Angels and Clouds: B’Shalach Exodus 13:17-17:16

Angels and Clouds: B’Shalach Exodus 13:17-17:16

by

Howard Adelman

To continue the theme of God as a coercive power with an outstretched arm and a mighty hand who defeated all the Egyptian gods, in this section the Israelites are led south along the Red Sea. It will be the tides of the Red Sea that will inundate the Egyptians, not the Sea of Reeds.

The prerequisite is there – unity. They must place a mezuzah on the door posts to recall God’s help and, more importantly, to recognize, as the prayer says on the parchment enclosed in the mezuzah, “Hear, O Israel, the LORD (is) our God, the LORD is One”. (Deuteronomy 6:4) They must be unified with a faith in one God with many attributes rather than gods divided among themselves with different expertise who quarrel among themselves.

B’Shalach refers to God “letting go.” First Pharaoh had to let the people go. Now God must do the same, but not without teaching the Israelites the art of war. The Israelites must now learn to fight their own battles. They must learn to become a military power in their own right. And the terror of war may make them yearn even for slavery as a preferable alternative or authoritarianism rather than fighting for democracy. The latter lesson would come much later.

וַיְהִ֗י בְּשַׁלַּ֣ח פַּרְעֹה֮ אֶת־הָעָם֒ וְלֹא־נָחָ֣ם אֱלֹהִ֗ים דֶּ֚רֶךְ אֶ֣רֶץ פְּלִשְׁתִּ֔ים כִּ֥י קָר֖וֹב ה֑וּא כִּ֣י ׀ אָמַ֣ר אֱלֹהִ֗ים פֶּֽן־יִנָּחֵ֥ם הָעָ֛ם בִּרְאֹתָ֥ם מִלְחָמָ֖ה וְשָׁ֥בוּ מִצְרָֽיְמָה׃

Now when Pharaoh let the people go, God did not lead them by way of the land of the Philistines, although it was nearer; for God said, “The people may have a change of heart when they see war, and return to Egypt.” (13:17)

But if you are going to fight war, you must learn the basic principles as well as master the practices. The first lesson of war is that you need arms. “Now the Israelites went up armed out of the land of Egypt.” (13:18) Since the only source was the Egyptian army, they had to have stolen arms as well as silver and gold from the Egyptians. But they never had time to be trained in the use of those arms. Thus, a direct battle with the Egyptians at that time was inconceivable.

The second lesson of war is that you must be very well disciplined and trained. A mob cannot fight a war. Wars require visionary leaders (angels) and soldiers very well versed in the military arts. Nothing could be more useless than sending off a philosopher to fight in a war – unless, of course, he was a philosopher of war and could teach the general principles of war and their application to strategy and tactics.

The third lesson of war is that an army never, or, hardly ever, sleeps. An army might need a pillar of fire to travel during the night.

וַֽיהוָ֡ה הֹלֵךְ֩ לִפְנֵיהֶ֨ם יוֹמָ֜ם בְּעַמּ֤וּד עָנָן֙ לַנְחֹתָ֣ם הַדֶּ֔רֶךְ וְלַ֛יְלָה בְּעַמּ֥וּד אֵ֖שׁ לְהָאִ֣יר לָהֶ֑ם לָלֶ֖כֶת יוֹמָ֥ם וָלָֽיְלָה׃

The LORD went before them in a pillar of cloud by day, to guide them along the way, and in a pillar of fire by night, to give them light, that they might travel day and night. (13:21)

But why a pillar of cloud by day? Because the Israelites needed a cover. The fourth lesson of war is that daylight offers the real danger for warriors. They must travel in a cloud, in camouflage, dressed perhaps as simple shepherds so that the peoples among whom they pass do not detect them as warriors and prepare a defense.

לֹֽא־יָמִ֞ישׁ עַמּ֤וּד הֶֽעָנָן֙ יוֹמָ֔ם וְעַמּ֥וּד הָאֵ֖שׁ לָ֑יְלָה לִפְנֵ֖י הָעָֽם׃ (פ)

The pillar of cloud by day and the pillar of fire by night did not depart from before the people. (13:22)

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far; when far, we must make him believe we are near.”
― Sun TzuThe Art of War

The fifth lesson of war is to take the safest route, even if it is a long way round. The Israelites were forced to travel, not along the easy route eastward along the Mediterranean from Goshen, but the long circuitous trek southward via Succoth to the south-eastern tip of the Sinai Peninsula.

“He will win who knows when to fight and when not to fight.”

― Sun TzuThe Art of War

The sixth lesson of war is that when they must camp, and all armies must stop and sleep sometime, it is important where they camp even if it means backtracking to a safe spot where there is a minimal perimeter between them and an enemy.

דַּבֵּר֮ אֶל־בְּנֵ֣י יִשְׂרָאֵל֒ וְיָשֻׁ֗בוּ וְיַחֲנוּ֙ לִפְנֵי֙ פִּ֣י הַחִירֹ֔ת בֵּ֥ין מִגְדֹּ֖ל וּבֵ֣ין הַיָּ֑ם לִפְנֵי֙ בַּ֣עַל צְפֹ֔ן נִכְח֥וֹ תַחֲנ֖וּ עַל־הַיָּֽם׃

Tell the Israelites to turn back and encamp before Pi-hahiroth, between Migdol and the sea, before Baal-zephon; you shall encamp facing it, by the sea. (14:2)

Pihahiroth “faces” BaalZephon and itself means “mouth of water” because a body of water, a bay, stands between the broad part of the peninsula to the south. To the east, there is water. The Sinai lies to the north connecting the wide part of the peninsula to the Sinai Desert via a narrow neck of land. Thus, Pihahiroth is a peninsula located south of Sharm-el-Sheikh as the southern and most eastern portion of the Sinai desert with a very narrow neck connecting to the mainland and facing Baal-Zephon. The backs of the warriors must be to the sea as they look forward at the isthmus.

http://www.bible.ca/archeology/maps-bible-archeology-exodus-route-pi-hahiroth.jpg

The seventh lesson of warfare is to expect the unexpected. Did Pharaoh and his gods not already suffer devastating defeats? Pharaoh still had a reserve army and he sent 600 charioteers, a cavalry unit and foot soldiers, an enormous army at the time, in pursuit of the Israelite population to recover the stolen gold and silver as well as the stolen arms, but most of all, his army of slaves on which the economy of Egypt had become so dependent. The Israelites still did not have any training in using their arms. One need not go into the question of why God took credit for stiffening the Pharaoh’s heart even further. But it was an excellent war tactic.

“If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest.

― Sun TzuThe Art of War

God wanted more glory via Pharaoh. The news of a military victory in the south-eastern tip of the Sinai between a rag-tag army of poorly armed ex-slaves without any training and the might of Egypt would spread that reputation far and wide beyond Egypt and earn renown throughout the Sinai and even further east among all the Canaanites, the Edomites and the Moabites. The eighth lesson of war is that was is primarily psychological; an army must instill the fear of God among its enemies.

But initially it was the Israelites that stood facing Pharaoh’s huge army at the other end of the isthmus and were frightened out of their wits. As predicted, they wailed to God and Moses. “Why did you take us to this forsaken place? Why did you lead us to escape from slavery only to face the military might of Egypt now threatening to wipe them out?”

יֹּאמְרוּ֮ אֶל־מֹשֶׁה֒ הַֽמִבְּלִ֤י אֵין־קְבָרִים֙ בְּמִצְרַ֔יִם לְקַחְתָּ֖נוּ לָמ֣וּת בַּמִּדְבָּ֑ר מַה־זֹּאת֙ עָשִׂ֣יתָ לָּ֔נוּ לְהוֹצִיאָ֖נוּ מִמִּצְרָֽיִם׃

And they said to Moses, “Was it for want of graves in Egypt that you brought us to die in the wilderness? What have you done to us, taking us out of Egypt? (14:11)

הֲלֹא־זֶ֣ה הַדָּבָ֗ר אֲשֶׁר֩ דִּבַּ֨רְנוּ אֵלֶ֤יךָ בְמִצְרַ֙יִם֙ לֵאמֹ֔ר חֲדַ֥ל מִמֶּ֖נּוּ וְנַֽעַבְדָ֣ה אֶת־מִצְרָ֑יִם כִּ֣י ט֥וֹב לָ֙נוּ֙ עֲבֹ֣ד אֶת־מִצְרַ֔יִם מִמֻּתֵ֖נוּ בַּמִּדְבָּֽר׃

Is this not the very thing we told you in Egypt, saying, ‘Let us be, and we will serve the Egyptians, for it is better for us to serve the Egyptians than to die in the wilderness’?” (14:12)

Talk about ungrateful cowards and cry babies! But Moses knew that isthmus was wide when the tide was low. He marched his trembling barely military force forward to fight the Egyptians presumably as the frontline shock troops on the widened but still relatively narrow isthmus and invited the Egyptian chariots to engage in battle. Moses knew two complementary lessons about the tactics of war:

“He who is prudent and lies in wait for an enemy who is not, will be victorious.”
― Sun TzuThe Art of War

“Engage people with what they expect; it is what they are able to discern and confirms their projections. It settles them into predictable patterns of response, occupying their minds while you wait for the extraordinary moment — that which they cannot anticipate.”
― Sun TzuThe Art of War

But the chariots got bogged down in the mud, especially when following in the tracks of the forward chariots that could not spread out. As the army got bogged down, as their thrust was greatly diminished, as their cavalry piled up against the chariots stuck in the mud, the tide began to rise. The army was caught and could neither retreat nor go forward. Meanwhile, the Israeli ragtag collection of ex-slaves stood at the southern tip of the narrow isthmus that was growing narrower by the minute and cheered as the threatening army drowned in the rising waters.

There are two important lessons from this battle. The ninth lesson is pick your battleground with great care to make up for your deficiencies. Turn the very strengths and confidence of the Egyptian army against them so that you do not have to so much seek victory as to prepare for your enemies self-defeat.

There is, as might be expected, a tenth lesson.

יִּסַּ֞ע מַלְאַ֣ךְ הָאֱלֹהִ֗ים הַהֹלֵךְ֙ לִפְנֵי֙ מַחֲנֵ֣ה יִשְׂרָאֵ֔ל וַיֵּ֖לֶךְ מֵאַחֲרֵיהֶ֑ם וַיִּסַּ֞ע עַמּ֤וּד הֶֽעָנָן֙ מִפְּנֵיהֶ֔ם וַיַּֽעֲמֹ֖ד מֵאַחֲרֵיהֶֽם׃. וַיָּבֹ֞א בֵּ֣ין ׀ מַחֲנֵ֣ה מִצְרַ֗יִם וּבֵין֙ מַחֲנֵ֣ה יִשְׂרָאֵ֔ל וַיְהִ֤י הֶֽעָנָן֙ וְהַחֹ֔שֶׁךְ וַיָּ֖אֶר אֶת־הַלָּ֑יְלָה וְלֹא־קָרַ֥ב זֶ֛ה אֶל־זֶ֖ה כָּל־הַלָּֽיְלָה׃

The angel of God, who had been going ahead of the Israelite army, now moved and followed behind them; and the pillar of cloud shifted from in front of them and took up a place behind them, and it came between the army of the Egyptians and the army of Israel. Thus, there was the cloud with the darkness, and it cast a spell upon the night, so that the one could not come near the other all through the night. (14:19-20)

Now was the time, not to throw light onto the battleground, but to disguise oneself, not to look bedraggled, but to become hidden in the mists thrown off by the sea and only appear as a mysterious presence.  The Egyptian army was not only bogged down in the mud, not only threatened by the sea, but became blinded by the darkness and misled by the misty air that clouded their vision so that they could not even see how weak their enemy was. Rashi, by contrast, suggests the pillar of cloud was intended to provide direction.

“Appear weak when you are strong, and strong when you are weak,” and “Let your plans be dark and impenetrable as night,

― Sun TzuThe Art of War

The Israelite army that initially appeared to move into battle to fight the Egyptians, instead retreated behind the mists and the clouds that hid their weaknesses and allowed them to get back on the higher dry ground of the peninsula. It had learned by far the most important lesson of war.

“The supreme art of war is to subdue the enemy without fighting.”
― Sun TzuThe Art of War

What can be said? It was an enormous victory! God had finally, or so He believed, won the hearts and undying love of the Israelites. Chapter 15 goes on to explain how they sang and danced with joy and pledged eternal fealty to their God. And it became a daily prayer.

עָזִּ֤י וְזִמְרָת֙ יָ֔הּ וַֽיְהִי־לִ֖י לִֽישׁוּעָ֑ה זֶ֤ה אֵלִי֙ וְאַנְוֵ֔הוּ אֱלֹהֵ֥י אָבִ֖י וַאֲרֹמְמֶֽנְהוּ׃

The LORD is my strength and might; He is become my deliverance. This is my God and I will enshrine Him; The God of my father, and I will exalt Him. (15:2)

The God of the Israelites was no longer just the God of Abraham, Isaac and Jacob, no longer the God of Joseph that facilitated the interpretation of dreams and the rise to secular power, but the God was now clearly and unequivocally a warrior God, a God of War. And the people of Israel would sing His praises, would sing the praises of their newly discovered God of War.

יְהוָ֖ה אִ֣ישׁ מִלְחָמָ֑ה יְהוָ֖ה שְׁמֽוֹ׃

The LORD, the Warrior— LORD is His name! (15:3)

But not for long. That, however, must wait another commentary.

APPENDIX

 

Commentary on Commentators

ה’ איש מלחמה means The Lord is a Master of war; just as, (Ruth 1:3) “the איש (i. e. the master) of Naomi”. (Cf. Rashi on that verse). Wherever the words איש and אישך occur they must be translated by בעל; so, too, (1 Kings 2:2) “Be thou strong and show thyself an איש” — a mighty person.

Most rabbinic commentators, Rashi included, were determined to re-interpret a warrior God, not as a coercive Being, but as strong in spirit, “a mighty person.”

Another example follows, but the warrior God is kept but subsumed under a God of mercy:

ה’ שמו THE LORD IS HIS NAME — His wars are not waged with martial weapons but He fights by means of His Name, just as David said, (I Samuel 17:45) “But I come against thee in the name of the Lord of Hosts”. Another explanation of ה׳ שמו — He is a man of war, but His Name is the Lord (the God of Mercy): even at the time when He battles against and avenges Himself upon His enemies He retains His attribute (that expressed by His name ה׳) showing pity to His creatures and feeding all the inhabitants of the world; not as is the nature of the kings of the world each one of whom when he is engaged in war turns aside from all other engagements, and has not the power to do both this and that (cf. Mekhilta d’Rabbi Yishmael 15:3).

It should be clear that this commentary is radically different from those of the vast majority of commentators.

 

Accepting Refugees: International Law in a Canadian Context in the Twentieth Century

Accepting Refugees: International Law in a Canadian Context in the Twentieth Century

by

Howard Adelman

Keynote Address

24th Annual Canadian International Law Students’ Conference (CILSC)

“International Rules and Standards: A Meeting of Minds”

3 February 2017; revised 22 February 2017

Faculty of Law, University of Toronto.

PART I

Introduction

The dominant discourse in contemporary refugee scholarship re policy and law is based on refugee rights. However, by far, the vast majority of refugees in the world are humanitarian refugees; they flee, not because they are targeted for persecution, but because of war or a natural disaster.[1] Even when the instigation is persecution, they are often accepted for admission as humanitarian rather than Convention refugees.[2] Further, the Convention refugee category offers rights only to those victimized by very specific kinds of persecution. Yet, Convention refugees constitute most of those admitted to Canada as refugees.[3]

Why does the Convention and the issue of refugee rights dominate the intellectual and conceptual landscape? Why is there not far greater attention applied to those who flee because of need? Why, in fact, are rights granted only to those who flee persecution and not to those who flee because of need? This is especially important because a number of states, including Canada, have, at times, been more willing to grant entry to humanitarian refugees rather than respecting the right of Convention refugee claimants to claim refugee status once on Canadian shores. The intake of Indochinese refugees is an example.

In the case of rights refugees, there is a direct clash with the concept of sovereignty. In the case of needs refugees, there is no conceptual conflict – though some would try to make one.

“When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety & security — big trouble!”

Donald Trump tweet, 4 February 2017

This paper will discuss the interweaving of policy in Canada applied to rights refugees and humanitarian refugees since WWII, not to answer the above questions, but to provide an empirical backdrop for wrestling with them.

