By Kristin Bergtora Sandvik and Adèle Garnier
* Originally published on March 4, 2022 by Refugee Law Initiative – School of advanced Study, University of London at https://rli.blogs.sas.ac.uk/2022/03/04/forced-displacement-from-ukraine-notes-on-humanitarian-protection-and-durable-solutions/. We would like to thank Greta Uehling for her careful reading and encouragement to publish this blog.
The Russian invasion of Ukraine February 24 2022 marks the start of a new displacement crisis. In a statement on February 24, Filippo Grandi, the High Commissioner for Refugees, emphasized that ‘The humanitarian consequences on civilian populations will be devastating. There are no winners in war, but countless lives will be torn apart. We have already seen reports of casualties and people starting to flee their homes to seek safety’. UN officials estimate up to 4 million people could leave Ukraine if the situation deteriorates. As of March 4, 1.2 million people had fled Ukraine to other countries in the region.
Ukraine was one of 15 republics of the Soviet Union and became an independent state in 1991. Ukraine is a 2002 signatory to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. As of January 2022, it had a population of approximately 43 million. The country is bordered by Russia, Belarus, Poland, Slovakia, Hungary, Romania and Moldova. To contribute to the understanding of the evolving displacement context and the implications for the international protection regime and durable solutions, this blog provides a set of initial reflections. We draw on our backgrounds in refugee and migration studies to do four things:
1. A tentative state of the art
As part of this reflection, we have surveyed a set of key (English language) journals in refugee, migration and humanitarian studies to map out existing scholarship on displacement and the Ukrainian context. We are aware these are Global West publications and reflect what is visible in these areas of research, rather than a comprehensive overview of existing knowledge. In doing this work, we have also observed that there are important contributions published in law, area studies, history and cultural studies. Note that we mostly bracket Holodomor studies (see here and here) in this exercise.
Journals such as Refugee Survey Quarterly and the International Journal of Refugee Law have not published on Ukrainian displacement. In the Journal of Refugee Studies, there are a few contributions on internal displacement and elections (Woroniecka-Krzyzanowska and Palaguta 2017); and politicization of religious actors as humanitarian providers and state failure (Leustean 2021). Forced Migration Review has published shorter interventions on asylum seekers in Poland (Szczepanik and Tylec 2016) and shelter (Dean 2017; Wetterwald and Thaller 2020) and also hosts older contributions on deportees (Uehling 2008) and statelessness (de Chickera and Whiteman 2014). As noted in an interesting contribution in a US law journal, surprisingly little attention has been given to the continued refugee resettlement of Ukrainians to the US on the grounds of religious persecution (Klokiw 2019)..
The Journal of Ethnic and Migration Studies features a substantial gender oriented literature on labor market participation, transnational marriages, motherhood (i.e. Górny and Kępińska 2004; Kindler and Szulecka 2013) but no contributions focusing on displacement and conflict in Ukraine. The International Migration Review is home to some older scholarship on Ukraine and European migration (Shamshur 1992) and on post-war Ukrainian refugee resettlement to Canada (Luciuk 1986). International Migration has a contribution on legal and illegal migration in the 2000s (Uehling 2004); and Migration Studies features publications on internal displacement (Uehling 2021) and socio-legal aspects of return migration (Kubal 2015). While we have found few scholars with a large body of published scholarship in this topical area, it might be noted that Greta Uehling, an anthropologist at the University of Michigan has been an important and prolific contributor to this field for more than two decades.
In the adjacent field of humanitarian studies Journals such as Disasters, the Journal of Humanitarian Affairs and the Journal of Humanitarian action have nothing on Ukrainian displacement (though note Ukraine focus as part of the large scholarship on famine relief (Werther 2021). A contribution on Polish aid to Ukrainian internally displaced people (IDPs) is published in Humanitarian logistics (Piotrowicz 2018).
