Aid Organization for Refugees and Asylum Seekers in Israel

Between “Voluntary Repatriation” and Constructive Refoulement: The Case of Asylum Seekers in Israel

Date: 20.12.13 Source: Refugees International, Yotam Gidron

According to the new Prevention of Infiltration Act (Amendment no. 4), the incarceration of asylum seekers in prison is limited to one year instead of three. But the new legal regime is hardly less lenient. Indeed, it is now be possible to indefinitely detain asylum seekers who cannot be deported from Israel in an alternative facility without due process. These individuals are held in a new “open” facility in the desert, just a couple of kilometers away from the prison where asylum seekers were held until recently under the invalidated act. 

The new “open” facility is remarkably similar to a prison: though it is “open”, detainees have to be present for roll call three times a day, it is run by the Israel Prisons Authority, and the disciplinary measures in it are similar to those employed in prisons. 

A group of human rights organizations appealed to the Israeli High Court of Justice, challenging the new amendment shortly after the Israeli Knesset had approved it. Meanwhile, asylum seekers who were detained in the new facility (all of whom were held before that in prison for about 18 months under the invalidated act, and were waiting for their release) started walking out of it, protesting their detainment. Some 200 of them walked for two days and made it to Jerusalem last week, where they were arrested while demonstrating outside the Knesset. Others who were hoping to do the same, were violently arrested shortly after walking out of the facility. 

The official aims of the act are to deter asylum seekers from entering Israel and prevent those who are already there from “settling” in the country. But at first glance, the act’s aims and the facts on the ground do not match up. During 2013, only 36 asylum seekers have been permitted entry into Israel, as the border between Israel and Egypt is now virtually sealed by a new fence. In addition,  the new desert facility meant to contain asylum seekers can only house 3,000 people – a fraction of the 54,000 asylum seekers present in Israel.  

It all becomes clear, however, when one thinks of the new amendment not as a policy by itself, but as an additional step in the broader Israeli approach to asylum seekers. That approach involves pushing asylum seekers to the point where going back to their country of origin seems to them the only practical option – no matter how dangerous it might be or what kind of persecution they might face there. As Member of the Knesset Miri Regev clearly explained while presenting the new amendment to the parliament, “We need this supporting legislation in order to motivate them to go back to their countries”. Gideon Saar, the Minister of Interior, added, “How successful will it be? How many [asylum seekers] will go out [of Israel]? We shall see.” 

More than 90 percent of the asylum seekers in Israel come from Eritrea and Sudan. As Israel recognizes it can not remove these people back to their countries of origin, it lets them stay, under a 'temporary group protection’ policy. 

Israel leaves asylum seekers in an unclear situation for years, with no practical way to obtain a status in the country. In addition, by spreading rumors (of forthcoming “mass deportations”, for example) and imprisoning them, the government does its best to push asylum seekers into deciding to leave the country. While it is clear under the international law that Israel may not deport asylum seekers from Eritrea or Sudan back to their countries, it is making an extensive effort to make them “deport themselves." 

Voluntary repatriation, when done without the repatriated’s own free will, becomes a form of constructive refoulement and a violation of the non-refoulement principle which prohibits any state from returning a person to a country where his or her life or freedom would be threatened. Hopefully the Israeli High Court of Justice will invalidate this new amendment as well, and will prohibit the use of imprisonment as a tool for “motivating” asylum seekers to repatriate. 

Yotam Gidron is a law undergraduate student in the university of Tel-Aviv and an activist working with ASSAF - Aid Organization for Refugees and Asylum Seekers in Israel.