06 Feb Letter to the Israeli AG About the Deportation of African Asylum Seekers
Re: Deportation of Asylum Seekers under the “Procedure for Deportation to Third Countries” Violates International Law
This memorandum is submitted by the undersigned, Israeli experts on international law at academic institutions in Israel and abroad. The policy on asylum seekers in Israel raises complex issues with broad public ramifications. This memorandum does not take a position on the full range of relevant issues. Rather, we seek to address the Ministry of the Interior’s policy regarding “deportation to third countries,” and particularly to Rwanda, through the prism of international law, with particular attention to the ruling of the Israeli Supreme Court in Tzagata v Interior Minister (AAP 8108/18) (28 Aug. 2017). We believe that this is an illegal policy that violates Israel’s obligation to accept refugees.
Our attention here focuses on the new procedure published by the Population and Migration Authority (“Procedure for Deportation to Third Countries” dated 1 Jan. 2018; hereinafter: “the Procedure”) and on the significant developments that have occurred since the Supreme Court ruling in Tzagata. These developments reveal that the procedure breaches international law, including rules from which no derogation is permitted (i.e., rules of “jus cogens”). Our position in this context is based on three foundations, each of which on its own is sufficient to invalidate the Procedure. We list these three foundations from the general to the specific, and from the grave to the still graver: (A) The Procedure violates general principles of international law; (B) the Procedure violates human rights laws, including rules from which no derogation is permitted; (C) the Procedure violates refugee law and the principle of non-refoulement, which protects any person present in Israel against deportation to a state where he or she could be subject to persecution, torture, or inhuman and degrading treatment. Accordingly, the State of Israel must refrain from implementing the Procedure and must shape its refugee and migration policy within the permissible scope of international law.
The following are our basic arguments:
The Procedure Violates General Principles of International Law
On Jan. 25, 2018, following a meeting between Prime Minister Benjamin Netanyahu and Rwandan President Paul Kagame in Davos, the media reported that “regarding the migrant issue, the Prime Minister agreed with President Kagame, who emphasized that he would only accept a process consistent with the requirements of international law.” The two leaders discussed the Procedure, and particularly section 2.3, which states that “the State of Israel has reached arrangements with two different African countries permitting the absorption in their territory of infiltrators who infiltrated into Israel unlawfully.”
Below we examine the agreements’ compliance with international law, including treaties and customary international law, but also by reference to the general principles of international law (section 38(1) of the Statute of the International Court of Justice), including the principle of good faith in reaching international agreements. A further principle raised in the present context is that of legal certainty (see Tzagata, para. 79).
Over recent decades, several countries around the world (including democracies) have adopted policies of deportation to “third countries” by means of bilateral or multilateral agreements (hereinafter: “deportation agreements.”) In the framework of these agreements, which often provoke fierce public debate, persons whose applications for asylum have been rejected, and sometimes even asylum seekers, are deported to countries other than their country of origin. These countries often receive financial or other compensation in return for their agreement to accept the deported persons. As noted in section 2.3 of the Procedure, over recent years Israel has also reached similar agreements with countries in Africa. According to cumulated information, Israel has reached “deportation agreements” with Rwanda and Uganda. According to media reports whose credibility we cannot gauge, Rwanda receives the sum of $5,000 from Israel for each deported person who reaches the country from Israel.
However, in contrast to the accepted practice in European countries, the US, and Canada, the deportation agreements reached by Israel have not been made public, and thus remain concealed from Israeli citizens and the deportees (actual or potential). In Tzagata, the Supreme Court based its discussion on a single instance in which the deportation agreement was not published or exposed to public review (para. 79); however, as former President of the Court Naor noted, this agreement between Italy and Tunisia is completely different since it concerns the return of citizens to their own country. We are not aware of even a single precedent anywhere in the world for a secret deportation agreement with a country other than the country of citizenship of the deportee.
Rwanda’s declared position is that it has never made a deportation agreement with the State of Israel. Moreover, Rwanda does not acknowledge that it has granted any guarantees for the protection of the deported persons. Deputy Foreign Minister Olivier Nduhungirehe has written that Rwanda’s policy is that of an “open door.” ). All this is contrary to the confidential materials presented to the Supreme Court in its discussion of the Tzagata case, which apparently revealed that an arrangement indeed exists between Israel and Rwanda.
