Irresponsible media reports abound criticizing Israel for not allowing the
migrants to enter Israel, while completely ignoring Egypt’s culpable role in
The agreement now reached between Israeli and Egyptian
military commanders as well as the Eritreans, admitting two apparently pregnant
women and a 14-year-old boy, while the other 18 will become the responsibility
of Egyptian authorities, appears to be a sound solution in these difficult
Although the relevant international agreements impose no
legal obligation to do so, I believe that these unfortunate people should have
been permitted to enter Israel on purely humanitarian grounds. I add that
although hardly mentioned in media reports, it is comforting to know, as advised
by the Israeli attorney-general’s office, that the infiltrators received basic
food and water from the IDF, and that vital medical or humanitarian aid was
available as needed. In addition there were some reports that fabrics were
provided for protection from the sun.
The lack of credible information
from the Foreign Ministry and the IDF spokesperson is a sad reflection on
Israel’s public diplomacy. While admiring the valuable humanitarian work
performed by Israeli groups like “We Are Refugees” that filed a petition in
support of the migrants, I am disturbed by the ill-founded criticism which has
been disseminated worldwide by them and by William Tall, the UNHCR
representative in Israel. It is unconscionable that they look only to Israel and
completely ignore the blatant avoidance by Egypt of its obvious humanitarian and
legal obligations. Moreover, their claim that Israel was obliged to permit entry
in terms of 1951 Convention Relating to the Status of Refugees (the Convention)
is completely ill-founded.
Contrary to the claim that the Convention
obligates Israel to permit these refugees to enter the country, there is no
provision at all in the Convention requiring a contracting state to allow entry
of refugees who are not already in its territory. Article 33 refers only to
refugees who have already entered, whether legally or illegally.
omission of a requirement to admit refugees not already in the territory was
evidently deliberate, as described in the judgment in the matter of Regina v.
Immigration Officer at Prague Airport .
The judgment refers to the
important backdrop to the Convention as described in “Refugees under
International Law with a Reference to the Concept of Asylum” (1986), as follows:
“States the world over consistently have exhibited great reluctance to give up
their sovereign right to decide which persons will, and which will not, be
admitted to their territory and given a right to settle there. They have
refused to agree to international instruments which would impose on them duties
to make grants of asylum.”
Consequently attorney-general Weinstein’s
statement that “The fundamental working assumption is that Israel, as a
sovereign state, retains the right to determine who enters its gates,” is
A 1993 article in The Philadelphia Inquirer reported
on the Clinton administration’s policy of intercepting Haitian refugees on the
high seas and forcing them back to their homeland, that was upheld by the US
Supreme Court in Sale v. Haitian Centers Council, 509 US 155 (1993). The
judgment ruled that all aliens intercepted prior to entering the US could be
With specific reference to the Convention, the ruling added
that this order was not limited by Article 33. It is also highly relevant
to examine the definition of persons who are entitled to protection.
1951 Convention was originally limited to persons fleeing events occurring
before January 1, 1951 within Europe, but the 1967 Protocol removed these
limitations and thus gave the Convention universal coverage.
In terms of
Article 33, a refugee (as defined in Article 1) may not be expelled or returned
(“refouler”) to territories where his life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group
or political opinion. Clearly this does not include threats by common criminals.
If this were the case it would apply to citizens of all countries suffering from
a high crime rate like Colombia, Mexico and South Africa, which was plainly not
It is therefore obvious that the Convention does not cover
the circumstances of refugees seeking admission to Israel from Egypt. As
Tall has publicly stated, the threat they face in the Sinai is not
from the causes listed in Article 33 or Article 1, but from common criminals,
and it is the duty of UNHCR and the UN Secretary- General to demand that the
Egyptian authorities protect these unfortunate people.
A March 2010 UNHCR
document entitled, “Guidance note on refugee claims relating to victims of
organized gangs” states: “Clearly not all individuals who are affected in some
way by the activities of organized gangs qualify for international protection.
Victims of gang violence would, for instance, normally not be eligible for
refugee status where the State is able or willing to provide effective
Especially since it has increased its military presence in
Sinai by agreement with Israel, Egypt has no excuse for continuing to avoid its
duty to protect the refugees currently stranded on its side of the Egypt-Israel
border. More generally, in terms of Article 31, Egypt is duty-bound to protect
all refugees entering legally or illegally directly from neighboring Sudan and
from Eritrea via Sudan, since in both countries their lives or freedom are
threatened in the sense of Article 1A (2) as amended by the 1967 protocol,
namely “a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion.”