The complicated legal dilemma of Fatah «asylum-seekers» who fled Gaza
Marian Houk
August 04, 2008
There is still no word -- and there may never be -- on the wishes of the 150 Fatah "asylum seekers" from Gaza who fled to Israel on Saturday evening concerning their personal immediate futures.
On Monday afternoon, a large number were transferred on Israeli buses to Jericho, although it had previously been announced that their destination would be Ramallah, the West Bank's capital city. An announcement from the Israeli army on Tuesday reported -- without further clarification -- that approximately 85 individuals had been helped to get to Jericho, near the Dead Sea and the border with Jordan.
It is not yet clear what may have happened to the others.
The determination of each individual´s wishes, in private interviews conducted by international officials without any Israeli presence -- which could be considered coercive -- would be required both under international law and a 1951 refugee treaty signed by Israel.
The 188 "asylum seekers" were legally admitted into Israel from Gaza on Saturday night by the IDF, on the basis of a decision taken by the "political echelon", the Israeli media originally indicated.
This may have meant nothing more than someone authorized to act on behalf of the Minister of Defense (and former Prime Minister) Ehud Barak.
Israeli media reports indicate that the Israeli Defense Forces (IDF), the country's army, asked the Ministry of Defense to let those fleeing Hamas pursuit enter from Gaza.
The decision came after pleas to Israel during the day Saturday from Palestinian Authority (PA) President Mahmoud Abbas and his Prime Minister Salam Fayyad to take in these Fatah-affiliated people.
Egypt -- taken much more seriously by the Israeli government -- also asked Israel to admit these "asylum seekers". It is not entirely clear whether Egypt also asked that the "asylum seekers" be transferred to Ramallah.
Then, a few hours later, the Palestinian Authority leadership reportedly changed their minds, and said these people should be returned to Gaza.
Despite this Palestinian about-face, Israel kept about 23 of these "asylum seekers" hospitalized for medical treatment after being wounded -- either in clashes in Gaza, or by Israeli fire when they approached the Nahal Oz crossing (normally used only for transfers of fuel shipped from Israel to Gaza, but apparently near Saturday´s fighting), or by Hamas cross-fire at the same time.
But some 32 able-bodied persons were returned to Gaza on Sunday – and most if not all were apparently immediately arrested by Hamas security forces.
Only those guilty of involvement in criminal acts will be kept in detention, Hamas spokesmen said, but these assurances are not taken for granted when the lives of "protected persons" – as these "asylum seekers" are, under international law – are at stake.
A petition submitted to the Israeli Supreme Court on Sunday by the Association for Civil Rights in Israel (ACRI) ignores the international dimensions of this dilemma, and instead pinpoints Israel's responsibility.
In an interview on Tuesday, ACRI attorney Oded Feller, who filed the petition, said that there were many complicated questions posed by this situation. His petition cited both the 1951 Convention on Refugees, and the later Convention Against Torture, which Israel has signed and ratified, becoming a state party to both treaties.
But, he said, "the main argument is that when people arrive into Israel who are in danger, it is illegal under Israeli law to deport them. This comes from (former Supreme Court) Justice (Avraham) Barak's 1995 ruling in the Altai case, involving someone from Iraq who was in Israel seeking asylum, which stated that Israel can't deport somehone whose life is in danger, according to the refugee convention, and also according to Israel's Basic Law on Human Dignity which requires any Israeli to take into account the value of human life and human freedom."
Feller added that the Convention Against Torture was also very strict, and "under its rules, you can't send back someone to a place where they can be tortured." Torture has in fact been documented in both the West Bank and in Gaza. But Feller said that "yes, it's possible (in the West Bank). But if you know that these people won't be tortured in the West Bank, then it's OK to send them there."
Feller said that ACRI had withdrawn its petition to the Israeli Supreme Court Monday afternoon, after the State said these "asylum seekers" would not "be deported back to Gaza -- unless they wanted to go there".