While the academic specialist fields of refugee and forced migration studies have a limited track record on Ukraine, a larger body of work on forced displacement can be found in area studies, (with a key point of reference being a special issue in Europe-Asia Studies 72.3 (2020)). This includes research on the IDPs (Kuznetsova and Mikheieva 2020) in Crimea (Charron 2020) and Donbas (Sereda 2020; Sasse and Lackner 2020); media representations of IDPs (Rimpiläinen 2020) IDPs and public space (Lazarenko 2021) and gender (Kuznetsova 2021; Khrystova and Uvarova 2022); humanitarian crisis (Scrinic 2015; Quinn 2015; Bulakh 2017).
2. A century of Ukrainian displacement and resettlement
In the following, drawing on historical scholarship and scholarship in history, we provide a brief chronology of displacement in Ukraine over the past century. There was substantial out-migration to North America prior to the First World War (Chyz 1939). Between the early 1920s and 2020, Ukraine – until after the Second World War divided into Western and Eastern Ukraine – has experienced numerous periods of mass emigration, forced relocation and displacement. Before the first World War, poverty and land scarcity led to large scale migration from Western Ukraine (then part of the Austro-Hungarian Empire and later Poland and Romania) to North America. In the East, peasants were subjected to massive, forced relocations to other parts of the Czarist empire. The annexation and deportation continued under Stalin. The Holodomor –to kill by starvation –was a man-made famine in Soviet Ukraine between 1932-1933 that killed millions of Ukrainians. The famine was exacerbated by the governments rejection of outside aid, confiscation of household foodstuffs and the restriction of population movements (Basciani 2011). In addition to ethnic Ukrainians, national minorities were also oppressed and deported in the 1930s and 1940s (ethnic Germans, Crimean Tatars, Poles, Bulgarians, Armenians, and Greeks) (Malynovska 2006). As the international refugee regime began taking shape, the emergence of anti-immigration laws in the US (the Immigration Act of 1917, the Emergency Quota Act of 1921, and the Immigration Act of 1924) significantly curtailed transnational Ukrainian migration. Groups displaced by the first world war were again displaced by World War II from reception countries in eastern Europe (Kulischer 1949).
The Second World War took an enormous toll on Ukraine. While there are no reliable numbers available, 5 to 7 million people are estimated to have died, and an estimated additional 2.3 million Ukrainians were sent to Germany to perform forced labor. The repatriation agreement signed by Allied powers in at the Yalta conference in February 1945 categorized Ukrainians from the East as Soviet subjects to be forcibly repatriated to the USSR, and many fought to gain recognition as refugees. Ukrainian Displaced Persons (DPs) residing in the German, French, and British zones of temporary occupation at the end of the Second World War were a very mixed group comprising of Ukrainian prisoners of war taken by the Soviets, guerillas fighting against the Soviets, slave labor for the Nazis and Nazi-sympathizing Ukrainians. After the War, this group became classified as political refugees (Stebelsky 1991). In terms of overseas resettlement, in 1947, in a first for Australia, the country joined Argentina, Canada and the US in resettling DPs. as part of the International Refugee Organization (IRO) resettlement agreement (Persian 2018). Post-war resettlement to Canada was a short-lived affair, due to conflicts between the established diaspora community and arriving DPs (Luciuk 1986). With respect to the US, of the 352,000 people admitted to the US under the Displaced Persons Act of 1948, 15 percent were Ukrainian, and most were Ukrainian speakers from Western Ukraine. Most Ukrainian immigrants were subject to the limitations that the National Origins Quota System regulating immigration from 1924 to1965. A specific case concerns the postwar trajectories of ethnic Germans (Volksdeutsche) from Ukraine. Under Nazi resettlement, this population had ended up in Germany and Austria. While not eligible to be assisted by IRO, some did seek assistance. Broadly belonging to Catholic, Protestant, and Mennonite faith groups, the latter was comparatively much more successful in utilizing religious networks for overseas emigration. While individual efforts to switch national identification mostly failed and petitioners living in ‘mixed’ marriages had some success, the well-organized Mennonites managed a ‘collective conversion’ from German to Dutch nationality and resettled as a group (Panagiotidis 2020). By 1955 only about 250,000 of the 2.3 million Ukrainians displaced because of World War II had been allowed to relocate abroad (Wenner 2010). By 1952, most Ukrainian refugees in DP camps had been resettled (Dyczok 2000).
