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New law targeting refugees employs logic of human traffickers

Israel’s “Infiltrators’ Law” strips the refugee and asylum seeker of liberty, dignity and the right to due process. In producing a form of life that is rendered unworthy of living, the government reformulates the strategies employed by notoriously violent refugee smugglers.

By Itamar Mann

The amendment to the Prevention of Infiltration Law, passed in the Knesset late Monday night, makes no differentiation between unauthorized migrants pending deportation and asylum seekers: they are all grouped together under the law’s ominous title, and a non-discriminatory policy of detention, potentially for life, is inflicted upon all of them. This far-reaching measure contradicts Israel’s international obligations under the 1951 Refugee Convention. The fact that law-makers rejected the Hadash party’s proposal to add a provision saying the law will be interpreted in accordance with the Convention suggests that they knew what they were doing.

As long as Israel observes this law, and does not deport asylum seekers to their countries of origin, it does not risk simply killing them. But its new policy is designed to prevent the migrants coming into Israel’s territory from anything beyond mere survival – what philosopher Hannah Arendt famously called bare life. The individual the new law envisions will be fed and housed, but will be stripped of any form liberty, dignity or due process of law.

Why is Israel putting its domestic legislation in direct conflict with international law? As Aeyal Gross recently explained, the law employs a logic of deterrence. In this context, Israel’s monopoly over violence is allied with existing violence of non-state actors well beyond Israel’s southern border.

As I have learned from several of the asylum seekers I have had the opportunity to speak with, people are now more hesitant than ever to take the perilous journey through the Sinai desert. As has been extensively reported by international human rights monitors such as Human Rights Watch, Bedouin smugglers often inflict hair-raising torture and rape on the migrants that choose to use their services. While these behaviors are intended to blackmail the migrants’ families left behind in countries like Eritrea, they also send a warning to other would-be asylum seekers and migrants traveling through the area. They thus serve Israel’s stated policy objectives, keeping vulnerable populations away from its borders.

Like in other places in the world, what we see at the border can therefore be described as an economics of pain. The Eritrean asylum seekers kept captive by the Bedouins in desert facilities pay good money – when they are tortured – for the chance to enter Israel. The new law should therefore be understood as an extension or version of the very same logic employed by the smugglers in Sinai. But as philosopher Paul Kahn has shown, pain is precisely what the liberal imagination cannot reduce to economic value or utility, and is therefore not simply deployed as a means toward policy ends. How, then, are the cruel strategies of smugglers in Sinai employed by the Israeli government?

The new Infiltrators’ Law reflects that there is still a residue of liberal imagination in the Israeli legislature. After all, it has not decided to codify a policy of killing asylum seekers, torturing or raping them. Thus, the deterrence employed by the smugglers is shifted, while maintaining the same underlying premise. A remaining available means is the option to take away liberty, and perhaps even dignity. In other words, the government thinks it can still produce a form of life that is not actively destroyed, but that is rendered unworthy of living.

Relying on Hannah Arendt, it is safe to assume that this strategy will quickly prove futile. In her classic essay “The Decline of the Nation-State and the End of the Rights of Man” (in The Origins of Totalitarianism), Arendt recounts the stories of refugees and stateless people in the interwar period. As she explains, these people would commonly and strategically commit petty crimes. This way, they could promise themselves prison sentences, preventing their deportation while ensuring food and board.

In other words, for some people, being reduced to bare life can provide a modicum of protection. Granted, this may not be true if detention sentences are truly perpetual, which the law provides for. There is, however, an easy way to ensure that infinite sentences are not realized: by making sure that more and more people cross the border into Israel. Along the fault lines of the Global North and the Global South, the experience in this context has proven consistently similar. At some point, detained migrants are set free, as capacity in detention facilities cannot be stretched any further.

The measures employed by smugglers, such as torture and rape, are partially effective in deterring asylum seekers only because, for a limited duration, they impose on their victims fates that are worse than death. But as long as in many countries in Africa growing food shortages and oppressive regimes produce living environments that fall short of bare life, the Israeli transformation of the economics of pain to a policy of reduction to bare life will not succeed.

If Israel continues neglecting its obligations under the Refugee Convention, it risks creating a humanitarian disaster, as more and more people who cross the border remain without status, housed in ever more populated detention facilities. If these conditions do not lead to a humanitarian disaster inside Israel’s borders, this will only be thanks to Israel’s present gatekeepers – the torturers and rapists who blackmail the world’s most vulnerable.

Itamar Mann is a human rights lawyer and a doctoral candidate at Yale Law School

For more on this issue:
Knesset passes controversial bill on prolonged detention of refugees without trial
Israel’s “war on work infiltrators”
Proposed law would indefinitely jail refugees seeking protection
WATCH: Refugees smuggled to Israel face organ theft in Sinai

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    1. louis frankenthaler

      Check out “From Persecution to Prison” By PHR-USA and Bellevue/NYU Program for Survivors of Torture: https://s3.amazonaws.com/PHR_Reports/persecution-to-prison-US-2003.pdf

      In a compelling report, “From Persecution to Prison The Health Consequences of Detention for Asylum Seekers” http://physiciansforhumanrights.org/library/reports/from-persecution-to-prison.html by Physicians for Human Rights-USA and The Bellevue/NYU Programfor Survivors of Torture they state:

      “The practice of detaining asylum seekers in the US and other nations has greatly concerned health professionals and human rights advocates, in part because of the potential detrimental effects of detention on the mental health of asylum seekers. Many asylum seekers have suffered trauma, such as torture, prior to immigration, which contributes to high rates of psychiatric morbidity in this population. Detention may exacerbate prior symptoms or even foster development of new problems.”

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    2. Aaron

      I think it was Walter Benjamin who first used the term “bare life,” in his “Critique of Violence.” Arendt presumably took the term from that essay, as have others such as Giorgio Agamben.

      Reply to Comment
    3. Ron

      Australia has beaten Israel to it Mandatory detention is the bipartisan policy of compulsory detention of people arriving on Australia’s shores by boat and seeking asylum. It restricts courts from intervening to release such people.

      In 1992, Labor immigration minster Gerry Hand, with bipartisan support, introduced mandatory detention laws when 438 Vietnamese, Cambodian and Chinese ‘boat people’ arrived on Australia’s shores between November 1989 and January 1992. The measure required detention of certain ‘designated persons’ and prevented any judicial review of detention by specifically providing that ‘a Court is not to order the release from custody of a designated person’ but there was a 273-day time limit on detention. Later, in 1994 these restrictions were enforced on all people who either arrived without a visa or who were in Australia on an expired or cancelled visa. The 1994 legislation removed the 273-day time limit and specified that unlawful non-citizens could only be released on the grant of a visa or deportation from Australia People could only be released from detention on the grant of a visa, removal or deportation from Australia

      Reply to Comment