Are those fleeing Ukraine refugees?

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Hugo Storey, Retired judge of the Upper Tribunal, UK; immediate past president IARMJ-Europe *
28 June 2022

The question posed in this article is intentionally limited. Are those fleeing Ukraine refugees within the meaning of Article 1A(2) of the 1951 Refugee Convention? Whether they are eligible for other forms of protection is not explored. In principle, such eligibility should not be considered anyway until after a decision has been made on whether someone is a refugee.

For most Ukrainians who have fled the war, actual decisions by host states on whether they are refugees are not imminent. That is a consequence of the fact that most host countries have granted them some form or other of temporary protection and have in effect put any asylum applications made on hold.[1] Host countries have also heeded UNHCR advice to avoid any forcible returns for the present.[2] But to try to assess what will be the situation of those who have fled when host countries do eventually make decisions on their refugee status would be an unduly speculative exercise. Would we be looking at a Ukraine restored to its pre-2014 or pre- 2022 war boundaries? A Ukraine with peace and security restored? A Ukraine with some territory still under the control of the Russian forces? A Ukraine largely under direct Russia control or exercised through puppet administrations? A Ukraine still experiencing ongoing armed conflict? God only knows. But whatever the real situation then, the crux would remain whether applicants had a well-founded fear of being persecuted at that point in time. All we can do realistically at this point in time is make a forward-looking assessment of their situation as it is now. For such assessment, this piece offers only first thoughts.

The war in Ukraine is casting disquieting light on Western double standards. A Syrian sitting in a western country’s reception centre still waiting to be processed years after being assailed by the same Russian bombs as are now striking Ukraine might wonder why s/he cannot work or bring children whereas those fleeing Ukraine can. An Afghan interpreter who fled after the fall of Kabul to the Taliban and is still stuck in the asylum process might similarly wish their persecutor had been Russian. An Iranian might wonder why s/he faces removal to a purportedly safe country, whilst their Ukrainian counterpart is offered housing, work and accommodation. On social media, a tweet by Ayo Sogunro, a Nigerian human rights lawyer, has been shared many times: ‘Can’t get it out of my head that Europe cried about a ‘migrant crisis’ in 2015 against 1.4m refugees fleeing war in Syria and yet quickly absorbed some 2m Ukrainians within days, complete with flags and piano music. Europe never had a migrant crisis. It has a racism crisis.’ (see evaluation by Mona Charen)

But legitimate concerns about double standards cannot gainsay the magnitude of the crisis. Its scale is unprecedented since World War II. UNHCR has said it expects 8.3 million people to flee from Ukraine this year. More than 12.7 million people have already been displaced by the war there, with 7.7 million internally displaced and more than 5 million fleeing to other countries. More than 7.5 million refugee movements out of Ukraine have been recorded since 24 February (see also IOM Ukraine Internal Displacement Report).

Considering the situation of those fleeing Ukraine at a general level is not the same as examining the particular circumstances of any individual case. Further, in any real life examination it would be essential to have regard to a comprehensive set of up to date country of origin (COI) materials.  Whilst there is probably more day-to-day data sources and information to hand than for any other war in world history, there are still few comprehensive reports on country conditions. So, it only makes sense to apply a broad brush approach that seeks to identify the main issues as they appear at the moment, drawing ad hoc on the most readily accessible sources. 

One would hope that refuguee law is in principle better placed than in past times to approach the definitional problems arising from large scale influxes of persons fleeing war. After myriad debates over the years about whether those fleeing armed conflicts can be refugees, etc there is now a robust, coherent and still relatively up to date set of UNHCR guidelines (hereafter ‘UNHCR Guidelines No.12’) addressing such situations. However, there are worrying early signs regarding state practice, at least in EU member states, that Article 15(c) of the Refugee Qualification Directive (recast), which concerns eligibility for subsidiary protection,  is (still) being construed as a form of international protection  lex specialis to be applied in armed conflict situations despite this same directive obliging them not to apply it until a decision has first been made that applicants are not refugees.[3]

Country conditions

In any assessment of refugee eligibility for those fleeing Ukraine, it is the country conditions that will be front and centre.  It doesn’t take an expert to see how dire they are.

