In this L.L.M thesis I am following a number of eminent scholars who have attributed those ideological and political motivations to the mainly Jewish and Israeli actors who devote themselves to the furthering of the uniqueness thesis in their respective fields of knowledge. In my view, from the culmination of those corresponsive activities emerges a pattern that can and should be applied to the Israeli judges in their abnormal reluctance from interfering in administrative decisions by recognizing present day asylum seekers as refugees.
In the larger scope, there is a lot in common between Jewish and Jewish-Israeli historians, diplomats or museum directors, with their persistent effort to reject the calls of other victim-groups for recognition of their own tragedy as a genuine genocide, and the Israeli judges that in the same vain derogate from the constitutive theoretical principles of their field of work when it comes to the dealing with the Holocaust.
As much as the Jewish-Israeli genocide scholar may fear the decline in value, morally and politically, of the Holocaust, as a result of possible recognition of other tragedies as additional valid examples in line with the Holocaust, which all belong to the general category of the definition ‘genocide’, the Israeli judge must also believe that the Holocaust would lose its uniqueness if the legal definition of ‘refugee’ is applied to the situation of contemporary asylum seekers. Conceptually situating them in the same group of the Jewish -refugees who fled from Nazi-Germany, might then dissipate the “Israeli advantage” in “justifiably” keeping the whole moral capital to itself.
In the second chapter I shall present and elaborate about the Holocaust’s uniqueness thesis, and its promotion by its proponents in different fields, and especially within history studies.
What might make the definition ‘refugee’ intimately associated with the Holocaust in the Israeli judges’ mind is the Jewish context of the 1951 Convention relating to the Status of Refugees, and the conventional wisdom about Israel’s historical commitment to the refugee protection regime it has established. For them, the Refugee Convention connotes so strongly to the Holocaust, that when they examine its applicability and implementation in a specific case, the memory of the Jewish-refugee who fled his Nazi perpetrators is being instantly evoked. In other words, the Jewish context of the Convention serves as a nexus between the Holocaust with its Jewish refugees and the contemporary forms of persecution and the refugees resulting from them. Rather than considering the international refugee law as their only valid point of reference, the judges are more attached – consciously or not – to the Holocaust framework and to what lies at its center, the Holocaust’s uniqueness. Compelled by the ideological imperative to distinguish the Holocaust from any other historical atrocity, and so to avoid such possible implication if comparing the legal situation of the Holocaust’s refugees to the contemporary asylum seekers, the judges seem to mistake the unique form of persecution witnessed by the Jewish-refugees for the actual yardstick with which to measure the appellant’s entitlement for the refugee status.
In the third chapter I examine the involvement of Israel and Jewish organizations in the drafting and acceptance of the Refugee Convention, as well as the sources for the conventional wisdom about Israel’s historical commitment to the Convention, and its fallacy.
In the last chapter of this thesis I conduct an analysis of the figurative language used by the judges in trying to establish – through the allusions occasionally made by them to the Holocaust at large and more commonly to the Jewish context of the Refugee Convention – that when thinking about the asylum seeker appellant standing before them, they also bear in mind a phantom of the Jewish refugee, whose suffering’s magnitude overshadows any possible fear of being prosecuted proclaimed by the actual appellant. Since present day asylum seekers do not withstand the unique standards of persecution witnessed by those poor phantoms of Jewish refugees, their asylum claims are inevitably being discarded and consequently they all pass for nothing but mere economical migrants, a fact that is exemplified in the inexistent refugee recognition rate both at first instance and at the Court level.
This study analyses the mainstreaming of radical right ideology in Israel. Focusing on the political discourse used to describe the current asylum issue in the country, the article claims that features of radical right ideology are not limited to the discourse of radical right parties, but increasingly pervade the mainstream. Through discourse analysis of parliamentary discussions over asylum, the study highlights the discursive strategies and linguistic properties used in the expression of radical right ideology. The findings reveal the distinct manner in which both party families express radical right ideology; while the radical right discourse is explicit, overall, the mainstream discourse is implicit, with traces of explicitness observed. The Israeli case reveals significant insights into the scope of radical right ideology and the manner in which, through language and discourse, its features make their way through the political spectrum.
