The Kosovo Refugee Crisis

A. Preface:

1. ECRE is a network of nearly 70 refugee agencies across Europe, many of which operate in the Balkans. We are also co-sponsors, with ICVA, of the Reference Group of NGOs on the former Yugoslavia. Our observations on the independent evaluation are largely confined to refugee protection, based upon the pre-publication edition of the evaluation report (EPAU/2000/001).

2. ECRE welcomes the fact that the independent evaluation of UNHCR's emergency preparedness and response to the Kosovo refugee crisis has been made public and was widely shared with NGOs. We believe that the UNHCR should be commended for commissioning the evaluation in the first place and for the openness with which it has shared its findings.

3. ECRE also welcomes the efforts made by the evaluation team to place UNHCR's work in Kosovo within context and to explain the external factors which limited UNHCR's competence.

B. Emergency response and protection:

1. ECRE is deeply concerned that the independent evaluation report recommends "further examination of the principle of first asylum in situations of mass influx, and to the issue of whether first asylum should be considered as an absolute and unconditional legal obligation consistent with the 1951 Refugee Convention" (para.482). 

2. First, the author has failed to provide a cogent justification for his view that the principle of first asylum needs to be re-examined at all.

3. Second, he has failed to provide a cogent justification for his view that the incident at the Blace border-crossing (referred to at para.480) means that the principle of first asylum needs to be re-examined in the context of the Kosovo context. His view that, by insisting on the admission of refugees to FYR Macedonia, UNHCR was simply being dogmatic is a misunderstanding of UNHCR's protection mandate. The principle of non-rejection at the frontier is so widely recognised in international customary law as well as the Refugee Convention because it is essential to the protection of refugees. UNHCR was not simply being dogmatic in its approach, it was being faithful to its mandate and international law.

4. In view of the team's remit to "consider the role and impact of other actors involved in the crisis, to the extent and insofar as they affected UNHCR's operations" it is surprising that the author has made no attempt to examine FYR Macedonia's response to the refugee protection emergency or how it lived up to its international obligations. Both of these factors clearly had an impact on how UNHCR operated

5. Third, the alleged legal basis for the recommendation is spurious (para.481). The author wrongly relies on Articles 9 and 33(2) of the Refugee Convention and the Travaux Preparatoires to suggest that there is a limit on the principle of non-refoulement in times of mass influx. Neither a proper reading of the text of the Convention, nor the Travaux Preparatoires, which refer to an individual's threat to national security in the asylum country, in any way support his recommendation.

6. The failure to provide cogent historical or legal justification for the recommendation fatally undermines the protection part of the evaluation.

7. ECRE agrees that the threat raised of possible destabilisation made it imperative that the international community and UNHCR implement burden-sharing mechanisms and demonstrate solidarity with FYR Macedonia. ECRE supports the evaluation team's findings that there is a need for UNHCR to further examine approaches to burden-sharing and solidarity with front-line states in cases of mass influx but the principle of non-refoulement must remain the cornerstone of refugee protection. The evaluation report team was misguided to suggest otherwise.

8. ECRE fully supports UNHCR's position (see document EC/50/SC/CRP.12 at para.15) that to admit the need to come up with "alternative protection strategies" in advance would imply that in cases of mass influx States could depart from the most fundamental principle of refugee law, i.e. the right to non-refoulement. To say that because UNHCR did not prepare for states to fail in their international obligations then they were wrong is unfair on UNHCR. In our view, this unfairness in approach undermines the report. At a time when states are all too often seeking ways of evading their treaty obligations under the Refugee Convention, it is of deep concern to ECRE that statements favourable to such policies be made, especially in the context of a report on an "evaluation of UNHCR's preparedness and response".

9. The report does not pay enough attention to the failure to use internationals standards in the protection of Kosovo refugees. ECRE consistently stated throughout the Kosovo crisis that we supported the UNHCR's view that the Kosovars were Convention refugees. We urged states which received evacuees to recognise the Kosovars as refugees. Had they done so, the problems outlined at para.463 could have been avoided. However, most of the refugees were granted temporary protection. It is our firm view that failure to use the Refugee Convention in the Kosovo refugee crisis undermines international standards. The author should have considered this question more directly: the failure to use the Refugee Convention by states clearly had, and will have, an impact on UNHCR, as guardian of the Convention.

C. UNHCR's coordination role:

1. ECRE welcomes the efforts made by the evaluation team to put UNHCR's response to the Kosovo refugee crisis in context. There are certainly institutional shortcomings at UNHCR which hampered an effective response to the refugee crisis, particularly in the failure to give a lead in the media, and ECRE expects to see real effort made by the agency to correct these. However, ECRE also expects those states who had a role in the refugee crisis - many of them are Member States of the UNHCR Executive Committee and signatories to the Refugee Convention- to change their approach to refugee protection in light of the evauation team's findings. As the report shows very clearly, excessive bilateralism undermined the lead agency role of the UNHCR and, hence, refugee protection.

2. Another factor which emerges from the report, and which ECRE believes should be addressed as a priority, is the consistent under-funding of the UNHCR's operations. Member States of the Executive Committee and others need to reflect hard about the impact on refugee protection of cutting UNHCR's budget and should correct the short-falls which affect the agency's operations in every sphere.