Statement on the Situation of Refugees from Kosovo

The European Council on Refugees and Exiles (ECRE), comprised of some sixty non-governmental organisations throughout Europe which work to assist and protect refugees, calls for a humane and comprehensive response to the current refugee crisis caused by the deteriorating security and human rights situation in Kosovo province. The recommendations contained in this Statement are based upon the work of the 'ECRE/ICVA NGO Reference Group on the former Yugoslavia', recent visits by representatives of this Group to Kosovo[1], and upon the experience and expertise of NGOs working with Kosovo Albanians in each of the major receiving European States[2].

Situation as of 26 June 1998: The dramatic escalation of the Kosovo crisis during May-June 1998 has resulted in sudden large scale movements of war refugees, including individuals fearing persecution within the meaning of the 1951 Refugee Convention. As the violence is now affecting all segments of the population, the displacement is not only of Kosovo Albanians but also of many Kosovo Serbs, Montenegrins, Roma and Muslim Slavs. The vast majority of the refugees have fled to northern Albania and Montenegro, with an even larger number of internally displaced within Kosovo. At the present time, actions by the FRY border police to secure the border with Albania have led to the creation of a cordon sanitaire which prevents refugee movements across that border. A significant, but not dramatic, increase in asylum seekers from the province has been noted during the May-June period in some western European countries of asylum which are geographically proximate and have well established and sizeable Kosovo Albanian communities, for example Switzerland and Italy. Such arrivals of persons in need of protection continue to take place in the context of other migratory movements of persons, from Albania and elsewhere, not in need of international protection. It is predicted that the difficulty for Kosovan refugees now in Albania of returning easily to the province, due to the virtual closure of the border, and the precarious infrastructure for refugee reception in Albania, will result in many of these persons deciding to move towards the ports and attempting to leave Albania in order to join family or friends in other European States.

 In terms of European asylum policy beyond the immediate region:

1.         ECRE urges European States to display positive leadership by admitting asylum seekers from Kosovo to their territories, granting access to fair and efficient asylum determination procedures, and providing effective protection to all those in need of it. Since the pattern of systematic human rights violations in Kosovo (including many acts which amount to persecution and which are related to the grounds of the 1951 Convention) is now proven and undeniable, the protection needs of Kosovans seeking asylum in Europe should be recognised. These policies are required not only by ethical consistency but also by the terms of international refugee law. The obligation upon States signatory to the Refugee Convention to refrain from turning back at their borders those who flee in search of asylum is absolute.
 States should not penalise asylum seekers for illegal entry to the territory where they seek asylum, nor impose unreasonably high standards in the asylum determination procedure as a response to an increasing rate of applications. It is clear that no ‘internal flight alternative' reasonably meriting rejection of an asylum claim exists in either Kosovo, Montenegro or elsewhere in Serbia, for example.

 2.        ECRE reminds host States that the inclination of refugees to follow previously established patterns of migration and to join family and communities in specific European States should not in any way be considered evidence against the credibility of their claims. Articles 3 and 9 of the Dublin Convention should be utilised by signatory States in order to implement that Convention in a humane and flexible way.[3] Assistance to refugees can best be provided through respecting these historical migration patterns, which will give them both material and moral support during their time in exile. At the same time, international financial support should be offered to those States which thereby may take a disproportionate share of the responsibility.

 3.        ECRE supports calls by the Council of Europe[4] and the UN High Commissioner for Refugees[5] for host States to suspend the forced return of rejected asylum seekers to Kosovo. It is welcome that the vast majority of governments have responded favourably to these calls and have temporarily halted forced returns, but ECRE remains very concerned that, to date, only two German Federal States have categorically agreed to suspend all deportation orders until such a time that people can return to Kosovo in safety and dignity. ECRE particularly condemns any attempts by European host States to return Kosovans illegally, without valid documentation, or via neighbouring countries. Such returns expose the individuals concerned to the risk of serious human rights violations and are counterproductive in terms of European States' overall interest of securing stability in the region.[6]

 4.        ECRE calls on western European States also to refrain from enforcing 'safe third country' returns of Kosovan asylum seekers to Albania, which is already under enormous strain. In particular, ECRE urges the EU Ministerial Conference in Tirana on 21 July 1998, as a matter of regional co-operation, to avoid adopting and promoting the position that Albania is a 'safe third country' for return of Kosovan asylum seekers.

 5.        Persons who do not qualify for refugee status under the terms of the 1951 Convention, but who are unable to return to Kosovo due to the present crisis and/or the endemic human rights violations in the province, should be granted another form of secure protection, which respects their fundamental socio-economic and relevant civil and political rights while in exile. Those fleeing from service in an army which commits human rights violations against their own people should also be granted protection.

6.         ECRE further calls on European host States to cease negotiation or re-negotiation of readmission agreements with the Federal Republic of Yugoslavia, by which forced returns might be accelerated, or at a minimum to ensure that such agreements contain safeguards which ensure the safety of returnees. Such safeguards are NOT apparent within the text of the 'Agreement between the Government of the Federal Republic of Germany and the Government of the Federal Republic of Yugoslavia on the return and readmission of German and Yugoslav citizens without title to remain'.

