Forced migration of Roma and the current asylum crisis

22 September 1999

Statement by the European Roma Rights Center on the Occasion of the OSCE Review Conference, September 22, 1999, Vienna

The European Roma Rights Center (ERRC), an international public interest law organisation which monitors the rights of Roma and provides legal defence in cases of abuse, decries the widespread denial of adequate protection to Romani refugees fleeing persecution across borders, and calls upon the OSCE and its Participating States immediately to take urgent measures to ensure that Roma are not discriminated against in access to asylum, as provided for in Article 3 of the 1951 Convention relating to the Status of Refugees and other binding international law.

Fifty years since the adoption of the Universal Declaration of Human Rights, its promise of the right to seek and enjoy asylum from persecution rings hollow for Roma. Throughout Europe, Romani victims of systematic discrimination and racially-motivated violence are denied effective domestic remedies, then summarily rejected when, in fear for their lives, they seek sanctuary in a foreign country. The few exceptions - in which Romani applicants have been recently granted asylum by Western governments in a small number of cases - only underline the rule: relegated to "second class" status at home, Roma are treated as second class refugees when forced to flee.

Forced migration - intimately linked to the daily violation of fundamental human rights - has long been the destiny of Roma in Europe. In recent years, as violence and discrimination against Roma have increased, several governments have paradoxically raised the hurdles to migration ever higher - conducting more extensive border patrols, establishing more rigorous migration and political asylum procedures, and promulgating stricter visa requirements. As far back as 1993, the CSCE High Commissioner on National Minorities warned of the dangers which "this relatively new complex of migration controls" posed for "Roma migrants in particular:"

"If physical characteristics, as opposed to non-discriminatory means, are used for identifying presumed migrants, then Roma may be disproportionately targeted for migration control including repatriation. Because of a certain distinctiveness in appearance, many Roma including citizens and legal residents, may be attracting the attention, suspicion and at times harassment by law enforcement and immigration officials. Anti-Roma prejudice among some of these officials may also be leading to arbitrary or even discriminatory treatment during document checks, round-ups, and repatriation procedures. Currently, there seem to be no effective means for verifying the impartiality and propriety of such policies in action." ("Roma (Gypsies) in the CSCE Region: Report of the High Commission on National Minorities," September 1993).

Lamentably, since 1993, conditions for Roma in countries of origin have only deteriorated, while migrant target countries have seemingly ignored the High Commissioner's concerns. Notwithstanding extensive documentation of human rights violations of Roma across Europe, asylum authorities and political leaders have simply declared Roma to be economic migrants. Indeed, panicked by large numbers of Romani applicants, a number of European countries have tightened their immigration laws still further to prevent what some western journalists have labeled the "Gypsy invasion."

This year, two events have highlighted the asylum crisis for Roma: the near-universal denial of protection afforded to Roma fleeing systematic persecution in Kosovo; and the failure of the current occupant of the European Union presidency, the government of Finland, to adhere to international standards in assessing the claims of Romani asylum applicants from Slovakia.

1. Kosovo

Having failed to protect the lives and other fundamental rights of Roma in Kosovo during and after the war, the international community has now denied protection to tens of thousands of Roma who have fled the province over the past three months. The Roma in Kosovo have suffered wholesale persecution and violence, primarily perpetrated by ethnic Albanians intent on purging Kosovo of Roma in the wake of the withdrawal of Yugoslav forces from the province in early June 1999. Abuses documented by ERRC against Kosovo Roma include killings; abduction and illegal detention; torture and other forms of ill-treatment; rape; expulsion of Roma from homes and communities; and forced entry, confiscation, looting and burning of houses and other property. ERRC research in the field has provided strong evidence that in most cases of abuse the KLA must be implicated.

