Between voluntary repatriation and constructive expulsion? Exploring the limits of Israel’s actions to induce the repatriation of Sudanese asylum seekers
Christian Mommers[1]
Introduction
On 13 December 2010 it was announced in various media outlets that a group of some 150 Sudanese asylum seekers, were assisted in returning from Israel to Southern Sudan.[2] While the return was ostensibly presented as a voluntary decision on the part of the Sudanese, it should also be understood against the following facts. First, Sudanese asylum seekers in Israel receive ‘temporary protection’.[3] This is a form of non-status under which a person is not subjected to deportation but also is not allowed to have her claim for refugee status assessed by the responsible authority, the Ministry of the Interior (MoI). While in this situation of legal limbo, ‘temporarily protected’ asylum seekers do not receive any social welfare benefits or other forms of structural assistance. Neither are they officially allowed to work, although the Israeli government, up until the moment of writing, has not enforced this prohibition. However, shortly before the departure of the Sudanese took place, the MoI had started to note explicitly on visas that they did not constitute work permits.[4] This made prospective employers uneasy about employing Sudanese asylum seekers, and thus constituted a practical barrier for Sudanese to find employment and meet their subsistence needs. Second, the government announced plans to open a ‘holding facility’ in Southern Israel, where asylum seekers would be able to enjoy bed, bath and bread facilities. The opening of this facility, the government argued, would also signal the end of its tolerance to asylum seekers of unauthorized work by persons with a ‘temporary protection’ status.[5] Although the details about the precise function of the proposed facility have been sketchy at best, Sudanese asylum seekers, it seems, might expect to find themselves held in this facility. Even if Sudanese asylum seekers currently residing in Israel can avoid internment in the proposed facility, the announced subsequent enforcement of the prohibition on unauthorized labour will no doubt significantly reduce their ability to fend for themselves.
Despite these limitations, it should be noted that there was no legal obligation on the repatriated Sudanese to leave Israel and return to Sudan, as no order had been issued that they were no longer allowed to remain in Israel. Furthermore, the non-deportation policy of persons under ‘temporary protection’ is generally upheld.[6] The local representation of the United Nations High Commissioner for Refugees (UNHCR), which had interviewed the Sudanese, said that none of the returnees had been coerced to return, and that their departure amounted to “voluntary repatriation”. However, the repatriation was greeted with scepticism by some non-governmental organizations (NGOs), as well as members of the Sudanese community in Israel, who argued that the group had not volunteered, but had indeed been forced to leave Israel. [7] This, they noted, was not due to physical coercion by the state authorities, but by the circumstances in which they found themselves in Israel. Among the factors that were cited as having contributed to this were the prolonged uncertainty over the legal status of the Sudanese, their exclusion from the right to work (preventing them from fending for themselves), the threat of the future opening of the ‘holding facility’ where the Sudanese would be forced remain during their stay in Israel, as well as experiences with anti-immigrant sentiment, racial abuse and even violence. As Kibreab has noted, circumstances in the asylum country can be just as compelling reasons to return as the (improved) situation in the country of origin.[8] This circumstance, however, can easily be abused by host governments, who might want to be seen as upholding their obligation not to forcibly return protected persons, but at the same time would much rather see them leave. It can be a very effective strategy for reluctant refugee-hosting states to make the lives of refugees difficult, by instituting all kinds of restrictive measures, in the expectation that this will eventually cause them to leave of their own accord.
Looking at the reasons that NGOs and members of the Sudanese community put forward for the decision of the 150 to repatriate, it may be wondered whether such a strategy might have been deployed by the Israeli government. It is possible to connect some of these reasons to circumstances either specifically created by the Israeli government’s policies, or to circumstances which the government had apparently failed to prevent. Such potential actions to ‘push out’ refugees and asylum seekers on the part of the Israeli government, and their interaction with the returnees own decision-making on return, form the basis for this paper.
The objective of this paper is to examine, at what point Israel’s actions might lead to such circumstances that they would amount to a violation of its obligation to protect refugees and asylum seekers under international law. This discussion will revolve around two concepts: “voluntary repatriation” and “constructive expulsion”. The scope of each of these, and their implications for Israel’s international obligations, will be discussed in detail. The paper does not aim, however, to provide a definitive answer to the question whether Israel was indeed in breach of these obligations when the repatriation took place on 13 December 2010, as well as during subsequent repatriations, such as those in February and May 2011. Rather, this paper seeks to clarify more generally the legal framework that governs these and future repatriation operations, to show that considerable gaps in this framework still exist, and what would be necessary, at a minimum, to prove a breach of international obligations within this framework. The case of the Sudanese repatriations, however, provides an excellent practical starting put for such an investigation.
Furthermore, the issues that will arise in this paper will be of direct relevance to future repatriation operations of persons under ‘temporary protection’, which constitue the vast majority of asylum seekers in Israel.[9]Apart from the specific context of Israel, the topic of the paper can be of relevance to other countries as well, many of which struggle to find a balance between their desire to reduce the number of asylum seekers in their territories, and maintaining respect for their international protection obligations.
