This is a guest post by Caroline Esser, a research associate with the New America Foundation’s Bernard L. Schwartz Fellows Program.
The newest way to sell Israel to Americans: LGBT rights. Search gay rights on the Anti-Defamation League’s website and what do you find? A ready-to-print and available for order poster that reads, “Which of the Middle East nations protects the legal rights, safety & freedom of the LGBT communities? Only Israel.” At the bottom of the poster, in smaller font, it states, “Israel is by far the most democratic state in the entire Middle East. It supports civil rights for all its citizens regardless of sexual orientation, gender, race, creed & religion. Dialogue begins when it’s based on facts“.
Likewise, scan The Jewish Federations of North America’s site and you will find a series of press releases about its recent “LGBT Pride in Israel Mission.” A novel way of persuading young activists to join the pro-Israel forces, the mission brought hundreds of members of North America’s LGBT community to Israel. The trip was specifically designed to expose North Americans to the vibrant LGBT culture in the Jewish homeland and to help them “forge ties with [their] brethren in Israel”.
Israel advocacy groups like the ADL and the Jewish Federations have latched on to LGBT rights in Israel as a means of combating negative press and demonstrating Israel’s dedication to equal rights and democracy. It is a logical issue to showcase since, in many ways, Israel is far ahead of the United States in terms of LGBT rights. For instance, while the United States only repealed “Don’t Ask, Don’t Tell” last December, Israel has allowed openly gay men and women to serve in the military since 1983 and it has not imposed any restrictions on their placement within the military since 1993. Israel is also one of the few countries around the world that has granted legal recognition to same-sex couples with regards to property tax benefits, inheritance taxes, and housing aid; recognized same-sex adoptive parents; and registered the marriages of same-sex couples who were married outside of Israel.
Unfortunately, the ADL’s poster and the Federations’ themed trip only reveal one side of the picture. If such groups were to include the occupied territories in their assessment of Israel’s treatment of gays and lesbians, they would quickly realize that Israel’s record is not as perfect as it seems. Sadly, when the ADL wrote in small print that Israel supports civil rights for “all its citizens” it meant exactly what it said–basic human rights are strictly for Israelis.
In their 2008 study, “Nowhere to Run: Gay Palestinian Asylum-Seekers in Israel,” Michael Kagan and Anat Ben-Dor describe in detail Israel’s unsympathetic and unbending policy towards gay Palestinians. In stark contrast to the vibrant gay culture within Israel, in the West Bank and Gaza Strip Palestinians face intense discrimination and often brutal violence if they are discovered to be gay. Kagan and Ben-Dor tell of men who have been violently tortured by other men in their communities, the Palestinian authorities, and even their own families for their sexuality. Others have been subjected to harassment, accused of being Israeli collaborators, labeled as prostitutes, or murdered. In pursuit of protection and the ability to openly express their sexuality, there have been at least ten cases in which gay Palestinians have sought refuge in Israel. However, despite their desperation, Israel refuses to even review gay Palestinian applications for asylum (those who have successfully received asylum have had to submit their cases directly to the UNHCR headquarters in Geneva). Moreover, gay Palestinians who have illegally entered Israel have been arrested and promptly deported–returned to the very environments in which their lives were at risk and in which they will now face further danger as they are questioned not only for their sexuality but for their choice to spend time in Israel.
While Israel should be protecting gay Palestinians simply because of its commitment to human and civil rights, Kagan and Ben-Dor point out that Israel is also legally bound to do so under the Convention and Protocol Relating to the Status of Refugees that Israel ratified in 1951. (It should be noted that this Convention does not apply to those Palestinians who are refugees as a result of the 1948 or 1967 conflicts and who are receiving protection from UNRWA. However, there are many within and outside the Occupied Territories who are not registered with UNRWA and thus qualify for protection from the UNHCR). Any qualifying person who can prove he/she has a “well-founded fear of being persecuted” because of his/her membership in “a particular social group” has a right to protection in another country. Furthermore, the Convention explicitly forbids signatories from forcing refugees to return (“refouler”) to the place where their lives were endangered. Thus, Israel is not only violating the Convention by refusing Palestinian applications but by failing to respect the principal of non-refoulment.
Kagan and Ben-Dor argue that Israel could easily avoid this discriminatory policy and democratic pitfall by addressing each request for asylum individually. If Israel carefully assessed the needs and intentions of the individual in question and then made a decision about granting asylum from there it could uphold its obligation to refugees as defined by the 1951 Convention and protect Israeli security–keeping any individuals with criminal histories or suspicious stories out. Anticipating Israeli objections to their policy recommendation, Kagan and Ben-Dor explain that “granting asylum to a Palestinian in Israel would set no precedent, and have no relevance, to the dispute over whether Palestinian refugees from 1948 have a right of return. The right to seek asylum invokes a separate body of law from the debate over refugee return; the Palestinians we discuss in this report are seeking international protection in Israel as a foreign country, not return or repatriation to ancestral homes” (26).
However, while Kagan and Ben-Dor are correct that, legally, gay asylum seekers have entirely different rights and protections than the Palestinian refugees displaced during the 1948 or 1967 conflicts, they overestimate Israel’s willingness to separate the two issues. The simple and moral solution has not been adopted because of the greater context, the sentiment towards Palestinians that Kagan and Ben-Dor write off.
In essence, granting asylum would allow more Palestinians into the country and that is something Israel cannot swallow. Kagan and Ben-Dor are right, if Israel could screen each applicant separately, there would be very little risk associated with granting them asylum. However, the very remote chance that Israel’s generosity could be taken advantage of and its security put in danger is enough to make Israel neglect its dedication to human rights altogether. Rather than take a small gamble on security (and alter the demographics ever so slightly), Israel prefers to clump all Palestinians under one label: ‘Threatening.’
While it is not wrong to congratulate Israel on the accomplishments it has made, Israel’s policy towards Palestinian gay asylum seekers reveals the startling artificiality of the Anti-Defamation League’s poster and the Federations’ themed trip. The harsh reality is–no matter how loudly one announces Israel’s success–Israel is not living up to its international obligations. In many ways, its treatment of Palestinian gays undermines its achievements with regards to gay rights within the 1967 borders. Israel cannot be held up as the paradigm of human rights until the Gaza Strip and the West Bank are included in the picture.
— Caroline Esser