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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 Fund Executive Committee (UNREF) in Geneva, said:

          "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." [8]

The letter referred specifically to the provisions in the Statute of the UN High Commissioner for Refugees and to the General Assembly Resolution which addressed transfer of refugee assets.

 

Dr. E. Jahn for the Office of the High Commissioner wrote to Daniel Lack, Legal Adviser to the American Joint Distribution Committee, on July 6, 1967:

          "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."[9]

 

The High Commissioner has gone about endeavouring to obtain permission from Arab governments for Jewish refugees to transfer their assets from the Arab countries they fled.   Stan Urman, in a doctoral thesis for Rutgers University, sets out these endeavours.[10]

 

For instance, during the week of January 11th to 18th, 1959, Mr. Lindt accompanied by Mr. Assad Sadry of the UNHCR staff, travelled to Cairo to meet with members of the Government of the United Arab Republic.  The High Commissioner tried to obtain an agreement with the Government for the transfer of assets of mandated refugees and to consider arrangements for safeguarding property pending the transfer of assets.[11]

 

On March 13, 1959, Dr. Lindt wrote to the Egyptian Minister of Foreign Affairs Dr. Mahmoud Fawzi alluding to their recent discussions on "the problem of assets of stateless persons," including "desequestration of certain property and its subsequent safe custody, and the transfer of assets and pension rights." The High Commissioner indicated that he "was pleased to hear that you consider the solution of this problem to be important" and indicated that since "agreements pertaining to these matters have been concluded by your Government with the Governments of France and the United Kingdom ... the time has come to re-examine this problem." No such Agreement was ever concluded.[12]

 

Mostly, those efforts did not succeed. However, the efforts themselves are noteworthy. They remind us that the High Commissioner is available, still, to pursue the transfer of assets. As well, the determination by the High Commissioner that these refugees fall within his mandate is a determination by an international instance that these refugees have or had a well-founded fear of persecution.

 

B. Self-determination

The Jewish people has the same right to self-determination of peoples as any other people.  Self-determination of a people serves two purposes.  One purpose is to ensure a representative, democratic governing framework in which the people can participate.  The second is to protect, preserve and develop the people's identity.[13]

 

Before World War II and the creation of the State of Israel, Jewish communities in the diaspora had a vibrant cultural life.  But that life was felled by the Holocaust and the displacement of Jews from Arab countries and Iran.

 

In a secular world, many Jewish people do not know the ins and outs of the Jewish religion.  However, it takes no more than a passing glance at Judaism to realize that it is integrally bound up with the land of Israel.

 

Before the Holocaust, there was a lively debate within the Jewish community world wide whether the creation of a Jewish state was necessary for the survival of the Jewish people.  The Holocaust and the forcible displacement of Jews from Arab countries ended that debate.  In retrospect, the failure to create the State of Israel much earlier was a tragic mistake of epic proportions. 

 

Now, after the Holocaust, the global Jewish community is a remnant, a tiny minority who depend on the existence and flourishing of the State of Israel for the preservation, protection and development of their cultural identity.  A person who participates in the cultural life of the Jewish community no matter where in the diaspora has to be struck by the centrality of Israel and Israelis to every aspect of that community's cultural vitality.

 

The survival of Israel is necessary for the cultural survival of the Jewish people.  Israel is all that rests between Jewish cultural survival and oblivion.  The end of the state of Israel would be an act of cultural genocide against the Jewish people everywhere.

 

The cultural aspect of self-determination applies to all Jews, Ashkenazi and Sephardic.  The democracy aspect of self-determination applies with particular force to Sephardic Jews.  Sephardic Jews in Israel cannot expect a representative, democratic governing framework in which they can participate anywhere in the Middle East other than Israel.

 

There is a certain irony to this result.  Arab states and Iran, through their antisemitic zeal, have created a compelling reason for the existence of Israel, the need for Israel to protect Sephardic Jews and allow their cultural flourishing, which the Arab states and Iran will not allow.

