Does the Refugee Convention only apply if Jews are the refugees?

Why do people cross borders without papers? A lot of reasons, including: economic opportunity, family unification, poverty, illness, and persecution. The only way to truly know why someone left their home is to give them a chance to explain. This is the core of the 1951 UN Refugee Convention.

The Convention was a direct result of the slaughter of Jews during the Holocaust, when those who fled their homes too often found borders closed to them. Israeli and American Jews helped draft the Convention to provide a standard to determine whether someone was fleeing persecution because of who they are, and thus morally should not be forced to return home.

For most of the world, the 1951 definition of a refugee is still in force. A refugee is a person (1) with a well-founded fear of persecution (2) by their own government or by people their government is unwilling or unable to control. That persecution must be (3) on the basis of their race, religion, nationality, political opinion, or membership in a particular social group (like LGBT people or women opposed to genital mutilation). An asylum-seeker is someone who has left their home country seeking to prove they meet the definition of a refugee.

The essence of the Refugee Convention is that every asylum-seeker has the right to explain his or her story and be considered for refugee status by a trained adjudicator. The world’s wealthy countries have functioning processes to evaluate refugee claims, and nearly all accept thousands or tens of thousands of asylum-seekers annually. These asylum-seekers have fled persecution because they are a minority religion, or an opponent of a dictatorial regime. They are afraid, and they are seeking refuge – just as Jews were in the 1940’s. There are only two OECD countries that have completely closed their doors to asylum-seekers. One is Japan. The other is Israel.

In 1977, Israel was lauded around the world for rescuing 66 Vietnamese refugees at sea and making them Israeli citizens, along with several hundred more people from Vietnam subsequently. Prime Minister Menachem Begin proudly told President Carter, “We never have forgotten the boat with 900 Jews, the St. Louis, having left Germany in the last weeks before the Second World War… traveling from harbor to harbor, from country to country, crying out for refuge. They were refused… Therefore it was natural… to give those people a haven in the Land of Israel.”

Today, most of those seeking refuge in Israel come from eastern Africa – from Eritrea and Sudan – countries rife with human rights abuses. They travel immense distances seeking safety in the closest functioning democracy. They may not know that Israel is a signatory to the Refugee Convention, but they know that Jews have suffered persecution and they believe Israel will protect them. Yet Israel today refuses even to let them enter. Does Israel apply the Refugee Convention only when Jews are the refugees?

According to the Hotline for Refugees and Migrants, the expert Israeli NGO, people who reach the Israeli border fence in the Sinai desert are always refused entry, regardless of the circumstances of their flight or how fearful they are of persecution.  In the United States, where I ran an asylum program for nearly a decade, the immigration system is deeply flawed – the Obama administration has shamefully deported nearly 2 million people – but every asylum-seeker approaching the US border is asked if they fear returning to their home country. If they say yes, then by law they are given a “credible fear interview” to screen them for asylum.

Before Israel built the border fence, approximately 53,000 men, women and children had already arrived. Israel refuses to create a functioning system to hear their claims. They are currently being rounded up and jailed without the chance to explain why they left their homes. Persecution? Economic opportunity? Family reunification? The Israeli government would rather jail these individuals than allow them to tell their stories. Members of Knesset would rather call them “diseased” and “dirty,” as Jews once were, than see them as people.

The Knesset passed a law in 2013 that jails arriving asylum-seekers without trial or possibility of parole. After that they may stay in Israel – which is the government’s backhanded acknowledgment that they differ from unauthorized people from less dangerous countries, who are simply deported – but they remain in detention. In 2012 Israel granted asylum to six people. The year before that, eight. So far this year, two. From 2003-2013, Israel granted less than one percent of asylum claims.

This is shockingly low compared to the rest of the world. The grant rate for asylum claims across the European Union averages 31%, and in the United States it rose steadily over the past decade to 55% of all applicants. For asylum-seekers from Eritrea – one of the most brutal dictatorships in Africa and the largest source of Israel’s asylum-seekers – the U.S. grant rate is more than 80%.

Every nation struggles with how to keep out those they don’t want – sick people, poor people, terrorists. And yet countries as small as Israel and many less wealthy nations routinely take in thousands of asylum-seekers – most of them people of different faiths and races than the majority population.

Israel may believe that its rescue of Jews from around the world is enough – it has rescued so many Jewish refugees that its responsibility is fulfilled. That would be missing the point of the Refugee Convention: it is not to save those who are like you; rather, it is precisely the opposite. In the 1940’s, when Jews knocked on the doors of Switzerland, the U.S., and so many other countries that turned us away, it was because we were outsiders. We were foreign, unlike them, unwelcome. Of course we welcome our own family – but that does not excuse us from the mitzvah of welcoming the stranger.

What does it feel like to turn away a refugee who has just walked across the desert – the very same desert whose crossing we relive next week? It troubles the sleep of the Jewish soldiers who call the Hotline for Migrants and Refugees regularly, because they know that following orders to turn away frightened, desperate people is wrong. They know it the same way that Francis Foley, Paul Grueninger, and Captain Gustav Schröder knew it when they disobeyed orders and issued passports to Palestine, allowed border crossings into Switzerland, and tried to disembark passengers from the St. Louis, which is why all three are among the Righteous at Yad Vashem.

Israel, which invests millions in “hasbara” and longs for the world’s approval, could create a generous refugee policy and say that as a Jewish State, it is particularly sensitive to those fleeing persecution. Instead, the Prime Minister’s office last week continued to insist that the asylum-seekers – who have never had the chance to plead their case – are “infiltrators” and “illegal migrant workers,” not refugees.

At the heart of the Passover seder is “the telling.” It is time for the government of Israel to listen.


About the Author
Rachel B. Tiven is an American lawyer. From 2005-2013 she ran Immigration Equality, a national non-profit organization advocating for lesbian, gay, bisexual, transgender and HIV-positive immigrants and asylum-seekers.
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