Between sovereign states, good fences don’t necessarily make for good neighbours

Israeli Prime Minister Benjamin Netanyahu announced this week that he intends to expedite the construction of his country’s contentious security barrier. Right, you’re probably thinking, that’s old news. Israel has been building the wall in the West Bank for eight years now. That’s not the barrier I’m referring to though. I’m talking about the proposed 266-km fence which Israel plans to start building in the coming weeks along its border with Egypt. Its primary purpose, according to Israeli government sources: to keep out African asylum-seekers .[1]

There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule percentage (less than 1%) of claimants have been granted refugee status; the rest have either been issued conditional visas, renewable every three months, or are held in detention facilities. Israel has adopted a number of strategies aimed at deterring incoming asylum-seekers, and suggestions of building a wall along the border with Egypt were first discussed publicly in 2007.

The proposed barrier is wrong for all sorts of reasons. It’s wrong because it will somehow manage to give Israel, with its 1017 km of land borders, roughly 1419 km of highly-securitized border fences designed to seal it off from its neighbours (whether they be at war or at peace), causing the country to increasingly resemble a fortified ghetto.[2] It’s wrong because a country that was founded by and for refugees should not spend hundreds of millions of dollars building doors for the sole purpose of slamming them in the faces of other refugees in desperate need of assistance.  It’s wrong because when Netanyahu claims the barrier is necessary to preserve Israel’s “Jewish and democratic character”, he tacitly reveals that the term is being used to mask nothing more than a concern for Israel’s ethnic composition.

But is the barrier illegal? There is precedent suggesting that it is not. In its ruling on the West Bank separation barrier, the International Court of Justice suggests that had the barrier been built within sovereign Israeli territory there would be no basis for a legal challenge.[3] This determination is explicitly made in the Israeli Supreme Court’s landmark ruling on that barrier.[4] And so, the act of erecting a border fence would not in and of itself seem to fall outside the legitimate exercise of state sovereignty. Of the dozens of separation barriers that have been or are being constructed around the world, from India to Saudi Arabia to the United States, I have not seen any successfully challenged on the basis of international law. Moreover, the government of Egypt has itself stated that it has no objections to the construction of the barrier, so long as it is built on Israeli territory.

There is, however, another element that must be considered when assessing the legality of the separation barrier. And to do so, we are required to look as far away as Australia. Australia takes one of the toughest stances in the world on illegal immigration; in 2001, it implemented a controversial policy (since suspended) called Pacific Solution designed to prevent asylum-seekers from lodging refugee claims by diverting them to islands that had been excised from Australia’s migration zone. As these claimants were not – at least formally – in Australian territory, Australia claimed that it was not obligated under the UN Convention Relating to the Status of Refugees (Refugee Convention) to protect them or even hear their claims, and that it was free to deport them to third countries.

A report prepared by A Just Australia and Oxfam argues compellingly that Pacific Solution does in fact violate Australia’s treaty obligations under the Refugee Convention by ignoring the principles of asylum and non-refoulement (the obligation not to expel or return refugees or claimants to places where they are likely to face persecution). Citing an article from the International Journal of Refugee Law, the report states:

[…] in Australia “non-refoulement has come to mean non-rejection at the border.” However, while refugees who were placed on Nauru and Manus Island may not have been rejected at the border, the fact that many were ultimately sent back to dangerous situations where they faced persecution falls under the category of refoulement.[5]

Moreover, the report notes, Pacific Solution “[denied] asylum-seekers who are clearly traveling to Australia […] the right to claim asylum in Australia.”[6] This is problematic, because “it [essentially says that] you cannot seek asylum here in Australia. […] You can’t physically exclude asylum-seekers getting into your territory and say that you’re complying with the [Refugee Convention].”[7] While not admitting that the policy was contrary to international law, government members have since acknowledged that Pacific Solution “tarnished Australia’s international human rights reputation.”