The country was already war-torn. Russia’s February 24 2022 invasion came on the heels of the Russo-Ukraine War which began in 2014, which saw the annexation of Crimea and ongoing conflict in Donbas between government forces and Russia-backed armed groups and has resulted in self-proclaimed republics (the Donetsk People’s Republic (‘DPR’) and the Luhansk People’s Republic (‘LPR’) in Russian-controlled areas and mass passportisation by Russia of these regions’ pro-Russian residents. This earlier war, ongoing for almost 8 years, extracted a heavy toll on civilians in eastern Ukraine. Over 16,000 people were killed, including both combatants and civilians, close to 1.5 million displaced. Multiple reports suggest that it featured enforced disappearances, torture, rape and other forms of conflict-related sexual violence, unlawful detentions, sham trials, appropriation of private and public property, violations against cultural heritage, persecution on political grounds, deportations and forced conscription to the enemy armed forces.[4] Largely as a result, the country was experiencing a protracted humanitarian crisis. According to UNHC, there was ‘an estimated 2.9 million persons in need of humanitarian assistance mostly in the eastern oblasts.  Additionally, there were almost 1.5 million internally displaced persons (IDPs) registered in Ukraine.

Not to be forgotten either is that whilst Ukraine was a functioning democracy when Russia invaded in February 2022, country reports immediately prior to that time identified quite significant failures in securing human rights.

Turning to the current war, the Office of the UN High Commissioner for Human Rights (OHCHR), as of 14 June, recorded 9,931 civilian casualties in the country: 4,432 killed – including 277 children – and 5,499 injured. OHCHR notes that the actual figures are likely to be considerably higher. Heavy fighting persists in several areas of eastern and southern Ukraine. Daily strikes also continue in Donetsk and Kherson oblasts. Inside Ukraine, many people are trapped and unable to meet their basic needs including for food, water and medicines. There is a lack of safe humanitarian access in areas where intense fighting is ongoing. UNHCR and international aid agencies are struggling to reach hard-hit areas with life- saving assistance as part of inter-agency humanitarian convoys.

At the same time, it would appear that significant parts of the country have not as yet been attacked or bombed and, with the Russian retreat from the outskirts of Kiev, the invader’s military aims appear to have become less territorially ambitious. Nearly 2.5 million movements back into the country have been recorded since 28 February.[5] So there would appear to be geographical variations which may mean that statements about exceptionally high levels of indiscriminate violence may only hold true in certain parts of the country. That might suggest that refugee assessment will be somewhat akin to that undertaken in the past in relation to Iraq and Afghanistan where at different points in time UNHCR among others, only considered certain provinces or regions to be at an exceptionally high level of violence so as to give rise to a general risk.  At all events, evidence of country conditions is going to heavily  affect assessment of all elements of the refugee definition.

Undoubtedly most of those fleeing Ukraine are Ukrainian nationals, but their numbers include stateless persons. UNHCR has estimated there were more than 35,000 stateless persons and persons with undetermined nationality in the country. Persons who were either stateless, at risk of statelessness, or with undetermined nationality included Roma, homeless persons, current and former prisoners, as well as nationals of the former USSR who resided in Ukraine in 1991 but never obtained an endorsement in their Soviet passport indicating they were citizens of Ukraine. Whilst, therefore, this analysis covers those for whom Ukraine is their country of nationality or former habitual residence, it will not cover dual nationals where they will have available protection in their other country(ies) of nationality. Nor will it cover Russian nationals, for example, Russian soldiers who have deserted whilst in Ukraine and seek protection in other countries, even though there may well be many such cases.

Brief consideration will now be given to the different elements of the refugee definition, omitting only the ‘outside the country’ element as that is likely in almost all cases to be uncontroversial.

Being persecuted

Terminologies differ, but if a human rights approach is taken to this element of the definition (as is reflected in Article 9 QD(recast)), among the issues of particular importance in any assessment of it will be: the intensity of the harm; the extent to which it is or has to be actualised; and whether the harm must be individualised.

