Fahamu Refugee Legal Aid Newsletter

The Fahamu Refugee Legal Aid Newsletter is a monthly publication that focuses on the provision of refugee legal aid. It is aimed primarily to be a resource for legal aid providers in the Global South where law journals and other resources are hard to access. It complements the information portal
The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

Refugees denied legal rights in Israel

Contributed by Amali Tower, a refugee rights advocate currently working in refugee resettlement in Africa. Amali holds a Master of International Affairs focused in human rights from Columbia University.

Race riots, anti-African sentiment, and xenophobic attacks against African migrants have been on the rise in Israel. The worrying trend accelerated in January 2012 with the Knesset’s passing of an anti-infiltration bill that cracks down on asylum-seekers and sets a dangerous precedent for refugee protection in the country.

On 10 January, Israel amended a 1954 law entitled ‘Prevention of Infiltration’, which will now empower authorities to imprison asylum-seekers for up to three years without trial or deportation. The new law will allow migrants from countries considered ‘hostile’ to Israel, such as asylum-seekers from Darfur, to be held indefinitely. It appears the law guards against the forcible return of refugees to countries where they face persecution, while also allowing for the indefinite detention of anyone believed to be at risk of persecution if deported. For an extended analysis of the law see the Human Rights Watch (HRW) report, ‘Israel: Amend ‘anti-infiltration’ law.

In February 2012, the Israeli Ministry of Interior announced that South Sudanese migrants would be subject to deportation if they did not voluntarily leave Israel by 1 April 2012. That announcement was followed by a spate of discriminatory statements made against African migrants by Israeli government officials, which have contributed to an anti-migrant atmosphere. The hostile climate towards African migrants in Israel grew to be so bad that even the United States, a steadfast ally of Israel, weighed in on the developments by releasing a report criticising Israel’s treatment of African migrants. In its report, the US pointed out that migrants were often denied access to asylum procedures.

Since January, little has been done to stem the tide of hostile rhetoric and in recent weeks attacks against sub-Saharan Africans have steadily increased. These attacks have included assaults and arson attacks on homes, schools, and most recently the torching of an apartment of ten Eritreans.

An Israeli court has upheld the Interior Ministry’s decision to deport South Sudanese asylum-seekers, ruling on 7 June that the state was not obligated to extend asylum protections to the approximately 1500 citizens of South Sudan. In the ruling, the Jerusalem district court rejected a petition by human rights groups, citing that the petitioners had not proven that deportees would face ‘risk to life or exposure to serious damage.’

This recent turn of events against South Sudanese asylum-seekers is purported to be based on a report by Israeli Ambassador Dan Shaham, leading to the Israeli Foreign Ministry’s conclusion that returning South Sudanese to their country of origin would not breach international law, as the South Sudanese are economic migrants and their return to South Sudan would not pose a danger to their lives.

Responding to the ruling, the United Nations High Commissioner for Refugees (UNHCR) said it had been assured by the Israeli government that individual South Sudanese applications for asylum would be considered, noting that territorial disputes between Sudan and South Sudan could prove a basis for refugee claims. On a related note, on 15 June, humanitarian NGO Médecins Sans Frontières warned that an ‘emerging crisis’ for tens of thousands of refugees was brewing in South Sudan’s Upper Nile and Unity states, as a result of the continuing conflict between Sudan and South Sudan.

Since the ruling, dozens of African migrants, including 45 South Sudanese nationals, have been arrested in the port city of Eilat and in central Israel, while immigration police have entered the homes of African migrants, demanding they pack their bags and empty their bank accounts ahead of deportation. The Immigration Authority has announced that it would allow South Sudanese to leave Israel voluntarily, providing them free airline tickets and a grant of 1,000 euro. However, activists point out that many are being targeted on the streets and forced to sign documents, agreeing to ‘voluntarily’ leave or face detention.

On 17 June, Israel prepared to deport 120 South Sudanese to Juba, while Israel’s prime minister said another plane would depart next week. A spokesman for Israel’s Population and Migration Authority said 500 people had ‘volunteered’ to leave Israel and 300 others had been arrested since the operation to round up migrants began on 10 June. 

