Refugees and Asylum Seekers in the State of Israel

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Refugees and Asylum Seekers in the State of Israel
Refugees and Asylum Seekers
in the State of Israel
Tally Kritzman-Amir
Tally Kritzman-Amir is a lecturer at the Academic Center of Law and Business and a
Polonsky Fellow at the Van Leer Institute in Jerusalem. She received her LLB and PhD from
Tel Aviv University Law School.
In recent years, non-Jewish asylum seekers and refugees have come to the State
of Israel in increasing numbers. That population now numbers in the tens of
thousands. This phenomenon is challenging in several respects.
The undocumented entry of asylum seekers challenges the state’s power to control
its borders. The ability to determine who will enter a country and who will be
kept out is an important issue for every state, and relates to its very sovereignty.
Israel is constantly attempting to improve its border control—it has built a barrier
along the border with Egypt and has returned asylum seekers to that country.1
This situation entails practical difficulties in light of already fragile borders, on
the other side of which are states that have strained relations with Israel. Control
over borders becomes weak and elusive with the entry of asylum seekers forcing
their presence on Israel and justifying their request to enter and remain within it
by arguing that they have a legal right to do so.
The arrival of refugees and asylum seekers also affects the composition of Israeli
society. This phenomenon must be understood in the context of the fact that Israel
was founded as a haven for Jews after the Holocaust; given the presence of tens
of thousands of migrant workers, as well as the fact that Israel has an indigenous
minority of Palestinians; and against the backdrop of discussions regarding the
question of the right of return of Palestinians. Refugees constitute a third group,
not identified with either of the two dominant ethnic groups (Jews and Arabs)
and are distinct from them in terms of language, religion, and national affiliation.
In certain countries (including, recently, Israel) the issue of attitudes toward
refugees has become a loaded political and legal question which, in some cases,
has also been defined along the left/right political divide and has become a factor
determining the outcome of elections.2
The presence of refugees in Israel raises questions of social justice. Asylum
seekers arriving in Israel have experienced difficulties such as hunger, poverty,
persecution, loss of freedom, and pain in their countries of origin and during their
migration. Under these circumstances, is there is a moral obligation incumbent
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upon the state to share its limited resources with those who are not its citizens
or residents, and if so, with whom? Questions of social justice and entitlement to
welfare services are discussed and challenged constantly by civil society, which
works to help asylum seekers and provide them with services and support.3 These
questions constitute the basis for the opposition voiced in various quarters over
the past few months, including among senior public officials and in disadvantaged
neighborhoods in which asylum seekers are concentrated. Among other things,
this opposition has taken the form of severe violence against asylum seekers and
their property, and of serious manifestations of hatred and incitement.4 Although
asylum seekers in disadvantaged neighborhoods impose an additional burden
on low-income locals due to their use of weak infrastructure and the increased
demand (and higher prices) in the local real estate market that their presence has
caused, that is certainly no justification for violence. Instead, it would perhaps
be appropriate for the authorities to ease the situation in those neighborhoods by
improving their services and supervising landlord-tenant relations.
The International Context and Legal Framework
The phenomenon of refugees in Israel and the world must be understood against
the backdrop of global mass migration. Political, social, and technological changes,
as well as phenomena of poverty, natural disaster, war, and economic recession,
coupled with the hope for a better future in a safer place in which there are more
opportunities, lead to immigration. A major factor enabling this to take place is
globalization, which brought with it increased mobility, the ability to find out
information about the destination, and to stay in contact with those who remained
behind. Among a variety of categories of immigrants (such as migrant workers,
migrants desiring family reunification, etc.) there is a unique type: refugees and
asylum seekers. These are those for whom migration is not a choice or preference
but rather a necessity.
The term refugee is defined in the Convention Relating to the Status of Refugees
of 1951.5 More than 140 countries signed the Refugee Convention,6 and because
its population included refugees of World War II (Holocaust survivors), Israel
was one of the drafters of the Convention and one of the first to sign and ratify it.
The Convention defines a refugee as a person who:
...owing to well-founded fear of persecution for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual
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residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.7
In other words, a refugee is a person who crossed a political border, and does
not want to return to his/her country for fear of persecution arising from one
of five specific grounds. This definition received widespread criticism. First, the
definition is vague and leaves itself wide open to interpretation.8 More criticism
was leveled at the fact that this legal definition, adopted in the specific historical
circumstances of the period after World War II, is not broad enough to include all
current refugee situations.9
Excluded from the provisions of the Convention are those who have committed
crimes against peace, war crimes, or crimes against humanity; those who have
committed serious non-political crimes; or anyone accused of having committed
serious acts that are contrary to the purposes and principles of the UN.10 The
Convention also makes clear that people who benefit from UN assistance
originating in organs of the UN other than the United Nations High Commissioner
for Refugees (UNHCR), which is specifically dedicated to refugees, will not be
entitled to rights under the Convention.11 Finally, the Convention defines situations
in which people will cease to enjoy refugee status if, for example, they returned to
their country or acquired a new citizenship.12
Under the Convention, a person defined as a refugee is entitled to a variety of
privileges and immunities. Most important of these is “non-refoulement,” the
immunity from deportation to a place where the life and liberty of the refugee
would be in danger.13 Refugees are entitled to various social, economic, and civil
rights.14
Alongside the Convention, there exists a tapestry of “soft” legal rules that are
not binding but which nevertheless have some normative power. They are an
interpretative tool and help to infuse the Refugee Convention with meaning.
