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“Otherness” as the Underlying Principle in Israel's Asylum Regime

Published online by Cambridge University Press:  19 March 2012

Tally Kritzman-Amir

Abstract

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This Article aims to provide the first thorough description of the developing asylum system in the State of Israel. It argues that despite the inherent moral and doctrinal differences between asylum and immigration regimes, the Israeli asylum system is essentially an extension of Israel's immigration and citizenship regime, which excludes the non-Jewish refugees and frames the refugee as the “other;” with the Palestinians and other enemy nationals facing maximum exclusion. While this phenomenon is not uncommon in today's world, which suffers from “compassion fatigue,” diluted protection, and adherence to national self-interest, the Israeli example is exceptional for a number of reasons: 1) it came into being only decades after the rest of the democratic developed countries developed their asylum systems; 2) it is rooted in challenging—albeit not exceptional—geo-political conditions; and 3) it works against the background of a very unique immigration law.

Type
Articles
Information
Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 603 - 627
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

References

1 United Nations Convention Relating to the Status of Refugees, Aug. 1, 1951, 189 U.N.T.S. 150, [hereinafter the Refugee Convention].

2 For an overview of the Israeli asylum system in its formative stage, see Ben-Dor, Anat & Adut, Rami, Israel: a Safe Haven? Problems in the Treatment Offered by the State of Israel to Refugees and Asylum Seekers: Report and Position Paper (2003)Google Scholar.

3 According to recent statistical reports provided by the UNHCR, over 16,000 asylum seekers registered in Israel by the end of 2008. About 4,900 of these asylum seekers were Eritrean nationals, about 4,400 were Sudanese, and approximately 1,700 were originally from Ivory Coast. See email from Michal Alford to Adv. Anat Ben-Dor (Jan. 14, 2009) (on file with author).

4 See, e.g., Yiftachel, Oren, ‘Ethnocracy’. The Politics of Judaizing Israel/Palestine, 3 Constellatio 364 (2002)Google Scholar; Smooha, Sammy, Minority Status in an Ethnic Democracy: The Status of the Arab Minority in Israel, 13 Ethnic & Racial Stud. 389 (1999)CrossRefGoogle Scholar; Peled, Yoav, Ethnic Democracy and Legal Construction of citizenship: Arab Citizens of the Jewish State, 86 Am. Pol. Sci. Rev. 432 (1992)CrossRefGoogle Scholar.

5 Law of Return, 1950, S.H. 159; Bill and an Explanatory Note (no. 48), 1950, HH, 189; Nationality Law, 1952, S.H. 146; Draft Bill, (no. 93), 1951, H.H. 22.

6 On the migration for employment in Israel, see, e.g., Willen, Sarah S., Transnational Migration to Israel in Global Comparative Context (2007)Google Scholar.

7 See, e.g., the Nationality Law, supra note 5, art. 11.

8 Nationality and Entry into Israel (Temporary Order) Law, 5763-2003, Passed by the Knesset on July 31, 2003, see Nationality and Entry into Israel (Temporary Order) Law, 2003, S.H. 544. 2.

See also, HCJ 7052/03 Adalah—The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior [Feb. 14, 2006] (unpublished) reprinted in, Original petition to the High Court of Justice, Oxford Report on International Law in Domestic Courts (ILDC) 393 (IL 2006).

9 Refugee Convention, supra note 1, art. 1(D) specifies that

[t]his Convention shall not apply to persons who are at present receiving Erom organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

See also Kagan, Michael & Ben-Dor, Anat, Nowhere to Run: Gay Palestinian Asylum-Seekers in Israel (2008), available at http://www.law.tau.ac.il/Heb/_Uploads/dbsAttachedFiles/NowheretoRun.pdfGoogle Scholar; Tekkenberg, Lex, The Status of Palestinian Refugees in International Law (1998)CrossRefGoogle Scholar. Finally, see the recently published UN High Commissioner for Refugees, Revised Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees (October 2009), available at http://www.unhcr.org/refworld/docid/4add77d42.html.

