Israel’s Treatment Of African Refugees Should Be An International Scandal

For the past few weeks, Israel has been popping in and out of international headlines, thanks to the fallout from Trump’s announcement that the United States will be moving its embassy to Jerusalem. The U.S.’s decision has prompted outcry from observers who believe that recognizing Jerusalem as Israel’s undivided capital will enflame Israeli-Palestinian tensions and push a two-state solution further out of reach. But given that all eyes are on Israel, it’s strange that there hasn’t been much mainstream reporting about another major humanitarian crisis that’s brewing in Israel at this very moment: namely, the government’s openly-announced intention to begin forcibly expelling tens of thousands of migrants who fled to Israel between the mid-2000s and 2013, seeking refuge from violence. Just today, the Israeli government announced that migrants who don’t leave the country by April will be put in indefinite detention.

Maybe the lack of international attention isn’t that strange: “Yet Another Country Cruelly Screws Over Refugees” has become such a commonplace headline that most people probably don’t even bother to click on it anymore. But the current situation in Israel is worth our attention for a number of reasons. First, Israel is an instructive example of how states can devise means of shirking not only their larger moral responsibilities towards refugees, but even the modicum of legal responsibility they explicitly agreed to when they signed the Refugee Convention. Second, Israel’s present situation shows that a government barely even needs to pretend that there are Important Economic Reasons for wanting to deport refugees, if no one on the political scene actually gives a damn. Third, Israel demonstrates that a nation or population with an ancestral history of persecution does not, by this fact alone, wind up having any special sympathy for the persecuted, which tells us something depressing about the intergenerational durability of history’s lessons.

The situation, basically, is this: Israel currently has a population of roughly 40,000 African migrants who entered the country without authorization. Give or take births, deaths, and departures, this number has remained unchanged for the past few years: ever since Israel finished building its border wall in the Sinai Desert—which was the crossing-point for the vast majority of these individuals—no more than a handful of new African migrants have been able to enter. The vast majority of migrants hail from two countries, Eritrea and Sudan. Sudan, especially the western region of Darfur, has experienced ongoing ethnic violence since the early 2000s, which has been described as an attempted genocide of ethnic African groups by a majority-Muslim Arab elite and their allied militias. The use of rape, torture, and mutilation as weapons of war is well-documented and widespread. Eritrea, a former Italian colony, secured its independence from neighboring Ethiopia in 1991, but a 1998-2001 border war resulted in tens of thousands of deaths and increased authoritarianism by the country’s single-party regime. According to the UN, “[Eritrea] has widespread networks of informants, coerced by the state, and those suspected of treasonous behavior are subject to arbitrary arrest, forced disappearances, extrajudicial executions, and torture,” while ordinary citizens are conscripted into indefinite state service at less-than-subsistence wages. Those who succeed in escaping the country are in great danger if they return, as they are subsequently perceived as “deserters.”

The suffering that many of these migrants have undergone in their home countries, or on the route to Israel, is extreme. Just as migrant routes through Mexico to the United States are monitored by drug cartels and other criminal groups seeking to profit off the desperation of refugees, the Sinai Desert soon became a dangerous crossing-point for Eritreans and Sudanese seeking to reach Israel: criminal groups set up “torture camps” in the desert, holding migrants in captivity while making ransom demands to their families back home. These migrants braved considerable dangers to reach Israel, choosing it as their destination based on the fact that it was the only democracy in the Middle East, and cheaper to reach than Europe. (One Eritrean refugee, whom I spoke to last year, told me that he had chosen Israel because he was a Christian. “I thought because it was the Holy Land, the people there would be kind,” he said ruefully.)

