On January 1, 2018, Israel’s Population, Immigration and Borders Authority (PIBA) announced that the state would indefinitely detain thousands of Eritrean and Sudanese nationals—legally referred to as “infiltrators”—if they refuse to leave for Rwanda or Uganda by March 31, 2018. While Israel is offering a seemingly generous package meant to incentivize voluntary departure, the blatant threat to foreign nationals contravenes both domestic court orders and international obligations under the 1951 Refugee Convention and the International Covenant on Civil and Political Rights (ICCPR).
Under Israel’s 1954 Law on the Prevention of Infiltration, an “infiltrator” is anyone who enters Israel through an unrecognized border point of entry. Sudanese and Eritreans represent the largest group of “infiltrators,” with over 50,000 streaming in through Egypt between 2006 and 2013, until a fence was erected meant to thwart illegal entry. The latest estimates from September 2017 indicate that there are roughly 38,000 persons currently identified as “infiltrators” in Israel, many of whom registered with the United Nations High Commissioner for Refugees (UNHCR) as asylum-seekers. However, the path to asylum in Israel is virtually impossible.
Israel’s legal basis for detaining asylum-seekers and refugees stems from its 1952 Law of Entry into Israel, which asserts that those deemed eligible for deportation may be detained beyond two months if they have been uncooperative and have delayed their deportation. With almost 38,000 persons currently detained and the March 31, 2018 deadline rapidly approaching, Israel will face a humanitarian crisis directly caused by the state’s refusal to consider Eritreans and Sudanese as eligible for political asylum. Shockingly, fewer than 1% of asylum applicants are recognized as refugees in Israel, compared with acceptance rates in the European Union of over 90% for Eritreans and 60% for Sudanese.
Israel’s January 1 announcement is unfortunately just one example of many in recent years of its policy towards asylum-seekers and refugees. As recently as September 2014, Israel’s High Court of Justice intervened to close the Holot Residency Center, where thousands of migrants and asylum-seekers were held under the pretense of it being an “open” facility. In reality, persons detained at the facility were required to show up three times each day for “head counts,” the facility was located far from any major towns or cities, and persons at the facility were required to be inside by 10 pm. “Let us not allow the name – ‘open facility’ – to lead us astray,” said the Court in its ruling. The Court found the government was breaching Israel’s Basic Laws. “Every person, by virtue of being a person, has a right to human dignity…and infiltrators are people.”
According to the government, the matter is complicated because Israel cannot deport refugees home due to human rights abuses in Eritrea and because Israel has no diplomatic relations with Sudan (Sudan criminalizes visits to Israel by up to 10 years). This is seemingly an indication that Israel is abiding by its international obligations under the Convention Against Torture. The principal of non-refoulement under Article 3 prohibits the deportation of persons to countries where there is a credible fear that they will be tortured in that country or with the government’s acquiescence. Yet Israel’s push for the Eritreans and Sudanese to leave for Uganda or Rwanda is seemingly infeasible. Currently, Rwanda and Uganda only accept people who voluntarily agree to leave Israel, leaving unanswered if these countries would accept persons deported against their will.
As a party to the 1951 Refugee Convention, its 1967 Protocol, and the International Covenant on Civil and Political Rights, Israel must discontinue its practice of arbitrarily penalizing or detaining persons seeking refugee status for irregular entry or presence. The country’s treatment of asylum-seekers ignores the reality that for many Eritreans and Sudanese, they are not in a position to comply with the “legal formalities” of entry as they lack necessary documentation due to the “urgency of their departure.” Israel must take into account and consider the fear and desperation felt by those who choose to flee, choose to treat them humanely rather than as infiltrators, and to truly consider their asylum applications. As Israel’s own High Court of Justice said in 2014, “infiltrators do not lose one ounce of their right to human dignity just because they reached the country in this way or another.”