BETWEEN VOLUNTARY REPATRIATION AND CONSTRUCTIVE EXPULSION? EXPLORING THE
LIMITS OF ISRAEL’S ACTIONS TO INDUCE THE REPATRIATION OF SUDANESE ASYLUM
SEEKERS
Christian Mommers1
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
1
Christian Mommers, PhD Candidate, Institute of Immigration Law Leiden University The Netherlands I would
like to thank Dr Yuval Livnat and Dr Tally Kritzman-Amir, as well as the members of the Van Leer Research
Group for their extremely helpful comments on an earlier draft of this paper.
2
See, inter alia, Reuters.com “NGO, third state help Israel return Sudan migrants”, 13 December 2010,
http://af.reuters.com/article/eritreaNews/idAFLDE6BC28G20101213, last accessed 30 May 2011; Haaretz “150
Sudanese refugees voluntarily repatriated in unprecedented flight”, 14 December 2010,
http://www.haaretz.com/print-edition/news/150-sudanese-refugees-voluntarily-repatriated-in-unprecedentedflight-1.330463, last accessed 30 May ; Jerusalem Post “150 Sudanese asylum seekers returned to Sudan”, 13
December 2010, http://www.jpost.com/NationalNews/Article.aspx?id=199277, last accessed 30 May 2011.
Since the highly-publicized repatriation of the 150 Sudanese on 13 December 2010, additional repatriations from
Israel to South Sudan have taken place. These include the return of approximately 100 Sudanese in February
2011 (YNet News “Israel to fly more Sudanese migrants back to Africa”, 22 February 2011,
http://www.ynetnews.com/articles/0,7340,L-4032557,00.html, last accessed 15 July 2011; Jerusalem Post
“Gov’t financing refugees’ voluntary return to S. Sudan”, 23 February 2011,
http://www.jpost.com/NationalNews/Article.aspx?id=209450, last accessed 15 July 2011) and of 140 others,
including several Darfurians, in May 2011 (Haaretz “Despite risks, Darfurian refugees returned to Sudan”, 18
May 2011, http://www.haaretz.com/print-edition/news/despite-risks-darfurian-refugees-returned-to-sudan1.362408, last accessed 15 July 2011). Between December 2010 and May 2011, a total of 600 repatriations to
South Sudan were reported to have been carried out (Jerusalem Post “140 infiltrators flown out of Israel to
Sudan”, 18 May 2011, http://new.jpost.com/Headlines/Article.aspx?id=221072, last accessed 15 July 2011). It
should also be noted that the repatriation operation of 13 December 2010 was not the first, although it was larger
and the first to receive widespread media attention. A spokesperson of the NGO responsible for the
implementation of the repatriations suggested that there were potentially “thousands more” who would take up
repatriation in the future (Jerusalem Post “Gov’t financing refugees’ voluntary return to S. Sudan”, 23 February
2011, http://www.jpost.com/NationalNews/Article.aspx?id=209450, last accessed 15 July 2011).
3
Whether this term actually implies protection is debatable. Sudanese are excluded from refugee status
determination (RSD) procedures, as they are considered enemy nationals (see, for example, Article 10 of the
Procedure for Handling Political Asylum Seekers in Israel, 2 January 2011. The stipulation that enemy nationals
are excluded was also included in earlier (only partially public) Israeli asylum guidelines (see Hotline for
Migrant Workers (2010). Treatment of Asylum Seekers in Israel,
http://www.hotline.org.il/english/pdf/09232010_Refugees_in%20Israel.pdf, last accessed 15 July 2011: p. 3-4).
As a result, Sudanese do not have their asylum applications examined. This also implies that the Israeli
government cannot ascertain whether individual Sudanese asylum seekers are indeed refugees or not. However,
on the recommendation of UNHCR, Israel also does not seek to deport Sudanese, instead allowing them to
remain without any rights or entitlements outside non-deportation (see Association for Civil Rights in Israel et al
(n.d.) The Infiltration Prevention Bill: Lies and Realities, http://www.acri.org.il/pdf/histanenut-en.pdf, last
accessed 15 July 2011: p. 3).
1
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” are currently granted a “conditional release” or “2A5” visa. This visa
protects them from deportation but does not officially allow the holder to work. However, currently a blind eye
is turned to this prohibition, both by the authorities and many employers. See, for example, Furst-Nichols, R. and
K. Jacobsen (2011). “African refugees in Israel” in Forced Migration Review, Issue 37, March 2011: pp. 55-56.
4
‫) לחוק הכניסה לישראל ושאלת יכולתם של האוחזים בה לעבוד‬5()‫(א‬2 ‫מעמדה של "אשרת" השחרור בתנאים לפי סעיף‬
‫ לאחר שהתייחס‬,‫ בפסק דין זה קבע בית המשפט‬.)30.3.2633 ,‫ קו לעובד נ' הממשלה (פורסם בנבו‬0132136 ‫נדונה בבג"ץ‬
,]...[ ‫ כי "עמדת המדינה‬,'‫למצוקה ההומניטארית בקרבם של מבקשי המקלט מחד ול"אינטרס המדינה למנוע 'הגירת עבודה‬
‫ יש בה משום איזון ראוי‬,‫ לצד האמירה כי בלב זה לא ינקטן פעולות אכיפה כנגד מעסיקים‬,‫לפיה אין להעניק אישורי עבודה‬
:‫ מעסיקים ו'פתרונות מעשיים' בבג"ץ‬,‫ ראו לעניין זה יובל לבנת "פליטים‬."‫בהתחשב במציאות הקשה והרגישה שנוצרה‬
21 ,)‫ משפטים על אתר ג' (תשע"א‬,‫ קו לעובד נ' הממשלה‬0132136 ‫בעקבות בג"ץ‬
http://law.huji.ac.il/upload/mishpatimonline0302.pdf
For an in-depth discussion of the “temporary protection” regime, see Ben-Dor in this volume.
5
YNet News (2011). “Infiltrators' detention facility 'a ghetto'”, 28 October 2010,
http://www.ynetnews.com/articles/0,7340,L-3990663,00.html, last accessed 15 July 2011.; YNet News (2010).
“PM: Refugees threatening Israelis’ jobs”, 28 October 2010, http://www.ynetnews.com/articles/0,7340,L3990776,00.html, last accessed 15 July 2011.
2
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 antiimmigrant 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.
6
As shall be discussed in section 1 below, both refugees and persons in danger of torture, inhuman or degrading
treatment are protected from forced return (refoulement). As part of the “temporary protection” regime, Israel
generally does not deport individuals with a 2A5 visa. However, incidents have taken place in which Sudanese,
who would fall under the “temporary protection” regime were returned to Egypt, and were subsequently in
danger of further deportation to Sudan. This has been particularly the case for Sudanese who were immediately
returned to Egypt upon being detected during their illegal crossing of the Israeli-Egyptian border, under the socalled “hot return” procedure. The issue of immediate return at the border is not further discussed in this paper,
but is addressed extensively by Kritzman and Spijkerboer in this volume. It should be noted that also for
Sudanese asylum seekers already residing in Israel, the non-deportation policy has not always been upheld. See,
for example, IRIN News (2008). “Israel: Government starts rounding up asylum seekers”, 28 February 2008,
http://www.irinnews.org/report.aspx?reportid=76985, last accessed 15 July 2011.
7
See, for example, YNet News (2010). “I’d rather die than be jailed in Israel”, 14 December 2010,
http://www.ynetnews.com/articles/0,7340,L-3998737,00.html, last accessed 15 July 2011; YNet News (2010).
“Israel flying Sudanese infiltrators back to Africa”, 14 December 2010,
http://www.ynetnews.com/articles/0,7340,L-3998642,00.html, last accessed 15 July 2011; Christian Science
Monitor (2010). “Israel repatriates 150 Sudanese in broader effort to deter African influx”, 14 December 2010,
http://www.csmonitor.com/World/Middle-East/2010/1214/Israel-repatriates-150-Sudanese-in-broader-effort-todiscourage-African-influx, last accessed 15 July 2011; YNet News (2010). “Refugee: life harsher here than
Sudan”, 15 December 2010, http://www.ynetnews.com/articles/0,7340,L-3999385,00.html, last accessed 15 July
2011. Similar concerns were voiced by representatives of NGOs and refugee communities during a workshop on
the repatriation operation, held by the Refugee Rights Clinic of Tel Aviv University on 5 January 2011.
8
Kibreab, Gaim (2003). “Citizenship Rights and Repatriation of Refugees”, International Migration Review
37(1): 24-73.
3
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.9Apart 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
9
Apart from the Sudanese, which are officially excluded from refugee status determination (RSD) procedures on
the basis of being “enemy nationals”, the “temporary protection” regime is also applied to Eritreans, who form
the largest group of asylum seekers in Israel by far. Their exclusion, according to the Hotline for Migrant
Workers, is connected the inability of the RSD system to deal with the large number of applications it would
have to process from Eritreans. Hotline for Migrant Workers (2010). Treatment of Asylum Seekers in Israel.
September 2010, http://www.hotline.org.il/english/pdf/09232010_Refugees_in%20Israel.pdf, last accessed 15
July 2011.
