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Israel's newest national project: Ridding the country of 'foreigners'

The distortions in Israel’s asylum system ensure a refugee recognition rate of zero. Not only does this place asylum seekers at risk, but it exposes what appears to be a concerted effort to overhaul the system so as to deport as many people as possible.

In an article written a decade and a half ago, Dr. Sandy Kedar described the manner in the 1950s in which the courts participated in the national project to take over land held by Palestinians. This transpired through a series of rulings that altered the laws pertaining to the statute of limitations on acquisitions, as well as other related general procedures. That national project was a resounding success, and it seems that the authorities today are advancing another national project – removing “foreigners” from Israel by completely amending basic legal principles (or “adapting” them for foreigners) to the point of silently overhauling the system.

A consistent analysis of administrative and judicial measures intended to carry out the national project (as well as the identification of such a project) is complicated. To gain a clear understanding one must review the past, as Kedar does, and there are many complexities that impede doing so in real time. However, administrative measures and verdicts in recent years justify, at the very least, considering whether we may be at the height of such a project.

One of the challenges in recognizing such projects is finding the intersection between processes of totalization and individualization techniques. It is easy to identify the totalization proceedings within the emerging project. They include the establishment of an enormous detention camp – the largest in the world – for asylum seekers and other migrants, as well as the amendment to the Prevention of Infiltration Law that allows administrative detention for an unlimited amount of time. Another process of totalization was the establishment, in 2009, of the Israeli mechanism for reviewing asylum requests, the purpose of which is the extensive rejection of asylum requests. Since the mechanism’s inception, the Interior Ministry has only recognized the members of one family as refugees, out of 10,000 requests that it reviewed and subsequently rejected. A report by the Knesset Center for Research and Information recently determined, correctly, that Israel has the lowest rate of refugee recognition in the western world. As is evident in the United Nations High Commissioner for Refugees Report, the refugee recognition rate in other countries stands at 10-40%, which in absolute numbers amounts to between hundreds and thousands of refugees per year.

The overlap between totalization processes and individualization techniques is always elusive. Refugee recognition rates in Israel compared to other countries are proof of the system’s failure, but when examining individual cases it is always easy to identify the distinction in each one, why it is different, why it is slated for rejection, why it has no chance, etc. As previously demonstrated, Supreme Court decisions on postponing deportations until the conclusion of legal proceedings are cemeteries for asylum procedures, and decisions on this matter are completely detached from significant refugee law.

In the framework of the national project, let’s review the case of Ivory Coast nationals who claimed in the past that they would be persecuted in their country of origin because they had protested against the ruling Ivorian Popular Front party (FPI), and were identified with the opposition Rally of the Republicans party (RDR). This claim had been rejected in the past, but they stayed in Israel in light of the “collective protection” granted until recently to Ivory Coast citizens. A new government was put in place in the Ivory Coast, and the Ivorians in question in Israel claimed to shift their allegiance in the meantime and joined other Ivory Coast citizens in the FPI party. As they did so, the FPI was ousted from power and became an opposition party. At present, the Ivorians claim that their lives are at risk due to the shift in their loyalties and the new government.

We don’t have enough information to determine whether their claim is credible and if they meet the criteria of the Convention Relating to the Status of Refugees. We don’t have enough information on what is taking place in the Ivory Coast and we don’t have sufficient information to determine whether they will be persecuted if they return. We do know one thing – the asylum request was rejected outright in the second round, and they were not interviewed.

District Court Judge Arnon Darel rejected the appeal against the decision. He noted that there were doubts regarding the possibility of recognizing an individual as a refugee sur place, meaning as a refugee as a result of actions taken while in a host country after leaving the country of origin and that either way, in order to be recognized, “the applicant’s honesty and good faith, in both words and actions, in the country in which he or she is requesting asylum are required.” This is a legal position that is not mentioned in the Convention Relating to the Status of Refugees and was rejected in courts in Britain, the United States, Canada, Australia and Ireland, as per guidance provided by the United Nations High Commissioner for Refugees.

The District Court accepted the Interior Ministry’s position, according to which not interviewing the asylum seekers was justified, because the asylum request was based on collective issues. According to the court, “Although this is an asylum request that claims to be individual, in practice it is a collective request or a joint request for a group that includes all members of the FPI party who are in Israel and are active thorough the party’s branch… This is not a matter, therefore, of personal, unique grounds, but rather of collective or joint grounds. The respondent’s position – that in this case interviews, in order to explain his or her request for party membership, will not be needed for each of the applicants – is foregone.”

