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Seeking asylum in the Promised Land


Developed countries around the world are trying to deter asylum seekers from accessing protection under international refugee law.

The United States returns Cubans seeking refuge by boat and Central American children travelling by land. The European Union’s border agency Frontex conducts pushback operations on the high seas while Italy detains asylum seekers in Lampedusa. Australia’s Operation Sovereign Borders policy includes push backs, mandatory detention and offshore processing in Nauru and Papua New Guinea.

Israel is no exception. A spike in asylum seekers from Eritrea and Sudan arriving across the Sinai Desert in recent years has given rise to Israeli deterrence measures, including detention and possibly involuntary return. The 65,000 African asylum seekers, who entered Israel between 2006 and 2013 have been labelled ‘infiltrators’ posing an existential threat to the Israeli state by the government. 

And yet Israel is a state with refugeehood in its roots, from the time of the Exodus story when the Israelites were persecuted in Egypt and delivered to freedom, with the instruction that they were to welcome strangers. Indeed Israeli refugee advocates have encouraged a change of policy on the basis of Jewish exile in Egypt as recorded in the Torah. The 1951 Refugee Convention, the cornerstone of international refugee law, was adopted primarily to provide for the protection of Jewish refugees throughout Europe following the Second World War. Israel took part in the drafting of the Convention and became a signatory in 1954.

The surge in asylum seeker numbers poses significant policy challenges to Jerusalem. On the one hand, as a Jewish state Israel provides protection and indeed citizenship to Jews and anyone of Jewish descent seeking it. On the other hand, Israel is a western-style democracy with the rule of law and international obligations to abide by – obligations that are being violated with respect to African asylum seekers.

Demographics are important to Israel. As a Jewish state, Israel is sensitive to the balance between Jews and non-Jews entering the country. Jewish immigration is seen to strengthen national identity and conversely, non-Jewish migrants to dilute it. Notwithstanding, the 2012 claim by Binyamin Netanyahu that around 60,000 non-Jewish asylum seekers 'threatens the social fabric of society, our national security and our national identity' seems far fetched. 

Israeli asylum policy since 2007 has been characterised by deterrence not respect for refugees. In 2012, a five-metre high steel fence was built along much of the 240-kilometre Israel-Egypt border to ‘prevent unauthorised infiltration.’ Asylum seekers arriving at the border fence were refused entry and left to sit in the desert. Multiple amendments to the Anti-Infiltration Law have provided for the detention in much the same way Australia detains asylum seekers. In December 2013, such an amendment provided for the indefinite detention of asylum seekers without charge in the Holot ‘residency’ centre located in the desert from which residents are unable to leave. 

Perhaps the most serious charge of violating of international refugee law levelled at Israel is that of refoulement. This duty requires states not to return ‘in any manner whatsoever’ a person who faces a real risk of persecution under the Refugee Convention. The principle of non-refoulement is fundamental to international refugee law, included in a range of other human rights treaties, and is broadly accepted to amount to customary international law. 

From 2006, Israel conducted ‘hot returns’ to Egypt of asylum seekers picked up within hours of crossing the border. Since abandoned, the policy may have violated the non-refoulement principle had Egypt returned those refugees to their country of origin—known as chain refoulement—or persecuted them itself. 

Today Israel does not directly refoul African asylum seekers, instead encouraging ‘voluntary’ return to Sudan and Eritrea through the threat of indefinite detention, a policy position that reminds us of Australia’s use of offshore detention. In 2013, the United Nations High Commission for Refugees (UNHCR) said, ‘agreement to return to Eritrea under a jail ultimatum cannot be considered voluntary by any criterion.’ Human Rights Watch recently reported that Israel had not recognised any Sudanese asylum seekers as refugees, despite some coming from Darfur.

In another parallel with Australian policy, the Israeli judiciary has proven a ballast for asylum seeker rights. In a recent decision, the Supreme Court ordered the closure of the Holot residency centre and invalidated the use of detention as a measure to pressure return. 

In many ways these deterrence measures are a familiar story. Today 86 per cent of the world’s refugees reside in the developing world. Developed states like Israel and Australia are implementing sophisticated and techniques to prevent access to asylum and avoid protection obligations after arrival. In response, people-smuggling networks are also becoming more adept at circumventing border controls and disruption activities. This dynamic is likely to continue.

Nevertheless, can asylum politics in Israel be argued to be a special case? The state was founded as a haven for Jews after the Holocaust and yet, in the most serious cases, victims of the genocide in Darfur may have been denied protection. 