4
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
5
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
6
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 treatment14 As such, even when the return of a refugee could be justified on
The 1951 Refugee Convention, Article 1A(2) provides that a person is a refugee if s/he “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside
the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.”
11
1951 Refugee Convention, Article 33(1).
12
1951 Refugee Convention, Article 33(2).
13
Article 3(1) CAT reads: “No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being subjected to torture”
14
Article 7 ICCPR reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.”
It should be noted that a prohibition on refoulement furthermore exists under Israeli domestic case law. In the AlTai’i case, the Israeli Supreme Court held that “a person may not be deported from Israel to a place in which his
life or liberty are threatened. Every governmental power – including the power to deport under the Entry into
10
7
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 nonrefugees 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
That host states may not actively return persons who are protected by the various prohibitions
of refoulement cannot mean, of course, that these persons themselves could not opt to return
to their countries of origin. The non-refoulement provisions are commonly read as implying
Israel Law – must be implemented on the basis of the recognition of ‘the value of a human being, the sanctity of
his life and his freedom’…. (Section 1 of Basic Law: Human Dignity and Liberty)”. HC 4702/94 Al-Tai’i et al v.
Minister of the Interior et al, 49(3) at p. 848, as quoted in Ben-Dor, Anat and Adut, Rami (2003). Israel – A Safe
Haven? Problems in the Treatment Offered by the State of Israel to Refugees and Asylum Seekers. Report and
position paper of the Tel Aviv University Buchmann Faculty of Law, Public Interest Law Resource Centre, and
Physicians for Human Rights, at p. 34. Since this paper focuses on the international law aspects of Israel’s
actions, this specific aspect of the country’s non-refoulement obligations will not be discussed further.
15
Both Article 3 CAT and Article 7 ICCPR lack limitation clauses that would allow a state to set aside the
obligation to protect against the prohibited treatment in case of special interests, such as the maintenance of
national security or public order. They are furthermore excluded from the derogation clauses of these
Conventions, which allow states to temporarily suspend their obligations to protect rights in an emergency. In
other words, these protection afforded by Article 3 CAT and Article 7 ICCPR is absolute, and do not allow
exceptions under any circumstances. With regards to Article 3 CAT, see Article 2(2) of that same Convention,
which explicitly states that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency, may be invoked as a justification of
torture.” This also requires the host state to provide protection from torture in all possible instances. With regards
to Article 7 ICCPR, the Human Rights Committee has noted that “[t]he text of article 7 allows of no limitation.
The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of
the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force.
The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a
violation of article 7 for any reasons, including those based on an order from a superior officer or public
authority.” Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation
of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.1 at 30 (1994): paragraph 3.
16 See, for example, the European Union Qualification Directive, which sets minimum standards for all
participating EU member states. Article 23 of the Directive protects the right of family unity for both recognized
refugees (according to the 1951 Refugee Convention) and persons receiving ‘subsidiary protection’ (awarded,
inter alia, to persons at risk of being subjected to torture, inhuman or degrading treatment upon return – see
Article 15(b) of the Directive). Similarly, Article 26 guarantees the right to employment for both refugees and
persons receiving subsidiary protection, although in the case of the latter, EU member states are allowed to take
labour market conditions into consider to prioritize access for certain groups for a limited period only. See
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third
country nationals or stateless persons as refugees or as persons who otherwise need international protection and
the content of the protection granted, Official Journal L 304 , 30 September 2004, pp. 12-23.
8
that host states cannot take action in returning protected persons, unless this return takes place
on a voluntary basis.17 This requirement takes into consideration a person’s individual
autonomy, as exemplified, by the fact that international human rights law guarantees every
person the right to leave any country, and the right to return to his own.18 It can be said that if
protected persons choose to return voluntarily, as autonomous individuals, this therefore
absolves host states from their non-refoulement obligations. In other words, the host state
cannot be responsible for human rights violations that are inflicted on returnees in their
countries of origin, if they had chosen to repatriate of their own volition.19 As such, drawing a
dividing line between forced and voluntary repatriation is hugely important as a matter of law.
Unfortunately, definitively drawing that line is not as easy as it may appear at first glance.
2. Voluntary and forced return: mutually exclusive or a continuum?
In the preceding paragraphs, the words ‘voluntary’ and ‘forced’ return have already been
used, and seemingly so without any specific problems arising. It seems imminently reasonable
to suggest that the principle of non-refoulement can be understood equally well by either
focusing on the implication that it prohibits forced return at the hands of the host state, or on
the implication that it requires voluntary return on the part of the protected individual. The
difference seems to lie primarily in the actor on which we focus – the individual or the state.
But at first glance, the concepts of voluntariness and force otherwise seem perfectly mutually
exclusive: if an individual is forced by the state to leave, this is not a voluntary departure; if
the departure is voluntary, this must imply an absence of force. However, there may be
reasons to doubt that the relationship between voluntariness and force is indeed binary, that is,
an ‘either-or’ situation.
To understand why this is the case, it is useful to look at some of the ever-expanding
migration theory and social science literature dealing with the question why people migrate to
17
UNHCR (1996). Handbook Voluntary Repatriation: International Protection. Geneva: paragraph 2.3.
Article 12(2) ICCPR stipulates that “[E]veryone shall be free to leave any country, including his own”, while
Article 12(4) provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country.”
19
In relation to the non-refoulement of refugees, see Coleman, Nils (2009). European Readmission Policy: Third
Country Interests and Refugee Protection. Leiden, Martinus Nijhoff Publishers, p. 248:
“The applicability of Article 33(1) GC [Geneva Convention on Refugees] depends on State action. Article 33(1)
is defined by the result of a refugee ending up in a country where his life or liberty is at risk. It is however only
applicable to State acts of expulsion, return, or refoulement as the means by which that result is achieved. It is
questionable whether a destination State [i.e. the host state] can be held accountable under Article 33(1) for the
return of a protection seeker to a country where such a risk exists, but which is “voluntary” in the sense of not
being implemented by the State. Such a return would arguably fall outside the terms of Article 33(1), whether
occuring directly, or following expulsion to a third country.” (emphasis in original, citations omitted).
18
9
another country or return.20 This literature has dealt, inter alia, with the question when
migration (or return) is voluntary and when it is forced, and how a distinction between the two
might be made. This work makes it clear that a lot of nuanced distinctions can be made, not
only between those generally considered “voluntary” migrants and “forced” migrants, such as
refugees, but also within those broad categories Kunz, for example, distinguishes between
different types of refugee movements, which are based, inter alia, on different amounts of
pressure to leave.21 Anticipatory refugee movements, for example, are based not on an
immediate threat to the person, but on an anticipated, future detoriation in her situation.22 It
can be said, therefore, that such a person, while possibly being eligible for refugee status, is
not strictly coerced to leave the country, although this might happen in the future. Acute
refugee movements, by contrast, are caused by an immediate threat, which makes it
impossible for the individual to remain in the host state. In Kunz’s words, in such cases “the
‘push’ is overwhelming”.23 Kunz furthermore identifies an “intermediate” type of refugee
movement, thus showing that even within refugee flight, levels of coercion can be extremely
varied.24 Similarly, Kim asserts that coercion can take place at a range of physical, legal and
psychological levels, and may be experienced in many different ways.25 In this respect,
Turton, in his state-of-the-art on social science knowledge of forced migration, asserts that
migration is unlikely to be understood as simply either completely voluntary or completely
forced:
“most migrants make their decision to migrate in response to a complex set of
external constraints and predisposing events. Of course, those constraints and
events vary in their salience, significance and impact, but there are elements of
both compulsion and choice, it seems, in the decision making of most migrants.”26
Acknowledging this difficulty, Richmond has advocated assessing the impetus for migration
based on a continuum model, rather than as a binary distinction. He does so by distinguishing
20
For an elaborate discussion of voluntary and forced migration in legal and political theory, see Kritzman-Amir,
Tally (2008). Socio-economic Refugees. Tel Aviv University PhD dissertation, pp. 217-228.
21
Kunz, E.F. (1973). “The Refugee in Flight: Kinetic Models and Forms of Displacement” in International
Migration Review 7(2): pp. 125-146.
22
Ibid.: pp. 131-132.
23
Ibid: p. 132.
24
Ibid: pp. 135-136.
25
Kim, Kathleen (2010). “The Coercion of Trafficked Workers” in Iowa Law Review 96(XXX): pp. 101-166.
26
Turton, David (2003). Conceptualising Forced Migration. University of Oxford Refugee Studies Centre
Working Paper No. 12, pp. 8-9 (emphasis in original).
10
by proactive and reactive migration, with refugees usually falling on the reactive end of the
scale.27 Thinking of migration choice as a continuum leads to what Turton calls a ‘fuzzy
boundary’ between choice and coercion, which they melt into each other, rather than form
two separate “boxes” in which migrants can be placed. .28 The idea of a continuum is gaining
in importance as a model for explaining migration choice (or lack thereof).29 As such, it could
be said that in all but the most extreme circumstances, some level of agency can be attributed
to the individual. Even when confronted with coercive measures by the host state, the
individual is likely to make choice within the narrow range of possibilities open to her.30 In
this way, the continuum model suggests that the more coercion would be used by the host
state to make an asylum seeker leave, for example, by threatening her with detention, the less
the departure is her autonomous choice, and vice versa. However, the asylum seeker,
practically speaking, does retain a level of choice, for example, to stay and face the prospect
of detention. This is far from an ideal choice, but a possibility nonetheless. That this is the
case is evident from the fact that many rejected asylum seekers and irregular migrants, both in
Israel and in other host states, opt to ‘take their chances’ and see whether they will be arrested
and deported, rather than leave of their own accord after having been given an order to do so.
