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Milk and Honey

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Jew to Messiah

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Yahudi yerleşimciler yeniden Mescid-i Aksa'ya girdi

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Exporting human rights obligations: Israel’s “voluntary departures” put lives in danger

Contributed by Tom Gellert, an Israelilaw student

 The Israeli Population and Immigration Administration’s efforts do not usually go very far when it comes to making sure asylum seekers are well informed about their rights. Visa policies are unclear, information is rarely available in foreign languages and services are constantly changing and often provided in an arbitrary manner. However, there is one thing that is always clear: if you are an asylum seeker in Israel, getting out of the country as part of the government’s “voluntary departure” policy will never be too difficult.

The deal is simple. Or better: suspiciously simple. The asylum seeker agrees to leave Israel to a “third country” or to his country of origin, and Israel in return gives him a one-way outbound ticket and US$3,500 (which are delivered only at the airport).

A new report by the Hotline for Refugees and Migrants (“the Hotline’”) and ASSAF, two Israeli human rights organisations, reveals how chaotic and unregulated this process is in practice. Based on interviews with dozens who “chose” to leave Israel, the report shows how transferred asylum seekers were pressured to leave by the Israeli authorities, did not receive sufficient information about their destinations or were sometimes even misled about the countries to which they would be sent. Some of those choosing to leave were reportedly offered fake documents by Israeli officials. After being sent away, some asylum seekers have been persecuted, arrested or unable to apply for asylum in the receiving states because all of their documents were taken from them. Many have fled again from their countries of origin or from the third countries they were sent to, with some even making their way to Libya and across the Mediterranean into Europe.

1.         Returning to Eritrea and Sudan and fleeing again

Israel hosts more than 46,000 people that it defines as “infiltrators”. These are mostly asylum seekers from Eritrea (about 34,000) and Sudan (about 8,700). Both groups are not granted a formal protected status, but remain in Israel under a “temporary delay of deportation” policy. The only right their status officially accords to them is the right not to be deported from Israel for the time being.

However, while Israel admits it is not deporting Eritreans back to Eritrea, due to the risk of human rights violations back at home, it claims that it is only practical difficulties that are stopping the deportation of asylum seekers from Sudan (many of whom come from Darfur), as there are no diplomatic ties with their home country.

Unable to deport asylum seekers and unwilling to let them stay, Israel has been seeking other “solutions”. During the last two years more than 9,000 asylum seekers left Israel "voluntarily". Most of them returned to their home countries – mainly to Sudan and Eritrea. About 1,100 were transferred to "third countries" in Africa under agreements that the Israeli government claims it has reached with the governments of these countries (although the government of Israel refuses to divulge the names of these countries, they are widely understood to be Uganda and Rwanda).

Information gathered by international and Israeli NGOs clearly suggests that many Sudanese who returned from Israel to Sudan were subsequently persecuted. Asylum seekers who return from Israel are suspected by the authorities to be involved in espionage activities, and hence often face harassment and severe restrictions on their movement. Sudanese law criminalises visits and any other connections to Israel (which is defined as an “enemy state”), and this alone puts any returnee from Israel in danger of being persecuted. According to the new report, political activists or community leaders among the returnees are particular targets of persecution and face arbitrary detention, torture, inhumane treatment, interrogations and serious harassment by the Sudanese Security Forces.  

Dozens of returnees from Israel were immediately arrested upon arrival to Khartoum and reported that their valuables were confiscated (including money, phones and computers). Israeli NGOs have also gathered information about people whose relatives have disappeared, people who are trying to flee Sudan again, and others who have already done so and even reached Europe. One person, according a testimony in the report, has died in prison.

While Israeli NGOs did manage to contact some of the asylum seekers who returned to Sudan, they were not able to contact any person who “voluntarily” returned to Eritrea. According to the Israeli authorities 1,691 Eritreans left Israel in 2014, but it is unknown how many of these returned to Eritrea and how many went to other countries. Both Human Rights Watch and Amnesty International, however, have documented serious abuses of the human rights of Eritreans who returned from other countries in recent years, including torture and detention.

