New law targeting refugees employs logic of human traffickers

Israel’s “Infiltrators’ Law” strips the refugee and asylum seeker of liberty, dignity and the right to due process. In producing a form of life that is rendered unworthy of living, the government reformulates the strategies employed by notoriously violent refugee smugglers.

By Itamar Mann

The amendment to the Prevention of Infiltration Law, passed in the Knesset late Monday night, makes no differentiation between unauthorized migrants pending deportation and asylum seekers: they are all grouped together under the law’s ominous title, and a non-discriminatory policy of detention, potentially for life, is inflicted upon all of them. This far-reaching measure contradicts Israel’s international obligations under the 1951 Refugee Convention. The fact that law-makers rejected the Hadash party’s proposal to add a provision saying the law will be interpreted in accordance with the Convention suggests that they knew what they were doing.

As long as Israel observes this law, and does not deport asylum seekers to their countries of origin, it does not risk simply killing them. But its new policy is designed to prevent the migrants coming into Israel’s territory from anything beyond mere survival – what philosopher Hannah Arendt famously called bare life. The individual the new law envisions will be fed and housed, but will be stripped of any form liberty, dignity or due process of law.

Why is Israel putting its domestic legislation in direct conflict with international law? As Aeyal Gross recently explained, the law employs a logic of deterrence. In this context, Israel’s monopoly over violence is allied with existing violence of non-state actors well beyond Israel’s southern border.

As I have learned from several of the asylum seekers I have had the opportunity to speak with, people are now more hesitant than ever to take the perilous journey through the Sinai desert. As has been extensively reported by international human rights monitors such as Human Rights Watch, Bedouin smugglers often inflict hair-raising torture and rape on the migrants that choose to use their services. While these behaviors are intended to blackmail the migrants’ families left behind in countries like Eritrea, they also send a warning to other would-be asylum seekers and migrants traveling through the area. They thus serve Israel’s stated policy objectives, keeping vulnerable populations away from its borders.

Like in other places in the world, what we see at the border can therefore be described as an economics of pain. The Eritrean asylum seekers kept captive by the Bedouins in desert facilities pay good money – when they are tortured – for the chance to enter Israel. The new law should therefore be understood as an extension or version of the very same logic employed by the smugglers in Sinai. But as philosopher Paul Kahn has shown, pain is precisely what the liberal imagination cannot reduce to economic value or utility, and is therefore not simply deployed as a means toward policy ends. How, then, are the cruel strategies of smugglers in Sinai employed by the Israeli government?

The new Infiltrators’ Law reflects that there is still a residue of liberal imagination in the Israeli legislature. After all, it has not decided to codify a policy of killing asylum seekers, torturing or raping them. Thus, the deterrence employed by the smugglers is shifted, while maintaining the same underlying premise. A remaining available means is the option to take away liberty, and perhaps even dignity. In other words, the government thinks it can still produce a form of life that is not actively destroyed, but that is rendered unworthy of living.

Relying on Hannah Arendt, it is safe to assume that this strategy will quickly prove futile. In her classic essay “The Decline of the Nation-State and the End of the Rights of Man” (in The Origins of Totalitarianism), Arendt recounts the stories of refugees and stateless people in the interwar period. As she explains, these people would commonly and strategically commit petty crimes. This way, they could promise themselves prison sentences, preventing their deportation while ensuring food and board.

In other words, for some people, being reduced to bare life can provide a modicum of protection. Granted, this may not be true if detention sentences are truly perpetual, which the law provides for. There is, however, an easy way to ensure that infinite sentences are not realized: by making sure that more and more people cross the border into Israel. Along the fault lines of the Global North and the Global South, the experience in this context has proven consistently similar. At some point, detained migrants are set free, as capacity in detention facilities cannot be stretched any further.

The measures employed by smugglers, such as torture and rape, are partially effective in deterring asylum seekers only because, for a limited duration, they impose on their victims fates that are worse than death. But as long as in many countries in Africa growing food shortages and oppressive regimes produce living environments that fall short of bare life, the Israeli transformation of the economics of pain to a policy of reduction to bare life will not succeed.

If Israel continues neglecting its obligations under the Refugee Convention, it risks creating a humanitarian disaster, as more and more people who cross the border remain without status, housed in ever more populated detention facilities. If these conditions do not lead to a humanitarian disaster inside Israel’s borders, this will only be thanks to Israel’s present gatekeepers – the torturers and rapists who blackmail the world’s most vulnerable.

Itamar Mann is a human rights lawyer and a doctoral candidate at Yale Law School

For more on this issue:
Knesset passes controversial bill on prolonged detention of refugees without trial
Israel’s “war on work infiltrators”
Proposed law would indefinitely jail refugees seeking protection
WATCH: Refugees smuggled to Israel face organ theft in Sinai