Courts in various countries have interpreted the Convention in ways that are not
binding for other countries, but still serve as sources of inspiration and tools for
understanding the Convention.15
These legal rules regulate the movement, status, and rights of millions of people
around the world. Thus, at the end of 2010, the world had more than 10.5 million
refugees, more than 800,000 asylum seekers, and another 20 million people in
refugee-like situations. The refugee population is varied and includes men,
women, and children. Women constitute approximately 47 percent of all refugees.
Approximately 44 percent of refugees and those who are in refugee-like situations
are children.16 The majority of asylum seekers and refugees are from Africa, the
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Middle East, and South Asia. Afghanistan, Iraq, Somalia, Congo, and Burma
(Myanmar) are the countries from which the highest numbers of refugees have
fled.17
The movement of refugees around the world is dispersed unevenly. Contrary to
popular belief, the refugee problem is not a problem of migrants from developing
countries imposing a burden on developed countries. The vast majority of refugees
find shelter in other Third World countries that are less able to assist them,18 while
the developed world bears a relatively small part of the humanitarian burden.19
Due to considerations of convenience and practicality, and because of the physical
and administrative obstacles in the West designed to curb migration to developed
countries and channel it to developing countries, refugees often find shelter in
easily accessible neighboring countries. The tremendous workload imposed on
those struggling countries leads to a situation in which whatever aid is granted
to refugees is wholly insufficient. It should be noted here that there is a universal
standard for the treatment of refugees under the Covenant, but it is defined relative
to each country’s capabilities and the extent to which the state grants rights and
services to its own citizens and other foreign residents.20 In the case of Israel,
its share of the burden for caring for refugees is still relatively small—at least
compared to other countries in the region, and considering its economic situation,
population size, and territory.21
Responsibility for providing international protection to refugees lies with
the UNHCR. This organization has been active since 195022 as an apolitical
humanitarian body23 and extends aid to refugees,24 asylum seekers, displaced
persons within their country, stateless individuals, etc.—in total more than 30
million people.25 The organization promotes permanent solutions to the problem of
refugees, including the voluntary return of refugees to their land, their assimilation
into host countries, or their transfer to third countries.26
Refugees and Asylum Seekers in Israel—Key Characteristics
The data relating to refugees and asylum seekers in Israel are incomplete and
contradictory. This is due, in part, to a heated political, ethical, and legal debate
between asylum seekers, rights organizations, the UNHCR, and government
authorities on just who falls within the category. Therefore, although there are
figures about “infiltrators” captured at the border—who remained in custody,
who filed for asylum, etc.—these are not accurate and are even sometimes
contradictory.27 It is in the interest of certain bodies to manipulate the number of
asylum seekers in Israel (“the politics of numbers”).28
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At the time of this writing, midway through 2012, about 60,000 refugees and
asylum seekers reside in Israel according to official figures.29 Most asylum seekers
and refugees originate from various African states, mainly Eritrea and Sudan.
Most are men; it is estimated that approximately every fifth asylum seeker is a
woman. The majority are between twenty and forty years old, but there are also
a few thousand minors (some unaccompanied) among them, and some elderly
people. The vast majority of asylum seekers are Christians.30
Various motives drove asylum seekers and refugees arriving in Israel to leave
their countries of origin. Some suffered persecution due to religious, political, or
tribal affiliation. A considerable number were subjected to forced conscription
into armies in which conditions akin to slavery prevailed or fled before they were
actually conscripted. Others were persecuted because of their sexual orientation;
were victims of domestic violence; subjected to the threat of forced marriage,
female circumcision, trafficking for sexual services or slavery; or threatened by
“honor killings.”31
Until now, a very small number of refugees has been recognized in Israel.
Approximately 100 recognized refugees, who underwent a process of individual
assessment by various authorities at the end of which it was determined that they
fulfill the criteria for refugee status, are currently in Israel. In accordance with
a government decision, a similar status was granted to 500 asylum seekers from
Darfur without their having to undergo such assessments. These individuals
have been granted the status of temporary residents and are eligible for the social
benefits granted to citizens.32 Today, refugees cannot acquire permanent status.
