Immigration and Refugee Law
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 .
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. 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. This determination is explicitly made in the Israeli Supreme Court’s landmark ruling on that barrier. 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.
Moreover, the report notes, Pacific Solution “[denied] asylum-seekers who are clearly traveling to Australia […] the right to claim asylum in Australia.” 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].” 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.
 According to the CIA’s World Factbook (https://www.cia.gov/library/publications/the-world-factbook/geos/is.html), 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 (http://www.btselem.org/english/Separation_Barrier/Statistics.asp), the length of Israel’s West Bank separation barrier is 709 km, due to its frequent incisions into the West Bank.
 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.
 Beit Sourik Village Council v. The Government of Israel (2004) HCJ 2056/04 (Beit Sourik) at para. 10.
 Bem, Kazimierz et al. “A Price Too High – the cost of Australia’s approach to asylum seekers” (August 2007) at p. 45. Retrieved from http://www.ajustaustralia.com/resource.php?act=attache&id=213.
 Ibid. at p. 46.
 Ibid. citing Mitchell and Henry.