Israel accepts or rejects the UN refugee agency’s positions as it sees fit. In addition to indicating a general disregard for the United Nations, its approach toward UNHCR, whose establishment Israel once enthusiastically supported, demonstrates a serious need for additional refugee law expertise.
By Dr. Yuval Livnat
R. told Interior Ministry representatives that he is an Eritrean citizen and eligible for protection from deportation to his country. The United Nations High Commissioner for Refugees, which interviewed R., gave his lawyer from the Hotline for Migrant Workers a letter supporting his position. The Interior Ministry determined that R. is Ethiopian. A petition was subsequently submitted to the court, and the state recently responded to the petition, writing, “The United Nations High Commissioner for Refugees is a voluntary humanitarian body that can provide support and assistance to foreign nationals residing in Israel,” but nothing more, and therefore UNHCR’s opinion in support of R.’s asylum request should not be attributed significant importance.
Soon after Israel’s founding, David Ben Gurion coined the term “Um Shmum” (“Um” denoting the Hebrew acronym for the United Nations), which expresses contempt for the body’s institutional-political importance. This term also denotes a feeling, shared by segments of the Israeli public, that the UN adopts unfair policies towards Israel, particularly regarding the Israeli-Palestinian conflict.
Whatever the moral and political stance towards the UN, while a derogatory position towards UN bodies is inherent in official documents that Israel submits to the court, the legal error expressed in a response letter drafted by the Tel Aviv District Attorney’s Office is surprising. UNHCR is not a “voluntary” body. It was established under Resolution 319 (IV) of the UN General Assembly in 1949, and its authorities were determined in the Statute of the Office of the United Nations High Commissioner for Refugees, adopted under decision 428 (V) of the UN General Assembly in 1950. Furthermore, Article 35 of the Refugee Convention – a document enthusiastically supported by the State of Israel during its drafting and passage – determines that, “The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”
The article later determines that the contracting states undertake to provide the Office of the High Commissioner, or any other agency of the United Nations which may succeed it, information and statistical data requested regarding the condition of refugees, the implementation of the Refugee Convention, and laws, regulations and decrees that are or may be in force related to refugees. Article 2 of the 1967 Protocol to the convention reiterates these commitments. The State of Israel signed the convention and protocol, and ratified both. (More on the authority of the UN here.)
Interestingly, for years, Israel would refer to UNHCR’s expertise, primarily when UNHCR would recommend rejecting an individual’s refugee claim. For example, in one case, the State Prosecution claimed, “In light of UNHCR’s expertise in this field, and in light of the thorough determination process that it conducts, Israeli authorities accept UNHCR’s recommendations in most cases.”
UNHCR is not a “voluntary body,” and declaring it as such indicates the need for increased knowledge of refugee law within the State Prosecution. When it served the state’s interests, the Prosecution touted UNHCR’s expertise in courts. This does not mean that the State of Israel is legally obliged to accept all UNHCR recommendations, but it must cooperate with UNHCR and regard its recommendations very seriously.
Yuval Livnat is an academic instructor at the Tel Aviv University Refugee Rights Clinic. This post was translated by Orna Dickman.