By Kathleen Peratis
Al-Fatiha — which calls itself the principal international organization promoting the rights of lesbian, gay, bisexual and transgender Arabs — is located not in Beirut or Cairo, but in Washington, D.C. And no wonder: The international movement for the rights of lesbian, gay, bisexual and transgender people hardly exists inside the Muslim world.
Arab human rights organizations sometimes advocate for gay rights, but they do so sotto voce. In fact, the only country in the Middle East in which gay people may safely leave the closet is Israel. Which is why, for gay Palestinians, Tel Aviv is Mecca.
Gay Palestinian men flee to Israel because they are not safe in the West Bank and Gaza. They also have no place else to go.
“Israel is close and far at the same time,” says Haneen Maikey, a gay rights activist with Jerusalem Open House, one of the principal gay rights organizations in Israel. If the sexuality of a gay man in Palestine is exposed, his family might torture or kill him and the police will turn a blind eye.
Because they are so vulnerable to blackmail, it is assumed by the families and neighbors of gay Palestinian men — sometimes correctly — that they have been blackmailed into becoming informers, either for Israeli intelligence or for opposition Palestinian factions. So when they meet a violent end, the motivation of the killers is not entirely clear.
And in Israel? Misinformation abounds. In a 2004 speech at the University of California, Berkeley, Alan Dershowitz said: “I support Israel because I support gay rights. Recently, a progressive congressman, Barney Frank from Massachusetts, worked with me and Israel to grant asylum for 40 Palestinian gays.”
Alas, not a word of this is true.
When gay Palestinian men run for their lives into Israel, they do not seek — and they cannot get — “asylum,” which is a special status under international law available to those who can establish a “well founded fear of persecution” in the country of their nationality or “place of habitual residence.” Israel has never granted asylum to Palestinians, gay or not, says Anat Ben-Dor of the Refugee Rights Clinic at the Tel Aviv University Law Faculty — even those who can credibly claim they will be killed if they are sent back to the West Bank or Gaza. This is because Israel interprets international asylum law — the 1951 Convention Relating to the Status of Refugees, which Israel has signed — as inapplicable to Palestinian nationals.
The United Nations High Commissioner for Refugees in Jerusalem advises any Palestinian seeking asylum in Israel that he or she is ineligible to apply. Nevertheless, in years past, West Bank Palestinians were sometimes allowed official or unofficial residence in Israel on any one of a number of humanitarian grounds. These included family reunification, medical treatment, fear of persecution or because they were blessed with high-profile friends. But not any more.
In 2002, Palestinians with Israeli identity cards issued under family reunification laws allegedly used that status to aid suicide bombers. The Nationality and Entry Into Israel Law of 2003 was quickly passed, effectively revoking the family reunification laws and sharply limiting the authority of even the interior minister to grant residency permits to Palestinians.
Several petitions are pending in the Supreme Court in Jerusalem challenging the law on constitutional grounds, because there is no exception for those with a well-founded fear of persecution. (There is an exception for people who “identify with the State of Israel and its goals” and who “performed a material act to advance the security” of the state — in other words, collaborators — thus validating the common suspicion among Palestinians.)
The new law, and the new reality, has led to a crackdown on gay Palestinians in Israel, according to Shaul Gonen, a former board member of The Aguda, the largest of the Israeli lesbian, gay, bisexual and transgender organizations. (The few lesbians who flee move more easily under the radar screen, aided by Aswat, an Israeli-Arab organization for Palestinian lesbians.) Asylum has always been out of the question, but now, no official status is possible.
So gay Palestinians who make their desperate way to Israel simply hope to disappear into the gay subculture of Tel Aviv or Haifa. Slipping into Israel is still not impossible, though it has gotten harder. But with no money, no Hebrew, and no employment, they sooner or later come to the attention of the police, where they are arrested or summarily expelled.
The best hope for the lucky few is unofficial and temporary protection — weeks or a few months — while an NGO seeks to arrange asylum in a third country. But this is a long shot. In the three years the Refugee Rights Clinic in Tel Aviv has been operating, they have gotten third-country asylum for a grand total of three gay Palestinians, admits Ben-Dor.
Gonen estimates that since 1997, when the gay rights organizations started counting, about 300 gay Palestinian men have come to Israel in the hope of finding safety. Most came during the Oslo years, and none have official residence status. About 20, he says, are now under “house arrest” or “area arrest,” which is “house arrest” with a little extra latitude. The rest are either in jail, have been summarily deported to an unknown fate, or are still evading detection.
So what exactly was Dershowitz talking about? His email reply to my email query was, “The reference to working with Barney Frank is incorrect. Barney Frank told [me] the story.”
As for Frank: He confessed to being Dershowitz’s source, to getting things a little wrong, and to confusing “house arrest” and “area arrest” with “asylum” — a little like confusing slavery with freedom. Frank did add that he intended to address these issues with Israeli officials.
Sadly, the activists I spoke to saw no alternative to the modest protection now afforded by “area arrest,” and even suggested that outside pressure might backfire. In the current climate, Israel is not opening its doors to gay Palestinians, period. Nothing personal. With more sadness than outrage, the activists acknowledge that erstwhile Palestinian asylum seekers in Israel are simply further examples of collateral damage in the ongoing Middle East tragedy.
Kathleen Peratis, a partner in the New York law firm Outten & Golden, is a trustee of Human Rights Watch.