The status of those who do enjoy recognition as refugees remains temporary over
a period of many years.33
The fact that only few individuals were recognized as refugees can be explained in
several ways. Most asylum seekers cannot apply for recognition as refugees, but
rather receive group-based “temporary protection.”34 This means that people from
certain regions or countries are protected from the threat of removal or deportation.
“Temporary protection” is granted around the world primarily in two situations:
when a large number of asylum seekers arrives unexpectedly, until such time as
it is possible to examine individual asylum requests,35 or when people migrate in
refugee-like circumstances but do not qualify for recognition as refugees under
the Refugee Convention. Even then, states may (and it is commonly accepted that
they must)36 decide not to deport asylum seekers even if they do not qualify for
recognition as refugees.37 Often, countries that provide “temporary protection” to
individuals refrain from providing them with the full range of rights customarily
granted to recognized refugees. This raises questions about the legality of the
practice, assuming that among those granted temporary protection are individuals
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who would meet the criteria of the Convention regarding refugee status and could
be recognized as such if their case were examined individually.38 In Israel there
are over 50,000 people who have been granted temporary protection, whom
the UNHCR has recommended not to deport to their countries of origin. It is
seemingly easy for people to obtain temporary protection—all that is required
is that they prove their country of origin and then, taking into consideration the
recommendation of the UN, they are accorded protection. However, this temporary
protection does not include any entitlement to civil rights and social benefits, and
can end at any time. Currently, temporary group protection is granted to citizens
of the Democratic Republic of Congo, and was given in the past to citizens of Ivory
Coast, Liberia, Sierra Leone, and Togo, as well as those originating from South
Sudan. Informally, temporary group protection is also currently being granted to
citizens of Eritrea, Burma, and Sudan.39
An expression of this liminal existence on the part of asylum seekers is one that
we are witnessing at the time of this writing—the operation to deport South
Sudanese asylum seekers. The group protection for those who originate from that
country ended soon after the establishment of the new state in 2011, while vivid
memories of the still-ongoing battles remain engraved in their minds. Although
the court ordered the state to examine individual asylum claims of the South
Sudanese and coordinate the return of vulnerable populations,40 mass arrests were
carried out even before a mechanism was put in place inviting them to submit
individual asylum applications. This left them with two choices: risk prolonged
detention, during which their request would be reviewed (but was likely to be
rejected), or withdraw the asylum application and “return voluntarily” to their
country. The arrest and deportation of South Sudanese was carried out crudely,
and thus, for example, children removed from their homes after they had been
victims of domestic violence were deported together with their attackers back to
their country, without safety measures or consideration for their welfare.41
The vast majority of asylum applications are denied. Of course not all asylum
seekers’ claims are justified. Some seek protection under false pretenses, while
others’ requests have no basis in Israeli or international law that would establish
a legal right to asylum. Israel has adopted, at least for the time being, a restrictive
approach to the interpretation of the legal category “refugee,” which enables it to
reject many asylum requests.42 Moreover, and this may be the crux of the matter,
some argue that the manner in which the asylum application process in Israel is
carried out involves difficult, almost insurmountable, procedural obstacles that
prevent most of them from obtaining refugee status.43
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Development of the Asylum System and Policy in the Context of Israel’s
Immigration Policy
Beginning in the second half of the 1970s, the State of Israel made a number
of humanitarian gestures in absorbing small groups of persecuted minorities
from Vietnam, Bosnia, Iraq, Armenia, Lebanon, and elsewhere.44 The existing
information about these first asylum seekers is limited, and most of them are
no longer in Israel. In those days, the UNHCR office in Jerusalem dealt with
the asylum seekers and transferred the asylum application to its headquarters
in Geneva (while the asylum seekers waited for prolonged periods without any
status or rights), where a decision was made. A minority, originating from enemy
countries, were kept in custody for a prolonged period.45 In the 1980s, asylum
seekers from Ethiopia arrived in Israel,46 though in very small numbers.
At that time, the involvement of state agencies in the treatment of asylum seekers
was minimal. It took place in a normative vacuum, in the absence of primary or
secondary legislation regulating the issue. The interests of asylum seekers were
almost never brought up in the courts.47 Despite the highly developed tradition of
immigration absorption in Israel (and although there is infrastructure in place to
assist immigrants), the asylum seekers have not been handled by the absorption
systems. These are designated exclusively for absorbing Jews and their families, in
accordance with the Law of Return. To date, in fact, there is little official provision
for asylum seekers.
In some ways, the treatment of these asylum seekers resembled the treatment of
migrant workers in Israel, whose employment has been institutionalized since
the 1990s.48 The authorities did not view asylum seekers and migrant workers
as individuals with equal rights belonging to Israeli society or even as eligible
for welfare services. Both were perceived at best as a “necessary evil”—migrant
workers as a temporary solution to the temporary problem of labor shortage in jobs
shunned by Israelis (and which Palestinian border workers could not perform)
and asylum seekers as people whose presence must be tolerated because of various
legal obligations. Neither group was included in the absorption system that was
only aimed at enabling Jewish immigrants to be integrated into Israeli society.