Intensity of harm

As regards the intensity of the harm, mere exposure to an armed conflict does not constitute persecution. But at least so far as civilians are concerned, there would appear to be strong indications that the violence concerned constitutes severe violations of human rights . There are at least three features pointing in this direction. One is that to all intents and purposes, it is not simply an international armed conflict but one in which Russia has engaged in a war of aggression, in contravention of the UN Charter which requires non-intervention in the territorial integrity of an independent state.[6] A second feature is that the Russian army, in contravention of international humanitarian law (IHL) and international human rights law (IHRL),  has often deliberately targeted civilian areas and indeed in Mariupol and some other cities the strategy appears to be to raze to the ground all civilian infrastructure and dwellings, i.e.  deliberate targeting of civilians and civilian objects (homes, hospitals schools).[7]  Third, there is mounting evidence that, also in contravention of IHL and IHRL,  the Russian forces are deploying unlawful means and methods of warfare by use of explosive weapons in populated areas, often referred to as EWIPA heavy artillery and aerial bombs (weapons with a wide blast radius) and other indirect-fire artillery without adequate spotting (weapons for which the target is wholly unseen) and featuring use of cluster munitions attacks. Compounding such features is the fact that Russia has failed to comply with the legally binding order of the International Court of Justice of 16 March 2022 and to abide by the relevant resolutions of the UN General Assembly (In particular see UNGA Resolution ES 11/1 (2022)) and stop its military aggression – to cease fire, and immediately and unconditionally withdraw its troops from the entire territory of Ukraine within its internationally recognised borders.

In addition, there are numerous reports of unlawful killing of civilians and mass graves.  Serious violations of international humanitarian law committed with criminal intent—that is, deliberately or recklessly—are war crimes. War crimes are ‘grave breaches’ of the Geneva Conventions. Both under customary law and the International Criminal Court (ICC) Statute and other sources, they include a wide array of offenses—deliberate, indiscriminate, and disproportionate attacks harming civilians; hostage taking; using human shields; rape; imposition of collective punishment, forcible enlisting of young men in the separatist republics and forcing them to commit war crimes, among others. The ICC has formally begun an investigation into war crimes in Ukraine.  (It would appear that Ukrainian forces, albeit on a lesser scale, may also sometimes have acted contrary to IHL norms. Such conduct may be relevant in cases where, for example, pro-Russian Ukrainians have fled to other countries and are claiming international protection).

One significant feature, not as yet documented as much as others, is the forcible transfer of Ukrainian civilians to Russia and subsequent relocation to abusive conditions. There are reports of civilians being sent to ‘filtration camps’ on the Russian or pro-Russian territory ‘to investigate’ their political identity (pro-Ukrainian or pro-Russian).

These features, if confirmed, compound the severity and systematic nature of the violations of basic human rights (see N v UK, ECtHR, 2008, para. 115 ). As stated by the ECtHR in Sufi and Elmi (see ECtHR, 2011 Sufi and Elmi, para 241):

Although the Court has previously indicated that it would only be “in the most extreme cases” that a situation of general violence would be of sufficient intensity to pose such a risk, it has not provided any further guidance on how the intensity of a conflict is to be assessed. However, the Court recalls that the Asylum and Immigration Tribunal had to conduct a similar assessment in AM and AM (Somalia) (cited above), and in doing so it identified the following criteria: first, whether the parties to the conflict were either employing methods and tactics of warfare which increased the risk of civilian casualties or directly targeting civilians; secondly, whether the use of such methods and/or tactics was widespread among the parties to the conflict; thirdly, whether the fighting was localised or widespread; and finally, the number of civilians killed, injured and displaced as a result of the fighting. While these criteria are not to be seen as an exhaustive list to be applied in all future cases, in the context of the present case the Court considers that they form an appropriate yardstick by which to assess the level of violence in Mogadishu.

Such features strongly point to understanding the nature of the harm facing those who have fled Ukraine, were they to return, as persecutory.