That Roma would endure violence and abuse in Kosovo should have come as no surprise. Indeed, as far back as 1993, the CSCE High Commissioner on National Minorities had noted "credible reports of the particularly acute situation of Roma in the former Yugoslavia." More recently, international monitoring organisations, both governmental and non-governmental, have repeatedly called attention to the precarious situation of the Kosovo Roma. The United Nations High Commissioner for Human Rights and the United Nations Committee on the Elimination of Racial Discrimination have expressed concern in particular about the situation of Roma in the province. In early July, Sadako Ogata, United Nations High Commissioner for Refugees, was quoted as stating: "I think the protection of the Romas, the Gypsies, is probably the most difficult and serious problem. The first priority is to protect them where they are. But when we fail in that and want to take them out of the country, we have to make sure that the receiving country has at least some capacity of readiness to help. This has not proven the case in some situations." These calls notwithstanding, the Kosovo Roma, both inside and outside Kosovo, have been effectively denied international protection by several OSCE Participating States.

On July 20, 1999, following the dramatic flight of thousands of Roma from Kosovo to Italy, Italian and international press reported that Italian authorities intended to cease considering persons fleeing Yugoslavia as refugees, but would instead treat them as illegal immigrants. According to reports of the Associated Press from July 20, the Italian Interior Ministry was going to regard the issue as one of human trafficking rather than the flight of persons persecuted on ethnic grounds. Ministry spokesperson Daniela Pugliese is said to have stated that the Ministry did not consider the lives of Roma to be at risk in Kosovo.

As ERRC stated in a letter to Italian Prime Minister Massimo D'Alema on August 4, 1999, which has never received a response, Roma who have fled Kosovo and arrived in Italy are entitled to international protection. Since Roma as a group had been targeted for violent attack by ethnic Albanians, all Roma from Kosovo have a well-founded fear of persecution in that province. Accordingly, they should be considered refugees in the sense of the 1951 Convention relating to the Status of Refugees.

The estimated 10,000 Roma from Kosovo who have fled to Macedonia since the commencement of the war may soon no longer be welcome in that country either. According to ERRC's information, refugees from Kosovo will lose their legal status in Macedonia after September 28, 1999. Pavle Trajanov, the Macedonian Minister of Interior, is reported to have said that "the ideal solution" for the refugees is to be returned to Kosovo, but that "since this is not possible for the Serbs and the Roma," the Macedonian authorities were "planning on contacting the Yugoslav Ministry of Foreign Affairs [to] try to persuade the authorities to accept Kosovo refugees on the territory controlled by Serbs." Minister Trajanov threatened to give serious consideration to deporting the refugees "back to where they came from," since refugees from Kosovo would not be able to stay in Macedonia "forever." In a letter to Minister Trajanov on August 31, ERRC asked his office to reaffirm its commitment to abide by its obligations under international law and to provide Romani refugees a safe haven. To date, our letter remains unanswered.

Almost 80,000 Roma from Kosovo are said to have left the province and fled to Serbia proper and Montenegro. ERRC has been informed that Yugoslav Red Cross offices in Serbia do not maintain records of people fleeing from Kosovo, who, still within the borders of Yugoslavia, are not officially considered refugees. Roma from Kosovo have the status of "internally displaced persons" in Serbia, which in practical terms means that they are not entitled to humanitarian assistance. In addition, the Serbian Ministry of Education recently urged primary and high schools in Serbia to refuse to enroll refugee children from Kosovo, thus depriving them of their right to education under Article 62 of the Yugoslav Constitution. Finally, ERRC has documented a number of instances in which Yugoslav authorities have returned to Kosovo Roma fleeing the province. Accordingly, the return of Romani refugees to any part of the Federal Republic of Yugoslavia would create the danger of the grave human rights violation of refoulement.

In this context, ERRC welcomes the statement of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) on the occasion of the September 6 Supplementary Human Dimension Meeting on Roma, according to which "[i]t is essential that the Roma are not requested or encouraged to return until their living conditions in Kosovo are safe for them." As of this date, those words are not being heeded by other OSCE Participating States.