10 Regulations Regarding the Treatment of Asylum Seekers in Israel, art. 6 (2001) (on file with author) [hereinafter the Regulations].

11 See Prevention of Infiltration (Offences and Jurisdiction) Law, 1954, S.H. 160; Bill and an Explanatory Note, (no. 161), 1953, H.H. 172. See also the Petition and State Response in HCJ 3208/06, 3270/06, 3271/06, & 3272/06 Anonymous Petitioners v. The Head of the Israeli Defence Forces Operations [May 8, 2006] (unpublished) (copies of the petition, court decisions, updates, and responses are on file with author). Informal judicial review does take place, as I explain below.

12 See, e.g., Penninx, Rinus, Immigrants and the Dynamics of Social Exclusion: Lessons for Anti-Discrimination Policies, in Dedication and Detachment: Essays in Honour of Hans Vermeulen 193 (Lindo, Flip, Onbekend, , van Niekerk, Mies, & Vermeulen, Hans eds., 2001)Google Scholar.

13 Bauman, Zygmund, Modernity and Ambivalence 58 (1991)Google Scholar.

14 Hall, Stuart, Introduction: Who Needs Identity?, in Questions of Cultural Identity 4–5 (Hall, Stuart & Du Gay, Paul eds., 1996)Google Scholar; Delanty, Gerard, Citizenship in a Global Age: Society, Culture, Politics 115 (2000)Google Scholar. This Article refers to the constitution of the “we-ness” only indirectly within its limited scope as the flip side of the coin of the formation of the “otherness.”

15 This dichotomy has been critiqued in the feminist critique of international law. See, e.g., Tickner, Ann, Gender in International Relations 64–65 (1992)Google Scholar; Sassen, Saskia, Is This the Way to Go?—Handling Immigration in a Global Era, 4 Stan. Agora 1 (2003)Google Scholar.

16 See, e.g., Penninx, supra note 12; Bauman, Zygmund, Modernity and the Holocaust 52 ff. (1989)Google Scholar.

17 Bauman, Zygmund, Postmodernity and its Discontent 17 (1997)Google Scholar.

18 Bauman, supra note 13, at 15.

19 See supra note 15; see also Lustick, Ian, Israel as a Non-Arab State: The Political Implications of Mass Immigration of Non-Jews, 53 Mid. E. J. 417 (1999)Google Scholar.

20 Law of Return, supra note 5, art. 1.

21 Published in the Offcial Gazette, No. 1 of the 5th of Iyar, 5708 (May 14, 1948), available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establis hment+of+State+of+Israel.htm.

22 See, e.g., the Basic Law: Human Dignity and Liberty, art. 1, S.H. 1391, according to which “[t]he purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”; Bill and an Explanatory Note (no. 2086), HH, 1992, 60, available at http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm.

23 On the connection between being an Israeli state and maintaining a Jewish majority in Israel, see the Interim Report of the Advisory Committee on Israel's Immigration Policy 3–6 (Feb. 7, 2006)Google Scholar [in Hebrew] (copy on file with author). This committee was appointed by the former minister of interior and headed by Prof. Amnon Rubinstein.

24 See e.g., the discussion following the second and third vote on the Law of Return in the Israeli Parliament, Aug. 27, 1952, 12 DK (1952) 3167.

25 See, e.g., AdmA 1644/05 Nikolay Frida v. The Ministry of Interior [June 29, 2005] (unpublished).

26 See supra note 23.

27 HCJ 72/62 Rufaizen v. The Minister of Interior [1962] IsrSC 16 2428Google Scholar; HCJ 56/68 Kendel v. The Minister of Interior [1968] IsrSC 23(2) 477Google Scholar.