While Israel contends that it is returning ‘infiltrators’ because it is safe to do so, Israel’s ‘anti-infiltration’ law remains a fundamental breach of Article 14 of the 1948 Universal Declaration of Human Rights, which recognises the right of persons to seek asylum from persecution in other countries. Israel is a state party to the 1951 Convention Relating to the Status of Refugees (herein 1951 Convention), which prohibits the imposition of penalties on refugees because of illegal entry, and clearly states that the ‘seeking of asylum can require refugees to breach immigration rules’ and prohibits arbitrary detention purely on the basis of seeking asylum. (1951 Convention Introductory Note: 3) Furthermore, Israel’s arbitrary detention of asylum-seekers is a violation of international refugee law because it denies individuals of their right to legal counsel.

Most notably, Israel’s deportation of South Sudanese asylum-seekers constitutes a breach of the principle of non-refoulement, enshrined in Article 33 of the Refugee Convention, which prohibits contracting state parties from expelling refugees or asylum-seekers in any manner whatsoever, especially against their will, to territories where they fear threats to life or freedom. The obligation of non-refoulement is also protected by international human rights law, in which Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Article 7 of the of the International Covenant on Civil and Political Rights, and Article 3 of the European Convention on Human Rights renders the principle absolute. Moreover, non-refoulement is generally considered a principle of customary international law, and arguably a peremptory norm, so that it is binding on States even if they have not ratified the relevant refugee or human rights conventions.

UNHCR’s advisory opinion on the extraterritorial application of non-refoulement states that the principle of non-refoulement ‘applies not only to recognized refugees, but also to those who have not had their status formally declared’, and that the principle is of particular relevance to asylum-seekers. Israel has stated that it is returning South Sudanese nationals expressly because it has deemed it safe for them to return to South Sudan. However, critics argue that since Israel denied these asylum-seekers their legal right to individual status determinations, Israel cannot know in each case whether it is returning individuals who would in fact be safe from threats to life or freedom. Regardless, it remains a fact that per article 33 of the 1951 Convention, forcible return is not permissible in any manner whatsoever. 

In the current conditions, it appears that all African asylum-seekers are in danger of losing legal protections in Israel. In addition to the South Sudanese, Israeli Prime Minister Benjamin Netanyahu has called for increased efforts to deport citizens of Cote d’Ivoire, Ghana and Ethiopia. Acknowledging that Israel cannot deport some 35,000 Eritrean and Sudanese asylum-seekers due to threats of persecution, Netanyahu ordered the expansion of the Saharonim detention facility in the Negev to hold these asylum-seekers.

According to Israeli officials, the Netanyahu administration has made it clear to countries like Ghana and Cote d’Ivoire that it intends to deport its citizens, by force if necessary. Israeli officials add that Israel has been in discussions with the governments of countries with whom it has diplomatic relations and with whom it believes there is no legal barrier to repatriation. Israel believes that diplomatic ties supersede its legal responsibilities to conduct individual refugee status determinations. However, as Amnesty International has pointed out, international refugee law requires countries to conduct individual protection assessments, following any decision to cease group protection.

According to HRW, in 2009, Israel’s Interior Ministry created a ‘Refugees and Infiltrators Unit’, which took over responsibility for refugee status determinations from UNHCR. Israel has not, however, enacted legislation clearly defining the rights of asylum-seekers and refugees. Amnesty International has documented that, since the founding of the state of Israel, over 50,000 individuals have sought asylum in Israel, but less than 200 have been granted refugee status. This amounts to less than 1 percent of all applicants. Furthermore, Israel’s ‘Procedure for Handling Political Asylum Seekers’ allows a government official to reject asylum applications after a cursory review, detain, and then deport individuals within 72 hours. This policy strips applicants of the legal appeals process and leads to summary deportations of individuals who otherwise should be afforded protection.

Israel hopes its policies will discourage further African migration to its shores. Whether or not it will do so remains to be seen. One thing seems certain: the international community should be alarmed at Israel’s policies towards some of the world’s most vulnerable populations. While these policies challenge the enjoyment of refugee protections in Israel, the true danger may lie in the precedent it sets, which other nations may follow. 

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