There is, therefore, a challenge to be dealt with by international law: if voluntariness and
coercion cannot be simply seen as two mutually exclusive concepts, how is it possible to
assert when repatriation has been undertaken in respect of the principle of non-refoulement
(which presupposes voluntariness) or in violation thereof (which presupposes forced return)?
As we shall see in the following sections, this is indeed a complicated assertion to make,
particularly given the tendency in law to clearly categorize cases, which might not fit with the
‘fuzzy boundaries’ of decision making about return in reality. However, a system of norms is
indeed place that provides at least a broad basis for determining whether a host state is acting
in accordance with its non-refoulement obligations. Much of the remained of this paper will
be focused on seeing whether this system is indeed capable in drawing sufficiently clear
Richmond, Anthony H. (1993). “Reactive Migration: Sociological Perspectives on Refugee Movements” in
Journal of Refugee Studies 6(1): pp. 7-24. Also see Richmond, Anthony H. (1994). Global Apartheid. Oxford
Univeristy Press, particularly p. 59.
28
Turton builds, inter alia, on the work of Richmond, Anthony H. (1994). Global Apartheid. Oxford Univeristy
Press, particularly p. 59; as well as Van Hear, Nicholas (1998). New Diasporas. London, UCL Press, particularly
p. 44. Both use the model of a continuum to understanding the propensity of persons to migrate.
29
Middleton, Darren (2005). Why Asylum Seekers Seek Refuge in Particular Destination Countries:
An Exploration of Key Determinants. Global Migration Perspectives paper no. 34. Geneva, Global Commission
on International Migration, p. 3.
30
Crawley, Heaven (2010). Choice or Chance? Understanding Why Asylum Seekers Come to the UK. Swansea
University/Refugee Action, p. 5.
27
11
dividing lines on the continuum of voluntariness and force, thus showing some acts to be
lawful and others not.
Before moving on to a discussion of these norms, we should note that even if there is a
measure of coercion by the host state, this coercion might not be actually relevant to the
decision of the individual asylum seeker to repatriate. As noted earlier, every individual has
the right to leave any country and to return to his own, protected by international law.
Furthermore, as Adelman suggests, every refugee and forced migrant should be able to
repatriate and to regain membership of the society from which they fled.31 Issues of law and
morality aside, the simple practical fact is that, for some refugees and asylum seekers, there is
a desire to return to their country of origin, regardless of whether there is severe pressure from
the host state to do so, or such pressure is completely absent. Such a decision can be inspired
by a desire to reunite with family, home sickness, or a vast range of other reasons that, for the
individual at hand, are sufficient to repatriate. In the case of the Sudanese from Israel, the
referendum on the secession of South Sudan was due to take place in January 2011, and that
this may have been a powerful motive for some, if not all, of the 150 returnees to take the
option to go back at that time.32
Whether the referendum, the unbearable circumstances on Israel or other factors were the
actual reason for the 150 to return cannot be asserted objectively in this paper. However, as
shall be discussed, we can focus on the actions of Israel, and the extent to which these leave
space for individual agency and relatively unconstrained and autonomous decision making
about whether to return or to stay. It is suggested here that it may indeed be possible to
identify actions by host states which prima facie severely limit voluntariness or amount to
force of such extent that it creates a very strong presumption that they have acted in violation
of the principle of refoulement. This is particularly important in situations in which large
groups of protected persons repatriate, and where the motives for return of each separate
individual cannot be ascertained. In such situations, if falling outside the bounds of the legal
Adelman, Howard (1996). “The Right of Repatriation – Canadian Refugee Policy: The Case of Rwanda”,
International Migration Review 30(1): pp. 289-309.
32
Christian Science Monitor (2010). “Israel repatriates 150 Sudanese in broader effort to deter African influx”,
14 December 2010, http://www.csmonitor.com/World/Middle-East/2010/1214/Israel-repatriates-150-Sudanesein-broader-effort-to-discourage-African-influx, last accessed 15 July 2011; YNet News (2010). “Refugee: life
harsher here than Sudan”, 15 December 2010, http://www.ynetnews.com/articles/0,7340,L-3999385,00.html, last
accessed 15 July 2011.
31
12
frameworks discussed here, the host state may be answerable for violations of international
law.
3. The voluntary repatriation framework
The first approach to be discussed here is that based on the notion of “voluntary repatriation”.
As noted earlier, the permissibility of the actions of host states in the repatriation of refugees
is intimately connected to the notion of voluntariness. An international framework for the
“voluntary repatriation” of refugees has been developed through United Nations General
Assembly resolutions, through conclusions of the Executive Committee of the UNHCR, and
through documents that set out UNHCR’s operational guidelines, most notably its Handbook
on Voluntary Repatriation.33 This framework sets out when UNHCR might engage in the
promotion or facilitation of repatriation of refugees,34 and under what conditions such
repatriation can be considered “voluntary”. This framework is specifically designed to deal
with the situation of persons holding refugee status.35 However, it can reasonably be argued
that these standards should also apply (mutatis mutandis) to persons who are still awaiting a
decision on their application to be recognized as refugees.36 After all, these persons might
indeed be refugees under the 1951 Convention, and given the high individual stakes involved,
such persons should at least be treated as such until proven otherwise.37
33
UNHCR (1996). Handbook Voluntary Repatriation: International Protection. Geneva. As discussed below,
the Handbook sets guidelines for UNHCR’s involvement in repatriation operations and, while highly
authoritative, does not provide binding norms on states. In this way, it provides for “soft law” norms, rather than
“hard” international obligations.
34
The framework recognizes two levels of UNHCR involvement. When conditions for return in safety and
dignity are met, UNHCR can promote repatriation, i.e. setting up repatriation schemes and actively offering it to
refugees. If these conditions are not met, UNHCR takes a passive role, but might still be involved in repatriation,
if this is expressly requested by a refugee; this is called facilitation. For a discussion on the differences and
implications see, for example, Zieck, Marjoleine (2004). “Voluntary Repatriation: Paradigms and Pitfalls”,
Refugee Survey Quarterly 23(3): pp. 33-54.
35
If they have lost this status, because cessation has been applied, it is unclear whether these standards are
authoritative (there are separate standards which govern the application of the cessation clauses). In principle,
once they have lost refugee status, these persons are likely to be treated as any other alien without the right to
remain. It is possible, however, that voluntary repatriation operations begin while refugees still have their status.
In such case participation would have to be voluntary – they would only lose their status on departure.
36
The framework focuses on refugees in the meaning of the 1951 Refugee Convention and not on persons
protected by the wider non-refoulement provisions, based, inter alia, on the protection against torture or inhuman
or degrading treatment. As such, the norms set out in the “voluntary repatriation” framework do not explicitly
address the return of the latter group. However, the requirement of voluntariness derives directly from the
prohibition of forced return, which applies not only to refugees (based on the Refugee Convention), but also to
other protected persons (based, for example, on the CAT and the ICCPR). Therefore, if the UNHCR Handbook
would indeed be the authoritative source on establishing whether the return of an individual is voluntary, these
norms would also have to be applied to non-refugees who can nevertheless not be subjected to forced return.
37
Reference to Kritzman/Spijkerboer paper, section II.1?
13
For UNHCR, “promotion” of “voluntary repatriation” means that UNHCR actively
encourages refugees to take up the option of returning, in light of changed circumstances in
their countries.38 Since refugees cannot be forced to return, participation should be on a
strictly voluntary basis.39 UNHCR’s Handbook on Voluntary Repatriation notes that
voluntariness must be assessed based both on the factors related to the country of origin and
to those in the host country:
“Voluntariness means not only the absence of measures which push the refugee to
repatriate, but also means that he or she should not be prevented from returning,
for example by dissemination of wrong information or false promises of continued
assistance. In certain situations economic interests in the country of asylum may
lead to interest groups trying to prevent refugees from repatriating.40”
Since the conditions in the host country are of particular interest to us here, it should be noted
that “the absence of measures which push the refugee to repatriate” is a rather vague
indicator, which is not much elaborated upon in the Handbook. It would imply, at the very
minimum, that refugees are not deprived of their legal status that allows them to remain in the
host country until they have actually returned, and that their rights are de facto respected.
Zieck words this condition as follows:
“The difficulty of identifying true "voluntariness" enhances the need for UNHCR
to scrutinize objectively the refugees' situation. One of the most important
elements in the verification of voluntariness is the legal status of the refugees in
the country of asylum. If refugees are legally recognized as such, their rights are
UNHCR’s Handbook on Voluntary Repatriation notes that in assessing voluntariness both the situation in the
country of origin and in the host country should be taken into consideration. With regard to the country of origin,
requirements under which UNHCR might promote voluntary repatriation include that:
38
-
conditions have changed sufficiently in the country of origin to allow the return of the majority in safety
and dignity
- the return must be lasting and sustainable
[...]