28 Law of Return, supra note 5, arts. 4a & 4b.

29 Lustick, supra note 19, at 101.

30 See, e.g., Gans, Chaim, The Palestinian Right of Return and the Justice of Zionism, 5 Theoretical Inq. L. (2004), available at http://www.bepress.com/til/default/vol5/iss2//Google Scholar; Harel, Alon, Whose Home Is It? Reflections on the Palestinians ‘Interest in Return, 5 Theoretical Inq. L. (2004), available at http://www.bepress.com/til/default/vol5/iss2/Google Scholar.

31 See, e.g., Gans, Chaim, Nationalist Priorities and Restrictions in Immigration: The Case of Israel, 2 L. & Ethics Hum. Rts. (2008), available at http://www.bepress.com/cgi/viewcontent.cgi?article=1024&context=lehrGoogle Scholar.

32 Entry into Israel Law, 1952, S.H. 111; Bill and an Explanatory Note (no. 106), 1952, H.H., 134.

33 On the migration for employment in Israel, see, e.g. Willen, supra note 6.

34 Migrant workers are eligible for some—though not all—social security benefits. Children of migrant workers are eligible for partially state-sponsored health care (though they are excluded from the national health care system) and can attend the public school system.

35 On the structural exploitative scheme of employment of migrant workers, see HCJ 4542/02 Kav La'oved Association v. Israel [March 30, 2006] (unpublished); original petition to the High Court of Justice is translated in ILDC 382 (IL 2006).

36 Adalah v. The Minister of Interior, supra note 8.

37 Law of Return, supra note 5, arts. 2.

38 Id. arts. 3 & 3a.

39 The question of whether the Palestinians fled Israel voluntarily or whether they were forced to leave by the State of Israel has been well-debated by historians and falls beyond the scope of this paper. See generally Morris, Benny, The Birth of the Palestinian Refugee Problem, 1947-1949 (1989)Google Scholar.

40 Law of Return, supra note 5, art. 4a.

41 Israel is a party to the 1961 Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S. 175.

42 In AdmApp (Tel Aviv) 2887/05 Elkasayev v. The Minister of Interior Affairs [Jan. 29, 2007] (unpublished), the court ordered the Ministry of Interior to enact regulations on the process through which stateless persons can acquire citizenship in Israel.

43 On the courts' attempts to simplify and shorten the naturalization process for family members of citizens, see HCJ 3648/97 Stamka v. The Minister of Interior [1999] IsrSC 53(2) 728Google Scholar; Adm. App.4614/05 The Minister of Interior v. Oren [Mar. 16, 2006] (unpublished). See also Adm.Pet. 2790/04 Rozenberg v. The Minister of Interior [Dec. 29, 2004] (unpublished).

44 Adm.Pet. 530/07 The Association for Civil Rights in Israel v. The Ministry of Interior [Dec. 5, 2007] (unpublished).

45 See, e.g., The Procedure on Treatment of Partners of Israeli Citizens, Including Same-Sex Partners, Procedure (Feb. 5, 2009), available at http://www.moin.gov.il/Apps/PubWebSite/publications.nsf/All/9CD5C9CFC6C82B85422570AD00431263/$FILE/Publications.2.0009%20-10.8.09doc.pdf?OpenElement.

46 Nationality and Entry into Israel, supra note 8. The existence of such rare and exceptional circumstances is supposed to be considered by a committee. It remains unclear whether this committee does, in fact, convene and make such decisions.

47 Law of Return, supra note 5, art. 11.

48 See, e.g., HCJ 2934/07 Israel Law Center v. The Chair Person of the Knesset [Sept. 16, 2007] (unpublished).

49 Letter from Adv. Oded Feller, Association of Civil Rights in Israel, to the Legal Advisor of the Ministry of Interior 6 (Jan. 10, 2007) (on file with author). See also, e.g., HCJ 2271/98 Dunia Zad Ahmed Muhammad Abed Hathut v. The Minister of Interior [2001] IsrSC 51(1) 458Google Scholar. It should also be mentioned that while there were efforts to revoke status of Palestinians who rightfully gained their status, occasionally, citizenship is revoked to those who acquired it under false pretense. This is not done exclusively for Palestinians, but also for persons who claimed to be Jewish. See, e.g., HCJ 713/00 David Adishvili v. The Ministry of Interior [Mar. 19, 2001] (unpublished); HCJ 754/83 Christopher Mark Rankin v. The Minister of Interior [Nov. 16, 1984] (unpublished).

