Why the Discrimination against Non-white Ukrainian Refugees is a Violation of International Law

[Ana Luquerna is a lawyer working at The International Court of Justice as a Judicial Fellow. The opinions expressed in this publication are solely those of the author.]

The Current Situation

In less than two months, the world has been turned upside down due to Russia’s invasion of Ukraine. In a mere fifty-seven days, more than 5.1 million refugees, around 11% of the population, have fled Ukraine, seeking safety for their families and loved ones. At the current rate of displacement, UNHCR, the UN Refugee Agency, has predicted that “the situation looks set to become Europe’s largest refugee crisis this century.”

Overall, the global response to refugees, especially from neighboring countries, has been described as a movement of “tremendous solidarity and hospitality.” For example, the European Commission promised that they would welcome refugees with “open arms,” and the United Kingdom relaxed its visa requirements for refugees, estimating the arrival of 200,000. The European Union offered Temporary Protection for at least three years to these refugees, and the United States attempted to fast-track the application process while pledging to accept 100,000.

However, not every person fleeing Ukraine was given this warm welcome. Non-white people, especially those coming from Africa, who had been lawfully living in Ukraine faced blatant discrimination. Non-white students, migrant workers, and others that did not fit the profile of a “typical Ukrainian” (faired-skinned with light-colored eyes) found themselves stranded at the border, prevented from fleeing while their light-skinned compatriots are allowed to seek refuge.

The stories are countless. Jessica Orakpo, a Nigerian medical student in Ukraine, was told at the border that guards were only tending to Ukrainians and that “if you are black, you should walk.” Chineye Mbagwu, a Nigerian doctor living in western Ukraine, recounted being stranded at the border for more than two days, watching other non-white refugees being beaten with sticks. Asya, a medical student from Somalia who studied in Kyiv, was told once she reached Poland that “accommodation at the hotel was only for Ukrainians.” Lastly, Moustapha, a Guinean student studying in Kharkiv, explained how he was turned back at the border while white refugees were allowed to cross into Poland. These demoralizing stories demonstrate that even though various European governments pledged to extend refuge to all living in Ukraine, no matter the color of their skin or nationality, this simply is not the reality.

The denial of passage into other countries, and the discrimination that non-white people faced once they arrive into other countries, may not only be due to skin color but also to nationality. For example, it is possible that a non-white American may have received more favorable treatment than a non-white Nigerian fleeing Ukraine. However, the stories reported so far mainly feature those who are Black and originally from Africa. While data are not available to ascertain whether the motive behind the discrimination of non-white persons was due to skin color, nationality, or both, discrimination in the midst of this war is morally deplorable, and it has so far received media attention as such. However, it is also important to remember that this discrimination is a blatant violation of international refugee law. Though the current news and headlines are filled with global criticism and condemnations, countries must be held accountable in regard to their international legal commitments.

Applicable International Law

Under international refugee and human rights law, specifically the 1951 Refugee Convention and its 1967 Protocol, States have an obligation to uphold the principle of non-refoulement. This principle prevents States from expelling or returning any refugee in “any manner whatsoever to the frontiers or territories where his [or her] life or freedom would be threatened.”

Any person who qualifies as a refugee under the 1951 Convention is entitled to the right to non-refoulement. According to the Convention, a refugee is “someone who is unable or unwilling to return to their country of origin, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

Though it is up to each national jurisdiction to interpret and incorporate the 1951 Convention through its national laws, UNHCR has reiterated that under international refugee law, people fleeing war, armed conflict, and violence are considered refugees under the definition of the 1951 Convention. According to UNHCR’s Assistant High Commissioner for Protection, there is no need to be individually targeted in an armed conflict in order to be considered a refugee. Consequently, if countries adhere to UNHCR Guidelines, those fleeing the war in Ukraine should be considered refugees, meaning that they are all entitled to the right to non-refoulement. As of today, there are no major arguments that those fleeing Ukraine are not refugees, and worldwide media coverage describes them as such.

However, it must be noted that the refugee definition in the 1951 Convention and its 1967 Protocol can be interpreted narrowly by States. In fact, some States have refrained from extending the Convention definition to cover those fleeing environmental disasters, domestic violence, poverty, and even indiscriminate violence. Nevertheless, major international and regional treaties still express the need to refrain from interpreting the Convention narrowly.

Though a national government could theoretically refuse to grant refugee status to those fleeing the war in Ukraine based on the Convention, broader protections stemming from international human rights law or regional accords can provide international protection and/or refugee status. For example, the EU Qualification Directive provides protection for those who face “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” The Cartagena Declaration also defines refugees more broadly than the Convention: “persons who have fled their country because their lives, security or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” Furthermore, the Organization of African Unity’s refugee definition includes those who flee their country due to external aggression, occupation, or “events seriously disturbing public order.” Consequently, regional instruments and international human rights law may often provide complementary protection if a State defines the 1951 Convention narrowly.

The aforementioned variations on the definition of “refugee” are important to keep in mind because it is ultimately up to each national government to define the term “refugee” and incorporate the principles in international and regional treaties into their domestic legislation. However, in regard to the principle of non-refoulement, it is not crucial for refugees to be granted refugee status under a specific treaty. This is because the principle of non-refoulement is not only present in the 1951 Convention and its 1967 Protocol, but it is also explicitly adopted in other international and regional instruments like the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union.

Most importantly, the prohibition against refoulement is not only a treaty obligation, but it constitutes a rule of customary international law. Consequently, the prohibition against non-refoulement is binding on all States, no matter whether or not they are contracting parties to instruments that explicitly adopt the principle of non-refoulement.

Discrimination as a Violation of International Refugee Law

Though being a signatory to the 1951 Convention is not a prerequisite to adhering to the prohibition against refoulement, being a signatory is a further open commitment to refugee rights. The neighboring countries that are being most severely affected by the refugee crisis, including Ukraine, Poland, Romania, Moldova, and Hungary are all signatories to the 1951 Convention and/or its 1967 Protocol. Thus, they have exhibited a firm international commitment to uphold the refugee definition and to adhere to the obligation of non-refoulement.

Furthermore, not only are non-white Ukrainians owed protection as refugees, but discrimination based on race and nationality is in and of itself a violation of international law. While racial discrimination is specifically prohibited in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), other major international treaties and conventions, such as the International Covenant on Civil and Political Rights (ICCPR), the Inter-American Convention Against all Forms of Discrimination and Intolerance, and the Universal Declaration of Human Rights, prohibit discrimination based on race or nationality.

Allegations of discrimination were reported at the Ukrainian border, at the entrance point in Poland, and other various entry points in the Ukrainian/Polish border. However, studies demonstrate that discrimination is often underreported by refugees. Whether underreporting is due to a lack of recording authorities, a fear of border agents, or simply due to the absolute chaos at the border, unacceptable discrimination is currently happening and must be stopped immediately. No matter where the discrimination is happening, it is illegal to discriminate against refugees based on their skin color or nationality, to prevent entry to them, and/or to turn them around.

Though the response to Ukrainian refugees has been generally positive when compared to other crises, like the Syrian Civil War, there is absolutely no room for second-class refugees under international refugee law. A refugee is a refugee, no matter their skin color or nationality.