Israel, in violation of their basic rights. Until the law is amended, Israeli officials should not enforce provisions that violate international refugee standards.

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Measure Denies Asylum Seekers Protections of Refugee Convention
June 10, 2012

Israeli officials are not only adding rhetorical fuel to the xenophobic fire, but they now have a new law that punishes refugees in violation of international law. The law should be amended immediately, and not enforced until necessary revisions are made.

Bill Frelick, Refugee Program director

(Jerusalem) – The Israeli parliament should immediately repeal or amend a newly revised law that punishes asylum seekers for irregularly crossing into Israel, in violation of their basic rights, Human Rights Watch said today. Until the law is amended, Israeli officials should not enforce provisions that violate international refugee standards, Human Rights Watch said.

The new Prevention of Infiltration Law treats all irregular border-crossers as “infiltrators.” Against a backdrop of anti-immigrant speeches by senior Israel politicians and rising violence against sub-Saharan Africans in Tel Aviv, Jerusalem, and Eilat, Israeli Interior Minister Eli Yishai announced on June 3, 2012, that the ministry would begin enforcing the law.

“Israeli officials are not only adding rhetorical fuel to the xenophobic fire, but they now have a new law that punishes refugees in violation of international law,” said Bill Frelick, Refugee Program director at Human Rights Watch. “The law should be amended immediately, and not enforced until necessary revisions are made.”

On January 10 the Knesset amended the 1954 Prevention of Infiltration Law to define all irregular border-crossers as “infiltrators.” The law permits Israeli authorities to detain all irregular border-crossers, including asylum seekers and their children, for three years or more before their deportation. The law also allows officials to detain some people indefinitely, even if border control officials recognize they might face persecution if returned to their country.

In addition, the law gives the authorities the discretion to prosecute irregular border-crossers for unlawful entry, which it defines as the crime of “infiltration.” Punishing asylum seekers for unlawful entry is a violation of international refugee law.The law states that the detention of irregular border-crossers falls under an administrative procedure that does not guarantee them access to a lawyer to challenge their detention. Subjecting irregular border-crossers to potential indefinite detention without charge or access to legal representation would violate the prohibition against arbitrary detention under international human rights law, Human Rights Watch said.In recent weeks unidentified assailants have committed at least seven serious assaults throughout Israel, most against sub-Saharan Africans, including firebombs thrown into residences, an arson attack against a preschool, smashing of car windows, and the beating of a hotel employee. On June 4, unknown assailants set fire to an apartment in Jerusalem where seven Eritrean and Ethiopian migrants were living, according to police and Human Rights Watch interviews with the residents.

Israeli government officials have recently made statements against the African migrant population that have contributed to an anti-migrant atmosphere, Human Rights Watch said. On May 16, Interior Minister Eli Yishai told Israeli Army Radio that most African migrants were involved in criminal activities and should be jailed, the newspaper Haaretz reported.

At a demonstration on May 24 where Israeli residents called for the eviction of African asylum seekers from southern Tel Aviv, Miri Regev, a member of parliament, said that, “The Sudanese are a cancer in our body.” Another parliamentarian who addressed the demonstrators, Danny Danon, said that “an enemy state of infiltrators was established in Israel, and its capital is south Tel Aviv,” according to his Facebook page. Following these and other speeches, some demonstrators attacked African migrants and their property in the vicinity.

Prime Minister Benyamin Netanyahu denounced the violence, and Israeli police say they have made dozens of arrests related to anti-migrant attacks, according to news reports. Yishai also criticized the violence, but continued to make derogatory statements about migrants. On May 31, according to The Guardian, Yishai stated in an interview that “southern Tel Aviv has become the country's garbage can,” and claimed that “there are a lot of women in Tel Aviv who have been raped [by African migrants] but are afraid to complain so that they don’t get stigmatized as AIDS carriers.” On June 3, Yishai told the newspaper Maariv that, “Muslims that arrive here do not even believe this country belongs to us, to the white man,” and that he would use “all the tools to expel the foreigners, until not one infiltrator remains.”

As of June 6, the webpage of the Shas party, which Yishai leads, published an open letter to “the Sudanese” that described African migrants as “a society personifying a social time bomb of robbery, violence, sodomy, as well as assimilation alongside the destruction of the institute of marriage and the proper family unit.”

The government and the United Nations High Commissioner for Refugees (UNHCR) estimate that since 2005, around 60,000 Africans have entered Israel somewhere along the 240-kilometer border with Egypt after passing through the Sinai desert. Many of the migrants and asylum seekers fall victim to abusive human traffickers en route to Israel, particularly in the Sinai.

The only official border crossing is at Taba, at the southern-most tip of the Israeli-Egypt border. No border-crossers have claimed asylum at Taba, probably due to their fear of arrest by Egyptian authorities. Egyptian border police have refused to allow asylum seekers to travel to Israel and have fatally shot scores and arrested hundreds of people over the past few years.