2. Finland

Roma also continue to flee other countries of Central and Eastern Europe. With few exceptions, western governments return them, even though in many instances, Roma are seeking protection from racist violence in their country of origin. A particularly troubling example of this phenomenon occurred in late June, when hundreds of Roma fled Slovakia and sought asylum in Finland. Roma living in Slovakia routinely suffer racial discrimination and racially-motivated violence, and Slovak authorities have repeatedly failed to guarantee the rights of Roma to physical security and equality, and to provide remedy in cases in which their rights have been violated. The United Nations High Commissioner for Refugees" 1998 Guidelines Relating to the Eligibility of Slovak Roma Asylum Seekers found it "clear" that "Slovak Roma may well be able to substantiate refugee claims based on severe discrimination on ethnic grounds."

Upon learning of the Roma exodus, on June 30, ERRC sent a letter to Kari Häkämies, the Finnish Interior Minister, asking Finnish authorities to consider claims for asylum by Slovak Roma in accordance with Finland's obligations under the 1951 Convention relating to the Status of Refugees. The letter also urged Finland not to impose a visa regime on Slovak citizens. On July 5, however, Finnish authorities did just that. The following day, July 6, ERRC wrote to Tarja Halonen, Foreign Minister of Finland, to express concern that the decision to introduce a visa requirement for Slovak citizens seemed targeted at Roma and that, whatever the intent, the effect of this decision was likely to be disproportionately felt by Slovak Roma fleeing persecution.

Since early July, the Finnish government has done nothing to allay these concerns. On August 23, it was reported that Finnish authorities had processed and rejected 300 applications for asylum filed by Slovak Roma who had arrived in Finland in late June. According to a Finnish government official quoted by the Czech news agency ČTK, the Immigration Office was likely to process the remaining approximately 1,200 applications by early November. ERRC has recently been informed that Finnish authorities intend to return a number of the Romani asylum applicants to the Czech Republic (a transit point for many on the way to Finland), suggesting it is a "safe third country" in which the Slovak Roma should, initially, have applied for asylum. And yet, the Czech Republic has one of the highest rates of racially motivated killing of Roma since 1989. Its failure to prevent, punish and remedy racial violence and discrimination against Roma has been repeatedly criticised by inter-governmental monitoring organs and NGOs. Moreover, a number of courts in western Europe have ruled that the Czech Republic does not have an adequate asylum procedure and should therefore not be regarded as a "safe third country."

ERRC remains troubled that the Finnish government, traditionally a strong advocate for Roma rights, has apparently succumbed to the widespread racial stereotypes and anti-Roma sentiment prevalent in much of Europe. In this context, ERRC recalls the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, in June 1990, which declared, in relevant part (para. 40):

"The participating States clearly and unequivocally condemn [...] racial and ethnic hatred [...] xenophobia and discrimination against anyone [...]. In this context, they also recognize the particular problems of Roma ([G]ypsies). They declare their firm intention to intensify the efforts to combat these phenomena in all their forms and will therefore [inter alia] [...] commit themselves to take appropriate and proportionate measures to protect persons or groups who may be subject to threats or acts of discrimination, hostility or violence as a result of their racial, ethnic, cultural, linguistic or religious identity, and to protect their property [...]."

In view of the foregoing, instead of imposing a visa requirement, the Finnish government would be better advised to encourage the Slovak government to improve the human rights situation of Roma within its jurisdiction. As the current occupant of the EU Presidency, Finland's actions understandably garner heightened scrutiny. In these circumstances, Finland's failure to date to give due consideration to Slovak Roma claims for political asylum sends a dismal signal about the commitment to non-discrimination in asylum policy of even those governments heretofore most sensitive to the human rights concerns of Roma.

In view of the foregoing, the European Roma Rights Center calls upon the OSCE Participating States to:

1. Recognise, and address adequately, the especially vulnerable position of Roma in Kosovo, in particular by ensuring that the OSCE Mission to Kosovo gives priority to the protection of Roma from violence and discrimination;
2. Grant all Roma from Kosovo who are currently outside the province a refugee status in accordance with the 1951 Convention relating to the Status of Refugees, as persons fleeing a country in which their lives and fundamental rights are in immediate danger;
3. Ensure that Roma who flee persecution in other countries do not suffer discriminatory treatment in consideration of claims for asylum, as required by the 1951 Convention relating to the Status of Refugees.