Israel, like Australia, is a party to the Refugee Convention. In fact, Israel was one of the Convention’s leading proponents when it was signed in 1951. I would argue that Israel, like Australia, has a general obligation to allow asylum-seekers wishing to apply for refugee protection on its territory to do so, and further, that forcing claimants at the border to turn back to Egypt violates the principle of non-refoulement. It is true that, unlike Pacific Solution, the proposed barrier is a passive rather than active means of exclusion; however, its consequences for asylum-seekers are virtually the same. While countries have the legal right to build walls to protect themselves from terrorism, smuggling, or illegal entrance by economic migrants, building a wall primarily to prevent asylum-seekers from lodging refugee claims certainly violates the spirit (if perhaps not the letter) of the Refugee Convention and customary international law.

Israel, like many other countries in the region and in the world, is dealing with a serious refugee crisis, and the current trends are not sustainable. It needs to work with the international community to find solutions that fit within an appropriate legal and normative framework. Building a wall designed to altogether seal the border to asylum-seekers is not one of them.

Daniel Haboucha interned as a Claims Coordinator at the African Refugee Development Center in Tel Aviv, Israel during the summer of 2010.


[2] According to the CIA’s World Factbook (, Israel’s border with Egypt is 266 km; with Gaza 51 km; with Jordan 238 km; with Lebanon 79 km; with Syria 76 km; and with the West Bank 307 km. According to B’tselem (, the length of Israel’s West Bank separation barrier is 709 km, due to its frequent incisions into the West Bank.

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136 (ICJ) at para. 68.

[4] Beit Sourik Village Council v. The Government of Israel (2004) HCJ 2056/04 (Beit Sourik) at para. 10.

[5] Bem, Kazimierz et al. “A Price Too High – the cost of Australia’s approach to asylum seekers” (August 2007) at p. 45. Retrieved from

[6] Ibid. at p. 46.

[7] Ibid. citing Mitchell and Henry.

Daniel Haboucha Daniel Haboucha is a fourth-year law student at McGill, with interests in international humanitarian and human rights law. A native Montrealer, Daniel completed his undergraduate degree in McGill’s integrated Arts and Science program while serving as a reserve infantry soldier in the Canadian Forces.

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4 Responses to “Between sovereign states, good fences don’t necessarily make for good neighbours”

  1. Gal Sion says:

    Hi Daniel,

    I enjoyed reading your article, although I had to disagree with you on some of the points you raised.

    First I have to state that the individual and collective life stories of asylum seekers are many times really sad and touching, and that it is very important and virtues to help them rebuild their lives and heal the wounds of the past when their asylum requests are valid.

    You stated that the primary purpose of the future barrier is to block asylum seekers and even went further and provided a link as reference. Well, I looked into the link and found only the opposite. That prime minister Netanyahu said inter alia that:

    “Israel will remain open to war refugees, but we cannot allow thousands of illegal workers to infiltrate into Israel via the southern border and flood our country”.

    Some one as knolegable as you must be aware of the fact that most African asylum seekers do not qualify for refugee status, but are only ordinary people who try to immigrate to a “better” and more developed society based on economic considerations. Just like Mexicans who immigrate (or infiltrate) to the US. Israel is not under an obligation to let illegal immigrants through it’s borders. Furthermore, some of the applicants are escaped criminals or members of armed groups like the MASSOB in Nigeria’s Delta state who fled their countries to avoid judgment. Israel practically have no way to know who is who before they infiltrate and get caught by security personnel, and untill they do get caught they pose a threat to civil order and security.

    There are serius security considerations for building this barrier. Yes, in a utopian wold one would have no need for armies or borders, but unfortunately ours is not a utopian wolrd yet, hence these security considerations must be taken seriously.
    For example, there’s live and active terror activity in Sinai (the peninsula just across the broder) and the barrier could help block terrorist infiltrators and smugglers:

    There is also the drugs smuggling industry from Sinai to Israel through that open border. See the bottom of this article for an example:

    Inspite of all these dangers and contingencies Israel never stopped accepting asylum seekers:

    “Israel continues to receive and accept asylum-seekers, the majority of whom are of sub-Saharan African origin. Some 1,000 persons per month cross the Egypt-Israel Sinai border in an irregular manner. ”

    But in order to continue and help asylum seekers, Israel first has to take protective measures to insure that it has control over it’s borders. There’s a simple technology that can help ease your worries, it is called a border pass, like gate’s and terminals. Legal iimigrants and asylum seekers could enter the country through the accepted passages just like tourists. Israel has nothing against legitimate asylum seekers, otherwise it would have never been granting asylum status to several Muslim Iraqi citizents for example.