In 2007, a group of Sudanese refugees visited Yad Vashem holocaust museum in Jerusalem. Chairman Avner Shalev said, ‘As Jews, who have the memory of the Shoah (Holocaust) embedded within us, we cannot stand by as refugees from genocide in Darfur are knocking on our doors.’ Israeli President Shimon Peres said in January 2014, ‘we remember what it means to be refugees and strangers. 

Against the backdrop of the Jewish experience of exile, persecution and refugeehood and the history of the Israeli state itself, should we expect Israel to show greater commitment to international refugee law and refugee rights?

Nik Tan

Lawyer Nikolas Feith Tan, who has experience at DFAT and the Centre for Multicultural Youth, is an editor at Asylum Insight.

Image: "Crossing of the Red Sea", Nicholas Poussin.




Topic tags: Nik Tan, Israel, asylum seekers, refugees, Torah, Exodus, Moses, refugee law



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Existing comments

Israel is not a jewish state, it is not even a state and most of the population are no more refugees than I am.

Marilyn | 02 December 2014  

During the American Civil War, a woman sought to encourage Abraham Lincoln by saying, 'God is on our side'. Lincoln replied, 'The question rather is 'Are we on God's Side?' Most problems arise when we make short-sighted divisions of Us and Them that God does not recognise. With Israel it is racial. With Christians and Muslims it is creedal. But God sees us all as his children. The basic answer to the problems arising from refugees fleeing persecution is to resolve the selfish divisive 'Us and Them' mentality and learn to cooperate for the common good.- to be on God's side.

Robert Liddy | 03 December 2014  

Perhaps Israel is simply faithful to its history, heritage and religion and doesn't wish to see it destroyed as has happened in England , much of Europe. parts of America and, sadly, in Australia. Could I suggest, Marilyn, that you might benefit from the odd history lesson.

john frawley | 03 December 2014  

Let me sail, let me sail, let the Orinoco flow. Let me reach, let me beach on the shores of Tripoli. Let me sail, let me sail, let me crash upon your shore. Let me reach, let me beach far beyond the Yellow Sea. Israel is no exception" https://www.youtube.com/watch?v=n2MwLAWdoAU

AO | 03 December 2014  

Thank you for the article. Knowing the history of Israel, it should be an example to other countries. Receiving refugees and strangers brings a blessing to a country than destroying its culture and heritage. I assume that is how they preserve their true heritage and culture. I believe the God that they believe is a refuge for the poor and a refuge for the needy in their distress. It would be wise for Israel to follow the footsteps of their God.

Senait | 03 December 2014  

Could you clarify something for me Nik. Lebanon and Jordan have been overrun by hundreds of thousands of refugees escaping violence in Syria and Iraq. How many of these refugees has Israel taken? The shameful answer, I suspect, is "none".

Kent Kingston | 05 December 2014  

An Arabic Christmas Carol. A voice from the unheard voices of the Christians of the Middle East who have been witnessing to faith in the Saviour since His incarnation in their midst.

AO | 08 December 2014  

Israel is always first to help with international disasters. But Nik, it is surrounded by people who want to destroy it - they were the original 'Jew haters' who inspired Hitler. Would you allow haters of your family into your home to live there and do what they pleased? I think you would say no.

Skye | 09 December 2014  

This discussion will go on forever and we will have the same "aren't they a selfish lot" responses? The "aren't they a selfish lot of countries" argument? 0.1% of refugees will receive a humanitarian visa to live in one of over 20 countries offering humanitarian resettlement worldwide. 3% of the world's population is on the move at any one time. What discussion/action are we having about creating camps where people feel they can live lives full of hope, safety and meaning? Where communities can rebuild and survive relatively intact? Let's double Australia's intake; quadruple Swedens; push Europe to revolt and double their load. It would not change the figure one iota. We are in the midst of an unprecedented humanitarian crisis and no one is offering any answers to. We have a failure of world leadership on this issue. Resettlement is just not a sensible or politically workable answer; 99% don't seek it.
As a young man, travelling the world in the 70s, I discovered the Palestinians. I remember befriending a doctor in London. He had a key around his neck; the key to his home in Palestine. I introduced him to someone once as a refugee; he corrected me. "I am a man dispossessed." His words. Some irony here...there are many refugees, waiting for many years, just across the borders of Israel. Now the Africans show up. Should they join the queue? What queue?

John | 17 January 2015