April 29, 2007

The Jewish instinct obligates us to free these fugitives from genocide and give them full asylum. Holocaust Remembrance Day is behind us, but it is incumbent on us to focus on the genocide taking place in the Sudan. We need to think about the 160 men and women, refugees of the genocide in Darfur, now sitting in Israeli jails. (Many other detainees were released after alternative arrangements were made for them, thanks to Kav LaOved Worker’s Hotline and the Kibbutz Movement.)

How did refugees running for their lives end up in our jails, when jails are for dangerous criminals? The answer is complicated.

A few hundred refugees from Darfur reached Israel, via Egypt, in their search for asylum. At first authorities used the prohibitions against illegal entry into Israel to keep them out. But the law allows for judicial review, which gives the courts discretion to release the refugees from jail.

Because of that, authorities began using a different law, one to prevent infiltration. This approach permits the deportation of those infiltrating from enemy countries and contains no recourse for judicial review. The High Court of Justice has been petitioned on this matter and will soon rule on the legal aspect.

But a larger issue remains: Is it Israel’s duty, as a Jewish state, to provide asylum to war refugees?

Israel signed two covenants that recognize the right of entry for political refugees. These were in response to the refusal of the enlightened world to open its doors to Jewish refugees during the Nazi era. In practice, Israel performs its international duty for refugees arriving at its shores only in a minuscule number of cases.

And what about refugees fleeing enemy countries? Israel has determined that the covenants do not apply to them. The UN has not explicitly recognized this demand, but it has helped to find such refugees asylum elsewhere.

The third-country alternative was found for Iraqi pilots (and other refugees from dictatorial Arab regimes) who fled to Israel because we accepted the principle that these refugees must not be returned to the places where they face danger. A committee of experts that I was privileged to head, which included four deans of law schools and three Israel Prize laureates, debated this matter. It proposed that the right to political asylum be defined by law, that the term “refugee” be broadened to include those fleeing from starvation or war; that such refugees be allowed to stay in Israel and be granted immigration rights (limited by quotas for refugees from enemy countries) “with each case… judged on its own merits, in accordance with its circumstances and… security considerations.”

The committee proposed that such refugees be granted the same rights as foreign workers and that they be issued travel (laissez-passer) documents while they continue to live Israel. However, our recommendations were never even discussed at the Ministry of Justice, and for all intents and purposes they were discarded. The Knesset’s Interior Committee held just one debate on them and made no decision. Yet the plight of the Darfur refugees underscores the importance of accepting the recommendations of the committee.

These are people fleeing for their lives. A new agreement between Sudan and the UN regarding the positioning of an international force in Darfur may, perhaps, put an end to the genocide being carried out there, undisturbed, for so long; but if, heaven forbid, the massacres should continue, our duty to provide legal status and human rights to those fleeing from them would continue too.

But what if we are inundated with refugees from Sudan, you may ask? The answer is that at this point we are not talking about a mass immigration, and the duty we have is absolute. However, should the numbers increase to levels we can no longer deal with, Israel would have to foster an international arrangement to distribute the burden of absorption among a number of different countries.

Israel is no ordinary state. It is a Jewish state. That is not a figure of speech: We remember how the gates of freedom were closed to our parents and grandparents; we remember the White Paper, which served as a death sentence to many tens of thousands of our people; we remember the Evian Conference, which convened on the eve of the Holocaust and officially resolved to do nothing for the Jewish refugees; we remember the fate of the Saint Louis, the ship filled with Jewish refugees fleeing from the Nazis that the United States sent back to Germany just a few weeks before the extermination was to begin.

Even if we wanted to, we could never erase these horrors from our memories and national consciousness. And while nothing should be compared to the crimes of the Nazis, the Jewish instinct obligates us to free the refugees – fugitives from genocide – from their jail cells and give them full asylum.

That is what Menachem Begin did immediately after he was elected prime minister, when he opened Israel’s gates to the boat people from Vietnam and, in this respect, showed us the way. This is the way of Israel, which maintains its right to defend itself against its enemies but, at the same time, never forgets its humane mission and the universal lessons of the Holocaust.

(Originally appeared in The Jerusalem Post)

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Jason Harris

Jason Harris

Executive Director

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