 

The United Nations Educational, Scientific and Cultural Organization (UNESCO) in January 2014 indefinitely postponed, on the request of Arab states, a planned display on the history of Jews in the Middle East.  Protests led to a reversal of the shelving of the project and the display opened, finally, June 11 at the UNESCO headquarters in Paris, an opening I attended.  The display was co-hosted by the Simon Wiesenthal Centre and authored by Robert Wistrich of the Hebrew University of Jerusalem.  It consisted of 24 panels setting out the history of Jews in the Middle East starting with Abraham and running to the present day.

 

UNESCO is highly politicized and, like the rest of the United Nations, a forum for vociferous anti-Zionism. The mere fact that the exhibit took place is an achievement, progress in having the Jewish people and the Jewish state treated like any other.

 

Nonetheless, the exhibit had one gaping hole, the story of the movement of Jews from Arab countries to Israel.  There is one sentence in the panel titled "Israel among the nations" which says "By 1968, Middle Eastern Jews already represented 48% of the entire Jewish migration to Israel." And that is more or less it.

 

Robert Wistrich had prepared for the exhibit a panel on Jews from Arab countries but UNESCO vetoed it.  It was made clear to Wistrich and the Simon Wiesenthal Centre that, if they insisted on this particular panel, the exhibit would not take place. 

 

The exhibit countered many different elements of anti-Zionist propaganda.  Why was silence on this issue, the history of the migration of Jews from Arab countries to Israel, the red line for anti-Zionists?

 

The answer is that this story does more to counter anti-Zionist mythology than any other.  Anti-Zionist mythology says that Jews are outsiders who have come from Europe and North America to colonize Arab territory.  The fact that about half of the Jews of Israel are descendants of those who have lived continuously in the region since time immemorial undermines this colonizing myth.

 

It was irrational for Arab states, at one and the same time, to combat the existence of a Jewish state and to be instrumental in its creation through the expulsion of their Jewish populations who inevitably, for the most part, ended up in Israel.  The only consistent explanation for both Arab state behaviours is hatred for Jews in their midst.  That is a story that, understandably, Arab states did not want to be told. 

 

We need to take a cue from the anti-Zionist's own rankings.  If what is central to the core of anti-Zionist propaganda is cover up of the story of Jews from Arab countries then, in turn, that story must be central to the combat against anti-Zionism, to the struggle for the right to self-determination of the Jewish people.  If we can learn that lesson from the UNESCO cover up, it will have done us a favour.

 

C. Redress

Victims have a right of redress.  The right to redress includes reparations.  Although mostly the Jews from Arab countries were displaced decades ago, many are still suffering resettlement difficulties that emanated from their displacement.   The reason the Office of the United Nations High Commissioner for Refugees engaged in encouraging transfer of assets, mentioned earlier, was to aid in refugees in their resettlement.

 

Holocaust victims have benefited and still benefit from some form of reparations.  These reparations have made resettlement easier for Holocaust victims than for Jews from Arab countries. 

 

The Government of Israel decided in 1969 to document, within the Justice Ministry, damages to property and persecution of Jews from Iraq, Syria, Egypt and Yemen who immigrated to Israel since 1948.  The Government in March 2002 expanded that decision to include the Jews who left all Arab states and Iran since the 1940's.[14]  The Government announced, in February 2003, a budget of three million new Israeli Shekels to register claims by Israeli immigrants from Arab countries.[15]

 

Although the bulk of Jews who fled Arab countries and Iran after 1948 went to Israel, many, about 25%, did not.  Those refugees are as entitled to reparations as the Jews who fled to Israel.  The Israeli decisions relate only who Jews to immigrated to Israel and not to all Jews who fled.