Israel's YNET news website reported earlier Monday that "In the petition, ACRI Attorney Oded Feller said the lives of those who are being sent back to Gaza is at risk, adding that sending back people who request political asylum to the place they had escaped from constitutes 'one of the most severe human rights violations and is a breach of Israeli law and human morality'."
Israeli Defense Minister Barak reportedly reversed course on Sunday, after learning of the immediate arrests back in Gaza of the 32 Fatah-aligned returnees. The Israeli media reported that Barak acted immediately and independently. But he was surely also influenced by the legal action -- and by what must certainly have been a lot of behind-the-scenes diplomatic intervention.
There were then, reportedly, all-night consultations from Sunday to Monday between Israeli officials and PA officials in Ramallah (and possibly elsewhere, as Mahmoud Abbas was in Jordan on Sunday) on the matter.
Whether as a result of agreement with the PA (one or two reports do suggest the PA leadership changed its mind yet again, and made a new request to bring the "asylum seekers" to the West Bank), or acting unilaterally, Barak then decided that some if not all of those still in Israel would be transferred to the PA capital city of Ramallah during the day on Monday.
The Associated Press added that other "asylum seekers" were still being interrogated by Israeli security.
The 188 "asylum seekers" were admitted to Israel after first being strip-searched, blindfolded and handcuffed -- and photographed by journalists, in violation of the Geneva Conventions, which bans the public humiliation or display of "protected persons -- i.e., living under occupation, and in this case a belligerent military operation, according to many international law experts.
Though some of them may have been members of the Al-Aqsa Martyrs Brigade, who have reportedly been involved in shooting "projectiles" at Israel from Gaza, reportedly on the orders of Fatah, these "asylum seekers" were not involved in immediate hostilities with Israel. Even if many of them had been involved in factional fighting in Gaza, they had already laid down their weapons, and were unarmed non-combatants before seeking "asylum" in Israel.
Some versions of the story suggest that those fleeing Gaza were actually asking for "asylum" in the West Bank. But, as Attorney Feller suggested, it may be that none of the group actually asked for asylum anywhere. "They ran to the fence, and Hamas was shooting at them. That is enough". It was an urgent situation, he explained. "There was no time to speak with each of them, or to collect affadavits".
Another alternative, of course, would have been to grant these people political or some other kind of asylum in Israel. But that would be very complicated, as Israelis say they are fearful even of the thought of any Palestinian "return".
In international law, and according the the 1951 refugee convention, Israel will have become a country of first asylum after admitting these 188 persons.
It would then have the obligation to allow these people to be interviewed by officials from the UN High Commissioner for Refugees (UNHCR) -- without any Israeli official present -- to determine whether they are willing to return to Gaza, or even whether they are willing to go to the West Bank.
This becomes internationally complicated, because UNRWA (The UN Relief and Works Agency for Near East refugees) is responsible for Palestinian refugees in its five "areas of operations", and UNHCR has responsibility for Palestinian refugees in critical situations outside UNRWA´s "areas of operations".
Some questions would be: were these "asylum seekers" considered to be Palestinian refugees, and/or were they under UNRWA's responsibility?
Most if not all of the "asylum seekers" were members of the Fatah-affiliated Hilles clan, who were reportedly orignially from Gaza, and not refugees who fled there during Israel's war of independence in 1948. But, UNRWA's mandate has been informally expanded in recent years, and the agency is now offering assistance to virtually all Gazans in need.
UNRWA does not have operational programs inside Israel. But, if persons under UNRWA's responsibility suddenly found themselves inside Israel, it is not clear whether or not Israel would agree to allow the agency to work on their behalf.
It is also not clear whether Israel would prefer UNHCR over UNRWA, and whether either or both of these agencies would agree to such a selection.
Other issues are whether Gaza is considered a separate country from Israel or not, and whether the West Bank is considered a separate country or not. The Israeli government believes that its 2005 unilateral "disengagement" from Gaza means that it is no longer occupied -- a position not shared by many international legal experts. However, the status of the West Bank is quite different.
ACRI Attorney Feller noted that this question is not the main issue of this case: "It´s not a theoretical case, but of human beings and their lives".
