Daniel Ben Abraham
The opposite of war is nuance

Egypt Must Accept Refugees at Rafah Per Int’l Law

Israel is not keeping Palestinians in an “open-air prison”, the whole world is, with a nonsensically global embargo on Palestinian refugees who otherwise may voluntarily wish to leave Gaza and seek asylum elsewhere. This Arab-pushed policy of not accepting Palestinian refugees, contrary to world’s policy of helping all other refugees relocate, oppresses the Palestinians by forcing them to stay in a conflict many may not wish to be part of. Without the freedom of Palestinians to leave Gaza, their leaders have no accountability, and civilians remain helpless pawns of external forces. But world’s dark, inexplicable, and backwards policy of forcibly keeping Palestinians in the conflict zone between Israel and Hamas does have a crack of sunlight: The Rafah border with Egypt.

Under International law, Egypt cannot turn away Palestinians who seek asylum and entry at its Rafah border with Gaza as refugees, temporarily or otherwise. Egypt’s refusal to do so, and instead, its building up of border fences to keep Palestinian refugees from seeking asylum, is illegal. Allowing Palestinians who wish to leave to do so can ease pressure off the conflict helping all parties involved.  

Egypt is a signatory to the United Nations Convention Relating to the Status of Refugees, adopted in 1951, with accession on May 22, 1981. Egypt is also bound by the Protocol Relating to the the Status of Refugees adopted in 1967, and numerous resolutions on refugees and asylum-seekers apply to Egypt, including General Assembly Resolution 2198 (XXI), and the UN Declaration on Territorial Asylum in 1967 (GA Res.1400 (XIV), 21 September 1959).

Palestinians are “refugees”, under Article 1A of the 1951 Convention Relating to the Status of Refugees, which defines a refugee as someone who, “is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.” Palestinians in Gaza have been dislocated, they are not in their country as there is no Palestinian state, they fear persecution, whether from Hamas or the consequences of the conflict, and are unable to avail themselves of the protections of Israel due to Israel’s limited resources and its ongoing conflict with Hamas. Regrettably to Israel, innocent Palestinians are caught in the middle of the conflict. And while some leaders in Israel may wish to relocate Palestinians for their own safety and well-being during this conflict, many in the world insist on keeping the Palestinians in harms way, and instead call for a ceasefire that would help Hamas re-arm and re-group to be able to cause more conflict. 

The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) has also admitted that the Palestinians are indeed refugees. It has defined refugees to include “The descendants of Palestine refugee males, including adopted children”, totaling “5.9 million Palestine refugees”, of which UNRWA says 1.7 million are in Gaza. 

The 1948 Universal Declaration of Human Rights provides that “everyone has the right to seek and enjoy in other countries asylum from persecution” (article 14), and as such, the Palestinians have that clear right, to seek asylum in Egypt. (Universal Declaration of Human Rights, GA Res. 217 A (III), 10 December 1948.)

Egypt may not discriminate against refugees because they are Palestinian or from Israel per Article 3 of the 1951 Convention, entitled “nondiscrimination”, which states, “The contracting states shall apply the provisions of this Convention to refugees without discrimination as to race, religion, or country of origin.”

At the Rafah Border, Egypt is bound by the principle of “non-refoulement” as defined in Article 33 of the 1951 Convention. Article 33 of the Convention, entitled “Prohibition of expulsion or return refoulement” states, “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This includes Egypt being prohibited by binding treaty from turning away Palestinian refugees seeking to leave Gaza and enter Egypt at Rafah fleeing danger from Hamas or the ongoing conflict. Whether a Palestinian’s political opinion is pro-Israel, or pro-Hamas, they are in danger from the circumstances of the conflict, even if Israel is trying its best to limit that danger to innocent civilians.

The French word “refoulement” refers to “faire reculer”, which in refugee law “à la fois l’éloignement du territoire et la non-admission à l’entrée.” (See D. Alland and C. Teitgen-Colly, Traité du droit d’asile (Paris: Presses Universitaires de France, 2002), 229) This translated, is “both removal from the territory and non-admission to entry”. Thus, Egypt under Article 33 is prohibited from denying admission to entry to Palestinians who show up at the Rafah border seeking asylum.