Israel, which has positioned itself as a state of aliyah [Jewish immigration to
Israel]—not of migration—did not allow or encourage the integration of refugees
and migrant workers in society, the job market, or the political sphere.49
Since 2002, this is no longer the case. At that time, a different procedure for
reviewing asylum applications went into effect,50 which turned the Israeli asylum
system into a hybrid one that combines the activities of the Israeli authorities with
those of the UNHCR.51 According to this procedure, which was valid until 2009,
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the UNHCR would interview asylum seekers and examine their requests in depth.
It would then make a detailed recommendation to an inter-ministerial committee,
which would formulate a recommendation for the minister of the interior, with
whom the final authority to decide the cases rests.
In that period there were also similarities between the treatment of asylum
seekers and migrant workers. It was then that the Immigration Authority began
to enforce the ban on undocumented stays in Israel. This operation of arrests and
deportations aimed primarily at undocumented migrant workers also ended in the
arrests—often lasting several months or even years—of asylum seekers. Thus, not
only were steps not taken to integrate asylum seekers into Israeli society, in some
cases they were also detained.52
Certain parallels can also be drawn between the treatment of asylum seekers
and the treatment of Palestinian Arab migrants. In 2002, the government made a
decision, later anchored in legislation and approved by the Supreme Court, which
would prevent the immigration of Palestinians and citizens of enemy states of
Israel, including for family reunification.53 This stemmed from the incontrovertible
presumption that such migrants constituted a danger to the state. A similar
presumption also applied to asylum seekers who were citizens of an enemy state,
who, according to procedure, could not receive asylum in Israel.54
The similarity between the policies adopted regarding the various types of
immigrants—Palestinians, migrant workers, and asylum seekers—spilled over
into civil society. Civil society aid organizations that originally offered assistance
to the Palestinian population and to migrant workers began to offer assistance to
asylum seekers. Thus, those organizations harnessed their expertise, experience,
and knowledge for the benefit of the new immigrant population. To a great extent,
aid organizations were active partners in shaping policies regarding asylum
seekers55 and expended much effort in challenging authorities’ policies through
public pressure, lobbying, legal proceedings, and other means.
Several years after the entry into force of these regulations, African asylum seekers
began to enter Israel in increasing numbers. For the most part, they were from
Sudan and Eritrea and entered the country, undocumented, on foot at the end of
an arduous journey through the Sinai Peninsula.56 One response of the state was
to establish the facility in Ketziot used for the detention of more than 1,000 asylum
seekers, including children.57 When the various detention facilities were filled to
capacity, they were released to the streets of major cities in Israel (Beersheba and
Tel Aviv). In the absence of state support, signs of humanitarian distress among
impoverished asylum seekers began to appear. Only a small number received work
permits, while the rest were granted documents that made it difficult for them to
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integrate into the labor market.58 Moreover, a geographical restriction policy was
instituted (and subsequently canceled due to public and legal pressure), which
forbade asylum seekers to stay in the center of the country and other cities.59
At the beginning in 2011, a new procedure was introduced to handle applications
for asylum,60 the major difference being that now the primary responsibility lay
with the Ministry of the Interior. A new unit was established in the Population
and Immigration Authority for the registration of asylum seekers. This included
identifying their country of origin, which was sometimes a controversial process.61
In addition, another unit was set up to perform in-depth interviews with asylum
seekers and to consider the merits of their applications. At that time, most were
also given temporary group protection, and their individual requests were not
considered at all.
Parallel to this, several steps were taken in order to improve the country’s ability
to control the entry of people into its territory and reduce their numbers by way of
deterrence. Asylum seekers that had just penetrated the border would be returned
to Egypt. While Israel claimed to have stopped rejecting people at the border
due to the inability to secure cooperation with the Egyptian authorities, recent
developments indicate that people have been rejected at the border, though at
the time of this writing it is unclear how that rejection was conducted. Should
Israel wish to reject people at the border in the future, it should do so according
to the strict requirements of international law.62 A decision was made to erect a
physical barrier on the Egypt–Israel border in order to limit the number of people
entering undocumented.63 It was also decided to create a larger detention facility
for asylum seekers—the largest of its kind in the world.64 Legislation was enacted
that allowed for the detention of asylum seekers for long periods of three years or
more.65
During this period as well, significant similarities can be found between
the treatment of asylum seekers, migrant workers, and migrants for family
reunification. The new procedure continued the policy of the exclusion of asylum
seekers originating in enemy states or those who had traveled though enemy states
on their way to Israel. The methods used, which included arrests and restrictions
on employment opportunities, were applied to asylum seekers as well as migrant
workers. For example, soon after implementing the practice of detaining women
and children asylum seekers in Ketziot and other facilities, a policy was formulated
for the detention and removal of the children of undocumented migrant workers.
