Are British, Danish reports on Eritrean migrants a gamechanger?

From 30,000 feet, the unending debate about illegal African migrants in Israel has been between whether they are trying to stay here merely to find better paying jobs or whether they cannot go back home because of persecution and danger. Those wanting to get migrants to leave have had a unique hold on popular support in the country, reportedly sometimes as high as 80 percent, but the universal moral high ground has clearly been on the Eritrean migrants being able to stay. The UN and almost the entire planet say that Sudanese and Eritrean migrants, whether in Israel, Europe or North America, cannot be sent home because of danger, persecution and lack of diplomatic ties. As of November 2014, but especially since March 2015, south Tel Aviv groups wanting migrants to leave have sought to up-end the terms of the debate involving the Eritrean migrants that make up more than half of the African migrants in Israel. In November 2014, Denmark put out a report purporting to have collected far more systematic and updated data than had previously been in use on the conditions in Eritrea and the treatment of returning Eritreans. The starting point for a long time has been that Eritrea is a dictatorship that has a virtually universal draft, characterized by arbitrary and sudden round-ups of both men and women of age and indefinite and arbitrary lengths of service in the army. A parade of horrible stories has followed these drafts, with voluminous anecdotes of draftees being mistreated and even tortured, often also on an arbitrary basis. These conditions, along with poverty, are a starting point for why many Eritreans try to leave the country. Stories until now included that any Eritreans who left the country without permission or to avoid the draft could likely be not only forced into the army, but also imprisoned for lengthy terms and tortured in prison. The Danish report claimed that serving in the military has been standardized to between 18 months to four years, and said that those who leave the country to escape army service and return will often merely have to continue their service without penalty. In contrast to the horror stories, the report said that the expectation is that even of the minority who are sent to prison for leaving military service, most prison terms are short and torture is rare. Next, it said that those who leave the country illegally usually need only pay certain reasonable customs and fines to return with no greater punishment or persecution. This was night and day from accepted wisdom. In March 2015, England was by most accounts desperate to reduce its number of new illegal Eritrean migrants, which had increased from a slow stream to a steady flow. So it not only adopted the Danish report's conclusions, but altered its policy to permit returning certain Eritreans, where before it had not. The Center for Israeli Migrant Policy, an NGO in favor of an aggressive policy against migrants staying in the country, started to campaign to give the British report a high profile in Israel once April turned the corner. In its original press release on the issue, it called the reports, especially from England, whose Home Office, it said, is one of the most respected in the world, an “earthquake” in changing attitudes toward deporting Eritreans back to their country of origin. The press release added, “the state should adopt the British and Danish reports and immediately cancel the destructive policy of a group defense it is giving to Eritrean infiltrators.” The phrase adopting the reports and canceling a group defense for Eritreans appears to suggest a push for Israel to begin deporting at least some Eritreans back to Eritrea. The Jerusalem Post contacted a variety of Israeli ministries on the issue. The Justice Ministry, questioned about the issue and about deporting Eritreans to third countries like Rwanda and Uganda, initially responded that Attorney-General Yehuda Weinstein had legally approved deporting Eritreans to places where they would not face danger or persecution. The Post pressed the ministry on how it would decide whether a country raised fears of danger and persecution, especially in light of a phrase that suggested it would determine this based on the UN's assessment – the UN's assessment still opposes the British and Danish assessments. The Justice Ministry referred the question to the Foreign Ministry. The Foreign Ministry refused to comment on the matter. The Interior Ministry spokesman referred the issue to Interior Minister Gilad Erdan's personal spokesman who did not want to comment on the record. However, sources close to the issue said the new reports are “serious documents” that must be “carefully learned” and implied that over a period of review, the positions of the reports or aspects of them might even be able to be adopted, though it was far too early to conclude anything. Responding to the reports, the Hotline for Refugees and Migrants said that the Center for Israeli Migrant Policy had blown the reports' significance out of proportion and tried to hide their vulnerable underbellies. Substantial evidence provided by the hotline and reviewed by the Post argues that the British report is mostly a cut and paste of the Danish report, with one British official symbolically visiting Eritrea to make it seem like independent judgment was exercised. More importantly, the materials, including a public statement by leading Eritrean migrants expert Prof. Gaim Kibreab, indicate that Kibreab was one of the repeated