In the post-World War period, religion has been a key structuring factor in resettlement. Post-World War II Ukrainian refugees tended to be Orthodox and Ukrainian Catholic; beginning especially in the late 1970s, numerous Soviet Jewish refugees arrived in the US (Basok and Brym 1991), along with smaller populations of Evangelicals, Baptists and Pentecostals. As president Gorbachev’s glasnost policy allowed people to apply for emigration on the grounds of religious persecution, refugees from various evangelical faiths settled at the end of the Cold War. Ukraine experienced economic crisis from the late 1980s until the late 2000s, engendering high outward migration. However, it was the 1990 Lautenberg Amendment that became a primary driver of Ukrainian immigration to the United States. On denominational grounds, Ukrainians were admitted as religious groups with a lesser group-based burden of proof with respect to discrimination. While initially intended as a temporary protection mechanism for persecuted religious minorities in the Soviet Union, it has become a central gateway for Ukrainian Jews, Catholics, Orthodox, Pentecostal, Baptist and Evangelicals (Klokiw 2019)..
Whereas the 2001 USA PATRIOT Act took refugee admissions under 30,000 per year. Between 2001 and 2003, the US maintained a separate designation, and an associated quota, for countries from the ‘former Soviet Union.’ This quota was removed in 2004, when Ukraine was integrated into a broader ‘Europe’ refugee quota which led to a rapid decline of admissions. Nevertheless by 2011, Ukraine was among the ten countries with the most refugee arrivals (Capps 2015) during FY 2000 through FY 2011. By 2013, only 227 Ukrainian refugees were admitted (Klokiw 2019). At the Russian occupation of Crimea and the subsequent arrival of the Trump administration, the numbers surged again. While the Trump administration slashed the resettlement quota, by 2019, Ukrainians were one of the top groups resettled as refugees in the United States, with a 75 percent growth in arrivals. On a parallel track, Ukrainians have received high admissions under US visa schemes, making up the highest portion of overall European admissions from 2009 to 2018 (Klokiw 2019).
3. The politics of displacement prior to the 2022 invasion
Ukraine has since the end of the Soviet Union been a country of origin, transit and arrival for forced migration, as well as a provider of ‘durable solutions` for ethnic Ukrainians returning to the country form which they had been exiled during the Soviet era.
In the 1990s, the ethnic composition of Ukraine changed significantly. Many ethnic Russians left, and many ethnic Ukrainians returned, including Tatars originally from Crimea, whose returned population increased fivefold between 1989 and 2001. Returnees arriving after the adoption of a new citizenship law in November 1991 did not have Ukrainian citizenship on arrival, as the new law linked citizenship to permanent residence in Ukraine. A sizable population was stateless, as Tatars also had not been granted citizenship of the ex-Soviet Republic in which they lived before their departure. The population from ex-Soviet Republics in which there were conflicts also increased, including from Armenia, Azerbaijan and Georgia.
Ukraine developed a refugee protection framework from the 1990s, with the adoption of the Law on Refugees in 1993, the opening of a UNHCR Liaison Office in Kyiv in 1995, the ratification of the 1951 Geneva Convention and its 1967 Protocol in 2002. Asylum claims were processed from 1993. Asylum procedures were criticized as weak, with high levels of forced returns for instance of Chechens. Still, Ukraine recognizes several thousands of refugees a year, and this in some years has included sizable contingent of Afghan refugees since the 1990s. Ukraine in the 1990s was also a country of transit for irregular migrants, with 100 000 migrants being detained at its western borders between 1991 and 2003. Human trafficking, particularly of young women, also increased in the 1990s, and Ukraine ratified the UN Convention against Transnational Organized Crime in 2000. With the expansion of the European Union in 2004, and the perspective of an association agreement with Ukraine, the European Union focused on capacity building and contributed to fund asylum processing centres.