    In addition, most sudanese asylum seekers are no more refugees as of Southern Sudan’s recent independence:,_2011

    So apparently the barrier is not ment to block asylum seekers, as the Israeli Prime minister himself stated, but to allow Israel to keep with it’s international obligations while executing it’s right to protect it’s sovereingty and the safety of it’s citizents. bottom line, Those coming to apply for asylum status legaly would have no problem entering through the border terminals.

    Last but not least, we must not forget that the country through which these applicants and illegal infiltrators cross in to Israel is Egypt which is also a member of UNHCR. Unfortunately, the Egyptian authorities choose to ignore their international responsibilities and worse, by allowing (or instructing?) their security forces in Sinai to harass the asylum seekers in such a way that will cause them to flee straight to Israel:

    Hence the focus should be put on pressuring Egypt to comply with International Law and treat the asylum seekers according to it’s international obligations instead of shooing them to Israel.


    Gal Sion-
    Teaching assistant in Public international law, Haifa University.
    Former volunteer in the Jerusalem office of UNHCR.

  2. Juliet K says:

    Hello Daniel,

    I would like to emphasize some of the points brought up by Gal, as I completely agree with him, and I speak from personal experience. At the time of the first significant wave of refugees who came across the border to Israel, in the spring of 2007, I happened to be working with the MFO (Multinational Force and Observers), an international privet (non UN) peacekeeping force base in Sinai, which is funded by the US, Egypt and Israel and has a mandate to observe the Israeli- Egyptian border and make sure that the peace agreement between the two states is not breached in any way.
    First of all, I’d like to make clear the fact that what is going on near the border is not simply harassment- the Batmaz, the armed force guarding the border area (they are not military), sometimes shoot to kill on sight. It is true that a lot of people who came to Israel at the time did so in despair and out of a great fear, and Israel did not turn them down. I have watched IDF soldiers carry refugee children in their arms after a grueling walk in the dessert for days, I saw them reunite children with their families, I heard of military ambulances going to rescue fatigued refugees stranded in the dessert in the middle of the night after a refugee arrived at a military base.
    I have to say, that as far as I heard, the cooperation with the Egyptian Military was decent, but you have to keep in mind that they aren’t the ones who are on site, at the border. It was exactly because of the humane treatment that the refugees received from the IDF that the real problems started- after realizing that they will not be shot by Israeli soldiers, and after hearing that refugees are excepted, a lot of people, primarily young men, came to Israel under the cover of being a refugee, but in fact they are illegal workers. This causes a great deal of problems. First, this little country- the size of New Jersey, is flooded by thousands of people who work illegally, something Israel has no resources to deal with, and although it’s a problem on its own, you have to remember that we usually have no idea who these people are- they often burn their ID papers so there will be no telling whether they are refugees or not. As Gal has stated, some of these people pose threat to society. Secondly, the young men who arrive here alone, with no family to take care of and no real need in refuge, form socially dangerous groups- they are bored, they are far from home and they sometimes get violent. I have a deep sympathy in my heart for people interested in a better life, but the fact is that in the town my parents live in, which is flooded by such young men because of its proximity to the dead sea (which provides countless opportunities for illegal employment in the hotel industry) there have been reported quite a few attacks of sexual nature, on young girls as well. I’m not claiming that these men are inherently bad or dangerous because of who they are and where they came from, but because of how they came here. The social situation created by the circumstances is a fertile ground for such problems, and that’s another reason why the flow of people into the country must be regulated. Finally, one simple point, which you stated yourself- every country is legally entitled to protect its sovereignty and its borders, as widely recognized both in diplomatic circles, among politicians and by international law provisions, as well as various covenants. Israel is doing what is necessary, while breaching no law, and frankly- by following an example of many other governments who took advantage of their right to reinforce their border line, just as you have mentioned : the US built a tactic fence along a part of its border with Mexico in order to keep illegal immigrants out, Spain put up a fence in order to stop illegal immigration from the Sahara and Morocco, Saudi Arabia built a 400 km long fence on its border with Yemen and a 900 km long fence along its border with Iraq- and there are many more Examples. All of there have nothing to do with security, and everything to do with illegal immigrants.
    And let us not forget the drug smuggling, the women trade, and most important- the terrorist threat. There have been countless reports of Islamic Jihad groups trying to cross the border into Israel in order to kill innocent people. Regardless of the main reason for building the fence, as proclaimed by the government (which is to stop illegal immigrants, not refuge seekers), it’s a valid reason to have it up as soon as possible. Need I remind the terror attack in Taba (a border crossing between Israel and Egypt) in 2004?
    I believe that Israel and Egypt are actually making an effort to be good neighbors, and I think they usually succeed, but even with the best intentions both sides recognize that the control over Sinai is not as good as both sides would have liked it to be. I don’t believe that building the fence will harm Israel’s relationship with Egypt, and there is no reason why the cooperation existing will not continue (depending on the new Egyptian government, of course).The most important thing, as stated by Gal, there is no intention on Israel’s side to stop excepting refuge seekers and treating them humanly just as before- the purpose is to regulate the flow of people and to keep out illegal workers, rather than genuine refugees, who constitute quite a small portion of the people crossing the border in recent years . There is nothing illegal, immoral or unpractical about that fence, and as far as I know there has been no protest on the Egyptian side. Israel will continue being a democratic and humane country which accepts those in real need, with a fence or without it.

