Refugees’ Rights Forum Letter to MKs: Infiltration

4 June 2008
Attn: MK / Minister

Dear Sir/Mme,

Re: Bill on Infiltration Prevention – 2008

We call on you to vote against this bill because it is one of the harshest and most dangerous bills presented to the Knesset in recent years.

The bill intends to extremely aggravate the state’s attitude toward individuals who enter Israel without a permit – whether they are refugees, seekers of asylum, labor immigrants, or others – without conducting legal proceedings and while ignoring the circumstances that brought them here. If endorsed, the bill would violate international laws, the principles of Israel’s constitutional law, and the society’s fundamental duty to humanely treat people whose only sin is an attempt to find safe haven for themselves and their children.

It should be noted that most of the people who will be caught in the bill’s net are refugees from Sudan or Eritrea – two countries to which no one can be deported at this stage; a fact that even the Israeli authorities have acknowledged – whose infiltration attempt have no security background.

The Bill is wrong because:
· It collectively views of these people as “security threats” while failing to examine the real level of threat they personally and individually pose, and totally ignoring the real facts of the reality;
· It allows placing these people under lengthy and arbitrary administrative detention, without proper judicial review and due process;
· It allows for the hasty deportation of individuals without offering them enough time to state their cases and examine their claim to refugee-status;
· It introduces discriminatory punitive instructions whereby graver punishments would be handed down on individuals from certain countries, and for that reason only. Thus, an “infiltrator” from Sudan (from which many refugees arrive, as we all know) shall be sentenced to 7 years in prison, while “infiltrators” from Liberia or the Ivory Coast shall be sent to “only” 5 years in prison;
· It allows detaining children for unspecified periods, without examining the principle of the child’s welfare;
· It allows wrongfully employing administrative measures to take graver steps against individuals, which conflicts with the principle by which people should not be punished unless they had been proven guilty in due legal process.

As it currently stands, the Israel Entry Law already offers the authorities a wide variety of tools to handle “infiltrators” and persons who stay in Israel without a visa (“illegal aliens”). Israel may already detain them ahead of their deportation or keep them in detention for as long as there is fear they might pose some threat. The instructions of the Israeli Entry Law – 1952 are already far-reaching and restrict basic rights, so there is no reason to exacerbate them any further.

The following appendix examining the reasons for this bill was attached to the letter:

According to the bill’s explanatory notes, the state wishes to aggravate the arrangements concerning “infiltrators”, as distinguished from other illegal aliens who may have entered Israel legally, assuming that their infiltration is “security-related” (as elaborated in the explanation to Chapter 15 of the bill). The bill authors, however, realized that the vast majority of individuals who would be detained, deported, or punished by the power of this bill, if it is passed, do not pose a “security risk,” and even explained that “after the circumstances of their infiltration were examined, it was found that most of the individuals who infiltrated to Israel did so with no security background” (p. 548 of the bill).

In this respect, the bill’s explanatory notes include multiple contradictions. However, on top of the weak factual ground for the state’s assumption that “whoever infiltrates across the state’s legal boundaries does so with an intention to cause harm,” administrative means, particularly administrative detentions, should not be employed as a form of punishment. In view of the fact that the Israeli Entry Law already provides the state with the administrative tools required for handling security threats from individual illegal aliens, explicitly stating that persons who pose such a threat should not be released from detention, it appears that the suggested “aggravation” is clearly meant to serve punitive and deterrent purposes, which are totally out of place in an administrative procedure taken without proving a person’s specific guilt.

Below is a concise review of some of the bill’s main problems

Ignoring Reality – Asylum and Labor Seekers
As noted before, almost all of the individuals to whom the bill will apply are political asylum seekers or labor immigrants who pose no security threat whatsoever. The bill offers an option of transferring them to a detention “track,” as outlined in the Israel Entry Law, but it does not make such a transfer binding, nor does it name the circumstances under which such a move is to be made. Thus, these draconian instructions, which are supposedly meant to deal with security risks, will apply as a rule and by default to persons who fled from persecution or genocide, or to individuals whose arrival in Israel is not at all associated with security risks.

