The anticipated elections in Israel, called for by Benjamin Netanyahu on the 2nd of December 2014 and voted by the Knesset on the 8th of that month, should take place on the 17th of March 2015. They stem from two years of governmental instability and twenty months of a fragile coalition. This dissolution, widely criticised after its announcement although this has been common practice since the 1980s, could open up the debates to certain sensitive and controversial subjects. One of these is the integration of the Jewish character of the State in the Israeli Constitution, as it is, amongst other topics, the opposition of Tzipi Livni and Yair Lapid – respectively former ministers of Justice and Finances – to this reform that provoked the end of the coalition government led by Benjamin Netanyahu. Surely, the idea of this constitutional change is intrinsically linked to the Palestinian issue. Nevertheless, it is also to be analysed in view of the situation of the so-called « Infiltrators » 1The term “Infiltrators” (מסתננים, Mistanenim in Hebrew) stems from an “anti-infiltration” law of 1954 which then targeted the neighbouring populations of Israel. Its recent amendments have broadened the category to East African migrants. Since then, the term has been widely used by the Israeli right., these sub-Saharan migrants (nowadays mainly Sudanese and Eritreans) who arrived in Israel in the early 2000s and have progressively come to the centre of debates within Israeli domestic politics2Lisa Anteby-Yemini, « Migrations africaines et nouveaux enjeux de la frontière israélo-égyptienne », Cultures & Conflits, n°72, Winter 2008..
Indeed, immigration in Israel has been historical but highly selective. The country was built on waves of Jewish immigration in the last century, whilst having very limited non-Jewish net migration until the 1990s. An estimated 200 000 domestic or agricultural workers have entered Israel between 1990 and 2000, but this population remains politically marginal3Sarah S. Willen, « L’hyperpolitique du ‘‘Plus jamais ça !’’ : demandeurs d’asile soudanais, turbulence gouvernementale et politiques de contrôle des réfugiés en Israël », Cultures & Conflits, n°71, Fall 2008.. Non-Jewish immigration thus did not have political impacts before the 2000s as the foreigners did not seek to integrate the nation. Until then, the main question was centred on the threats to the Jewish identity of the State faced with an expanding Arab Muslim and Christian Palestinian population.
However, the presence of 55 000 African migrants seeking asylum has placed the country in a major contradiction. Indeed, the very construction of the Hebrew State is legitimised by the existence of a right to asylum, yet very rarely applied to anyone who was not Jewish. This article thus seeks to question the emergence of this issue and its influence on the political stage, as well as the progressive construction of a juridical system that negates, to a certain category of individuals, a right that paradoxically legitimates the presence of its own population.
From Mostapha Mahmud to the Egyptian-Israeli border: The Origins of a Migratory Movement
Since 2006, the number of illegal entries into Israel from the African continent has increased exponentially. According to the Interior Ministry, 36 000 Eritreans and 13 300 Sudanese are in Israel, with a majority of them arriving between 2006 and 20134Population Immigration and Border Authority (PIBA), « Foreign Workers Statistics », n°5/2013, 2013.. The pace of these migratory movements must not overshadow their moderate scale when put in perspective with the 8 million inhabitants (0.625% of the total population). 2010 and 2011 were the years with the highest number of entries, with respectively 15 000 and 17 000 – thus between 300 to 350 entries a week. Since 2013 and the completion of the construction of a separation barrier between Egypt and Israel, only a hundred entries were counted536 migrants were arrested at the border and 59 in the country. See PIBA, 2013, op cit..
Table 1: Number of migrant entries per year in Israel, 2006-2013. Source: Author, based on the PIBA, 2013. Source: Author, based on the PIBA, 2013
The Sudanese settled in Egypt opened the “Israeli path” in 2006. The asylum seekers, mostly South Sudanese and Darfuris, were settled in Egypt – some for over a decade – and sought to obtain refugee status from the United Nations High Commissioner for Refugees (UNHCR) in order to benefit from its assistance and resettlement programs. The growing numbers of Sudanese refugees in the early 2000s (linked to the conflicts in Darfur, South Sudan, the Blue Nile and South Kordofan) were then confronted to a lack of means hindering the actions of the international organisation. The consequences were obvious: a slowdown in the processing of asylum demands, quasi-total freezing of the resettlement quotas for the Sudanese6Certain Western embassies indicate each year and/or exceptionally a number of refugees that their country is ready to accept on its territory. In average, the United States, the first nation for resettlement, accept 1 000 refugees from Egypt each year. This number may vary. The Syrian crisis, for example, has led to a temporary increase in the number of yearly resettlements.. The latter felt excluded from a selective asylum policy and abandoned by the actors of a governance system, which, according to them, had little concern for the protection of Sudanese.
