First, development has been on the ‘EU’s agenda’—if one may speak so-far before the ‘EU’ legal entity was born, and well before humanitarian action was identified as a specific activity. Since the onset of the European Economic Community, the overseas territories of European States benefited from specific treatment. As early as 1963, the Yaoundé Treaty was signed with the newly formed African States,² setting up rules for the development of the latter. It was followed by the more sophisticated schemes of the Lomé I (1975), II (1979), III (1985) and IV (1990) Conventions. A full range of devices for development through legal regulation, rather than through the market, was thus established.

The ideology of ‘preferences’ and ‘non-reciprocity’ put forward by the promoters of the New International Economic Order³ mirrors the ideology of the ‘preference for the poor’ which European States have been knowing for centuries when their social services were in the hands of religious Christian people.⁴ Thus, in the Europe–ACP Countries system, being economically disadvantaged leads to being legally preferred, to positive discrimination. And the latter Lomé system enshrined some major aspects of the New International Economic Order. Indeed, it was one of the very few positive translations of the above referred to ‘soft law’ norms.

In the meantime, acting for development is not very far from the concept of crisis; since it is perceived as acting for peace and stability, as aiming at avoiding crisis for the middle and/or long term. With time, European integrated institutions have taken advantage of their economic power to put pressure on some states. Cooperation with conditionality has been meant as a tool for promoting human rights and democracy. Economic ‘sanctions’,⁵ for years, have resulted in a powerful tool for crisis management. They often target regimes which are deemed dangerous not only for peace, but namely for the respect of human rights and dignity. Therefore, in 1991 the European Community was the first to sanction former Yugoslavia, followed by the UN Security Council Resolution 713.

However, the European institutions have gone beyond. With the setting up of the Union—by the Maastricht Treaty in 1992—‘political cooperation’ between States was succeeded by ‘common policies’, later on transformed by the Amsterdam and Lisbon treaties. However, the current Common Security Defence Policy is heir to the 1992 policy, born under the aegis of the so-called ‘Petersberg tasks’. The latter are built around the idea of resorting to force in favour of the human being’s rights and dignity. They draw the picture of a ‘soft power’: humanitarian and rescue tasks; conflict prevention and peace-keeping tasks; joint disarmament operations; military advice and assistance tasks, post-conflict stabilisation tasks. However, one last task is that of combat in crisis management, including peacemaking.

Up to now it has always been about acting in favour of the human being at every stage of a crisis by prevention—through development and aid to governance, mitigation, rehabilitation and reconstruction. The EU crisis management activity is very rich and not aimed at gaining favour for the EU. Instead, it expresses the EU’s common humanist ideology. If the “European Security Strategy” adopted in December 2003 seemed to look for hard security, not too far from a defence of Europe’s own interests, the follow-up has reinforced the human being-centred approach, with two reports (Human Security Study Group 2007; Study Group on Europe’s Security Capabilities 2004), and the introduction of a ‘human security’ dimension. The 2008 revision of the European Security Strategy was thus closer to the concept of human security.

When it came to dealing with migration, the European Union was primarily interested in forced migration, be it due to persecutions, voluntary deportation, war, famine, or other disasters. This compassionate activity was, later, enshrined in law.

Since the beginning of the post-Berlin wall era, humanitarian assistance has become part of crisis management. Since it alleviates human beings’ suffering, it is usually analysed as a means of mitigation that reduces the impact of a given crisis, thus making it less difficult to undergo the conflict or disaster. From another angle, and concerning certain crises, humanitarian assistance can be analysed as a means of imposing a standstill, a kind of provisional measure, which keeps people resorting to one belligerent alive. Wars being more and more often waged by civilians—people who do not belong to a state army—and against civilians, keeping civilians alive matters, even politically. It is not only a means of bringing relief to civilians, but this kind of action has also a meaning in terms of a future for the belligerents. Indeed, suffering induces anger and, later on, revenge, creating a cycle of violence and suffering bringing relief today entails less violence tomorrow.

