Clarifying what international law says is a tricky business, and the controversy
over the African refugees/infiltrators (depending on who you ask) is no
The answer you get regarding whether it is legal for Israel to
throw them in detention centers in Saharonim detention center in the South for
three years without standard legal proceedings (the goal being to “convince”
them to “voluntarily” return “home”) depends entirely on how you phrase the
First, are the Africans refugees under international law? This
issue has many layers of complexity depending on the country of origin of the
Africans and how one interprets Israel’s obligations, having ratified certain
If they are refugees, then sending them back “home” or
imprisoning them in a manner that violates international law can become
controversial or even illegal.
As most of the over 60,000 Africans are
from Eritrea and Sudan, it appears that once they succeed in entering the
country, a large number of them are legally refugees.
How can the point
be settled when it is hotly disputed by many political officials? In the state’s
recent official submission to the High Court of Justice on the issue of whether
Israel’s recent policies and amendments to the Prevention of Infiltration Law
violates the Africans’ fundamental rights, including under international law,
the state fought the issue on several other grounds, but was silent on fighting
over their status as “refugees.” Thus, on one of the points that has been
strongly publicly disputed – sending the Africans back or imprisoning them – the
state has taken a pass.
In light of the state’s waiver on the issue, what
is the argument that under international law they are refugees, and that their
status as refugees prevents Israel from simply sending them back “home?”
Essentially, the broadest answer is that many Eritreans and Sudanese (in
contrast to South Sudanese) cannot return home, as they authentically fear that
such a return will lead to persecution and possibly death. (Note: The
counterargument which the state largely took a pass on is that many Africans
came more for employment, and could return “home” safely, which could nix their
refugee status.) Assuming they would be persecuted at home, they would normally
need to be granted refugee status and permitted to remain with all of the rights
of a non-citizen resident, including the rights to work and health insurance –
and not being imprisoned for an extended period.
But the state mounted a
whole new defensive battle for its policies at this point.
started by saying that aspects of the above arguments (it did not entirely
specify which, and pressed for an explanation, the Justice Ministry spokesman
refused to elaborate further) regarding defining refugees and what to do with
them were suggested interpretations of international law but not obligatory, and
that much of how Israel handles the issue occurs in a gray area.
upshot of this argument is the state saying that either: 1) not all of the
international law points about the Africans refugee status and rights are
obligatory, and 2) even those that might sometimes be obligatory could be
trumped by domestic law and a gray area created by unusual circumstances, such
as in Israel’s case.
What domestic law and unusual circumstances could
trump international law or prevalent interpretations of that law on the issue
according to the state? The state said besides the general sovereign right to
determine who enters its borders, Israel also has a unique geographic and
geopolitical situation which heavily limits the applicability of prevalent rules
of thumb (but which are not obligatory), which other states may be using to
address similar issues.
It said that geographically, Israel is closer to
Africa and has – until now – had a much more porous land border with Africa via
The state also said that whereas other nations who do have a big
migrant “problem” generally deal with it via intense cooperation with their
neighboring states, Israel is at a distinct disadvantage, as its neighboring
states either refuse to cooperate or are even hostile to Israel to the point
that they would never consider cooperation.
The state also claimed that
it has never forced refugees to return – a point which is hotly debated, as many
interpretations of international law would indicate that someone who
“voluntarily” decides to “go home” after being imprisoned is actually being
forced to return. Next, the state said that people who have illegally entered
the country do not have the same freedom of movement rights (or right not to be
put in a detention center) as those who have entered legally.
responding to these latest claims, one of the lead lawyers on the petition
before the High Court, Oded Feller of the Association for Civil Rights in Israel
told The Jerusalem Post that essentially, the state was the party that was
playing games with its international law claims – not the
Next, Feller said that Israel was not unique geographically,
noting that there are porous border issues involving the US and Latin America,
much of Europe and Greece in particular.
Regarding the geopolitical
context, Feller stated that it was his understanding that some Sudanese had been
returned to Sudan, and that this had been done via cooperation with Turkey and
Jordan. According to him, then, the problems Israel has with its neighbors,
while not insignificant, are also not a special trump card on international
But all of this may really be window dressing for the real
debate that the state eventually put front and center: the disputed belief that
the 60,000 Africans, and possibly more who could come, threaten the bedrock
values of Israel – both in the democratic and Jewish sense.
said that the High Court has held that in actuality, many international law
obligations can be trumped by fundamental Israeli principles, such as the
protecting the state’s core Jewish and democratic character.
with this argument are related arguments about threats to other aspects of the
state as a whole, such as an inability for the budget to support such a large
group of presumably less educated persons.
To this Feller replied simply:
“They are here, open your eyes.” He explained that regardless of how poorly the
reality fit Israeli society’s expectations, there is an international rule of
law which Israel has committed to and there is just no way to legally return
most of the Africans home.
Feller considered the limit of three years in
detention (and whether the conditions of detention live up to international law
standards is hotly disputed) to be an artificial number, which the policy’s
authors thought would be “long enough to convince large numbers of Africans to
leave Israel” – while not being blatantly too long to “fail a proportionality
test” in court as to whether the solution was too aggressive.
considered this balance fictitious, returning to the idea that Israel has two
choices under international law: to check within 60 days whether an individual
is a refugee, on the basis of which a decision will be made on whether they get
to stay, or to waive checking and simply let people stay. He also added that in
most cases, a determination could be made in days, making three years even more
He said that the phenomenon was already eight-years-old, and that
people need to “recognize this is not a temporary issue.”
how Israel could handle such a permanent resettlement of refugees which his
vision might imply, he said that “past experience in Israel with migrants, such
as with 600 persons from Darfur, was that given a chance to work,” the persons
eventually could support themselves and burdened society less than when
prevented from working.
Feller appeared more interested in the legal
analysis than in the practical difference between absorbing 600 refugees and
Asked to respond further to Feller’s critique, the state refused
Feller’s view, if opinion polls and the last election is any
sign, is not likely to find any significant political acceptance.
will the High Court feel international pressure to conform to standards that are
becoming more common (or are already obligatory depending on who you ask)
internationally, or will it view the issue through the prism of concerns of
sovereignty, foreign policy, national security and politics? Regardless of where
one stands on what international law says about the situation in Israel, now
that there are over 2,000 Africans in detention centers and a high volume of
funds are being invested to build more structures, it will be much harder for
the court to end the policy than it will be to find a way to take a pass.