50 See, e.g., Adm.Pet. (Jerusalem) 384/07 Hatem Siaj v. The Minister of Interior [2008] (unpublished) (regarding the loss of residency of a person who left Israel to study abroad); Adm. Pet. (Jerusalem) 247/07 Omri v. The Minister of Interior [2007] (unpublished) (regarding the loss of residency of a person who left Israel to live with a spouse in his country of citizenship and wanted to regain his residency following their divorce).

51 It should be noted that the status of Palestinians residing in East Jerusalem is slightly different. However, this falls outside the scope of this discussion. See The Association of Civil Rights in Israel, The State of Human Rights in East Jerusalem: Facts and Figures (May 2009) available at http://www.acri.org.il/pdf/eastjer2009.pdf.

52 See supra note 15.

53 The Refugee Convention, supra note 1, at art. 1(A)(2).

54 Id. art. 33.

55 See, e.g., id. art. 4 (freedom of religion); arts. 13-15 (property rights); arts. 17-19 (employment rights); arts. 2-23 (welfare and education rights); etc.

56 This perception is often a bit unclear, since decisions to immigrate can often be categorized as difficult choices at best. On the distinction between coerced choices and difficult choices in immigration, see, e.g., Beran, Harry, What is the Basis for Political Authority?, 66 Monist 479, 497–98 (1983)CrossRefGoogle Scholar. Beran makes this distinction in a different context; namely, discussing whether an individual's choice to immigrate or to refrain from immigrating could and should be understood as an implied consent to the social contract. Similarly, David Hume commented that many do not have the choice to immigrate as they have been denied freedom of movement. He is also often quote saying, “Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day on small wages which he acquires?” See Hume, David, Of the Original Contract, in Hume's Moral and Political Philosophy 363–64 (Aiken, Henry David ed., 1948)Google Scholar. It should be noted that Hume made this remark in the context of a discussion about the duty to obey the law.

57 On the concept of necessity in immigration, see Nathwani, Niraj, Rethinking Refugee Law 27–28 (2003)Google Scholar. It should be noted that there are other immigrants who are in rehgee-like situations and whose immigration is a result of extreme necessity, that are currently not classified as refugees, such as victims of natural disasters, civil wars, general violence, etc. For the sake of simplicity, the Article only refers to refugees. For further elaboration on the limits of the boundaries of the category of refugees see Kritzman-Amir, Tally, Socio-Economic Refugees (2009) (unpublished PhD Dissertation, Tel Aviv University)Google Scholar (on file with the author).

58 Refugee Convention, supra note 1, arts. 1(A)(2) and 1(C), which refers to a person “who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.” This exception to the cessation of status was originally intended to apply to Holocaust refugees, but it was recently purposively interpreted by the United Nations High Commissioner for Refugees (UNHCR) to “cover cases where refugees, or their family members, have suffered atrocious forms of persecution and therefore cannot be expected to return to the country of origin or former habitual residence.” UNHCR Guidelines, International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention Relating to the Status of Refugees (the ‘Ceased Circumstances’ Clauses), (2003) 6 (ss. 20-21) (Feb. 10, 2003).

59 Hathaway, James C., The Law of Refugee Status 135 (1991)Google Scholar.

60 See, e.g., Buchanan, Holly, Escape from Darfur: Why Israel Needs to Adopt a Comprehensive Domestic Refugee Law, 11 Chap. L. Rev. 601, 611–12 (2008)Google Scholar.

61 Jewish refugees are treated by the Law of Return. See Law of Return, supra note 5.

62 A number of attempts to legislate the Refugee Rights Law failed during the last few years. These attempts were led by Knesset members Dov Hanin and Ofir Pinnes and included a partial and lacking protection of refugee rights. Due to the lack of willingness of other parliament members to support these bills, they were never enacted.