The timing is propitious, but only with respect to academics and practitioners concerned with refugees, not with refugees themselves. They are doubly victimized, first by the warriors and ideologues that forced them to flee their homelands if they wanted to survive, and then, a second time, when persons in authority like the malignant narcissist and serial liar, Donald Trump, placed an indefinite ban[4] on Syrian refugees coming to the United States, and then a “temporary” 90-day ban on refugees coming to the United States from six other countries – Iraq, Iran,[5] Libya, Somalia, Sudan and Yemen in his notorious executive order issued 27 January 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Visas will not be issued to anyone from those countries. Even those traveling with valid visas may be and were turned back or detained. Many others, including, initially, those with Green Cards, were not allowed to take their seats on airplanes on which they had booked travel.

It just happens that these seven dangerous “Muslim” countries are all ones which the U.S. has waged war against and even actually bombed, but does not include Saudi Arabia, the source of the majority of the 9/11 terrorists and a country in which Donald Trump has financial interests, nor Pakistan, the home country of one of the very few Islamicist terrorists who committed heinous crimes within the United States in the last eight years.[6] It also just happens that not one of those seven countries nurtured a single terrorist who committed a terrorist act on American soil.

Of the relatively small number of refugees that the U.S. planned to take in during 2017, 10,000 slots targeted for Syrians were recently increased to approximately 20,000 by the outgoing Obama administration.[7] All 20,000 will probably now go unfilled even though the original executive order on migrants was stopped in its implementation by American courts.

In contrast, in 2015 even under the Harper regime, Syrians constituted the group of refugees with the highest numbers coming to Canada. For ten years, Canada’s average intake of refugees had been about 25,000 annually, about 10% of the overall immigrant intake. In 2015, almost 60% came as asylum seekers with their family members, over 40% as either government or privately sponsored refugees, the latter making up about one-third of that 40%.

In 2016, the Harper government had planned an intake of 10,000 refugees.  When the Liberal Justin Trudeau Government was elected, it immediately announced some ambitious plans for the intake of Syrian refugees. As indicated above, by the end of 2016, Canada took in almost 40,000 refugees under this new initiative, twice that even planned by the Obama government and now literally infinitely more than will be allowed entry by the Trump administration

The breakdown was as follows:

Data as of 2 January 2017

Refugee category                                                              Number of refugees

Government-Assisted Refugee                                                        21,751

Blended Visa Office-Referred Refugee (BVOR)                             3,923

Privately-Sponsored Refugee                                                           13,997

TOTAL                                                                                                  39,671

The number estimated for 2017 is expected to be about 23,500, the reduction coming overwhelmingly from the government-sponsored class. Just after ‘The Donald’ issued his executive order, an initiative was begun almost immediately for Canada to admit 20,000 more Syrian refugees than planned for 2017 on a matching formula whereby the government will take in the same number of government-sponsored Syrian refugees, up to 10,000 in 2017, as the number of Syrian refugees sponsored by the private sector. There need not be any deliberate explicit connection to Trump’s embargo. The day after Donald Trump issued his executive order, Justin Trudeau tweeted, “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.” He walked that fine line by praising Canadian values rather than criticizing current American policy. At the same time, an influx of refugees from the United States began arriving on Canadian soil to claim refugee status. For example, some crossed from Minnesota into Manitoba at Emerson after trekking for miles in freezing weather through deep snow drifts.[8] When the weather improves, the numbers are expected to dramatically increase.

The current Canadian Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, who himself fled war-torn Somalia at the age of 16, under the plain reading of the Trump executive order would not be allowed entry to the United States if he were not traveling on a diplomatic passport. Hussen issued a policy directive in response to the Trump decree that Canada would issue temporary residency permits to those stranded because of Trump’s order, but that would do nothing for Canadian citizens and permanent residents born in those seven countries. Later, the State Department, in apparent direct contravention of the wording of Trump’s executive order, declared that the ban would NOT apply to Canadian citizens with dual passports or to Canadian permanent residents with passports from those countries.

What has happened to the carefully constructed international refugee system developed in the aftermath of World War II that has enabled millions of refugees in every region to find safety in other countries? What has happened to the country that for decades welcomed refugees, that until very recently resettled millions of refugees, from regions in turmoil and led initiatives in inspiring other countries to engage in responsibility-sharing?[9] That country has now fallen into the hands of a president governed by a radical nationalist ideology who builds policy on paranoia and prejudice rather than any analysis of data or of consequences. Make no mistake about it; his policy has as little to do with the threat of terrorism as the connection between drinking Coca-Cola and a healthy lifestyle. Though couched in security concerns, the Trump policy is rooted in cultural identity politics with virtually no reference to either rational economic policy or genuine dangers.

It is not as if Trump is alone. Stephen Harper for almost ten years offered a polite and non-demagogic perspective that was suspicious of Islamic refugees from the Middle East, but is now perceived as an extremely faint shadow of Trump’s position. However, in today’s world, Trump’s blatant extremist position is not rare. Look at Europe. Hungarian Prime Minister Viktor Orban as a “defender of Western Christendom” built a wall to keep out the Islamic hordes. Slovakia’s populist Prime Minister, Robert Fico, insisted that Islam had “no place in Slovakia.” And in Western Europe, France and Holland, Marine Le Pen and Geert Wilders, are rising populist stars who have been building support based on their anti-Islamic rhetoric.

Part II

If you think the current wave of negative attitudes towards refugees is a monopoly of nationalist populist extremists, it is not. On 27 January 2017, I participated in an international webinar,[10] “European Union third-country partnerships: Where do we go from here?” The discussion centered on current refugee policy in Europe with participants in Brussels, Berlin, Madrid, Washington, etc. Those who led the discussion moderated by Elizabeth Collett, Director of the Migration Policy Institute Europe, included four very distinguished and knowledgeable, as well as liberal, leaders and academicians very intimately involved in the formulation of those European laws and policies.[11]

I will not even attempt a summary of the discussion. But I do want to communicate its predominant theme. That theme was not refugee asylum policy or issues of integration. This was not simply because of the topic. For the title of the webinar itself had been chosen because the prime approach in Europe these days to refugee issues, from those sympathetic to refugees, is refugee return. The prime issue is how to link return with development in partnership with the states from which the irregular migrants are fleeing. The primary challenge is now re-migration and reintegration, taking into consideration the country of return’s capacities and the skills the returnees bring with them on their return.

This focus was based on the conclusion that there was no solution to the refugee issue if the primary reliance was on law and the individual rights of refugees. As one person put it, “THERE IS NO LEGAL WAY OUT.” Instead, the focus was on knowledge gaps, on evaluations of past practices, on leadership in the face of the humanitarian disaster producing so many millions of refugees and pushing them to seek very unsafe passageways to the West.  Further, the not-so-hidden problem is that humanitarian aid funds are primarily used to hold refugees in place rather than return them, using a more vulgar but colourful language, to warehouse them. But reintegration poses its own set of problems – competition among those who stayed behind, IDPs returning and refugee returnees. The latter may be the ones who are best off given skills acquired in camps and when abroad, and given their better access to aid funding.

Money tells the story. The EU recently pledged $2 billion in development aid to assist refugee return and reintegration.[12] Thus, the policy of an enlightened refugee-receiving country like Denmark now is to focus on linking development aid both to refugee return and to inducing people to stay. Instead of the right to claim asylum, the emphasis is placed on the “right to stay” that, of course, went far beyond issues of governance and transportation. In the webinar, sensible slogans were thrown about, such as a “broad approach,” the linkage between peace and local stability[13], the need for coordination among like-minded countries, the absolute requirement that climate change and climate change policy be integrated into any solution, that there would have to be a primary reliance on civil society rather than government. Thus, humanitarian policies and rights had to be examined within the larger political, social cultural and primarily economic contexts. So why call them rights at all? And what was humanitarian about such a program?

The application of such efforts has some dire consequences on the right to leave. On 3 February 2017, at the same time as this talk, European Union leaders met in Malta to try to extend the initial deal made with Turkey to a contract with the countries in North Africa. The gist of the deal to reduce crossings, primarily to Italy now that the efforts to reach Greece have been largely stopped, entails a deal where the North African countries assume the responsibilities for search-and-rescue, hence avoiding the problem of warehousing the refugees on European soil and giving those refugees access to the refugee asylum system in Europe. On 2 February 2017, Libya signed the first deal, the EU-Libya Framework Agreement, to accept monies in return for assuming these responsibilities. The problem is, given the past record, North African countries may not be as effective in saving people given their capacity limitations and their disincentives to save illegal migrants.[14]

What we also need to keep in mind is that migration has always been used for families to manage risks, as demonstrated in the role that management of that risk played in getting the refugees to different places in the first place.[15] Yet the focus of the discussion was overwhelmingly about individuals.

However, my goal in this paper, issued initially as a series, is not to undertake an analysis of the United States or of Europe. Nor is my focus on contemporary policy, though I hope I will throw some light on the current situation. Rather, I want to use the trajectory of the development of that refugee (and migration) policy in the twentieth century in Canada to provide some understanding of where we find ourselves today with respect to the issue of refugees within Canada and within a global context. Because the material is so vast, I will use my personal involvement with refugees as a totally non-objective selective guide to offer a constructed narrative of what took place.

Further, even using my selective mechanism, it is not possible to cover the whole story of the development of Canada as an outlier country in the West with respect to refugee policy. But by covering three-quarters of the period, I can, I believe, unpack the tensions involved in the development of that policy and the fundamental contradictions that are at the base of the problems. That basic tension exists between rights refugees and needs refugees, between Convention versus humanitarian refugees, and, within Canada, between asylum claimants and refugees admitted under relaxed immigration criteria.

In 1943, two years before I start my tale, Hannah Arendt wrote a seminal essay, “We Refugees.”[16] She began by stating that “we” refugees avoided that designation and preferred to be called newcomers or immigrants. At that time, she defined the term refugee in terms of needs rather than rights. Refugees “are those of us who have been so unfortunate as to arrive in a new country without means and have to be helped by Refugee Committees.” (110) In resettling, “We were told to forget; and we forgot quicker than anybody ever could imagine,” avoiding any allusion to concentration camps (by enemies) or internment camps (by friends). Recall that Emil Fackenheim and Gregory Baum were interned in Canada as “enemy aliens.”

Arendt then went on to discuss PTSD as it is known now, Post-Traumatic Stress Disorder, suffered by many of the refugees, with some of them to taking their own lives. This was a pattern that began, not in the camps, but with the rise of fascist power accompanied by a massive inversion from optimism to pessimism. Captives and slaves rarely commit suicide. Those about to lose their freedom, those whose freedoms are haunted by memories and traumas, do. Their own sense of personal failure, combined with the lack of recognition of themselves as human beings, not political oppression, does them in.

Most fundamentally, we must recognize that refugees are people who do not want to be refugees, who do not want that as their identifier. At once, they want to be accepted and recognized as one of us while being induced often to forget that they are, behind the mask, one of them. One way to forget, ironically, is to “Never Forget,” to pass forward and help new refugees.

Let me end this section with a story that I have told often. It really took place. It was 1979. We were in what used to be the Cecil Street Synagogue (not its Jewish name) where my older brother had his Bar Mitzvah and was then and remains to this day a Chinese-Canadian community centre. We were greeting and offering some orientation to the first group of ethnic Chinese refugees from Vietnam who had been privately sponsored and arrived in Toronto.

I belonged to a group of people introduced in Chinese as VIPs. We may have been very important people in their eyes, but each one of us lacked the ability to give a speech from the heart. Instead, all four of us, without any coordination whatsoever, gave the same speech – of course using different words and different situations for illustration – but the same speech in terms of the theme. ‘You are us,’ we told them. Except for the indigenous people, all the rest of us Canadians came as immigrants and refugees. We are you and you are us. And, they had lots of time to think about what we said because our words were being translated.

The speeches of Chinese community leaders followed. Those speeches too were all the same – again different words and depictions, but, according to what I heard from the translator beside me, offered a radically different message than the one we had. “You are NOT one of them. You are not yet even one of us. If you are staying in a private sponsor’s home or in a private sponsor’s apartment, do not cook with fish oil. They [mostly Caucasians] hate the smell of cooking with fish oil. Always remember that you are representatives of the Chinese-Canadian community in Toronto. Do not shame us. Do not disgrace us.”

If they were not torn between bewilderment, the need to feel appreciation and the desperate desire to get on with their lives, they might have been able to wonder. “Weren’t those white guys (there was one woman among the four of us) liars? We did not speak their language. We did not look like them. But they told us we are the same because their parents or grandparents or great grandparents came to Canada as immigrants and refugees? What do they personally know about the risks, the death of loved ones? At least 1 in 10 of us died in the flight. Their smiling welcome is obviously a false front.”

Perhaps they were bothered even more by the local ethnic Chinese who said the refugees represented them. “We held their reputations in our hands, or, more accurately, in how we cooked. They were so condescending in letting us know that we had a long way to go before we became hyphenated Canadians. For though they looked like me and spoke my language, they not only were not us, but they made sure that we knew, in their superego instructions to us, that we had a long way to go before we became them.”

While I offer this long historical talk on the development of refugee policy in Canada, a talk that only covers half the period since WWII, let’s not forget those who are at the centre of this story, refugees, refugees who for the most part do not even aspire to be human beings, as Hannah Arendt did. They just once again want to be themselves. And that requires that they be recognized. Hannah Arendt ended her essay, “The community of European peoples went to pieces when, and because, it allowed its weakest members to be excluded and persecuted.” Behind my paper is the question, “How can Canada not go down that path? How can we help reverse the direction of the path on which our American cousins are racing?

An even larger question: why are security concerns linked with the rejection of refugees? Why are refugees increasingly seen as barnacles on the body-politic of the nation-state that show that the human rights commitments of these states are a sham?  And even when those rights are used for protection, they protect so very few and conceptually omit offering any rights to the tens of millions of refugees who simply flee war and may not be individually targeted for persecution? Why are these refugees given no rights but are declared to be humanitarian refugees, refugees only with needs? From another perspective, why does a predominant conception of sovereignty in the end reject refugee claims based on universal right, since the prime right of a sovereign state is to protect its members and determine its new ones? And, in the ultimate end of this madness, why are those least likely to be security threats branded as a prime security threat?

Part III

I Refugee Policy After World War II – 1945 to 1965

  1. 1945-1947

It is often forgotten that Canada’s refugee policy in the immediate aftermath of WWII was pretty dreadful, characterized still by exclusion and xenophobia.[17] Before WWII, it was even worse. Canada had a terrible reputation as a receiving country for refugees. Canada would not admit any of the hundreds of thousands of refugees left in the aftermath of WWI because there was no provision that they could be returned, though, in the 1920s, the government admitted over a million selected immigrants. In contrast to immigrants, refugees might not be able to be sent back home.

In the 1920s, Canada refused to recognize the Nansen passports. A 1923 Order in Council specifically prohibited the entry of “Asiatics.” In the 1930’s, a racist immigration policy was the order of the day and immigration in terms of numbers was also very restrictive.

When the Deputy Minister Frederick Charles Blair, who headed Immigration, Mines and Resources, was asked how many Jewish refugees could be admitted, he replied, “None Is Too Many.”[18] Blair retired in 1943, but even after the war, Canada only admitted 8,000 Jews between 1945 and 1948. When Canada had one of the 11 seats on the United Nations Special Committee on Palestine occupied by Ivan Rand, he supported the position of partition of Palestine between Jews and Arabs, not because of any guilt about the Holocaust[19] – that influenced none of the members in their recommendation – but primarily because 250,000 Jewish refugees were still languishing in European refugee camps and countries, including Canada, would not offer to resettle them. A Jewish state seemed to provide an opportune answer.

Prime Minister Mackenzie King certainly opposed admission of anyone as a fundamental right. Despite previous reservations about admitting refugees even based on Canadian self interest married to humanitarian concerns, this position shifted, in good part motivated by the need for manpower in a rapidly industrializing country and the availability of people from Europe. The shift was not motivated by a concern with rights.

Changes were underway. Parliament in 1946 began to consider the possibility of admitting refugees as immigrants under relaxed admission criteria, though it would be ten years before any large program was implemented. French immigrants were finally treated equally with American and British applicants. And, in 1946, Canada also made provision for Canadians to be citizens and not just British subjects.

In June of 1947, Louis St. Laurent became Prime Minister of Canada (1948-1957). Finally, in that month, Canada opened its doors, a bit and then wider and wider for the admission of Eastern Europeans – Poles, Hungarians, Ukrainians – initially only 5,000 and then only if they were privately sponsored. The arrival of over 1,500, mostly Estonians, in 1948 marked the real beginning of the program.[20] One quarter of a million European “refugees” as well as almost two million immigrants were eventually admitted over the next 14 years.

