On January 10, 2012 an amendment to the Prevention of Infiltration Act passed its second and third reading in the Knesset. In passing this act, the government—and the Knesset—chose to walk down a path that is incompatible with the protection of human freedom that is embedded in Israeli constitutional law and that is incompatible with Israel’s obligations under international refugee conventions. Below is a condensed version of an article on this matter that was written by Adv. Reuven (Ruvi) Ziegler for the IDI Hebrew website.
On 10 January 2012, the Knesset passed an amendment to the Prevention of Infiltration Act by a margin of 37 to 8. The amended act defines any person who is not a resident of Israel and who enters Israel without authorisation as an 'infiltrator'. The new legislation thus defines all persons entering Israel through Israel's southern border, many of whom are prospective asylum seekers, as 'infiltrators'.
It should be noted that the Prevention of Infiltration Act was originally enacted in 1954 to address the phenomenon of Palestinian fedayeen, armed militia members who attempted to infiltrate to attack Israeli targets, which was considered to be a security threat at the time; the symbolic significance of applying this particular 'securitisation discourse' to all asylum seekers should not be underestimated.
More fundamentally, however, the amended act has far-reaching legal ramifications. Labeling border-crossers as 'infiltrators', it authorises their (automatic) detention for up to three years following the (automatic) issuance of a deportation order. This is in contravention of Article 5 of the Basic Law: Human Dignity and Liberty, which forms part of Israel's constitutional arrangement. It is also in stark contrast with arrangements under Israeli criminal law concerning persons accused of committing offences, as, in criminal law, even persons indicted for an offence are generally not held in custody during their trial, and even when they are, the periods of pre-conviction detention are significantly shorter than the periods under the amended act.
The current plan is that detainees will be held in a detention centre, the largest of its kind in the world, which will hold as many as 11,000 'infiltrators'. Plans for the construction of this center have been provisionally approved by the district planning committee and the government has allocated the required budget.
The act's explanatory notes suggest that the act will be implemented in accordance with the State of Israel's treaty obligations, including the principle of non-refoulement (a principle of international law that protects refugees from being returned to areas where their lives or freedom are likely to be in danger) enunciated in the 1951 Geneva Convention on the Status of Refugees (the 1951 Convention).Bill for Prevention of Infiltration (Offenses and Jurisdiction) (Amendment No. 3 and its provisions), 2011 Government Bills—577, p. 595.Nonetheless, when reading the amended act, it appears that non-refoulement is the only principle of the Convention on the Status of Refugees that has been incorporated into the new act. Although opposition Knesset members had proposed adding a provision to the new legislation that would effectively incorporate the entire 1951 Convention into the act, these proposals were rejected by the government and the Knesset. (As discussed in my previous article, Israel signed and ratified the 1951 Convention in the 1950s, but has not yet incorporated the Convention into its laws.) Indeed, the amended act neither defines a 'refugee' nor does it distinguish between the treatment of asylum seekers and refugees and that of 'infiltrators'.
The lengthy detention period of up to three years that is authorised by the amended act indicates that its main purpose is to deter future asylum-seekers from crossing Israel's border. Such arrangements are prima facie in contravention of Article 31 of the 1951 Convention, which stipulates that asylum seekers entering an asylum state without authorisation will not be penalized, provided that they present themselves to state authorities promptly and provide a reasonable explanation. Signatory states have thus recognised that despite their sovereign right to control their borders, asylum seekers may not be punished or sanctioned merely for unauthorised entry.
In Israeli public discourse, however, it is frequently suggested that border-crossers should be denied refugee status because they have not entered Israel directly from their country of origin; it should therefore be emphasised that the 1951 Convention does not make a refugee status claim contingent on direct entry. Nonetheless, an asylum state may reach 'burden-sharing' agreements with other states (such as Canada) that respect the 1951 Convention and operate according to its provisions, according to which some border-crossers will be resettled. Notably, Israel generally refrains from returning asylum-seekers to Egypt because it does not deem Egypt to be a 'safe third country'; indeed, Egypt has been known to return asylum seekers to their states of origin, where they face threats to their life or liberty.