Also discussed were geographical restrictions for migrant workers. Thus, in 2011,
the Law of Entry into Israel, the aim of which was, inter alia, to determine areas in
which it would be permitted for them to work, was amended.
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Conclusions
The State of Israel is facing the challenge of dealing with ever greater numbers
of asylum seekers in search of sanctuary and protection. The government’s way
of dealing with the challenge posed by asylum seekers represents a wider choice:
will the state set a policy or avoid doing so? Will the state favor human rights
considerations, international law, and the international division of responsibility
or will it advance its particularistic interests? Will it demonstrate tolerance toward
vulnerable foreigners and take their situation into consideration, even enabling
them to become productive members of society, or will it exclude them and reinforce
their marginalization? Will the state be able to find international aid partners to
help it in its first steps toward managing an independent asylum system, in order
to learn from other countries’ experience and to ultimately establish a system that
meets the standards of other Western democracies? These questions and others in
this context will certainly affect not only Israel’s attitude toward asylum seekers
and refugees but also the character of Israeli society and the Jewish state.
Translated from the Hebrew by Yvette Shumacher
Notes
Tally Kritzman-Amir and Thomas Spijkerboer, “On the Morality and Legality of
Borders: Border Policies and Asylum Seekers,” [Forthcoming] Harvard Human Rights
Journal, XXVI (2013).
2
There is the well-known case of an election campaign in Australia, for example, which
was influenced by media reports that the government had refused to allow a refugee
ship from Iraq to enter despite the fact that those on board, it was alleged, had thrown
their children overboard. See J. Taylor, “Australians Vote after Election Campaign
Dominated by Asylum Seekers,” Agence France Presse (November 10, 2001); K. Marks,
“How Australia’s Get-tough Government Censored Pictures of Asylum-seekers to Gain
Re-election,” The Independent (February 19, 2002). For a similar case in the Netherlands,
see G. De-Hemptinne “Tolerant Dutch Get Election Call from Anti-Immigration
Populist,” Agence France Presse (March 4, 2002).
3
See, for example, Ran Cohen, PHR-Israel, “Social Residency: Decoupling
Legal Status and Social Rights,” January 18, 2011, www.phr.org.il/default.
asp?PageID=99&ItemID=1006.
4
See the comprehensive report of the Hotline for Aiding Foreign Workers, “Cancer
in our bodies: On racial incitement, discrimination, and hate crimes against African
asylum seekers (January–June 2012)” [Hebrew] www.hotline.org.il/hebrew/pdf/
IncitementAndHateCrimesReport.pdf.
5
The Convention Relating to the Status of Refugees, Article One, Section A (2) signed
on July 28, 1951, Volume 189 U.N.T.S., pp. 137, 159–160, entered into force April
22, 1954 [hereinafter: The Convention on Refugees]. Later, a supplementary protocol
1
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was added to the Convention: Protocol Relating to the Status of Refugees, January
31, 1967, 606 U.N.T.S. 267, entered into force October 4, 1967. It should be noted
that the Convention on Refugees is not the first multinational agreement regulating the
treatment of refugees and asylum seekers. Until the 1920s, no multinational agreement
was designated to address this issue, and each country dealt with refugees who came
to its territory with an ad-hoc view of its needs, through its own means or through
an agreement with neighboring countries. However, a multinational agreement was
first established after the creation of the League of Nations, initially to deal with the
problem of Russian and Armenian refugees in the early 1920s, and later to deal with
refugees from other countries of origin. J. Van Selm-Thorburn, Refugee Protection in
Europe: Lessons of the Yugoslav Crisis (Hague, 1998), pp. 22–28.
6
For the list of state signatories to the Convention on Refugees, see www.unhcr.
org.3b73b0d63.html.
7
Article A, Paragraph A (2) of the Convention on Refugees.
8
Regarding interpretations of the Convention on Refugees, see, for example, Daniel J.
Steinbock, “Interpreting the Refugee Definition,” UCLA Law Review, XLV (1998), 733.
9
On the need to broaden the definition and on the changes already made to it so that it
conforms more to our modern-day situation, see, for example, James C. Hathaway, The
Law of Refugee Status (London,1991), pp. 11–27.
10
Convention on Refugees, op. cit., Article 1, Paragraph 6.
11
Ibid., Article 1, Paragraph 4.
12
Ibid., Article 1, Paragraph 3.
