Seeking Asylum in Israel

Refugees and the History of Migration Law

Gilad Ben-Nun

• Publisher: I.B. Tauris
• Year: 2016
• Print ISBN:
  9781784537609
• Edition: 1
• eBook ISBN:
  9781786721334
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

Since 2005, approximately 70,000 asylum-seeking refugees from Sudan and Eritrea have entered Israel. This, along with the highly publicised anti-African immigrant riots in Israel in 2012 and 2014 and the current global refugee crisis, has meant that the issue of African migration has become increasingly controversial. Here Gilad Ben-Nun looks at this phenomenon in its historical and contemporary contexts, and compares it to the wider debates surrounding the Palestinian refugees in the region and the concept of their right of return. He argues that this newer, African migration issue has forced Israel to move from conceiving of itself as an 'exceptional' state and now has to view itself as a more 'normal' and 'universal' entity. Ranging as far back as Israel's important role in the the ratification drafting of the 1951 Refugee Convention and drawing on a variety of methodologies and sources, Ben-Nun offers a wide-ranging legal, social and historical examination of asylum in Israel, that sheds timely light onto themes of migration and identity across the Middle East.
This is essential reading for legal historians and lawyers, as well as scholars working on migration studies and the history and politics of the Middle East.

PART I

UNIVERSALISM ESTABLISHED: ISRAEL AND THE CREATION OF THE INTERNATIONAL REFUGEE REGIME

CHAPTER 1

THE ORIGINS OF THE 1951 REFUGEE CONVENTION AND NON-DISCRIMINATION

It is doubtful whether the Israeli army officers of the Negev Brigade had heard of the United Nations refugee convention, let alone of its Article 33, concerning “Non-Refoulement.” Performing their mandatory reserve duty on the Egyptian–Israeli border in early 2011, the unit was confronted daily with the arrival of African asylum seekers, many of them women and children from Sudan and Eritrea fleeing their war stricken countries. From the outset of their service, the officers informed their battalion commander that they were not going to execute the military order known as “Migrant Hot Return.” The standing procedure of the Israel Defense Forces (IDF) was to coordinate the return of African migrants, caught in Israeli territory, back to the Egyptian border post.¹

Following hard confirmations of the beatings, rape, and executions suffered by these migrants upon their return into Egyptian territory, the officers reiterated that the “Hot Return” procedure was legally invalid and morally unacceptable. In coordination with the regional command, it was replaced by an alternative military protocol. The new protocol stipulated the arrest of all illegal trespassers who crossed the Israeli border. Upon their arrest, all were to be turned over to the custody of Israeli immigration officials for further questioning and humanitarian aid delivery.

Little did these officers know that in administering their self-devised humanitarian military protocol, they were implementing almost to the letter Article 33 of the 1951 Refugee Convention concerning “Non-Refoulement.” Their bewilderment would have probably bordered on historical irony had they known they were walking the trodden humanitarian path set for them, six decades earlier, by their very own kinsmen and forefathers. As it turned out, Jewish jurists and the State of Israel were pivotal instigators in the creation and drafting of the 1951 Refugee Convention: the fundamental cornerstone of international refugee protection for the past 60 years, and the legal linchpin facilitating the work of UNHCR to this day.

Entering its seventh decade, the 1951 Refugee Convention is recognized as the centerpiece of international law on refugees. Its unique status stems first and foremost from its universality, which is embodied in the principle of having one international tool to cater for all refugees the world over, corresponding to UNHCR's global mandate. This universality, of one tool for all, was hardly the initial intention of a significant group of UN member states who drafted the 1951 Refugee Convention, who for their part were opting for a convention restricted to European refugees only. The story of how this convention's scope did eventually become universal is intimately tied to the Jewish Holocaust-surviving jurists who were instrumental in its drafting.

At the heart of this universalism lay the deep humanitarian convictions of the drafters of the 1951 Refugee Convention, which explains its overwhelming success for generations to come, coupled with an inability to devise anything which would match its protective standards. Governments the world over have been engaged in its legal interpretation, and a number of judicial instances have stressed the importance of the convention's travaux préparatoires for our understanding of its text and precise meaning.² The deep humanitarian motives of the drafters of the convention, manifested through its travaux préparatoires, can partially serve as guiding principles for the current-day legal application of its articles.³ Hence, this part of the study aims to deepen our understanding of the original intentions and motives of those who drafted the convention back in 1951.

The present part begins by setting out the details of the network of like-minded humanitarian representatives who took part in the drafting of the 1951 Refugee Convention, and who were largely responsible for its successful conclusion. It focuses on the substantial contribution made by this close-knit group of diplomats and other actors to the formulation and eventual endorsement of the convention text as we know it today.