Since ECHO’s creation in 1992, Europe—the supranational institutions together with Member States—has become the first donor in the humanitarian field, sometimes reaching the level of 50 % of all that is given. At the peak of crisis, Europe has a very powerful tool in order to bring “caritas inter armas”.⁶ In most crises, Europe (i.e. the Union plus its Member States) is the first donor for humanitarian assistance: namely in former Yugoslavia, Palestine, Libya, and Syria. ECHO’s activities are not purely quantitative. Regulation 1257/96⁷ details the principles of what is considered a partnership with operative humanitarian agencies. The stress is put upon the principles: impartiality, which entails helping according to needs—but also apolitical stance and independence vis-à-vis political activities. ECHO’s principled activities bring quality besides quantity and the presence of more than a hundred ECHO experts in the field brings even more quality to the funded humanitarian activities.

However, funding these kinds of issues may amount to crisis management. Hence, the EU played such a role in former Yugoslavia through funding assistance to the uprooted. Some elements about ethnic cleansing, its origins and operative process are necessary prior to a deeper analysis. The Yugoslavian State—first a Kingdom, then a Socialist Republic—was created after the First World War and reformed after the Second. It was, in the last years of socialism in the 1980s, composed of six Federated Republics, each of them encompassing several different populations. This heterogeneity was supposed to be transcended by the common socialist ideology. However, after Tito’s death in 1980, and with the decay of the socialist world, the ideological cement receded before nationalist ideologies. Milosevic highlighted the Serb heritage with a huge celebration of the Kosovo Polje battle of 1389 on its 600th anniversary. Together with Croats reaffirming the Croatian national tradition and Alija Izetbegovic taking into account the belonging of Muslim Bosniacs to the Umma,⁸ Yugoslavia fell apart. Yet, each of the different Republics was mixed and the separation was challenging. Ethnic cleansing came in to play. The rationale for ethnic cleansing is to compel minority groups to leave a territory, giving way to an ethnically pure territory. The Serb militias acted in order to implement an ethnic cleansing plan through different means: creating fear through presence, threat, rape or killing the ones who belonged to minorities. However, ethnic cleansing was not absent from other groups’ strategies. This ethnic component of the crisis, crossed with some purely geographic features of the country,⁹ and with the high level of armament, gave way to one of the most structured and heavy conflicts of the last decades. In many places, urban Bosniac¹⁰ Muslims of the city were surrounded and besieged by rural Serbs firing from above, with the JNA—the former Yugoslavian army¹¹—guns and sometimes tanks.

Thus the way humanitarian aid was delivered mattered and played a dramatically important role in the survival of besieged cities. While Europe, acting first as a Community, then as a Union, dedicated two thirds of its total assistance to the former Yugoslavia. It set up for the Sava Valley the only humanitarian field Task Force that Europe has ever established. The device of six Security Zones created for six main besieged cities by the UN Security Council¹² found its relative efficiency due to both the European funding for a large amount of assistance—led on the field by the UNHCR but implemented by European NGOs—and the military protection of the European soldiers from UNPROFOR.¹³ The strongest point of this device was the Sarajevo airlift—the longest in history—which for 46 months had thoroughly upheld a city with its hundreds of thousands of inhabitants, providing food, non-food emergency items,¹⁴ but also seeds for small urban agriculture and even paper for keeping the local newspaper Oslobodenje alive.

The first lesson to be drawn from this case is the strategic impact of humanitarian assistance upon forced migration. It had helped put a halt to ethnic cleansing. From September 1992 on, the war changed. A front line settled between areas dominated by the belligerents and no further major forced displacement occurred. Being helped to survive, the besieged did not give in. The fall of Srebrenica is a major exception due to very specific failures in the concept¹⁵ and system¹⁶ of a security zone. One may conclude that humanitarian action was used as a crisis management tool during the conflict, with a globally positive result. Bearing in mind the role played by the Europeans, it is obvious that the EU strongly, even if not totally successfully, acted against forced migration and in favour of its victims. The events pursuing to the Dayton peace agreements confirm and complement this first lesson learnt. The new Bosnia–Herzegovina was built upon the idea—or the myth—of ethnic reconciliation. The power sharing system gave each ethnic group a strong representation and the power of veto.¹⁷ Yet at the same time, the international community set to reverse ethnic cleansing, and humanitarian action was part of the game. ECHO funding reconstruction corresponded to minority returns rather than returns of people belonging to the main group in a given area. Two interpretations can be given. On the one hand, ethnic cleansing is equated with a crime—which has been, since then, confirmed by jurisprudence and by the Rome Statute of the ICC—and something has to be done in order to cancel its effect. It is the rationale of international public policy. On the other hand, those who have experienced suffering have a right to more help. A kind of moralism is behind the priority given to those previously victims of ethnic cleansing and potential future victims.¹⁸ The footprint of Europe cannot be discussed, since its position as a major donor made it possible for it to refuse being associated to the later policies.