main sources of the mostly anonymously sourced report and that he has disassociated himself from its conclusions. Kibreab said in his public statement that “The way you have chosen to quote me contradicts the findings of the studies I have been conducting on the Eritrean National Service and the full information I provided you in our oral communication and in the edited version of the draft you sent to me for comments and approval... I would ask you to make public the views that I have now sent you, dissociating myself from the report and the edited document I authorized you to use.” In response, Denmark initiated a review of its report. Ultimately, Denmark did not retract the report, but added an appendix with its communications with Kibreab to give context to the dispute between the parties about how it used Kibreab as a source. Yonatan Berman, of the Clinic for Migrants Rights, speaking on behalf of the hotline, confirmed the argument that the Danish report had selectively cherry- picked from Kibreab's statements to support its views in the report's main summary, while burying aspects of his views that did not work with their goals in an appendix. Berman said that regardless of Denmark's explanation of its interactions with Kibreab, the fact remained that Kibreab had disassociated himself from the report. Also, he said, Denmark itself had not taken its new legal conclusions as far as altering policy to actually send Eritreans back to Eritrea. Responding to the criticism of the reports, Yonatan Jakubowicz of the center stated that the bottom line was that the British government knew full well of the criticism of the Danish report when it adopted its conclusions in March, months after the controversy over the Danish report erupted. Jakubowicz said this meant that England exercised its own independent judgment as one of the world's premier Home Offices on the issue, and went even farther, since England adopted the Danish conclusions to change policy to sending some Eritreans back to Eritrea. Berman said that England is looked up to in many areas globally, but not in migrant policy. In any event, the British government's decision was an attempt to circumvent the British courts, which previously struck similar attempts to alter policy into returning migrants to their country of origin and would likely strike the current policy change as illegal, said Berman. He added that in any event, the UN is the decisive body on the issue, not any one or small group of countries, and that the UN's parallel March report was sticking to its guns that Eritrea is dangerous, despite full knowledge of the new reports. Trying to raise the issue back to 30,000 feet, Jakubowicz said that the real problem is that pro-migrant groups want to spin Eritrea into a country where all returnees will be tortured simply because it is an impoverished dictatorship where, in reality, maybe 10% of those who would return might get tortured. But he said that billions of people in the world live in dictatorships and poverty, and Israel cannot take them all in. Berman responded that Eritrea is not just any dictatorship, but referred to it as the North Korea of Africa, because it is one of the worst on the planet, and added that the 10% figure was the center's fictional spin. Berman also quoted a 1987 US Supreme Court decision, Immigration and Naturalization Service v. Cardoza-Fonseca, which the Post reviewed and found that it said that a 50% rate of persecution was not needed to make deportation of migrants illegal, and that even as low as 10% or such low numbers could justify blocking deportations. He said this is especially true in Eritrea where, even the center admits, no one knows who would be the unlucky tortured ones since much of the process is arbitrary. Jakubowicz replied that even if Berman is partially right, he is not disturbed as the center's main position is not that the new reports will lead to deporting all Eritreans. Rather, it is that there will be greater recognition that some Eritreans are not in danger if they are deported and that the state's detention of Eritreans will be less criticized as it can motivate those Eritreans, who know they could return home safely, to do so. Perhaps this 90% and 10%, however disputed, is part of the essence of the issue. Pro-migrant groups probably would not agree to deportation of any migrants, if any unknowable percentage would be arbitrarily tortured – Berman could not name a low enough percentage at which he would agree to deportation. The risk, on principle, they would say, is just too great. Groups pushing to deport or detain migrants feel the situation for south Tel Aviv residents is desperate enough that they are willing to risk possible mistreatment or torture of some migrants, as long as they can point to some evidence that there is a fair chance that most of them will not be tortured. What is clear is that, earthquake or not, the Danish and British reports will serve as another round of battle in the Israeli war over migrant policy, and not an end to the war. And with several ministries shying off from the issue so far, and the comptroller and the High Court of Justice continuing to push back against detention or deportation of migrants, the war is far from over.

Are British, Danish reports on Eritrean migrants a gamechanger?

Danish and British reports that are in stark contrast to the UN’s assessment of the situation in Eritrea have added impetus to the debate on whether Eritrean migrants in Israel can be sent home.

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