Egypt’s border closure flouts international law 

Every major conflict in recent decades — from the wars in Afghanistan and Iraq to the depredations of ISIS to the Russian invasion of Ukraine — has sent large groups of civilians streaming across borders, seeking refuge from the fighting. Countries throughout those regions, and far beyond, have opened their doors to large number of refugees, often from markedly different cultural backgrounds — a welcoming policy that is embraced by liberals.

Few people would say that civilians should be condemned to be trapped in conflict zones — until the current war in Gaza. 

Egypt has sealed its border with Gaza to hundreds of thousands of civilians seeking safety. In explaining the decision, Egyptian President Abdel Fattah al-Sisi said that he will turn Gazans back at the border because their flight, while keeping them safe, would hurt the cause of Palestinian statehood.

In short, Sisi is denying asylum seekers safety for geopolitical ends. Egypt’s categorical refusal to admit these refugees violates international law, and goes against the overwhelming practice of dozens of states in conflicts over the past decade. 

Egypt’s clearest duty arises under the refugee convention of the Organization of African Unity (OAU), which Egypt joined in 1980. That agreement provides a broad definition of a refugee: any person who “owing to external aggression, occupation, foreign domination, or events seriously disturbing public order” is “compelled to leave his place of habitual residence in order to seek refuge in another place outside his country.” 

The treaty has exceptions, such as the carve-out for war criminals, which might apply to certain Gazans. But that is no justification for obstructing a large mass of innocent people, including women and children, from seeking safe haven in Egypt. When it comes to refugee law, a rotten apple doesn’t spoil the bunch. Egypt cannot categorically exempt all Gazans from refugee status. 

Because Gazan civilians have refugee status under the OAU convention, Egypt is required to use absolute best efforts to “receive” them and “secure” their safe settlement in Egypt or elsewhere. The OAU convention is crystal clear that Egypt cannot subject Gazans to “rejection at the frontier, return or expulsion” if it would have the effect of forcing civilians back to a war-torn Gaza. Indeed, the African Union, the OAU’s successor organization, stated in 2022 that “all people have the right to cross international borders during conflict.” That there might be hundreds of thousands of Gazan refugees seeking asylum provides no excuse to Egypt. 

The OAU convention forbids Egypt from pushing back refugees. Instead, Egypt should request other OAU countries — many of which are Muslim-majority — to share the burden, as European countries have done with refugees from the Middle East.

Egypt also has a duty to keep its border open under the 1951 United Nations Refugee Convention and its subsequent 1967 Protocol. Those instruments provide a somewhat narrower definition of a refugee than the OAU convention. Unlike the OAU convention, the UN convention and protocol do not link refugee status with conflict or war. But according to UN guidelines, countries must allow asylum in cases of “large-scale arrivals of people fleeing objective circumstances of origin, such as conflict.” To trigger this duty, all that’s needed is “readily apparent, objective circumstances” in the home state that might justify such status for the escaping group. Gazans, by virtue of their nationality, are fleeing objectively violent circumstances. 

Egypt is free to vet asylum seekers at the border for ties to radical or violent groups — but, if President Biden is right that most Gazans do not support Hamas, there is no justification for sealing the border.

Indeed, in the case of Gaza, the determination of refugee status has already been made. In 2023, UNRWA — the UN body that operates in Gaza — estimated that 1.7 million Gazans (over 80 percent of the population) are “refugees.” To be sure, UNRWA considers those people refugees from the 1948 Arab-Israeli War. But how can the UN maintain with a straight face that those Gazans are refugees of a war that occurred 75 years ago yet aren’t refugees of a conflict happening right now?

Human rights groups that condemn “illegal pushbacks at the border,” either in the U.S. or Europe, are strangely silent on this topic. Certainly Egypt should not be forced to shoulder the burden itself — more than 13 European countries took at least 10,000 Syrian refugees, while Arab states like Iraq and Lebanon have taken in many hundreds of thousands. Why should Egypt be allowed to seal itself off at the expense of civilian suffering? Egypt’s refusal will likely serve as a precedent for other countries and other conflicts, fundamentally undermining refugee law. 

The United States provides Egypt with $3 billion a year in aid and is thus in a position to pressure it to live up to its international obligations. Those who believe in welcoming refugees should be at the forefront of such pressure. Once the international community accepts the notion that there can be no escape from the Gaza War, it will be easier to accept calls to open other international borders to asylum seekers.

Eugene Kontorovich is director of George Mason University’s Scalia Law School’s Center for the Middle East and International Law.