Strasbourg jurisprudence also offers guidance on how to approach cases where, even if the decision maker does not consider that the applicant’s home area is one characterised by indiscriminate violence at an exceptionally high level, lesser levels of violence may still give rise to a real risk of being persecuted where the applicant has particular risk characteristics. For example,  In LM and Others v Russia, which concerned  applicants from Syria in 2015, the Court concluded that the applicants could establish a violation of Article 3 ECHR by virtue of the general situation of violence taken together with the fact that  they were stateless Palestinians originating from Aleppo and Damascus, where particularly heavy fighting has been raging and that they were ‘young men who, in the view of the Human Rights Watch, were in particular danger of detention and ill-treatment’ (see ECtHR, 2015, LM and Others v Russia, paras. 123-124.).

In terms of assessing violations of human rights, IHRL, of course, permits restrictions on certain rights during wartime or officially proclaimed public emergency threatening the life of the nation. But any reduction in rights during such a situation must be of an exceptional and temporary nature ‘strictly required by the exigencies of the situation’ and cannot involve impairment of non-derogable rights, which include the right to life and the prohibition of ill treatment.  This is highly relevant in the Ukraine context to the issue of protection (see below) because in June 2015 Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

Extent to which persecution  is or has to be actualised

It may be of particular salience in the context of Ukraine that well-founded fear of being persecuted includes the threat of being persecuted, not just the actuality (see CJEU, 2018, Ahmedbekova, para. 51). Of the 10 million people who have fled, a significant number have left areas which at the time when they left had not been the subject of attack. It seems reasonable to assume they left in anticipation of an attack in the foreseeable future. The objective content of such apprehension is supported by what we see on our screens as well as by reputable sources (see here, here and here).  Additionally, many left behind family members involved in the fighting and live in fear of what will happen to them.[8] Furthermore, there have been certain statements made by Putin and the Russian media that explicitly or implicitly conjure up far worse harm than ordinary military attacks – including existential harm such as the use of tactical nuclear weapons and chemical and biological warfare. The threat is also one that emanates from the world’s second most powerful superpower ruled by an autocrat not subject to any rule of law restraints.  In these circumstances threat, objectively considered, may well be enough.

When assessing the threat of persecution, one must bear in mind that it has to be established that a person has a well-founded fear of being persecuted, but this does not mean that the threat must be ‘imminent’; it suffices if it is reasonably foreseeable: see below on Well-founded fear). 

Individualisation

There may be a temptation on the part of some tackling Ukrainian cases to repeat past errors – assuming that a person cannot establish persecution unless able to show that they will be individually targeted.  The fact that an individual may not have experienced harm prior to departure and may come from a region of origin that has not been subject to Russian attacks, does not necessarily mean that the they do not face persecution. To qualify for refugee status there is no requirement that an individual be known personally to the actors of persecution. Further, the refugee definition encompasses group persecution. If a group faces a real risk of serious harm, then it is not necessary for an individual to establish that they will targeted individually or suffer a degree of harm above that suffered by other individuals with the same profile (paras 22-23).

However, if the objective evidence does not establish that those fleeing Ukraine will face group persecution, it will still be necessary to consider whether there are specific risk categories  eg Ukrainian soldiers and volunteer fighters, local mayors, judicial and prosecution staff, former and off-duty police officers, teachers and other civilian government workers, civilians perceived to oppose Russian occupation, human rights activists, humanitarian and development aid workers, those involved in active social media efforts to combat Russian coverage of the war – and perhaps family members of all of the foregoing. In this context it is relevant that background reports indicate that the practices of the Russian invasion forces are very chaotic but in some places (not only in Bucha and other places around Kyiv in March) they have killed or at least detained local Ukrainians that they regard as having any connection with the Ukrainian defence forces or public authorities or have even shown sympathies to them (searching people’s mobile phones for that purpose).