In order to fulfil the requirements of the 1951 Convention, Israel should conduct comprehensive Refugee Status Determination (RSD) procedures for asylum seekers from all countries. If an asylum application is determined to be unfounded, a deportation order may be issued. However, even in such cases, detention remains problematic. The Israeli Supreme Court held in Al Tai, a petition filed by asylum seekers from Iraq, that a person against whom a deportation order was issued must be distinguished from a person detained in the course of a criminal investigation or a person held in custody following indictment; accordingly, alternatives to detention must be considered.
The new legislation is particularly concerning with regard to Eritrean and Sudanese nationals. Presently, Israel refrains from conducting Refugee Status Determination procedures with regard to asylum seekers from these countries; instead, it applies a policy of temporary collective protection and refrains from returning these asylum seekers to their countries due to the prevailing conditions. However, while the state respects the principle of non-refoulement, it issues Eritreans and Sudanese permits authorising them to remain temporarily (pursuant to their non-executable deportation). Although these 'permits' do not entitle these asylum seekers to work, Israel has stated that it does not currently enforce the employment prohibition (a policy which may change once the construction of the detention centre is complete). Globally, 84 percent of applications filed by Eritrean nationals are determined to be genuine, and the respective figure for Sudanese applications is 64 percent. Indeed, should individual RSD procedures be conducted in Israel for Eritrean and Sudanese asylum seekers, the statistics are likely to be similar. It is noteworthy that a signatory state to the 1951 Convention that refrains from examining asylum applications may not deny such applicants rights under the Convention.
Under the amended Prevention of Infiltration Act, however, the situation of Eritrean and Sudanese nationals may deteriorate rather than improve. As a result of the limited capacity of current detention facilities and the limited length of lawful detention under current law, most asylum seekers in Israel retain their liberty, if not their livelihood. The new legislation will facilitate their protracted detention whilst the state is unable—according to its own policy—to deport them to their country of origin. Moreover, even if applications lodged by detainees in the new detention facility in Israel are examined using RSD procedures, detaining asylum seekers can only be justified for as long as is required for the successful completion of the RSD process, and only for the minimal period necessary. In this context, data provided by Amnesty International indicates that in France, Italy and Spain (which are frequent destinations for asylum seekers), the state detains non-citizens for 32, 60 and 180 days respectively. In the United States, the detention period averages 114 days, while in Canada, it is 120 days. The new Israeli legislation, in contrast, authorises detention for 1095 days.
Although the amended Prevention of Infiltration Act came into effect immediately, the new detention arrangements cannot be implemented until the new detention centre is completed, since the current detention centre (Saharonim) is already full to its maximum capacity (2,000 detainees, which is planned to be extended in the future to 5,000). Moreover, the government has asserted that it will not detain asylum seekers who are already in Israel, but will limit detentions to new arrivals.
A position paper issued by the Knesset's Research and Information Centre notes that upon completion of the new detention centre, there will be 11,000 detention spaces, while there are currently over 40,000 asylum seekers and 'infiltrators' in Israel. The paper recommends the adoption of a comprehensive government policy directed towards the majority of the existing asylum seekers and 'infiltrators', since deportation cannot be envisaged in the foreseeable future. Sadly, a comprehensive policy has not yet been adopted; instead, the government and the Knesset opted for legislation that contravenes Israel's obligations both under the 1951 Geneva Convention and under its own constitutional framework, which leaves asylum in a state of vulnerability.
Update: On September 16, 2013, the Israeli Supreme Court, sitting as the High Court of Justice, unanimously quashed Amendment 3 of the Prevention of Infiltration Act, which mandated lengthy detention of asylum seekers, holding it to be unconstitutional as it violates the constitutional right to liberty. The ruling can be found at http://elyon1.court.gov.il/files/12/460/071/b24/12071460.b24.pdf <Hebrew>.
Reuven (Ruvi) Ziegler is a researcher conducting research as part of IDI's Constitutional Principles and their Implementation Project. He is a D.Phil. (Doctoral) Candidate in Law at Lincoln College, University of Oxford.