If Russia is committing crimes against humanity, than aren’t Ukrainians refugees?
A lot has been written about the international response for displaced Ukrainians, which consists of a hodgepodge of ad-hoc and temporary laws and measures, including the EU’s famous Temporary Protection Directive. Less discussed is the fact that few Ukrainians have received refugee status. While the media freely uses the term “Ukrainian refugees,” Ukrainians fleeing their country are widely assumed to not qualify for asylum, and it is not clear how many have pursued an asylum claim, given the assumed temporary nature of their displacement, a lack of information on the right to asylum, and the widely held, and erroneous, assumption that war displacement is not persecution so they don’t qualify. As Migration Policy Institute notes, the “temporary” nature of this displacement is proving to be wishful thinking, and the EU and other countries now face the very real prospect of prolonged displacement.
Few have questioned the status of displaced Ukrainians, despite the fact that the United States just accused Russia of committing crimes against humanity in Ukraine. This should hopefully reinvigorate debate over why most Ukrainians remain excluded from asylum law, which would offer them a long term solution to displacement and a pathway to citizenship in their new countries. Refugee status could be granted on a prima facie basis, removing the need for costly, individual status determinations. Yet, by some accounts, only 2% of Ukrainians displaced to other European countries have applied for asylum.
I have gotten the distinct impression that far from being outraged at the lack of asylum rights for Ukrainians, many international lawyers and refugee advocates are happy to see a temporary, ad hoc solution that works, at least in the immediate term. This tacit endorsement of “Protection Lite” could be seen as leading towards a more flexible, realistic and targeted future, where all migrations are mixed and there is no more right to asylum, but rather an ever-shifting smorgasbord of options, or it could be seen as an alarming pullback from a rights-based framework of laws. Many commentators and refugee advocates have embraced temporary protection as superior to refugee status because temporary protection is fast and automatic. Far from being alarmed by its use, they advocate it should replace asylum for other displaced nationalities, such as Afghans and Syrians.
Yet the temporary nature of temporary solutions raises the question of what happens to the Ukrainians, or other holders of temporary protection, in the long term? As one commentator has noted, TPS and temporary protection is seen as “a return oriented” tool. Yet there is no robust discussion by any major donor country to formulate a real plan to convert temporary statuses to refugee status, or to come up with an alternative, long term solution. In the USA, it is not uncommon for groups to language with TPS for decades. I doubt many TPS holders in the USA would advocate for this status over refugee status.
It was strange to see the US government declare that crimes against humanity are being committed in Ukraine without also declaring the Ukrainians to be refugees under US law. If crimes against humanity are not persecution, than what is? As the war grinds on into its second year, here’s hoping we can finally declare the Ukrainians to be refugees.