- the return can take place under conditions of:
o legal safety – absence of discrimination, freedom from persecution
o physical safety - freedom from attack, safe routes of return
o material safety – a means of livelihood and access to basic services
39
Zieck, see n. 34 above, p. 36. This principle has also repeatedly been emphasized in UNHCR Executive
Committee resolutions. In particular from resolution No. 18 (XXXI) in 1980 onwards virtually all resolutions
dealing with repatriation have noted that the “voluntary character” of repatriation should be safeguarded.
40
UNHCR Handbook, see n. 16 above, paragraph 2.3.
14
protected and if they are allowed to settle, their choice to repatriate is likely to be
truly free and voluntary. If, however, their rights are not recognized, if they are
subjected to pressures and restrictions and confined to closed camps, they may
choose to return, but this is not an act of free will.”
From this perspective, voluntariness also suggests that host countries are held to actively
protect refugees from harassment and threats by third parties.41 In addition, an integral
element of the ”voluntary character” of repatriation, as noted by UNHCR’s Executive
Committee, is “the individual making a free and informed choice through, inter alia, the
availability of complete, accurate and objective information on the situation in the country
of origin.”42
In the end, however, it is unclear how these elements need to be weighed against each other to
assess voluntariness. The Handbook, therefore, has set out a distinctly open-ended approach,
by suggesting that
“[a]s a general rule, UNHCR should be convinced that the positive pull-factors in
the country of origin are an overriding element in the refugees' decision to return
rather than possible push-factors in the host country or negative pull-factors, such
as threats to property, in the home country.”43
Even when assuming these standards are sufficiently unambiguous for operational purposes, it
is noteworthy that UNHCR itself has struggled balancing the two interrelated elements of
voluntariness and return in safety and dignity;44 or has sometimes been engaged – either due
to political pressure or as a strategic choice - in repatriation exercises which fulfilled neither
element.Barnett and Finnemore, for example, describe the repatriation of Burmese Rohingya
refugees from Bangladesh in 1994-1995.45 In this situation, it was UNHCR, rather than the
host state, that pushed for repatriation, despite the fact that the situation in Burma had not yet
objectively changed to allow safe return. Furthermore, Barnett and Finnemore point to
41
UNHCR ExCom (2004), resolution No. 101 (LV).
Ibid.
43
UNHCR Handbook, see n. 16 above, paragraph 2.3.
44
Takahashi, Saul (1997). “The UNHCR Handbook on Voluntary Repatriation: The Emphasis of Return over
Protection”, International Journal of Refugee Law, 9(4): pp. 593-612.
45
Barnett, Michael and Martha Finnemore (2004). Rules for the World: International Organizations in Global
Politics. Ithaca, Cornell Press (see Chapter 4, “Defining Refugees and Voluntary Repatriation at the United
Nations High Commissioner for Refugees”, pp. 73-120).
42
15
“compelling evidence that UNHCR manipulated information and bribed refugees in order to
get their consent [to repatriate]”46
The “voluntary repatriation” framework is of only limited use when trying to define the scope
of legal constraints on a host state's ability to create conditions that might induce refugees to
opt for repatriation. An important reason for this is the fact that the framework sets few clear
standards for those host states. The definition of voluntariness could be read to imply that any
action by a host state that creates an unfavourable situation for refugees is prohibited.
However, not only is this not explicitly stated, this is also weakened by the strong focus on the
individual decision, or personal autonomy, of refugees. These refugees have to weigh up the
conditions in the host state and the country of origin and decide, albeit ‘freely’, whether they
prefer to remain or to return. Even when the conditions in the host state are suboptimal, this
does not necessarily affect the voluntary decision as defined by this framework. Beyond that,
even when actions by the host state could be considered to undermine voluntariness, this
needs to be balanced against the notion of ‘return in safety’. When a situation of ‘safety’
exists, both host states and UNHCR are likely to push for repatriation, with the issue of
voluntariness often being overshadowed.
In addition to the difficulties in interpreting the concepts of voluntariness and safety, and the
interplay between those two factors, the legal character (or rather, lack thereof) of the
“voluntary repatriation” framework is problematic. The “voluntary repatriation” framework
does not set clear standards which states need to uphold under international law. The
obligation to only repatriate refugees if this is their voluntary choice is deduced, for example,
from the 1951 Refugee Convention’s prohibition of refoulement, but the explicit requirement
of voluntariness cannot be found in the text of the Convention,47 nor in any other international
instruments binding upon states. 48 Rather, the “voluntary repatriation” framework is one that
46
Ibid, p. 106.
The Statute of the UNHCR, which sets out the mandate for the UN refugee agency, does call upon states to cooperate with UNHCR, including in the area of the High Commissioner’s “efforts to promote voluntary
repatriation of refugees” (Article 2(d)). However, as the Statute is a General Assembly resolution, it does not
formally bind states. The only actor specifically bound by the provisions of the Statute is UNHCR itself. See
UNGA Resolution 428(V) of 14 December 1950, “Statute of the Office of the United Nations High
Commissioner for Refugees”.
48
The only international instrument that imposes specific obligations relating to voluntary repatriation is the
1969 Organization of African Unity Convention governing the specific aspects of refugee problems in Africa
(OAU Convention), which is only applicable to African states that have ratified it. The Convention obliges states
to respect the “voluntary character” of refugee repatriation (Article 5(1)), but does not specifically address how
this should be done. Furthermore, the Convention is unique in putting positive obligations on states, including
47
16
focuses primarily on UNHCR action. In this context, it has been noted that “the concept of
voluntary repatriation denotes an institutional policy [of UNHCR] rather than an inter-State
norm,”49 and that: “under the 1951 refugee regime ... the notion [of “voluntary repatriation”]
represents a policy recommendation for States, rather than a legal obligation.”50 As a result,
there may be a legitimate moral claim that a host state (such as Israel), by creating conditions
that ‘push out’ asylum seekers, is acting in contravention of the principles of “voluntary
repatriation”, but not a valid legal claim that it is violating its obligations under international
law. This shows that the protection of refugees and asylum seekers against undue pressure by
host states to repatriate would be well-served by the identification of legally binding norms in
international law. The next section will explore this possibility.
4. Constructive expulsion
While the “voluntary repatriation” framework puts the decision making process of the
individual at the heart of its analysis, international law provisions relating to the return of
aliens generally tend to focus on the obligations of states. The issue of return, in the context of
binding international law instruments, can be reduced to one primary question: is the host
state under obligation to protect against refoulement? If so, forced return is prohibited. If not,
forced return, in principle, is allowed (although certain safeguards may apply when
implementing this return); the wishes of the individual, in this respect, are not really a factor
of consideration. As Barutciski has noted, from an international law perspective, “the actual
desire of asylum seekers is not necessarily a factor that has to be considered in a State
decision to repatriate.”51
To approach the issue of the protection of refugees and asylum seekers against refoulement,
therefore, we need to move away from trying to define “voluntariness” and focus on what
constitutes forced return, and when it is unlawful. Simply put, any act by the host state that
leaves an alien no (legal) choice but to depart from its territory and to return to her country of
origin can be defined as forced return. If a person is protected by the Refugee Convention, or
by the provisions in the CAT and ICCPR prohibiting return to torture or inhuman or
host states, to “make arrangements for the safe return of refugees who request repatriation (Article 5(2)), and to
provide “every possible assistance” (Article 5(5)).
49
Chetail, Vincent (2004). “Voluntary Repatriation in Public International Law: Concepts and Contents”,
Refugee Survey Quarterly 23(3): pp. 1-32, at p. 11.
50
Barutciski, Michael (1998). “Involuntary Repatriation when Refugee Protection is no longer Necessary:
Moving Forward after the 48th Session of the Executive Committee”, International Journal of Refugee Law
10(1/2): pp. 236-255, at p. 249 (emphasis added).
51
Ibid: p. 248.
17
degrading treatment, forced return would automatically amount to a violation of the host
state’s obligations under international law to refrain from refoulement. The same is true, I
have argued earlier, for persons whose entitlement to such protection has not yet been
definitively established (e.g. because they are excluded from refugee status determination
procedures), as the severity of the potential harm requires the utmost restraint on the part of
the host state. Forced return covers, first and foremost, situations in which host states
officially expel aliens, i.e. take an official decision that an alien cannot remain and thus has to
leave the country. Such a decision (an expulsion order) can be put into practice either by the
alien leaving of his own accord,52 or by the host state authorities physically removing him
from the country. States have wide discretion regarding how and whom to expel, but
international law provides some procedural and substantive safeguards. For example, the
decision to expel cannot be arbitrary or discriminatory, and states have to consider each case
individually, thus prohibiting mass expulsion.53 When expulsion does take place, the manner
in which it is done cannot be unnecessarily injurious to the alien. Furthermore, the
International Covenant on Civil and Political Rights (ICCPR) provides that:
“An alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with
law and shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to have his
case reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent
authority.”54
As such, if a lawfully resident alien55 is forcibly removed from a host state without a specific,
formal decision in accordance with law, this is prima facie in breach of international law.
Rather confusingly, states often refer to this as ‘voluntary return’. However, this term has very different
implications when applied to persons who are not protected, than it has for refugees. In short, the ‘voluntariness’
in this case does not constitute a choice between staying or leaving (as is presumed when we speak of voluntary
repatriation of refugees), but a ‘choice’ between leaving of one’s own accord (without physical intervention by
the host state) or being forcibly removed by the host state.