The acclaimed Jewish international jurist Dr Jacob Robinson, in his capacity as the Israeli ambassador to the 1951 Conference of Plenipotentiaries, stood at the center of this group. In addition to Robinson, the network's inner circle included the Convention president and Danish representative Knud Larsen, the UK representative Sir Samuel Hoare, The Belgian convention's Vice President (and Hoare's close personal friend) Albert Herment, and the International Refugee Organization (IRO) and United Nations High Commissioner for Refugees (UNHCR) representative Dr Paul Weis. In the wider circle, the network included the US representative and well-known jurist Louis Henkin and the Jewish nongovernmental organizations (NGOs) at the conference, headed by Jacob Robinson's younger brother, the well-known international jurist and legal commentator Nehemiah Robinson. This and the following chapter explore how two of the convention's cornerstones – the principles of non-discrimination and non-refoulement – were drafted.

The Global Refugee Problem of the late 1940s

Within the historical settings of the late 1940s and early 1950s, the issue of refugees had become a top priority of the international agenda, specifically for the United Nations. The end of World War II and the redrawing of national borders along “Iron Curtain” parameters brought about the displacement of millions of people worldwide. Early 1947 estimates speak about approximately 1.3 million refugees within Europe alone, of whom approximately 300,000 were Jews.⁴ If the immediate aftermath of May 1945 was identified with the mass uprooting of Germanic peoples in Europe and of Holocaust-surviving Jewish refugees, the end of the 1940s shifted focus to Asia with the Indian subcontinent's partition of 1947 and the Pakistan–India refugee crisis. By 1950, the first Cold War refugees had already come to perturb the attention of the international community due to the Korean War, their case being second only to the plight of the Palestinian refugees from the 1948 Israeli war of independence for whom a special UN agency was created – UNRWA, the United Nations Relief and Works Agency. With over 700,000 Palestinian refugees of 1948, 500,000 Korean refugees of 1950 and additional Jewish refugees from Arab states in 1951–2, the European refugee condition seemed to be dwarfed by Middle Eastern and Asian events – especially given the approaching remedy of the Marshall Plan, already beginning to take effect on the continent.⁵

From the UN's perspective these were indeed formative years in the establishment of the organization, not least in the formation of the United Nations High Commissioner for Refugees, whose role and potencies were to a large extent established and consecrated through this convention.⁶ The significance of the UN in the historical context of Israel's participation in the 1951 refugee convention is further amplified by the importance of UN Resolution 181 for the partition of British Mandate Palestine and the creation of the Jewish state. Israel's accession to the organization occurred in 1949 after the UN, headed by Ralph Bunch, successfully concluded the armistice agreements of that year legitimizing Israel's significantly enlarged borders as opposed to UN Resolution 181.⁷ While Israeli achievements on the battlefield were attributed to the leadership of Prime Minister David Ben-Gurion, credits for the consecration and diplomatic securing of those battlefield achievements were due first and foremost to the Israeli foreign minister (and later prime minister, after Ben-Gurion) Moshe Sharett. Under Sharett's leadership, and due to his excellent ability to identify and recruit talented young diplomats, the Israeli Foreign Service team commanded a disproportionate influence at the UN and in New York, Washington, London, and Moscow. Of all of Sharett's responsibilities between 1948 and the ratification of the refugee convention in August 1954 (as prime minister) no other file took more time and attention than the Palestinian refugee issue, corresponding to the understanding that the lack of resolution of this issue was bound to generate an existential threat to the nascent Jewish state.⁸

Yet the Palestinians were not the only refugees consuming the time and attention of the foreign minister and his competent staff.⁹ Following the Holocaust, a significant portion of Jewish refugees still remained in European camps requiring attention and resources, and these camps had already been turned over in terms of legal responsibility to the IRO.¹⁰ While the problem of European Jewish refugees had been toned down by 1951, that of Jewish refugees from Arab countries (mainly Iraq, Yemen, Syria, and Libya) was significantly exacerbated after the historical tragedy of the inconclusive 1949 Lausanne Conference and the deterioration of Arab–Israeli relations, the rise of Arab nationalism, and the regime changes in Egypt and Syria.¹¹ Indeed, much archive material points to cross-cutting currents between the different refugee themes. One example is the unofficial UN proposal to consider exchange of compensation for assets of Jewish refugees from Arab countries against property claims of Palestinian refugees from the 1948 war.¹² Others are the issues of travel documentation and the citizenship of Jewish refugees once the Law of Return was enacted in July 1950.¹³

