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David Matas

 
David Matas: Legal bases for the rights of Jewish refugees

by David Matas, March 15, 2015

 

(Remarks for a presentation at an event hosted by the Embassy of Israel 8 December, 2014, Jacob Ballas Centre, Singapore)

 

 

I am going to talk about the legal basis of rights for Jewish refugees from Arab countries and Iran.  First let me say a bit about who these refugees are. 

 

Before the advent of the State of Israel, the Jewish population in various countries in the Middle East outside of what later became Israel was close to one million souls.  These communities had lived in the Middle East for thousands of years, centuries before the advent of Islam.

 

In 1948, the year Israel began, the Jewish population of Arab countries was 856,000; in 2001 the figure was 7,800.[1] During that period, from 1948 to 2001, another 57,000 were displaced from Iran.  About 600,000 settled in Israel.

 

According to United Nations estimates, the Arab Israeli war of 1948 created 726,000 Palestinian refugees.  So there were substantially more Jewish refugees uprooted from Arab countries and Iran than there were Palestinians who became refugees as a result of the 1948 war, about 200,000 more.

 

Each country has its own drama.  In 1948, the Jewish population of Aden was 8,000.  In 2001 there were none.  For Algeria, the figures for 1948 and 2001 were 140, 000 and zero.  For Egypt, the numbers for those years were 75,000 and 100.  For Iraq, the numbers are 135, 000 and 100.  For Lebanon, they are 5, 000 and 100.  For Libya, we see 38,000 and zero.  For Morocco, the figures are 265,000 and 5,700. For Syria, they are 30,000 and 100.  For Tunisia, statistics are 105,000 and 100.  For Yemen, they are 55,000 and 200.

 

These people were not, for the most part, voluntary migrants seeking to leave their home countries for economic reasons or wanting to immigrate to Israel for religious or ethnic reasons.  They were mainly refugees forced to flee to save themselves.  Before they were displaced, they were threatened, harassed and persecuted.  Their property was forfeited or confiscated, either before or after they fled.  The Jews who fled Arab countries and Iran are a victim population, people who suffered human rights violations at the hands of the governments and populations in the countries in which they lived.[2]

 

There is lots more that could be said about the figures and facts, what happened and to whom.  But my talk is intended to primarily legal.  So I will switch to the law. 

 

I want to talk about four rights of this Jewish population - the right to protection, the right to self-determination, the right to redress and the right to equality.  The rights and their legal bases are intertwined.

 

A. Protection

For the rights of refugees generally and for the rights of Jewish refugees specifically, we look to Office of the United Nations High Commissioner for Refugees. The Statute of the Office has one provision in particular which engaged the Office, when it came to Jewish refugees, the transfer of assets.  The engagement of the Office in that provision goes beyond establishing the need to respect that provision.  It demonstrates that this Office considered this population to be refugees.

 

The Statute of the Office obligates the High Commissioner to provide for the protection of refugees falling under the competence of his office by, amongst other duties, "endeavouring to obtain permission for refugees to transfer their assets and especially those necessary for resettlement."[3]   This provision covers all assets.

 

Governments are expected to cooperate with the High Commissioner in the performance of his or her functions and especially, amongst others, this function. A United Nations General Assembly resolution passed in December 1950

          "calls upon governments to cooperate with the United Nations High Commissioner for Refugees in the performance of his functions concerning refugees falling under the competence of his Office especially by  .... permitting refugees to transfer their assets and especially those necessary for their resettlement."[4]

 

There need be no nexus between the human rights violations that had caused the flight and the assets left behind to trigger the duty owed by the High Commissioner. Indeed, the assets may remain under the ownership of the refugee. As long as there are any restrictions on the transfer of the assets out of the country fled, the Statute of the High Commissioner requires him to act.

 

In order for a refugee population to fall within the mandate of the High Commissioner, the High Commissioner or some other instance has to determine that the population has or had a well-founded fear of persecution.[5]  Persecution is any serious violation of human rights.[6]   Such persecution was plain if one looks at the facts. The UNHCR made an independent determination on at least two occasions that Jews from Arab countries were victims of serious human rights violations that caused their flight. That determination remains valid and has contemporary legal consequences, beyond the previous efforts of the High Commissioner to obtain permission from persecuting governments to transfer refugee assets.

 

Former High Commissioner Sadako Ogata, in a previous life had been an academic. When she retired in 2000 as High Commissioner, she transferred her papers to the UNHCR archives with the wish that they be opened to researchers.  Her papers included those of previous High Commissioners, since the tradition had been to pass on the papers of one Commissioner to the next on change of command of the Office.[7]

 

I wrote with Stan Urman, executive director of the NGO Justice for Jews from Arab Countries, and Irwin Cotler, a report found on the website of Justice for Jews from Arab countries titled "The Case for Rights and Redress".  To research that report, I went with Stan Urman to Geneva in 2003 to the archives of the Office of High Commissioner.  We found documents in which the UN determined Jews from Arab countries to be refugees, documents which had never before been seen by anyone other than staff of the Office of the United Nations High Commissioner for Refugees.

 

In his first statement as newly elected High Commissioner, Mr. Auguste Lindt, at the January 29, 1957 meeting of the United Nations Refugee

 
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