But the Israeli government does not want these migrants. Senior government officials, as well as statutory language, refer to all irregular entrants to Israel presumptively as “infiltrators,” implicitly suggesting that they are not refugees exercising their right to seek protection, but are in fact state saboteurs of some kind. There’s no even vaguely plausible sense in which the presence of these African migrants is damaging the state: Israel’s unemployment rate is extremely low, and the country still routinely needs to ship in guest workers from places like southeast Asia to fill the labor gaps in the economy. There’s also been no serious suggestion—beyond the usual sort of immigrants-commit-crimes dog-whistling that occurs in every country—that the African migrants pose any risk to public security. The reason why the government is hostile to these migrants, it seems, is deeply-rooted in the notion that a Jewish-majority population (whatever on earth that actually means in practice) is essential to the continuation of an authentically Jewish state. As Prime Minister Benjamin Netanyahu remarked in 2012: “If we don’t stop the problem, 60,000 infiltrators are liable to become 600,000 and cause the negation of the state of Israel as a Jewish and democratic state.” The current plan, as recently announced by the government, is to beginning shipping the migrants en masse to an undisclosed third country, widely rumored to be Rwanda.

This is the culmination of a long and elaborate effort by the Israeli government to Have It Both Ways on refugee protection. They don’t want to publicly and unambiguously derelict their duty under international law to protect refugees. They also have no intention of offering long-term protection, to say nothing of permanent status or citizenship, to 40,000 Africans. Israel’s strategy so far has been to refuse to adjudicate whether the migrants are refugees or not, to make migrants’ lives within Israel as miserable and alienated as possible, and, finally, to shunt off responsibility for them onto poorer countries that are eager for funds and diplomatic consideration.

Let’s take a look at Prong 1 of this strategy, refusing to adjudicate whether migrants are refugees or not. Based on well-documented conditions in the countries they’ve fled, there’s a high probability that many of these Eritrean and Sudanese migrants meet the legal definition of a “refugee,” which means that Israel has certain legal obligations towards them once they enter Israel’s territory. Israel was the tenth signatory to the 1951 Refugee Convention (the international agreement that formally set down what a refugee is and what rights they’re entitled to) and is often described as having been an especially active party in the drafting process, although some historians have disputed this. The Convention was written in the aftermath of World War II, in response to the need to protect post-war European refugees, as well as a collective recognition by world powers that they had failed to intervene appropriately on behalf of Jewish refugees fleeing Nazi persecution. For example, at the 1938 Evian Conference, European delegations protested anti-Semitic laws and state violence against Jews, but failed to arrive at any constructive program for combating these evils, due to countries’ unwillingness to alter their immigration laws to offer affirmative protection for Jewish refugees. The United States, in particular, famously turned away the St. Louis, a ship filled with Jewish refugees, in 1939. The Refugee Convention was written in direct response to the moral failures of Allied powers during the war, and sought to ensure that, during future such crises, refugees would be legally entitled to protections in signatory countries. Without the incredible horror of the Holocaust in immediate and vivid memory, it seems unlikely that world powers would have been able to come to a consensus on refugee protection, given their previous inability to do so in 1938.

The Convention’s definition of a “refugee” was very specific. A person wasn’t considered a “refugee” simply because he was fleeing violence and conflict, or even because his life was in immediate danger: a refugee was, specifically, someone who had been subjected to persecution based on “race, religion, nationality, membership in a particular social group, or political opinion.” Thus, the persecution of Jewish people during World War II was both the galvanizing event that made the Refugee Convention possible, and also shaped the way the word “refugee” was defined by the drafters of the Convention. (This narrow definition of a “refugee” has subsequently turned out to be infuriatingly under-inclusive in many real-life displacement situations: a lot of migrants fleeing very serious dangers end up not qualifying as refugees because the people trying to murder them haven’t been courteous enough to identify any “protected grounds” for wanting them dead.) The 1951 Convention imposes certain minimal obligations on contracting states not to discriminate against refugees who are in their territory, not to punish them for seeking protection, and not to force them to return to the states they’ve fled. Recognized refugees are also entitled, among other things, to equal treatment with other non-nationals within the country.