  1. 1948-1955

The shift in 1948 was quite radical for Canada at the time. In 1950, Leslie Chance, a Canadian, took the role of Chair of a United Nations Ad Hoc Committee on Refugees and Stateless Persons Special Committee to draft a new refugee convention. Up until that time, refugees had been dealt with on a case-by-case basis focused on providing humanitarian aid on a temporary basis until they could return to their homes or be settled in the regions or countries to which they had fled. This was the case with UNRWA, the United Nations Relief and Works Agency, which focused on both Arab and Jewish refugees displaced from the war in Palestine. It was also the case with The United Nations Korean Reconstruction Agency (UNKRA) (1950-1958) established in 1950 to provide relief and rehabilitation on behalf of the United Nations in South Korea.

The minutes of the debates in developing the Refugee and Stateless Persons Report during 1950 make for fascinating reading, if only because the issues sound so familiar 67 years later. For example, the beginning discussions at the Lake Success 13 February 1950 initial meeting largely focused on ending statelessness based on a report of the Israeli delegation. One issue was the nationality of a child born of a refugee claimant on the soil of a country in which the woman was not a national. Based on lex sanguinis, should children born of refugee applicants be denied citizenship because the mother was only in the country temporarily, an issue still alive today? What if the child remained in the country until he or she was an adult? Or should ius soli be applied and such children automatically be granted citizenship? Discussion of granting refugee status based on rights would never prove straightforward, especially since rights, supposedly universal, were interpreted so differently by different countries.

The minutes of the final meetings between 14-25 August in Geneva considering the report and the final recommendations are especially instructive.[21] Canada was represented in the latter meeting by Ross W. Winter and N.F.H. Berlis. (Leslie Chance was unable to attend that meeting.) John Humphrey was also present as a representative of the UN Secretary-General. The report was drafted by the International Refugee Organization (IRO) and amended in response to various government inputs. Since it is 26 pages, let me just quote some germane passages, beginning with the preamble:

PREAMBLE

  1. Consideringthat the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;
  2. Consideringthat the United Nations has, on various occasions, and most recently in General Assembly Resolution 319 A (IV), manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of these fundamental rights and freedoms;
  3. Consideringthat, in the light of experience, the adoption of an international convention would appear to be one of the most effective ways of guaranteeing refugees the exercise of such rights[22];
  4. Consideringfurther that it is desirable to revise and consolidate previous international agreements relating to the protection of refugees, to extend the scope of such agreements to additional groups of refugees, and to increase the protection accorded by these instruments;
  5. Considering, however, that the exercise of the right of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation;
  6. Consideringthat the High Commissioner for Refugees will be called upon to supervise the application of this Convention, and that the effective implementation of this Convention depends on the full co-operation of States with the High Commissioner and on a wide measure of international co-operation.
  7. Expressing the hopefinally that this Convention will be regarded as having a value as an example exceeding its contractual scope, and that without prejudice to any recommendations the General Assembly may be led to make in order to invite the High Contracting Parties to extend to other categories of persons the benefits of this Convention, all nations will be guided by it in granting to persons who might come to be present in their territory in the capacity of refugees and who would not be covered by the following provisions, treatment affording the same rights and advantages.”

This was a radical change. Instead of a refugee being regarded as a national outside the borders of his nation, and sometimes even within, as a person with humanitarian needs, the report recognized refugees as members of humanity first and foremost with inalienable rights. The refugee convention was to be designed to both recognize and protect those rights.

But what was that right? Was it to be guaranteed membership in a nation-state that protected all other rights. But if the nation-state was the instrument recognized as the protector of rights, who or what would protect the right to be a member? As it turned out, refugees were not really given rights, only those refugees who could establish that they had been targeted for persecution were given rights. And then, only if they were on the soil of a nation-state that signed the Convention.

Further, and even more telling, there was a caveat inserted because of pressures from some countries – clause 5. If a country determined that a refugee exercising his or her rights placed “unduly heavy burdens” on the country of asylum, the granting of those rights would depend on international cooperation or what later became known as “burden sharing.” However, the report, and then the Convention based on it, allowed a refugee on the territory of a nation that was a signatory to the Convention, to claim those rights as a refugee. (Clause 7)

It is no wonder that in the history of human rights, refugee rights are viewed as ersatz rights when sovereignty and security so easily trump those rights. It should be no surprise that refugee rights are rarely placed among the pantheon of fundamental rights even though no other right can be enjoyed unless one is a member of a nation-state that protects such rights.

Though the refugee convention was initially restricted in both time covered and geographical region, the refugee in section A was defined as a person outside of his country of nationality and unwilling to avail himself or herself of its protection and required to have a “well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion” to claim refugee status. But could such persons be later expelled if found to be detrimental to the life of that nation – an issue that continually stymied Canada from accepting the Convention for years.

There was also the issue of non-refoulement, that a claimant not be sent back to a country where they would be at risk. But what if they did not satisfy the criteria for being a refugee? One principle would deny their admission. Non-refoulement would prevent expulsion. Claimants could become de facto landed even if they were not granted refugee status.

Does not the following ring familiar?

Mr. ORDONNEAU (France) pointed out that article 24 as originally drafted by the Secretariat had covered both expulsion and non-admittance. The reference to non-admittance at the frontier (refoulement) had been omitted from the new draft, which was thus incomplete.

In reply to a question by Mr. ORDONNEAU (France), Mr. GIRAUD (Secretariat explained that the original draft of article 24 had been based on article 3 of the 1933 Convention. The reference to non-admittance at the frontier (refoulement) in paragraph 1 applied only to refugees who had already been authorized to reside in the territory in question. The practice known as refoulement in French did not exist in the English-speaking countries. In France and Belgium, however, there was a definite distinction between expulsion, which could only be carried out in pursuance of the decision of a judicial authority, and refoulement, which meant either deportation as a police measure or non-admittance at the frontier.

Mr. CUVELIER (Belgium) agreed with that explanation and added that the term “expulsion” was used when the refugee concerned had committed some criminal offence, whereas the term “refoulement” was used in cases when the refugee was deported or refused admittance because his presence in the country was considered undesirable, even though he was a person of good character.

Sir Leslie BRASS (United Kingdom) concluded from the discussion that the notion of “refoulement” could apply to (a) refugees seeking admission, (b) refugees illegally present in a country, and (c) refugees admitted temporarily or conditionally. Referring to the practice followed in his own country, Sir Leslie stated that refugees who had been allowed to enter the United Kingdom could be sent out of the country only by expulsion or deportation.

The effort of Mr. Henkin from the U.S. to speak on behalf of the French but attempt to mediate the debate in the direction of the British also sounds familiar. But the main point is that wherever you probe, the definition of rights expected to be universal, in their application proved to be anything but; they varied from nation to nation.

In the larger picture, we had two different streams for defining refugees, one as persons in need to be admitted to Canada as a humanitarian determination solely at the discretion of the Canadian government, and a rights definition whereby a refugee claimant on Canadian soil could make a claim as a matter of right for Canadian protection.[23] Of course, Canada could also then choose to admit a person determined to be a refugee by UNHCR under the Convention, and, in that case, sovereign choice would be wedded to rights.

In due course, when Canada eventually signed the Convention in 1969, this was the method used initially. Subsequently, Canada developed its own capacity to make such decisions. Within the rights perspective, rights were always presumed to be universal, but, as soon as the process was domesticated, they varied depending on how the state balanced its self-interest, humanitarianism and principles of sovereignty against those rights. The historical process kept hitting the wall of the nation-state which subsumed refugee law within its own national framework.

In the interim, the Canadian Cabinet opted NOT to sign the Refugee Convention, finalized in 1951. Why? The old fear that Canada would be restrained from deporting refugee claimants if, for example, they turned out to be subversive communists. (Canada did not become a signatory to the Convention until 1969.)  Ministers were concerned that the Convention would impede Canada’s ability to deport persons they considered a security risk, especially communists. Further, the cabinet even then recognized that rights were not just abstract under Canadian law, but conferred rights to representation and rights to a hearing where the claimant was present.  Canadian officials were reluctant to grant refugees such rights, including “the right to be represented in the hearing of his appeal against deportation.”

This period of development ended with a unique contribution by Canada that would be one factor that led to Canada being appointed to gavel the refugee talks between Israel and the Palestinians in the 1990s.[24] Major-General (ret’d) Howard Kennedy from Canada had been the first UNRWA Director from 1950-1951. In 1955, in the summer, Canada offered to admit refugees that were not from Europe for the first time, adumbrating a policy change that would take place only a few years later. The Canadian government offered to admit 100 Palestinian refugees and their families who possessed skills that Canada could use. I n addition to acquiring migrants with needed skills, the program was intended to relieve the economic burden of countries in the region who were hosting a population that had grown to almost a million. The effort was also intended to contribute to facilitating peace in the region. That goal faltered as the Arab and Palestinian leadership raised a hue and cry and accused Canada of siding with Israel and, in today’s language, helping Israel ethnically cleanse the Palestinians from the Middle East.[25]

Part IV

  1. 1956-1957

Given my later extensive research on Palestinian refugees[26], one might expect that this last initiative would have been my first real foray into the refugee issue. But it was not. I first became involved with refugees in 1957, sixty years ago. I was then the General Manager of the Campus Cooperative Residences at the University of Toronto. The previous fall, in November, I had been one of the young romantic students who met on campus to join a group who were going to volunteer to go overseas to fight and defend the “democratic” Hungarian regime in its efforts to throw off the yoke of Moscow. With the arrival of Russian tanks, the attempt of Hungary to break away from the Soviet bloc was crushed as were the impossible romantic notions of young students dreaming of recreating the “glory” days of the Front in the war in Spain in the 1930s.

My chance to play a part arose the following spring when the Canadian government was searching for temporary housing for the Hungarian refugees arriving in Canada. Of the over 200,000 Hungarians who fled following the crushing of the revolt, under the leadership of the unstoppable Jack Pickersgill (Liberal – Bonavista-Twillingate, Newfoundland), Minister for Citizenship and Immigration 1954-1957, Canada ended up taking in just over 37,000 Hungarian refugees under the humanitarian provisions of relaxed immigration criteria[27], an initiative even supported by John Diefenbaker, leader of the Progressive Conservative Party that won the election in 1957. Jack personally flew overseas to organize the processing of the applicants.[28]

That does not mean there was not opposition to the intake, even from within the Liberal cabinet. Worries were expressed that the refugees would be infiltrated with communist spies and hence the movement represented a security threat to Canada. After all, the Igor Gouzenko security crisis had taken place after the end of WWII, just 12 years earlier.[29] But Pickersgill was such a powerful personality. Further, he was backed by a tremendous upsurge of vocal support from civil society. He was unstoppable. And so was the Canadian initiative.

Though the movement was considered one of the great triumphs of Canadian humanitarian initiative, it was not without its problems. Among the brilliant businessmen, scientists, academic, artists, theatre directors and filmmakers who came to Canada were a significant criminal element, for the prisons were opened to allow inmates to flee with the refugees. I know of no estimate of how large that group was – some estimate as high as 10% of the intake – but I was personally acquainted with one group who operated a Hungarian restaurant on the north side of Bloor just west of Spadina. They were colourful racketeers who also melded into Canadian society without any significant incident.

Though “Jumping Jack,” as he was often called, was widely recognized as getting Prime Minister St. Laurent in 1956 to agree to waiving the requirement that the refugees take out loans to fly to Canada – 200 air flights had been chartered – what is less known is that he discovered an old nineteenth century provision in Canadian law that allowed the Prime Minister to, in effect, print script and thereby spend money without Parliamentary or even Cabinet approval. Jack directed the processing of refugee applicants before monies had been allocated for the task which, provided he worked fast enough, would allow him to take into Canada in the end one-sixth of the refugees before a lid was placed on the numbers we accepted. The only country that took more, and it had ten times the population of Canada, was the United States, and it only took about a thousand extra. Suddenly, Canada had leapt to the head of the line in resettling humanitarian refugees, but still showed no indication that it was willing to sign the Convention and recognize refugee rights. I am proud that I played a very minor role in helping a small group of them with temporary housing.[30]

  1. 1958 – 1965

Canada continued to apply its race-based immigration policies even when applied to refugees accepted only through humanitarian programs. In the United States, the 1965 Immigration Act made major changes in immigration policy by amending the McCarran-Walter Act of 1952. Quota systems were abolished as were preference system and labour clearances for certain classes of immigrants. These changes immediately affected the country of origin of migrants. Southern European, Asian and Caribbean immigrants made up increasingly larger proportions of migrants. There were also increased volumes.[31]

In Canada, a 1962 Order-in-Council accomplished most of the same goals by substituting skill criteria and eliminating overt racial discrimination through the designation of only specific countries of origin from Canadian immigration policy. All Canadian citizens and permanent residents could sponsor relatives. Racism, however, still left its residue. Only Canadian immigrants from preferred nations in Europe, the Americas and select countries in the Middle East could sponsor children over the age of 21, married children and other members of their extended family. Canadians with respect to immigrant sponsorship were divided into two types of citizens in the first effort to get around the racism built into Canadian immigration and refugee policy up until that time.

 1966-1968

What a difference new thinking on migrants and refugees makes! It began with the 1962 Order-in-Council and culminated in the 1966 White Paper on Immigration originally commissioned by Mike Pearson’s Liberal government to recommend restructuring the whole immigration process. The big change – choose immigrants based on their skills and potential contribution to the Canadian economy and not based on the source country. The other big change was on refugees. The White paper insisted that the time had come to sign the Convention. Secondly, finally specific legislation should be introduced to deal with refugees.

These changes are widely known. Less known, and of much greater relevance to the present, were the security provisions. Enhanced protections against the admissions of criminals and homosexuals or, indeed, chronic alcoholics, labeled security risks, were deleted from the Immigration Act. No longer would these types of people be rejected because they were defined as presenting a danger to the country. Whether a potential immigrant (or refugee) was a security threat would be determined on a case-by-case basis. Until Trump, that had also been the modus operandi in the U.S. for over fifty years.

You might believe that these more impartial and fairer provisions would have been broadly welcomed. Instead, they stirred up a hornet’s nest of complaints from labour unions and from immigrants who arrived recently and wanted preference to be given to their family members, both immediate and more distant. Churches and synagogues wanted to continue the process of sponsorship that left more decisions in their hands, but would, in effect, reinforce a preference for immigrants who were reflections of who they were.[32]

Nevertheless, the 1967 regulations that followed in launching the point system to replace country of origin criteria, leveled the playing field for family sponsorship with the introduction of both the Sponsored and the Nominated Categories. Universality had become the order of the day. The basic premise of the new immigration system was to be based on the premise of treating everyone as an economic actor and assessing the degree that individual who applied to Canada would be useful to the Canadian nation-state in advancing its economic prospects.

Internationally, universality had also been applied to refugees as the 1967 Protocol to the Refugee Convention removed the geographic restrictions in defining refugees. When Canada signed both the Convention and the Protocol two years later in 1969, refugees became, initially only formally, a problem of rights as well as needs. If needs, they were to be given humanitarian aid overseas and were not issues of Canadian self-interest unless the refugees were viewed as benefiting the Canadian economy, in which case they could be admitted under relaxed immigration criteria. In terms of rights, there was a conflict between the sovereignty of the nation-state to determine its own members and the right of the refugee to belong to a nation-state which could and would protect his/her rights.

But human rights law was about the obligation of the nation-state to guarantee those rights, so how could that obligation be internationalized to become a responsibility of the whole world community? Only with the introduction of the Convention. In that Convention, nation-states surrendered part of their sovereignty to allow certain individuals, those who could establish that they were in fear of persecution on grounds considered to be abuses of human rights, to come (and, later, stay) in Canada and claim membership as a matter of right. There were fundamental contradictions among three different poles: a) between the conception of a nation-state and its sovereignty; b) the conception of the nation-state as the instrument for protecting the rights of its own citizens; and c) the new notion that the sovereignty must be qualified and the obligation of the state to serve and protect was to be extended to those who were not citizens.

Hannah Arendt had pointed out the real core flaw in the international system in her seminal paper on persons who do not have membership in a state that protects their rights, either because they are stateless or because the state to which they belong is an abuser rather than a protector of their rights. Michael Walzer had pointed out that the most important decision a state makes is who to accept as a member and that is the essence and core of sovereignty.[29] A White paper premised on serving self-interests fairly with respect to the intake of immigrant was not the best place to adjudicate how refugees would be protected. The first statutory provision for protecting refugees only took place in 1973 with an amendment to the Immigration Act about allowing refugees to remain in Canada if they claimed to be refugees.

In the meanwhile, Canada introduced practices and procedures to make this principle of universality, initially only with respect to immigrants, operational. Area Offices were created staffed by Canadian officials – subsequently called visa officers. Within a year, they were interviewing people in one hundred countries and territories. This would turn into the operational foundation for selecting humanitarian refugees under relaxed criteria.

