The debate over Israel’s refugee policy is still raging as the number of Ukrainians forced to leave their country – mostly women, children and the elderly – has now passed the 4 million mark and is still rising. At issue is not only the legality, morality, and human compassion of keeping the country’s doors closed to those seeking a safe haven, but also the historical, cultural, religious and national factors that underlie the increasingly bitter disagreements. Throughout, very little, if any, attention has been given to the utter inadequacy of existing international and Israeli instruments designed to deal with displaced persons. These norms were adopted following the ravages of the Second World War. It’s high time for these international agreements to be updated to meet the exigencies of the 21st century, now in its third decade, and that Israel adjust its laws accordingly.
Israel was one of the initiators of the Convention Relating to the Status of Refugees, signed in Geneva in 1951. This United Nations multilateral treaty (which today has 146 signatories) defines who is a refugee and details their rights – along with the responsibilities of those who grant them asylum. At first, the Convention was meant to cover only European refugees from before 1951. But in 1967 a Protocol updated the Convention (with 147 signatories in 2020) that canceled the time and geographic limits imposed in the original Convention. The Protocol now covers all those who fit the definition of refugees, regardless of their origin and mandates the United Nations High Commission for Refugees to oversee the application of its guidelines on a worldwide basis (the most important being the provision of asylum, the possibility of naturalization, protection against expulsion, and prevention against forcible refoulement of refugees to their country of origin).
Both the Convention and the Protocol, however, are hopelessly outdated in two major respects. First, the definition of refugees does not cover new types of forced migrants, such as environmental refugees, those displaced against their will, or victims of civil wars. Second, the original treaties do not provide for any enforcement mechanism against offenders except verbal condemnation and public shaming (as in the cases of Syria, the Rohingya in Myanmar or the Uyghur in China). But the possibilities of approaching the International Court of Justice or imposing sanctions on recalcitrant states have not been explored to date.
This ambiguity wreaks havoc with the lives of millions, not only in Europe, but also in Africa, Asia, Central, and Latin America. It essentially gives every state a free hand to interpret the treaties as it sees fit, thus fomenting ethnic, religious, racial and national inequality in an increasingly tumultuous global setting. A special effort needs to be made to address these issues now.
Israel is among those states that have capitalized on the latitude inherent in the existing international treaties by passing a series of laws that make it increasingly difficult – if not impossible – for most groups of non-Jews to gain citizenship in the country. The first law passed to regulate Israeli citizenship is the Citizenship Law of 1952. According to this foundational bill, Israeli citizenship is granted to anyone who was in Israel at the time of the creation of the state, was born in the country, arrived in Israel in accordance with the Law of Return (1950), was adopted by an Israeli citizen, or was naturalized or granted Israeli citizenship by the Minister of the Interior. With very few exceptions, this law covers the rights of Jews but makes it difficult for anyone except a few hundreds of thousands of Arabs that remained after the establishment of the state (now known as the 1948 Palestinians) to gain citizenship.
To ensure that this distinction would be legally binding, a supplementary law, the Entry into Israel Law, was also legislated in 1952. This law regulates the entry of tourists, temporary residents and permanent residents into the country. In fact, it has been used mostly to oversee the terms of entry for foreign workers, with the bulk of the amendments adopted since the beginning of the present century designed to limit the stay of foreign workers to three years as temporary residents (with heavy penalties, including expulsion, for non-compliance). The bottom line has been that non-Jews, with perhaps the exception of a handful of spouses of Israeli citizens who have been subjected to endless interrogations for a period of up to five years, have been unable to become naturalized in the country.
The one major (and somewhat aberrant) deviation from this pattern occurred in 1967, after the annexation of East Jerusalem when most Palestinian Jerusalemites were granted permanent residency in the city. Their stay, however, has been closely monitored, and any absence beyond the municipal boundaries for over seven years has resulted in the termination of their residency status (known as “the silent transfer”). Their special status has come with certain rights (health care, Israeli identification cards, social services, participation in municipal elections), as well as constraints (no passports, no ability to participate in Israeli elections, limited mobility). They are, for all intents and purposes, foreigners in their own city.
To drive home this point, a third piece of legislation (The Citizenship and Entry into Israel Law: Temporary Order) was enacted in the summer of 2003 as a one-time measure that has been renewed annually for the past 19 years, most recently on March 10, 2022. Its purpose is to prevent family unification – and hence the granting of citizenship – to spouses of Israeli-Palestinian citizens for two ostensible reasons. The first is security – even though the threat to the safety of Israeli citizens from the frustration attendant upon the forced separation of families might be much greater than from the handful of citizens involved in violence against Israelis who had benefited from family unification. The second is avowedly demographic: a fear of swelling the ranks of Arabs in the state. Minister of Interior Ayelet Shaked justified the reintroduction of the law after it failed to pass last summer as a “Zionist act” which, in her mind, warranted the mobilization of the right-wing opposition to offset the strong criticism emanating from segments of the coalition.
Whatever one’s position on this question, it is difficult to ignore the fact that Israel has conducted a progressively more exclusive, particularly anti-Arab, immigration policy in recent years. It is therefore hardly surprising that it is less than eager to allow even a small number of non-Jewish Ukrainian refugees into the country – let alone relatives of Ethiopian-Israelis already residing in the country. This approach does not pass muster in large segments of the population. It doesn’t even conform to the old rule of the international Convention on Refugees that it helped to draft 70 years ago.
Instead of building a cocoon around an indefensible, inhuman and patently un-Jewish policy that only accentuates Israel’s folly and growing immorality, the country’s leaders have nothing to lose by pressing for a stronger and more relevant international accord on refugees. Such an accord would punish any country mistreating those seeking asylum. That might be the step needed to take responsibility on the home front as well.