Analysis: The migrants never had a chance

The new "effective" border is a game-changer on the migrant issue.

By YONAH JEREMY BOB
Migrants at Egypt border 370 (photo credit: reuters)
Migrants at Egypt border 370
(photo credit: 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 Thursday.
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 “no.”
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 enter.
But all of this misses the real legal framework on the issue.
According to army officials who responded to The Jerusalem Post on condition of anonymity, the migrants never entered Israeli territory.
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 silent.
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 2011.
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 built.
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 PROGRESS.
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.
It has.
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.
That 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 them.
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 fence.
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 stage.
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.”