A second lesson to be learnt from the Bosnian case relates to the fact that Europe has proven its generosity by granting asylum to the greater part of some 800,000 people who have fled from Croatia and Bosnia between 1991 and 1995. Prior to envisaging the role of (European) humanitarian assistance in the post-conflict period, it is necessary to look at the protection aspect. Refugee law has been drafted in order to prevent misunderstandings about a State granting asylum to someone persecuted by another State. However, the main provision of refugee law is the non-refoulement principle, which is recognised as customary by UNHCR¹⁹: no one should be pushed back towards the State from which he/she is escaping. All systems of refugee law recognise this principle. The African system is well known for being more generous, in that it provides for asylum being also granted without personal persecution, in case of “events seriously disturbing public order in either part or the whole of [a person’s] country of origin or nationality”.²⁰ Between 1991 and 1995, several Member States granted protection on their own will, giving response to the requests they were receiving. Most requests went to Germany, since many Yugoslavians had been working there since the 1980s. Then they went to Austria, Denmark, Sweden and France (Fitzpatrick 2000, p. 280). And protection was granted irrespective of the personal persecution experienced or not (Boutruche 2000). However individual the decisions for temporary protection were, they were commonly reviewed by the Council of Ministers. On 25 September 1995, the Council adopted a Resolution on burden-sharing (OJ C 1995, p. 1) with regard to the admission and residence of displaced persons on a temporary basis and, on 4 March 1996, adopted Decision 96/198/JHA (OJ L 1996, p. 10) on a future alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis.

Europe has chosen to build upon its practice in adopting common instruments under the CFSP to overarch individual behaviours: first a Common position relating to a common approach to the word “refugee” (OJ L 1996, p. 10), and, then, a proposition for Common Action.²¹ The Action Plan of the Council and the Commission of 3 December 1998²² provides for the rapid adoption, in accordance with the Treaty of Amsterdam, of minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin, as well as the adoption of measures promoting a balance of efforts between Member States in receiving and bearing the consequences of welcoming displaced persons. All this was to lead to a Directive for Temporary Protection (Van Selm-Thorburn 1998). The latter was to introduce Europe in the small group of international actors having an extended approach to protection, as will be discussed later on.

Yet, the Kosovo crisis burst out before the Directive was adopted. The European Member States adopted a more political approach, aimed at keeping the Albanophons in Albania and in Albanophon areas of Macedonia, such as to allow them to go back to Kosovo as soon as the air strikes would be over, in view of enabling them to take the reins together with the international administration. Italy, for instance, decided to provide the logistics and the resources for a refugee camp in Albania hosting 3,000 Albanophone Kosovars, not to forget the much greater effort made by ECHO. European Member States, nevertheless, admitted specific cases onto their territories, amounting to some 10 % of the 900,000 refugees, with more than 12,000 welcome in Germany and nearly 10,000 in France (Van Selm 2000).

On 27 May 1999 the Council adopted conclusions on displaced persons from Kosovo.²³ These conclusions call on the Commission and the Member States to learn the lessons of their response to the Kosovo crisis in order to establish the measures in accordance with the Treaty. Hereby, the European Union was in line with what UNHCR High Commissioner Sadako Ogata expressed, when thinking of innovative solutions: “Temporary protection is an instrument which balances the protection of the need of people with the interest of the States receiving them”.²⁴

It was time to enshrine it in law.

There was, then, a slight shift. The way of thinking about migration was still the same, but, the way of dealing with it became the new frontier of integration. Thus, the focus was less on migrants’ fate and more on the principle of sharing an area with them.