  1. d) 1968-1975

The basic premise of the new system was to be based on the premise of treating everyone as an economic actor and assessing the degree that individual who applied to Canada would be useful to the Canadian nation-state in advancing its economic prospects. But refugees were either a problem of needs or of rights. If needs, they were to be given humanitarian aid overseas and were not issues of Canadian self-interest unless the refugees were viewed as benefitting the Canadian economy. In terms of rights, there was a conflict between the sovereignty of the nation-state to determine its own members and the right of the refugee to belong to a nation-state which could and would protect his/her rights.

But human rights law was about the obligation of the nation-state to guarantee those rights, so how could that obligation be internationalized to become a responsibility of the whole world community? Only with the introduction of the Convention. In that Convention, nation-states surrendered part of their sovereignty to allow certain individuals, those who could establish that they were in fear of persecution on grounds considered to be abuses of human rights, to come (and, later, stay) in Canada and claim membership as a matter of right.

There were fundamental contradictions among three different poles: a) between the conception of a nation-state and its sovereignty; b) the conception of the nation-state as the instrument for protecting the rights of its own citizens; and c) the new notion that the sovereignty must be qualified and the obligation of the state to serve and protect was to be extended to those who were not citizens.

Canada was now on a roll, not vis-à-vis refugees with rights, but with refugees with needs, with humanitarian refugees. For another fifteen years, the issue of rights refugees would sit as a shadow in the background. The issue of rights refugees would grow slowly and emerge out of the darkness to become the predominant issue in refugee policy in the 1980s.

In the meanwhile, Canada admitted almost 11,000 refugees from Czechoslovakia between 20 August 1968 and 28 February 1969 when once again Russian-led Warsaw pact troops crushed a thrust for independence by one of its most western satellites. However, if public support from civil society proved telling in backing the government initiative, in the initiative in fostering the intake of the largest refugee intake into Canada, civil society was in the lead to allow entry of American draft dodgers and, later, deserters into this country.

Of course, Americans were not called refugees. The use of that term would have insulted both them and the American government, our big bully partner to the south. The Americans came as immigrants and were quickly processed for admission. Some were genuine immigrants who came because they did not want their children to fight in Vietnam. However, the clear majority, perhaps up to 180,000,[33] came to escape participating in the Vietnam War. If they had come from any other country, they would have been labeled refugees. That was evident in the lobbying that we had to do to facilitate quick entry approval, easy initially for draft dodgers, much more difficult but eventually successful for deserters.

On the path of rights refugees as distinct from humanitarian ones, after the signing of the Convention and Protocol, problems of principle and subsequently operations would also arise. On 27 July 1970, the Federal Cabinet noted that, “while Canada’s immigration policy was placed on a universal basis with the introduction of the new immigration regulations in 1967, the selection of refugees continued to favour persons of European origin.” How could the principle of universality be applied to refugees? Only if the European geographical bias was removed.

Canada dropped the Euro-centred refugee definition and adopted the Convention universal one. At the same time, in terms of needs refugees, discretion could be applied to selection. As a result, a number of humanitarian classes of refugees would be created, including the oppressed minority policy that allowed entry to Canada for persons who had not fled their country of origin., a measure that would subsequently benefit refugees from Russia, Uganda, Chile and other Central American countries.

The foundations began to be constructed also of a refugee rights regime. An Immigration Department Operations Memorandum on 17 January 1971 led to the creation of an “Interdepartmental Refugee Eligibility Committee. This was the precursor to the independent stream of refugee adjudicators eventually developed. Tibetan refugees constituted the next group of needs refugees permitted entry under relaxed immigration criteria. However, their numbers were small.

The first large group of non-European sourced refugees were the Ugandan Asians who came in 1972. When Idi Amin decreed that Ugandan Asians were no longer wanted in that country, Canada, with only the slightest pressure from Britain because they were British subjects, stepped up to the plate and allowed the entry of 20% of those expelled, just over 7,000 by the end of 1973. It helped, of course, that these were largely prosperous professionals and business people. The principle of accepting humanitarian refugees as immigrants under relaxed criteria designated for that class seemed to be working very well. That should have set a precedent for the Canadian response to a refugee crisis originating in Latin America when Pinochet overthrew the Allende government in Chile in a coup, but this proved more difficult. Our department of philosophy at Atkinson College (I was the chair at that time) was successful in getting Claudio Durán, his wife and children into Canada by offering Claudio a faculty position in the department, but for many others without job offers, the gates were closed. I regard it as a disgrace that by February 1975, less than 1,200 Chilean refugees had managed to escape to Canada. 3,000 Chileans “disappeared” in the ruthless Pinochet coup.[34]

However, the foundations were in place for a much larger group of humanitarian refugees. The experiences above, as well as with people fleeing the Soviet Union, bequeathed to the department an enormous experiential treasure that was used in writing the 1976 Immigration Act and its promulgation in 1978 as well as dealing with the first wave of Indochinese refugees. It is through these experiences that the designated classes and the idea of private sponsorship emerged that would be so influential in the intake of subsequent waves of refugees.

These initiatives also took place with respect to rights refugees. The Immigration Department not only developed specialized units focused on refugees, but cooperated with External Affairs and CIDA by assigning specialists to the Permanent Mission to the UN in Geneva to connect with UNHCR, ICEM (IOM), the Red Cross organization, the World Council of Churches and an ever-increasing number of international refugee-centred NGOs. With this foundation in place, the Canadian regime with respect to both needs refugees and rights refugees was ready to expand and develop, initially primarily in dealing with humanitarian refugees and the creative response to the Indochinese refugee crisis.

Part V

 1976 – 1982

The largest recognized[35] movement of refugees into Canada began in the same year the Chilean movement ended. But one would not have known this from the start. When Americans left Vietnam in such a humiliating way, Canada was asked by the State Department to take some of the refugees. The Canadian government at the time was reluctant. These refugees were perceived as America’s problem. For the vast majority of Canadians, the Americans should not have been involved in the Indochinese wars at all.  Further, some once again expressed fears that the refugee stream would be used as a route into Canada of communist spies from Southeast Asia. To mollify its American partner to the south, Canada did agree to take in the three years after the conquest of the south by the north a total of 8,000 persons, a relatively token number given the demand and the size of the movement.

That attitude changed in 1978. Canadian diplomats concluded that the increasing numbers of refugees fleeing Vietnam, though also Laos and Cambodia, were not the result of the war because the refugees had been allied with the Americans. They were fleeing repression and ethnic cleansing of Chinese in Vietnam at the same time as the ethnic Vietnamese were being cleansed in Cambodia. The issue came to a head in 1978 with the Hai Hang, a large and ancient freighter packed with over 2,500 refugees from Vietnam. Local countries were unwilling to admit them fearing they would be followed by a flood which they were reluctant to absorb. The Canadian government stepped forward and instead of the usual international implicit norm of Canada taking 10% of a refugee movement, Canada offered to take 25% of those on board to induce the Hong Kong government to allow the boat to dock and other countries to rally and join with Canada to resettle the refugees. The situation was repeated with a second boatload.

By the beginning of 1979, Bud Cullen, the then Minister of Immigration in the Liberal government, had convinced the Prime Minister and his cabinet colleagues to establish a special program for Indochinese refugees to be admitted under relaxed immigration criteria and set a target of 5,000 for that year.[36] When the Joe Clark Conservatives won the election in the Spring and when Ron Atkey, who had been named as the new Minister of Immigration, sat down and had a talk with Bud, Bud convinced Ron that the most important issue on his desk would be the movement of Indochinese refugees and that Ron should be prepared to take a lead in increasing the numbers of refugees.

One of the first initiatives the Joe Clark government took, after the fiasco over moving the Canadian embassy from Tel Aviv to Jerusalem[37], was to increase the intake of Indochinese refugees into Canada, 8,000 to be government-sponsored refugees and 4,000 to be privately sponsored. Private sponsorship was a novelty. A little-known clause had been introduced into the new 1976 Immigration Act that had been promulgated in 1978. The change was made to accommodate the Jewish community that wanted small groups of Canadian Jews to sponsor Jews from the Soviet Union. Only 200-300 refugees were expected to come via this route.

The provision allowed a group of five or more sponsors, or a church, synagogue or other organization involved with refugees, to initiate the sponsorship of humanitarian refugees from designated classes determined by the Minister by means of regulations. In 1979, there were three designated classes: the Indochinese, the Latin American Political Prisoners and Oppressed Persons and the East European Self-Exiled Persons. The first would become by far the source of the largest intake.

By the time the government of Joe Clark took office in June and the refugee crisis in the South China seas had reached dramatic proportions, senior government civil servants had only been able to convince two groups, the Mennonite Central Committee and the Dutch (Christian) Reformed Church to sign an umbrella agreement that would permit small groups of its members to initiate sponsorships under the guarantee of the larger church body. There is a myth that the government was forced by public pressure to increase the Indochinese intake. Evidence supports the interpretation that the opposite was the case. In this instance, the government was always the lead player.

The situation changed dramatically in June of 1979. Part of the reason was that a new government had taken over and wanted to demonstrate it was in charge and initiating policy, but it was policy that had support from all sides of Parliament. A second major reason was the dedication of senior policy staff in the Immigration Department; they worked assiduously to get the government to take a lead in dealing with this problem. A third instigator was the media that provided non-stop coverage of the issue as front page news that was critical in arousing the compassion of Canadians. In contrast to the incident of the Hai Hong, where there was much speculation about the gold bars the refugees had used to pay their way out and questions about whether we were helping refugees in need or just wealthy families to escape, that whole concern had been shoved overboard and disappeared into the choppy ocean waves.

A fourth element now entered the equation – the involvement of secular civil society at large rather than just special religious groups with a record of commitment to assisting refugees. Operation Lifeline was part of that upsurge. Though it turned out to be the name of the major initiative that spread across Canada, there were other worthy local initiatives, the most noteworthy being the initiative of Mayor Marion Dewar in Ottawa with Project 4,000.

Operation Lifeline in some form was inevitable, but it developed from a serendipitous combination of factors.[39] Let me speak of my role first. I had been up north working on my book on Hegel and the Problem of Recognition. I was on an island cut off from the media. I had been up there for six weeks and only returned to Toronto because I had a prior commitment to running a workshop for the Canadian Friends (the Quakers) on the island they owned; the topic was the Israeli-Arab conflict. The group consisted of supporters of each position, but each group was required to take up and defend the position of the other side. It also happened to be the case that I had written a review essay on a spate of books and articles that had recently been published, each having been written about the way various nation-states had turned their backs on Jewish refugees in the 1930s. As I was inundated with the media coverage that everyone had been reading for weeks, I became determined that this should not happen again.

When I finished the retreat, I decided to stay in Toronto a few days longer to write Ron Atkey, my member of Parliament and a former colleague at York University where he previously taught at the Osgoode Faculty of Law. I wanted to exert pressure on him to enlarge his initiative. I organized a meeting at my house on a Sunday, 26 June 1979, after church was out at 1:00 p.m. Representatives of the Catholic church up the street, an Anglican minister whom I knew from the area, rabbis from Holy Blossom Temple and Beth Tzedec Synagogue as well as the local alderman and some friends were invited to draft a letter to Ron asking the government to take a larger initiative. Not one who was invited failed to come or send a representative.

Just after 1:00 when the meeting was just beginning, there was a knock on the door. I went to answer presuming it was just some late comers who I had not been expecting. It was, but from a source I would never have guessed. The Director of Settlement for Ontario in the Immigration Department as well as the head of public relations for that department, André Pilon and Bob Parkes, were at the front door. They said that they had heard about the meeting and wondered if I would mind if they were permitted to attend and listen in.

I had to overcome being flabbergasted that senior civil servants had heard about the meeting, that they took time on a Sunday to come to a private home of someone they did not know. They did not even know if they would be welcome. I invited them in to join the group. We wrangled over the wording of the proposed letter for perhaps half an hour when our visitors from that strange land, the government, intervened. They asked if they could offer a suggestion. We easily acquiesced, if only to get relief from fifteen or so people trying to write a letter together. They informed us of this small provision in the Immigration Act. They asked if, perhaps in addition to writing a letter, we might want to make use of that provision and initiate some sponsorships as a form of witnessing.

Within a few minutes, we agreed to abandon our letter drafting and took up the idea of private sponsorship. We quickly determined that among the religious institutions in the riding as well as local community groups, we could organize at least 50 sponsorships. We divided up responsibilities with each of us agreeing to contact others to arrange for sponsorships. Within two weeks, we had overshot our target. We could never arrive at an accurate figure, but we certainly organized over 150 sponsorships in our riding.

Serendipity, once again, entered. It so happened that I had invited one of my graduate students to attend the meeting, on the assumption he might be interested, as well as to save time so we could work on his thesis immediately after the meeting was over and before I headed north again. He had never told me that he was a stringer for our national newspaper, The Globe and Mail. The next morning, when I was sitting at my desk, at 5:45 the phone rang. It was a lady from Marystown, Newfoundland. She had read about Operation Lifeline in the Globe and wanted to know how she could help. Startled, I asked her what Operation Lifeline was? She then read me Dick Beddoes’ page length column in the newspaper that has described myself as abandoning my book on Haekel (sic!) to return to Toronto to save the Boat People and to organize Operation Lifeline. At the bottom of the page, he had printed my name and number and suggested that if others wanted to help, they could contact me.

I laughed at the enormous lie, but then responded that she should organize a chapter of Operation Lifeline in her riding. I appointed her chair of the Marystown Chapter of Operation Lifeline. She protested, insisted that she was only a housewife and did not know how to go about this. I told her to contact her friends, her local clergy of any denomination, local politicians to form a local chapter of Operation Lifeline in her federal riding. I said I would send her an express package describing in detail how to go about sponsoring, even though at the time I had no clue. Reluctantly she agreed, and she performed admirably as she promised to keep me notified of her success.

Delighted, I hung up the phone and no sooner had I done so, it rang again. By the end of two weeks, 66 chapters of Operation Lifeline had been organized across Canada. By the end of the week, my house was overrun with volunteers – it was great that the family were now up at the island and that school was over. Also by the end of the week, the target of 50 sponsorships had been reached in our riding and would soon be greatly exceeded. In that morning, people began showing up at the door to volunteer since they were unable to reach me on the phone. One of these was Wendy Schelew, an expert in hospital administration who was between jobs and volunteered her services. She became the managing head of Operation Lifeline. Another was Dr. Joseph Wong who had organized a similar initiative among his friends who had immigrated from Hong Kong and he merged his organization with ours and became a stalwart. A third was Elaine Slater who brought us a pile of office supplies; she would become chair of the Board.

Another was a former fellow graduate student in philosophy who was then a practicing lawyer. He had gathered an enormous body of material on private sponsorship when he had tried – unsuccessfully – to get his United Church in April to initiate a sponsorship group. By Tuesday morning, after the two of us worked all night, we had a manual on private sponsorship that we could send out to chapters of Operation Lifeline that were mushrooming up all over.

There are many stories to tell about the exhilarating days that followed, how, for example, Flora MacDonald, Foreign Minister, got her cabinet to raise the target from 12,000 to 50,000, with 21,000 to be sponsored by the private sector. (The private sector by the end of the period of 18 months had almost doubled that target.) But I will end this story of the beginning of the Indochinese private sponsorship movement with one tale, that of Operation Intellectual Kneecapping. (It turned out to be a stupid name, but that is what we called it.) The National Citizens Coalition (NCC), then headed by Colin Brown, though subsequently by Stephen Harper, published within weeks of each other in August and September full page ads in Canadian newspapers. The first said that each refugee brought in would eventually bring in another 16 family members on average. The result: according to the NCC, almost a million Indochinese would be allowed to enter Canada.

Setting aside whether that would be a problem in the first place, setting aside that the numbers projected were based on early forms of family sponsorship practices no longer possible under the 1976 Immigration Act, the ads stank of racism and the fears of the “Yellow Peril.” Sometimes the bogeymen are communists. At other times, they are Islamic terrorists.[40] That time, race was the spectre.

That initial ad was followed by a second based on a survey the NCC had taken. Based on that survey, most Canadians were opposed to the intake of 50,000 Indochinese refugees. Only about a third of the population supported the expanded initiative. At the time, we denounced the way the survey had been carried out and the leading questions asked. But we later learned that secret surveys of public attitudes had been undertaken about the same time, but based on more scientifically stringent questions and methods. The results were not significantly different. Though virtually every professional organization, business association, business leaders, along with the parties in parliament, had endorsed the initiative, the NCC was tapping into a racist vein that ran through the heart of Canada. Quite aside from its effects on the sponsorship movement and on the political process, an NCC anti-refugee campaign would be very detrimental to the process of resettling refugees. They already had more than enough insecurities. We would be welcoming refugees against a background noise that said that they were not welcome.