From its early history, Israel’s relationship with the Refugee Convention was complicated by its own internal politics. Palestinians who had been displaced from their home villages by the 1948 Arab-Israeli War understood themselves to be refugees, but Israel was opposed to international recognition of them as such; in 1951, most Palestinians were excluded from Refugee Convention protection. Nevertheless, in 1977, Israel drew on its own legacy as a nation of refugees and its commitment to the Refugee Convention when it accepted 66 refugees from Vietnam, who had been rescued from a leaky raft by an Israeli freighter in the South China Sea. Over the next two years, Israel took in approximately 300 further Vietnamese refugees. Then-Prime Minister Begin justified the decision by saying that:

We never have forgotten the boat with 900 Jews, having left Germany in the last weeks before the Second World War… traveling from harbor to harbor, from country to country, crying out for refuge. They were refused… We have never forgotten the lot of our people, persecuted, humiliated, ultimately physically destroyed. And therefore, it was natural that my first act as Prime Minister was to give those people a haven in the land of Israel.

This was a nice gesture, but it failed to become a long-term state policy. Israel has since become very cautious about recognizing refugees. Of course, “I don’t want any more non-Jews living and reproducing in my country” isn’t a legally acceptable reason to deny applications for refugee status under the Convention. But the trouble with international law is that typically there’s no way to make states stick to their own agreements other than by simply saying “Hey! HEY!” in an increasingly indignant voice. States like the U.S. and Israel usually don’t consistently abide by international agreements unless they’re subsequently implemented in domestic law. That’s what the U.S. did in 1980, for example, when it passed the United States Refugee Act: this was a national law that established an actual procedure for adjudicating the claims of self-described refugees who showed up in the U.S. to ask for protection. It’s not a perfect system by any means, but it’s a lot better than the discretionary free-for-all that preceded it.

Israel, on the other hand, has never passed any domestic laws setting up a uniform system for adjudicating refugees’ claims, which means that the government is free to make up its own mind as to what it thinks comports with the Refugee Convention, and—as with most secretive, opaque administrative decisions—their determinations are very hard to challenge. In 2008, a “Questioning and Identification Unit” was established within the Ministry of the Interior, which was then replaced in 2009 by the Refugee Status Determination (RSD) Unit. Since this time, the RSD has been responsible for interviewing asylum seekers and assessing their claims in light of Israel’s obligations under the Refugee Convention. Not having thorough legal procedures in place to determine who’s a refugee is a big problem, because the Refugee Convention only protects people who are recognized as refugees. If your government chooses not to recognize any refugees, either by delaying examining their applications or finding some reason to deny them, they can argue that they don’t owe migrants any duties under the Convention.

This, essentially, has turned out to be Israel’s strategy. Until recently, Sudanese and Eritrean migrants were not even permitted to make asylum requests, according to advocates. The grant rate for the few applications that have been successfully made is extremely low: as of 2015, only four Eritrean asylum applications had been granted, while 997 had been denied and 1335 left unanswered. Likewise, 40 Sudanese applications were rejected, while 2184 more were left unanswered. Today, three years later, we are at a grand total of eight successful Eritrean asylum-seekers and two Sudanese ones. (200 Darfurians, out of an eligible 6000, were also granted “humanitarian protection” in 2017 after it emerged that the government had for several years deliberately suppressed an internal RSD report stating that non-Arab Darfurians were fleeing genocide and clearly qualified for asylum.) Israel’s extremely low asylum grant rate, at well under 1%, contrasts starkly with international averages: in EU countries, for example, Eritrean asylum applications have average acceptance rate of 86%.

At the same time, Israel felt it couldn’t just ship everyone straight back to Eritrea and Sudan. The most basic minimum requirement of the Refugee Convention is that signatory countries won’t send people back to places where they’ll be subjected to persecution. More generally, as a principle of international law, even countries that aren’t signatories to the Refugee Convention aren’t supposed to repatriate people who are at risk of being tortured with the acquiescence of their governments. Eritreans who are persecuted by their government for dissident activities or for flouting their terms of forced service to the state are considered, in most Convention signatory countries, to have asylum claims based on political opinion, and are usually deemed to be at risk of government-sanctioned torture. The violence in Darfur, meanwhile, was recognized by the international community as ethnically-based, even rising to the level of genocide; and this pattern has been repeated in other parts of the Sudanese conflict, such as the Blue Nile region. Assessing the claims of these individuals would put the Israeli government in the difficult position of either being forced to acknowledge them as refugees, and thus potentially open the door to refugee status for many of their conationals within Israel; or to reject their claims, and then explain why, exactly, Israel believes these individuals should not fall under the Convention, when so much of the international community believes the opposite.