63 Regulations, supra note 10. It should be noted that although these norms have been referred to as regulations in the literature, they are, in fact, internal procedures—that is, of inferior normative power than regulations. This Article refers to them as regulations, despite the inaccuracy, for the sake of consistency. Under the current refugee regime, which was established under the administrative procedure in 2001 by an inter-governmental committee, Israel is not fully involved in the status determination process. Instead, since 2002, the initial screening of asylum applications is conducted by the UNHCR representative to Israel, who makes a recommendation on each case and delivers it to an inter-ministerial committee called the National Status Granting Body (NSGB). This committee, which includes representatives from the Ministries of Justice, Foreign Affairs, and Interior, in turn makes a recommendation to the Minister of Interior, who has the authority to grant the request and give status to the asylum seeker. This process lasts a few months—and in some cases, years—during which time the asylum seeker is given a letter from the UNHCR that gives her protection from removal and deportation and, in some cases, also permission to work. The prolonged RSD process was described in the latest State's Comptroller and Ombudsman's report a summary can be found at http://www.mevaker.gov.il (last visited Dec. 16, 2009) [in Hebrew]. While it is unclear why Israel allowed the UNHCR to play a dominant role in the RSD process, this could be a result of lack of expertise on the Israeli side. The above-mention status determination process has many procedural flaws. Notably, asylees do not have a right to be represented by an attorney before the UNHCR or the committee. In addition, the possibility to appeal a decision is very limited, because the reasons for rejecting an asylum request are either not given to asylees or are only briefly stated. And appeals are heard by the same persons in the UNHCR correspondent office who made the original decision. Finally, since it was never published, many asylum seekers don't know about the asylum procedure, Since July 2009, Israel started operating an RSD unit, which is supposed to gradually take over the responsibilities assumed by the UNHCR, but to date has done a relatively small number of RSD interviews. It is still too early to evaluate the operation of this unit.

64 This does not mean that the Refugee Convention does not have any legal meaning in Israel. The Regulations refer to the Refugee Convention. Due to a “conformity presumption, Israeli courts will always prefer to interpret legislation in a manner it conforms to the Refugee Convention, rather than interpreting it in a manner it contradicts the Refugee Convention.” On this presumption, see, e.g., CrA 6182/98 Shienbien v. The Government's Legal Council [1999] IsrSC 53(1) 625Google Scholar; HCJ 279/51 Amsterdam v. The Minister of Finance [1952] IsrSC 6 945Google Scholar; HCJ 279/51 [1952] IsrSC 6 945, 966 (1952)Google Scholar.

65 Up until February 2009, Israel has granted refugee status to about 170 asylum seekers. See Refugee Rights Seekers Forum, Asylum Seekers and Refugees in Israel (2009), available at http://www.acri.org.il/pdf/refugees0209.pdf [in Hebrew]. Others are considered to be in a refugee-like situation, and are not granted recognition. This policy has harsh implications on the day-to-day lives of these persons. It should be noted that the Refugee Convention remains vague and does not spell out a requirement for states to recognize of refugees as such.

66 See Regulations, supra note 10, art. 3(D) and the current Procedure on the Treatment of Asylum Seekers in Israel, and of Persons who were Recognized as Deserving of Asylum by the Minister of Interior, art. C(3), available at http://www.moin.gov.il/Apps/PubWebSite/publications.nsf/All/A5C1B2D4AD341823422570AD004311F4/$FILE/Publications.2.0012.pdf?OpenE1ement [in Hebrew] (last visited Dec. 16, 2009).

67 While this could potentially be a positive step that prevents discrimination, it also prevents affirmative action, such as the taking into consideration of the special trauma, hardship, and physical difficulties the refugees have gone through.

68 There are no legal barriers preventing the Minister of Interior from naturalizing a refugee, however, no minister has ever exercised the discretion to do so.

69 On the relationship between citizenship, refugee status, and rights see Arendt, Hannah. The Origins of Totalitarianism 292–93 (1973)Google Scholar.

