Israel is violating its obligations
Imprisoning migrants at the border, even if they haven't been recognized as refugees, contravenes international law.
The principle of "non-refoulement" – a central principle in refugee law, which has also been recognized in Israeli law – prohibits expelling someone to a place where there is a danger to his life or liberty. The principle applies to anyone who is subject to such danger, even if he hasn't been officially recognized (or has not yet been recognized) as a "refugee." From the moment someone tried to enter the borders of Israel, and claimed that if he is sent back to the place where he came from he is in danger, according to the principle of non-return it is forbidden to prevent his entry and to try to send him back there.
Between 2007 and 2011 Israel employed the principle of "hot return." Africans who were caught along the Israeli-Egyptian border, including those who were likely asylum seekers, were returned to Egypt without being able to submit a request for asylum in Israel or to claim that the principle of "non-return" applied to them. After it was revealed that several asylum seekers who were returned in this way were forced to return to Sudan, a petition was submitted to the High Court of Justice. During the proceedings, it turned out that after the revolution in Egypt, Israel had stopped sending asylum seekers back. In light of that, in 2011 the High Court ruled that the petition had become superfluous.
Former Supreme Court President Dorit Beinisch noted that if, in the future, Israel decides to resume the policy of coordinating the return with Egypt, the petitioners could file once again. But she said that the assumption was that if the policy of return is renewed, it would be done in accordance with the usual standards of international law – with suitable guarantees to ensure, with a high degree of certainty, the welfare of those being sent back.
Imprisoning migrants at the border fence, which may or may not be coordinated with the Egyptian authorities as was in the past, does not meet those standards. As mentioned above, a person should not be returned to a place where there is danger to his life or to his liberty. Based on this principle, a person who claims to be in danger cannot be rejected at the border without the claim being investigated. Returning him without carrying out such an investigation – as was also ruled by the European Human Rights Court – violates the principle of non-return. If countries are permitted to prevent asylum seekers from entering their territory without investigating claims for asylum, the entire concept of safeguarding refugees will be emptied of content.
In February, the European Human Rights Court ruled that Italy had violated its obligations when it sent back asylum seekers from Somalia and Eritrea, who had arrived on the open sea via Libya – both because Italy became responsible from the moment they knocked on its gates, and also due to the risk that Libya would send them back to the countries they had fled.
Even if the asylum seekers reached the Israeli border via a third country, this does not change Israel's obligation. In an article to be published soon, legal scholars Tally Kritzman-Amir and Thomas Spijkerboer point out that if a country refused to investigate the "non-return" claim of someone requesting asylum, the principle is likely to be violated directly – if the asylum seekers are in danger in the country from which they came to Israel, or indirectly – if there is a danger that they will be sent back to the country they fled. In the absence of guarantees that the status of the asylum seekers will be investigated in Egypt, and that they will not be returned to the place from which they came without a suitable investigation – by preventing their entry into Israel without investigating their claims, Israel is violating its obligations in the fields of human rights and the refugee convention.
When it comes to asylum seekers from Eritrea, it is widely accepted in Israel that they should not be sent back to their country, and that they get collective protection – which will now be denied them. Needless to say, both from an ethical and a legal point of view, the imprisonment of the asylum seekers cries out to the heavens.