To date, Israel’s way of circumventing this dilemma has been to grant all Sudanese and Eritrean nationals something called “temporary protection.” This designation doesn’t acknowledge that the individual is a refugee: it’s a discretionary status that allows the holder to remain in the country at the government’s pleasure. Failing to acknowledge these individuals formally as refugees allows Israel to avoid according them the rights they are due under the Convention, and also to continue characterizing them politically as economic migrants. But because it hasn’t directly sent them back to their home countries to face torture or persecution, it hasn’t yet violated the most literal interpretation of the lowest threshold of refugee protection.

Of course, the Israeli government still wanted all these people gone. It just needed a way to make them leave that didn’t involve directly deporting them back to their home countries. This was where Prong 2 of the strategy, Making Migrants Miserable, came in. Israel has no birthright citizenship for children of non-Israeli citizens, so the children of migrants who came to Israel at a very young age, or were born in Israel, have no path to future status, even though many of them speak Hebrew as a primary language. Attempts to integrate and welcome migrant populations are subject to intense political pressures: a program in which members of the Israeli Defense Forces spent time volunteering in primary schools and daycares for refugee children in south Tel Aviv was discontinued after a local anti-migrant group complained to the Israeli Defense Minister.

“Temporarily protected” individuals technically have no right to work, and their identification cards state as much, although the Israeli government has avoided prosecuting businesses who employ individuals with protected status. Much like in the U.S., this ambiguous situation leaves migrants with little bargaining power at their workplaces, and migrant populations are consequently highly vulnerable to labor exploitation. In a shockingly brazen and petty attempt to make day-to-day life even less livable for these individuals, the government recently passed a law allowing them to confiscate 20% of all migrants’ wages and place them in an escrow account, claiming that it would be returned to them as a lump sum when they chose to leave Israel. (There is no procedure for returning wages to individuals who eventually win asylum, presumably because the government has no intention of allowing this to happen.) For migrants who are already living on extremely meager wages, the loss of a fifth of their income is a huge blow that can make subsistence a practical impossibility.

Additionally, individuals with temporary protection are required to come to special RSD units to have their permits inspected and renewed on a regular basis, ranging from monthly to even weekly, meaning that their ability to disperse geographically is limited. Refugees have settled disproportionately in south Tel Aviv, the low-income area where the RSD is headquartered. Prior to the influx of refugees, neighborhoods in south Tel Aviv were already poorly-resourced, and the arrival of many new inhabitants, who are often forced to live together in overcrowded apartments due to economic limitations, have put even greater strains on local infrastructure. Many long-time residents of south Tel Aviv have, consequently, become outspoken voices against the presence of refugees in Israel. But as advocates have repeatedly pointed out, the current concentration of refugees in south Tel Aviv was in fact created by Israeli government policy, since temporarily protected individuals lack official work permits, and are thus tied to existing quasi-legitimate labor networks based in south Tel Aviv. If the government were genuinely interested in ensuring a broader dispersal of refugees, these policies would be the logical ones to reform. However, in fact, the government is well aware that south Tel Aviv is a comparatively convenient place to concentrate migrants, because the area was already poor and underserved prior to the refugee influx, and it is politically unpopular to move refugees to better-resourced areas.

The government also uses detention policies as a means of making life more difficult for migrants. All men below the age of 60 who are not supporting a wife or children in Israel are eligible to be involuntarily summoned to a center called Holot for twelve-month periods. Summonses to Holot supposedly aren’t characterized as “punitive”; the government doesn’t attempt to justify the detentions on the grounds that the specific individuals are a danger to the community or a public charge. Rather, the mere fact of having entered Israel irregularly makes an individual subject to detention. Technically, Holot is an “open” center, and inmates can leave during the day so long as they return for a roll-call. However, Holot is also located in the middle of a remote desert—near the Sinai crossing where most of the refugees first entered Israel, after a traumatic and dangerous journey—so inmates don’t exactly have places to go.