2.         Voluntariness              

In the last three years the Israeli government has legislated three amendments to the “Anti-Infiltration” Act to enable the authorities to detain “infiltrators” for long periods of time. Two of these amendments were struck down by the Israeli High Court in 2013 and 2014, and a petition against the third one is pending.

Although back in 2012 legislators usually referred to Israel’s detention policies as a tool that is meant to deter future asylum seekers from coming to Israel, they soon shifted to advocating that detention is Israel’s main tool for encouraging “infiltrators” to leave the country. The latest version was even titled the “Law for Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel”.

Detention in Israel’s “open facility” – for a period of 20 months under the latest amendment– is only one tool in a broader policy that is meant to coerce asylum seekers to leave the country and, as former Minister of Interior Eli Yishai said back in 2012, “Make their lives miserable”. Asylum seekers’ chance to be granted refugee status in Israel is almost non-existent: only 0.07% (i.e. four people) of the Eritreans and Sudanese who applied for asylum were granted refugee status. Asylum seekers’ ability to work in Israel is unclear and employers are often reluctant to hire them, their access to health care and other social services is very limited, and with authorities officially referring to them as “illegal infiltrators” and encouraging anti-African sentiment, it would be hard to make them feel more unwelcome.

Under these circumstances, the decision to leave the country cannot be characterised as voluntary. Israel’s “voluntary departures” amount, at least in most cases, to constructive refoulement – a violation of international law.

3.         “Safe third country”? What country?

The number of asylum seekers going back to Sudan decreased significantly after the first quarter of 2014. According to the new report, one of the reasons for this might very well be that asylum seekers in Israel learned of what many of the returnees faced back in Sudan. Official figures published by the Israeli Population and Immigration Administration show that the number of “voluntary departures” in the last quarter of the year (663) was six times lower than the number in the first quarter (3,972). However, from the second quarter of 2014, more asylum seekers preferred to be transferred to “third countries” in Africa.

Giving asylum seekers the option to leave to another country is not wrong or illegal per se. Moreover, one’s right to choose his or her country of asylum is fairly limited under international law, and in some circumstances an asylum seeker can be sent to a “safe third country” against his or her will. However, such transfers can only be carried out if a number of legal requirements are met and all the relevant considerations are taken into account. The agreements between Israel and the receiving countries – as far as such agreements indeed exist – do not seem to meet these requirements.

For years, the Israeli government claimed that it was “just about” to sign agreements with “third countries” in Africa in order to transfer asylum seekers from Israel to there. In late August 2013 an official said that Israel had signed a deal with Uganda, but soon after others denied the existence of such deal and claimed that there are only “understandings”. No African country (including Uganda) has ever publicly admitted reaching such an agreement with Israel.

Today, however, the Israeli government claims that agreements with two African countries do exist, but are confidential at the request of the receiving countries. Accordingly, not only have the identities of the receiving countries not been made public, neither have the terms of those agreements.

This confidentiality not only raises questions with regard to the appropriateness and legality of the terms of the agreements, but is also improper in and of itself. UNHCR’s position according to its 2013 Guidance Note on Agreements Governing Transfers of Asylum Seekers provides that asylum seekers should only be transferred between states under a legally binding instrument that is challengeable and enforceable in a court of law, by the affected asylum seekers.

4.         Refugee protection – not part of the deal?

The agreements’ confidentiality means that any judicial review must begin with challenging the confidentiality itself. However, while no “third country” has publicly admitted to having a transfer agreement with Israel, it is known that Israel is offering asylum seekers to leave to Uganda and Rwanda. With more than a thousand departures from Israel to these countries, it is difficult to see how their identity could have remained unknown.

The main question that should be asked about these transfers is what exactly the agreements between Israel and the “third countries” include: what guarantees has Israel received with regard to the protection of those who ‘choose’ to leave, what information is provided to them about where they are going and the conditions that they might expect and what protection, in practice, do these asylum seekers enjoy in the receiving countries. If people are sent in conditions that cannot be understood as voluntary (however they are termed) to a country where they may not receive appropriate protection or where they face removal to other countries where they will face persecution, then these transfers are unconstitutional under Israeli national law and international law.