The suspension of negotiations of the EU association agreement by a pro-Russia government in 2013 led to the Maidan protests in Kyiv and a pro-European regime change the following year, rapidly followed by Russia’s occupation of Crimea. 5.2 million people were affected by the conflict and 1.6 million were displaced within and outside Ukrainian borders, Ukrainian IDPs have moved westward. As of 2019, there were 1.4 million IDPs in Ukraine, the 12th-largest population of IDPs worldwide Outside the borders, most Ukrainians sought refuge in Russia, but many also went to European Union countries, where the refugee recognition rate was very low – many Ukrainian nationals did not apply for asylum.
As of 2020, the main countries of origin of refugees and asylum seekers in Ukraine were Afghanistan, Syria, Russia and Bangladesh (the latter almost only asylum seekers), with a total of 2249 refugees and 2359 asylum seekers. There were also 35,875 stateless people. Besides, at the end of 2019, IOM estimated that there were between 37,000 and 60,900 irregular migrants in Ukraine, of various nationalities, concentrated in large cities, and with the largest shares from South Asia, West Africa and the Horn of Africa. The majority were young men with secondary education who had arrived with valid visas as tourists or students.
4. Pointers for advocacy
How the exodus from Ukraine will play out remains to be seen. Many of the structural impediments to transit and (temporary) settlement are not present in the current context. Ukrainians don’t require Schengen visas to enter the European union and can stay for up to 90 days. Furthermore, in an unprecedented move, Slovakia admits Ukrainians without valid passports.‘If they pass an individual assessment conducted by border officials’. Poland has also explained that they will admit those without valid documents. At the supranational level, the European Union has for the first time triggered the adoption of the EU temporary protection directive. The directive grants immediate protection, to Ukrainians and non-Ukrainians legally residing in Ukraine and fleeing toe war for one year. In terms of the traditional framework for durable solutions, traditional overseas resettlement countries have announced visa extensions for Ukrainians and priority processing of family reunification. Ukrainian diasporas, for instance in Canada, which hosts of one of the largest population with Ukrainian origins, are mobilizing resources to support their fellow nationals. Canada has also announced an emergency, two-year temporary protection measure for Ukrainian nationals fleeing the war, with no ceiling on eligible applications. Public opinion and politicians at municipal and provincial levels have signaled they will welcome Ukrainian refugees. Several countries are pressured to do more than the changes they first announced, such as the UK and Australia.
At the same time, vulnerability is gendered: all men between 18 and 60 have been conscripted and denied exit from the country. Also, Ukrainian men are currently prevented from leaving Ukraine so as to be available in case of mass mobilization and this appears to disregard concerns for men in vulnerable situations or the impact of family separation. From this perspective, gender-based advocacy focusing on men is necessary, especially as it has not been a priority in refugee advocacy.
Furthermore, the politics of solidarity are not universal: solidarity with Ukrainian refugees does not seem to apply to non-White people also fleeing Ukraine. Instances of discrimination and racism has been reported in Ukraine and at the Polish borders, with African students in Ukraine being trampled on or stopped from fleeing by border guards. The situation has been denounced by the African Union. All advocates should support fair treatment for all people affected by the war regardless of their ethnicity and migratory status.
Finally, vulnerability is tiered. The invasion has meant further displacement for refugees who had fled to Ukraine, such as Afghans who had fled the Taliban‘s return to power in 2021. Governments and civil society providing support to forced migrants from Ukraine should ensure non-Ukrainians are not just not discriminated against, but rather prioritized given their particular vulnerability.
We don’t know how long the invasion will last, what kind of conflict this will develop into and what the civilian toll will be. Our intervention, albeit a tentative exercise, aims to provide a background context for discussions – both scholarly and in various practitioner and activist communities – about humanitarian protection and durable solutions moving forward.
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Kristin Bergtora Sandvik (S.J.D Harvard Law School 2008) is a professor of legal sociology at the Faculty of Law, University of Oslo and a Research Professor in Humanitarian Studies at PRIO. She works on the digital transformation of humanitarian action and refugee management with a focus on legalization, accountability, ethics and rights. She also has a long-standing focus on global health.