13
Ibid., Article 33. On this issue, see, for example, Elihu Lauterpacht and Daniel
Bethlehem, “The Scope and Content of the Principle of Non-Refoulement,” in Refugee
Protection in International Law, UNHCR’s Global Consultations on International
Protection 1, Erika Feller , Volker Türk and Frances Nicholson (eds.) (2001), www.
refugeelawreader.org/files/pdf/71.pdf.
14
The rights available to refugees under the Convention on Refugees include the right
to nondiscrimination in receiving refugees (Article 3); freedom of religion (Article
4); various proprietary rights (Articles 13, 30, 15); right of association (Article 15);
access to legal action (Article 16); employment rights; (Articles 17–19); welfare rights
allowances (Article 20); housing (Article 21); public education (Article 22); public
assistance (Article 23); right to assistance from administrative authorities (Article 25);
and facilitating the naturalization of refugees (Article 34). Despite the importance of
these Articles, their content is relative and varies from country to country as a function
of the state’s general commitment to human rights. Thus, not all Articles require the
states to grant rights to refugees equal to those of their citizens. Regarding some of
the rights, the Convention requires states to treat refugees as well as they treat other
foreigners in their midst. See, for example, Articles 7, 13, 15, 17.
15
Eyal Benvenisti, “Reclaiming Democracy: The Strategic Uses of Foreign and
International Law by National Courts,” (2008), www.bc.edu/content/dam/files/centers/
boisi/pdf/s11/NakazatoReadmore1.pdf.
16
For the most comprehensive repository of facts regarding refugees, asylum seekers,
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and people in refugee-like situations, see UNHCR Statistical Yearbook 2010 (10th edition)
Trends in Displacement, Protection and Solutions: Ten Years of Statistics (Country Data Sheets,
December 27, 2011), www.unhcr.org/4ef9cc9c9.html.
17
Ibid.
18
Tally Kritzman-Amir, “Not in My Back Yard: On the Morality of Responsibility
Sharing in Refugee Law,” Brooklyn International Law Journal, XXXIV(2009), 355.
19
Ibid.
20
For an in-depth discussion on the rights of refugees in international law, see James C.
Hathaway, The Rights of Refugees under International Law (Cambridge, 2005).
21
Tally Kritzman-Amir and Yonatan Berman, “Responsibility Sharing and the Rights of
Refugees: The Case of Israel,” The George Washington Law Review, XLI:3 (2010), 619.
22
See Statute of the Office of the United Nations High Commissioner for Refugees,
General Assembly Resolution 428(V) of December 1950, www.unhcr.org/3b66c39e1.
html.
23
Ibid, Paragraph 2.
24
Ibid, Paragraphs 6, 7.
25
See note 16.
26
See note 22, Paragraph 1.
27
Compare, for example, the following: the November 8, 2011 letter of Dr. Gilad Natan
from the Knesset Research and Information Center (RIC) to MK Yaakov Katz entitled
“Establishing a Facility for Infiltrators,” according to which 14, 735 “infiltrators” entered
Israel in 2010, www.knesset.gov.il/mmm/data/pdf/m02958.pdf, with Natan’s January
25, 2011 RIC paper, “Coping with Infiltrators and Asylum Seekers Entering Israel from
the Egyptian Border and Their Treatment,” according to which 13, 686 entered Israel in
2010, www.knesset.gov.il/mmm/data/pdf/m02765.pdf; the Population and Immigration
Authority’s Planning, Research, Quality, and Excellence Department’s document,
“Data on Aliens in Israel,” Edition 9/2011, December 2011, according to which
14,744 infiltrators entered Israel in 2010, www.piba.gov.il/PublicationAndTender/
ForeignWorkersStat/Documents/dec2011.pdf with Dorit Peri, “A Center for the
Infiltrators from the Egyptian Border: Regional Master Plan 46, Social Appendix to
the plan,” that was based on data from the prison service, according to which 13,809
“infiltrators” entered Israel in 2010.
28
William Alonso, Paul Starr (eds.), The Politics of Numbers (New York, 1983).
29
Population and Immigration Authority’s Planning, Research, Quality, and Excellence
Department’s document, “Data on Aliens in Israel,” Edition 3/2012, April 2012, www.
piba.gov.il/PublicationAndTender/ForeignWorkersStat/Pages/default.aspx.
30
The estimated data were conveyed in an interview with Ms. Sharon Harel of the
UNHCR on February 9, 2012.
31
On this topic, see Tally Kritzman-Amir, Anat Ben Dor, and Nurit Wurgaft, “Between
Neutrality and Neglect: Female Asylum Seekers and Refugees in Israel,” Law and
Government [Hebrew] [forthcoming].
32
However, they are not entitled to political rights, such as the right to vote or run for
office in general elections.
108
Tally Kritzman-Amir
Yuval Livnat, Refugees and Permanent Status in the Host Country, [Hebrew] [forthcoming].
