Deporting Eritreans to a Third Country Will Not Absolve Israel of Responsibility

The agreement with an African country to take in Eritrean migrants only emphasizes the need for the High Court of Justice to overturn the law that allows imprisonment of asylum seekers.

Aeyal Gross
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Like a magician pulling a rabbit out of his hat, the state's representative pulled out a new claim Sunday in the High Court of Justice during the hearing on the petition against the "Infiltration Law." The state said Israel had reached an agreement with an African country to take in the Eritrean citizens who have arrived in Israel. This claim, one that was apparently  unknown to the Foreign Ministry, does not lessen the fact that the  law being discussed by the High Court needs to be overturned.

The law allows the detention of asylum seekers for at least three years, and some 2,000 men, women and children have been detained under the auspices of the law; some of them for a year already. Making it a crime to be a refugee undermines the principles of the 1951 Convention relating to the Status of Refugees and pushes the State of Israel more than 60 years back in time.

The attempt to derail the discussion from the issue of the law's flaws ought to fail. We must also be worried by what State Prosecutor Yochi Gnessin said that the state is expected to reject almost 100 percent of the asylum requests of those from Eritrea since they are based on [army] desertion or illegal departure from the country. This figure is striking considering that around the world the percentage of Eritrean refugees receiving refugee status is about 74 percent.

The instructions of the United Nations High Commissioner for Refugees state that the punishment for desertion or dodging military service in Eritrea – which can include torture and summary execution without trial – reaches the level of persecution within the framework of the refugee covenant. The instructions also point to the unlimited period of military service that exists in Eritrea, and the fact that this is in reality exploitation of draftees for forced labor. Given this, in Britain it has been ruled that leaving Eritrea illegally could bring about a danger of significant persecution upon return, and is therefore a reason for providing sanctuary.

As to the magician's rabbit of transferring asylum seekers from Eritrea to a third country, it should be remembered that people are not objects that can simply be moved without taking their desires into account. Moreover, legally the covenant on refugees determines that a refugee cannot be deported except for considerations of national security or public order. In a broader sense, even for those who are not recognized as refugees, the principle of non-return, also known as non-refoulement, which was recognized by the High Court of Justice as a principal anchored both in international law and in Israeli constitutional law, states that a person should not be forcibly returned to a place where his life or freedom is endangered. This principle applies not only to a person's native country but also to third countries.

For these reasons the European Human Rights Court rejected in 2012 agreements between Italy and Libya under which the Italy violated the principle of non-refoulement, since there was a real risk that Libya would return them to those same countries from which they fled. In another case an Australian court rejected the transfer of asylum seekers to Malaysia, since there were no laws there that protect refugees from forbidden return and persecution. Transfer to a third country is forbidden unless there are clear guarantees that this country will protect the asylum seekers and not deport them to a place in which they'll be at risk.

Lacking concrete information on the identity of the country, the agreement and its details, it is unknown whether such an agreement will meet the conditions required by refugee laws and human rights laws. In any case, this does not in any way add to or lessen the flaws in the law being discussed by the High Court.

African asylum seekers in Tel Aviv.Credit: Daniel Bar On