Ukrainian authorities at the outset of the Russian invasion blocked foreign nationals, mainly of African descent, from leaving the country. Racial discrimination in the Ukraine conflict has been documented by Human Rights Watch, where Ukrainian authorities either blocked black people from boarding or kicked them off trains and buses to the Polish border. When people made it to the border after days of walking, Ukrainian authorities stopped Indian, African, and Middle Eastern people from crossing into Poland; at times through the threat of the use of force.. While the actions by Ukrainian authorities have been acknowledged by the Ukrainian government and condemned by the African Union as well as United Nations experts, there has been deafening silence from the European Union.
APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW IN UKRAINE
The International Committee for Red Cross states that “an international armed conflict occurs when one or more states have recourse to armed force against another state, regardless of the reasons or the intensity of this confrontation. No formal declaration of war or recognition of the situation is required”. The conflict in Ukraine can certainly be classified as an international armed conflict.
International armed conflict is regulated by the Four Geneva Conventions of 1949 and Additional Protocol I of 1977, as well customary international law. Ukraine agreed to the Four Geneva Conventions in 1954 and to the Additional Protocols in 1990. This means that Ukraine is bound by these Conventions, not only as a “High Contracting Party” but also as a matter of customary international law.
The Geneva Conventions provide for the humane treatment of civilians without any adverse distinction based on race. For instance, article 13 of the Fourth Geneva Convention 1949 provides for the humane treatment of civilians “without any adverse distinction based, in particular, on race, nationality, religion or political opinion”. The humane treatment of civilians without adverse distinction based on race and any other similar criteria is also recognized under customary international law, which is reflected under common article 3 of the Geneva Conventions. This states that “persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”. The case of Mucić et al decided by the International Criminal Tribunal for the former Yugoslavia (ICTY) held that common article 3 also applies to international armed conflict and it has become a part of customary international law (which was alluded to in the decision of Akayesu by the International Criminal Tribunal for Rwanda (ICTR)).
The case of Tadić decided by the ICTY determined that the Conventions operate within the whole country that has been invaded, and is not limited to those areas where there are active hostilities. This means that as soon as Russia invaded Ukraine, the Conventions applied to the whole country. The Geneva Conventions and Additional Protocol I apply to the border between Ukraine and Poland, where people wanting to cross the border were being racially discriminated against by Ukrainian authorities.
Article 35 of the Fourth Geneva Convention provides that civilians are entitled to leave the territory at the outset of, or during, a conflict. Discrimination of citizens trying to cross the border into Poland is a violation of articles 13 and 35 of the Fourth Geneva Convention, as well as common article 3. The violation of these articles by Ukrainian authorities could therefore be considered a war crime under international criminal law. War crimes are international crimes that attract universal jurisdiction, meaning that any country, including African countries, can investigate and prosecute the accused. The South African Constitutional Court in the Torture Docket case held that the presence of the accused is not required to initiate an investigation of international crimes.
INDIVIDUAL CRIMINAL RESPONSIBILITY
The case of Blaškić decided by the ICTY held that the violation of common article 3 imposes individual criminal responsibility. This means that individual members of the Ukrainian authorities can be held liable. This would extend to specific train and bus drivers, as well as security personnel who blocked people from boarding, and asked others to disembark, which are breaches of article 13 of the Conventions. Further, individuals who stopped people of Indian, Middle Eastern, and African descent from crossing the border into Poland could also be held liable for violating article 35 of the Fourth Geneva Convention.
It is important to note that there are general elements for common article 3 crimes. These include that: (i) there must have been armed conflict (ii) there must be a close nexus between the armed conflict and alleged offence, and the (iii) crimes must be committed against civilians or civilian property. It is clear that all three elements have been satisfied in the Ukrainian conflict. Because these crimes have universal jurisdiction, other states may choose to prosecute individuals involved who discriminated against foreign nationals trying to leave Ukraine.
ROLE OF THE INTERNATIONAL CRIMINAL COURT
Although Ukraine is not a party to the Rome Statute which established the International Criminal Court (ICC), it has accepted the ICC’s jurisdiction since 2014. The ICC could therefore investigate and prosecute war crimes that are committed on Ukrainian territory, such as the aforementioned violation of the Geneva Conventions. The Office of the Prosecutor of the ICC has already opened an investigation into the situation in Ukraine, based on reports of possible war crimes and crimes against humanity.
For a crime to be prosecuted by the ICC, it needs to satisfy the gravity threshold under article 17(1)(d) of the Rome Statute. The ICC Pre-Trial Chamber in Lubanga held that a case will meet the gravity threshold if the following questions can be answered affirmatively: (i) are the actions systematic or large scale?; (ii) is the individual one of the most senior leaders of the situation?; and (iii) is the individual one of the most responsible senior leaders?
POSSIBLE PROSECUTION OF UKRAINIAN INDIVIDUALS
To assess whether the acts of Ukrainian individuals for discrimination against Black people wanting to cross the border could be prosecuted by the ICC, the gravity test must be considered. It is arguable that the racial discrimination is systematic and large scale as there have been hundreds of Indian, Middle Eastern, and African people denied access to transportation and entrance into Poland. However, it is unlikely that Ukrainian authorities who were train or bus drivers, conductors, and security personnel could be classified as the most senior leaders of the situation. Their conduct might not satisfy the gravity test, and would not warrant further action by the ICC.
Instead, war crimes committed by individuals within the Ukrainian authorities could be investigated and prosecuted by individual states, particularly African countries whose nationals have been most affected. The ICTR, the Special Court of Sierra Leone, and the Extraordinary African Chambers in Senegal have stated that African countries have the capacity to investigate and prosecute international crimes. Racism in international armed conflicts is often swept to one side, even though discrimination of immigrants and refugees is often seen as a result of conflicts in Europe. Perhaps it is time for an African country to send a message to the international community that racism against its’ foreign nationals will not be tolerated, and in fact, will be prosecuted as a war crime.
Nigel has an LLB in International Law from Near East University (Cyprus). Currently, he is a member of an NGO called VOIS Cyprus which advocates for the rights of international students in Cyprus.