I wish to thank Yonatan Berman for his significant contribution to the writing of the
section on the concept of “temporary protection” and for referring me to sources on
this matter. For a general discussion on temporary protection regimes, see, for example,
Joan Fitzpatrick, “Temporary Protection of Refugees: Elements of a Formalized
Regime,” American Journal of International Law, XCIV:2 (2000), 279.
35
This is a model that was adopted, for example, in EU legislation: Council Directive
2001/55/EC of July 20, 2001 on Minimum Standards for Giving Temporary Protection
in the Event of a Mass Influx of Displaced Persons and on Measures Promoting
Balance of Efforts between Member States in Receiving Such Persons and Bearing the
Consequences thereof [2001] OJ L212/12.
36
See, for example, Jane McAdam, Complementary Protection in International Refugee Law
(New York, 2007). Israel’s Supreme Court also discussed the application of the principle
of non-refoulement to persons who do not qualify as refugees under the Convention but
whose life or liberty might be in danger if deported (HCJ 4702/94 Al-Tayye v. Interior
Minister PD 49 (3) 846, 848).
37
This is the model that was adopted, for example, in American law. See INA § 244 (8
U.S.C.A. § 1254) (Temporary Protected Status).
38
For a critique of the models of “reduced rights” for people granted temporary protection,
see, for example, Janian W. Dacyl, “Protection Seekers from Bosnia and Herzegovina
and the Shaping of the Swedish Model of Time-Limited Protection,” International
Journal of Refugee Law, XI, 155, 173–181 (1999).
39
For a description of the state’s policy regarding these groups, see, for example,
judgments in Administrative Petition (Center) 139-02-11 Kebedom v. Interior Ministry
(verdict from October 3, 2011); Administrative Petition (Center) 12282-02-11 Barhana
v. interior Ministry (ruling from October 30, 2011, paragraph 25); Administrative
Petition (Center) 25582-05-10 Rashid v. Interior Ministry (ruling from May 27, 2010);
and Administrative Petition (Center) 32291-05-10 Haylat v. Interior Ministry (ruling
from May 27, 2010). It should be noted that the Interior Ministry never released an
official statement regarding the granting of “temporary group protection”; however,
Population and Immigration Authority Director-General Amnon Ben-Ami stated in
a January 2, 2011 letter, “It is perfectly clear, on the other hand, that 90 percent of
infiltrators are citizens of Eritrea and Sudan. These citizens are here at this stage under
temporary protection; this fact was clarified by us in the media and everywhere possible
in order to remove any doubt.” The letter was entitled “Publishing information that is
not true by the Population Authority.”
40
Administrative Petition (Jerusalem) 53765-03-12, ASSAF—Aid Organization for
Refugees and Asylum Seekers in Israel et al. v. Minister of the Interior (June 7, 2012).
41
See Petition to the Supreme Court HCJ 4845/12 ASSAF—Aid Organization for
Refugees and Asylum Seekers in Israel v. Welfare and Social Services Ministry.
42
On this topic, see Tally Kritzman-Amir, Anat Ben Dor, and Nurit Wurgaft, op. cit.
43
An argument of this type appears in Administrative Petition 37241-02-11 (Ethiopian
citizen) Eviot Ababa Wob v. Minister of the Interior, especially sections 146–154.
33
34
109
Israel Journal of foreign Affairs VI : 3 (2012)
See also Hotline for Migrant Workers, Until Our Hearts Are Completely Hardened:
Asylum Procedures in Israel (Tel Aviv, 2012), www.hotline.org.il/english/pdf/asylum_
procedures_2012_eng.pdf.
44
See Anat Ben Dor and Rami Adut, “The State of Israel, Safe Haven? Problems in the
State of Israel’s handling of Refugees and Asylum Seekers,” Physicians for Human
Rights Report and Position Paper, May 2003, pp. 18–20.
45
This was the case, for example, in Supreme Court case HCJ 4702/94 Salach Ahmed
Kadam Al-Tayye et. al. v. Minister of the Interior PD 49(3) 843.
46
Interview with Ms. Sharon Harel of the UNHCR on February 12, 2012.
47
An exception to this is Supreme Court case HCJ 4702/94 Salach Ahmed Kadam AlTayye et al. v. Minister of the Interior PD 49(3) 843, 848, in which the principle of
non-refoulement was found to apply in Israeli law, anchored as it is in the Refugee
Convention, on every administrative decision on the deportation of an individual. The
Supreme Court also ruled, on pages 849–850, that the prohibition of non-refoulement
also applies in cases in which the danger to an individual is indirect and not in the part
of the state to which he is transferred by Israel (read: the prohibition also applies in
cases in which there is a concern that the state to which the refugee is transferred will
send him to another state in which his life will be in danger.)