Internees and advocates at Holot describe a system of petty tyrannies and inconveniences. The food portions are small for grown, mostly young men, and often poor quality. Bunk assignments are regularly shuffled to prevent detainees from becoming too close to each other. Psychological counseling is extremely perfunctory, usually only involving an offer of a pill or injection. Guards have been known to monitor or disrupt attempts to set up book clubs and other informal learning settings, and reading material in Hebrew is forbidden. Traveling from Holot to populated centers is arduous and logistically difficult. For detainees who lack families and may already have limited social ties, detention in Holot cuts off opportunities to establish community networks. Many men who are sent to Holot were working jobs in Israel before their internment, and their detention constitutes a major disruption in the daily rhythm of life that helped ensure their mental well-being. Once released from Holot, men are forbidden from resettling in south Tel Aviv, where refugees have their strongest social and economic networks, and must disperse elsewhere in Israel.

As characterized by refugee advocates, the real purpose of Holot is to make a vulnerable population of migrants so miserable that they choose to “voluntarily” leave the country at some point during their twelve-month sentence. (Though the government has occasionally demurred that this is Holot’s purpose, some of their blunter statements confirm the advocates’ perspective pretty unequivocally: “Until I have the option of deporting them, I’ll jail them in order to make their lives miserable” was Interior Minister Eli Yishai’s comment about migrants in 2012.)

In addition, the Israeli government will offer migrants financial incentives to leave—usually a lump sum of around $3500—hoping that this will incentivize their “voluntary” departure. This is where Prong 3 of the strategy, shipping migrants off to third countries, historically came in. For a time, the Israeli government had implemented a policy of forcing migrants to choose between indefinite imprisonment or “voluntary” deportation to a third country. (Deportees were never officially informed of what these countries were, but investigations have since revealed them to be Uganda and Rwanda.) In August 2017, the Israeli Supreme Court held against the government’s detention of migrants for more than 60 days in order to obtain their “voluntary consent” to their own deportation, but also ruled that Israel’s policy of deporting migrants to third countries such as Rwanda or Uganda was lawful so long as the government took steps to ensure that the third countries were “safe.” Supreme Court President Naor, in her opinion, stated that the government can legally deport migrants to third countries even without their consent.

The Israeli government has since signaled that it plans to escalate the scale of removals to third countries. In November, the government claimed that it modified its confidential agreement with an African receiving country (purportedly Rwanda) to allow it to accept migrants deported explicitly against their will, meaning that there is now probably no formal legal barrier to the deportations. Prime Minister Netanyahu has announced that the government is implementing a third phase of anti-infiltration measures, which he calls “increased removal,” under which migrants may be deported to third countries by force, with the government paying the receiving country $5000 per migrant. Netanyahu states that this new plan “will enable us later to make the Holot facility unnecessary and to use part of the vast resources we allocate there for inspectors and increased removal… our goal is to continue removing significantly more then [sic] what we have until now.” In an “Infiltrators’ Bill” passed earlier this December, the Knesset voted to increase restrictions against Israel’s migrant population, including “taking into custody migrants who violated the limits of where they can live, limiting their ability to take money out of Israel and the ability of third parties to help them do so, and a three-year extension of the penalties for illegally employing them.” As of January 2, 2018, the government announced that any migrants who have previously been at Holot or are eligible to be summoned there must leave Israel by April or face indefinite detention.

If some of these deportees are in fact legally refugees, is Israel violating international law by sending them to a third country? The Convention doesn’t directly address this. Because countries have an obligation not to send people back to places where they face persecution or torture, many jurisdictions have held that refugees also can’t be sent to an unsafe third country. An unsafe third country is a country where, because of political instability, or because the refugees aren’t guaranteed adequate legal protections, they may be at risk of deportation back to the home country they fled. Legal hair-splitting aside, as a moral matter, it’s very clear that states who have signed on an agreement to protect vulnerable people from violence will fail in their obligations if they send individuals to a third country that is not safe and will not protect them from their persecutors. If that’s so, the question then becomes: are Rwanda and Uganda “safe” countries for refugees?