70 Compare with the policy in the United States, defined in the Immigration and Nationality Act, arts. 209(b) and 316(a), 8 U.S.C. 1159 and 8 U.S.C. 1427, (determining naturalization of refugees to permanent residents and then to citizens in the United States); and with European Council Directive 2003/109/EC of Nov. 25, 2003 concerning the status of third-country nationals who are long-term residents.

71 The Refugee Convention includes specific “soft” duties of states to provide social and economic rights to refugees, but as mentioned, above, Israel refrains from recognizing most asylum seekers as refugees. The Refugee Convention does not specify the rights of asylum seekers as such. All asylum seekers in Israeli are eligible to receive emergency health care. Moreover, if they receive a work permit and are employed, they are entitled to private health insurance, which is paid for by their employers, and some social security benefits. Children of asylum seekers are eligible for discounted and partially state-sponsored private health insurance and are allowed to join the education system. Many asylum seekers are not granted a formal work permit, either until the completion of the initial status of their Refugee Status Determination or at all, and support themselves by seeking undocumented employment or by depending on charity. Recognized refugees receive the same rights as temporary residents, and as such are included in the national health insurance system and eligible for more social security benefits. It seems that the case of social and economic rights of asylum seekers and refugees reflects the general situation of social and economic rights in Israel, which are uncodified and, due to lack of consensus on their scope, not specifically included in Israel's basic rights. See also Arendt, supra note 69, at 292-93.

72 See Kritzman-Amir, Tally & Kemp, Adriana, Refugees and Asylum Seekers in Israel: Between the Administrative Procedure and the Civil Society, Mishpat Hevra Ve'tarbut 55 (2008) [in Hebrew]Google Scholar.

73 See Letter from the UNHCR office in Tel Aviv, Status and Protection of Asylum Seekers in Israel-Explanations and Updates, (Aug. 12, 2008) [in Hebrew] (on file with author).

74 See infra, section B.

75 There are at least four types of “protection papers,” each entailing a different scope of protection. For example, according to a fragile understanding with the Ministry of Labor and Industry, persons with one type of “protection paper” are employable. On this protection paper system and its disadvantages, see Letter from Adv. Yonatan Berman, Hotline for Migrant Workers, to Michael Bavli, Head of the UNHCR office in Jerusalem, Detention of Asylum Seekers who approached the UNHCR, (March 4, 2008) and Michael Bavli's response (March 6, 2008).

76 On chaos and otherness, see Bauman, supra note 13, at 15.

77 Interestingly, and perhaps surprisingly, Zygmund Bauman made a similar distinction with respect to Jews in Europe prior to the Holocaust. See supra note 16.

78 On group protection of Vietnamese, Southern Lebanese, and others, see Herzog, Ben, Zionist Humanism: The Glocality of the Debate over Refuge in Israel (2003) (unpublished Ph.D. dissertation, Tel Aviv University)Google Scholar (on file with author).

79 Temporary protection for Liberians was terminated in 2007. See Izenberg, Dan, Liberia Asks Israel to Let its Refugees Stay, Jerusalem Post, Feb. 27, 2007, available at http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1171894534035Google Scholar.

80 Temporary protection for Sierra Leonese was terminated in 2005. See Ina Friedman, Israel Preps Sierra Leone Refigees to Return Home, July 25,2005,JERUSALEM REPORT.

81 See Tally Kritzman, Paper presented to the Association for Israel Studies 23rd Annual Conference, Israel as an Immigrant Society: Between the Melting Pot and Multiculturalism: Israel as a State of Temporary Asylum (June 11-13,2007) (on file with author).

82 On the government decision to grant temporary protection, see Asylum Seekers and Refugees in Israel, available at http://www.acri.org.i1/Story.aspx?id=1878,[in Hebrew] (last visited Dec. 16, 2009).

