Under international refugee law, states have an obligation not to return anyone fleeing war, torture, or persecution, known as “non-refoulement.” This obligation is part of customary international law and binds all states, regardless of whether or not they have signed the 1951 Refugee Convention.
In an op-ed published by Foreign Policythe UN special rapporteur on torture, Alice Jill Edwards, wrote “Egypt Is Obliged to Let Gaza Refugees In” and argued that Cairo’s decision to seal the border has exacerbated a humanitarian disaster and is also illegal. She correctly states that “the legal reality is that states cannot pick and choose which human rights obligations to implement.” While she acknowledges that both “the Israeli state and Egypt have legal obligations” to enable fleeing Palestinians entry, the article is peculiarly solely focused on Egypt’s duties, despite the fact that it is Israel that is imposing starvation on Palestinians in Gaza, preventing adequate aid from entering, committing acts of genocide, forcibly and repeatedly displacing the population to areas that are not safe, and equally closing its borders to refugees fleeing the unlivable circumstances it has created.
As of the time of writing, Israel has taken control and closed off the Palestinian side of the Rafah crossing, barring the exit and entry of people and humanitarian aid. Edwards also skirts over Israel’s long-standing violation of Palestinian refugees’ right to return by simply conceding that “Israel has an abysmal track record of allowing Palestinians who have fled to reenter” and then moving on.
This framing is, unfortunately, a continuation of more than 75 years of international complicity with Israeli crimes against Palestinians, one that accepts Israeli expansionist logic and rejection of international law and places the responsibility for Palestinians on neighboring Arab states and the international community. When the Israeli state was created in what Palestinians refer to as the Nakba (“catastrophe”), some 750,000 Palestinians were uprooted from their homes and fled to neighboring Arab countries. Neither they nor their descendants were ever allowed to return to their homes, despite their rights to return, restitution, and compensation being enshrined in international law and reiterated in UN General Assembly resolutions on an annual basis.
The displacement did not end there. Roughly 300,000-400,000 Palestinians were forcibly displaced during the 1967 War, mostly to Jordan, and since then, hundreds of thousands of Palestinians have been displaced from the Occupied Palestinian Territories through a variety of methods, including house demolitions, deportations, destruction of livelihoods and a generally coercive environment. Residents of occupied East Jerusalem have also had their residencies revoked, which led to them being permanently barred from returning to their city. These measures, coupled with an unprecedented rise in settler violence in recent years, have contributed to a slow-drip ethnic cleansing of the Palestinian population of the Occupied West Bank and East Jerusalem to make way for more illegal Jewish settlements.
Edwards fails to acknowledge this context and Israel’s role and responsibility in creating refugees and internally displaced populations while expecting neighboring Arab states to shoulder the responsibility for the refugees it created. Over 75% of the population of Gaza – some 1.7 million out of 2.2 million – are Nakba survivors or their descendants and are recognized refugees, who have a right to return to their homes within Israel. Since October 7th, Israeli officials have been openly calling for a “second Nakba”, making explicit the intent to forcibly and permanently displace the Palestinian population of Gaza. As early as October, Israeli think tank Misgav Institute for National Security and Zionist Strategy published a paper urging the Israeli government to take advantage of the “unique and rare opportunity to evacuate the whole Gaza Strip.” Israeli ministers have urged the government to set up new Jewish settlements in Gaza. National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich called for Palestinians to be removed from Gaza. In tandem, and since the very beginning of the genocide in Gaza, Egypt has been under intense pressure to open the Rafah border and absorb the besieged Gaza Strip’s population in the Sinai, thus facilitating Israel’s long desired goal – as explicitly stated by senior government officials – to depopulate the Gaza Strip and regain control over it.
Israel has always used the argument of “security” to expel more Palestinians from their homes and annex even more territory. For example, 85% of the Separation Wall’s route (which the ICJ found to be illegal in an Advisory Opinion in 2004) deviates from the Green Line separating the West Bank from Israel, thus encroaching on Palestinian land and displacing them. More recently, by suggesting that it create a “buffer zone” in Gaza, Israel is again using the argument of “security” to further expel Palestinians and expropriate their land.
At the same time, this security argument has been used for decades to deny Palestinians the right to return to their homes in Israel and is now used to deny them the right to seek refuge in Israel. It is possible to argue that Palestinian fighters may infiltrate the refugee populations fleeing Gaza and use the opportunity to attack Israel, yet Edwards responds to this argument from the Egyptian side, stating, “While that threat certainly exists, the international legal framework includes safeguards to protect against this, and robust screening processes must be put in place to ensure that militants do not cross the border alongside civilians.”
If it is possible to address security concerns when Palestinians flee to Egypt, why is it not possible to do the same for Israel, which has the additional obligation of enabling the return of refugees to their original homes? Why should Israel’s security concerns trump Palestinian human rights and where do we draw the line on what is “permissible” to guarantee Israel’s “security”?
The actual issue at hand is the impunity that Israel continues to enjoy, which the article perpetuates by failing to place equal if not more emphasis on Israel’s obligations. While Egypt should not get a free pass — and the article is correct to point out its obligations — it furthers Israel’s “above-the-law” status by failing to hold it to the same standards. Palestinians are right to fear that fleeing to Egypt could mean that they are prevented from returning to their homes, since Israel has used similar wars as a pretext to permanently displace the population, and the international community has time and again shown itself incapable of enforcing Palestinians’ return. In other situations of ethnic cleansing, the international community was adamant that return was necessary in order to reverse ethnic cleansing. Yet, Palestinians end up having to choose between being killed in order to stay in their homeland or being forced into a life of permanent exile in order to survive.
Both Israel and Egypt have the obligation not to deny Palestinians the right to enter their territories to seek safety. The focus should be on the cause of the mass displacement and how to put an end to and reverse it rather than how to manage it to the benefit of Israel and to the detriment of Palestinians. As we are about to commemorate the 76th anniversary of the Nakba, isn’t it time we hold Israel accountable for ethnically cleansing Palestinians from their homes over the decades or will we just idly watch as it continues to depopulate and colonize what remains of historic Palestine?