 

The American Sephardi Federation launched a campaign in 2002 to collect testimonials from all Jews displaced from Arab countries.  Forms used to be available on line.[16]

 

Redress includes, when we ask for justice for Jews from Arab countries, even more importantly, a right to the truth, a recognition of what happened to the victims.  The Israeli Knesset approved in June 2014 a bill requiring various Ministries of Government to remember the exit and deportation of Jews from Arab countries and Iran.  The bill was proposed by Knesset members Shimon Ohayon and Nissim Zeev. This legislation is both itself a form of redress and a legal basis for further redress.

 

The designated day of commemoration is November 30th, one day after the United Nations General Assembly in 1947 passed a resolution recommending to Britain to partition the territory of Palestine, which it controlled, between an Arab and Jewish state.[17]  That resolution prompted the attacks on the Jewish communities of Arab countries which led them to flee.

  

As a result of the Knesset bill, the Minister of Education will encourage educational activities to increase awareness of the injustice done to Jewish refugees from Arab countries and Iran and of their right to redress.   The Ministry of Foreign Affairs is holding events, of which this event is one, with the same purpose.

 

Generally, for victims, often the worst part of their plight is a sense of isolation and abandonment, a feeling that no one notices or cares.  The fact that we notice, we care, that we show solidarity, that we say we know this happened, is the least we can do for these victims.

 

D. Equality

Finally, there is a right to equality.  The claim of Jewish refugees from Arab countries for redress is as strong as, if not stronger than, the claim of Palestinian refugees for redress.  It would be a grave injustice if the rights to redress of Palestinian refugees were recognized and the rights to redress of Jewish refugees from the same conflict were ignored.

 

Yet, that is exactly what has happened.  Occasionally, the two sets of claims have been put on equal footing.  A United Nations Security Council Resolution adopted in 1967 calls for "a just settlement of the refugee problem" without distinction between Palestinian and Jewish refugees.[18]  The Camp David Accords and the Egyptian-Israeli Peace Treaty provide that "the parties agree to establish a Claims Committee for the mutual settlement of all final claims", again without distinction between Palestinian and Jewish claims. President Carter stated in a press conference in 1977 that "Palestinians have rights...obviously there are Jewish refugees... they have the same rights as others do."[19]  A 1987 tribunal relating to the claims of Jews from Arab countries chaired by former Justice Arthur Goldberg of the United States Supreme Court concluded that silence about the claims and rights of Jews from Arab countries is simply not tolerable.[20] 

 

But in practice that is not how things are working out.  In 1991, the Madrid Peace Conference established a Multilateral Working Group on refugees.  Its mandate was to ensure the status and rights of "all persons displaced as a result of the 1948 Arab-Israeli conflict".  Yet, those involved in the Working Group, "save perhaps the Israelis", viewed their efforts as relating to Palestinian refugees only.[21] 

 

From 1947 to November 2007, when Stan Urman, Irwin Cotler and I finalized our report, 126 UN General Assembly resolutions referred to the plight of Palestinian refugees.  In not even one UN General Assembly resolution during that period was there any reference to Jews displaced from Arab countries.

 

There was a specific UN agency created to aid Palestinian refugees - UNRWA - the United Nations Relief and Works Agency.  No such UN agency was created for Jews forcibly displaced from Arab countries and Iran.

 

Billions of dollars have been spent by the international community to provide relief and assistance to Palestinian refugees.  There has been no such international financial support to ameliorate the plight of Jewish refugees from Arab countries.

 

The contrast between the incessant omnipresent blare about Palestinian refugees from territory that became Israel and the virtual silence on Jewish refugees from Arab countries shows, along with other indicators, that advocacy focused on Palestinian refugees is mostly not about a humane solution to a refugee problem and almost entirely about anti-Zionism.  Only when the silence about Jewish refugees from Arab countries ends can the expression of concerns about Palestinian refugees be credible.   Only when both groups are considered as populations victimized by the wars for Israel's existence can the plight of the Palestinian refugee population hope to be resolved.