This statement demonstrates the double obstacle facing asylum seekers in Israel and one of the major distortions in the country’s asylum system, which result in a system of zero recognized refugees. In accordance with the  Convention Relating to the Status of Refugees, any asylum claim must be collective, as the persecution must be based on race, religion, nationality, membership of a particular social group or political opinion, all of which apply to a collective. When an individual in Israel claims to be persecuted on these, collective, grounds, the Interior Ministry’s response is: “You didn’t prove individual persecution.” When an individual proves individual persecution, the Interior Ministry’s response is: “The convention requires persecution that applies to a collective, and you are being persecuted for individual reasons, and therefore you do not meet the criteria of the convention.” Winning is impossible.

In an appeal filed to the Supreme Court, Justice Daphne Barak Erez ruled that the deportation of a family should not be postponed until a verdict is handed down on the appeal. A similar decision was taken on an appeal on the same matter. The fact that no hearing was conducted prior to the rejection of the second request did not change the result. As previously stated, while an interview was conducted several years ago in order to review the family members’ initial claim of persecution, as the new claim is based on circumstances that didn’t exist at the time, it is unclear how the court can state that the family was given a chance to present its claims.

In deciding that the chances of the family’s appeal were low, Justice Barak Erez determined that, “The claim regarding the danger entailed in membership of the FPI party was not sufficiently supported, and was general; this was the case even though questions on the applicants’ link to this party were not even asked.” That is the purpose of the asylum interview. The asylum interview is the process through which the Interior Ministry is supposed to examine the factual claims of an asylum seeker, to check their credibility, grant him or her the opportunity to respond to the Interior Ministry’s doubts on the nature of the danger that members of the group that they belong to face, and to check whether the asylum seeker’s individual circumstances will result in their persecution, based on the collective they belong to. A general decision, that members of a specific party are not subject to persecution without holding a hearing on the matter removes any procedural obligations in the asylum process and converts refugee law into an empty vessel. Which is exactly what the Interior Ministry wants.

It is interesting to note that in both cases, Justice Barak Erez complied with the request to place a gag order on the names of those involved. They made the request due to the danger they claim to face. Based on the result, one should be pleased that a gag order was placed on the names because, as stated, the Interior Ministry and court proceedings do not really annul the fear of persecution. But given the overall decision, it is hard to find any internal logic with the gag order. In Justice Barak Erez’s decisions, she concludes that the chances of one appeal are “far from promising” and the chances of the second appeal are “very problematic.” In her opinion, the chances of the appeals are so low that they impact “the alleged concern for the safety of the applicants when they return to their country,” and that she is certain that it is fairly safe to deport them to their country of origin prior to a hearing on their appeal and a final verdict on their claims is handed down. Why, if there is no doubt regarding the safety of the asylum seekers, must a gag order be placed on their names, thereby infringing on the nature of the public hearing? If there is no question regarding their safety in their country of origin, why not uphold the public hearing principle? Or is there perhaps a doubt in the court’s heart that something could happen to them in their country of origin?

This post was translated by Orna Dickman.

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  • COMMENTS

    1. David

      Thank you for translating this Orna.

      Reply to Comment
    2. An appeal automatically stays irreversible action; you cannot appeal something otherwise foregone. In starkest relief, one does not allow an appeal for someone on death row to proceed to execution until the appeal is concluded. In the present case, appeal must, to be an appeal, stop action preventing future court order; deportation, removing the petitioner, obviously does exactly that. What is effectively happening here is that case law is avoided by removing the petitioner before decisions can be reached. There is no real jurisprudence here at all. The gag order cited, in outcome, prevents independent determination of the facts behind the peition; that is, the gag order hides the Court itself, much as in a military court under issues of “security.” As you say, if the appeal is “unlikely” on the merits, a gag order is superfluous. The Court has abandoned the logic of jurisprudence entirely. Not the first time this is happened in the history of justice.

      The Israeli High Court has decided to deal in group identities (consider the Citizenship Law Case). But the groups must be recognized by the courts, and “illegal resident refugees” cannot file for group status in Israeli law, for they have no standing until approved as legally resident. If you assert group standing as primary for consideration, individual interviews are irrelevant; an individual cannot instance a “group,” the latter somehow discerned through the State or courts.

      The Ivory Coast case you detail sounds contrived–fleeing the Cosast because of another party, then switching to the formally oppressing party when it is dislodged from government. Individual hearings in these cases might well lead to plausible denial of protected residency. But something more is going on here, I conjecture: increasingly, in several areas, the State of Israel, and now its courts, see only groups, not individuals. We have seen where this leads in other history.

      Reply to Comment
    3. Matthew

      This sounds like the Australian system to me..although there are differences, some foundations for such treatment of asylum seekers remain disturbingly similar.

      Reply to Comment

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