The Humanitarian Network at the 1951 Conference of Plenipotentiaries

In retrospect, one is struck by the ability of the international community to create and agree on such a comprehensive humanitarian tool as the 1951 Refugee Convention. To a certain extent, one is hard-pressed to imagine such a convention being agreed upon and enacted in the present time. Reading through the archive accounts of that period, it seems that the odds against the success of the Refugee Convention were much higher than those for it. Following extensive preliminary consultations between the IRO, the UN Human Rights Division, and senior international jurists, the preliminary IRO draft for the future Refugee Convention text came to be viewed as a “realistic” and acceptable document, fit for any “liberal democratic state.”¹⁴ Nevertheless, the IRO officials were skeptical about their draft's chances of success, foreseeing the challenges that would be experienced in trying to prevent its dilution by member states.¹⁵ As the draft moved on from the IRO into the hands of the Ad Hoc Committee on Statelesness and Related Problems the Israeli ambassador, Jacob Robinson, who took part in all the Ad Hoc Committee's discussions, began to share the IRO's pessimistic concerns regarding the chances of the IRO draft actually being adopted by the UN member states.¹⁶ Even after two rounds of negotiations in February and August 1950, as the revised refugee convention drafted had already made it to the Conference of Plenipotentiaries, this concern was still pertinently proclaimed in his confidential weekly reports, written in Geneva and sent to the Israeli Foreign Ministry in Jerusalem. Addressed directly to Foreign Minister Sharett and classified as top secret, these communiqués contain the ambassador's assessments based on his participation in the convention's drafting committees. In his initial report, at the end of the first week, Robinson explained to Sharett the unfolding diplomatic scene in Geneva, and its political implications:

One ought not to expect any positive results from this convention for the following reasons: the convention is deeply connected to the role of the High Commissioner for Refugees. However, he – the High Commissioner – does not have any support either in the US or in France […] The current international Zeitgeist is not conducive at all for any serious humanitarian undertakings.¹⁷

Robinson's overtly pessimistic tone stemmed from his fears about the convention's chances of success. As shown below, this pessimism stemmed from the existence of a deep schism within the Conference of Plenipotentiaries, between countries that supported selective immigration and those that harbored large quantities of post-World War II refugees. One of the key factors that helped bridge this schism was a premeditated and coordinated effort undertaken by a network of like-minded, humanitarian actors, who worked together in close coordination throughout the Plenipotentiaries' Conference. Their ultimate objective was to overcome diplomatic obstacles and steer the convention text to its ratification. In the following few paragraphs, I shall try to examine this network, its main members, and the connections between them.

The most senior member of the inner circle of the Robinsonian network was the president of the Conference of Plenipotentiaries and the representative of Denmark, Ambassador Knud Larsen. Larsen and Jacob Robinson were close personal friends who made their first acquaintance in the early 1930s, when Larsen was the legal advisor to the Danish Interior Ministry at the time that Robinson held a key position in the Lithuanian Foreign Ministry. Their friendship was further strengthened due to Larsen's part in saving the Danish Jewish community under Foreign Minister Erik Scavenius and future Prime Minister Hans Hedtoft.¹⁸ In 1952, one year after the convention's signing, when Larsen was campaigning for the position of UN Deputy High Commissioner for Refugees for the Eastern Mediterranean, Robinson secured the Israeli vote for his nomination at the UN. Lobbying on behalf of his old friend's bid with his superior, Foreign Minister Sharett, Robinson referred to Larsen's and his own positive contribution to the success of the 1951 Refugee Convention:

Regarding your letter to the High Commissioner for Refugees dated 14th March 1952, M/32400, in light of the nomination of Mr Knud Larsen to the post of Deputy High Commissioner, I would like to inform you that this Mr Larsen held a very senior position in the Danish Ministry of the Interior. He was my closest associate in all my work concerning the creation of the Offices of the High Commissioner for Refugees and the making of the Convention concerning the legal status of refugees. By the way he headed the convention in Geneva last summer. He published a two-volume study concerning the Danish citizenship legal code. I was the one who reviewed his publication in the American Journal of International Law. I thought you might be interested in these details.¹⁹

The review referred to in the text is overwhelmingly positive, and appeared in print during the three-week period of the Conference of Plenipotentiaries in July 1951.²⁰ In the above letter to Foreign Minister Sharett, Robinson credits Larsen and himself with no less than the creation of UNHCR and the “making” of the 1951 Refugee Convention. These are far-reaching claims of credit voiced by an ambassador to his foreign minister. Both the Director of the Bureau for International Organizations at the Israeli Foreign Ministry, and the Israeli ambassador to the UN, Abba Eban, were copied in on this letter. Eban had been well acquainted with Robinson ever since he had established the Israeli mission to the UN in New York in late 1947, with Robinson as the mission's off-counsel legal advisor. Eban was also well versed in the UN and its institutions, serving as the vice presid...

Table of contents

• Front Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of Illustrations
• Acknowledgements
• Introduction
• Part I: Universalism Established: Israel and the Creation of the International Refugee Regime
• Part II: Universalism Lost: Israeli Governmental Policies toward Non-Jewish Migrants, 2006–13
• Part III: Universalism Regained: The Israeli Judiciary and the African Migration Challenge
• Conclusion
• Notes
• Bibliography