The situation was crystallised in June 2004 when the UNHCR tried to manage the increasing number of demands by paradoxically suspending all attributions of refugee statuses to the Sudanese. The argument was the following: in the probable case where the peace talks taking place in 2004 between the SPLM (Sudan People’s Liberation Movement – the main armed group in South Sudan) and Khartoum were successful, the Sudanese would no longer be considered as refugees and would be encouraged to return. Thus there was no longer an incentive to use financial and human resources that were already mobilised for the then full-blown Iraqi crisis. However, this decision demonstrated a superficial and simplistic analysis of a country such as Sudan: Darfur was then going through an escalation of violence with dramatic consequences, notably in terms of population displacement7See for example Human Rights Watch, « Soudan – Le Darfour en feu : Atrocités dans l’Est du Soudan », April 2004, Vol 16, N.4 (A).; and it seemed delusive to bet so promptly on a durable peace between the North and the South after five decades of conflict. The Sudanese did not comprehend their suspension of asylum, whether they had fled the recent events or had been waiting for a status and resettlement for years. A first protest was organised in 2004 in front of the UNHCR office in the Mohandiseen neighbourhood in Cairo, and thirty or so Sudanese were arrested for throwing stones at the organisation’s building.
In 2005, a small group of Sudanese, who had benefited from training in refugee rights at the American University of Cairo, organised a peaceful gathering in front of the UNHCR office to assert their rights. On the 29th of September, dozens, and soon hundreds, of Sudanese occupied the Mostapha Mahmoud square facing the UNHCR, brought together by their common interests regardless of community divisions. For three months they defended their rights to be recognised as refugees and be resettled. The UNHCR considered the protesters as economic migrants thus de facto outside its mandate and did not get involved in the management of this crisis. Late October, the organisation announced that it feared a violent reaction from the authorities as a consequence of the determination and persistence of the protesters8Wikileaks, US Embassy in Cairo, “Sudanese demonstrations force UNHCR closure”, October 10, 2005. The UNHCR attempted mediation mid December with the representatives of the protest but the initiative was a failure9See for example, AUC-FMRS, “A tragedy of failures and false expectations – Report on the Events Surrounding the Three¬month Sit¬in and Forced Removal of Sudanese Refugees in Cairo, September–December 2005”, 2005.. On 30 December 2005, comforted by the UNHCR’s silence, the Egyptian police forces opened fire on the crowd, thus emptying the occupied plaza. Around fifty deaths and 800 arrests were counted. The event, which has had a profound impact on the Sudanese community, was called Mostapha Mahmud, from the name of the square where the sit-in took place.
The departures for Israel that began in 2006 can thus be analysed as a consequence of the freezing of the refugee status attribution and resettlements for the Sudanese, and of the Mostapha Mahmoud drama. Rapidly, the increasing number of entries in Israel became a migratory pull-factor in itself, despite the growing security risks involved in crossing the Sinai10See on this point HRW, “Sinai Perils. Risks to Migrants, Refugees, and Asylum Seekers in Egypt and Israel”, 2008; HRW, “I wanted to lie down and die. Trafficking and Torture of Eritreans in Sudan and Egypt “, 2014.. Thus, the origins of migrants and the migratory paths diversified118% of the “infiltrators” are neither Sudanese nor Eritrean. Some come from Cameroun, Chad, Ivory Coast, Somalia. See PIBA, 2013.: people no longer left from Cairo but more and more directly from Kassala, in Eastern Sudan, near the Ethiopian and Eritrean borders. In 2009, the number of Eritreans became larger than the number of Sudanese in Israel.
From Beer Shiva to the Levinski Park: the Creation of a Public Problem
Those who arrived at the beginning of migratory movements in Israel generated by their presence an embryonic asylum policy as they then were in a juridical and institutional void. The UNHCR was present and theoretically responsible for the asylum seekers and the refugees but the low number of asylum demands had limited its role. The country had neither a legislative framework nor an institution in charge of the reception and management of these foreign populations.
