From Aiding Deportation to Population-Management and Back(?): The Evolving Role of Immigration Detention in Israel

Guest post by Rottem Rosenberg Rubins. Rottem is a PhD candidate at the Zvi Meitar Center for Advanced Legal Studies at Tel Aviv University. Her dissertation, written under the supervision of Prof. Shai Lavi (TAU) and Prof. Lucia Zedner (Oxford University), is concerned with the use of detention and other mechanisms of criminal law to govern asylum-seekers in Israel. Rottem is a lecturer at the TAU faculty of law and the College of Law and Business in Ramat Gan. This is the third instalment of Border Criminologies’ themed series organised by Maayan Ravid on ‘Border Control and the Criminalisation of African Asylum Seekers in Israel’.

Crimmigration scholarship tends to focus on practices located at the margins of the state, i.e., the criminalization of undocumented entry and the deportation of migrants convicted of crimes. Such scholarship accordingly emphasizes immigration detention’s central role in enabling the removal of migrants – a role largely consistent with the one traditionally designated to detention under international law. However, the removal of migrants, found guilty of undocumented residence, is far from immigration detention’s only function. To demonstrate this point, I draw on the Israeli immigration detention system, which originally focused on facilitating deportation, but soon transformed into a system of domestic population management, focused on dispersing and controlling asylum-seekers residing in Israel. This underexplored function of immigration detention exposes the subversive potential of crimmigration, as it demonstrates that, at least in the case of asylum-seekers, crimmigration may become a pathway to partial integration into society.    

The extensive use of immigration detention in Israel first began at the turn of the 21^st century, with a large-scale deportation campaign targeting undocumented labor migrants. The campaign, which led to the mass deportation of over 100,000 labor migrants, was enabled by the establishment of the ‘immigration police’, a special police unit dedicated to the task of removing persons residing in the country unlawfully. In addition to forming this special unit, new detention facilities were opened and increased threefold the room for holding detainees in the Israeli prison system.

The Immigration Police – a telling example of the way that local policing has become involved in immigration enforcement in the era of crimmigration – was, in a sense, the harbinger of Israel’s future policy towards asylum-seekers. It represented a growing willingness to utilize the criminal justice system to control migration and an increasing reliance on detention for this purpose. However, the incarceration of labor migrants was generally restricted to sixty days and permitted only as an aid to effective deportation proceedings. Therefore, immigration detention was used in a manner largely consistent with its traditional role under international law, which generally allows detention only as an aid to deportation.     

Far more at odds with international law was the role reserved for immigration detention in the government’s policy towards the African asylum-seekers that began entering Israel in 2005. Unlike undocumented labor migrants, these asylum-seekers – most of whom came to Israel from Eritrea and Sudan – could not be deported, as the government acknowledged that they might face persecution in their home countries. Despite this acknowledgement, an extensive system of immigration detention was initiated to cope with this population: in 2012, the parliament introduced an amendment to the Israeli ‘Prevention of Infiltration Law’, stipulating that any person entering the state irregularly would be detained for a three-year period. The Prevention of Infiltration Law defines persons who have entered the state by any means other than a designated border check-post as illegal ‘infiltrators’, and does not exempt asylum seekers, which meant that asylum-seekers would be subjected to the three-year detention period. This power to incarcerate persons convicted of no individual crime for such a lengthy period, devoid of any trial or procedural protections, was, in fact, more extensive than that of the Israeli Emergency Powers Law, authorizing the administrative detention of terrorist suspects. The Emergency Powers Law at the very least requires clear and convincing evidence of the detainee’s individual dangerousness, and entails more judicial review than was mandated under the 2012 amendment.

Israel’s High Court of Justice annulled the amendment, causing parliament to modify the Prevention of Infiltration Law again. This second amendment stipulated that ‘infiltrators’ would be detained in a closed center for one year upon their arrival, and then be sent to an “open” facility (‘Holot’) where they would reside indefinitely and to which they would be obligated to report three times a day. The High Court of Justice annulled this legislation as well, finally causing parliament to settle for a three-month period in a closed center and a one-year period in Holot, during which residents of Holot were obligated to report to the center at night only. In its verdict upholding this policy, the High Court of Justice acknowledged that the role of immigration detention had little to do with aiding effective deportation proceedings or enabling the state to examine individual asylum claims. Instead, detention was used to prevent (or, rather, delay) ‘infiltrators’ from settling down in Israel, and to ‘reduce the burden’ on Israeli cities by dispersing the population of ‘infiltrators’ that reside in these cities. Hence, the role reserved for detention in the state’s policy towards asylum-seekers was one of population-management.

The new time cap on residence in Holot, as well as the limited period in the closed detention center, caused immigration detention to become all the more similar to conventional criminal imprisonment, which abides by fixed sentences for each offence. Detention in the Israeli case hence became a paradigmatic example of crimmigration, as it blurred the lines between immigration detention and criminal incarceration completely. However, ironically, the time caps on detention also caused it to function as a type of internal border that one must ‘cross’ to gain indefinite access to the country. Asylum-seekers who ‘served’ their time in a detention facility were released into the community and required only to report to the Border Authority periodically to renew their permits. From this point on, the state became limited in its ability to prevent them from integrating into society, despite formally creating countless opportunities for revoking their status. This left many asylum-seekers with an informal, yet de-facto path to partial membership in the community

It seems this fact has contributed to the government resolution in November 2017, that Israel would begin deporting asylum-seekers to Rwanda against their will, and that those who refused to leave the country would be detained indefinitely, in order to enable their future deportation. This return to the traditional role of immigration detention was reinforced by a resolution to shut down ‘Holot’ and release its residents, thus concluding the widespread use of detention as a mechanism of population management. However, the Supreme Court ruled that the detention of asylum-seekers who refused to leave for Rwanda must be limited to sixty days. Shortly after, the Rwandan government withdrew from its agreement with the Israeli government and clarified that it refused to accept asylum-seekers who were forcefully deported. Attempts to reach deportation agreements with other countries have failed, thus far. Hence, Israel currently has no prospects for expelling asylum-seekers from the country against their will, as well as no means for delaying their integration into society, via detention. 

While the future of asylum-seekers in Israel remains disturbingly unclear, it is becoming apparent that the attempt to prevent this population’s integration into Israeli society through immigration detention has failed. If detention once again becomes a short-term aid to deportation proceedings, rather than a mechanism for governing asylum-seekers exempt from deportation, hopefully this may solidify the partial membership attained by the asylum-seeking community that has long become a de-facto part of Israeli society.  

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How to cite this blog post (Harvard style) 

Rosenberg Rubins, R. (2018) From Aiding Deportation to Population-Management and Back(?): The Evolving Role of Immigration Detention in Israel. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/09/aiding (Accessed [date]).