A Discriminating Punitive Instruction
The bill instructs that heavier punishments shall be imposed on illegal aliens according to their country of origin and whether it had been defined as hostile. Thus, a Sudanese refugee will be handed down a strict punishment for entering Israel without a permit only because he hails from Sudan. One of the basic principles in any criminal code, however, is that punishment is based on a person’s deeds, not his status, which he often cannot choose. In the case before us, the state wishes to inflict stricter punishments on individuals based only on their country of origin, not their deeds. This severely impairs on the principles of equality and individual punishment. In fact, this clause allows the authorities to punish a person based only on the assumption that he did the things he did under aggravated circumstances, but without proving that beyond any doubt as the criminal code requires, even if that person proves that his illegal arrival in Israel was in no way associated with a security threat.

Detention and Deportation without Due Process
According to the bill, a deportation or detention order shall be issued against “infiltrators” without offering them an opportunity to present their case before the authority that issued the order. Practically, they may only plead with the soldier or police officer who arrests them. This severely impairs on the duty to let all persons present their case, particularly when their liberty is about to be severely harmed.

In addition, the bill intends to legally anchor the forbidden practice of Hot Return, which means the immediate expulsion of persons, while offering them no opportunity to file for asylum. This practice means that refugees may be sent back to places where they might face persecution, torture, or life-threatening conditions before their arguments to that effect are even examined. Though the bill’s explanatory notes offer some lip-service statement about the duty not to deport a person whose life might be in danger, it does not provide the basic apparatuses required to make sure that a threatened refugee is not deported. While the hasty Hot Return practice makes the deportation of refugees even more probable, even the regular deportation procedure that this bill proposes does not specify an apparatuses to ensure that they are not deported.

Furthermore, the bill allows the authorities to hold a person in detention for 14 days without judicial review. While it should be noted that the Israel Entry Law contains a similar instruction, the state attorney instructed the state to shorten this period to only 4 days, realizing it is a problematic issue. We must additionally point out that the High Court of Justice has already established that keeping a person under detention for 4 days without judicial review is unconstitutional.

Court Appointment Procedure
The Detention Review Court is supposed to be an independent body, just like any other judicial instance, that reviews detention-related issues. The bill, however, says that it should be appointed “according to the defense minister’s suggestion” and for a limited period that can be extended. This makes the court dependent on the defense establishment, which is a side in its legal proceedings. This may be likened to a situation in which the state attorney appoints the Supreme Court judges for a given period and may choose to extend the term of service for certain judges.

Arbitrary Detention, Substantively Too
The causes for releasing a person according to this bill are significantly more restrictive than those mentioned in the Israel Entry Law, and unjustifiably so. This is explained, as noted before, by the pretext of “the security nature of the infiltration,” but even the bill acknowledges that most of the “infiltrators” pose no security risk and, in any event, the existing Israel Entry Law already stipulates that detainees who might pose such as threat must not be released from custody.
Contrary to the Israel Entry Law, this bill states that a person shall not be released from custody at all if the Shin Bet had issued an opinion stating that activities that threaten Israel’s security take place in his country of origin. According to this, all the Sudanese refugees shall be held in custody for years only because the Shin Bet issued an opinion according to which there are Al-Qaeda cells in Sudan (and, it is worth noting, there are Al-Qaeda cells in London and Paris too). Once again, this clause means that persons can be held under detention for lengthy periods due to no fault of their own.

An Unreasonable Accessory Felony
The bill states that the punishment of a person who helped another “infiltrate” or “facilitated another’s infiltration to or illegal stay in Israel” shall be equal to the punishment of the original offender. This is an extreme and unjustified deviation from the general penal code, according to which the punishment of an accessory to a crime should be half, at the most, of the punishment for the actual crime. Furthermore, the accessory crime itself is not defined in this bill and is, thus, too broad. For example, will the various aid organizations or numerous concerned citizens, who provided asylum seekers with food and shelter to keep them from starving in the street, be considered accessories to illegal aliens?

An Unjustified Reservation of the Duty to Keep Detainees Under Conditions that Do Not Harm Their Health or Dignity
The bill wishes to impose special restrictions on the duty to observe the “infiltrators'” detention conditions, denying rights accorded to all detainees for reasons of “the investigation’s best interests,” for example (Chapter 14(d)). This is inconceivable. If the “infiltrators” are under a “security investigation,” the authorities must follow the rules of detention as part of the criminal proceeding. The administrative framework of detention ahead of deportation must not contain arrangements designed to allow this kind of investigation.