  3. Daniel Haboucha says:

    Thank you, Gal and Juliet, for your insightful comments. I think you both raise important and interesting points, and I am happy for the opportunity to further explore the subject.

    First, I want to respectfully dispute the assumption you both make that the large majority of asylum-seekers are actually economic migrants with spurious claims to refugee status. This view is widespread in Israel, for example in the way the terms “asylum-seeker” and “migrant worker” are often used interchangeably in the media, and in statements from Interior Minister Eli Yishai (the man responsible for the asylum process!) that 99.9% of asylum seekers do not have valid claims. But the numbers I’ve seen indicate otherwise. For example, in 2009 the figures provided to UNHCR by the Israeli government indicated that more than 90% of claimants from Sudan and Eritrea qualified as genuine refugees (the latter jointly comprise 85% of all asylum-seekers in Israel). [Source: And yet, in spite of this, Israel only granted refugee status to THREE claimants in the years 2008-2009. Regardless of the numbers, the point (which you’ve both acknowledged) is that there are a lot of genuine refugees coming to Israel in need of and deserving protection, which can be challenging to provide. The examples Juliet discussed of mistreatment in Egypt help emphasize why allowing such people to receive protection in Israel is so important.

    I agree with you both that Israel should (and must) be able to regulate the flow of migrants into its territory. However, I would argue that in its attempt to do so, building a wall does not strike the appropriate balance between expedience and compliance with humanitarian obligations. Complying with the Refugee Convention clearly implies allowing asylum-seekers who reach Israel to lodge a claim for asylum there, and I think that should be the starting point for this discussion.

    You have both argued that it is possible for Israel to continue to admit refugees after the wall is built, by allowing legal entry at regulated border crossings. I am not at all convinced that this is likely, at least on the scale that is needed. Virtually all of the asylum-seekers currently in Israel have entered the country illegally – I think if they had had the option of entering legally, they would have do so, so this in itself indicates the unavailability of such options. Barriers to legal entry include domestic opposition (notwithstanding certain noncommittal statements from Netanyahu that Israel will remain open to refugees, if the interior minister believes that 99.9% of refugee claimants are frauds, how many do you expect him to let into the country?) and the Batmaz forces, who, as Juliet noted, often shoot on sight (the presence of a border well, with a limited number of crossing points, will make it all but impossible for migrants to evade them). Contrary to Gal’s suggestion, I don’t think shooting people trying to leave Egypt can be considered “shooing asylum-seekers into Israel.”