According to the new report, transferred asylum seekers are given travel documents when they leave Israel, but these, along with all of their other documents, are taken once they arrive in Kigali or Entebbe. Asylum seekers are left facing difficulties in proving their identity and applying for asylum in these third countries. Many of those who were transferred chose to leave shortly after arrival in search for asylum elsewhere, fearing they will be arrested if they stay with no status. Israeli authorities do not attempt to follow up on their cases, and no one seems to be responsible for their protection in the receiving countries.

Therefore, the agreements do not seem to include any guarantees for the protection of those transferred by the relevant authorities in the receiving countries: asylum seekers are left with no documents and no status, and no one seems to be responsible for assessing their protection needs. Even if protection provisions were included, Israel cannot evade its own responsibilities by relying on the agreements alone; it must ensure that protection is granted in practice. Similarly, even if these countries have acceded to the 1951 Convention on the Status of Refugees and its 1967 Protocol and ratified other relevant international instruments, this does not by itself guarantee that protection is being accorded in practice.

5.         Responsibility sharing or “burden” shifting?

Although it is not necessarily a legal question, the motivation behind an agreement serves as a good indicator as to the agreements’ appropriateness, and UNHCR justifiably mentions this in its Guidance Note: a transfer agreement should not be aimed at shifting the “burden” of refugee protection from one country to another, but rather to enhance the overall protection refugees enjoy in the two countries or the region as a whole.

The transfer of refugees between Israel and Uganda is clearly an example of “burden” shifting. The Israeli government has made it clear repeatedly that it has no intention of accepting these “infiltrators”. For years Israeli “asylum” policies have been designed to ensure that as few Africans as possible stay in Israel, which explains why there are only four recognised refugees out of more than 50,000 asylum seekers from Sudan and Eritrea.

While Israel is carrying out transfers in order to “empty” itself of African asylum seekers, Uganda is already a hosting almost 500,000 refugees and asylum seekers from neighbouring countries, and this population is projected to reach over 600,000 by the end of this year. The only way to see these transfers as enhancing the overall protection refugees in the two countries is to accept that Israel has no intention of providing them protection in the first place.

As the Israeli-Ugandan deal (just like the Israeli-Rwandan one) is clearly not about sharing responsibility for the benefit of refugees, questions are raised with regard to what these third countries are getting “in exchange”. According to some early reports the agreement between Israel and Uganda involved Israel sending arms and aid to Uganda. These allegations, however, were denied by the Ugandan government.

6.         Exporting human rights obligations

Israel’s policy might be bold in the way it disregards international law, but some of its underlying principles are not significantly different than those behind the policies of other western countries that increasingly seek to “export” their legal and moral obligations towards asylum seekers to poorer, developing countries, even when this means compromising on the protection of these asylum seekers’ human rights.

The EU, for instance, has adopted different policies in recent years that “externalise” to neighbouring non-EU countries, the control of its borders and the management of migrations that are predicted to continue to Europe. These countries, however, with limited financial resources and much less efficient judicial systems than the EU has, are very often unable to ensure migrants’ rights are protected. Israel – somewhat like Australia that is currently trying to send its refugees to Cambodia – has also found its own way to export its obligations under international law to other countries that do not necessarily have the resources and means to meet them.

Those paying the price might be too far away to make their voices heard back in Jerusalem, but thankfully, they are not too far to warn other asylum seekers. The number of those choosing to leave Israel has already dropped during the last months, and ideally the “voluntary departure unit” of the Population and Immigration Authority will have less work in 2015.

As a result there would appear to be only one option left for the Israeli government in order to “convince” asylum seekers to go away: a growing amount of oppression and force is needed. It is hoped that this will spark the government to change its ways and respect the rights of asylum seekers in Israel and not to make their lives even more miserable. Sadly, history does not necessarily imbue confidence.