them as refugees under the 1951 Convention; this has to be considered, before turning to subsidiary protection under EU law. There may be other situations where people leave temporarily to be with family members but are able to or wish to return after a short time. Humanitarian protection statuses and other temporary protection regimes under national law might be appropriate. It is about rapid and fair consideration of protection needs, and providing support in line with international and EU legal obligations, and complementary national frameworks.
The perpetual solidarity question
Sixth, the wider question of sharing responsibility is immediately on the table. In terms of diplomatic and coercive measures, the EU has remained unified. This is despite the different relationships the Member States have with the Russian regime, provoking one analyst to classify some as “Trojan Horses” due to their closeness to Putin, and other as “cold warriors” or “doves”, respectively. A similar collective response is essential, too, on displacement. If this doesn’t happen, and Member States instead embark on “a race to the bottom”, competing to treat people as poorly as they can, there will be dire consequences. As well as adding to the suffering of those arriving, chaos will likely ensue, with people moving across Europe in search of protection.
A time-consuming political crisis due to divisions among Member States trying to minimise their responsibilities is a major risk to Europe’s security and to the EU’s future. It is surely among Putin’s chief objectives to generate a political crisis like that of 2015/2016. Unscrupulous leaders the world over know fully well the potential for refugee arrivals to generate panic in the EU, and they have no qualms about using people to score geopolitical points. ECRE has frequently argued that panic plays directly into the hands of the “strong men” who exploit people (be they inside or outside the EU). The only way to avoid this is work collectively and share responsibility through the use of existing and new mechanisms for solidarity among Member States – relocation to other countries and their assumption of responsibility, practical support, financial support.
Diplomatic, security and high political responses are crucial. But perhaps the real test for the EU in this new crisis will be how it responds to displaced people arriving to seek protection. The response needs to be humane and practical, in full respect of legal obligations, and it should use the legal and financial tools available for exactly this sort of eventuality. We have been here before – the situation is manageable but only if the response is collective and based on solidarity among Member States and with people arriving.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.