Dr. Joseph Wong and I huddled together and he came up with an idea to contact one of the financial supporters of the NCC whom he knew to be a very good guy, though a fiscal and financial conservative. Joseph contacted him and he agreed to meet with us for breakfast at 7:00 a.m. the next day at what was then called the Prince Hotel on University Avenue. We told him the problem. He said he understood and sympathized. The breakfast ended before 8:00 a.m. Before noon, he phoned Joseph and told him that we could set our concerns aside. The NCC would not be publishing anything more on the issue.

He had phoned seventeen of his friends and acquaintances who were donors to the NCC and received permission to speak on their behalf. He phoned Colin Brown and told him to stick to financial issues and abandon the campaign against the sponsorship of the Indochinese refugees otherwise not only would he and his friends withdraw their support, but he would personally phone people he knew across Canada, who were supporters and contributors to the NCC, to withdraw their support unless he received an immediate commitment to stick to financial issues.

We never heard another peep from the NCC. The danger of organizing a racist backlash had been diverted. However, when the President of the United States holds such views rooted in invented fears of terrorists slipping into the U.S. through the refugee door, when he is ostensibly a billionaire in his own right, the problem is raised to a totally different dimension.

Reflections and Adumbration

In the 1980s, the mouse that eventually roared was that sleepy issue of rights refugees. At the beginning of the Indochinese refugee movement that would eventually bring 160,000 Indochinese refugees into Canada, rights refugees were a sliver in the refugee movement. In 1982, there were approximately 300 files that were reviewed by the Minister to determine whether a refugee claimant should be allowed to stay or whether a refugee referred to by UNHCR for protection status could be approved for admission by the Canadian government. But the signs were becoming ominous. The number of files had doubled from the year before. By the end of the decade, refugee claimants on Canadian soil had reached over 50,000 applicants per year with a backlog of over one hundred thousand. The story of rights refugee claimants had moved from the back burner to a front firestorm.

“Unprecedented in the history of Canadian immigration legislation, the Immigration Act, 1976 attempted to codify the procedures dealing with the entrance of individual refugees to Canada. “That coding would undergo many revisions over the years,”[41] initially in the eighties to give “the benefit of the doubt” to refugee claimants on Canadian soil, but over the longer term in practice, to set in motion procedures which would make it increasingly difficult to arrive in Canada to make a refugee asylum claim in the first place. Other scholars concentrate on the glass half full argument in tracing the application of refugee law in general in procedures and practices to make that law more precise.[42]

However, refugee rights regimes never escaped the net of the primacy of sovereignty[43] – we will accept refugee rights but only so long as the sovereign right to select members is only incidentally compromised. Refugee rights are inevitably caught up in security issue, often as indicated at the very beginning, to put in place a nativist agenda that had nothing to do with either refugees or security, except insofar as the former offer a convenient target and the latter offer a convenient even if irrelevant excuse. The security issue is often about cultural security and effects, not simply on the nation-state, but in a federal system like Canada’s, on the policies of provinces, such as those of Quebec.[44]

Politics has always been at the centre of refugee issues and rarely at the periphery. And that is completely understandable. As I have said above, the principle of the sovereign to decide for itself and its own interests is sacrosanct, even as it takes into consideration the rights, interests and needs of others. Those considerations can be shaped to serve the interests of the nation-state.[45]

In a subsequent article, I will try to describe the impact of human rights refugee law and its development on humanitarian refugee policy and the boomerang effect the former had on limiting the latter. At the same time, I will try to clarify several historical questions, all of which have an impact on the debate of whether it is preferable to view refugees primarily through a needs window or whether refugee policy should be subsumed under human rights law.

How did the crisis in El Salvador and the creation of special measures for admitting Salvadorans into Canada in 1981, including those who were already in the U.S., impact on this question? When the Solidarity movement in Poland was repressed, why did we add Poland to the countries included in the Political Prisoners and Oppressed Person Class, a direct and clear case of people targeted for persecution and presumably eligible to be taken in as Convention refugees, but, in fact, allowed entry without having to prove they had a well-established fear of persecution? In 1983, how and why did the government expand the intake of Tamil refugees from Sri Lanka from those simply affected by the riots in Colombo to include all Tamils throughout Sri Lanka affected by the war in the north. And what did this tell us about the rivalry between the primacy of rights versus needs, Convention versus humanitarian refugees?

The big shift took place in 1985 with the Singh decision. If you recall, at the very beginning of the development of the Convention, there had been a debate. If refugees were defined in terms of rights, then, as a concomitant of those rights, there would have to be other rights – rights to be heard, that is, to have an oral hearing and the application not simply processed by the Minister and/or her appointees, but the asylum claimant to be present at the hearing, to be assessed by persons of independent judgment, to have the right of counsel and to have the right of appeal. The Supreme Court of Canada in the Singh case in 1985 ruled that these connections anticipated in 1950 had to be implemented in Canadian refugee law.

Just after the Canadian people were awarded the Nansen medal in 1986 – an event commemorated by all of the Indochinese ethnic groups in Canada in Ottawa last year – for the tremendous leadership and work on behalf of humanitarian refugees performed by Canadian citizens on behalf of refugees, specifically the Indochinese, what followed was that the movement of humanitarian refugees in Canada shifted back into the shadow of an overwhelming focus on rights refugees and the creating of large institutionalized systems for hearing and adjudicating claims, for arranging counsel, for educating supposedly independent assessors. An administrative review system was initiated for refugees who had arrived before 21 May 1986, at the same time as Bill C-55 was passed to provide an adjudication system based on a combination of recommendations from the Robinson Report (1981), the Ratushny Report (1984) and mostly the Plaut Report (1985).

No sooner had rights refugees come to the fore than the reaction and pushback started. In 1987, refugees from the U.S. were forced to turn back and await a hearing date in the U.S. For only the second time in its history, parliament was recalled out of its summer recess in 1987 when a group of Sikhs arrived off the shores of Nova Scotia and, upon landing, requested refugee status. Very quickly, the government tabled Bill-84, the Refugee Deterrents and Detention Bill that was finally passed in 1988.

These steps to undermine the possibility of landing in Canada to claim refugee status were compounded by carrier sanctions, by expanding the number of countries where its citizens were required to obtain visas before they came to Canada as well as other deterrent measures. By 1988, where there had once been 150 and then 300 applications, the backlog alone of refugee claimants was over 100,000. By the end of the 1980s, the cost of the whole system just in Canada was estimated at over one billion dollars, equivalent to the entire budget then of UNHCR to deal with 35 million refugees.

The humanitarian designated class system, now relegated to a back seat, continued to function and was applied to overstayers from China following the Tiananmen massacre in Beijing in 1989 and, following the disintegration of the iron curtain that same year, to a European self-exiled class. By 1992, the accumulated methods for deterring the arrival of refugee claimants were expanded even more and given legislative authority in Bill C-86, including more scientific methods of identification – fingerprints originally – and expanding the detention system, though never as broadly or as cruelly as in Australia. Further, refugee claimants who traveled to Canada had to have the proper documents, in total contradiction to both reality and to the principle that the persecuted had rights independent of their membership in a state.

At the very same time, Canada opened the definition to include those persecuted because of gender. But the key shift took place even before the United States when immigration responsibilities were transferred to the Department of Public Security. The message was very clear – much harder to get in and much quicker to be kicked out. The newly elected Chretien government simply reversed that step and shortly after that, modified the requirements on documentation.

By 1987, initiatives were taken to bring the humanitarian process and the asylum or rights process into closer alignment with the creation of a Humanitarian Designated Class applied to applications from those persecuted who were still in their home countries – the Source Country Class. A Country of Asylum Class for Convention refugees from overseas who would be sponsored was created.

The dialectic between humanitarian and rights refugees continued into the twenty-first century, leaving the tensions between sovereignty and rights, between security and humanitarianism, between prejudice and generosity, unresolved and leaving the field open for a demagogue to play on fears and ignorance, lies and misrepresentation to advance a populist lowest denominator appeal that would transform an open polity into a closed and paranoid one.

To rephrase Judge Rosalie Abella, with the doctrine of civil liberties we gained the universal right to be equally free from an intrusive state regardless of group identity; with the doctrine of human rights, we gained the universal right to be equally free from discrimination based on group identity. But what about refugee rights? What about the right to belong to a state that protects your rights? For only if we are members of a state can we have both civil and human rights.

This brief historical sketch points to a claim that rights language cannot produce the transcendental conditions that are the preconditions of any rights in the first place. The existence of a sovereign nation-state is a precondition of both civil and human rights and membership in a state that protects such rights in the first place. A nation-state that goes beyond its sovereign and democratic responsibilities to guarantee rights to non-members has a problem. Further, it stimulates a fear that globalizing rights will take away a nation’s primary interest in self-preservation and open the way for exploitation by populist demagogues. In any case, refugee rights are redundant. Once a foreigner is on the soil of such a sovereign state, they too must be guaranteed both civil and human rights. There are no separate refugee rights. Further, I suggest much more can be done for refugees and more will be granted membership in a democratic nation-state when the threat to sovereignty is removed.

But this argument requires a full essay on its own.

 

[1] Of almost 64 million refugees and persons of concern to UNHCR in 2015, only 3,219,941 were asylum seekers and many if not most did not qualify as Convention refugees. In contrast, there were over 16 million humanitarian refugees, though IDPs were more than double that number. (http://popstats.unhcr.org/en/overview)

[2] For example, government assisted refugees (GARs) and Blended Visa Office-referred Refugees (BVORs) are Convention refugees referred to Canada for resettlement by UNHCR, while privately sponsored refugees (PSRs) may be Convention refugees or Country of Asylum refugees, that is, refugees seriously and personally affected by civil war or armed conflict.

[3] Thus, of 40,081 Syrian refugees who arrived since 4 November 2015 to the end of 2016, GAR and BVORs made up over 25,000 of the total while under 15,000 were PSRs. Some of these were Convention refugees referred to Canada and private sponsors by UNHCR. (http://www.cic.gc.ca/english/refugees/welcome/milestones.asp) In addition, within Canada over 16,000 individuals claimed Convention refugee status in 2015. If even only 40% of those end up being accepted as Convention refugees, and even if all PSRs were non-Convention refugees, Convention refugees would outnumber humanitarian refugees admitted to Canada by approximately a 2:1 ratio.

[4] Though Trump and members of his administration repeatedly used the word “ban,” they subsequently blamed the media for calling what they were doing a ban. It was only a “pause,” they asserted. How can a pause be “indefinite”?

[5] Shargh, the Reformist Iranian newspaper on 26 January 2017 wrote, “Donald Trump … has taken a hold of a pen, and is fulfilling every one of his electoral promises, and is scaring thousands of people across the world by every decision he is making. The United States of America, the country which is founded on immigration and racial diversity, is now witnessing one of its most anti-immigrant presidents of its history in the White House.” The prominent Iranian actress Taraneh Alidoosti, who stars in Asghar Farhadi’s film, The Salesman, decided to boycott the 2017 Academy Awards ceremony in protest.”http://www.al-monitor.com/pulse/originals/2017/01/trump-executive-order-iran-iranian-visa-ban-alidoosti.html#ixzz4WzPYCYRt

[6] Not one of the perpetrators of terror attacks on U.S. soil in the twenty-first century came from any one of these countries. Most perpetrators of terrorism are home-grown. Though three of the major terrorist attacks during the Obama regime were perpetrated ostensibly by Muslim terrorists, all three were cases of psychological disturbance. Only two of the sixteen major terrorist cases were clearly ideological, based on Islamicism. In the San Bernardino terrorist attack in which 14 were killed, one perpetrator was born in the U.S. of Pakistani descent while the other was a legal resident of the U.S. of Pakistani descent. Any reasonably objective study would conclude that there is virtually no linkage between domestic terrorism and refugees.  Trump’s whole policy was based on a lie, and, unlike the fraud of weapons of mass destruction that took the Americans into Iraq, this is a case of a blatant lie, not simply one of questionable evidence but of no evidence.

[7] The U.S. under the Obama administration admitted about 10,000 Syrian refugees in 2016. For 2017, it planned to increase the overall target of admitted refugees to 110,000 for 2017, a 30% increase over 2016. The single largest increase, by an additional 10,000, was expected to go to Syrian refugees.

[8] The Globe and Mail on 12 February 2017 (“Quebec and Manitoba see influx of asylum seekers crossing U.S. border”) reported that on the previous weekend, 42 people crossed illegally into Quebec and 21 into Manitoba. Most were Somalis. Thus far in 2016 into 2017, 400 had crossed, an increase from 68 in the previous 2014-2015 fiscal year.

[9] For a historical comparison of the development of refugee policy in the two countries, Canada and the U.S., see Howard Adelman (ed.) (1991) Refugee Policy: Canada and the United States, Toronto: York Lanes Press Ltd.

[10]  https://migrationpolicy.webex.com/migrationpolicy/onstage/g.php?MTID=e4cfca0049867a54019aea1d8961fab86

[11] Jean-Louis de Brouwer, Director, Humanitarian and Civil Protection Operations, DG ECHO, European Commission; Laura Hammond, Reader, Development Studies, and Team Leader, Research and Evidence Facility, EU Emergency Trust Fund for Africa, SOAS University of London; Nassim Majidi, Co-Founder and Co-Director of Samuel Hall and the Migration Pillar Lead; Affiliate Researcher, Sciences Po Paris / CERI, France; and Affiliate Researcher, Wits University / ACMS, South Africa; Mia Steninge,
Chief Advisor, Migration and Development, Ministry of Foreign Affairs, Denmark.

[12] See, for example, the following: Charlotte Alfred (2016) “How the EU Is Trying To Stop Africans Boarding Boats To Europe,” Worldpost, 9 June; James Traub (2016) “Europe Wishes to Inform You That the Refugee Crisis is Over,” Foreign Affairs, 18 October; Patryk Kugiel (2016) “Can Development Assistance Solve the Refugee Crisis?” The Polish Institute for International Affairs, 87 (937), 14 December. The effort is attacked as far more expensive to implement than estimated, far more difficult to get cooperation on the ground in real terms, while incurring political and moral costs. The Turkish agreement is an example where the EU said it would continue to consider asylum claims from within countries of first asylum, but, with the pressure off, is, in fact, doing very little to process claimants.

[13] To understand how refugee return can be a destabilizing factor and contribute to a renewal of war, cf. Howard Adelman (2002), “Repatriation of Refugees Following the Signing of Peace Agreements: A Comparative Study of the Aftermath of Peace in Fourteen Civil Wars,” in Stephen Stedman et al Thematic Issues in Peace Agreements Following Civil Wars. Boulder: Lynne Rienner Publishers.

[14] Cf. Elizabeth Collett (2017) “New EU Partnerships in North Africa: Potential to Backfire?”, Migration Policy Institute, 2 February http://www.migrationpolicy.org/news/new-eu-partnerships-north-africa-potential-backfire

[15] The pioneer work to underpin migration movements, not in individual choice, but in family survival strategies, was initially put forth by Oded Stark (with D. Bloom) (1985) “The new economics of labor migration.” American Economic Review75, 173–178. The family, not the individual is the crucial agent in the vast majority of cases of migration. This applies to integration as well as emigration. In both, the family constitutes a crucial actor in the process of human mobility. Given this family risk management framework, it is often the case that family reunification may not be the ideal goal in dealing with migrants. Cf. Laura Zanfrini (2012) “Family Migration: Fulfilling the Gap between Law and Social Processes,” Societies 2:3, 63-74.

[16] The essay was published in, Altogether Elsewhere: Writers on Exile, edited by Marc Robinson, London: Faber and Faber, 110-119.

[17] Cf. Howard Adelman (1991) “Canadian Refugee Policy in the Postwar Period: An Analysis,” Refugee Policy: Canada and the United States, ed. by Howard Adelman, Toronto: York Lanes Press, 173-223.

[18] See Irving Abella and Harold Troper (1982; 2012), None is Too Many: Canada and the Jews of Europe, 1933-1948. Toronto: Lester & Orpen Dennys and revised edition, University of Toronto Press.

[19] For a more general argument about this thesis and its influence on the development of human rights laws in general, cf. Mark Mazower (2004) “The Strange Triumph of Human Rights, 1933–1950,” The Historical Journal 47:2, June, 379-398.

[20] The documents on their arrival can be found in the archives of Tartu College at 310 Bloor St. W. in Toronto.