Structure of the paper
In section 1, I will start my investigation by setting out the basic principles for the protection of asylum seekers against forced return by their host state, as embodied by different international human rights treaties. I will show that both refugees and persons who might be subject to torture, or inhuman or degrading treatment in their countries of origin, cannot be forcibly returned (refouled) by their host state. As a result, when return of such persons takes place, this should only be on a strictly voluntary basis. This naturally leads to the question how voluntary and forced return can be adequately distinguished as a matter of international law.
In section 2, I will argue that, despite appearances, voluntary and forced returns are not wholly mutually exclusive concepts. Rather, they should be understood as two ends of a continuum of choice and coercion. It may be difficult to identify a precise point on that continuum at which voluntary return changes unmistakably to forced return; the boundaries are “fuzzy”. Nevertheless, whether the return of protected persons is voluntary or forced is of enormous importance in assessing whether a host state, in this case Israel, has respected its international obligations.
In section 3, therefore, I attempt to clear some of the “fuzziness” by critically examining the notion of “voluntary repatriation” as is used by UNHCR in relation to refugees. I will show that, while providing some indicators of appropriate action by the host state, this framework is deficient in two major ways: (1) the standards it sets are too vague to appropriately assess host state actions, and (2) these standards, even if appropriate, are not legally binding on states.
As a result of this finding, in section 4, I approach the issue of the permissibility of return from the other side, that of defining forced return. I do so by turning to the concept of “constructive expulsion”, which is a specific form of forced return. It refers to acts by states, falling short of ordering individuals to leave or physically removing them, but which in effect creates a situation on the ground that leaves those individual “no real choice” but to leave. This would amount to forced return and therefore, in the case of refugees and other protected persons, to refoulement. I will examine three different approaches to assessing whether “constructive expulsion” has taken place: (1) that used by the Iran-US Claims Tribunal, which initially developed the concept, but which has interpreted it very restrictively; (2) that used by the Eritrean-Ethiopian Claims Commission, which has given a broader interpretation, but which is group-based, rather than individually applicable; and (3) an alternative, human rights-based approach, which I suggest could overcome the deficiencies of the former two approaches. However, while I believe this suggested third approach may provide a more practical model for assessing “constructive expulsion”, it is faced with a number of, as yet unsolved, interpretative difficulties.
In section 5 I revisit the question of where to draw the lines between voluntary and forced return. I will argue that, as a matter of law, as significant grey area still remains on the continuum of voluntary and forced return. I will also argue that this grey area can be reduced to some extent, both by more sharply defining and “legalizing” restrictions on host states’ actions within the “voluntary repatriation” framework, and by the continued development of the jurisprudence on “constructive expulsion”, particularly from a human rights-based approach.
After this elaborate conceptual discussion of voluntary and forced return of refugees and protected persons under international law, in section 6 I return to the specific situation of the repatriation of the Sudanese asylum seekers from Israel in December 2010. This section does not purport to provide a definitive answer as to the legality of Israel’s actions preceding the repatriation of the Sudanese. Rather, it sets out the conditions that would have to be satisfied to find that Israel’s actions were impermissible based on the “voluntary repatriation” framework (6.1) and on the “constructive expulsion” framework, based on each of the three approaches identified therein (6.2). In this way, it sets out a list of legal issues that would need to be resolved by advocates who would seek to argue that Israel’s actions indeed led to involuntary or forced return of the Sudanese, and thus to refoulement.
Section 7, finally, summarizes the main findings of this paper and sets out a brief agenda for the further investigation of the delineation of voluntary and forced return as a matter of international law.
1. Protection against forced return in international law
As a corollary of its territorial sovereignty each state has, in principle, the power to refuse aliens to enter or to remain in its territory. A natural consequence of this is that states have a wide discretion to expel aliens, i.e. to order them to leave and/or to physically remove them. However, this discretion is not unlimited. Some categories of aliens, once they are in the territory of a state, are specifically protected from that state returning them to their countries of origin. In this context, the prohibition of the return of persons who are refugees as defined by the 1951 Refugee Convention,[10] is the best-known limitation on this power. This limitation is enshrined in the Convention’s provision that:
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” [11]
Since being a refugee by definition means being in danger of such treatment in her country of origin, making her return to that country would be a breach of the host state’s obligations under international law. The non-refoulement provision in the Refugee Convention, however, does allow some exceptions, and does not apply to refugees when there are reasonable grounds for regarding her “a danger to the security” of the host state, or who are considered a “danger to the community” on account of having been convicted of “a particularly serious crime”.[12]
Even in such situations, the return of a refugee by her host state may be unlawful under other instruments of international law. Prohibitions of refoulement also emanate from the protection against torture, as encapsulated in Article 3 of the Convention Against Torture (CAT)[13]. Torture is furthermore prohibited by Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which also obligates states to provide protection againstinhuman or degrading treatment[14] As such, even when the return of a refugee could be justified on account of security concerns or other justifications as mentioned above, if she would be in danger of torture or inhuman or degrading treatment, such return would be unlawful. Furthermore, this protection against torture or inhuman or degrading treatment extends to all individuals, regardless of their status. This includes persons who have been found not to meet the conditions of the refugee definition contained in the Refugee Convention; they also cannot be returned, regardless of the reason why they are present in the host state, and regardless of whether their entry was legal or illegal.[15] Many states have legislation that ensures that non-refugees who nonetheless deserve protection against refoulement are accorded with a (temporary) status and entitlements to civil and socio-economic rights, sometimes comparable to those enjoyed by refugees.[16]