Israel's Warped Refugee Policy

Instead of protecting refugees as required by law, Israel boasts of its success in taking away their liberty and cajoling them to leave.

Aeyal Gross
Aeyal Gross
Some 500 detainees at the Holot facility lent their support to a nearby rally held by African asylum seekers. February 17, 2014.
Some 500 detainees at the Holot facility lent their support to a nearby rally held by African asylum seekers. February 17, 2014.Credit: Eliyahu Hershkowitz
Aeyal Gross
Aeyal Gross

The bragging by the Interior Ministry regarding the increase in the number of asylum seekers who agree to “leave voluntarily” demonstrates how Israel has turned the refugee laws upside down. Israel does not expel asylum seekers to Eritrea due to the principle of non-refoulement (no forced return), which forbids expelling a person to a place where his life or his liberty is in danger.

This principle was also recognized by the High Court of Justice and is anchored both in international law and in Israel’s Basic Law on Human Dignity and Liberty. It is broader than the definition of a refugee and also applies to someone who has not been recognized as a refugee, but may face danger if expelled from the country where he is staying. It is important to understand that even if there is a dispute as to which of the asylum seekers from Eritrea are refugees and which are not, there is no argument about the fact that the principle of non-refoulement applies to them. Even the Interior Ministry has declared that.

But today, asylum seekers are in danger in Israel itself: The new amendment to the Prevention of Infiltration Law, which passed after the High Court had rejected the previous amendment, undermines their liberty by making it possible to imprison them in the Holot facility in the Negev without any time limitation. Clearly, when there is a threat of endless imprisonment hovering over the asylum seekers, “voluntary” departure is not really voluntary.

Moreover, it is also clear that protection from expulsion to a place where your life and liberty are in danger is meaningless when it is ostensibly provided in a place that itself threatens your liberty. Today asylum seekers are forced to choose between expulsion to Eritrea, where they are likely to lose their liberty, and remaining in Israel, a place where they are also likely to lose it. In that sense one could say that Israel is no longer a safe place for refugees and asylum seekers. Ostensibly Israel is not violating the principle of non-refoulement , since it is not expelling the asylum seekers to Eritrea. But it is creating a danger that strips the principle of its meaning.

When the interior minister says that the sharp increase in the number of those leaving stems from steps such as the new law and summonses to the Holot facility, he is admitting - and even boasting - that the asylum seekers who are asking to leave are doing so due to their fear of imprisonment. The information now provided by the interior minister, to the effect that most of those leaving are not imprisoned but are living in the cities, does not make their leaving more “voluntary,” since the danger of imprisonment applies to all of them. Therefore, the new anti-infiltration law, like its predecessor and in many ways even more so, pulls out the rug from under the claim that Israel is granting the required protection to asylum seekers to whom the principle of non-refoulement applies. What is the significance of granting protection when we make their lives miserable so that they will return to a place where they are in danger?

Transferring asylum seekers to Uganda, as has been reported, is also a violation of the principle of non-refoulement , which forbids expulsion to a third country unless clear assurances have been given that it will protect the asylum seekers and will not expel them to a place where they are in danger. For that reason the European Court of Human Rights in 2012 held that agreements between Italy and Libya -- by dint of which Italy returned asylum seekers to Libya, from where they had set out for Italy by boat -- violated human rights.The court rejected the agreements because there was a real risk that Libya would return them to the countries from which they had fled.

It’s not clear whether there is an agreement between Israel and Uganda on this issue, and if so, whether sufficient assurances were received. Only last week the U.K. Supreme Court rejected decisions to send Eritrean and Iranian asylum seekers in England back to Italy, where they were living before arriving in the U.K. The court decided that each case must be examined to determine whether the refugee would receive appropriate protection if returned to Italy, and also ruled that living conditions in Italy must be investigated to determine whether they constitute inhumane or humiliating treatment.

The U.K. Supreme Court also rejected the claim that in order to prevent transfer to Italy the defects in its refuge system must be demonstrated. It’s enough to show that the conditions in which the asylum seeker will be forced to live are humiliating or inhumane, concluded the court. This ruling is also relevant, of course, to the initiative to transfer asylum seekers from Israel to Uganda, but paradoxically, it is also relevant to the situation of asylum seekers inside Israel. It is not superfluous to mention that some of the asylum seekers whom Israel returned to South Sudan, including several children, were killed during the fighting there. This fact must serve as a warning signal, and remind us that the blood of asylum seekers, whose lives we will make miserable until they leave Israel, is liable to be on our hands.

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