Israel, like any sovereign country in the world, has the right to determine who may enter its borders and is authorized to remove unwanted violators of its borders from its territory
The problem of infiltration from Africa to Israel has been on the public agenda for more than a decade, yet the main preoccupation and public debate on the subject is suffering from a considerable amount of misinformation.
The infiltration of Israel’s borders began as a trickle already at the end of the 1990s. The floodgates opened in 2007 and was halted only in 2012 when construction of the fence along the Egyptian border was completed.
According to publications of the Population and Immigration Authority, as of October 2017, there are approximately 38,000 registered infiltrators in Israel, not including children of infiltrators who were born in Israel. 99% of them are African citizens, of whom 72% are Eritreans and 20% are Sudanese.
While the Israeli government invested heavily in building the fence on the southern border, very little was done to solve the problem of the infiltrators who had already entered the country.
The government of Israel struggled for years with the High Court of Justice over ways to deal with the infiltrators. This included, inter alia, the disqualification of the Knesset’s primary legislation by the Supreme Court. The government then reached agreements with African countries who would absorb the infiltrators after they left Israel.
Following this decision, several petitions were published calling for the deportation to be prevented, with the main argument being that the deportation is immoral. In all the petitions, the parallel to the situation of the Jewish refugees during World War II also appears.
Before examining the moral aspect of the removal of the infiltrators, lets review the legal aspect.
An infiltrator is defined as anyone who enters the borders of the state illegally. For our purposes, we will refer only to infiltrators through the Egyptian border.
An infiltrator can apply for asylum in Israel and his status will then change to an asylum seeker. As long as he has not submitted such a request, he is officially defined as an infiltrator.
The Israeli authorities are supposed to discuss the asylum application and if it is accepted, the status of the refugee will change. This is only in accordance with the state’s decision, which grants the status of the refugee. The status of a refugee is not granted to any person without an official decision of the state. In any case, no person is entitled to such status under any other definition.
A refugee is defined in Article I of the 1951 Convention and Protocol relating to the Status of Refugees as a person who is an alien from his country and “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
However, the Convention does not establish procedures for regulating the status of refugee and leaves this for the determination of the signatory states.
In other words, according to the Convention, the State of Israel alone has the power to determine the legal status of asylum seekers, and who among asylum seekers meets the definition of a refugee.
In any case, it is clear by definition that those who emigrate for economic reasons – as severe as they may be – are not entitled to refugee status. This is true as well for those who emigrate due to deprivation of liberty suffered by all citizens of their country, such as forced military service.
Moreover, according to international law, the Refugee Convention does not impose on the signatory countries the absorption of refugees, and the most important principle is the prohibition against expelling them to the state from which they fled.
It is therefore important to note that the vast majority of infiltrators from Africa to Israel are migrant workers and not refugees.
Dr. Moshe Tardman of the University of Haifa, who participated in the questioning of the infiltrators by the Ministry of the Interior, stated in 2009 unequivocally that only a small minority of the infiltrators are entitled to the status of refugee.
Attorney Ofra Klinger, now the Prisons Authority Commissioner, determined that the composition of the infiltrator population, which is mainly composed of young men without families, indicates that this is a labor migration and not an escape for the purpose of saving lives.
In addition, despite the fact that the asylum application process in Israel is simple and accessible and almost all the infiltrators have been in Israel for more than five years, about 70% of them have not bothered to apply for asylum. Thus, not only do they not meet the definition of refugees, they are not even considered asylum seekers.
Of the approximately 14,000 asylum applications submitted by Eritreans and Sudanese by July 2017, more than 6,000 requests were examined, of which only 10 were granted refugee status. Over 7,000 asylum requests are still pending.
72% of the infiltrators who reside in Israel are Eritrean citizens, to whom European countries used to grant refugee status automatically if they claimed to have left Eritrea illegally.
However, in December 2016, the European Union’s official research body EASO, issued a report stating that those who left Eritrea illegally were not in danger of being penalized or liable to serve in the military after paying a 2% tax on their income.
In June 2017, the European Court of Human Rights ruled that an Eritrean citizen who had defected from the army could be deported back to his country because his returning would not endanger him.
About three months later, the Swiss Federal Court ruled that there was no danger of deportation back to Eritrea of an asylum seeker who had deserted her military service in Eritrea.
The Supreme Court of Israel, which weighed the issue for a long time, ruled in August 2017, in an expanded panel of five judges, that the state has the authority to remove infiltrators who are not refugees to their countries of origin or to third countries.
All of the above indicates that there is no legal problem in deporting infiltrators who are not refugees back to their country, and even more so that there is no legal problem in transferring them to a third country.
Moral injustice to the citizens of Israel
Now that we have clarified that we are dealing with the expulsion of migrant workers rather than the expulsion of refugees, we can address the moral question. In discussing the question of the morality of an act, we must consider which rights collide and which act will cause the least damage to the fewest people.
The accepted point of departure for almost all the theoretical approaches of political philosophy (except for the approach that advocates open borders) is that a nation state has the right to restrict immigration to its territory in order to preserve its unique culture.
The Supreme Court of Israel also agreed with the argument that each state has the authority and the right to determine which foreigners may enter its territory and which may reside within its borders, and has the authority and the right to remove foreigners who are not wanted by it or are staying there illegally.
This is even more true in the State of Israel, where most of the country’s citizens are interested in preserving the unique characteristics of the state as a Jewish state, while such migration can pose a demographic threat to the Jewish majority in Israel.
Israeli citizens have the right to choose the nature of government in Israel and to define as they see fit, how to preserve their culture. To this end, they also have the moral right to limit external influences such as the uncontrolled migration of infiltrators from different cultures.
And what is the moral argument against the expulsion of the infiltrators?
Given that they are not refugees and are not in danger if they are expelled, the only argument is that we should be compassionate and allow them to enjoy the economic and social benefits of living in Israel.
In other words, this is not a basic right, and in fact, is not a right at all. The State of Israel has assisted many infiltrators so far in allowing them to work within its borders and to achieve a high economic well-being relative to their countries of origin, and any such assistance whether continued or not is a grace extended and not a duty.
Therefore, leaving the infiltrators in Israel against the wishes of the citizens of the state – as reflected in the Knesset elections and in public opinion polls – is a great moral injustice to a large population, and will constitute a greater injustice than any injustice that is ostensibly caused to the deportees.
*(Translated from Mida.org.il Hebrew)
Dr. Rafael Mines is a lecturer in physics at Ariel University and a candidate for the 21st Knesset Zehut Party list
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