53
Human Rights Committee, General Comment 15, The position of aliens under the Covenant (Twenty-seventh
session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994), paragraph 10.
54
ICCPR, Article 13.
55
The UN Human Rights Committee, which supervises the implementation of the ICCPR, has noted that “if the
legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation
ought to be taken in accordance with article 13.” (see General Comment 15 on the position of aliens under the
52
18
Even when such a formal decision is made, but no due process rights (such as a hearing) are
accorded to the alien, unless the expelling state can justify this on grounds of national
security, the expulsion is also unlawful.
To this extent, the law is clear on the obligations of host states and the limitations on what
they can do to make aliens return to their countries of origin. However, the story of the
Sudanese returnees from Israel shows us that the situation can be much more ambiguous.
They were neither subjected to a legal order to leave, nor were they physically removed by the
host state authorities, thus appearing to have left of their own volition. It has been recognized
on several occasions that even in such situations, host states may have been in breach of their
international obligations. In this respect the UN International Law Commission has stated:
“The compulsory departure of an alien may also be achieved by a State by means
of coercive acts or threats that are attributable to the State rather than a formal
decision or order. In some cases, aliens have been compelled to leave a country
under the guise of a ‘voluntary departure program’ which was in fact compulsory.
These coercive measures which deprive an alien of any real choice other than to
leave the country are sometimes referred to as ‘constructive expulsion’.”56
This concept of ‘constructive expulsion’ was first developed in the case law of the IranUnited States Claims Tribunal, which is examined in more detail below.
4.1 Iran-US Claims Tribunal and ‘constructive expulsion’
The Iran-US Claims Tribunal was set up to deal with a variety of claims arising out of the
turmoil of the Islamic revolution in Iran in the late 1970s. 57 It dealt, among other things, with
the claims of American citizens who had felt compelled to leave Iran during the revolution.
This compulsion, they argued was the result of threats made against them, closure of
American businesses, general violence against US citizens, and the general anti-American
Covenant, paragraph 9). As such, it can be said that any refugee who loses his/her status, or any person who has
sought asylum and is denied, can only be expelled in accordance with the safeguards set out in Article 13.
56
International Law Commission (2006). Expulsion of Aliens: Memorandum by the Secretariat. Fifty-eighth
session, Geneva, 1 May-9 June and 3 July-11 August 2006, UN General Assembly document A/CN.4/565: p. 62
(citations omitted).
57
Brower, Charles N. and Jason D. Brueschke (1998). The Iran-United States Claims Tribunal. The Hague,
Martinus Nijhoff Publishers: pp. 3-9.
19
atmosphere that prevailed at the time. The Tribunal recognized that even in the absence of an
official expulsion order, Iran may have unlawfully expelled American citizens:
“Although it is clear that not every inconvenience which may cause an alien to
leave the country constitutes expulsion, the Tribunal accepts, in principle, the
possibility that the constituent elements of expulsion ... can be fulfilled in
exceptional cases even where the alien leaves the country without being directly
and immediately forced or ordered to do so.”58
For this to be the case, two conditions would have to be met:
1. The departure was the result of circumstances in the host state that are such that the
alien “cannot reasonably be regarded as having any real choice”; and
2. These were connected to acts that are attributable to the state and that had the
intention of ejecting the alien.59
It is useful to reiterate that these conditions relate to aliens in general, that is, persons staying
on the territory of a country of which they do not have the nationality. They do not relate
specifically to refugees or persons otherwise protected from refoulement. The aim in
discussing these conditions, however, is to establish when return, in general, might be
considered forced rather than voluntary, as a matter of law. This would then also be applicable
to refugees and asylum seekers, who also fall within the category of aliens. In those cases, a
finding of forced return would automatically amount to a violation of the host state’s
obligation to refrain from refoulement, that is, the forced return of refugees and other
protected persons.
The Tribunal, notably in three ‘test cases’ (Short v. Iran, Rankin v. Iran and Yeager v. Iran),
explored the parameters of these conditions. Mr Short and Mr Rankin had voluntarily moved
to a hotel where American expatriates had congregated, where they were forced to stay for
several days until they were escorted to the airport. Mr Yeager, by contrast, had been picked
58
International Technical Products Corporation v. the Islamic Republic of Iran, Iran-US Claims Tribunal
Report 9, paragraph 18.
59
Ibid. The analysis in this paper focuses primarily on the first requirement, i.e. that the alien did not have ‘any
real choice’. The notion of intention is an integral part of the constructive expulsion concept, but could be the
subject of a paper in its own right. Some dilemmas presented by the ‘intention’ criterion will, however, be
addressed throughout this paper.
20
up at his house by the Revolutionary Guard and taken to the same hotel, prior to being
escorted to the airport. Much of the deliberations of the Tribunal focused on the extent to
which anti-American action was attributable to the Iranian state, rather than the question
whether this left ‘any real choice’ whether or not to leave. In both the Short and Rankin cases,
the Tribunal found that they had felt compelled to leave because of actions of revolutionaries
who were not working for, or under control of the state, and thus found that Iran was not
responsible.
Chamber Two of the Tribunal also presented a particular interpretation of the causation of the
departure, when, in the case of Mr Rankin, it argued that he had intended to leave Iran
anyway, as he himself had gone to the hotel, prior to be brought to the airport. This, in the
view of the Tribunal, meant that Rankin’s departure had not been specifically caused by
actions which he claimed left him no choice but to leave.
This approach has been criticized by Leigh for having overemphasized the claimant’s
autonomy, to the detriment of a proper examination of the circumstances in which his
departure took place, as well as reversing the burden of proof:
“Chamber Two’s opinion fails to justify its emphasis on an expelled claimant’s
subjective state of mind at the time of departure. It should make no legal
difference that someone Iran wrongfully expelled was considered leaving
voluntarily. Moreover, even if intent is a relevant issue, Chamber Two put the
burden of proving intent on the wrong party. Given the Tribunal’s finding that ...
Iran had an express policy of expelling Americans, the Tribunal should not have
required Rankin to prove that he intended to stay in Iran.”60
Surprisingly, the Tribunal used a very narrow conception of constructive expulsion, which it
had developed itself. This is clear from the fact that, out of the three cases, only Mr Yeager
was found to have been expelled in violation of Iran’s international obligations, particularly
because he had been forced to move to the hotel and subsequently to the airport. In this case,
then, “having no real choice” seems to have been reduced to the fact that the claimant was
physically coerced to leave by agents of the state. Paradoxically, the main objection of the
Leigh, Monroe (1988). “Yeager v. Islamic Republic of Iran and Rankin v. Islamic Republic of Iran”, American
Journal of International Law 82(2): pp.353-357 , at p. 357
60
21
Chamber to this conduct seems not to have been the compulsion behind his departure, but
rather the fact that Yeager was given insufficient time to wrap up his affairs in Iran.61 As such,
even though the Iran-US Claims Tribunal set out the basic criteria for what constitutes
constructive expulsion, its jurisprudence sheds little light particularly on the meaning of the
first part, as ‘having no real choice’, which is largely obfuscated by issues concerning
attributability.
The Tribunal's approach has been the subject of widespread criticism, including from one of
the Tribunal's own judges, Judge Brower. In his dissenting opinion he noted that constructive
expulsion can also occur without any state actor being specifically involved in an act against
an individual, when the state engages “in discrete acts or omissions collectively designed to
bring about [an alien’s] departure.”
62
Furthermore, he argued, the actions of the
revolutionaries against Americans were invoked by a “studied policy” on the part of Iranian
officials to expel all US nationals.63 As such Brower, as well as a number of other
commentators, have argued that the notion of ‘real choice’ should be more expansively
interpreted, taking into consideration the wider context in which the departure of the alien
took place.64 Of particular interest is the criticism by Brower and Brueschke that the Tribunal
focused only on acts by the Iranian authorities, and not on omissions, i.e. failures to act.65
Such omissions might have included failures to effectively protect American citizens from
threatening or violent behaviour by the general population, or the prevention of incitement of
hatred by public figures. The Tribunal also put a heavy burden of proof on the person
claiming unlawful expulsion, even to such an extent that Tribunal Judge Brower suggested
that this may have been impossible to meet under any circumstances. This would nullify the
notion, put forward by the Tribunal itself, that unlawful expulsion could be based on general
circumstances, intentionally created by the host state.
As such, the contribution of the Tribunal to our understanding of forced return is ambiguous.
On the one hand, its case law is important in setting out basic principles upon which an
assessment of constructive expulsion could be based. On the other hand, it has largely made
Cove, Ruth (1988). “State Responsibility for the Constructive Wrongful Expulsion of Aliens”, Fordham
International Law Review 11: pp. 802-838, at pp. 812-813.
62
Ibid., at p. 808, fn. 42
63
Ibid., at p. 809
64
See also, for example, Raibee, Sohrab (1997). "The Decisions of the Iran-US Claims Tribunal in Expulsion
Cases: A Critique", Finnish Yearbook of International Law VII(2): pp. 426-488.
65
Brower, Charles N. and Jason D. Brueschke (1998). The Iran-United States Claims Tribunal. The Hague,
Martinus Nijhoff Publishers, at p. 365.