These contradictory positions are tantamount to a violation of the good faith principle, one of the general principles of international law, both on Rwanda’s part and on the part of the State of Israel. Israel cannot, and is not permitted to, rely on Rwanda on a matter that has such grave consequences for basic rights, when Rwanda states one thing in its public declarations and a completely different thing in an agreement behind closed doors. It is certainly not possible to rely on the implementation of an agreement whose existence is denied.
As the Supreme Court noted in Tzagata (para. 82), secret international treaties are inconsistent with section 102 of the Charter of the United Nations, which requires the prompt registration and publication of treaties. The purpose of this section is to enable the enforcement of international commitments. Such enforcement is impossible here because of the secrecy of the agreement, compounded by the fact that the parties even disagree on the basic question of the very existence of an agreement.
The principle of good faith in international law applies as a general rule governing the relations between states. As citizens of the State of Israel, we believe that Israel must manage its relations in the international domain in accordance with this basic rule. In Tzagata, former President Naor discussed the secret nature of the deportation agreement with Rwanda. While noting that she was uncomfortable with the secrecy of the agreement, former President Naor determined that, in the circumstances described at the time, this was not sufficient grounds to invalidate it (Tzagata, para. 83). However, the situation now is different. Rwanda is insisting and reiterating its position that the agreement does not exist. Substantiated concern has thus arisen that one of the parties will fail to observe the rule that “agreements are to be respected” [pacta sunt servanda]. The secrecy also gravely impairs the principle of legal certainty.
The Procedure Violates International Human Rights Law
Prohibition against the Arbitrary Deprivation of Liberty
As Deputy Minister Nduhungirehe explained at the Davos Conference, his country is not willing to accept deported persons brought to Rwanda against their will. This assertion was also discussed in Tzagata, and constitutes a direct continuation of Rwanda’s statements that any deportation agreement must meet the requirements of international law. However, the Procedure permits the deportation of a person against his or her will, or alternatively, the holding in custody of a person for an indefinite period (section 5.3), if that person is not willing to cooperate with his or her deportation, thereby leading the person to “wish” to leave and to cooperate with his or her deportation in the framework of the deportation agreement. Eritrean and Sudanese men who refuse to leave Israeli territory for Rwanda or Uganda by 31 March 2018 will apparently be imprisoned indefinitely. These options – indefinite detention on the one hand or deportation on the other – are not ones between which a true “choice” can be made. The entire purpose of indefinite detention is to break the will of the deportee. Such an attempt to break a person’s will violates international law, and in particular human rights law (as well as the rulings of the Supreme Court).
As the Supreme Court has established in a series of rulings, the indefinite holding of a person in custody in order to break their spirit gravely violates the right to dignity under the Basic Law: Human Dignity and Liberty. Moreover, such incarceration violates Israel’s obligations under international human rights law. Specifically, it violates section 9.1 of the International Convention on Civil and Political Rights (1965), which prohibits arbitrary detention. In many instances, this kind of detention also violates section 7 of the Convention, insofar as it is tantamount to cruel, inhuman or degrading treatment. The prohibition against cruel, inhumane, and degrading treatment is, of course, one from which no derogation is permitted.
The Right to an Effective Legal Remedy under International Human Rights Law
In addition to its impact on the prohibition of arbitrary detention, the secret nature of the deportation agreement also violates the right to an effective legal remedy, as enshrined in section 2(3) of the International Convention on Civil and Political Rights. Since the agreement directly bears upon individual rights , the state is obliged to enable individuals to initiate effective legal proceedings against potential injury. The secret nature of the agreement regulating the conditions for deportation impairs this possibility, since the deported person cannot adopt a position or make an argument against something of which they are unaware.
In contrast to many other countries that have made deportation agreements, Israel is not a party to any international adjudicatory mechanism permitting individual claims, such as those allowed by the European Convention on Human Rights and the Optional Protocol to the Convention on Civil and Political Rights. It cannot, therefore, be assumed that Israel will be able over time to monitor the maintenance of the deported persons’ rights. Moreover, the deported persons themselves will have no remedy.
