Setting the record straight: Migrants at the border

Irresponsible media reports abound criticizing Israel for not allowing the migrants to enter Israel, while completely ignoring Egypt’s culpable role in this debacle.

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 circumstances.

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.

This 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 [2004].

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 absolutely correct.

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 repatriated.

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.

The 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 the intention.

It is therefore obvious that the Convention does not cover the circumstances of refugees seeking admission to Israel from Egypt. As Mr.

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 protection.”

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.”