Asylum seekers can now face years in prison over false accusation

The Prevention of Infiltration Law, which enables asylum seekers to be detained for three years or more without trial, can now be applied to anyone with a ‘criminal background.’ But what does ‘criminal background’ mean? It’s unclear. 

By Elizabeth Tsurkov

In early July 2012, the Ministry of Interior and the Israel Police decided to allow asylum seekers with a vaguely defined “criminal background” to be detained under the new Prevention of Infiltration Law. Following the expansion of prisons to hold thousands more migrants, Israel began enforcing the law on June 3. Since then, all newly arrived asylum seekers, including children and torture survivors, are jailed without trial for a minimum period of three years. According to the new decision, asylum seekers who were arrested upon entering Israel but released from detention before the law’s implementation can be detained again if they have a “criminal background.”

On August 16, Israeli police publicized the arrest of two Eritreans suspected of rape. The police and Israeli media presented the story of the accuser, taking care to highlight the nationality of the supposed attackers. The headline of the report published on NRG, Maariv’s news portal, stated: “In broad daylight: A woman was raped by two Eritreans in Tel Aviv.”

Following the arrest of the two, Minister of Interior Yishai rushed to state: “The infiltrator threat is just as severe as the Iranian threat. This case shows just how problematic the personal safety issue in Israel has become. We must make people feel safe again.” He added that he instructed the Immigration Authority to begin rounding up Eritreans and Sudanese because “until I can deport them I’ll lock them up to make their lives miserable.” Eritrean and Sudanese asylum seekers, who make up over 80 percent of the asylum seekers residing in Israel, cannot be deported due to dangers they would face in their homelands. At the same time, Israel does not examine the refugee claims of any of the asylum seekers from Eritrea and Sudan, enabling the government to claim that none of them are refugees, in turn justifying their poor treatment by the authorities.

On August 20, a court ordered the suspects be released due to police failures. The police appealed the decision to a higher court, which accepted the appeal, and the detainees remained in custody. The police realized they could not substantiate the claims of the accuser and decided not to press charges against the men. However, since the asylum seekers could now be considered to possess a “criminal background,” instead of releasing them from custody, they were re-detained [Hebrew] thanks to the new Ministry of Interior decision. The two were never indicted or convicted, and yet they will now spend three years in administrative detention in the internment camps near the Egyptian border.

The term “criminal background” is purposefully vague and broad, and is not a legal definition found in any law or regulation, Asaf Weitzen, attorney at the Hotline for Migrant Workers, tells me. According to Weitzen, this term can mean anything ranging from “a person who has convicted friends, a person who is a suspect, has a criminal record, a person who was indicted but not convicted, or a person who committed a traffic violation.”

This “criminal background” decision, which automatically sends a person to administrative detention, denies asylum seekers who were never convicted of a crime the right to due process. It also means that a person who has served a sentence for a crime can be jailed again for the same crime. As Weitzen points out, “The state is circumventing all the guarantees that exist in the criminal procedure, skipping over the right of the defendant to present his version of events and confront the accusations against him.” Weitzen adds, “This means that every person against whom some initial evidence was collected that he or his friends were involved in a matter with a criminal character, is already guilty in that he will be jailed for a period of about three years.” Weitzen voiced concern that such a circumvention of the right to due process, which is enshrined in Israeli law, could spread to affect Israelis as well.

This decision follows an incitement campaign spearheaded by coalition members, designed to depict the refugees reaching Israel not as persecuted and afflicted people in need of protection, but as a threat. Minister of Interior Eli Yishai (Shas), in charge of Israel’s immigration policy, has stated that “most” asylum seekers are “engaged in crime” and called to round up and jail all asylum seekers, even if it requires releasing convicted Israeli criminals to make room for the Africans.

The implementation of the Ministry of Interior decision creates two parallel legal systems in Israel. While Israelis continue to enjoy the right to due process and the legal protections against unlawful and unjustified detention, African asylum seekers can now be sent to jail for years over little more than a false accusation.

Elizabeth Tsurkov volunteers at several human rights organizations assisting refugees in Israel.