In Tzagata, the Supreme Court, on the basis of the presumption of propriety of the administrative action, also imposed an almost-impossible burden of proof on deported persons wishing to prove that the third country is unsafe. However, where fundamental rights such as the right to life are at stake, it is inappropriate to impose such a burden, whose effect would be to further impair the right to an effective legal remedy. This is particularly so in the case of third countries with which the potential deported persons have no prior relationship. A deportation agreement is an unusual agreement in which the state “sells” its obligations toward persons under its authority. A country that allows itself to undertake such an arrangement should be required to prove positively that it is sending the deported persons to a safe country.
The Tzagata Court distinguished between the broad question of whether the third country is safe in general, and the specific question of whether it is safe for a given candidate for deportation (para. 51). Regarding the general examination, it determined, as noted, that the principle of the assumption of administrative propriety applies to the body of evidence provided by the state. The Court further ruled that a person who seeks to prevent his or her deportation must prove that he or she faces an individualized danger. According to the Court’s approach, testimony regarding the substandard treatment of deported persons by the third country in the past are pertinent solely in challenging the unsuitability of that country for the individual unsuitability (para. 53). Accordingly, it is not possible to challenge the general assertion that the third country is safe. The Court’s application of the assumption of administrative propriety effectively serves as an irrebuttable presumption, particularly given the confidentiality of the agreement between the countries.
The Procedure Violates the Principle of Non-Refoulement in International Law
The principle of non-refoulement establishes that the state is not permitted to deport a person liable to face persecution, torture, or cruel, inhuman or degrading treatment. This principle applies by virtue of section 33 of the Convention Relating to the Status of Refugees (1951); the Convention on Civil and Political Rights (1966); and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975), all three of which have been ratified by Israel. It also applies by virtue of customary international law. The Israeli Government accepts the principle of non-refoulement, a principle emphasized by the Supreme Court many times in its rulings. The prohibition against deporting a person to a state where there is a danger that the person will face torture or arbitrary harm to their life (or the threat of deportation to another country where they will face such danger) is not confined to the deportation of refugees or asylum seekers. This prohibition applies to any forcible deportation, including the deportation of migrant workers who entered the country unlawfully, or a person whose application for asylum was rejected (in this context, see HCJ 4702/94 Al Tai v Interior Minister, Piskei Din 49(3) 843).
The deportation Procedure and the deportation agreements on which it is based violate the principle of non-refoulement. We must emphasize that the deportation agreements do not release the state from its obligations in accordance with the principle of non-refoulement and cannot override this principle. Deportation, even under the terms of an inter-state agreement, in which a person is liable to be exposed to torture or inhuman and humiliating treatment, or deportation that prevents a person from requesting recognition as a refugee, is prohibited.
The Principle of Non-Refoulement with Reference to Israel’s Defective Asylum System
Contrary to the accepted practice in other countries, the Israeli asylum system is defective insofar as it does not examine, and even systematically rejects, almost all the applications for recognition as refugees submitted by citizens of Eritrea and Sudan. This follows many years when Israel prevented these asylum seekers from access to its asylum system on the grounds that they ostensibly supposedly enjoy “collective protection.” Accordingly, removal deportation to third countries may apply to persons who have been present in Israel for many years without managing to submit asylum applications; or to persons whose asylum applications were not examined in accordance with reasonable and accepted standards; or to persons who relied for many years on the “collective protection” granted to them by Israel. Such a situation is contrary to the previous position stated by the Attorney General, according to which Israel will refrain from deporting asylum seekers whose asylum applications are pending. The Court in Tzagata did not take into account the structural defects in the asylum system in evaluating the legality of the deportation of asylum seekers whose asylum application was rejected. In this respect, too, the Court was in error.
Is Rwanda a Safe Country?
Courts, both domestic and supranational (such as the Court of Justice of the European Union and the European Court of Human Rights), have expressed divergent views regarding the requirements for the conformity of deportation agreements with the principle of non-refoulement. In general terms, the approaches can be divided between those that emphasize the fact that the third country is “safe” de jure (i.e. bound by the Refugee Convention) and those that require that the third country be “safe” de facto. State courts have often intervened on the question as to whether expulsion properly ensures the safety of the deported persons, even when the receiving state was “safe” de jure.