83 The vast majority of the asylum seekers in Israel arrive from Sudan and Eritrea. Those arriving from Eritrea have escaped forced prescription, religious persecution, and other human rights violations. Those arriving from Sudan have escaped the difficult crisis, often referred to as genocide, in Darhr, the civil war in South Sudan, and tribal or religious persecution. Asylum seekers from both nationalities are likely to face persecution if returned to their country of origin. See United Kingdom: Home Office, Operational Guidance Note: Sudan, Nov. 2, 2009 (describing the situation in the Sudan), available at http://www.unhcr.org/refworld/docid/4adc1b972.html; see United Kingdom: Home Office, Country of Origin Information Report—Eritrea, Oct. 13, 2009 (describing on the situation in Eritrea) available at http://www.unhcr.org/refworld/docid/4adc1b972.html (see particularly Section 33 on the Treatment of Returned Asylum Seekers).

84 Fitzpatrick, Joan, Temporary Protection of Refugees: Elements of a Formalized Regime, 94 Am. J. Int'l L. 279 (2000)CrossRefGoogle Scholar. See also Pugliese, Joseph, The Incommensurability of Law to Justice: Refugees and Australia's Temporary Protection Visa, 16. L. & Lit. 285, 296–98 (2004)Google Scholar; Reynolds, Scott, European Council Directive 2001/55/EC: Toward a Common European Asylum System, 8 Colum. J. Em. L. 359, 360 (2002)Google Scholar; Hansen, Randall, Martin, Susan, Scheonholtz, Andrew, & Weil, Patrick, Report on the Workshop on Refugee and Asylum Policy in Practice in Europe and North America, 14 Geo. Immigration. L.J. 801, 808–09 (2000)Google Scholar.

85 Id. at 291 ff.

86 Refugee Convention, supra note 1, art. 1(C).

87 Fitzpatrick, supra note 84, at 300 ff.

88 Hughes, Everett C., Dilemmas and Contradictions of Status. 50 Am. J. Soc. 353 (1945)CrossRefGoogle Scholar.

89 See, e.g., Hundreds of Darfur Refugees Flock to Israel, Washington Post, July 13, 2007, available at http://www.washingtontimes.corn/news/2007/jul/13/hundreds-of-darfur-refugees-flock-to-isr-44735475Google Scholar (“Israeli municipalities such as Beersheba and Eilat are worried that the refugees might become their financial burden.”).

90 See, e.g., Sofer, Roni, Olmert: We Must Curb Infiltrations from Egypt, Mar. 23, 2008, available at http://www.ynetnews.com/articles/0,7340,L-3522476,00htmlGoogle Scholar (“‘This is tsunami that can only get worse,’ said Olmert. ‘We must do everything we can to stop it.’ Olmert was reportedly furious by the fact that the problem has yet to be curbed: ‘Israel has taken a tough stand with the Palestinian, stopping any of their citizens from entering Israel, and yet thousands have crossed over (to Israel) in a matter of months.’”).

91 Lyotard, Jean Francois, The Differend: Phrases in Dispute (1988)Google Scholar.

92 Id.

93 Asylum seekers are not detained if the detention centers are at their full occupancy or if they manage to evade the army border control forces. Typically, though, asylum seekers await border control soldiers and do not attempt to infiltrate without being noticed. On occasion, when detention facilities were full, asylum seekers are taken by the soldiers to one of the major cities in the south of Israel and left there. See Martins, Bruno Oliveira, Undocumented Migrants, Asylum Seekers and Refugees in Israel 13 (2009)Google Scholar.

94 See, e.g., Izenberg, Dan, 100 Refugee Kids Held in ‘Harsh Conditions,’ at Ketziot, Jerusalem Post, Jan. 8, 2008Google Scholar (covering a petition on detention conditions of asylum seekers), available at http://www.hotline.org.il/english/news/2008/JerusalemPost010808-new.htm.

