Today is World Refugee Day. Unfortunately, this year’s celebration comes at a time when, thanks in part to Russia’s invasion of Ukraine, there are more migrants fleeing war and oppression than at any other time in recent history. It is a good time to rethink the brutally narrow legal definition of who qualifies as a “refugee”. Governments are not allowed to be expelled back to their country of origin.
In ordinary language, we usually use the word “refugee” to refer to anyone fleeing war, violence and oppression. But the legal definition is much narrower. IN 1951 Refugee Convention (as later amended) prohibits governments from deporting refugees identified as people whose “life or liberty would be endangered due to [their] race, religion, nationality, belonging to a particular social group or political opinion. “There is a US law very similar definition.
This definition excludes a huge number of people fleeing horrific violence and oppression. For example, it does not include the vast majority of North Koreans, subjects of the most repressive regime in the world. For the most part, the victims are targets of what we might call “equal opportunities oppression,” which is distributed to almost everyone living under the regime, not just members of certain racial, ethnic, religious backgrounds. or other “social” groups. It does not even include people subjected to forced labor, as long as their enslavement is not based on any of the above prohibited characteristics. So is the American dispute a cruel and ridiculous asylum policy for people enslaved by terrorist groups, it is acceptable according to this definition, as long as terrorists are slaves with equal opportunities.
The same is true for most people fleeing violence and war. While the threat to their safety stems from the general conditions faced by people in the region, instead of being specifically targeted on the basis of one of the prohibited characteristics, they do not qualify as refugees.
Even if terrorists or repressive governments target you personally, you still do not qualify for refugee status unless their motive is one of the criteria listed above. When I served on the U.S. District Court of Appeals for the Fifth District, 2001-2002, the court heard the asylum case of a Peruvian migrant killed to death by a communist Shining Path terrorists. He opposed the creation of a Shining Path-controlled union in his workplace. The government did not dispute the evidence that terrorists had indeed threatened his life. Rather, the case revolved around whether the dispute in question was “economic” or “political” in nature. If the man was targeted for his political views, he could qualify as a refugee. But if it was just a disagreement over an “economic” issue, he was out of luck.
After the migrant’s lawyer unreasonably admitted in an oral argument that the dispute was indeed “economic” in nature, the court ruled against him. The case still haunts me today. I can only hope that if (as is likely) he was deported, this man was not killed by the Light Path when he was forced to return to Peru. *
Many Ukrainians fleeing Russian aggression are also unlikely to qualify as refugees under current standards of international law. While the Russians have targeted some people based on their political views, they are much more fleeing the indiscriminate violence of the Russian military and the oppression that the Putin regime imposes on all living under its control. Some experts in international law claim that Russia is committing genocide against ethnic Ukrainians. If so, it is likely that any ethnic Ukrainian fleeing Russian-controlled territory could qualify as a refugee.
But many of the inhabitants of the areas occupied by Russian forces are ethnic Russians, including almost 40% of those living in the Donbass region, who witnessed some of the most massive Russian aggression. Although Russia has repressed these people as much or almost as much as ethnic Ukrainians, they still would not qualify as refugees. In Ukraine, as in many multiethnic societies, the boundaries between members of different groups are often far from clear. The distinction between “Russian” and “Ukrainian” is extremely blurred, with many people having mixed backgrounds.
Of course, many governments allow Ukrainians fleeing the war, whether they qualify as “refugees” or not. But they are not required by law to do so, and openness may not continue if the war continues for a long time.
There are similar situations from all over the world. The above examples of people who do not qualify as refugees, even though they face terrible dangers, can easily be supplemented by cases from Africa, the Middle East and elsewhere.
Ideally, we should extend the definition of “refugee” to all those fleeing violence, war and repression, regardless of the motives of the oppressors to target the person in question. If this is not feasible, for political reasons, legal scholars and other experts have presented various proposals for gradually expanding the category of “refugees”.
If gradual enlargement is the only alternative, we must try to give priority to people facing the most severe forms of oppression, which in many cases may not be the ones they face on the basis of the characteristics covered by this legal definition. In chapter 8 of my book Free movement: voting on foot, migration and political freedomI discuss various gradual reforms in more detail, while arguing for greater enlargement.
Some opposition to the extension of the definition of “refugee” is probably driven by fears that accepting “too many” refugees would harm the countries of destination. But in reality, refugees – like other migrants – make an important economic and social contribution to host nations and migration restrictions cause various harms to local people as well as to potential migrants. Many of America’s greatest scientists, innovators, and entrepreneurs are migrants fleeing war and oppression, or their children. As far as migration has negative side effects, there are almost always ways to do so mitigate them through “lock solutions” that are less cruel and harmful than shutting down.
Perhaps the simplest and best way to deal with the difficulty of defining a “refugee” is to bridge the gap between them and other migrants and to create a presumption of freedom of movement for all. Where people are allowed to live and work it should not depend on arbitrary circumstances of parenthood and place of birth. But if, as is likely to be the case for a long time to come, we continue to distinguish between “refugees” and other potential migrants, there are good reasons to expand the first category.
At the very least, we can expand it to include people facing severe violence and oppression that is not based on currently defined categories. If your definition of a “refugee” excludes many people who have been forced or threatened with death by terrorists, it may be time to rethink.
* The above story about the Shining Path case is based entirely on public information. Former employees are not allowed to open internal court hearings, and I did not do that here.