Detention of Children
Presently, more than 100 children are already under administrative detention without a time limit and held in tents in the Qeziot Prison. Intending to allegedly deal with “security risks,” this bill will only make their situation worse. The bill offers no apparatuses for dealing with minors, fails to establish that the welfare of the child may be cause for his release, fails to involve social-welfare officers in the detention process, and practically leaves the children subject to the arbitrary draconian detention orders as specified in the bill.
The issues listed above are only some of the serious and grave harms that this bill wishes to anchor in a law. We urge you to vote against it and to take steps to make sure that the State of Israel upholds its basic duty to treat even aliens humanely and with dignity.

We hereby ask you against to oppose the bill and take steps to prevent the promotion of its legislation process so as to ensure that basic human rights are protected.

Att. Yonathan Berman
Att. Lila Margalit

Background Information on the Bill on Infiltration Prevention – 2008

The Infiltration Prevention Act was introduced in 1954 as an emergency instruction that was issued as part of the young State of Israel’s efforts to prevent Palestinian infiltrators from entering its lands. Since that law was part of the state’s emergency rules, it was supposed to expire once the state of emergency is called off (Clause 34), but because the state of emergency is legally still in effect, the law remains valid. Thus, whenever a person enters the territory of the State of Israel without a legal permit, the authorities may choose to either detain him by the power of the Infiltration Prevention Act, for an unlimited period, and without any judicial review; or detain him by the power of the Israel Entry Act – 1952, which was amended in 2001 to include several clauses to protect the rights of detainees. These amendments accord detainees the rights to have a hearing before detention, to judicial review, to be released under given circumstances, to be held separately from criminal inmates, and more. The Infiltration Prevention Act, however, has not been amended since 1954 and offers no such protection of the right to liberty and dignity when persons are detained by its power.

Over the years, the Israeli authorities rarely employed the Infiltration Prevention Act to detain people who entered Israel not for security reasons, but it was enacted time and again against people who entered Israel without a visa.

In early 2006, the number of Sudanese asylum seekers who arrived in Israel rose, and at the same time, the Detention Review Court started releasing them to alternative locations after they spent a year in pointless detention. Attempting to prevent them from being released, the authorities started placing the Sudanese asylum seekers under detention by the power of the Infiltration Prevention Act, claiming that they are citizens of an enemy state and pose a threat to the state’s security.

After four petitions were filed with the High Court of Justice in April 2006 by the Hotline for Migrant Workers Association and the Refugees Rights Program of the Tel Aviv University, and after the court established that the state must enact a judicial review of the detention of Sudanese asylum seekers, one of the Detention Review Court judges was appointed as “special advisor to the defense minister” and ordered to individually examine the cases of detainees and recommend that the military authorities release them, or not. Though this apparatus was flawed to begin with, the advisor endorsed the stands of the human rights organizations and determined that in the absence of a deportation option and due to lack of proof that they pose a threat, the Sudanese asylum seekers must be released from custody. His recommendation was accepted and hundreds of asylum seekers were released to detention alternatives such as kibbutzim, moshavim, and the city of Eilat. Later, all of their detention restrictions were nullified.

Responding to these petitions, the state stopped using the infiltration prevention apparatus in August 2007, and presently most of the asylum seekers held under detention have been there by the power of the Israel Entry Law. At the same time, the Infiltration Prevention Act was still being wrongfully employed during the first days after asylum seekers were detained so as to delay the timing of the semi-judicial review of their detention.

The Bill on Prevention Infiltrations (2008) ignores the experience gained with persons arriving across the Egyptian border in recent years, and tries to reverse the situation. The fact that the government changed its policy in 2007 practically acknowledges that the Sudanese nationals are no longer viewed as dangerous. The State Comptroller’s Report that was published on 20 May 2008 criticizes the prime minister and the defense minister for failing to cancel the view of Sudanese asylum seekers as dangerous on time, which kept many of them in detention without judicial review and without applying other arrangements that could allow then to be released on bail.

The bill’s explanatory notes show that the state wishes to aggravate the current arrangements due to the “security nature” of this phenomenon, but it ignores the fact that the Israel Entry Law (1952) already provides all the necessary tools for dealing with security threats that might be posed by individual illegal aliens, explicitly stating that such persons must not be released from custody. We may only assume that this draconian bill is merely meant to serve as a punitive measure so as to deter other asylum seekers from arriving in the State of Israel.

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Categories: Anti-Democratic Initiatives, Citizenship and Residency, Refugees and Asylum-Seekers

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