Shechory-Bitton, Mally, and Dan Soen. “Community Cohesion, Sense of Threat, and Fear of Crime: The Refugee Problem as Perceived by Israeli Residents.” Journal of Ethnicity in Criminal Justice (early view; online first).
The study deals with the concentration of African refugees in southern Tel-Aviv neighborhoods. It analyzes the impact of this situation on Israeli residents’ perception of their neighborhood. Based on a sample of 214 people four analyses were conducted: (1) symbolic and real threat felt by the residents; (2) fear of crime, neighborhood disorder, perceived risk, and community cohesiveness; (3) objective exposure; (4) distress. Distress in the neighborhood was found to be a function of fear of crime, perceived risk, and community cohesiveness. Perceptions of symbolic threat play a much more important role than real feelings of threat or fear of socio-economic competition. Likewise, it was found that African refugees are perceived as a threat to the cultural and national homogeneity of Jewish Israeli residents.
Kemp, Adriana, and Nelly Kfir. “Mobilizing Migrant Workers’ Rights in ‘Non-immigration’ Countries: The Politics of Resonance and Migrants’ Rights Activism in Israel and Singapore.” Law & Society Review 50.1 (2016): 82-116.
How are the rights of migrant workers mobilized in non-immigration regimes? Drawing on an ethnography of human rights NGOs in Israel and Singapore, two countries that share similar ethnic policies but differ in their political regime, this study contributes to scholarship on migrants’ rights mobilization by expanding cross-national analysis beyond the United States and West Europe and diverting its focus from legal institutions to the places where rights are produced. Findings show that differences in the political regime influence the channels for mobilizing claims but not the cultural politics of resonance that NGOs use when dealing with the tensions between restrictive ethnic policies and the expansion of labor migration. While restraints in authoritarian Singapore operate mainly outside the activists’ circle, in the Israeli ethno-democracy they operate through self-disciplining processes that neutralize their potential challenge to hegemonic understandings of citizenship. Paradoxically, success in advancing rights for migrants through resonance often results in reinforcing the non-immigration regime.
This study asks whether framing asylum seekers in Israel as “infiltrators” posing threats to the country amplifies exclusion toward them. The term “infiltrators” associates asylum seekers with the anti-infiltration law passed in the 1950s to fight terrorists and dissociates asylum seekers from their unique position as holders of special rights. The term “infiltrators” may thus influence the attitudes of the Israeli public regarding the treatment of asylum seekers. Findings demonstrate that respondents presented with the “infiltrators” frame were more likely to show exclusionary attitudes. Findings additionally show that the framing effect mediates the relation between perceived socioeconomic threat and exclusion.
Fleischman, Yonina, Sarah S. Willen, Nadav Davidovitch, and Zohar Mor. “Migration as a Social Determinant of Health for Irregular Migrants: Israel as Case Study.” Social Science & Medicine (early view; online first).
More than 150,000 irregular migrants reside in Israel, yet data regarding their utilization of and perceived barriers to health care services are limited. Drawing on semi-structured interviews conducted with 35 irregular migrant adults between January and September 2012, this paper analyzes the role of migration as a social determinant of health for irregular migrants, and especially asylum seekers. We analyze two kinds of barriers faced by migrants when they attempt to access health care services: barriers resulting directly from their migration status, and barriers that are common among low-income communities but exacerbated by this status. Migration-related barriers included a lack of clear or consistent legislation; the threat of deportation; the inability to obtain work permits and resulting poverty and harsh living and working conditions; and discrimination. Barriers exacerbated by migrant status included prohibitive cost; poor and confusing organization of services; language barriers; perceived low quality of care; and social isolation. These findings support recent arguments that migrant status itself constitutes a social determinant of health that can intersect with other determinants to adversely affect health care access and health outcomes. Findings suggest that any meaningful effort to improve migrants’ health will depend on the willingness of clinicians, public health officials, and policymakers to address the complex array of upstream political and socio-economic factors that affect migrants’ health rather than focusing on narrower questions of access to health care.
