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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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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Tally Kritzman-Amir 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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Israel Journal of foreign Affairs VI : 3 (2012) 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.

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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

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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/

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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

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