Once every few weeks, the energetic spokesperson of Israel's Population and Immigration Authority issues a statement to the media that proudly reports a new decree to be imposed upon foreign residents in Israel. The latest stated that beginning next week, the authority would place increased focus on arresting infiltrators with a criminal background.
The spokesperson added that as part of this process, which was drafted in collaboration with the Israel Police and with the consent of the Justice Ministry, when police arrest an infiltrator for criminal activity, they may hand him over to the Population and Immigration Authority under the Prevention of Infiltration Law and hold the detainee in custody.
In the past, the Interior Ministry would simply deport foreign workers who were suspected of petty crimes carried out elsewhere. The rationale behind this process is that the State of Israel has no public interest in prosecuting a foreign worker from Thailand who, for example, is suspected of hunting wild boar illegally back home.
Prosecuting him in Israel would be expensive, and for a crime not serious enough to warrant the time and resources used. Since the foreign worker does not have the right to stay in Israel, the state could simply deport him instead of conducting a lengthy and costly trial.
This policy was approved by the courts. But such approval regarding the deportation of foreign workers does not apply to the deportation or arrest of people seeking political asylum. The legal status and considerations of these two groups of foreigners is completely different.
A country’s sovereignty is a fundamental principle of international law. On the basis of this principle, any country may decide who is deemed a citizen or not. Accordingly, the state has broad authority to decide how long a foreigner may stay in its territory. On the basis of this principle, the Israeli courts approved the policy of deporting foreign workers suspected of having engaged in criminal activity.
But the UN Convention Relating to the Status of Refugees constitutes an exception to this principle of sovereignty. The convention prohibits deporting a refugee (in other words, a foreign individual who has “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”), and even grants him the right to freedom of movement in the country where he has taken refuge.
The convention also deals directly with the question of the status of a refugee who has perpetrated criminal acts in the country of refuge. Article 33, Paragraph 2 of the convention states: “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he resides, or who, having been convicted of a particularly serious crime, constitutes a danger to the community of that country.”
We therefore see that being convicted of a crime or identified as a danger to the security of the country are the two cases in which the country of refuge may deport a refugee. Suspicion of a crime that poses no danger to national security is not sufficient grounds for depriving a refugee of the convention’s protection.
What about someone who has not yet been recognized as a refugee by the country in which he has taken refuge? The generally accepted position is that the asylum-seeker must be granted most of the rights listed in the convention. Among them is the right not to be deported or detained for a long period of time as long as his request for asylum has not been rejected.
Otherwise, the country in which he has taken refuge might have an incentive not to investigate his request for asylum. This, regrettably, is the exact technique being used in Israel. About 85 percent of the asylum-seekers in Israel come from northern Sudan and Eritrea. Israel, for its own reasons, has decided not to investigate these requests for asylum, remaining content instead to simply not deport them back to their countries of origin.
In such circumstances, Israel cannot deny these people their basic rights under the UN convention on the grounds that they are not refugees. The State of Israel has the right to prosecute anyone who has committed a crime within its territory and punish him in accordance with the court’s verdict. It may also deport an asylum-seeker whose request has been investigated and rejected, or a refugee who has been convicted of having committed a particularly serious crime.
However, Israel does not have the right to deport an asylum-seeker on suspicion of having committed a crime. Nor does it have the right to arrest him on that suspicion except as part of a criminal proceeding, and only according to the criteria set forth by Israel’s Criminal Procedure Law. Deviation from these principles violates the State of Israel’s international commitments and goes against the basic constitutional rules regarding the protection of suspects, according to Israeli law.
Dr. Yuval Livnat teaches in the Refugee Rights Clinic at Tel Aviv University.