Israel's Top Court Rules Threat of Female Genital Mutilation Is Basis for Granting Asylum

In first-ever ruling, justices order state to grant asylum status to Ivory Coast family whose daughters face threat of mutilation, citing failed policy of finding a 'safe' place elsewhere in their homeland

Lee Yaron
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File photo: An asylum seeker in Tel Aviv, January 2019.
File photo: An asylum seeker in Tel Aviv, January 2019.Credit: Ilan Assayag
Lee Yaron

Israel's High Court of Justice set a precedent Sunday in asylum-seeker cases, after ordering the state to give refugee status to a family from the Ivory Coast for fear that their daughters could face genital mutilation if forced to return to their homeland.

Justices Daphne Erez-Barak and Ofer Grosskopf granted the petition over the opposition of Justice Yosef Elron.

In their majority opinion the justices ruled that genital mutilation can be seen as a form of persecution for which a woman is deserving of refugee status on the basis of international conventions.

Interior Minister Arye Dery said Monday he intends to order Attorney General Avichai Mendelblit to ask for a rehearing, arguing the court’s ruling “could have very harsh consequences and totally change Israel’s immigration policy.”

Now, Dery argues, “many women from Africa can come and we will have to take them in … this is unacceptable and I intend to fight it. We can’t change the existing immigration policy.”

The World Health Organization defines this practice as involving the partial or total removal of external female genitalia or other injury to female organs for non-medical reasons.

For its part, the state had said that it would grant the family a humanitarian visa and that a ruling by the court was unnecessary, but the justices opted to set a precedent due to what they saw as the principle underlying the case. The minority opinion found for granting of the humanitarian status visa, saying it would supersede any need to discuss refugee status.

The parents in the case are descendants of a Muslim tribe from the northern Ivory Coast who entered Israel illegally 15 years ago. Their two Israeli-born daughters are aged 7 and 14. Statistics from the Ivory Coast from 2013 show that in this particular region, 87 percent of women undergo genital mutilation. The girls’ mother underwent the procedure before she fled, as did her niece.

Human rights lawyers Michal Pomerantz and Asaf Weitzen, who are representing the family, said the ruling may open the door to granting protection to other asylum seekers, particularly women and children, who have fled persecution in their native lands.

The Interior Ministry has previously said in similar cases that foreign nationals under threat of violence must prove that they cannot find protection in another part of their homeland. Sunday’s ruling places the burden of proof on the ministry, which must show that a family in such a predicament would have access to a reasonable and safer place of residence, in their native countries.

Indeed, the state’s main argument against granting asylum in this case had been that the family could move to another part of the Ivory Coast, where the rates of genital mutilation are lower and the risk less serious. However, the majority opinion was that the state did not meet its burden of proof and show that the girls would indeed be safe elsewhere in the country, since their potential persecutors would likely be their own relatives, who could probably reach them anywhere. The two justices asserted that the state had failed to prove that the family would be able to live for an extended period in another part of the Ivory Coast.

Elron, the dissenting justice, wrote that “the risk of facing female genital mutilation could constitute a rationale for refugee status in appropriate instances,” but stressed that this doesn't mean that such status needs to be given across the board, and that “each case needs to be examined individually to see whether the fears are justified.”

Pomerantz and Weitzen expressed satisfaction with the precedent-setting decision, which they said in a statement “clarifies the fact that requests for asylum made on the basis of fear of possible genital mutilation must be examined, and which for the first time recognizes asylum seekers, particularly women who fear persecution and forced mutilation, as refugees.”

"We must now ensure," the statement said, "that the Interior Ministry implements the ruling and meets the expectation that asylum requests made on similar grounds that were rejected in the past will be reexamined.”

Jonathan Lis and Aaron Rabinowitz contributed to this report.

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