48
For a survey of the development of the phenomenon of labor migration in Israel,
see, for example, David V. Bartram, “Foreign Workers in Israel: History and
Theory,” International Migration Review, XXXII (1998), 303; Sarah S. Willen (ed.),
Transnational Migration to Israel in Global Comparative Context (Lanham, 2007); Adriana
Kamp and Rivka Reichman, Workers and Foreign: The Political Economy of Migrant Workers
in Israel [Hebrew] (Jerusalem, 2008).
49
Tally Kritzman-Amir, “‘Otherness’ as the Underlying Principle in Israel’s Asylum
Regime,” Israel Law Review, XLII (2010), 603.
50
See State of Israel, Ministry of Justice, Deputy Attorney General, “Procedure for
Regulating the Treatment of Asylum Seekers in Israel,” in Anat Ben Dor and Rami
Adot, op. cit., pp. 58–60.
51
Sharon Harel, From the Era of the Boat People to the Era of the Desert People: The Development
of the State of Israel’s Asylum System—The Process of Transferring the Authority of Treatment of
Applications for Asylum from the UNHCR to the State of Israel [forthcoming].
52
Yonatan Berman, The Arrest of Refugees and Asylum Seekers in Israel [Hebrew]
[forthcoming].
53
On this topic, see the Law of Citizenship and Entry to Israel (Temporary Order), 2003
and Supreme Court Case HCJ 7052/03 Adalah—The Legal Center for Arab Minority
Rights in Israel v. Minister of the Interior PD 61(2), 202 and Supreme Court Case
HCJ 744/06 Zehava Galon et al. v. The Attorney General et al. (published in the Nevo
legal database).
54
Section 6 of “Procedures for Regulating the Handling of Asylum Seekers in Israel,”
see Note 50. This section found its place also in the version of the procedure that came
into force on January 2, 2011. See “Procedure for the Treatment of Political Asylum
Seekers in the State of Israel,” [Hebrew] Section 10, www.piba.gov.il/Regulations/
110
Tally Kritzman-Amir
Procedure for Handling Political Asylum Seekers in Israel-he.pdf.
Tally Kritzman and Adriana Kemp, “The Establishment of the Refugee Regime in
Israel: Between State and Civil Society”[Hebrew], Empowerment in Law [Hebrew], Guy
Modelack and Mimi Eisenstadt (eds.) (2008), p. 55.
56
See, for example, Physicans for Human Rights—Israel, “Hostages, Torture and Rape
in the Sinai Desert: A PHR-Israel Update about Recently Arriving Asylum Seekers,
(December 13, 2010), www.phr.org.il/uploaded/PHR-Israel Information Sheet on
Refugees captive in Sinai Dec 13 2010.pdf.
57
See note 52.
58
Officially, it is forbidden to employ someone who does not posses a work permit;
however, the state agreed not to enforce this under these circumstances. On this topic,
see Yuval Livnat, “Refugees, Employers and ‘Practical Solutions’ in the Supreme Court:
Following HCJ 6312/10 Workers Support Line v. The Government,” Mishpatim al Atar
[Hebrew] III (September 2011).
59
See note 60.
60
“Procedure for the Handling of Political Asylum Seekers in Israel” [Hebrew], http://
piba.gov.il/Regulations/Procedure for Handling Political Asylum Seekers in Israel-en.
pdf.
61
For a description of the controversy that sometimes erupts on the topic of identifying the
country of origin of asylum seekers, see, for example, Administrative Petition (Center)
37598-06-10 Gerbemeyam (detained) v. The Ministry of Interior (6.7.2010).
62
HCJ 7302/07, Aid Hotline for Foreign Workers and Others v. Defense Minister and
others (July 7, 2011).
63
Government Decision No. 1506, “Erection of Barrier on Israel’s Western Border”
[Hebrew], March 14, 2010. In the hearing in the Supreme Court, the attorney for the
State noted that a budget was allocated for building a barrier on the Egyptian–Israeli
border, that its planning was completed, and that it was scheduled to be built before
the end of 2012 (Supreme Court Hearing 7302/07, March 30, 2011). According to
information published in the media, the construction of the barrier has started and
for that purpose, African asylum seekers were hired. See Dana Weiler-Polak, “African
refugees hired to build fence to keep migrants out of Israel,” Haaretz, March 10,
2011,www.haaretz.com/print-edition/news/african-refugees-hired-to-build-fence-tokeep-migrants-out-of-israel-1.348212.
64
Government Decision 2507, Novermber 28, 2010, “Establishment of a Detention
Center for Infiltrators from the Egyptian Border and Enforcement for Employers of
these Infiltrators,” www.pmo.gov.il/PMO/Archive/Decisions/2010/11/des2507.htm.
65
Law for the Prevention of Infiltration (Crimes and Jurisdiction) (third amendment,
Temporary Order) No. 2332, January 18, 2012, p. 119.
55
111

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