Voyage of the damned and Sudanese refugees

In 1939, N. America denied entry to 937 Jewish refugees aboard a ship, forcing it to return to Nazi Europe. To prevent such an event from happening again, int’l refugee laws were changed, but the mass migration of Sudanese refugees is forcing Israel to re-visit these laws.

By ROBBIE SABEL
Sudanese refugee rally for independance 311 (photo credit: Ron Friedman)
Sudanese refugee rally for independance 311
(photo credit: Ron Friedman)
The 1939 episode of the German ocean liner MS St Louis is deeply engraved in the Jewish national psyche. The ship, carrying nearly one thousand Jewish refugees from Germany, was denied entry to ports on Eastern coast board of America, including Cuba, Florida and Canada. The ship was forced to return to Europe, where many of the passengers were eventually killed in Nazi concentration camps.
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One of the consequences of this event was the post World War II universal recognition of the rule of non-refoulement, whereby states may not deport a person to a country in which his life will be in danger or where he will be subject to torture or inhumane treatment.
Every state has its own discretion as to whether to grant residency rights to a refugee seeking asylum. International law defines refugees as persons who have left their country for fear of persecution on the basis of race, religion, social group or political opinion. (Incidentally, refugees who flee their country because of economic hardships or natural calamities have no special status in international law.) But even if a state determines that a person is a bona fide political refugee, the state is not obliged to grant a right of residence, and deportation can still be effected. However, the refugee still benefits from the privileges of non-refoulement.
The non-refoulement rule has now gained relevancy in Israel and more specifically, in how to deal with the increasing flow of refugees from Africa who enter the country’s Southern border from Egypt. The issue of course is not particular to Israel, and in European states - particularly Southern European ones – attempts are being made to fulfill legal and humanitarian obligations while preventing limitless immigration.
The international requirement is that when a refugee claims a right of non-refoulement, the state must investigate the claim and cannot deport the person without attempting to verify if he is indeed a "political" refugee. One of the ramifications is that human rights groups and many jurists argue that a person claiming to be a political refugee and seeking entry at the border is entitled to a hearing to determine his claim - even if he has not actually entered the country.
However, most countries - including Israel - hold that such a right applies only to persons physically in its territory. In the past, the United States has intercepted refugee boats from Cuba and Haiti outside US territorial waters, stating that the refugees were not entitled to a hearing since they had not yet entered US territory. France argued before the European Court that the area in a French airport prior to passing through border control was "international” and hence the rules as to non-refoulement do not apply to persons that have not yet passed through the border into France. The argument was unsuccessful.
A further issue is whether it is reasonable to demand the application of these rules in cases where there is a mass movement of peoples. The Israel dilemma is particularly acute, because if people from Sudan enter Israel and are recognized as political refugees they cannot be deported back to Sudan. In practice, Egypt refuses to accept them, and many that were sent back from Israel to Egypt were robbed and tortured by Bedouin gangs in Sinai and in some cases, sent back to Sudan by the Egyptian authorities. Such that even deportation back to Egypt can be regarded as illegal refoulement. Since it is near impossible for Israel to find other countries willing to accept such refugees, they end up with the unhappy fate of illegal immigrants throughout the world: they might stay in the country but they are not granted residency rights and are invariably exploited by unscrupulous employers.
When it was a matter that concerned a few individuals, Israel allowed itself to be liberal; but since it has transformed into a mass exodus, Israel faces a very different reality. Most of the African refugees are motivated by economic factors, and they choose Israel for being perhaps the only prosperous and democratic society that is accessible without having to make a dangerous sea voyage.
Still haunted by the memory of the MS St Louis, Jews are imbibed with a sense of duty to grant asylum to those who seek it. Nevertheless, the rules that determine the political refugee status of an individual are saddled with almost insurmountable challenges when facing mass migration - and in particular, migration that is primarily economically motivated. The Israeli High Court of Justice now has the unenviable task of trying to arrive at some compromise between individual rights and harsh demographic realities.

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The writer teaches international law at the Hebrew University and is the former legal adviser to the Israel Foreign Ministry.