Protection

Perhaps the most difficult issue may prove to be that of protection. Going by country reports on Ukraine prior to February 2022, its state authorities had been able in general, at least in areas other than eastern Ukraine, to provide effective protection, although not so for a number of specific categories. In relation to Russian-occupied areas of eastern Ukraine as things stood in 2018, the ECHR has acknowledged that the Ukrainian authorities might sometimes experience certain difficulties in ensuring the proper functioning of the judicial system in certain regions in view of ongoing hostilities in those regions. Even so,  the Court stated that, the State authorities are expected to take certain steps to resolve the problem by, for instance, specifically authorizing claims to be filed in courts in another region of the State (see Tsezar and Others v. Ukraine (Applications nos. 73590/14, 73593/14, 73820/14, 4635/15, 5200/15, 5206/15 and 7289/15 dated 13/02/2018) para 58.) . But since February 2022, the situation is that there is an invading army threatening the country as a whole and hence issues of protection have to be considered in a different light. One complicating factor, in cases where the issue is the adequacy and effectiveness of protection by the Ukrainian authorities, is that on 10 June 2015 Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights.[9] Does this mean  that protection standards in this context must only concern violations of non-derogable rights (together with any qualified rights not covered by the specific derogation)?[10] Or does it mean that this derogation suggests that there is less chance for the Ukrainian authorities to provide sufficient protection?

In eastern Ukraine the situation clearly requires a different analysis since Ukrainian authorities have plainly not been able to provide protection in the areas taken over by Russia, directly or indirectly. At least under Article 6(b) QD(recast), Russian forces are ‘parties or organisations controlling … a substantial part of the State’, and so are actors of persecution as a category in their own right. Where a party or organisation control  a substantial part of the territory of the State, by definition the State cannot provide ‘[p]rotection against [their] persecution’ pursuant to Article 7(1).  However, it is observable that the situation in eastern Ukraine is having a negative impact on conditions in some parts of Western Ukraine affected by fighting earlier on, where protection may be hampered by destroyed infrastructure, dangerous areas where one cannot go because of landmines or where internal displacements from the east may be placing a  strain on resources, eg local orphanages. 

Internal protection

UNHCR’s position is that: ‘[i]n view of the volatility of the situation in the entire territory of Ukraine, UNHCR does not consider it appropriate to deny international protection to Ukrainians and former habitual residents of Ukraine on the basis of an internal flight or relocation alternative (para 8).’ Judging by the reaction of courts and tribunals over recent years to similar statements by UNHCR regarding armed conflict situations in Iraq and Afghanistan, there may be disagreement about that. However, as already noted, it may be that the specific context of existential threat from a neighbouring superpower ruled by an arbitrary autocracy which has stated, without geographical limitations, that its objective is to ‘de-Ukrainise’ Ukraine, makes the UNHCR position more compelling. For those emanating from eastern Ukraine, any question as to whether they could internally relocate to western Ukraine would have to bear in mind the adverse impact of the war on conditions in Ukraine (to which reference was made earlier).

Convention reasons and causal nexus

To qualify as a refugee, the feared persecution flowing from the armed conflict  must be for reason of a 1951 Convention ground. Here it might be argued against there being any reason engaged that, even if it is accepted that civilians are being targeted, that is simply because they are civilians and not because of their specific ethnic, political or religious profiles. Possibly, under this argument, there might be exceptions for particular type of cases – eg civilians in areas seen to have been particularly involved in opposing and discriminating against Russian nationalists. This line of argument has seemingly been advanced by at least one prominent refugee law academic, James Hathaway (see also Naoko Hashimoto-Scalise). Counterposed to this perspective, it might well be argued that there are two reasons that have particular traction: nationality and political opinion. In order to decide whether a Convention  reason is engaged, it is always necessary to have close regard to the historical context (see political opinion here).