“Voluntary repatriation” to a country of origin may be necessary to restore refugees’ rights, when only a country of origin will provide rights associated with citizenship. Yet, if refugees are returning because they do not have access to basic rights in a host country, their return is not voluntary according to UNHCR guidelines (1996). There is a tension between facilitating repatriation to restore rights, and ensuring that repatriation is voluntary. This article will first draw on arguments from moral philosophy to suggest an alternative policy to current UNHCR guidelines. Following this normative analysis, the article hypothesizes that, on an empirical level, a repatriation policy that attempts to only facilitate repatriation that is not coerced, out of concern for voluntariness alone, may fail both to prevent coerced returns and to restore right through repatriation. This hypothesis was then tested in the case of South Sudanese repatriation from Israel between 2009-2012.
Kagan, Michael. “Limiting Deterrence: Judicial Resistance to Detention of Asylum-Seekers in Israel and the United States.” Texas International Law Journal Symposium: Immigration and Freedom of Movement, February 5, 2015.
Governments have advanced the argument that asylum-seekers may be detained in order to deter other would-be asylum-seekers from coming. But in recent litigation in the United States and Israel, this justification for mass detention met with significant resistance from courts. This essay looks at the way the American and Israeli courts dealt with the proposed deterrence rationale for asylum-seeker detention. It suggests that general deterrence raises three sequential questions:
1. Is deterrence ever legitimate as a stand alone justification for depriving people of liberty?
2. If deterrence is sometimes legitimate, is it valid as a general matter in migration control, or is it limited to certain exceptional circumstances?
3. If deterrence is a legitimate goal, is there any effective proportionality limit on the measures a government may take against asylum-seekers?
The American and Israeli courts did not answer these questions in the same way, and they did not foreclose all potential future uses of deterrence by their respective governments. But they signaled considerable judicial resistance, which may make it more difficult for governments to justify mass detention in the future.
This article deals with a reform in the regulation on employment of migrant workers which was implemented in the Israeli construction industry from 2005. This corporations-based arrangement replaced a restrictive employment arrangement which tied the employee to a specific employer. The new regulation of work conditions and wages, coupled with a significant reduction in the number of work permits issued to construction, has improved work conditions and wages paid to migrant workers, and made their employment less attractive to employers. The reform also included elements designed to reduce the illegal employment phenomenon and to encourage migrant workers to leave the country at the end of their contracts. However, the new arrangement still restricted the mobility of migrant workers to some extent and had negative consequences such as a significant rise in the broker fees demanded of workers.
The conference is free and open to the public, but registration is required. Please email ISCP@yu.eduwith your name, affiliation, and contact information.
Constitutional Conflicts and the Judicial Role in Comparative Perspective
This conference will explore the Israeli Supreme Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies.
Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state.
The Israeli Supreme Court Project at Cardozo
This conference marks the launch of the Israeli Supreme Court Project at Cardozo Law (ISCP). Intended to both inform and engage constitutional scholars, lawyers, and judges in democracies around the world, the ISCP is a center of study and discussion of the decisions of the Israeli Supreme Court, one of the great judicial bodies of the world and a court at the forefront of dealing with issues at the core of what it means to be a democratic society.
The central undertaking of the ISCP is the translation into English and dissemination of key opinions of the Israeli Supreme Court. In this, the Project is continuing, and will expand on, two decades of work and over 200 translations by the Friends of the Library of the Supreme Court of Israel. Translated opinions, other relevant material about the Court, and more information about the ISCP can all be found on the Project’s website, VERSA, at versa.cardozo.yu.edu.
This conference, as well as the other work of the ISCP, are made possible by essential support from the David Berg Foundation, which is gratefully acknowledged.
2:30-3 p.m. Registration and Coffee3-3:15 p.m. Welcoming Remarks
This panel will consider the value and challenges of comparative legal study. Why should scholars and judges in one country care what their counterparts elsewhere are up to? Is it ever possible for outsiders to understand the details, cultural meanings, and historical underpinnings of a foreign legal system? What are the settings, issues, or circumstances that make for a successful comparative work?
