Egypt Is Obliged to Let Gaza Refugees In

In recent months, Rafah in the southern Gaza Strip has experienced population expansion on a dramatic scale. Before the war, the Rafah area, which abuts the Egyptian border, was home to around 275,000 people. Now, an estimated 1.5 million people are crammed in there, many in tent cities visible in satellite images.

In February, U.N. Secretary-General António Guterres warned that an Israeli military operation in Rafah, as Israeli officials have repeatedly said they are planning to do, “would exponentially increase what is already a humanitarian nightmare with untold regional consequences.”

This latest armed conflict began on Oct. 7, 2023, when Hamas and other Palestinian militant groups perpetrated mass atrocities against Israel, including killings, brutal mutilations, torture, and sexual assaults. More than 200 Israelis and other nationals were abducted, ranging in age from 10 months to 86 years. More than 100 remain unaccounted for.

In response, Israel unleashed a military campaign of extraordinary intensity. The civilian death toll in Gaza is intolerably high, especially the estimated 14,000 Palestinian children who have been killed. Israel says Rafah is the last stronghold of Hamas and in the absence of a hostage deal it is intent on continuing its military campaign.

According to the United Nations, famine is imminent. The World Bank and U.N. also estimate that more than 60 percent of all homes in the territory have been damaged or destroyed as well as vital medical and civilian infrastructure. In all, some 1.7 million Palestinians have been internally displaced.

So why, in a war of this intensity, are there no refugees? Or perhaps the question should be asked in a slightly different way: Where are the refugees from Gaza?

The simple answer is that most Palestinians are trapped within Gaza behind fortified borders, impregnable to all but those with international passports or exceptional connections. According to the Egyptian government, nearly 4,000 people have been evacuated into the country for medical treatment along with their families. A further 67,000 foreign and dual nationals have also been able to leave, but these are not refugees, and most foreign and dual nationals will have since moved on from Egypt.

By way of comparison, at the end of last year 6.5 million refugees from Syria and nearly 6 million Ukrainians were being provided protection outside their countries. In any conflict of this scale and with this magnitude of pain and suffering, one would anticipate a mass influx of refugees into surrounding countries. There have been few situations in living memory where an entire blockade has prevented people from escaping imminent threats to life and limb.

It is remarkable that more than six months into this conflict so few people have had the chance to leave, even though there are daily statements from international organizations that there is no safe place in Gaza; even though UNRWA, the U.N. agency for Palestinian refugees, says it cannot provide protection or assistance; and even as the international community says humanitarian relief is not reaching those most in need.

Wherever people flee from or to, states are prohibited from sending anyone to face risks of war, torture, or persecution. This universal obligation includes letting people escape, giving sanctuary for as long as the threat persists and to return safely when conditions allow.

These rights originate in the teachings of the monotheistic religions. According to Islamic migration law, individuals have the right to seek and be granted asylum in any Muslim state. Judaism, whose people have long fled persecution, has a biblical principle of welcoming and protecting the stranger.

Torture in the conflict is widespread. I have reviewed evidence of the extreme torture perpetrated during the Oct. 7 assault by Hamas and other Palestinian fighters, as well as reports of ongoing violations against hostages. My office has received allegations of torture and mistreatment by Israeli forces against detained Palestinians. The collective punishment of the Palestinian people is, in my legal opinion, tantamount to torture.

While there is little legal ambiguity and the right to asylum is an apolitical right, there are few more politicized regions than the Middle East. Neighboring Arab countries have historically borne the greatest burden of influxes of fleeing Palestinians, and these influxes have often caused significant political instability in their own states. Israel has an abysmal track record of allowing Palestinians who have fled to reenter.

So it is unsurprising that Arab leaders are now deeply sensitive to any charge of helping to facilitate the mass expulsion of Palestinians from Gaza. This would be a “red line,” according to King Abdullah II of Jordan. The possibility of Palestinians fleeing en masse in a repeat of the Nakba—the displacement of around half the Arab population of Palestine in 1948—haunts leaders in Cairo, throughout the region, and well beyond.

In due course, the International Court of Justice will determine whether there has been a genocide in Gaza. The court’s provisional measures recognize that all states have obligations to prevent genocide, which would include preventing the killings of members of a national group, by, for example, letting them leave the territory.

Despite the complexities of the politics of this conflict, the legal reality is that states cannot pick and choose which human rights obligations to implement. It is self-evident that Israel will not open its borders to Palestinian refugees, but the Israeli state and Egypt have legal obligations to do so. Egypt’s decision to seal its border with Gaza violates international humanitarian law and international refugee law.

Egypt cites security concerns as a reason for not letting in Palestinian refugees, especially given the challenges of militancy in the Sinai Peninsula potentially being aggravated by the arrival of battle-hardened fighters from Gaza alongside civilians. 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.

Early in the conflict, Egyptian Foreign Minister Sameh Shoukry told CNBC that he could see “no reason why Egypt, which is hosting 9 million refugees—hosting them and providing them integration into our society at considerable burden on our economy—should have to bear solely [the] additional influx of Gazans.”

That figure appears to be way off the mark, at least based on the latest UNHCR statistics. The U.N. Refugee Agency says Egypt currently hosts 575,000 registered refugees and asylum-seekers from 61 countries, while another nearly 250,000 refugees have not yet been registered. More than half of those registered are Sudanese, with Syrians forming the next largest group. The estimated number of Palestinians in Egypt is unclear as they are not included in any official figures, but may number in the hundreds of thousands.

Shoukry is right, though, to say that Egypt should not have to bear responsibility for Palestinian refugees alone. Other states and international organizations must support them.

UNRWA serves Palestinian refugees in Jordan, Lebanon, Syria, Gaza, and the West Bank, including East Jerusalem. Under the 1951 Refugee Convention, responsibility transfers to UNHCR outside these areas. In other words, UNHCR is required to support Palestinian refugees who reach Egypt. The Refugee Convention stresses that international cooperation is a foundational principle and that all states must play their part.

There have been reports that Egypt has been clearing land near the border preparing for refugees in the event of widescale fighting in Rafah. The international community and the U.N. have been right to call for a cease-fire and for the immediate and unconditional release of all hostages. With negotiations still proceeding, the humanitarian imperative to save lives must be paramount.

Whenever peace is achieved, the level of destruction will take years to repair. Where and how are Palestinians from Gaza to live in the meantime?

The fact remains that the right to flee and to seek asylum under law is an individual right. Palestinian families, as they consider their future, must be able make this decision for themselves. The U.N.—whether it is UNRWA within the territories or UNHCR in Egypt and beyond—must support Palestinian civilians.

Short-term planning to help relieve pressure on Egypt and other countries receiving any refugees should include offers of medical evacuations, family reunification, and temporary protection transfers into third countries. There must be commitments of return to Gaza as soon as conditions allow. There are many precedents around the world of similar comprehensive strategies by the international community.

Right now, though, civilians in Gaza have no ability to determine their fate. Starvation is becoming ever more likely, and death could come at any moment. Palestinians deserve the opportunity to choose whether they wish to flee, however painful a decision it is.