The current guiding principles for examining the protection afforded by a deportation agreement for the safety of expelled persons were formulated by the Attorney General and have been accepted by the Court. These principles include six conditions, all of which must be met in order to classify a third country as safe: (A) There is no war or generalized violence in the country; (B) The United Nations High Commissioner for Refugees has not issued an opinion stating that refugees and asylum seekers are not to be deported to the country; (C) there is no general danger to the life or liberty of asylum seekers on the basis of one of the grounds for refugee status stipulated in the Convention Regarding the Status of Refugees; (D) the third country affords the possibility of applying for refugee status, provides temporary protection for the deportees, or, at least, is committed to the principle of non-refoulement; (E) the third country maintains a prohibition against torture and against cruel, inhuman or degrading treatment; (F) the third country undertakes to allow asylum seekers a dignified life and an outlook for remaining in the country. As will be detailed below, we believe that it is not possible to claim that Rwanda meets the conditions for definition as a “safe country” in accordance with the standards established by the Attorney General, and particularly not conditions D and F. It is doubtful whether Rwanda meets condition B. Dina Silber, the Deputy Attorney General, has further explained that a procedure for deportation to third countries will be applied only to persons who have not submitted asylum applications, or whose applications were rejected. The Procedure dated 1 Jan. 2018 violates this condition in the clearest possible manner, as well as violating the principle of non-refoulement.
In Tzagata, the Court examined an deportation agreement to a single third country (Rwanda) and established that this may be considered a safe country in which there is no substantive risk of violation of the principle of non-refoulement. In our opinion, this determination was incorrect at the time it was made. The Court was presented with extensive information, based on research, concerning the human rights violations faced by deported persons, including the fact that they did not enjoy a legal status in the third country, and that almost all of them did not remain in this country. In term of the court’s methodology, it addressed each claim raised by the petitioners on the basis of the research, but refrained from addressing the overall and cumulative picture these claims suggest regarding the situation in Rwanda. This overall picture raises serious questions concerning the extent to which the third country may be considered to be acting to ensure the safety of the deported persons.
However, since Tzagata was decided, additional circumstances have become apparent that require the reexamination of this issue. As noted, Rwanda has repeatedly and publicly denied the very existence of the agreement. Given this denial, it is unclear how it may be assumed that Rwanda will ensure the safety of the expelled persons. Furthermore, new publications by independent and objective sources cast a heavy shadow over the claim that Rwanda is safe and heighten the concern that the deportation agreement violates the principle of non-refoulement. In this context, we should note that:
- Concern has arisen regarding the extent of Rwanda’s commitment to the Human Rights Convention. On 20 Oct. 2017, the UN Committee against Torture was obliged to discontinue its visit to Rwanda due to a lack of cooperation and even the disruption of its investigation by the Government of Rwanda. In particular, the Committee stated that the Government of Rwanda had not allowed it access to relevant facilities and had not permitted it to speak to interviewees in private.
- The United Nations High Commissioner for Refugees noted its concern about the planned deportation. A statement from November 17, 2017, quoting UNHCR’s Assistant High Commissioner for Protection, Volker Türk, noted: “Due to the secrecy surrounding this policy and the lack of transparency concerning its implementation, it has been very difficult for UNHCR to follow up and systematically monitor the situation of people relocated to these African countries. UNHCR, however, is concerned that these persons have not found adequate safety or a durable solution to their plight and that many have subsequently attempted dangerous onward movements within Africa or to Europe.” Subsequently, on 9 Jan. 2018, the UNHCR again urged Israel to refrain from deportations to Rwanda, after speaking to 80 interviewee who reached Europe and reported their sense of insecurity in Rwanda. This insecurity led them to continue onward through Libya, where they suffered grave violation of their human rights, extortion, and torture. These remarks raise concern that condition B of the Attorney General’s conditions for defining a country as safe no longer applies to Rwanda.
- On 6 Dec. 2017 the UN Committee against Torture (which operates by virtue of the Convention against Torture) sharply criticized the asylum system in Rwanda and its treatment of citizens of Sudan and Eritrea who arrived from Israel. In this context, the Committee reports instances in which asylum seekers deported to Rwanda were subsequently deported from that country to other African countries. It expressed its concern that a similar fate will be met by those deported from Israel.