 

Anti-Zionist mythology portrays Palestinian refugees as victims of the creation of the State of Israel.  The fact that there were two displaced populations and that the Jewish displaced population was more numerous than the Palestinian shifts the blame for refugee victimization to the place where it belongs, anti-Zionists and their attacks on the existence of the State of Israel. 

 

Anti-Zionists attempt to mobilize sympathy for the underdog by portraying the Palestinians as victims and Israelis as perpetrators.  The existence of an even larger population of displaced Jewish victims from Arab states guts this narrative of Palestinians as unique underdogs.

 

Jews expelled or driven out from Arab countries were resettled outside the region or locally integrated in Israel. Anti-Zionists have refused to contemplate for Palestinians either resettlement or local integration; anti-Zionists would rather keep that population in enforced misery as hostages to anti-Zionist rhetoric, as fodder for propaganda against the existence of Israel. The contrast between the hospitality Israel has offered to Jewish refugees and the hostility Arab states have manifested to Palestinian refugees is stark.

 

Palestinian peace negotiators have argued that whatever injustice was done to Jewish refugees from Arab countries was not inflicted by the Palestinians.   This position ignores the fact that many of the Jewish refugees generated by the wars against the existence of Israel came from the West Bank and Gaza, about 40,000.  Be that as it may, the refusal of Arab states to confront the reality of the injustice to Jews from Arab countries means that, if the issue is not dealt with in Palestinian Israeli negotiations, it is not likely to be dealt with at all.

 

Justice for Jews from Arab countries is necessary not only for Jewish refugees but also for Palestinian refugees.  Only by treating the two populations equally will we shake the anti-Zionist mindset which foments never ending war between Israel and its neighbours with Palestinian refugees as hostages.

.....................................................................................................................................

David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.  He is senior honorary counsel to B'nai Brith Canada and Justice for Jews from Arab Countries.

 

    [1]  "Jewish Population in Arab Countries 1948-2001" Roumani, "Maurice; The Jews from Arab Countries: A Neglected Issue". WOJAC, 1983; and American Jewish Yearbook: 1958, 1969, 1970, 1978, 1988, 2001, Philadelphia: The Jewish Publication Society of America.

    [2] David Matas Aftershock: Anti-Zionism and Antisemitism, Dundurn Press, Chapter 11, 2005

    [3] Article 8(e).

    [4] No. 428 (V) paragraph 2(g).

    [5] Article 6B.

    [6] Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 51.

    [7]  Records of the Office of the High Commissioner, Reference code UNHCR 13 http://www.unhcr.org/44086ac42.pdf

    [8] United Nations High Commissioner for Refugees, Report of the UNREF Executive Committee, Fourth Session - Geneva 29 January to 4 February, 1957.

    [9] United Nations High Commissioner for Refugees Document No. 7/2/3/Libya.

    [10]  "The United Nations and Middle East Refugees: the Differing Treatment of Palestinians and Jews" by Stanley A. Urman, a dissertation submitted to the Graduate School-Newark Rutgers, The State University of New Jersey in partial fulfilment of the requirements for the degree of Doctor of Philosophy, May 2010, http://www.justiceforjews.com/stan_phd.pdf, (the Urman thesis) Chapter 5 Provision of Services to Middle East Refugees B. U.N. High commissioner for Refugees iv) Direct Interventions by the UNHCR

    [11]  Urman thesis at page 212.

    [12] Urman thesis, pages 212 and 213

    [13]  See the Saskatoon Statement on Self-determination, March 6, 1993, adopted at the Martin Ennals Memorial Symposium.

    [14] Excerpt from cabinet communique, March 3, 2002.

    [15] Itamar Levin, "Finance Ministry budgets NIS 3m to register claims by Jews from Arab countries", Globes [online], February 19, 2003, .

    [16] At .

    [17] Resolution 106

    [18] Resolution 242.

    [19]  October 27, 1977.

    [20] Findings, page 7.

    [21] "The Madrid Peace Conference and the Refugee Working Group" an unpublished paper by Kara Stein

 
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