However, he did explain that "According to Israeli law, there is a decision to see Erez and other crossings from Gaza into Israel as border control areas. The Entrance to Israel Law gives a list of international crossing points into Israel, like Ben Gurion airport and like Taba. Erez is also one. This happened after 2005. But Qalandia crossing (into the West Bank) is not on this list".
The Israeli newspaper Haaretz reported that the head of Israel's "Civil Administration" in the West Bank, Brigadier-General Yoav Mordechai said Monday that he boarded the Israeli buses transporting the "asylum seekers" to Jericho and explained the "ground rules" to them, warning that "The control of the IDF and security forces in Jericho is absolute, and anyone who deviates from normative behavior and engages in criminal activity or terror will be removed from there quickly...I explained to them the difference between Gaza and the West Bank and how they will need to behave differently. None of them are saints, but none of them are mega-terrorists either, and each and every one of them was checked by the Shin Bet".
The first and perhaps most important determination might have been in the course of the legal action taken by ACRI in Israel´s Supreme Court, which was due to give a preliminary response to ACRI´s petition on Monday afternoon.
The ACRI petition was not, however, dealing with the status of Gaza or the West Bank.
In any case, it appears that Court action -- and a complicated legal situation -- have been avoided by the Israeli Government's decision to transfer the "asylum seekers" to the West Bank.
ACRI said in a press release on Monday that it welcomed the "State's decision today granting 150 Fatah supporters refuge in the West Bank , following the organization's petition against sending them back to the conflict-ridden Gaza Strip. Another 38 returned to Gaza on their own will, according to the Israel Defense Forces".
ACRI added that returning the "asylum seekers" to Gaza "would directly violate the United Nations Convention relating to the Status of Refugees to which Israel is a signatory – most specifically the notion of 'non-refoulement', which prevents states from sending asylum-seekers into life-endangering situations. 'We are pleased with the State's decision to abide by its legal commitments to safeguard these individuals' lives and freedom', said ACRI Attorney Oded Feller, who submitted the petition. 'But besides the legal ramifications, it would have been highly immoral for Israel to send them – or any other asylum-seekers – back to a place where they would most likely face injury and even death'."
On Monday afternoon, a large number were transferred on Israeli buses to Jericho, although it had previously been announced that their destination would be Ramallah, the West Bank's capital city. An announcement from the Israeli army on Tuesday reported -- without further clarification -- that approximately 85 individuals had been helped to get to Jericho, near the Dead Sea and the border with Jordan.
It is not yet clear what may have happened to the others.
The determination of each individual´s wishes, in private interviews conducted by international officials without any Israeli presence -- which could be considered coercive -- would be required both under international law and a 1951 refugee treaty signed by Israel.
The 188 "asylum seekers" were legally admitted into Israel from Gaza on Saturday night by the IDF, on the basis of a decision taken by the "political echelon", the Israeli media originally indicated.
This may have meant nothing more than someone authorized to act on behalf of the Minister of Defense (and former Prime Minister) Ehud Barak.
Israeli media reports indicate that the Israeli Defense Forces (IDF), the country's army, asked the Ministry of Defense to let those fleeing Hamas pursuit enter from Gaza.
The decision came after pleas to Israel during the day Saturday from Palestinian Authority (PA) President Mahmoud Abbas and his Prime Minister Salam Fayyad to take in these Fatah-affiliated people.
Egypt -- taken much more seriously by the Israeli government -- also asked Israel to admit these "asylum seekers". It is not entirely clear whether Egypt also asked that the "asylum seekers" be transferred to Ramallah.
Then, a few hours later, the Palestinian Authority leadership reportedly changed their minds, and said these people should be returned to Gaza.
Despite this Palestinian about-face, Israel kept about 23 of these "asylum seekers" hospitalized for medical treatment after being wounded -- either in clashes in Gaza, or by Israeli fire when they approached the Nahal Oz crossing (normally used only for transfers of fuel shipped from Israel to Gaza, but apparently near Saturday´s fighting), or by Hamas cross-fire at the same time.