Israel is building a fence along the border to prevent irregular crossings and expanding a detention facility for irregular border-crossers from 2,000 beds to around 5,400, according to Israeli refugee rights groups.

The Prevention of Infiltration Law was originally enacted in 1954 in response to cross-border attacks against Israel by armed groups from nearby countries. It limited the definition of “infiltrators” to Palestinians and nationals of Arab countries with which Israel was at war. The 1954 law could be applied only during a “State of Emergency,” which Israel has declared anew each year since 1948. As amended, the law will apply to all foreign nationals and its harsh penalties, including potential indefinite detention without access to legal counsel, will remain in effect even if Israel cancels the state of emergency.

The new law’s explanatory notes state that it is intended to penalize irregular border-crossers as “infiltrators”:

In recent years, the State of Israel has faced a drastic increase in the scope of infiltration across the border with Egypt … in 2010 alone 14,000 infiltrators were caught. The infiltrators into Israel come from various countries, including countries that are hostile to Israel. Currently, the infiltrators are placed in detention but they are released after a relatively short period of time …. In practice, this creates a situation in which there is an incentive for a wave of increasing infiltration.

Israel is a state party to the 1951 Refugee Convention and its 1967 Protocol. The Interior Ministry created a “Refugees and Infiltrators Unit” that took over responsibility for refugee status determination from the UNHCR in July 2009 on the basis of procedures created by the ministry, but Israel does not have specific legislation setting out the rights of asylum seekers and refugees.

Prolonged Detention and Lack of Legal Representation
Under the new law, if the defense minister or a designated official orders an irregular border-crosser’s deportation, the person is to be detained until that happens unless the person is granted a permit to reside in Israel. The law appears to guard against the forcible return of refugees to countries where they face persecution by stating that officials will not deport anyone until they have decided whether or not it is “possible to do so by taking into account the personal circumstances of the infiltrator and the destination country for his deportation.” However, the law does not require officials to release anyone believed to be at risk of persecution if deported.

The new law allows border officials and detention tribunals to release detainees “with a monetary guaranty, a bank guaranty, or another suitable guaranty” if their age or physical condition means detention would harm them, if there are other “special humanitarian grounds,” if release would “assist in the infiltrator’s deportation proceedings,” or on other grounds, including if they have been detained for three years.

However, the law obliges Israeli authorities to deny bail in several circumstances, including for people coming from a “state or region” where “activity is being carried out that is liable to endanger the security of the State of Israel or its citizens.” This applies even when there is no evidence that the detainee participated in such activity, and even if the person claims to have fled persecution or generalized violence in that state or region. In such cases, officials may keep border-crossers, including asylum seekers, in detention indefinitely.

The law states that Israel’s criminal procedure law, which protects rights such as a suspect’s right to a lawyer and to be presented before a court, does not apply to those detained under the administrative procedure. Instead, a special Detention Review Tribunal must review the detention decision within 14 days. The Tribunal can order the person held, in which case it must review the case at least every 60 days, or release the detainee on bail. Detainees do not have the right to a lawyer before the tribunal, but may appeal the tribunal’s decision to an administrative court.

The International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary detention. Article 9 of the ICCPR provides that anyone deprived of their liberty has the right to challenge their detention before a court. The right of access to effective legal counsel is widely considered to be an essential component of the right to liberty of person. For instance, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that, “A detained person shall be entitled to have the assistance of a legal counsel.”

Further, in laying out principles to protect detained immigrants, the United Nations Working Group on Arbitrary Detention has stated that any detention term must have a “maximum period” set by law and not be of “unlimited or of excessive length.”

Criminalization of Asylum Seekers Who Make Irregular Border Crossings
Under the new law, Israeli authorities have discretion to prosecute an individual for the crime of “infiltration,” even if the person has requested asylum. The crime is punishable with up to five years in prison, which may be increased to seven if the person previously attempted to enter Israel irregularly.

The Refugee Convention prohibits the imposition of penalties on refugees because of their illegal entry or presence, if they present themselves to the authorities without delay after entering the country and have good cause for their illegal entry or presence.

"The Anti-Infiltration Law punishes extremely vulnerable people for their attempts to flee to safety in Israel,” Frelick said. “Israel should not treat asylum seekers as criminals or subject them to harsh penalties.”

Significant numbers of asylum seekers and other migrants began crossing into Israel from Egypt via the Sinai in 2007. According to the US Department of State, Sudanese and Eritrean asylum seekers, who constituted approximately 85 percent of all asylum seekers in Israel in 2011, were not allowed access to asylum procedures but were given renewable “conditional release” documents that deferred deportation and had to be renewed every few months; some reported problems such as delays in renewing their documents. The Israeli government reported that 16,000 people entered irregularly in 2011, including Eritreans and Sudanese. According to UNHCR, in 2011 there were 4,603 new asylum applications and the government rejected 3,692 and granted refugee status to one family.