61
22
these principles meaningless in its own decisions, by focusing specifically on actual physical
coercion by agents of the state taking place without an official expulsion order; this would
clearly fall within the scope of arbitrary expulsion as prohibited in Article 13 ICCPR anyway.
The question therefore remains: are there other acts by a host state that might constitute forced
return under international law? A partial answer might be found in the later work of the
Eritrea-Ethiopia Claims Commission.
4.2 Eritrea-Ethiopia Claims Commission
In 2000, the Eritrean-Ethiopian Claims Commission dealt with the claim, submitted by the
state of Ethiopia against Eritrea, that Ethiopians had been forced to leave Eritrea against their
will and in contravention of international law, in the course of the two countries' conflict.66
The basis for the claim was primarily the assertion that the Eritrean government had instituted
a policy which put Ethiopians staying in Eritrea in a situation of severe economic hardship, as
well as promoting significant anti-Ethiopian sentiment. Referring to the earlier Iran-US claims
cases, the Commission interpreted the former’s criteria for showing constructive expulsion to
require:
“that those who leave a country must have experienced dire or threatening
conditions so extreme as to leave no realistic alternative to departure . These
conditions must result from actions or policies of the host government, or be
clearly attributable to that government. Finally, the government’s actions must
have been taken with the intention of causing the aliens to depart.”67
The Commission's interpretation of constructive expulsion shows clear similarities to that put
forward earlier by the Iran-US Claims Tribunal. The Commission found itself faced with the
interconnected questions of (1) what constituted “dire or threatening situations so extreme as
to leave no choice”, and (2) whether such situations could indeed be shown to be the reason
why the Ethiopians left. However, in contrast to the Tribunal, the Commission did not deal
with claims related to specific individuals who were expelled, but rather with the
consequences of the totality of departures of Ethiopians from Eritrea in a particular period.
This constituted a methodological problem for the Commission. After all, a decision to leave
Reference to Michael Kagan’s discussion of the Eritrean-Ethiopian Claims Commission
Partial Award, Civilians Claims, Ethiopia’s Claim 5, Eritrea-Ethiopia Claims Commission, The Hague, 17
December 2004, paras. 91-95 (emphasis added).
66
67
23
a country is an extremely personal one, in which the specific context matters a great deal. As
such, what one person might find to be a sufficient, and even compelling, reason to leave,
may not be so for another. As such, the Commission was forced to look for an ‘objective’
indicator that could cover all cases at the same time. It did so by looking at the prevailing
conditions at the time of the departure of most Ethiopians, and whether, on the whole, this
could be seen as sufficiently compelling. On this basis, it concluded that:
“the Government of Eritrea took actions in the summer of 2000 that were
detrimental to many Ethiopians’ economic interests and that there was antiEthiopian public opinion and harassment. Nevertheless, many Ethiopians in
Eritrea evidently saw alternatives to departure and elected to remain or to defer
their departures. Given the totality of the record, the Commission concludes that
the claim of wide-scale constructive expulsion does not meet the high legal
threshold for proof of such a claim.”68
While this approach of the Commission no doubt provides a more concrete standard than
could be discerned from the Iran-US Claims Tribunal’s jurisprudence, it can be questioned
whether this standard sufficiently takes into account the circumstances as encountered by each
individual expellee. Using the Commission’s approach, proving constructive expulsion would
depend on a significantly large group (presumably at least the majority) of the targeted group
leaving their host state. It should be noted, however, that individual differences may occur not
only in the personal experience of such circumstances, but also in the de facto circumstances
facing different individuals. For example, as a result of incitement by the state some aliens
may be subjected to violence while others are not. Similarly, policies of ‘economic
deprivation’, even when they are applied to all members of a group, will hit some harder than
others. A person who has savings and possessions will be better able to withstand the impact
of such policies than persons already living in the margins of society. However, it is clear that
some kind of ‘objective’ indicator is indeed necessary to assess the lawfulness of any state
action that leads to the departure of aliens who are under no legal obligation to leave. Can
such an indicator possibly be found in the occurrence of human rights violations?
4.3 A human rights-based approach to constructive expulsion?
68
Ibid., at paragraph 126-127.
24
If we look back for a moment to the reasons put forward in the introduction why the Sudanese
asylum seekers might have felt compelled to leave Israel, we can conceive of these merely as
‘unbearable circumstances’. However, we can also conceive of them as violations of basic
human rights. The reasons put forward focus, inter alia, on limitations on enjoyment of socioeconomic rights (e.g. the right to work, the right to have a decent standard of living),
discrimination and violence against persons, and the arbitrary and potentially lengthy
deprivation of liberty (by being forced to remain in the ‘holding facility’). A focus on human
rights violations, rather than unfortunate circumstances, gives us a clear benchmark for state
conduct, firmly embedded in international law. The purpose of international human rights law
is to both protect against and prevent, violations of individual rights. By virtue of the logic of
human rights, then, it would be reasonable to presume that an individual would be more than
justified in finding herself compelled to leave her host state in the face of violations. As a
result, a shorthand translation of ‘having no real choice’ but to leave could be that the alien
was escaping one or more violations of her rights. From this perspective, if it could be
established that an alien was subjected to a concrete human rights violations, for example the
denial of the right to work, or the denial of freedom of movement within the host state, this
might be a reason to consider her subsequent departure to be forced, rather than voluntary.
This, then, would amount to a violation of Israel’s obligation to refrain from refoulement.
However, such an approach, although providing a much clearer indicator of 'no real choice'
than those discussed earlier, would be problematic on several counts. First, showing that state
actions are indeed violations of human rights may not always be simple. Particularly with
regard to socio-economic rights, host states are only obligated to provide these to the extent
that their resources allow.69 Restrictions for the ‘general welfare’ of the state are permissible
to some extent, giving the host state considerable space to manoeuvre in providing or denying
full access to housing, work, education and health care. Second, the international system
regards legal remedies, rather than international migration, as the appropriate solution to
human rights violations.70 As such, it could be inferred that before invoking the violation of
human rights as a reason for departure and, ultimately, as constitutive of constructive
See, for example, Müller, Amrei (2009). “Limitations to, and Derogations from, Social, Economic and
Cultural Rights”, Human Rights Law Review 9(4): 557-601; and Chapman, Audrey R. (1996). “A ‘Violations
Approach’ to Monitoring the International Covenant on Economic, Social and Cultural Rights”, Human Rights
Quarterly 18: 23-66.
70
The 1951 Refugee Convention, for example, makes refugeehood specifically contingent on the state of origin
being unable or unwilling to provide protection (see Article 1A(2)). This implies that, if the person applying for
refugee status would have been able to find effective remedies in his country of origin, he is not in fact eligible
for refugee protection.
69
25
expulsion, the alien must have sought legal remedies within the host country. An alien would
therefore have to show that departure from the host state was the only way in which to escape
human rights violations, and that she could not first turn, for example, to the police or the
judicial system there.
Third, while generally considered "universal and indivisible",71 not all human rights are
valued and protected equally. The international regime dealing with forced migration provides
us some indications of this. This regime is only finds some forms of displacement to put
obligations on other states, such as persecution based on the grounds set out in the Refugee
Convention. However, if persons feel compelled to leave their countries of origin for specific
violations of their rights, this might not necessarily be enough to trigger the responsibility of
another state to provide protection. For example, while discrimination is a violation of human
rights, this in itself is often not seen as sufficient to make aliens refugees, and thus to give
them a right to protection in another country. As such, the responsibility of a host state to
protect an alien is only triggered in a limited set of circumstances, most notably those set out
in the Refugee Convention (to which may be added very serious violations of fundamental
rights which might trigger non-refoulement obligations not related to refugee status). This
interpretation of the inequality of human rights violations in triggering state responsibility in
cases of migration seems to be confirmed by the International Law Association’s Declaration
of Principles of International Law on Mass Expulsion. The Declaration (not a binding
instrument) defines unlawful expulsion as
“... an act, or failure to act, by a State with the intended effect of forcing the
departure of persons against their will from its territory for reason of race,
nationality, membership of a particular social group or political opinion”72
As such, there seem to be reasons to assume that ‘not having any real choice’ but to leave the
host country would involve a higher threshold than just any action by the host state amounting
See, for example, the Vienna Declaration and Programme of Action, Article 5 of which reads: “All human
rights are universal, indivisible and interdependent and interrelated”. UN General Assembly, World Conference
on Human Rights, 14-25 June 1993, UN document A/CONF.157/23.
72
Declaration of principles of international law on mass expulsion, 62nd Conference of the ILA, Seoul, 24-30
August 1986, Conference Report 1986, pp. 13-18, at p. 13. While the Declaration seems to lean on the grounds
of persecution enumerated in Article 1A(2) of the 1951 Refugee Convention, it is unclear why only four grounds
are mentioned here, while the Refugee Convention contains five grounds, including religion, which is left out of
the Declaration. It is unclear why this omission has occurred.
71
26
to a violation of human rights.73 This would lead to the paradoxical situation that the host state
is under obligation to refrain from any violation of human rights per international human
rights law, that to show that such violations have led to compulsory departure amounting to
constructive expulsion, these would have to be particularly serious.