[21] http://www.refworld.org/docid/3ae68c1a10.html

[22] This supposed “international constitutional moment” (Anne-Marie Slaughter and William Burke-White, (2002) “An International Constitutional Moment,” 43:1), in which refugee law was built into human rights law, is under dispute from many directions. Some argue that the moment existed, but not at birth, but only when these rights were first really institutionalized – in human rights law in the 1970s and in refugee law in the 1980s. Others argue that all three types of rights, general human rights born with the Universal Declaration of Human Rights (along with the subsequent International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)), Refugee Rights in the Convention and the rights of a group not be attacked for their culture, beliefs and way of life in the Genocide Convention, are triplets, born at about the same time out of the same seed, even if one of the triplets, human rights law, emerged first from the womb. Still others argue that the legacy is much older than the aftermath of WWII. Human rights and refugee rights are as old as Methuselah. And primogeniture belongs to refugee rights expressed deeply in all three major religions that arose in the Middle East and possibly Far East religions as well. Cf. Jill I. Goldenziel (2016) “The Curse of the Nation-State: Refugees, Migration, and Security in International Law,” Arizona State Law Journal 48: 579-636, 581-2. Goldenziel argues that, in the contemporary world, refugee rights not only emerged from a very much older tradition, but coalesced in the 1940’s because of national interests as well as abstract principles. (There is a sense in which each of these positions is correct, but that is for another discussion. The real debate is whether refugee law should be primarily understood in terms of human rights law as my colleagues Guy Goodwin-Gill and James Hathaway have argued. (For the latter, see his 1991 article, “Reconceiving Refugee Law as Human Rights Protection,” Journal of Refugee Studies 113: 113-131 and the many other articles and books he has published to advance that argument.) The argument proceeds by concentrating on the Convention and its aftermath and largely ignores humanitarian law applied to refugees. Or, for that matter, to actual genocides. Cf. Howard Adelman and Astri Suhrke (1996) Early Warning and Conflict Management, Volume 2 of The International Response to Conflict and Genocide: Lessons from the Rwanda Experience, Copenhagen: DANIDA; Howard Adelman and Astri Suhrke (eds.) (1999) The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire, New Brunswick, N.J.: Transaction Books; Howard Adelman, with Frank Chalk, Alexandre Kiss, William A. Schabas and Dinah L. Shelton (co-eds.) (2004) Encyclopedia of Genocide and Crimes Against Humanity, 3 volumes, New York: Macmillan USA.  The interaction between the issue of genocide and refugee flows is discussed in Howard Adelman (2005) “Rwanda and Refugees,” Matthew J. Gibney and Randall Hansen (eds.) Immigration and Asylum: From 1900 to the Present, Oxford: ABC Clio 2, 542-547.

[23] Cf.. Goldenziel, Jill I., (2016) “The Curse of the Nation-State: Refugees, Migration, and Security in International Law (July 10). Arizona State Law Journal, 48. SSRN: https://ssrn.com/abstract=2684903; see also , François Créepeau and Michael Barutciski (1995) ““Refugee Rights in Canada and the 1951 Geneva Convention,” Journal of Refugee Studies, 7, 239-248.

[24] A major concern was the right of refugee return, not discussed in this article. For an extensive analysis, cf. Howard Adelman and Elazar Barkan (2011) No Return, No Refuge. New York: Columbia University Press. For an analysis, most germane to the thesis of this essay, cf.  Howard Adelman (1994) “Refugees: The Right of Return” in Group Rights, ed. Judith Baker, University of Toronto Press, 164-185, and Howard Adelman (1987) Palestinian Refugees and Durable Solutions, Oxford: Refugee Studies Programme. When applied to refugees in the Far East, cf. Howard Adelman (ed) (2008) Protracted Displacement in Asia: No Place to Call Home, London: Ashgate, and, more generally, Howard Adelman, (2013) “The Law of Return and the Right of Return,” in M Rafiqul Islam, Azizur Rahman Chowdhury and Jahid Hossain Bhuiyan (eds.) An Introduction to International Refugee Law, Leiden: BRILL, Netherlands, 291-318, and Howard Adelman (2010) “Refugee Return: By Right and By Law,” in Dan Avnon and Yotam Benziman (eds.) Plurality and Citizenship in Israel: Moving Beyond the Jewish/Palestinian Civil Divide, London: Routledge, 31-52.

[25] Cf. Jan Raska  (2015) “Forgotten Experiment: Canada’s Resettlement of Palestinian Refugees, 1955-1956,” Histoire sociale/Social History, November, 48:97

[26] See, for example, Howard Adelman (1986), Guest Editor, Palestinian Refugees, Middle East Focus, 9:2.

[27] For an overview of these developments, cf. Howard Adelman, editor-in-chief (2002) Immigration Policy and Practice in Canada. Ottawa: Metropolis Institute.

[28] Howard Adelman (ed.) (1994) Hungarian Refugees, Toronto: York Lanes Press and “Genesis,” in The Genesis of a Domestic Refugee Regime: The Case of Hungary, Toronto: York Lanes Press.

[29] The Gouzenko Affair marked not only the beginning of the Cold War, but an unprecedented abuse of human rights in the name of national security by the Federal Government of Canada with the suspension of Habeas Corpus, the arrest and trial of many, and with the reputations of many others ruined in the process.

[30] For a more thorough discussion, cf. Howard Adelman (1991) “”Humanitarianism and Self-Interest: Canadian Refugee Policy and the Hungarian Refugees,” Studie- en Informatiecentrum Mensenrechten Special 11 Netherlands Institute of Human Rights, 98-108.

[31] Charles B. Keely (1971) “Effects of the immigration act of 1965 on selected population characteristics of immigrants to the United States,” Demography 8:2, 157-169.

 

[32] Cf. Harold Troper (1993) “Canada’s Immigration Policy since 1945,” International Journal 48:2, Spring; Ninette Kelley and Michael Trebilcock (1998) The Making of the Mosaic: A History of Canadian Immigration Policy, Toronto: University of Toronto Press; Valerie Knowles (2000) Forging our Legacy: Canadian Citizenship and Immigration, 1900-1977, Ottawa: Public Works and Government Services Canada.

 

[33] Precise figures are not available because Canada diplomatically never announced a special program for American refugees. We did not have to go overseas to get them. They arrived in Canada on their own, often with the help of Canadians in what was termed the Vietnam underground railroad. I then lived in Rosedale and cannot count the number of draft dodgers and deserters who came to the terminus of that railroad to sleep in our third floor.

[34] Steve J. Stern (2004) Remembering Pinochet’s Chile, Duke University Press.

[35] Only the American refugee movement during the Vietnam War was larger, but it was not recognized as a distinct movement.

[36] For a more detailed discussion and depiction of these developments, cf. Howard Adelman (ed.) (1980) The Indochinese Refugee Movement into Canada, Toronto: Copp Clark, and Howard Adelman (1982) Canada and the Indochinese Refugees, Regina: Weigl Educational Publishers.

[37] Howard Adelman (1980) “Clark, and the Canadian Embassy in Israel,” Middle East Focus, March 2:6, p. 6-18.

[38] The source of this false news is not only the media, which has a propensity to view government initiatives as only passive responses to the voice and will of the people. One source of this misleading information is the otherwise extremely reliable Canadian Council for Refugees. On its website summarizing the history and development of refugee policy in Canada, it is written that, “Popular pressure forced the government to adjust upwards its initial commitment to resettling the refugees.” http://ccrweb.ca/en/hundred-years-immigration-canada-part-2 This is just incorrect.

[39] For a journalist’s account, see Peter Goodspeed (2014) “Can Canada duplicate its boat people rescue with Syrian refugees?” Toronto Star, 26 September.

[40] For a discussion of the interaction between terrorist threats and Canadian refugee policy, cf. Howard Adelman (2008) “Canada’s Balancing Act: Protecting Human Rights and Countering Terrorist Threats”, in Alison Brysk and Gershon Shafir (eds.) National Insecurity and Human Rights: Democracies Debate Counterterrorism, Berkeley and Los Angeles: University of California Press, 137-156.

[41] Cf. Christopher J. Wydrzynski (1979) “Refugees and the Immigration Act,” Montreal: McGill Law Journal, 154-190. This article outlines “the immigration system established to process refugee claims, and will comment on the legislative steps Parliament has taken to ensure that Canada meets her international obligations and provides a system whereby the individual refugee applicant is treated with procedural and substantive fairness.”

[42] Cf. Alexander Betts (2009) Protection by Persuasion: International Cooperation in the Refugee Regime; Ithaca, NY: Cornell University Press, and Alexander Betts, Gil Loescher and James Milner (eds.) (2012) UNHCR: The Politics and Practice of Refugee Protection, London: Routledge.

[43] Howard Adelman (2008) “Sovereignty in the Twenty-First Century: Security, Immigration and Refugees,” Ch. 8 in Trudy Jacobsen, Charles Sampford and Ramesh Thakur (eds.) Re-envisioning Sovereignty: The End of Westphalia? Aldershot: Ashgate, 129-150. See also Jack Donnelly (2014) “State Sovereignty and International Human Rights,” Ethics and International Affairs, 225.

[44] Cf. Howard Adelman (1995) “Canada, Quebec and Refugee Claimants,” in Is Quebec Nationalism Just: Perspectives from Anglophone Canada, ed. Joseph Carens, McGill-Queens University Press, 82-96.

[45] Thus, the effort to get nations to intervene in other states where there were gross abuses of human rights – Government of Canada and U.N. Secretary-General, Responsibility to Protect: Timely and Decisive Response, 1, U.N. Doc. A/66/874-S/2012/578 (July 25, 2012). For the more ambitious issue of humanitarian intervention, cf. Canadian Government Responsibility to Protect and a critique in terms of practice, Howard Adelman and Govind C. Rao (eds.) (2003) War and Peace in Zaire/Congo: Analyzing and Evaluating Intervention 1996-1997, Lawrenceville, N.J.: Africa World Press as well as a more extensive effort to salvage the disasters in application, see U.N. Secretary-General (2012) Responsibility to Protect: Timely and Decisive Response, U.N. Doc. A/66/874-S/2012/578, 25 July. Refugee movements are also used as a propaganda tool and an instrument of war. Cf. Howard Adelman (2003) “The Use and Abuse of Refugees in Zaire,” Chapter 4, Stephen John Stedman and Fred Tanner (eds.) Refugee Manipulation: War, Politics, and the Abuse of Human Suffering. Washington, D.C.: The Brookings Institute, 95-134. For a more theoretical examination that preceded the publication of the Responsibility to Protect, cf. Howard Adelman (2001) “Theory and Humanitarian Intervention,” Chapter 1, Michael Keren and Donald A. Sylvan (eds.) International Intervention: Sovereignty versus Responsibility. London: Frank Cass & Co., 3-24.

 

With the help of Alex Zisman

Terrorism & Migration

Terrorism and Migration: Part III                                                  31 January 2017

by

Howard Adelman

What follows in the third part of “Terrorism and Migration” that was supposed to be sent out automatically last Wednesday (one of the great benefits of the new system – if I were not so technically challenged). The ending began prophetically – after all, it was written last weekend – “In Donald Trump’s Executive Order on Migration and Terrorism, in the provisions for reporting, there is no mention of an independent review as provided in section 11 of the existing legislation. There are many grounds upon which this presidential executive order may be challenged.” Judge James L. Robart, appointed to the bench by President Bush in 2004 and now labeled by Donald Trump as a “so-called judge”, is a Republican and a constitutional conservative. It was on those grounds that he issued a restraining order on the application of Trump’s executive order on migration and terror.

As he noted when grilling the lawyer from the Justice Department who could not produce a single name from one of the seven countries who had been involved in a terrorist attack on American soil since 9/11, “The answer is none.” In his appointment hearing before the Senate, he had stated, “If I am fortunate enough to be confirmed by the Senate, I will take that experience to the courtroom with me, recognize that you need to treat everyone with dignity and with respect, and to engage them so that when they leave the courtroom they feel like they had a fair trial and that they were treated as a participant in the system.” Equal treatment to all and individual treatment with respect to the dignity of the Other are foundational principles of a conservative approach to the law.

I was delighted to be proven correct in the results of the many court challenges that were launched across America. Just over a year ago, on 20 January 2016, Senator Ben Cardin (Dem. Maryland), the ranking member of the Senate Committee on Foreign Relations, introduced a bill related to the restriction of the use of the Visa Waiver Program. He had become a guru on immigration and refugee legislation. On 4 February 2017, Ben Cardin issued a “Statement on the National Restraining Order Against the Trump Travel Ban” as a response to the most widespread application of the various legal challenges successfully launched against the application of Donald Trump’s new executive order on migration.

“Our founders wisely created three co-equal branches of government, including an independent judiciary, to serve as a strong check and balance on both the president and Congress. Like the president, our judges – and our Congress – are sworn to uphold the Constitution.  When the president of the United States abuses or ignores the Constitution, and attacks the integrity of the judiciary by calling a ruling ‘outrageous’ or calls a judge a ‘so-called judge,’ he is undermining the entire system of government, not only the decisions with which he disagrees.

“The international chaos caused by the rushed and ill-conceived executive order targeting Muslim refugees and travelers is wrong and should be rescinded.  This executive order has made America less safe.  I will continue working with the Departments of State and Homeland Security as they promptly implement the court’s order to again permit the lawful travel to and from the United States. There is no way to know how many law-abiding citizens and travelers have been hurt by the president’s actions, but I will do everything in my power to minimize the damage being done.”

As I indicated above, Ben Cardin is no newcomer to the issue of migration and terrorism. Further, since the election of Donald Trump, he has been at the forefront of criticizing Trump, not as President, but in how Trump acts and serves as President. On 22 November 2016, Ben Cardin announced his intention to introduce a resolution expressing the sense of Congress (not Congress requiring) that President-elect Trump “convert his assets to simple, conflict-free holdings, adopt blind trusts, or take other equivalent measures, in order to ensure compliance with the Emoluments Clause of the U.S. Constitution,” lest dealings by Trump-owned companies with any entity owned by a foreign government “potentially” violate the Constitution. Article I, Section 9, Clause 8 of the U.S. Constitution provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Cardin went on to write, “The Founding Fathers were clear in their belief that any federal office holder of the United States must never be put in a position where they can be monetarily or otherwise influenced by a foreign governmental actor.” (Rosalind Helderman and Drew Harwell wrote an article for The Washington Post (4 February 2017) that pointed to a number of documents that confirmed that Donald Trump was still benefitting from his business.)

Cardin also opposed the confirmation of Scott Pruitt as head of the Environmental Agency, Senator Jeff Sessions as Attorney General and Betsy DeVos as Secretary of Education. He also questioned the appointment of Dr. Tom Price as “Secretary of Health and Human Services, not only because, as a member of the House of Representatives he advocated tearing apart “The Affordable Care Act” that would deny tens of millions of Americans access to affordable, quality health care coverage (70% of whom in Maryland come from communities of colour), but also because of his past opposition to restrictions on how the cigarette industry advertises and markets a cancer-causing weed,  his support for Trump’s cutting off U.S. global health funding to foreign NGOs which work on the frontlines combating many diseases, particularly in preventing the spread of HIV/AIDS.

Cardin has been clear that Trump’s Executive Order on Immigration and Refugees and the unfounded link to terrorism is but the leading edge of a much broader and more general attack on the well-being and security of Americans in the name of a totally irrelevant and very marginal fear and claim to protect that security. On the Monday following the issuance of that heinous executive order, he, along with other Senators introduced a bill to rescind the Executive Order.

It is now estimated that 90,000 individuals were immediately negatively affected by the Executive Order, quite aside from the millions around the world affected in the long run. Constituents from every part of America had loved ones temporarily detained, others denied the right to board a plane and others who decided not to travel lest they risk detention – and this does not count the citizens of all the countries around the globe, such as Canadian citizens of dual nationality, that were affected in the first iteration and interpretation of the Executive Order.

The operations of universities as well as large global corporations were detrimentally affected.  Princeton President Christopher L. Eisgruber along with Amy Gutman, currently President of the University of Pennsylvania, drafted the letter that was signed by 47 other American college and university presidents and sent to President Trump urging him to “rectify or rescind the recent executive order closing our country’s borders to immigrants and others from seven majority-Muslim countries and to refugees from throughout the world.”

February 2, 2017

President Donald J. Trump
The White House
United States of America

Dear President Trump:

We write as presidents of leading American colleges and universities to urge you to rectify or rescind the recent executive order closing our country’s borders to immigrants and others from seven majority-Muslim countries and to refugees from throughout the world. If left in place, the order threatens both American higher education and the defining principles of our country.