During the 1990s when the Community, soon substituted by the Union, acted on the global stage as a major player through ECHO, migration was mainly a disaster that other populations underwent in its eyes. It was about helping others outside Europe. It was about helping migrants, and often the host populations, in order to avoid anger in the (sometimes unwilling) populations in the receiving State. With regard to granting asylum, European States acted on their own, according both to the 1951 convention they had individually ratified at different dates, and to their own domestic regulations.

Later on, the issue of asylum first came to the fore for internal European reasons, rather than due to a common crisis management activity. The Schengen system, since it created a global European external border, demanded increased clarity in the roles that European States had to play in front of foreigners. This was the purpose of the 1990 Dublin Convention.

With the 1997 Amsterdam Treaty, visas, asylum and immigration had been “communitarised”. When the European Council convened in Tampere on the 15th and 16th October 1999 and set up a programme for 2000–2004, its spirit could be summarised as such:

the European Union should not only be a single market and an economic and monetary Union but also an “area” of freedom, security and justice – an area where everyone can enjoy his or her freedoms, can live and work where he/she wishes in safety, and where disagreements and disputes can be sorted out fairly and justly²⁵

The Presidency conclusions add: “this freedom should not (…) be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory”.²⁶

This very generous approach called for “common policies on asylum and immigration…) based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union”.

Although encompassing some elements upon illegal immigration and those who organise it, the text is definitely oriented positively, and draws the picture of a very open Europe, proudly building upon its humanist ideology. Three specific issues have to be highlighted in the Tampere programme.

These provisions are echoed by the Cotonou agreement.³⁰ However, the latter encompasses a readmission clause³¹ too. This type of device was to further develop during the next period.

This very far-reaching programme, valid for the following 5 years, was not completed before the adoption of the next one, the Hague programme (2004).

The main achievement was a set of Directives which have been adopted on the asylum issue : “the Tampere Programme (…) is notable for having produced the first set of legally binding EU-level agreements: temporary protection for persons displaced by conflicts; a common understanding of refugee status and “subsidiary” protection; minimum procedural guarantees; minimum conditions for the reception of asylum seekers; and a regulation on deciding which Member State is responsible for assessing which asylum claim” (van Selm 2005).

The first one adopted was on Temporary Protection (2001/55). It goes far beyond harmonisation, establishing a common regime run by the Council, with a burden sharing principle overarching the distribution of protected people between the European Member States. The decision is collectively taken by the Council of the EU for 1 year, with the possibility of proroguing it for 6 months (Boutruche-Zarevac 2010).³² The Regulation on Member States’ respective jurisdictions, Dublin II,³³ as well as the Directive on Asylum status³⁴ followed in 2003, and the Directive on Qualification in 2004.³⁵ The last one, on procedures for asylum request³⁶ was still to be awaited until 2005. The harmonisation is not very far-reaching, since the topic is difficult and the national traditions unevenly developed.

With regard to the regulation of migration flows, little was done. The main idea was helping development, namely institutional development, and supporting human rights in developing countries. This did not exclude one hint towards “readmission agreements” between the European Community and third countries in the Tampere programme. Yet, this approach was to develop more during the next stage, at a moment when European instruments became less idealistic.

The early millennium was a time of great challenges and interrogations in geopolitics with the 9/11 attacks and the subsequent Afghanistan campaign, as well as with the war in Iraq. In the management of world affairs, the impression of entering a new era seemed to cast a new deal in development with the Millennium goals. And in crisis management, the search for a new balance between protection and respect for sovereignty pushed R2P to the forefront. The same was occurring for forced migrations. The 1980s and 1990s had been the time of emergency rescue for refugees; could the next decades become, with the end of many conflicts,³⁷ the time for sustainable solutions? In the meantime, with the number of internally displaced persons on the rise, and growing flows of persons in search of a new life in a peaceful country, the turmoil of the global South partly transferred to the North.

During the early part of the new millennium, Europe enlarged, wiping off the internal divide that spoiled the continent during bipolarisation; but at the same time, Europe faced new challenges: how to adapt and how to adapt its international role to the new conditions?