8:30-9 a.m. Registration and Coffee 9-10:30 a.m. The Role of the Judiciary in Comparative Perspective
The Israeli Supreme Court hears over 10,000 cases a year, has a large mandatory docket, for many of its most important cases is the court of first instance rather than a court of appeal, and has only limited threshold “justiciability” doctrines (such as standing requirements or the bar on political questions). In these features it is utterly different from its U.S. counterpart. This panel will consider such structural characteristics, then turn to their broader implications regarding the role of the judiciary in governance and in society, including the question of whether a Supreme Court leads or follows civil society, whether it is an educational institution, and the sources of its legitimacy.
10:45 a.m.-12:15 p.m. Judicial Oversight of National Security and Intelligence Gathering
Effective national security and intelligence gathering are generally understood to depend on secrecy, dispatch, and subterfuge. These characteristics would seem to leave little room for judicial oversight, which assumes transparency, forthrightness, and deliberate pacing. On the other hand, there is a very real danger of abuse without some sort of oversight and legal restraint. This panel will consider how national security issues differ (if at all) from other issues that come before the courts and what exactly the judicial role should be in overseeing national security agencies.
12:30-1:30 p.m. Lunch (Lunch will be provided for all attendees.)
1:30-3 p.m. Immigration, Asylum, and the Treatment and Status of Refugees
Of the Israeli Supreme Court’s recent decisions, one of the most important, divided, and divisive have concerned the detention of asylum seekers. Issues surrounding immigration and citizenship are hugely important, and hugely contested, in Israel and elsewhere. This panel will examine the ISC’s decisions in this area and consider what lessons can be drawn, positive or negative, for Israel and for the rest of the world.
3:15-4:45 p.m. Religion in the Modern Nation-State
Israel’s Basic Laws designate it as “both Jewish and democratic.” The Supreme Court, and many commentators, have struggled to reconcile these two fundamental commitments. Is it possible to construct a constitutional identity that privileges Jewish culture, history, and religion while remaining essentially democratic? The answer to that question has ramifications for religious liberties in many settings as well as minority rights in general.
Kalir, Barak. “The Jewish State of Anxiety: Between Moral Obligation and Fearism in the Treatment of African Asylum Seekers in Israel.” Journal of Ethnic and Migration Studies [early view online, prior to printed version]
Since 2005 around 60,000 asylum seekers, mostly from Eritrea and Sudan, have entered Israel by crossing the border from Egypt. Notwithstanding the Jewish history of persecution, and Israel being a signatory to the UN Convention for the protection of refugees, modern Israel systematically refuses to grant a refugee status to asylum seekers. Since 2012, the tenacious hostile approach of Israeli policy-makers and state-agents towards asylum seekers has resulted in an outburst of racist verbal and physical attacks against them. This article analyses the socio-legal location of asylum seekers in Israel by examining how their position is articulated by different parties, deploying competing discourses of human rights, citizenship, security and sovereignty. The article advances that appeals—mostly made by critical non-governmental organisations (NGOs), journalists and academics—to human rights, Jewish morals and historic sensitivities are beguiling; while they arouse hopes for compassion and moral obligation, they are also used by mainstream Israeli politicians to justify the exclusion and deportation of so-called ‘African infiltrators’. A hegemonic ideology of ‘fearism’—which brands the Israeli national narrative and informs the notion of citizenship among Jewish Israelis—leads to the construction of asylum seekers as abject Others, who pose a threat to the Jewish state and to Jews’ own right for secured citizenship.
Localized debates about who unauthorized migrants are and what they do, or do not, deserve unfold in a culturally specific register that is deeply charged with emotion and moral valuation. Structuring such debates are vernacular discursive frames that emerge from, and reflect, a common “local moral economy.” Taking Israel as case study, this article examines six elements of the country’s local moral economy – biopolitical logic, historical memory, political emotion, popularized religion, an ideology of “fruitful multiplication,” and hasbara (“public diplomacy”/propaganda) – and explores their impact on public debates about unauthorized and irregular forms of migration. Here, as elsewhere, conventionalized distinctions that frame much migration scholarship – e.g. “economic” vs. “political” migrants, “migrant workers” vs. “refugees,” even the terms “authorized” and “unauthorized” themselves – bear but limited salience. Migration researchers who hope to influence local policy debates must recognize the weight and influence of local moral economies, and the chasms that divide vernacular from conventionalized frames. Achieving this sort of nuanced understanding is, at root, an ethnographic challenge.