The African refugee issue in Israel, like so many other controversial topics that affect the Israeli body-politic, leaves me internally conflicted. On one hand, I have been appalled by the Israeli government’s behavior toward this issue: the racist incitement by Israeli politicians like Miri Regev, and the attempts to alleviate the situation through cruel and capricious legal mechanisms like the “Infiltrator law.”

At the same time, I want to excuse Israel’s behavior on this issue, when I see Israel unfairly pilloried in the international media over this issue. Given the far worse and illegal treatment that African refugees receive from many of Israel’s neighbors, the focus on the issue in Israel cannot simply be a product of the international community’s profound sympathy for African refugees, but instead more than likely another excuse to criticize Israel and its people. However, despite this double standard, Israel should not be deterred from finding a legal and humane solution to this problem. Israel is not like its neighbors; it is a liberal, Western democracy, with a stated, firm commitment to international law. Solving this problem should not only be a means to help the Israelis who are affected by this issue (as well as of course the African refugees themselves), it is also a test of what kind of country Israel intends on being in the 21st century.

First, there should be some clarity regarding the Israel’s basic commitments to the law, which often gets lost in the political bickering between the right and the left. From the beginning, Israel has been at the forefront of international refugee law, likely in part due to the displaced persons status of so many Holocaust survivors in Europe following World War II. Israel was an original signatory to the 1951 UN Refugee Convention, and its 1967 protocol.¹ The 1951 Convention² forms the legal basis for how states are required to treat refugees. Among its notable provisions is Article 14, which states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Also, the Convention says that governments are forbidden from penalizing refugees from entering a country illegally (Article 31, (1)), and that all refugees have rights to access their host country’s “courts, to primary education, to work, and the provision for documentation, including a refugee travel document in passport form.” Most importantly of all, the Convention forbids, without exception, the deporting of refugees back to their home country (Article 33(1)), known in international law as the principle of non-refoulement.

Therefore, based on Israel’s own legal obligations, African refugees cannot be punished for entering the country illegally as it is immaterial how refugees enter a country of refuge according to the 1951 Convention; they must also be given the right to go through a formal process to apply for asylum; and most importantly, deporting the African refugees back to their country of origin or dumping back over the border in Egypt (known as a “hot return”) would be a grave violation of international law.

Despite arguments to the contrary, the vast majority of African “infiltrators,” can be considered refugees deserving of asylum under the law, or at the least are allowed the right to apply for asylum upon entering Israel. The vast majority of the 54,000 African migrants in Israel are from Eritrea and Sudan (66% and 25%, respectively). Worldwide, according to 2011 UN statistics, 74 percent of Eritrean asylum seekers, and 71.44 percent of Sudanese asylum seekers have been given refugee status in other countries.³ Thus, it would be safe to assume that a substantial majority of the Africans in Israel would qualify as legitimate refugees afforded protection under the 1951 Convention, and not economic migrants as has been commonly repeated in the Israeli media.

A question I see over and again is why the refugees make Israel a primary destination point, as opposed to its neighbors. The answer is fairly obvious: Israel is not surprisingly the first country that fleeing African refugees are able to reach that could be considered a legitimate safe haven. Egypt has an absolutely abysmal record in its treatment of Sudanese refugees, who are “reported to be socially excluded, unable to access rights and services, and frequently harassed.”⁴ In contrast to the peaceful protest conducted by African migrants last week, a similar protest in Cairo in 2005 by Sudanese refugees led to police opening fire on the protestors, killing 28 people. Egypt, Libya, and Sudan are also known to have forcefully repatriated Eritrean refugees back to Eritrea, in violation of international law.⁵ These are reasons that spurred African refugees to head for safety in Israel.

Much of the currents problems regarding the African refugees stem from the fact that the Israeli government was caught completely off guard by the flow of African refugees in the mid to late 2000s. Throughout its history, Israel has never had an established legal process to handle non-Jewish asylum seekers. Past acceptance of asylum-seekers has mostly been token and symbolic (for example, the acceptance of Vietnamese boat people in the 1970s, Bosnian refugees in the early 1990s, and several hundred Darfurians in 2007).⁶ Thus, Israel’s asylum process for the African refugees has been mostly ad hoc and inefficient, with some refugees able to dodge the Israeli police and receive temporary forms for asylum by the UN in Tel Aviv, while many others were caught and detained for months, before being unceremoniously dumped on the streets of South Tel Aviv, Eilat, and Beersheba. To date, the Israeli government has only recognized one African migrant as a refugee: an albino child from the Ivory Coast in 2011.⁷

The geographic restrictions towards the refugees also worsened the problem. For a number of years, the government forbade African refugees from living and working in central Israel (known as the Hadera-Gadera policy, in place till 2009). As a result, the refugees predictably gravitated in large numbers towards less affluent areas in the periphery, like the city of Arad.⁸ This created tensions in those areas between the locals and the refugees.