    You have both pointed out the importance of security considerations. While I do not wish to trivialize these, I don’t think they are quite as compelling as you have argued. The threat of terrorism on the Israel-Egypt border is not new, but has existed since 1948. And yet, I have not heard of any successful terrorist attacks being perpetrated by infiltrators from Egypt since the 1950s (the bombing referred to by Juliet took place on Egyptian territory). The IDF patrols the area and has thwarted all attempted attacks despite the absence of a wall; in contrast, there have been far more terrorist infiltrations along Israel’s other borders, which are fenced. A wall, like the current system of enforcement, is not airtight. And so, I am skeptical (to say the least) that the reason the wall is being built at this particular point in time is to counter terrorism (an old, under-control phenomenon), as opposed to the influx of asylum-seekers (a new, not-yet-under-control phenomenon, the very entry of whom poses significant challenges to Israeli society). (As Gal correctly pointed out, I did not properly substantiate my contention that asylum-seekers are the primary reason for the wall’s construction in the article, but the faulty reference has now been corrected – thanks for pointing it out.)

    Also on the subject of security, it should be noted that incoming asylum-seekers are detained by the IDF pending a security screening (sometimes they also have to prove that they will be able to find a place to live before they get released).

    I agree with you that international pressure should be applied on Egypt to induce its further compliance with the Refugee Convention, but Israel cannot and should not expect Egypt to bear the entirety of the burden on its own. Under the Convention, refugees who reach Israel have the right to seek asylum there, and Israel needs to work together with the international community toward an appropriate solution – one which does not impose an unmanageable burden on Israeli society, but which also ensures that refugees’ rights are properly protected. I believe that the best way to do that, far from building a wall to keep the problem out of sight, is to tackle the situation head-on. The Interior Ministry’s RSD unit should be bolstered to reduce the (currently massive) backlog of cases and enable the speedy deportation of rejected claimants; access to judicial institutions should be improved, to ensure a fair, consistent, and transparent asylum process; and, in compliance with court orders and international law, refugees must be granted the unqualified right to work, in order to keep them from being a burden on the state. NGOs have played a continue to play an important and necessary role in helping refugees integrate into Israeli society, and there are countless moving success stories. Most of all, stories such as those related by Juliet regarding the inspiring compassion shown by many Israelis to these newcomers gives me hope that the situation will continue to improve.

  4. Gal Sion says:

    Thank you for your reply Daniel, I see our discussion as a great opportunity to learn new things, but I still disagree with you on some of the points as the materials I found show a different picture than the one you presented here.

    If I had to summarize my main argument in just a few words i’d write that-
    Building a border barrier can’t bee seen as illegal per se under refugee law. The factor that will determine the legality of the Israeli actions and policy would be based on the way the state will treat asylum seekers after the barrier would be built. If it will arbitrarily reject them, than it would count as a violation, but if it will continue to accept them and examine their applications than there would be no violation of the law here. Hence, the question of barrier no barrier is non relevant here.

    I have to insist that the majority of African infiltrators to Israel are indeed merely economic migrants, and not genuine asylum seekers who have the right for refugee status. Unfortunately your link does not work, but the Israeli gov’s figures I found back my claim and not yours, although you argued on the basis of the same data source. The sixth paragraph in the following communicate published by the Israeli Ministry of foreign affaires states inter alia that:

    “from an in-depth analysis of 3,500 infiltrators, it became clear that only two of them might potentially receive refugee status; all of the others are labor infiltrators. There is a considerable industry that brings to Israel tens of thousands of labor migrants from Africa under the guise of “refugees.” ”

    This backs my argument that most of the infiltrators are not legitimate asylum seekers, hence your assumption that most of them are asylum seekers appears to be erroneous.

    But nontheless, I totally agree with you that the number is not the issue here, although it points to a real problem of illegal infiltration through that border to Israel, a problem that can be solved by the errection of a border barrier.