95 See infra, section D.

96 Refugee Convention, supra note 1, at art. 31.

97 UNHCR Guidelines on Detention of Asylum Seekers (Feb. 1999)Google Scholar.

98 Martins, supra note 93.

99 HCJ 5616/09 African Refugee Development Center v. The Ministry of Interior [Aug. 26, 2009] (unpublished).

100 Some difficulties with obtaining refugee status were documented with regard to Egyptian asylum seekers, despite the fact that Israel and Egypt have a peace agreement.

101 On Iraqi asylum seekers in Israel see HCJ 4702/94 Al-Tai'il v. The Minister of the Interior [1995] IsrSC 49(3) 843Google Scholar.

102 “A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ‘sur place.’” UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 94 (1992)Google Scholar; Hathaway, supra note 59, at 41-42.

103 See Ben-Dor, Anat & Kagan, Michael, The Refugee from my Enemy is my Enemy: The Detention and Exclusion of Sudanese Refugees in Israel, Paper presented to the Minema Conference on Human Rights (Nov. 19, 2006)Google Scholar (copy on file with author).

104 UNHCR, Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees (October 2009).

105 For an analysis of Article 1D of the Refugee Convention, see Saideman, Lewis, Do Palestinian Refugees Have a Right of Return to Israel? An Examination of the Scope of and Limitations on the Right of Return, 44 Va. J. Int'l L. 829, 859 ff (2004)Google Scholar; see also Kagan & Ben-Dor, supra note 9; Tekkenberg, supra note 9.

106 Article 33(d) of the state's response to petitions Anonymous Petitioners v. The Head of the Israeli Defence Forces Operations, supra note 11.

107 Refugee Convention, supra note 1, art. 3.

108 Id. art. 1(F).

109 See Goldin, Sigal & Kemp, Adriana, Foreignness and Fertility: On the Bio-Politics of Migration for Employment, Body and Gender, in Racism in Israel (2008)Google Scholar; Lupton, Deborah, Risk and Otherness, in Risk 123 (1999)Google Scholar.

110 Schmitt, Carl, The Concept of the Political 19–35 (1976)Google Scholar.

111 See supra note 104.

112 See supra note 24.

113 On a number of occasions, Israel did, in fact, deport persons to Egypt, which later deported them to their countries of nationality. See Refugee Rights Forum 2008, IDF Keeps on Expelling Asylum Seekers to Egypt Despite Egypt's Declarations to the Media that they will be Deported to Their Homelands, available at http://www.hotline.org.il/english/news/2008/Hotline090308.htm. This policy is currently challenged in a petition that is pending before the Supreme Court in HCJ 7302/07 The Hotline for Migrant Workers v. The Minister of Defense.

114 This was mentioned by the honorary senior officer of the UNHCR, Mr. Michael Bavli, in his talk with the Refugee Rights Clinic, Mar. 20,2007.

115 Compare with Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (1998)Google Scholar.

116 See, e.g., IRIN, ISRAEL: Asylum-Seekers Detained, Harassed, Feb. 4, 2009, available at http://www.irinnews.org/Report.aspx?ReportId=82739.

117 See letter from the UNHCR office in Tel Aviv, supra note 73.

118 Id.

119 Entry into Israel Law, supra note 32.

120 Recently, the detention of enemy nationals is being regulated under the Entry into Israel Law after the first ten days of detention. See Anonymous Petitioners v. The Head of the Israeli Defence Forces Operations, supra note 11 (interim decision delivered by the Court) [Oct. 7, 2008].

121 See id. (petition) [submitted Apr. 2006] (copy on file with author).

122 See id. (Respondents' response to the petition) [June 18, 2008] (copy on file with author).

123 See Letter from the UNHCR office in Tel Aviv, supra note 73.

124 In this Article, the term “refugee law,” refers to the Refugee Convention, the 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 8791, several regional instruments, and other “soft law” norms that developed later, such as UNHCR handbook and guidelines, which are a semi-authoritative source of interpretation of the other refugee law norms.

125 Fullerton, Maryellen, The International and National Protection of Refugees, in Guide to International Human Rights Practice 245, 247 (Hannum, Hurst ed., 4th ed. 2004)Google Scholar.