The answer—with reference to the 4,000 migrants whom Israel has already been sent to third countries—is a resounding “no.” Though the Israeli government has been loath to release any information about its third country policies, a detailed investigation by Foreign Policy revealed that there was, in fact, no plan in place to provide for the migrants on their arrival or afford them any kind of legal status. They described the whole operation as “an opaque system of shuffling asylum-seekers from Israel, via Rwanda or Uganda, into third countries, where they are no longer anyone’s responsibility”:

It begins with furtive promises by Israeli authorities of asylum and work opportunities in Rwanda and Uganda. Once the Sudanese and Eritrean asylum-seekers reach Kigali or Entebbe, where Uganda’s international airport is located, they describe a remarkably similar ordeal: They meet someone who presents himself as a government agent at the airport, bypass immigration, move to a house or hotel that quickly feels like a prison, and are eventually pressured to leave the country. For the Eritreans, it is from Rwanda to Uganda. For Sudanese, it is from Uganda to South Sudan or Sudan. The process appears designed not just to discard unwanted refugees, but to shield the Israeli, Rwandan, and Ugandan governments from any political or legal accountability.

… Officials across several relevant ministries in Israel, Rwanda, and Uganda all issued denials or refused repeated requests for comment. But the nearly identical experiences of asylum-seekers arriving in Rwanda and Uganda, as well as their ability to bypass standard immigration channels and occasionally procure official documents from their handlers, suggests a level of government knowledge, if not direct involvement, in all three capitals.

Ultimately, the secrecy of Israel’s current agreement with Rwanda makes it difficult to directly assess whether refugees sent there will receive any kind of protection against deportation, to say nothing of social benefits or permanent status. Given Israel’s history of bad-faith policies towards their migrant population, it seems hard to trust that the new arrangements are significantly better than the old ones. Rwanda is rumored to have been promised $5000 a head per refugee, but no one has any idea how that money will be spent, or what kind of status or assistance migrants will have upon arrival. During this first phase, it appears that Israel is only contemplating deporting adult migrants without child dependants who do not have asylum applications pending. However, given the exceptionally low grant rate for asylum in Israel, applying for asylum as a means of averting deportation is likely to be a temporary solution at best. Migrants whose asylum applications have already been rejected will also not likely be able to delay their deportation through this method. The government has already stated that “requests for political asylum submitted after January 1, 2018 will not delay the demand for an infiltrator to leave to a third country.”

It’s worth pointing out—since it’s often claimed that Israel comes in for more than its fair share of criticism on its human rights record—that Israel is not the only state that implements cruel, secretive policies to in a bid to pass the buck on refugee protection. One has only to look to Australia’s failed plan to transfer all its asylum-seekers to Malaysia, Europe’s current plan to corral migrants in Turkey, or the amount of money the U.S. gives Mexico to block refugees and other migrants from reaching our border, to realize that many countries besides Israel are eagerly seeking ways to circumvent their legal and moral responsibilities. But Israel’s policies are still pretty damn bad, by international standards. And what’s more, these policies are not generating much outrage within Israel. There are some excellent advocacy groups in the country, like the Hotline for Refugees and Migrants, seeking to raise awareness, but even the leadership of Israel’s opposition Labor Party favors the government’s proposed deportation measures.

Those of us in the U.S. should watch this situation with trepidation, remembering the times in our own country’s recent history when stripping immigrants and asylum-seekers of rights was a bipartisan effort. Deporting and imprisoning all these migrants will be costly for the Israeli government, but they see that as no obstacle. Similar things could happen here too.

Photo: African asylum seekers, mostly from Eritrea, take part in a protest against Israel’s deportation policy in front of the Knesset in Jerusalem on January 26, 2017 — GALI TIBBON/AFP/Getty Images