But some 32 able-bodied persons were returned to Gaza on Sunday – and most if not all were apparently immediately arrested by Hamas security forces.
Only those guilty of involvement in criminal acts will be kept in detention, Hamas spokesmen said, but these assurances are not taken for granted when the lives of "protected persons" – as these "asylum seekers" are, under international law – are at stake.
A petition submitted to the Israeli Supreme Court on Sunday by the Association for Civil Rights in Israel (ACRI) ignores the international dimensions of this dilemma, and instead pinpoints Israel's responsibility.
In an interview on Tuesday, ACRI attorney Oded Feller, who filed the petition, said that there were many complicated questions posed by this situation. His petition cited both the 1951 Convention on Refugees, and the later Convention Against Torture, which Israel has signed and ratified, becoming a state party to both treaties.
But, he said, "the main argument is that when people arrive into Israel who are in danger, it is illegal under Israeli law to deport them. This comes from (former Supreme Court) Justice (Avraham) Barak's 1995 ruling in the Altai case, involving someone from Iraq who was in Israel seeking asylum, which stated that Israel can't deport somehone whose life is in danger, according to the refugee convention, and also according to Israel's Basic Law on Human Dignity which requires any Israeli to take into account the value of human life and human freedom."
Feller added that the Convention Against Torture was also very strict, and "under its rules, you can't send back someone to a place where they can be tortured." Torture has in fact been documented in both the West Bank and in Gaza. But Feller said that "yes, it's possible (in the West Bank). But if you know that these people won't be tortured in the West Bank, then it's OK to send them there."
Feller said that ACRI had withdrawn its petition to the Israeli Supreme Court Monday afternoon, after the State said these "asylum seekers" would not "be deported back to Gaza -- unless they wanted to go there".
Israel's YNET news website reported earlier Monday that "In the petition, ACRI Attorney Oded Feller said the lives of those who are being sent back to Gaza is at risk, adding that sending back people who request political asylum to the place they had escaped from constitutes 'one of the most severe human rights violations and is a breach of Israeli law and human morality'."
Israeli Defense Minister Barak reportedly reversed course on Sunday, after learning of the immediate arrests back in Gaza of the 32 Fatah-aligned returnees. The Israeli media reported that Barak acted immediately and independently. But he was surely also influenced by the legal action -- and by what must certainly have been a lot of behind-the-scenes diplomatic intervention.
There were then, reportedly, all-night consultations from Sunday to Monday between Israeli officials and PA officials in Ramallah (and possibly elsewhere, as Mahmoud Abbas was in Jordan on Sunday) on the matter.
Whether as a result of agreement with the PA (one or two reports do suggest the PA leadership changed its mind yet again, and made a new request to bring the "asylum seekers" to the West Bank), or acting unilaterally, Barak then decided that some if not all of those still in Israel would be transferred to the PA capital city of Ramallah during the day on Monday.
The Associated Press added that other "asylum seekers" were still being interrogated by Israeli security.
The 188 "asylum seekers" were admitted to Israel after first being strip-searched, blindfolded and handcuffed -- and photographed by journalists, in violation of the Geneva Conventions, which bans the public humiliation or display of "protected persons -- i.e., living under occupation, and in this case a belligerent military operation, according to many international law experts.
Though some of them may have been members of the Al-Aqsa Martyrs Brigade, who have reportedly been involved in shooting "projectiles" at Israel from Gaza, reportedly on the orders of Fatah, these "asylum seekers" were not involved in immediate hostilities with Israel. Even if many of them had been involved in factional fighting in Gaza, they had already laid down their weapons, and were unarmed non-combatants before seeking "asylum" in Israel.
Some versions of the story suggest that those fleeing Gaza were actually asking for "asylum" in the West Bank. But, as Attorney Feller suggested, it may be that none of the group actually asked for asylum anywhere. "They ran to the fence, and Hamas was shooting at them. That is enough". It was an urgent situation, he explained. "There was no time to speak with each of them, or to collect affadavits".