- On January 25, 2018, independent researchers published a report entitled “‘Prison in Israel is Preferable to Death along the Way:’ Testimonies of Persons Who Left ‘Voluntarily’ for Rwanda and Uganda and Who Subsequently Received Protection in Europe.” The report presented further testimony demonstrating a pattern of lies Israeli agents and others told to persons expelled to third countries concerning what would await them. In practice, these persons did not enjoy protection. The report reveals a pattern of the confiscation in Rwanda of the expelled persons’ travel documents, their confinement in hotels, and their forced transfer to Uganda. As the report explains: “Their testimony clearly demonstrates the activities of a network of smuggling and trafficking that begins with the same persons who collected them from the airport in Rwanda, continues with smugglers who collect hundreds of dollars in order to cross the border with Uganda illegally, ending with destinations inside Uganda itself.”
This state of affairs raises concern that Israel will be found to be in violation of the prohibition against mass expulsion, prohibited by international law in absolute and non-derogable terms (“jus cogens”).
In conclusion, the deportation currently planned by the Population and Migration Authority under the terms of the Procedure violates the principle of non-refoulement. Any other interpretation denudes the principle of non-refoulement of any content. The deportation agreement is also utterly improper in light of human rights law and the general principles of international law.
In their rulings in the Tzagata case, Justices Rubinstein and Meltzer mentioned the particular obligation incumbent on the State of Israel not to send refugees to a country where they face harm. The family histories of many Israeli citizens include stories of exile, whether from Europe, various parts of the Middle East, or African countries, such as Ethiopia. In this context, we share the justices’ position. If the procedure is implemented, these references to a difficult historical fate will become empty clichés.
The expulsion policy implicates the most basic rights enjoyed by all human beings, including the right to life and the right to liberty. Accordingly, it is our professional obligation to make our voices heard. We hope that the Government of Israel will retract its intention to undertake the unlawful expulsion of tens of thousands of persons by means of the procedure.
 [The Basic Laws are the Building blocks of Israel’s constitutional law]. For example, see HCJ 8665/14 Tashuma Noga Dasta v The Knesset (granted 11 Aug. 2015).
 In this context, see the announcement dated 22 Jan. 2018, in which Human Rights Watch urged Israel to abandon its policy of expulsion, which is liable to lead to the indefinite imprisonment of thousands of Eritrean and Sudanese citizens. HRW, Israel Don’t Lock Up Asylum Seekers (22 Jan. 2018).
 The percentage of asylum applications accepted ranges between one-tenth of one percent and two-tenths of one percent – an extremely low rate by comparison to the other member states of the Convention. The following link provides updated data on rates of recognition issued by the European Commission, relating to the determination of asylum applications in the first instance in the third quarter of 2017. As can be seen, the rate of recognition of refugeehood subsidiary protection is 90 percent for Eritreans and 60 percent for Sudanese citizens.
 This is a term of art, for which complementary protection/subsidiary protection is often used in contexts abroad.
 See, for example: EM and others v Secretary of State  UKSC 12 M.S.S. v Belgium and Greece; [GC]; Application No. 30696/09.
Prof. Orna Ben-Naftali, College of Management Academic Studies
Prof. Eyal Benvenisti, Tel Aviv University and Cambridge University
Prof. Tomer Broude, Hebrew University
Prof. Iris Canor, College of Management Academic Studies
Atty. Avinoam Cohen, Tel Aviv University and the College of Management Academic Studies
Dr. Natalie Davidson, Tel Aviv University
Prof. Aeyal Gross, Tel Aviv University
Prof. Guy Harpaz, Hebrew University
Prof. Moshe Hirsch, Hebrew University
Dr. Tamar Hostovsky Brandes, Ono Academic College
Prof. David Kretzmer, Hebrew University and Sapir College
Dr. Tally Kritzman-Amir, College of Law and Business
Dr. Eliav Lieblich, Tel Aviv University
Dr. Doreen Lustig, Tel Aviv University
Dr. Itamar Mann, Haifa University
Dr. Tamar Megiddo, Hebrew University
Prof. Frances Raday, Hebrew University and College of Management Academic Studies
Dr. Daphne Richemond Barak, Interdisciplinary Center Herzliya
Prof. Yael Ronen, Sha’arei Mada Umishpat Academic Center
Dr. Yaniv Roznay, Interdisciplinary Center Herzliya
Prof. Yuval Shany, Hebrew University
Dr. Sivan Shlomo-Agon, Bar-Ilan University
Dr. Michal Saliternik, Netanya Academic College
Prof. Muhammad Watad, Zefat Academic College
Dr. Reuven (Ruvi) Ziegler, Reading University and Oxford University
Translation: Shaul Vardi