 7.        Where arrivals are, prima facie, dominated by persons with a need for international protection, group recognition as refugees under the 1951 Refugee Convention is likely to prove the most efficient method of determination[7] Alternatively, where arrivals are of such a scale and impact on the receiving State as to constitute a genuine 'mass influx', access to the asylum procedures may be suspended and a form of temporary protection provided[8] -- In this context, ECRE expresses regret that the recently revised European Commission proposal for a harmonised approach to temporary protection in the EU has not yet been adopted, and that concrete provisions for responsibility sharing among European States in response to refugee crises remain to be developed.[9]

 In terms of European refugee policy in the immediate region:

 8.        ECRE emphasises that the international community should not attempt to contain displaced persons within FRY, or the other entities of the former Yugoslavia. Everyone has the right to leave their country to seek asylum, and ECRE therefore calls on European States to refrain from the closure of borders or imposition of visa requirements if faced with a large scale movement of refugees from Kosovo. The military option which has been discussed by NATO of establishing a 'cordon sanitaire' around the Kosovan borders runs the very serious risk of blocking the flight of refugees, to the cost of human lives. It would merely add to the obstruction of cross-border movement, already enforced by the Serb authorities at the Albanian border, and thus lead to the creation of more internally displaced persons, beyond the reach of effective protection or easy assistance. ECRE emphasises that just as the resolution of the crisis is of legitimate concern to the international community, so too the reception of refugees should be a responsibility shared beyond the immediate region. In this context, ECRE's strongly supports the inclusion of calls to resolve the Kosovo crisis in the 'Regional Strategy for Sustainable Return of those Displaced by the Conflict in the Former Yugoslavia'[10], where it is recognised that "Minority return and continued displacement are clearly incompatible".

 9.        In addition to alleviating the strain on neighbouring countries by maintaining access to western European countries of asylum, European States should continue to offer financial and material assistance in order to significantly increase reception capacity in the region. Providing international NGOs with access to the region at the present time is an essential part of preparing to deliver this assistance, and creating the conditions for monitoring protection standards. ECRE observes that care must be taken to prevent creating too great an imbalance between the level of international aid offered to those recently displaced from their homes in Kosovo and that offered to the over 500,000 refugees who have been accommodated in FRY for several years. ECRE has long called for increased assistance to be given to this relatively neglected group of refugees and host families, and now warns that their continued neglect, in contrast to the refugees from Kosovo, could aggravate tensions in the region.

            10.Finally, ECRE wishes to draw attention also to the situation of some 18,000-23,000 Croatian refugees (ethnic Serbs) in Kosovo, largely from the Former Sectors North and South (the 'Krajina'), who live without any prospect of a durable solution and who express fears that they are becoming a target in the context of Kosovo's escalating violence, despite their generally expressed wish to return home. The recent adoption of a comprehensive return plan by the Croatian Parliament is very welcome in regard to this situation, and now requires prompt implementation. ECRE calls on the international community to work more determinedly towards creating conditions which would permit the safe return of this group of refugees, and to provide all possible protection and assistance so long as they remain in Kosovo.

In conclusion

 ECRE believes that an approach based on multilateral action is needed both to resolve the crisis in Kosovo and to handle the resulting refugee situation in Europe. The need to prepare the reception capacity of neighbouring countries in central Europe should be matched by a willingness to receive the refugees also in western Europe, where many families and communities are already well established and where protection is most secure.

Finding a viable solution to the tragedy in Kosovo is a test of the will and capability of European governments to act together in a concerted manner. The provision of asylum to all those who are forced to leave Kosovo is no less of a test.

[1] Last delegation: February 1998

[2] The present Statement follows that made by ECRE to the Parliamentary Assembly of the Council of Europe in June 1995

[3] See ECRE's 'Position on the Implementation of the Dublin Convention', December 1997, for a full explanation of Articles 3 and 9

[4] See the Resolution of the Council of Europe's Parliamentary Assembly on Kosovo, 24 June 1998.

[5] 4 May 1998, Geneva, Press Release: 'UNHCR says climate in Kosovo explosive. Urges European governments not to send back Kosovo Albanians

[6] Note that of the 3,000 Kosovo Albanians deported by Germany to FRY by the end of 1997, 70% later re-applied for asylum. Source: International Crisis Group report, 24 March 1998.

[7] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 44.

[8] See ECRE's 'Position on Temporary Protection in the context of the Need for a Supplementary Refugee Definition', March 1997.

[9] On 24 June 1998, the European Commision announced two Proposals for Common Actions, one regarding the temporary protection of displaced persons and the other regarding a solidarity structure for the reception of such persons.

[10] Presented to the Peace Implementation Council on 9 June 1998 and the Humanitarian Issues Working Group on 26 June 1998