It furthermore presents us with a situation in which ‘low-intensity’ violations are undervalued,
and are erroneously taken as evidence that the returnee was not a refugee in the first place. A
host state might, not unreasonably, argue that if an asylum seeker opts to return because she is
excluded from the right to work in the host state, this is an indication that she has nothing
particularly serious to fear in the country of origin, and thus is not a refugee. Why, after all,
would someone choose to return because of the lack of work if something much worse, such
as life-long imprisonment or torture, is awaiting back home? This is another example of how
the legal framework related to return struggles to deal with the social reality of migration
choice. For an individual the certainty of not being able to work and to provide for oneself
and one’s family in the host country might, at that moment, weigh heavier than the mere
possibility of being imprisoned or tortured in the country of origin. In such a case, could it be
said that the person is not a refugee and that therefore the refoulement prohibition is nullified?
This is would require further discussion, which is not possible within the framework of this
paper. However, it seems to me that the very serious nature of the principle of nonrefoulement would at the very least require states to ensure that such an ambiguous situation
does not arise, that is, to ensure that refugees do not have to make the choice between two
evils.
An additional problem with respect to human rights violations as an indicator for constructive
expulsion also lies in the attributability. As noted in both the Iranian and the Eritrean
examples above, the reason why individuals feel compelled to leave may lie, at least partially,
perhaps fully, in actions not perpetrated directly by the state, but by private persons. While the
state has a clear obligation to prevent abuses by such private persons, it is not immediately
evident that private actions are attributable to the state. This leads to the question to what
extent a failure to protect has a similar place in the assessment of constructive expulsion as
73
On the other hand, this definition seems to involve a lower threshold of ill-treatment than the refugee
definition used in the 1951 Refugee Convention, with which the definition of mass expulsion shares some
similarities. The refugee definition focuses on persecution, which implies severe human rights violations.
27
positive action by the state that leads to departure. The ILA’s Declaration would suggest that
this is indeed possible:
“’a failure to act’ may include situations in which authorities of a State tolerate,
or even aid and abet, acts by its citizens with the intended effect of driving groups
or categories of persons out of the territory of that State, or where the authorities
create a climate of fear resulting in panic flight, fail to assure protection to those
persons or obstruct their subsequent return.”74
However, even when a failure to protect entails the attributability of the state, and private
persons’ actions clearly had the intent of forcing aliens out of the country, it would still need
to be shown that the host state’s failure to intervene was also deliberate and had the intention
of facilitating the ejection of aliens from its territory.
The problem of human rights violations as a standard for constructive expulsion might also lie
in the likelihood of their de facto occurrence. Both the Ethiopia-Eritrea Claims Commission,
referring to “threatening conditions”, and the ILA, referring to “a climate of fear” seem to
incorporate the possibility of human rights violations that have not yet occurred as possibly
being interpreted as ‘leaving no real choice’ but to leave. However, neither the Commission,
nor the Iran-US Claims Tribunal devote significant attention to future threats, but instead
consider the de facto, observable situation at the moment of departure. As such, no concrete
indicator currently exist for balancing the severity of a potential violation and the likelihood
of it occurring in assessing a possible constructive expulsion case.
4.4 Three different approaches to 'constructive expulsion'
In summary, then, at least three different approaches to assessing whether aliens who left their
host states had a 'real choice’ can be imagined: the Iran-US model, the Ethiopia-Eritrea model
and the human rights-based model. All of these set a very high threshold for presuming that
constructive expulsion actually took place. Of these, the most difficult to satisfy is presented
by the Iran-US model, in which constructive expulsion was only found when the alien was
See footnote 73 above. Should be changed to refer to footnote 48. The notion of a state’s failure to act as a
constitutive element of mistreatment is far from uncommon. Article 1A(2) of the 1951 Refugee Convention, for
example, explicitly incorporates the unwillingness or inability of the state of origin to provide effective
protection. Also see UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1, Geneva,
January 1992: paragraphs 97-100.
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28
physically forced out of the country (as in the Yeager case). Such an interpretation, however,
would make the notion of constructive expulsion largely meaningless, as violations of human
rights would not amount to constructive expulsion as long as no physical force was used. The
Eritrea-Ethiopia Claims Commission’s approach seems to be more appropriate in this respect,
as at least it duly takes account of the possibility that departure which is not physically forced
could still be considered as leaving ‘no real choice’. However, its assessment of such a
situation occurring primarily on collective grounds (whether or not whole groups have left),
leaves individual claimants vulnerable. A third approach, which has as yet no basis in
international jurisprudence on expulsion, and which we attempt to offer in this paper, seems
to be better able to take into account individual situations, by focusing on human rights
violations. The discussion of this possible approach, however, shows that considerable efforts
are still necessary to refine this as an appropriate indicator of constructive expulsion.
5. Voluntary versus forced repatriation: where to draw the lines?
The above discussion shows that many of the norms involved in the debate about voluntary
and forced repatriation remain ambiguous. While it is clear that the principle of nonrefoulement requires repatriation only to take place on a voluntary basis, and prohibits forced
return, both of these concepts leave a lot to be desired when applying in practice. From a legal
perspective, the notion of “voluntary repatriation” is somewhat problematic as it provides
important guidelines, but puts no concrete legal obligations on host states to refrain from
certain actions. At the same time, where international law does put solid obligations on states
that prohibit forced return, the definition of forced return falls far short of the standard that
could reasonably be expected. Since non-refoulement is such a strong norm, it could be
assumed that it is clearly defined when states engage in forced return of protected persons,
and thus transgress this norm. As the discussion of expulsion has shown, this is unfortunately
only the case when an official order to expel a protected person is made, or when a protected
person is physically removed from the host state. In all other cases, the criteria for defining
'constructive expulsion' may be too flexible, and open the door for state action that might lead
to repatriation that is not necessarily 'voluntary' in the sense that it is desired by the returnee,
but is neither completely 'forced' as amounting to unlawful expulsion.
As a result, a significant grey area remains on the continuum of 'voluntariness' and 'force'. To
the extent that the “voluntary repatriation” framework can be found to cover the ‘voluntary’
end of the continuum, it does not extend so far that it meets the area covered by “constructive
29
expulsion”, which starts from the other side. This gap could be overcome if the safeguards
related to “voluntary repatriation” would more explicitly prohibit certain state actions, and if
the notion of “constructive expulsion” can be successfully interpreted in a more expansive
way. Even then, however, the question may arise whether the notions of “voluntary
repatriation” and “constructive expulsion” actually operate on the same level, that is, cover
the same continuum. As noted, the former is mostly an international policy framework, while
the latter deals with ‘hard’ international law. A synchronization might be possible, at least to
some extent, by giving more legal content to the “voluntary repatriation” framework (e.g. by
incorporating it in a multilateral agreement between states). Even then, it would have to be far
more specific on what actions of the host state are permissible. Currently, the “voluntary
repatriation” framework is focused on the situation in the country of origin, as well as the
refugee's statement that she is returning voluntarily, with little concrete significance for the
question when this declaration of voluntariness is the result of an unbearable situation in the
host country, possibly consciously created by the authorities there.
6. The return of Sudanese from Israel: a discussion
Having discussed the theoretical issues related to voluntary and forced repatriation at length,
it is now time to come back to the issue of the return of the Sudanese and see what the
different conceptual frameworks would mean in practice. In this last section, then, the focus
will be on considering under which conditions Israel could have been, or rather, could
successfully be claimed to have been, in breach of its international obligations.
6.1 Voluntary repatriation
As discussed early on in this paper, the prohibition of refoulement is one of the strongest
norms in the protection of asylum seekers. Because of this norm, asylum seekers cannot be
returned without an examination of their claims, unless they choose to return voluntarily.
While this is clear as a legal principle, the matter of assessing when such return can indeed be
considered voluntary is much more ambiguous, and not part of a binding legal framework.
Despite this, the “voluntary repatriation” framework, as used by UNHCR, is an important
indicator and provides a ‘best practice’ standard for states.
As a standard for the behaviour of a host state towards refugees or asylum seekers, the
“voluntary repatriation” framework leaves something to be desired. Its focus is on the safety
in the country of return and the way in which the refugee or asylum seeker makes the decision
30
to return. Nevertheless, it can be said that Israel’s policies, of which some aspects were
highlighted in the introduction, may be difficult to reconcile with the notion of voluntariness.
The framework provides, for example, that the “absence of measures which push the refugee
to repatriate” is an element of voluntariness. If it can be established that the denial of the
opportunity to work by the government is aimed, at least in part, at encouraging asylum
seekers to leave, this would undermine the notion of voluntariness. Similarly, the recent
practice of writing on Sudanese asylum seekers' visas that they do not constitute work
permits75 could be considered a "reduction in services" which the UNHCR Voluntary
Repatriation Handbook strongly discourages.76 After all, this action increased the difficulties
for Sudanese to find work (and thus to support themselves). The continued legal limbo of the
Sudanese, which is also clearly the result of Israeli policy, also militates against the idea that
the return was voluntary.
