Were Jews who left Arab countries all refugees? In countries such as Iraq and Egypt, where Jews wereby lawstripped of citizenship and property and expelled, there is no doubt that Jews were refugees. But what of Jews in countries where there was no state-sanctioned discrimination? Point of No Return consulted a human rights lawyer for her advice.
The UN Convention on Refugees was approved at a special United Nations conference on 28 July 1951. It entered into force on 22 April 1954. It was initially limited to protecting European refugees after World War II but a 1967 Protocol removed the geographical and time limits, expanding the Convention’s scope. Because the convention was approved in Geneva it is often referred to as “the Geneva Convention,” though it is not one of the Geneva Conventions specifically dealing with allowable behaviour in time of war.
What is a refugee? Article 1 of the Convention as amended by the 1967 Protocol provides the definition of a refugee:
“A person who owing to a well-founded 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..”
UNWRA, created by UN Resolution 302 following the 1948 Arab-Israeli war, was initially set up to care for Jewish as well as Arab refugees. Since Israel had very quickly absorbed Jewish refugees who were forced to flee their homes in Jerusalem, Judea and Samaria, UNWRA became – and still is – exclusively dedicated to the care of Arab refugees.
Jews who were made refugees in the 1950s and 1960s would have fallen within the mandate of the United Nations High Commissioner for Refugees. On two occasions, in 1957 and again in 1967, the United Nations High Commissioner for Refugees (UNHCR) determined that Jews fleeing from Arab countries were refugees who fell within the mandate of the UNHCR.
“Another emergency problem is now arising: that of refugees from Egypt. There is no doubt in my mind that those refugees from Egypt who are not able, or not willing to avail themselves of the protection of the Government of their nationality fall under the mandate of my office.”
Mr. Auguste Lindt, United Nations High Commissioner for Refugees, Report of the UNREF Executive Committee, Fourth Session – Geneva 29 January to 4 February, 1957.
“I refer to our recent discussion concerning Jews from Middle Eastern and North African countries in consequence of recent events. I am now able to inform you that such persons may be considered prima facie within the mandate of this Office.”
Dr. E. Jahn, Office of the UN High Commissioner, United Nations High Commissioner for Refugees, Document No. 7/2/3/Libya, July 6, 1967:
What of those who left because conditions were untenable rather than because of a government decree of expulsion? According to human rights law, there is no doubt that they would qualify under the current understanding.
The UNHCR Handbook, although not the law, is regarded as the authoritative guide to interpreting the Convention, states:
“although persecution is normally related to action by the authorities of a country…where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.”
In a 2002 decision in the English courts, the judge gave the example of Jews being attacked in 1939 Germany by Brownshirt thugs and the authorities pretending such attacks were beyond their control. The judge stated that this was what the drafters of the 1951 convention would have had in mind when choosing the wording they did.
At a recent screening of the film Forgotten Refugees, a member of the audience made an apt analogy with Employment Law by calling it constructive expulsion. In employment law you can sue for unfair dismissal not only if the employer sacks you unjustly, but also if conditions at work are so untenable and the employer does nothing to remedy the situation so that the employee can’t bear to stay on and leaves.
This applies to the very real fear that Jewish girls, for instance, were under threat of being abducted and forcibly converted to Islam in the late 1950s and early 1960s in Morocco and Tunisia. Following each Arab-Israeli war or colonial crisis, Jews found themselves under physical threat. They did not have confidence in the authorities, some of whom incited or even participated in anti-Jewish disturbances, to protect them.