Because the Palestinian refugees are not being accepted anywhere else, Egypt turning away those seeking entry would constitute sending them back into the conflict zone with no other means of escape. As such, here, rejection at the Rafah border would automatically lead to return to the country where they fear persecution.

The Vienna Convention on the Law of Treaties says treaties must be interpreted in good faith. (Article 26 of the 1969 Vienna Convention on the Law of Treaties) As such, Egypt must allow entry and give asylum until it is determined whether Palestinians seeking asylum are deserving of asylum. Otherwise, Egypt would be denying the ability to determine their obligations under international law. 

Additionally, UNHCR has declared that “A State presented with an asylum request, at its borders or on its territory, has and retains the immediate refugee protection responsibilities relating to admission, at least on a temporary basis. This responsibility extends to the provision of basic reception conditions and includes access to fair and efficient asylum procedures.” Convention Plus Issues Paper submitted by UNHCR on addressing irregular secondary movements of refugees and asylum-seekers, FORUM/CG/SM/03, 11 March 2004.

Regardless what Israel is doing, Egypt has an obligation to allow entry to those Palestinians fleeing the conflict in Gaza and requesting asylum and entry into Egypt. Egypt may not even delay their entry to try to deter refugees, and must also allow them to stay once inside Egypt without penalty. Per Article 31, “refugees unlawfully in the country of refugee”, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Thus, even if Palestinians enter illegally into Egypt, Egypt’s obligations still stand under international law. 

This has nothing to do with whether Israel is expelling any Palestinians or not. It is solely about the rights and status of those Palestinians who voluntarily wish to leave Gaza, temporarily or permanently, and Egypt’s obligations to accept them. Egypt’s obligations are independent of any other aspect of the conflict or peace process. Freedom of movement for Palestinians may lessen the conflict and help the peace process, by not furthering an ideological “cause” at the expense of the individuals who wish to leave and no longer be human shields for Hamas. It is a common sense step, as any solution necessarily requires putting the interests of Palestinian individuals ahead of external agendas. 

Egypt also cannot blame Israel for Palestinian refugees wanting to leave Gaza, nor for its own obligations under international law. Arab states have refused asylum to Palestinians to continue the conflict against Israel with full knowledge that Hamas’ cause seeks genocide against Israel. Egypt is well aware Hamas is smuggling weapons into Gaza seeking Israel’s destruction. And, neither Egypt nor other Arab states have fulfilled their responsibilities of educating the Palestinians for peace, or promoting acceptance of Israel. Arab states have failed to act in the best interests of the Palestinian people, but instead furthered various versions of the Palestinian “cause” at the expense of the Palestinian people. Egypt is not only violating the rights of Palestinian asylum-seekers now by refusing them, but has been for years the conflict could have been lessened. Egypt should demand that the world assist it with resources, and that Jordan, Lebanon, Syria, Qatar, and Saudi Arabia also take in their fair share of Palestinian refugees who wish to leave Gaza, or else Egypt may have to take them all. Yet another reason Egypt should try even harder to get more hostages returned to end the conflict sooner.

It’s time we as a world, desiring to help, apply the same standard to Palestinian refugees that we do to all other refugees. Help them. Help the individuals seeking asylum. And, not force upon the Palestinians a genocidal “cause” at the expense of the men, women, and children who wish to leave the conflict zone. Maybe the first step to finally getting Palestinians to act in their own best interests, is for the world to do so.

About the Author
Daniel was born in Budapest, Hungary, to the grandchildren of Holocaust survivors, and grew up in New York City. Daniel obtained his Bachelor's degree from Penn State University, has a Juris Doctorate with a specialization in public international law. He is the author of several books and articles, including The PeaceMatrix™, about a theoretical new system for solving all human conflicts. Daniel's approaches to the challenges of anti-Semitism, terrorism, and Israeli and international peace and security combine understandings of psychology, philosophy, law, Judaism and spirituality, and metaphysics.
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