Analysis: The migrants never had a chance
The new "effective" border is a game-changer on the migrant issue.
Migrants at Egypt border Photo: reuters
Before the High Court of Justice could rule on the entry rights of migrants
stuck on the Israel-Egypt border last week, most had disappeared. Eighteen out
of the 21 had been sent back to Egypt, and the remaining three were allowed into
Israel on humanitarian grounds.
The High Court held an initial hearing on
Thursday afternoon and was due to rule Sunday, but the migrants were moved late
Did the army or the government violate the authority of the
highest court in the land, as well as Israel’s international commitments as a
signatory to the 1951 United Nations Convention and 1967 Protocol regarding the
status of refugees? Putting aside the moral questions, which are ultimately part
of the political process, the legal answer appears to be a fairly solid
It is true that Israel has signed on to the relevant UN conventions
that commit it to the principle of “non-refoulement,” in which a nation will not
return a refugee to another country if it knows that this would endanger the
person’s life or freedom.
It is true that human rights reports have
claimed that refugees who are currently returned to Egypt are placed in danger
from Egyptian soldiers or Beduin in the Sinai, as well from authorities in their
countries of origin, where reports say many of them end up.
It is also
true that the High Court might have ordered that the migrants be allowed to
But all of this misses the real legal framework on the
According to army officials who responded to The Jerusalem Post on
condition of anonymity, the migrants never entered Israeli
Human rights groups would point out that the migrants had
crossed the “international border” with Egypt. But army officials said the newly
established border barrier, even if it is some meters inside the international
boundary with Egypt, is Israel’s effective border.
The argument is that
the old border line did not have a barrier capable of preventing illegal border
crossings. The new barrier is large and thick enough to prevent this. In that
sense, the old border had less significance than the new “effective” border, as
demarcated by the barrier.
Also, said army officials, it is the
prerogative of any state to erect an effective border to prevent illegal border
crossings and to defend its sovereignty.
The legal issue suddenly becomes
simple. If the migrants never entered Israel, none of the conventions or past
High Court-granted protections apply. A nation is not prohibited from
“returning” a refugee who has never truly “arrived.”
According to the
army officials, these refugees had tried to illegally cross the border, but
failed to do so. Human rights groups would charge that the army and the
government still violated the authority of the High Court. But if the
court felt its authority was violated, it was surprisingly
Essentially, Supreme Court President Asher D. Grunis on Sunday
merely asked the petitioners for the migrants what he could do now that there
were no migrants left.
The petitioners said the court could still review
the government’s decision for compliance with international law, harkening back
to a request by human rights groups in a leading High Court decision from July
In that decision, former Supreme Court president Dorit Beinisch led
a panel in rejecting a petition filed in somewhat similar circumstances,
although with the critical difference that the new barrier had not yet been
In that decision, the court declined a request to rule on the
legality of an Israeli policy to return refugees to Egypt based on unofficial
bilateral understandings, as the policy had been temporarily frozen when former
Egyptian president Hosni Mubarak was overthrown.
There, too, some of the
refugees who were the original subject of the petition, filed in 2007, had
already been sent back.
Between the frozen policy and the absence of the
refugees on the border, Beinisch essentially asked the same question as Grunis:
What could she do about a policy not currently in place for refugees no longer
on the border? All of this is important background, as Beinisch was considered
to be more concerned with international law and more willing to impose
obligations on the government, even in the area of foreign affairs, than Grunis
is believed to be.
Grunis could have “raised hell” at the government for
changing the facts on the ground while the case before the court WAS IN
Yet Grunis’s refusal to get involved was basically a
continuation of past court rulings on the issue, even from the court’s wing that
has a more international focus.
In fact, the court’s decision was more
than consistent with the July 2011 decision. In some ways it was the fulfillment
of a somewhat prophetic statement by Beinisch that one reason to decline to
delve into the issues was because the future erection of a barrier on the border
could completely alter the legal landscape.
In 2011, the
heart of the debate was about the facts: The government argued that the refugees
were in no danger, that they had simply come to find jobs (not a protected right
under the UN Conventions) and that it had guarantees from Egypt that
international standards would be observed in dealing with the refugees. The
human rights groups argued that some of the refugees had been killed in Egypt
and other were sent back to Sudan in violation of international law.
same debate was part of the current dispute, with reports that some of the
refugees had already been killed or raped, and army officials maintaining that
they had come for work or to be reunited with family members who had come before
That debate still resonates on a moral and political level. But the
legal battle on this issue may be over, with the completion of the new
There will certainly be international law experts who dispute the
army’s “effective” border argument. But it appears that the High Court was ready
and waiting to accept it even as the barrier was in the incubation
In light of the changing rules of the game, human rights groups
wanting to assist migrants in the future might want to refocus their legal
energies on the problems confronting migrants who have already “arrived.”