In 2002, the Interior Ministry adopted a first document on internal regulations12State of Israel Ministry of Interior Population Immigration and Border Authority, Procedure for Handling Political Asylum Seekers in Israel, updated in 2011. but improvisation seemed rather to be the strategy of humanitarian and security initiatives. The Tsahal military forces that intercepted these newcomers brought them to the Saharonim prison, where they were often detained for a few months before being freed, or at the improvised Ktziot camp. The overpopulation in these detention centres forced the adoption of other solutions. Some received a bus ticket for the Central train station of Tel Aviv, without any clear justification. Others were not detained and ended up in Beer Shiva, Eilat or Ashdod.
All of them sought to attain Tel Aviv in order to apply for asylum at the UNHCR, which evaluated the cases and transferred the selected ones to an Israeli inter-ministerial committee. A large majority obtained a temporary protection visa from the Interior Ministry. These permits protected them against refoulement by authorising their stay for humanitarian reasons. It did not, yet, recognise them as refugees.
In 2008, the government created the Population Immigration and Border Authority (PIBA), which became the institution in charge of implementing the 2002 directives on asylum. In 2009, the Interior Ministry also took back from the UNHCR its prerogatives on matters of status attribution and became the only institution responsible for the assessment of asylum seeker cases. For six months, the UNHCR trained the officers of the newly created Unit for Refugees and Infiltrators – and which name already announced a security-based rhetoric. In 2011, the internal directives on asylum were updated, and detailed the policies on refugee status attribution13PIBA, 2011, op. cit.. However, from 2009 to 2012, none of the demands were assessed under the motive that the seekers were not refugees. Two arguments were set forth: on the one hand they were refugees in Egypt and thus only came to Israel as economic migrants because of the lack of opportunities in their asylum country; on the other hand, the mandatory military service invoked by Eritreans to seek asylum was not considered by the government as a persecution factor.
In 2012, after a two-year migration peak, the government decided to build the barrier between Israel and Egypt that radically stopped the entries through the Sinai upon its completion. In addition, the government endeavoured to legally solve the internal problem of the 50 000 migrants who were still present. It updated a former anti-infiltration law of 1954 that criminalised the entry of citizens from neighbouring nations of Israel, considered as “Infiltrators”. Although in 2006 the Israeli population was opposed to an amendment of this law previously considered by the government, in 2012 the climate had deeply changed and amending this law no longer represented a political challenge. Indeed, the Knesset adopted the first amendment to the anti-infiltration law that criminalised all illegal migrants and made them liable to three years of imprisonment without trial or any other form of judgement. In other words, all those who arrived from 2012 onwards have not obtained temporary protection and have been incarcerated. The citizens from « enemy »14Sudan and Israel consider each other as enemy countries and have no diplomatic relationships. countries, including the Sudanese, have been condemned to life imprisonment. The creation of a retention centre facing the Saharonim prison with a capacity of 3 000 inmates was decided.
This amendment pushed the country into the premises of a social crisis. For several years already, the issue of “Infiltrators” had become a political stake. The situation in the south of Tel Aviv in particular revealed political antagonisms that turned into an intra-Israeli social conflict. This neighbourhood, located around the Central station and Levinsky park, had seen the increasing arrival of Africans who progressively settled in one street, then another, opened restaurants and hair salons, found jobs in hospitality businesses. However, on the one hand, a part of the population, relatively poor, mainly Mizharis15The term Mizrahi designates Sefaradi Jews in Hebrew., refused the increasingly durable presence and settlement of African populations. They refused the allocation of rights to foreign populations when they themselves were often confronted to socio-economic difficulties and were discriminated against within the Israeli society. At several occasions, violent acts were perpetrated against the refugees in Tel Aviv. On the other hand, the left-wing Israeli activists, frequently Ashkenazi, organised in Israeli NGOs, actively supported the refugees’ cause. These organisations supported them and helped them in their administrative journey and in their everyday lives. But they also attempted to influence the political debate on the issue and the recent legislative dispositions. At the request of and in cooperation with refugee groups, the Hotline for refugees and migrants, an NGO particularly involved in supporting asylum seekers, regularly submitted petitions to the Supreme Court to counter the State’s legislative reforms.