There are a number of practical solutions and polices the government could undertake to solve the African refugee problem in ways that would benefit both the refugees and the country, as well as maintain Israel’s commitment to international law. Here are a few of the most important:

• The Israeli government needs to establish a coherent, effective system by which all African refugees can go through an asylum-seeking process, and not be left in legal limbo. Refugees must also stop being punished and treated like criminals through variations of the Prevention of Infiltrators Law, which has been struck down twice by the Israeli High Court in 2007⁹ and again in 2013.¹⁰
• Efforts must be made to allow for greater freedom of movement for African refugees throughout the country. Forcing them to congregate in ghettos as in South Tel Aviv, has exasperated the problem, and has created a tremendous burden for the Israeli citizens who live in those already impoverished communities. Instead, dispersing geographically what is already a relatively small population (the total number of African migrants represent less than 1% of the Israeli population) would greatly alleviate the situation.
• For the most part, tens of thousands of these refugees are not going anywhere, thus making it pertinent for the government to provide funding for education, Hebrew language courses, and work visas to help integrate these asylum seekers into Israeli society. Greater assimilation will improve relations between Israelis and the refugees, and stable, above ground employment will reduce the potential for criminality among refugees, although based on Israeli government statistics, the percentage of Africans who have committed a crime is far less of a percentage than that of the Israeli population as a whole.

No one should deny the hardships that the African refugees impose on Israel and its citizens, and simply dismiss the backlash as completely the result of racism. In their frustration, many politicians and citizens today call for swift and simple answers for the refugee issue, like deportation, arbitrary detention, and other methods to discourage refugees from coming to Israel, and to encourage those already here not to stay. But swift and simple has never been associated with democracy. Swift and simple is the purview of authoritarian governments that are able to deport at will, fire onto peaceful protestors, and generally flaunt laws and internationals norms without repercussion. Israel, in contrast, is a modern democracy. Despite the difficulties the refugees bring, Israel cannot ignore the law and act as a rogue state, even if many of its citizens and politicians clamor for just that. The government instead must respect its international commitments, and find an adequate solution that benefits all parties. This is why I argue that this issue is an important test for Israel, which poses a question the country must ask of itself: is Israel a xenophobic, law-breaking nation that cares only for the rights of Jews, or is it a liberal democracy, committed to the law and the human rights of all people?

Daniel Steiman

Daniel Steiman is an intern in the Jerusalem office of Shatil, the New Israel Fund initiative for social change.

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¹ Amnesty International. “High Court of Justice calls prolonged detention “unconstitutional,” http://www.amnesty.org.il/?CategoryID=319&ArticleID=1527. September 9, 2013. Accessed January 13, 2014.

² Convention and Protocol Relating to the Status of Refugees. UNHCR. http://www.unhcr.org/3b66c2aa10.html. Accessed January 9, 2014.

³ Natasha Roth and Leah McDonnell. “Fact checking racist incitement against African refugees in Israel.” June 18, 2013. http://972mag.com/fact-checking-racist-incitement-against-african-refugees-in-israel/73853/. Accessed January 9, 2014.

⁴ Karin Fathimath Afeef. “A Promised Land for Refugees? Asylum and Migration in Israel.” UNCR. December 2009. http://www.unhcr.org/4b2213a59.html. Accessed December 24, 2013.

⁵ Ibid.

⁶ Ibid.

⁷ Asher Greenberg. “Israel, Designed To Absorb Jewish Refugees, Now Struggles With African Migrant Wave.” Tablet. January 10, 2014. http://www.tabletmag.com/jewish-news-and-politics/158935/migrants-in-south-tel-aviv. Accessed January 12, 2014.

⁸ Afeef 2009.

⁹ Human Rights Watch. “Sinai Perils.” November 12, 2008. http://www.hrw.org/reports/2008/11/12/sinai-perils-0. Accessed January 12, 2014.

¹⁰ Aviel Magnez. “High Court: Infiltrators cannot be held for 3 years.” Ynet. September 16, 2013. http://www.ynetnews.com/articles/0,7340,L-4430459,00.html. Accessed January 12, 2014.