    But as I argued above, I don’t see how this will prevent legitimate asylum seekers from lodging their claims in Israel. They could lodge their claims at the border terminal legally instead of being forced to violate the Israeli law by infiltration. You pointed out that most of the asylum seekers currently in Israel have entered illegally, and that if they had the option of entering legally they would have done so. That’s great, it shows that the errection of the barrier would be a win win situation. Israel on its part will be able to monitor the access to its territory, you allready agreed that Israel must be able to do so. The legitimate asylum seekers on their parts will be able to apply legally instead of infiltrating like theives because they don’t have a choice. You see, it is easier to reach a terminal when there’s an actual fence, I also assume that the construction of one will require the setting of more gates and terminals for practical reasons. Plus, a fence will deter the illegal immigrants and so it would be much easier for Israel to help those in real need. It will definately shorten the time to inspect individual applications of asylum seekers and it would be easier for the government to allocate the right resources to help the real refugees instead of wasting so much on catching and dealing with illegal immigrants.

    Bottom line, you can see the IDF’s patrols across the border as a less effective security barrier than the one to be built. If what you say would have been true, and Israel would have wanted to prevent legitimate asylum seekers from lodging their applications at UNHCR in Israel, why than do the Israeli patrols escort asylum seekers in to Israel and provide them with food and shelter so they can lodge their applications for refugee status? if what you argue would have been true, I would expect this “less effective” border barrier to deny them entrance to Israel and leave them in Sinai.

    As for security, it is true Daniel that the threat of terror is not new to Israel. But what’s new are the capabillities of today’s terror organizations and Iran’s sponsored terror hive in the area known as Gaza. Hamas’s reign in that area is relatively new and Israel has not yet managed to find responces to all threats, the construction of the border barrier is a suiting response for some of them, and yes you are right, it should have been built long ago, as the security reasosn to build it where here for some time, but that’s a question of the Israeli government’s responsibillity toward it’s own citizens and not of international law. See paragraph 3 as a reference for the relatively new security threats in the region, it is a study case of how easy it is to pass from Gaza to Sinai, and of the fact that Hamas terrorists do it in practice:

    We have no need to refer to suicide bombings here in order to justify the barrier, weapon and drugs smuglling are enough to justify the errection of this barrier. Although as Juliet rightly mentioned, such incidents do tend to take place once in a while in Sinai which is right across the border:

    So as I argued above and based on the facts, I don’t see how this barrier will conflict with Israel’s international obligations under refugee laws. But even if such a conflict would have existed, that wouldn’t mean that the construction would be illegal.

    For example, Israel could build the barrier under a state of necessity which is based on customary law, codified in art. 25 of the ILC’s draft articles on state responsibility:

    The necessity arrises from the arms and drugs smuggling and terror threats coming from across the border.

    In addition, Israel is involved in an ongoing armed conflict with Hamas, in case the construction of the barrier would have been illegal under refugee law, which it isn’t, it could still be justified under the law of armed conflicts (IHL). Even the most ardent supporters, among legal scholars, of the application of human rights norms (HR) in armed conflicts agree that IHL is lex specialis while HR is lex generalis. In this case, Israel has a general right to accept refugees but has a specific right to build the fence for defece against attacks, even if it will pervent some asylum seekers from entering the country. Remember that IHL even permits civilian casualties as collateral damage as long as the military action is proportional (See art. 51(5)(b) to the first additional protocol to the Geneva convention, this art. is also customary law), meaning that the harm to civilian life and health will not be excessive in relation to the direct military advantage anticipated. Due to the option of applying for refugee status through the legal border passes, I belive that this would be proportional to say the least.


    As for you last paragraph, I totaly agree that the international community should deal with the problems of refugees together and share the burden, but unfortunately this is not the case. In this case, Israel was left to deal with this regional problem alone while in the background we find out that EU countries like Itali actually bribed African leaders so that they will pervent their citizents from trying to flee to Europe.

    For the deal between Italy and Libiya See paragraph 5 on:

    For more about European violations of international refugee law See:

    Remember that the population in Israel is approximately 7 million, hence for such a small country it is critical for the burden to be shared when it comes to refugees. Let’s hope this will change. At least now most sudaneese asylum seekers are no longer refugees as they have an independent country of their own.


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