The 2013 legislative elections definitively ingrained the issue of “Infiltrators” in the political field and in the discourse of certain parties, notably the winning Likud. The security turn in the management of these populations had begun. While the Supreme Court had declared in September 2013 the unconstitutionality of the first amendment to the infiltration law, the government responded in December with a more severe second amendment. Amongst others, it established the dispatching conditions to the new retention centre of Holot, which concerned the newly arrived, but also those who had previously benefited from a temporary protection. While going to the PIBA to renew their temporary visas, certain migrants received an “invitation to go to Holot”. In addition, the government implemented an incentive policy to encourage return with a compensation bonus for whoever would accept to return home (from 1 500 dollars it rapidly increased to 3 000 dollars per person). For the Sudanese who accepted this sum, a return to Sudan was not an option because of the absence of diplomatic relationships between the two countries. They were then sent to Egypt, Kenya or Uganda, in spite of the international prescription of non-refoulement – keystone of the 1951 Refugee Convention – and of the major risks at stake. The establishment of diplomatic relationships between Israel and South Sudan after the latter’s independence in 2011 nevertheless enabled the return of South Sudanese populations to Juba.
From Levinsky Park to Nitzana Forest: the perpetuation of a problem
This turn in Israeli politics sparked important protest movements. As soon as December 2013, a movement called “March for Freedom” was organised by refugees whom, from Saharonim and Holot, decided to symbolically march all the way to Jerusalem to protest against their living conditions.
In January 2014, a general strike was launched and widely followed for three days. The refugees thus paralysed a part of the hospitality sector to the point where certain employers joined them to protest against the arrest and expulsion threats. At this stage, the support of Israeli NGOs was determining for the media coverage of their mobilization, although all the activists insisted upon the movement stemming spontaneously from the refugee communities. The Levinsky Park near the Central station was the main gathering place but the procession also marched to certain embassies. Later on, the events although less frequently continued, but the movement lost momentum and suffered from demobilization around March 2014. Many of the refugees who went on strike lost their jobs. Their living conditions became harder; in addition to the permanent threat of receiving the “invitation to go to Holot” when renewing their administrative documents.
The increasing number of people sent to the retention centre can explain the March for Freedom of June 2014, directed this time towards the Egyptian border. If their will to return to Egypt was not clear, the symbol was strong. A number of them explained that their life in Egypt, although hard and at times miserable, was free16Interviews carried out in Holot, March and July 2014.. Locked up in this centre, they considered that they had nothing left to lose. Established in a small park two hundred metres away from the border called Nitzana, the protesters were violently kicked out by the Tsahal officers after a forty-eight hour sit-in. The images recalled the tragic ending of Mostapha Mahmud, as did the arrests and transfers to Saharonim, which followed in parallel. There was however no death counted.
Although the marches continued, it was mainly through juridical recourses that important successes were met. Indeed, following a second petition submitted by the Hotline for refugees and migrants, the Supreme Court declared once more that the amendment to the anti-filtration law – which authorised the arbitrary detention of migrants in Holot – was illegal. The verdict, which was announced in September 2014, requested that the government close the retention centre within a three months deadline. In a hurry to find a successor to this amendment to prevent the closure of the centre, the government submitted two new bills between September and November 2014; the Knesset rejected both.
It was in this context that Netanyahu decided in early December 2014 to dissolve the Assembly and organise anticipated elections, two years after those that had brought him to power. However, the African migrant issue proves not unrelated to the debate on the integration of the Jewish character of the Hebrew State in the Constitution. Which role will the migrant issue take in the political campaign to come? How will the Likud, the exiting party thoroughly implied in the fight against “Infiltrators” with personalities such as Miri Regev or Gideon Sa’ar, former Interior minister, tackle this issue? What will this reveal on the durable impact of this issue on the national political landscape? The tiresome search for a consensus on a third amendment project to the infiltration law at the Knesset which was finally adopted on 8 December 2014, underlines the political interest for the passing of a new law before the dissolution of the Assembly. The bills in the new amendment (more restrictive than the former ones and notably introducing sanctions against the employers of the “Infiltrators”) question the way Israel seeks to solve this challenge whilst respecting its international commitments on asylum and human rights matters. Will the “infiltration” rhetoric remain? For now it is justifying a restrictive immigration policy over an asylum policy. But it is unlikely that Israel manage to send back part of 50 000 people to their home country or to any other location, and to indefinitely lock up the rest of them. At the same time, the struggle organised by migrants and certain NGOs continues with a new petition submitted to the Supreme Court denouncing the living conditions at Holot. The issue of a certain form of integration is being drawn out as much as the need for a coherent and concerted policy to break from the current arbitrary practices.