The nationality reason may prove the most apposite, at least drawing a line through studies that have been done of its role  in previous contexts. Fripp usefully identifies a number of scenarios where possession of a nationality in the formal sense could give rise to persecution by reason of nationality, including where the country is dominated by non-nationals, where military occupation or political domination by a foreign state occurs, where a state has more than one class of national, and where oppression occurs in the context of an attempt to remove rights by the creation of a false situation of state succession.  As publicly declared, Putin’s argument is that Ukraine is not a genuine state, but comprises a government effectively established by the West and used by Western ‘Nazis’ and American ‘imperialists’ as a way of threatening Russia.[11]  Such posturing appears to amount to denial of nationality not dissimilar to that which the Nazi regime used in relation to Austria in World War II. What is seen as meriting persecution is the insistence by Ukraine that it is an independent state with its own nationals. According to a senior military expert, ‘his ultimate aim is that Russia should simply take over Ukrainian territory as if it were the old Soviet Union and Ukraine was just one region within the old Soviet Union.’ There is a real threat of denationalisation.

Whether on its own or in combination with the political opinion reason, nationality might seem an effective reason for Russian persecution. Political opinion comes into it because it would appear that all Ukrainians perceived as loyal to their government are being classified as anti-Russian. Evidence pointing in that direction includes the fact (already mentioned) that there are reports of civilians being sent to ‘filtration camps’ on the Russian or pro-Russian territory ‘to investigate’ their political identity (pro-Ukrainian or pro-Russian).

Hence, it might be considered that a combination of their nationality and support of their government means that a political opinion is imputed to those who have fled Ukraine. In this regard, it is important to recall that political opinion is not limited to opinions about the state (in this context the Ukrainian government,) but can also encompass  non-state actors or quasi-state actors, including occupiers/invaders.^[12]

Well-founded fear

This remaining element of the definition is primarily about forward-looking risk assessment and as such will turn heavily on assessment of the general situation and the applicant’s particular circumstances. Whilst forward-looking, the risk assessment needs only to consider what is reasonably foreseeable; it is not necessary to show that there is an imminent threat of persecution.

It may be relevant in quite a number of cases to bear in mind that ‘past persecution’ a ‘serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated’ (at least under Article 4(4) QD(recast)).  As regards the standard of proof to be applied, this should not be different to that ordinarily applied – often dubbed the ‘lower standard’ – just because a cases involves situations of armed conflict. The refugee definition, does not distinguish between peacetime and armed conflict situations. In particular, as already indicated, it would be wrong to require an applicant to show a ‘differential risk’ or impact over and above that normally faced in such situations .

Conclusion

From what has been said above, there are no easy answers to the question which is the subject of this article. Lack of a full set of COI and related materials about the current situation in Ukraine prevents the kind of full examination that any court or tribunal would need to undertake. However, taking a broad-brush approach based on materials to hand presently, there would appear to be valid reasons for considering the current position to be that many of those fleeing Ukraine meet the essential requirements of the refugee definition.

* The views expressed herein are the author’s own views.

[1] Within the EU, which has activated the Temporary Protection Directive (TPD) (see Council of the EU, Council Implementing Decision (EU) 2022/382, 4 March 2022), member states must grant a residence permit for at least one year but with scope for extension for a further two years. Whilst Article 17 TPD ensures access to asylum procedures, it does not guarantee the examination of any asylum application before the end of the period of temporary protection. (Despite Article 19(1) giving states discretion to exclude anyone who has applied for asylum as an asylum seeker from concurrently enjoying temporary protection, it appears that the majority have not done so.) According to the EUAA, Analysis on Asylum and Temporary Protection in the EU+ in the Context of the Ukraine Crisis Week 23 (6 – 12 June) 2022, ‘in week 23, Ukrainians lodged just 317 applications for international protection in the EU+ , while at the same time at least 65 099 persons were registered for temporary protection in 28 reporting countries, and 60 811 of them were Ukrainians.’

[2] In March 2022 (hereafter ‘UNHCR Position’) UNHCR issued a ‘non-return advisory’ stating: ‘As the situation in Ukraine is volatile and may remain uncertain for some time to come, UNHCR calls on States to suspend the forcible return of nationals and former habitual residents of Ukraine, including those who have had their asylum claims rejected. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Ukraine has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.’