The order specifically prevents talented, law-abiding students and scholars from the affected regions from reaching our campuses. American higher education has benefited tremendously from this country’s long history of embracing immigrants from around the world. Their innovations and scholarship have enhanced American learning, added to our prosperity, and enriched our culture. Many who have returned to their own countries have taken with them the values that are the lifeblood of our democracy. America’s educational, scientific, economic, and artistic leadership depends upon our continued ability to attract the extraordinary people who for many generations have come to this country in search of freedom and a better life.

This action unfairly targets seven predominantly Muslim countries in a manner inconsistent with America’s best principles and greatest traditions. We welcome outstanding Muslim students and scholars from the United States and abroad, including the many who come from the seven affected countries. Their vibrant contributions to our institutions and our country exemplify the value of the religious diversity that has been a hallmark of American freedom since this country’s founding. The American dream depends on continued fidelity to that value.

We recognize and respect the need to protect America’s security. The vetting procedures already in place are rigorous. Improvements to them should be based on evidence, calibrated to real risks, and consistent with constitutional principle.

Throughout its history America has been a land of opportunity and a beacon of freedom in the world.  It has attracted talented people to our shores and inspired people around the globe. This executive order is dimming the lamp of liberty and staining the country’s reputation. We respectfully urge you to rectify the damage done by this order.

The Executive Order, instead of promoting values at the heart of America, instead of being consistent with the constitution of the United States, legalized discrimination based on religion and nationality. The fact that ALL Muslim countries were not included does not mean the order is non-discriminatory. Hitler’s action in the 1930’s initially only targeted Jews in Germany. Trump’s ban is inherently discriminatory because there is no connection between the ban and the threat, not even a thin thread of a connection let alone one that is proportionate based on the evidence. The Executive Order completely ignores the fact that America is steeped in “extreme vetting” already, for before 2017 it already took 18-24 months just for the screening process.

But what must also be noted is that the war on new immigrants and on refugees had already become part of American practice. A year ago, on 20 January 2016, the Unitarian Universalists for Social Justice sent Senator Ben Cardin the following letter:

Dear Senator Cardin:

On behalf of the Unitarian Universalists for Social Justice (UUSJ) in the National Capital Region, I ask you to urge President Obama to halt mass deportation of immigrants. These practices are contrary to our nation’s and our Unitarian Universalist values. We also urge you to vote against H.R. 4038, the SAFE Act. In addition, we continue to urge Congress to come together to pass bipartisan comprehensive immigration reform to address the needs of the undocumented and other immigrant groups which would address our broken system that cruelly tears families apart.

There are more than 6,500 Unitarian Universalists in over 23 congregations in the greater Washington, D.C. National Capital Region, and 4,654 in Maryland. Unitarian Universalists embrace a diversity of religious beliefs. We put our faith into action through social and environmental justice work in our communities and the wider world. Unitarian Universalists affirm and promote seven Principles, which we hold as strong values and moral guides. We are called by our first Principle, “The Inherent Worth and Dignity of Every Person.”

In 2013 our Unitarian Universalist General Assembly passed a Statement of Conscience on “Immigration as a Moral Issue.” Among other actions, it calls for:

  • Alternatives to detention for those not considered a threat to society and humane treatment for those being detained.
  • Preservation of family unity, including same-sex and transgender couples and families. • Provision of asylum for refugees and others living in fear of violence or retribution.

As people of faith, we are called to remind our decision makers about the worth and dignity of every person, of whatever parentage or nationality, as American society copes with immigrants arriving from around the world, especially from Central America and the Middle East.

Right now, in defiance of a court order to stop detaining children, the Obama administration has increased the detention of families by 173% over the last several months [my bold], according to the Migration Policy Institute. And now the administration has announced it will search for and deport asylum-seeking families back to the danger they are trying to escape. And they are putting this into practice, as evidenced by the very recent deportation of at least 121 families to Central America.

Our faith calls upon us to stand on the side of love and to support the human rights of all those in need of help, including undocumented immigrants and those seeking asylum from violence, repression, and extreme poverty. Nearly all religions are filled with admonitions to treat strangers among us with love and hospitality. Yet, the Immigration and Customs Enforcement office continues to detain entire families, including children, who have fled persecution, trauma, and threats against their very lives, re-traumatizing them, and threatening to deport them to the very places where their lives will again be threatened. Our immigration courts continue to deny asylum to many people who clearly do have a well-founded fear of persecution and if returned to their country of origin could face fatal consequences.

One of the most ancient, ethical injunctions on us as human beings is for the humane treatment of strangers. Our immigration policy is a reflection upon our worth as a people, and we currently fall far short of the standard. UUSJ therefore request that you: 1) Ask the President to order a halt to the actions that the Department of Homeland Security is taking against mostly Central American families and children. 2) Vote against H.R. 4038, known by the misnomer, the SAFE Act, a divisive, punitive and …unnecessary bill. 3) Continue to speak out in favor of comprehensive immigration reform legislation similar to what was contained in S. 744 that the last Congress considered. Please do everything in your power to ensure our immigration laws are enacted in a humane, just, and fair manner. If you have any questions, don’t hesitate to contacts us through our Immigration Steering Committee chair, Dean Wanderer, at deanwanderer@verizon.net or (571) 214-2710.

Sincerely,

Lavona M. Grow Board Chair UUSJ.

I think these Unitarian Universalists may now be praying for Obama to return to office even though the grounds were set when the Obama administration took defensive measures in restricting the entry of refugees in the face of enormous pressures from the Republican-dominated Congress.

There is much room for hope from the activities over the last ten days. Constitutional Conservatives are beginning to peel away from any support for Trump. The Democratic Party and its members of Congress have demonstrated that they can act together and effectively. The legal community has been aroused. Universities have come not only to recognize, but to oppose Trump insofar as his initiatives detrimentally effect their mission. People on the street and from NGOs took immediate action. Opposition has grown from the business community detrimentally affected by these decisions.

However, perhaps most revealing is the chaos from within the Trump administration. Clearly Stephen K. Bannon, who probably drafted the executive order along with senior policy adviser Stephen Miller without consulting either the State Department or Homeland Security, began to be boxed in as Homeland Security Secretary John F. Kelly began to issue orders qualifying the ban. When Bannon moved to counter this, Kelly simply said that Bannon had no position in the chain of command. At the same time, White House Chief of Staff approved new procedures for issuing executive orders. President Trump in his first two weeks had demonstrated not only his extensive ignorance, but a gross insensitivity not only to legal processes, but to administrative ones necessary to allowing any administration to function.

What started as an effort to “pause” the processing of refugees instead became a pause on issuing executive orders. But it is a pause only. Sarah Posner has already revealed that an Executive Order is in the works “Establishing a Government Wide Initiative to Respect Religious Freedom,” which would allow civil servants and others on the basis of “conscience” the ability to refuse services to everyone equally. On the basis of nativism, xenophobia and ideology of the alt-Right, efforts are well underway to undermine the principles of equality and respect for the dignity of individuals in the American constitution.

This is a real fear. But it also offers grounds for hope that the resistance to Trump’s autocratic propensities will be resisted by constitutional conservatives as well as liberals.

Terrorism and Migration: Part II

Terrorism and Migration: Part II                                                       30 January, 2017

by

Howard Adelman

If we examine Donald Trump’s executive order on refugees and terrorism, we find the following with respect to the specific countries targeted:

Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (Sec. 5c)

I have never read a government legal document like it. It is not an office holder legally entitled by law to make such a determination that is cited, but Donald Trump personally. This occurs several times in the document and each time it stands out from the regular bureaucratese. I am quite sure that Donald Trump never read the full document that he signed – it is doubtful if he could understand it if he had the patience to read it. However, I also suspect that he personally wrote the few sections where the personal pronoun is used.

Though the press was rife with rumours that seven countries in the Middle East would be targeted, only one is specifically included for an indeterminate ban – Syria. Look at the wording. It does not say that under current American law, Syrians will be deemed a threat to the United States. It explicitly says, “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Not Homeland Security. Not the CIA. Not the Secretary of State. Nor even I in consultation with any one or all of these agencies. Just Donald Trump need make such a determination. The entry of Syrians is to be suspended until, “I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

Further, “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants (my italics) of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas (two ministers of Justin Trudeau’s government would be exempt but not an estimated at least 200 Canadians counted thus far), North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).” G-1 visas are for foreign staff from international organizations (UN or an International Mission), but not immediate family members; G-2 visas are for accredited representatives of recognized foreign governments entering to work for the UN or an international Mission, their staff and immediate family members; G-3 visas are the same as G-2 visas except they are for individuals, staff and immediate family members from unrecognized governments;  representatives; G-4 visas are for officials, employees of international organizations and their immediate family members.

These are the exceptions. But for others traveling on other visas, such as an H-1B visa issued to employees of American companies hired because of their professional, scientific and technical expertise, it is a different story. This is also the case for those travelling on various forms of immigrant visas. After Rizwan Farook, a US citizen, and Tashfeen Malik (a Pakistani, a country that does not fall under the ban, murdered 14 people in San Bernardino on 2 December 2015, Trump called for a “total and complete shutdown of Muslims entering the United States.” This was later changed to “immigration from terror-prone regions where vetting cannot safely occur.”

The promise applied to immigrants only, not those entering on tourist or student visas. Further, there was no explicit religious test in that proposed ban, only the criterion that the individuals came from a terror-prone region. The latter was to be defined under the Executive order based on a report to be compiled in the first thirty days. But until the report was prepared, visas for any Syrians, with the above exceptions, were suspended indefinitely, and from six other “terror-prone” countries (Iran, Iraq, Libya, Somalia, Sudan and Yemen) for up to 90 days.

The current executive presidential order, though tentatively referring to a small number of countries, cuts a much wider swath for suspending the issuance of visas. The ban applies to all refugees for at least 120 days. Further, the ban applies to those who already hold visas and to those who hold Green cards and even to those who might be American citizens. The onus was then to be placed on those applying to prove they did not represent a threat to the U.S.

Section 217 1/ (8 U.S.C. 1187) established what was called a 2/ program that authorized the Attorney General and the Secretary of State together permitting the Attorney General, upon consultation with the Secretary of State to waive visa requirements under certain specified conditions: for tourist visas under 90 days, for countries with reciprocal visa programs, etc. The waiver could only apply if a determination was made (section 6) that, “The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.”

Look at the widespread effects, first generally and then more specifically. One in eight Americans is an immigrant born abroad. Just from the countries specified, there were over three-quarters of a million people, one-third of whom immigrated before 1990. If their position in America was compromised, an average of approximately 10% employed in health care, business and education would be affected. 370,000 come from Iran and 170,000 from Iraq. After 60 days, depending on the contents of a report received from Homeland Security, more countries can go on the list and the period applied to the countries other than Syria mention already could be extended well beyond 90 days.

However, in a legal case brought by the American Civil Liberties Union, Judge Ann Donnelly ruled in New York that two Iraqis who had been detained could not be deported until a full hearing had been held. Hameed Khalid Darweesh had worked for the U.S. government for a decade. Haider Sameer Abdulkhaleq Alshawi had arrived at JFK to join his wife who was a contractor. Both, though not deported, would be held in a detention centre until a full hearing could be held a month from now even though they arrived with legal visas. Up to 200 others arriving from abroad were in the same boat – no pun intended.

From one company alone, Google, approximately 100 of its employees from the seven specified countries were travelling abroad either on business or vacation when the presidential order were issued. Even though they were legally working in the U.S. they will be affected by the ban and likely end up in detention centres. Google’s effort to call them to return immediately probably came too late for most of them. One traveling in New Zealand, based simply on the rumours, changed his plans and arrived back in the U.S. just before Trump signed the presidential decree. A British Somali woman traveling home from Costa Rica via JFK was not allowed to board her plane because airlines are subjected to severe fines if they carry passengers banned under this executive order as provided in existing legislation under “Carrier Agreements.”

The initial chaos in the first 36 hours since the decree was signed has been enormous. But what happens when, under section 3 (f), the Secretary of State or the Secretary of Homeland Security submits “to the President the names of any additional countries recommended for similar treatment”? Every Muslim, and even every Christian or members of other countries from dozens of countries around the world will now be under a cloud. Suddenly and virtually without warning, they could be struck down by a deluge from this ban.

Section 4 of the presidential decree dealing with implementing uniform screening standards for ALL immigration programs reads:

  • The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

This is the extreme vetting Trump promised. However, the U.S. already practices extreme vetting. On average, it takes 36 months – that is correct, 36 months – to get through 11 departments that must deal with a visa application. The new proposal simply forbids exceptions, such as exemptions in some cases for personal interviews. The ability of American corporations to hire the best and the brightest from wherever they come will be seriously undermined. Trump has introduced super-extreme vetting without any documentation on the need or any analysis of the cost-benefits and without any assessment of the effects on America’s core values.

Though not the largest quantitative effect, the suspension of the US Refugee Admissions Program for 120 days will mean that approximately 37,000 refugees who would have been admitted and who have already been slated for admission after extreme vetting will now once more have their lives suspended. It is hard to imagine what “additional procedures” would ensure that “those approved for admission do not pose a threat to the security and welfare of the United States.” The absence of evidence that this is not a mode of entry used by terrorists, or that there are other far easier methods to get into the US, let alone any humanitarian concerns, did not deter Donald Trump from insisting on such a provision given that his immune system cannot tolerate facts and his imagination produces “alternative” facts with the wave of his hands.

Trump, however, goes further. He has repeatedly said on television and in tweets that after the ban is lifted, persecuted Christians will be favoured. He insists that all refugees taken in were Muslims when, in fact, though Christians used to make up about 5% of the population of a country such as Iraq, a population that is now probably less than 1% after several decades of “religious cleansing,” Christians made up almost half the population of refugees taken into the United States, not because they were Christian, but because those Christians, like the Yazidis, were under the most severe threat from persecution. The present system already favours the intake of Christians because they are major targets of persecution. Section 5 (b) giving priority to religious-based persecution is simply window dressing likely to make little practical difference but severely compromising the universal principles on which refugee law is based.

The executive order also gave instructions to give both state and local jurisdictions greater involvement in “determining the placement or resettlement of refugees in their jurisdictions,” (5 (g)) in direct contravention to the American principle that anyone who has legal residence in the U.S., except certain individuals convicted of specific criminal offenses, shall have the full freedom to travel anywhere in the U.S. At the same time, any city that decides to be a sanctuary city for refugees will have its federal funds cut off. In other words, you can have local power if you do not want refugees, but if you do want to offer them protection, you will be economically punished.

To be continued

Terrorism and Migration: Part I                                                                      29 January 2017

by

Howard Adelman

Donald Trump is at it again. Why doesn’t he leave me alone? Why doesn’t he leave you alone? On Friday, 27 January 2017, the Office of the Press Secretary released Donald Trump’s executive order on migration, formally called, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Before we go to the text itself, look at all the worry and consternation Trump has already caused simply by the preliminary leaks. His own bombast on the subject on television set off verbal brush fires all over the place. The full text can be found of numerous sites around the world; s:https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html)

Many businesses with skilled workers from overseas employed by American companies are affected. Would the companies have to meet abroad so that these employees can attend? Would all international academic conferences have to be relocated outside the United States? What about students and faculty traveling back and forth? And consider all the private universities in the U.S. dependent on income from foreign students. There are over a million foreign students; though few come from the countries specifically boycotted, all would have to go through a rigid check system.

Look at the letter the Dean of Faculty of Princeton University felt impelled to send her colleagues this past Friday even before she could access  the full text of the new executive order. Simply based on the pre-publication media reports and the consternation they were already causing, she sent out the following letter to try to quiet the fears raging though her segment of academia.

We have received many messages from members of our community concerned about the impact of possible changes in immigration policies under the new administration in Washington. According to media reports, President Trump signed an executive order today. It has been reported that the order includes stricter immigration vetting measures and may include provisions that could impact non-immigrant visa holders as well as lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. At this stage, we do not know the content of the executive order or its impact.

We do, however, want to be prepared to support and advise our students, scholars, and others who might be affected by any changes, and to express our deep concern about any potential impact on the ability of this and other American universities to engage in teaching and research of the highest quality.

We have strongly advised students and scholars who might be affected and who have travel plans in the coming days to defer travel outside of the United States until there is some clarity and legal analysis of the situation or, if they must travel, to seek legal counsel before they do. We have also shared with potentially affected students and scholars the information we are receiving from a law firm that follows these matters closely and has advised members of our community in the past. More from Fragomen Worldwide Immigration Law Firm Alert January 25, 2017.