Another alternative, of course, would have been to grant these people political or some other kind of asylum in Israel. But that would be very complicated, as Israelis say they are fearful even of the thought of any Palestinian "return".
In international law, and according the the 1951 refugee convention, Israel will have become a country of first asylum after admitting these 188 persons.
It would then have the obligation to allow these people to be interviewed by officials from the UN High Commissioner for Refugees (UNHCR) -- without any Israeli official present -- to determine whether they are willing to return to Gaza, or even whether they are willing to go to the West Bank.
This becomes internationally complicated, because UNRWA (The UN Relief and Works Agency for Near East refugees) is responsible for Palestinian refugees in its five "areas of operations", and UNHCR has responsibility for Palestinian refugees in critical situations outside UNRWA´s "areas of operations".
Some questions would be: were these "asylum seekers" considered to be Palestinian refugees, and/or were they under UNRWA's responsibility?
Most if not all of the "asylum seekers" were members of the Fatah-affiliated Hilles clan, who were reportedly orignially from Gaza, and not refugees who fled there during Israel's war of independence in 1948. But, UNRWA's mandate has been informally expanded in recent years, and the agency is now offering assistance to virtually all Gazans in need.
UNRWA does not have operational programs inside Israel. But, if persons under UNRWA's responsibility suddenly found themselves inside Israel, it is not clear whether or not Israel would agree to allow the agency to work on their behalf.
It is also not clear whether Israel would prefer UNHCR over UNRWA, and whether either or both of these agencies would agree to such a selection.
Other issues are whether Gaza is considered a separate country from Israel or not, and whether the West Bank is considered a separate country or not. The Israeli government believes that its 2005 unilateral "disengagement" from Gaza means that it is no longer occupied -- a position not shared by many international legal experts. However, the status of the West Bank is quite different.
ACRI Attorney Feller noted that this question is not the main issue of this case: "It´s not a theoretical case, but of human beings and their lives".
However, he did explain that "According to Israeli law, there is a decision to see Erez and other crossings from Gaza into Israel as border control areas. The Entrance to Israel Law gives a list of international crossing points into Israel, like Ben Gurion airport and like Taba. Erez is also one. This happened after 2005. But Qalandia crossing (into the West Bank) is not on this list".
The Israeli newspaper Haaretz reported that the head of Israel's "Civil Administration" in the West Bank, Brigadier-General Yoav Mordechai said Monday that he boarded the Israeli buses transporting the "asylum seekers" to Jericho and explained the "ground rules" to them, warning that "The control of the IDF and security forces in Jericho is absolute, and anyone who deviates from normative behavior and engages in criminal activity or terror will be removed from there quickly...I explained to them the difference between Gaza and the West Bank and how they will need to behave differently. None of them are saints, but none of them are mega-terrorists either, and each and every one of them was checked by the Shin Bet".
The first and perhaps most important determination might have been in the course of the legal action taken by ACRI in Israel´s Supreme Court, which was due to give a preliminary response to ACRI´s petition on Monday afternoon.
The ACRI petition was not, however, dealing with the status of Gaza or the West Bank.
In any case, it appears that Court action -- and a complicated legal situation -- have been avoided by the Israeli Government's decision to transfer the "asylum seekers" to the West Bank.
ACRI said in a press release on Monday that it welcomed the "State's decision today granting 150 Fatah supporters refuge in the West Bank , following the organization's petition against sending them back to the conflict-ridden Gaza Strip. Another 38 returned to Gaza on their own will, according to the Israel Defense Forces".
ACRI added that returning the "asylum seekers" to Gaza "would directly violate the United Nations Convention relating to the Status of Refugees to which Israel is a signatory – most specifically the notion of 'non-refoulement', which prevents states from sending asylum-seekers into life-endangering situations. 'We are pleased with the State's decision to abide by its legal commitments to safeguard these individuals' lives and freedom', said ACRI Attorney Oded Feller, who submitted the petition. 'But besides the legal ramifications, it would have been highly immoral for Israel to send them – or any other asylum-seekers – back to a place where they would most likely face injury and even death'."
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