At the very least, then, it can be said that Israel has created a situation in which the optimal
conditions for a voluntary choice to stay or to repatriate were not established, and thus has not
acted in the spirit of the “voluntary repatriation” framework. This is still a long way removed,
however, from saying that Israel acted in contravention to the refoulement prohibition. It
should be noted, that the returnees could well have been motivated by a genuine desire to
repatriate to Sudan, also for reasons unrelated to the situation they faced in Israel. Whether
this is true or not, depends on an assessment of each individual case, which is beyond the
scope of this paper.
6.2 Constructive expulsion
In addition to the concept of “voluntary repatriation”, the problem of assessing the legitimacy
of Israel’s actions has also been approached from the ‘other’ side, by examining what
constitutes forced return. Forced return, it was argued, is most easily identified when asylum
seekers are officially expelled, or are physically removed from the country, without due
process. It has also been noted that the Iran-US Claims Tribunal introduced a definition of
‘constructive expulsion’ (conditions providing no real choice but to leave, attributable to the
See, for example, African Refugee Development Centre (2010) “The Right to Work under Question” in ARDC
Newsletter, November 2010, http://www.ardc-israel.org/en/info/newsletter/?action=view&messageid=38, last
accessed 15 July 2011; Haaretz (2011). “African Refugees Hired to Build Fence to Keep Migrants out of Israel”,
10 March 2011,
http://www.haaretz.com/print-edition/news/african-refugees-hired-to-build-fence-to-keep-migrants-out-of-israel1.348212, last accessed 15 July 2011.
76
UNHCR Handbook, see n. 33 above, paragraph 4.1.
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31
host state, and intentional) , which could be used to assess cases in which no official
expulsion order is given, or when no physical removal takes place. At the very least the
official expulsion order or physical removal provide for a clear standard by which to assess to
repatriation of the Sudanese. There is no evidence that any of the returnees were either subject
to a legal order to leave Israel, or were forced by the Israeli authorities to board the airplane
taking them out of Israel. As such, based on these criteria, the repatriation did not constitute
unlawful expulsion.
Then what about the broader approach used by the Eritrea-Ethiopia Claims Commission, i.e.
assessing the “totality of the record”? A claim of “constructive expulsion” based on this
ground would be difficult to maintain as well. Even if we would assume that each and every
one of the150 Sudanese involved in the repatriation felt compelled to leave due to the
prevailing circumstances in Israel, there is a much larger group of Sudanese, subjected to
similar conditions, currently still in the country. This would indicate, according to the
Commission’s reasoning, that the conditions in Israel do not objectively provide no real
choice but to leave. For it to conclude this, there would have to be a considerable increase in
returns, until a ‘critical mass’ was achieved. As such, the argument that Israel is ‘pushing out’
asylum seekers might gain strength as larger numbers opt for repatriation. It would then also
have to be proven, based on evidence collected from the returnees, that the conditions in
Israel, and not other factors, lay at the heart of their decision to return. For example, such
increased returns could also be related to improved security and/or economic conditions in
Sudan. Furthermore, the requirements that these conditions were created by Israel, with the
specific intention to induce return, would also have to be satisfied. At present, then, there
seems little scope for considering the repatriation of the Sudanese to have amounted to
“constructive expulsion”, based on the Commission’s criteria. At any rate, it is questionable
whether they could be invoked to prevent “constructive expulsion”, as the Commission’s
method is retrospective. Even if “constructive expulsion” would be found to have occurred,
this, at most, might give rise to a claim for compensation.
The final method that was discussed for assessing “constructive expulsion” was the use of
human rights violations as an indicator. Although potentially the most relevant, it should
again be emphasized that no international body has so far sought to use this standard in claims
related to “constructive expulsion”, and it is unclear if it would be sufficiently robust for that
purpose. Nevertheless, assuming for the moment that it is a valid standard, it is worth
32
speculating on its practical implications. For a claim of “constructive expulsion” to be made
on this ground, the first obvious step would have to be that a violation of one or more basic
human rights occurred. For this purpose, the socio-economic rights of asylum seekers,
specifically the right to work and by extension the right to a decent standard of living. It has
already been noted that making a positive finding of a violation of socio-economic rights,
however, is not easy, as states are only obligated to provide such rights to the extent of their
available resources,77 although a minimum core has to be protected.78 This implies a wide
margin of appreciation for the host state as to which social needs it prioritizes, and how it
seeks to meet these needs. Furthermore, many countries restrict the right to work of certain
categories of aliens, and it is often found that that this differential treatment can be reasonably
justified.79 In addition, Israel’s own ambiguous policy might shield it from a positive finding
of a violation of an internationally protected right, as the current practice does contain
loopholes for asylum seekers to work without sanction. This is not to say that the official
denial of the right to work to asylum seekers might not constitute a violation, but that making
a successful case for this is fraught with difficulties.
Other rights at stake present similar problems in making a claim of “constructive expulsion”.
Discrimination and even violence by members of the public against asylum seekers might be
a reason for some of them to repatriate. But are these acts attributable to the Israeli
government? The government’s political rhetoric certainly does little to help, and might even
be throwing fuel on the flames.80 Additionally, it might be said that the Israeli government has
done too little to provide protection against discriminatory acts or against violence. In this
case Israeli authorities would definitely bear responsibility, even though they were not
themselves the perpetrators. However, it would still need to be established that the
government’s culpability in these acts was intentional, and with the specific aim of pushing
out asylum seekers. Convincingly proving this, in the absence of a clear admission by the
government on this issue, would also be very difficult.
77
See above, p. 26.
See, for example, Final Report of the Special Rapporteur on the Prevention of Discrimination, David
Weissbrodt 2003, on the rights of non-citizens. The rapporteur notes that asylum seekers should not be left in
condition of destitution during procedure. See E/CN.4/Sub.2/2003/23/Add.2, para. 22.
79
In principle, based on international law, only refugees can definitively claim a right to work on a par with
Israeli nationals. However, since Sudanese asylum seekers are deliberately held outside the refugee status
determination system, and thus are not recognized as refugees, this makes a claim on this basis extremely
problematic.
80
On 28 April 2011, for example, Interior Minister Eli Yishai was quoted as being engaged in “all-out war”
against “infiltrators”, an unspecific and generic derogatory term used for refugees, asylum seekers and irregular
migrants alike. See http://www.inn.co.il/News/News.aspx/218894.
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33
The other element that was frequently mentioned in the media as one of the reasons why
Sudanese had opted to leave, the yet to be built holding facility, presents its own practical
problems. First of all, at this point there is little concrete information about the function of the
facility; will it be an ‘open’ place, where asylum seekers have, in principle, freedom of
movement,81 or will it resemble a detention centre? Who will be required to stay in the
facility; only those arriving in Israel after its opening, or all asylum seekers already staying in
Israel? And what about the conditions? The severity of the conditions faced in the facility will
also be an important factor in considering whether it would violate basic human rights. In
many cases, then, it will only be possible to make a proper assessment of the relevance of the
‘holding facility’ in relation to a claim of “constructive expulsion”, after more details emerge.
Even if the compulsory stay in the ‘holding facility’ could prima facie be considered a
violation of rights, it would still need to be asserted that the threat is sufficiently likely to
occur. Only if there are no reasonable prospects of avoiding this fate (for example, because
the compulsory stay is not enforced) would this amount to a situation in which an asylum
seeker might have ‘no real choice’ but to leave Israel. Like with the other issues, it would then
also have to be established that the real motivation behind the compulsory stay in the facility
is to make life in Israel unbearable in the expectation that it will push asylum seekers to
repatriate. Furthermore, it would have to be shown that no effective remedies (e.g. legal
challenges) are available.
7. Conclusion
The previous section sets out just some of the issues that would have to be taken into account
by an asylum seeker or advocate when trying to make a claim of “constructive expulsion” on
the basis of the dire conditions faced by asylum seekers in Israel. In each case, it will be
difficult to satisfy the combination of the conditions causality (no real choice, based on those
circumstances), attributability to the government, and intention. This does not mean it is
impossible, but it would take a concerted effort gathering the right data and making the right
links. This would include research on the motivations of asylum seekers to leave and to what
extent their decisions were indeed linked to circumstances in Israel, rather than to other
factors; an analysis of the link between the circumstances on the ground and the role that the
government has had in creating (or maintaining them); a legal analysis of the extent to which
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Although the location of the facility might make this freedom practically meaningless.
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these circumstances can be found to amount to violations of rights guaranteed in international
treaties; and an analysis of the political discourse to show the government’s rationale behind
specific policies and actions.
This would a very ambitious agenda. Even if it could be fulfilled, it should be borne in mind
that “constructive expulsion” represents a negative approach, setting out only the absolute
minimum legal standards applicable to returns of asylum seekers. From this perspective,
pushing for deeper political commitment by the Israeli government to the “voluntary
repatriation” framework, which is much more positive in its approach, would be of more
benefit for potential returnees. This would have to be combined, however, with a concerted
international effort for stronger norms to encourage appropriate behaviour by host states in
“voluntary repatriation” operation. Only this will help ensure that future returnees, the
numbers of which will no doubt rise, do not keep finding themselves somewhere in the gap
between “voluntary repatriation” and “constructive expulsion”, without a solid basis to hold
Israel to account. At the same time, significant effort from legal scholars is necessary to
develop frameworks that are more amenable to the way that of return decisions are actually
made, which are more likely to take place on a voluntary-forced continuum than in a strictly
mutually exclusive manner.
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