We wanted to share this information more broadly with all of you because many of your students or peers may be reaching out to you for information or support, and we are all affected when members of our community feel at risk. We take very seriously anything that could affect the ability of our students and scholars to engage in their scholarship. International students and scholars who have immigration questions or specific questions about their current situation should contact the Davis International Center (puvisa@princeton.edu), which is following the situation extremely closely and in the best position to provide advice or resources.

We will continue to keep you posted as we know more and we will work closely with our Princeton colleagues, peer institutions and the immigration law community to understand this and other immigration issues as they arise and to support members of our community who make essential contributions to research and teaching on this campus.

Does the new executive order include “stricter vetting procedures,” what Trump thunders as “extreme vetting”? Would the new policy impact on non-immigrant visa holders, such as individuals on student visas or teaching in the United States at universities on temporary work permits? Would the policy affect lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who already hold permanent residence visas? Would the executive order affect teaching and research of the highest quality, or any quality for that matter? Though intended to express a concern about research in general, the effect of this quickly drafted open letter to the members of her community in the wording unintentionally suggested that Princeton was only concerned about the highest quality research? The fallout from the irrationality exuding from Washington even frazzles the minds of brilliant academics so they too misspeak.

Even more fundamentally, how does the executive order conform with existing law that in designating countries for exclusion, there must be an evaluation of the effects of such a designation “on the law enforcement and security interests in the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate U.S. law.)” In other words, if countries are designated – as Syria as well as Iran, Iraq, Libya, Somalia, Sudan and Yemen are – without any evaluation on U.S. capacity for law enforcement or on U.S. security interests domestically and internationally and on extradition procedures, is the executive order illegal? It is noteworthy that the law firm commenting on the presidential executive order did not comment on the legality of some of its sections.

Further, though the President and the members of his cabinet are given wide discretion under existing legislation, they are all required to follow certain very clearly defined procedures in applying such a designation. And there is no evidence, and likely there is none given the very short period the Trump government has been in power, that those procedures have been followed. The issue is not only whether the ban is “inappropriate and ineffective in the fight against terror,” as the American Iranian Council has argued, but the executive order may also be illegal since there has been no effort to gather evidence to measure either the appropriateness or effectiveness in fighting terror.

What initial advice was offered? If you might be affected, do not travel. That is, you risk not being re-admitted to the United States. If you must travel and are in a situation that might be affected, get some legal advice. Immigration lawyers are about to do a booming business in the United States and around the world. Such are the affects of the blather coming out of the mouth of the most powerful individual in the world. America’s best and brightest, not any prospective terrorist, are discombobulated. This is the first paragraph of the legal advisory a top immigration law firm sent out:

President Donald J. Trump is expected to sign an executive order that will suspend the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of 30 days, according to a published draft of the order. {A report in the 26 January 2017 New York Times was cited.] The executive order is also expected to suspend a worldwide program that exempted certain visa renewal applicants from consular interviews. [See Section 8 (a)]

The focus of the panic attack was on foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen or on those who hold dual citizenship for the birth place may determine whether or not the person is deemed to be a national of one of those countries. Thus, even if the person is an American citizen, if a country such as Iran insists that the person is an Iranian national, under this presidential executive order, the person can be treated as an Iranian national.

Will residents in America who have strong ties to those countries be affected, since it is the foreign country’s laws that determine whether the United States deems the individual to be a member of that foreign nation? Does the ban apply to temporary visa holders (B-1, H1B and L-1) who are currently lawful permanent residents of the United States? If so, then you should be concerned about travelling back “home” if one of your parents becomes ill. The letter from this legal firm warned about long delays in processing visa applications as a result of the executive order, since the waiver for personal interviews was removed. All applicants would have to have a personal interview.

For a government determined to whittle down bureaucracy, this perhaps illegal cancellation of existing law under section 217 2/A (8 U.S.C. 1187) applicable to countries with very low non-immigrant refusal rates will just mean many more personnel required to deal with visa applications.

Now not one of these words of the law firm or the Princeton Dean of Faculty mentions refugees, the ostensible prime target of the executive order. The momentum of this America-First inspired policy almost forced institutions and professionals to attend first to self-centred needs, those of their own community members. Those most affected and those most in need of assistance, refugees, were ignored in both the letters of the law firm and the dean. This may be the most pernicious effect of the new regime.

Certainly, there is a danger of this in Canada where officials appear primarily focused on possible negative (and positive in the case of pipelines) effects on Canada of the new Trump regime. The Minister of Immigration, who was himself born in Somalia, if not carrying a Diplomatic passport, could possibly be barred from entry into the U.S. However, contrary to the ordinary meaning of Trump’s executive order, on Saturday, the U.S. State Department “clarified” that Canadians with dual citizenship from any of the seven nations would be denied entry for the next three months. Minister Ahmed Hussen evidently got an agreement from Washington reversing this decision and that not only Canadian citizens with dual citizenship from one of the seven countries designated in the ban, but also those with citizenship from one of the countries but only permanent residence in Canada, would NOT be barred from entry into the U.S. However, an Alberta biomedical engineer, Haji Reza, born in Iran with a Canadian permanent residence card, was banned from entry into the U.S.

Further, the Minister announced that Canada would step in to invite those refused entry into the U.S. to come to Canada on temporary permits. However, though Prime Minister Justin Trudeau had tweeted: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada,” However, Canada has not yet increased its targeted intake to make up, at least in part, for those refugees denied entry into the U.S.

There is anther side, however, a more tragic side. In Quebec especially, there has been a rise of Islamophobia, inspired in part by the French government ban on wearing items which communicate religious messages – kippas, large crosses but especially hijabs. A 2015 Quebec Human Rights Commission survey “found that 43 percent of Quebecers believe we should be suspicious of anyone who openly expresses their religion, with 49 per cent expressing some uneasiness around the sight of Muslim veils.” After a note had been posted the year before on the Centre Culturel Islamique de Québec reading: “Islam hors de chez moi,” (Islam out of my country), this past year during Ramadan, a pig’s head wrapped in cellophane and tied with a bow was left on the doorstep of the centre.

Yesterday evening events became much worse. A gunman opened fire on the 40 or so congregants at that Centre. There are at least six deaths and many injured. Will Trump put a ban on travel to the United States against right wing Islamophobic terrorists?

The reality is that Trump policy measures targeting Muslims, while insisting he does not target Muslims, is contagious. Trump’s linkage between terrorism and Muslim migrants and refugees is not only dangerous to the fundamental values of the United States, not to speak of its efficient functioning, but to other countries around the world.

To be continued

The Right to Leave – Exodus 9:13 – 11:10

The Right to Leave – Exodus 9:13 – 11:10

by

Howard Adelman

There are four plagues more, the three cosmological plagues (hail, locusts and darkness) and then the plague of the first born. The last three follow the rhythmic pattern of the first six in a 2:1 ratio – two plagues with warnings and a third without any prior announcement. And what plagues! What drama! For the battle now centres so much more clearly on a determined God with an outstretched arm and a powerful hand versus a stubborn Pharaoh unwilling to give way to God’s will, even if, by then, it is clear that he and the gods behind him are no match for YHWH. Resistance now becomes clearly an act of self-destruction.

Recall what this and the past parshah are all about. They are about the right to leave – not to stay, not to return, but to leave. The right to stay is about security. The right to return is about identity. But the right to leave is truly about freedom. The battle between the God of the Israelites and the gods of Egypt had now become a cosmic battle for the whole world to observe, the battle for freedom, the battle over the right to leave, the battle to leave one sovereign realm and live under another. The fight is over the right to emigrate.

I quoted the first verse of the American Black spiritual last time. I begin with the second verse this time.

“Thus spake the Lord,” bold Moses said:

Let my people go.

If not I’ll smite your first-born dead,

Let my people go.

Go down, Moses,

Way down to Egypt land,

Tell ole Pharaoh to let my people go.

O let my people go.”

If the issue was the freedom to leave, why was it cast as a “request”? Why did the Israelites need Pharaoh’s permission? Or was this not about Pharaoh’s permission at all, but about Pharaoh’s action. “Get out of my way,” saith the Lord. “Get out of our way.” Stop intervening. It was “let,” not in the sense of permission, but in the sense of stop being an obstacle. Further, it was not about gaining freedom after one left. For the point of God insisting that the Israelites be let go, was so that they could worship God (9:13) It was exchanging one form of bondage to the Pharaoh to a new form of bondage to God. How can bondage in one sphere be slavery but in another sphere be freedom?

God says to Pharaoh, I could have committed genocide. I could have wiped all the Egyptians off the face of the earth with a disease. (9:15) But if you are eliminated, you would not be around to extoll my name, to extoll me as the One, the most powerful God. It was not enough to have the Israelites bound to me by a covenant, but I need the Egyptians to give me recognition though not obeisance, “so my fame can resound throughout the world.” ((9:16) And God warns Pharaoh. Get everyone inside, all your people and all your animals. For if they remain outside, they will surely die from the worst hailstorm that has ever fallen upon Egypt.

So a distinction was made between those Egyptians who feared God and went inside and took their animals with them and those who scoffed at and ignored the threat only to die in a hail of hail the next day along with thunder and lightning. One cannot read the words but imagine how spectacular a storm it had to have been. This was a battle between the god of thunder of the Egyptians, the god that symbolized force of arms and the ability to exercise that coercive power. God was taking on the equivalent of Indras (Hinduism), Zeus in Greek mythology, Jupiter in Rome, Perun in Eastern Europe, the son of Odin among the Norse of the north. The god this time was the head of all the armed forces, the commander-in-chief of the might of a nation. This was the god of weather, the god of storms.

In Egypt, God was now challenging Montu (mntw), the Egyptian war-god, the falcon-headed being with a human body but also with a head of a bull as well as of a falcon, for Montu was headstrong and bullheaded. Montu did not strategize. Montu simply plunged forth when a red flag was waved before him. He charged before he thought. Montu knew nothing about strategic thinking let alone diplomacy. When Montu was falcon-headed topped by a sun disc, tall abstract plumes of gold rose straight up from above the disc. This was not a symbol of thought or reflection, but of a burning sun and the rays given off. This was a symbol of certainty, of conviction. But when Montu was a bull, his face was black rather than red with rage even though he had a white body. He was indeed, as Egyptian generals were known, a Mighty Bull, something even more ominous than a mad-dog.

This was a battle of true titans for all peoples to record and hear and witness. How does Pharaoh react after the hailstorm? He pleads guilty. He confesses he has been in the wrong. ((9:27) I and my people have been in the wrong. So Moses replied that he would stop the hail storm, stop the thunder and the lightning and clearly establish that Montu was all temporary flash but was now impotent. Moses also said that he would do this even though he knew full well that deep in his heart Pharaoh still did not stand in fear of the Lord, that his courtiers too did not accept God’s awesome power. “So Pharaoh’s heart stiffened and he would not let the Israelites go, just as God had foretold through Moses.” (9:35) Both God and Moses knew that Pharaoh was acting in bad faith.

Moses once again went to Pharaoh and conveyed God’s message: “Let my people go so that they might worship Me,” (10:3) and he could have added, and, “not you and your gods.” This was a battle not simply for survival, but for recognition. It is not enough that God remove you as an obstacle, but you, Pharaoh, must remove yourself; you must recognize the Lord as the most powerful God.

The eighth plague sent was of locusts –  – in Egyptian hieroglyphics. These were not the lice or sandflies, symbols of tenacity and courage sent in the first set of plagues. Locusts filled the sky, and, unlike the hail, invaded all the houses, got into the clothing of all the Egyptians, quite aside from destroying all the crops that remained. Locusts took over heaven and earth. Ramses II depicted the armies of Hittites as locusts, for they “covered the mountains and valleys and were like locusts in their multitude.” Locusts were the only insects using the power of numbers that could block the all-powerful sun. “Someone flies up, I fly up from you, O! men; I am not for the earth, I am for the sky. O! you local god of mine, my double is beside you, for I have soared to the sky as a heron, I have kissed the sky as a falcon, I have reached the sky as a locust which hides the sun.” (Ancient Pyramid Text) The falcon, Montu, could reach the sky, but locusts could block the sun.

You, Pharaoh, are blocking the way of my people, are preventing the Israelites from going forth and worshipping Me. Montu was represented as a nomad. The full story of Exodus was being adumbrated. For though the Israelites would spend forty years in the wilderness as nomads, that was not their destiny. They would build cities and become the centre of a civilization. Divine power would rule on earth and not just shine forth from heaven above.

The Pharaoh’s courtiers had now become convinced. But not Pharaoh. He would concede to let some go. Moses and Aaron were asked to choose. (10:8) But Moses replied, “We will all go.” We all must go to worship out Lord. The action of the entire community was a precondition of exit. But once again Pharaoh grew stubborn. The men could go, all the men, but the women and children must remain. Without warning came the ninth plague, no longer just hail accompanied by thunder and lightning, no longer locusts that would block the sun while invading every crevice on earth, The ninth plague was darkness, not simply blocking the sun, but total blackness, God had taken the Egyptians back to Genesis when darkness covered the face of the earth, before God said, “Let there be light.” For there was no light, no light at all, not the sun nor the moon nor the stars. Only all-encompassing blackness, a darkness so black it could not be seen but only felt and touched. “But the Israelites enjoyed light in their dwellings.” (10:23)

How was this possible? Why was the light that shone in Goshen not reflected even faintly in the night sky as when we look towards a city in the far distance and see how it has somewhat lightened the heavens to a small degree? Pharaoh in the face of this darkness once again conceded. He would not simply let some of the men go. He would not simply let all of the men go. He would let all the people go, but not their flocks and their herds. The domestic animals of the Israelites had to be left behind. Pharaoh still had not learned his lesson. Pharaoh still wanted to bargain, still wanted to make a deal, when the whole issue was that God had made a covenant with the Israelites and that is the only covenant that counted. Pharaoh, enraged when Moses would not negotiate, took the part of God. “Take care not to see me again, for the moment you look upon my face you shall die.” (10:28)

Pharaoh was not the Lord. Moses did not die. But Moses never saw Pharaoh again. The all powerful war over recognition was about to be won. Only God would be recognized as the supreme ruler over the Israelites. The Israelites would freely choose to be in bondage to God and grant no ultimate and absolute fealty to any sovereign on earth, would grant fealty, but only when the covenant that the Israelites had with their God was recognized. Israelites would always live in the diaspora with a dual loyalty.

God had one more plague up his sleeve, a plague that would convert the Egyptians, temporarily at least, from an obstacle blocking the right to leave into a driving force of ethnic cleansing to expunge the Israelites from Egypt’s land. The very instrument of stoppage would become the means of setting forth the Israelites as a flood heading into the desert. Not only will you leave with your herds and your flocks, but each Israelite will be instructed to maximize their credit limits, to borrow all the silver and gold they could but renege on any responsibility to repay. The Egyptians would be left bankrupt.

Pharaoh’s order to kill the first-born of every Israelite had been thwarted, had been sabotaged by two of his own, by two midwives who subverted his orders. Now that order would come full circle and the first-born of the Egyptians would be the target. It was not sufficient that the Israelites escaped. Pharaoh had to pursue them in their escape, to at least recover the wealth that the Israelites took with them, and be drowned in the effort to recover that wealth.

But that is for another parshah. This parshah is ultimately about the defeat and death of primogeniture among the Israelites. The tales of Abraham, Isaac and Jacob had been about second-born sons winning over first-borns. This defeat marked the death of the principle of primogeniture altogether. For henceforth, merit and aptitude would count in leadership and not the order of birth. And in doing so, the Israelites would inherit the double portion, the wealth of the Egyptians as well as their own wealth. Jacob’s tricking Esau out of his birthright was but a sign of what was to come. Thus, an upstart nation would henceforth steal the birthright of a civilization that had already lasted several millennia. Israel, God’s later-born, would take the place as God’s firstborn. And the Israelites would move from bondage to a human-god to a God who would gradually become humanized, a God of wrath and coercive power who would become a God of mercy and influence.

To live under the sovereignty of influence rather than coercive power would be the route to full freedom for the Israelites and for all of humanity. And it is a route that is not established between one individual dedicated to service to the authority of influence rather than coercion, but of a whole community, a whole society. For without that collective commitment to this process of revelation, there is no individual freedom. I cannot be free, you cannot be free, we cannot be free unless we worship the same God, a God that in the days of the Israelites in Egypt who was a God of coercive power but over time revealed Himself to be a God of influence, a God of dialogue and discourse rather than commandments from on high.

But it was through coercion that the community came to be in the first place. The freedom of the individual, the freedom to think and choose and believe and express oneself, are all dependent and conditional upon the prior existence of such a collective covenant. The freedom of the autonomous self is not a condition of democracy, of the modern enlightenment world. Rather the modern enlightenment world, the world of a nation-state that grants freedom to the individual, is the primary precondition.