[3] E.g. In Applicant v Ministry of Interior (Territorial Commission Torino), 4 May 2022, a Turin tribunal  granted subsidiary protection because ‘[t]he exceptional level of violence against civilians throughout Ukraine (general risk) makes it unnecessary to analyse the applicant’s personal situation, as it can also be considered a ‘serious and individual threat’: see https://caselaw.easo.europa.eu/Pages/default.aspx. UNHCR has discerned a similar pattern of approach by EU member states to Syrian cases: see M. Garlick, ‘Subsidiary Protection’ in V. Türk, A. Edwards and C. Wouters (eds), In Flight from Conflict and Violence: UNHCR’s Consultations on Refugee Status and Other Forms of International Protection, CUP, 2017, p. 249, states: ‘Predominant use of Article 15(c) for Syrian claims in some states is occurring despite the acknowledged primacy in law of refugee status and the procedural safeguards designed to ensure its grant to those who qualify, as well as clear country of origin and interpretive guidance.’

[4] See e.g. Office of the United Nations High Commissioner for Human Rights Report on the human rights situation in Ukraine 16 August to 15 November 2017; Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine : resolution / adopted by the General Assembly, UN. General Assembly (75th sess. : 2020-2021).There is a pending  interstate application brought by Ukraine against Russia regarding Crimea before the ECtHR (Grand Chamber of the ECtHR (no. 20958/14). After the Russian invasion in February 2022   the Council of Europe (CoE) excluded Russia in accordance with Art. 8 of its Statute. Accordingly, Russia will cease   to be a member of the ECHR in September 2022, whereinafter the ECtHR will not accept new cases against Russia.

[5] Although this includes back and forth movements: see information from State Border Guard Service of Ukraine cited by UNHCR, Operational Data Portal: Ukraine Refugee situation, last updated 9 June 2022.

[6] Article 2(4) of the Charter prohibits aggressive use of force subject to exceptions for ‘self-defence’ under Article 51 and UN Security Council authorised interventions under Chapter VII.  Few legal scholars consider that  Ukraine would fall under the Article 51 exception. Manifestly the Chapter VII exception has not arisen.

[7] OCHR Ukraine Situation, 25 March 2022: ‘Private houses, multi-storey residential buildings, administrative buildings, medical and education facilities, water stations, electricity systems have been destroyed on a massive scale,  with  disastrous effects on civilians and their human rights, including their rights  to health, food,  water, education and housing.’

[8] ‘How does anyone feel being forced out of their country, being made to leave loved ones behind? Or being exhausted waking up to sirens, taking our children to the shelter at night?’ quoted in  In their own words: Refugees flee Ukraine, March 18, 2022.

[9] See Declaration contained in a Note verbale from the Permanent Representation of Ukraine, dated 16 April 2021, registered at the Secretariat General on 22 April 2021 – Or. Engl.Ukraine’s derogations are limited to Articles 9,12,17 ICCPR and 5, 8 ECHR, Article 2, Protocol No. 4 ECHR. They do not include Article 14 and 6 ECHR.

[10] UNHCR Guidelines No.12, para 16 states that ‘[w]here a lawful state of emergency exists, non-securement of derogable rights may not necessarily constitute persecution if the adopted measures are strictly required by the exigencies of the situation.’

[11]  In remarks on February 24, 2022 Putin declared that Russia would press for the “de-Nazification” of Ukraine. In an earlier July 12, 2021 piece  titled ‘On The Historical Unity Of Russians And Ukrainians’’ published on the Kremlin website in Russian, Ukrainian, and later English (www.en.kremlin.ru/misc/66182) Putin  casts doubt on the legitimacy of the Ukrainian state and the nation itself, asserting that Ukraine and Russians are ‘one people’, dismissing the country of 44 million as a ‘spawn of the Soviet period’, claiming that it is now run by the West, and suggesting that its borders should be subject to negotiation.

[12] A ‘ “political” opinion is an opinion about the nature, policies, or practices of a state or of an entity that has the capacity, legitimately or otherwise, to exercise societal power or authority. A relevant non-state entity is one that is institutionalized, formalized, or informally systematized and which is shown by evidence of pattern or practice to exercise de facto societal power or authority’ (The Michigan Guidelines on Risk For Reasons of Political Opinion (2015) para 8).